Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 1 of 33

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Crim. No. 17-201-1 (ABJ)
PAUL J. MANAFORT, JR.,

Defendant

GOVERNMENT’S MEMORANDUM IN OPPOSITION TO
DEFENDANT PAUL J. MANAFORT, JR.’S MOTION TO SUPPRESS EVIDENCE
AND ALL FRUITS THEREOF RELATING TO THE SEARCH OF THE
STORAGE UNIT LOCATED IN ALEXANDRIA, VIRGINIA
The United States of America, by and through Special Counsel Robert S. Mueller, III, files
this memorandum in opposition to defendant Paul J. Manafort, Jr.’s motion (Doc. 257) to suppress
evidence that the government obtained pursuant to a warrant authorizing the search of a storage
unit located in Alexandria, Virginia. Manafort argues principally that a previous consent search
of the storage unit violated the Fourth Amendment and tainted the subsequently issued warrant,
that the warrant was an overbroad general warrant, and that execution of the warrant was
unreasonable and violated Federal Rule of Criminal Procedure 41(f). These arguments lack merit.
As was fully disclosed to the magistrate judge who signed the warrant for the storage unit,
the initial entry into the storage unit was done with the permission of the unit’s lease holder, who
had a key to the unit. Specifically, Special Agents of the Federal Bureau of Investigation (FBI)—
who were working with the United States Attorney’s Office for the Eastern District of Virginia
and the Money Laundering and Asset Recovery Section of the Department of Justice’s Criminal
Division—entered the storage unit after obtaining written consent from an employee of a
Manafort-affiliated business who had a key to the unit, was listed as its occupant on the lease, and

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 2 of 33

had personally moved the contents of the unit into the unit. 1 The employee thus had common
authority to consent or, at a minimum, apparent authority to do so. Regardless, any infirmity in
this initial entry would not undermine the lawfulness of the subsequently obtained search warrant.
Even excising the description of what the agent saw in the storage unit during the initial entry, the
warrant application established probable cause to believe that evidence of the listed offenses would
be found at that location. And, given that the pertinent facts were disclosed to the magistrate who
signed the warrant, and that the entry was at the very least closely aligned with pertinent legal
authority, suppression is not warranted under the good-faith exception to the exclusionary rule.
Manafort’s challenges to the breadth and execution of the warrant are equally unavailing.
The warrant satisfies the Fourth Amendment’s particularity requirement because the categories of
documents to be seized, especially when read alongside the subject crimes, sufficiently guided
officer discretion and do not amount to a prohibited general warrant. Nor does the absence of a
specific temporal limitation render the warrant overbroad in light of the extensive scope of the
financial criminal activities described in the warrant affidavit. And even assuming otherwise, the
warrant was not so obviously overbroad that it precluded a reasonable officer from relying on a
neutral magistrate’s decision to issue it. In any event, the remedy for any overbreadth would be
exclusion of evidence predating the period relevant to this case, not the blanket suppression that
Manafort seeks. Finally, Manafort’s complaints about execution of the warrant lack merit and do

1

Manafort’s opening assertion that the agents who executed the warrant “acted pursuant
to Acting Attorney General Rosenstein’s invalid grant of authority to the Special Counsel,” Doc.
257 at 1 n.1, overlooks the information in the warrant application making clear that the agent who
sought the warrant was assigned at the time to the FBI’s International Corruption Squad, Aff. ¶ 2,
and that the warrant application was reviewed by an Assistant U.S. Attorney (AUSA) in the
Eastern District of Virginia, Doc. 257-1 at 1; see also Doc. 258-1 (sealed version of application
identifying AUSA by name).
2

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 3 of 33

not support suppression. For these and other reasons explained further below, Manafort’s motion
to suppress should be denied.
BACKGROUND
The relevant facts, as established by the warrant, the supporting affidavit, and related
materials, are as follows. 2 On May 26, 2017, a Special Agent then assigned to the FBI’s
International Corruption Squad in Washington, D.C. (“the Agent”) met with a salaried employee
(“the Employee”) of a business affiliated with Manafort, Steam Mountain, LLC. Aff. ¶ 28. The
Employee, who had previously worked at another Manafort business (Davis Manafort Partners, or
DMP), informed the Agent that “he perform[ed] a variety of functions for Manafort and his
companies[,] as directed by Manafort.” Id. As relevant here, the Employee stated that, in
approximately 2015, he had moved a series of office files from Manafort’s business contained in
boxes in a smaller storage unit to the larger unit at the same storage facility (“Unit 3013”) that
became the subject of the search. Id. The Employee advised that he had personally moved the
office files to the larger unit and that they were still in the unit. Id.
Later that day, the Employee led the Agent to the storage facility. Aff. ¶ 29. Once there,
the Agent obtained a copy of the lease for Unit 3013 from the facility manager. Id. The lease
identified the Employee as the “occupant” of the unit, id., and also named Manafort as one of the
“occupant’s authorized access persons.” Doc. 257-3. Richard Gates, another Manafort employee,
was listed as an alternate point of contact. Id.; Aff. ¶ 29.

2

Manafort has appended a redacted version of the warrant affidavit (“Aff.”) to his motion
and filed an unredacted version under seal (Doc. 258-1). With one exception, citations in the
memorandum are to the redacted version, which (among other things) preserves the anonymity of
the Manafort employee mentioned in the text. The one exception—a citation to a paragraph in the
affidavit describing Manafort’s work in Ukraine—reveals no confidential information and instead
recites information already made public in the Superseding Indictment, Doc. 202 ¶¶ 1, 8-9.
3

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 4 of 33

The Employee confirmed to the Agent that he had a key to the unit’s lock and further orally
described the contents of the unit. Aff. ¶ 30. Specifically, the Employee stated that Unit 3013
contained several boxes of office files from Manafort’s business, as well as a metal filing cabinet
that contained additional, more recent business files. Id. The Employee said that he had moved
the filing cabinet from Manafort’s former residence—which Manafort was using as an office at
the time—in the spring of 2015. The Employee stated that the cabinet was extremely heavy when
he moved it, indicating that it contained a large amount of records. Id. In addition, although the
Employee could not describe the contents of the filing cabinet in more detail, he told the Agent
that Manafort occasionally sent emails directing the Employee to put certain records into the filing
cabinet. Id. The Employee described those records as “brown, legal-sized files,” and recalled
having last added such records to the filing cabinet in the spring of 2016. Id.
The Employee signed a written consent-to-search form stating that he had “been advised
of [his] right to refuse consent,” that he voluntarily gave permission to search Unit 3013, and that
he authorized the investigating agents “to take any items which they determine may be related to
their investigation.” Exh. B, infra; Aff. ¶ 31. The Employee then used the key in his possession
to open Unit 3013. The Agent entered the unit and observed approximately 21 bankers’ boxes that
could contain documents, as well as a five-drawer metal filing cabinet. Aff. ¶ 31. None of the file
drawers was marked as to their contexts, but some of the boxes did have markings. Id. Two were
labeled “MPI,” initials that the Agent determined to stand for an international film-production
company in which Manafort was believed to be an investor. Id. Another was marked “Ukraine
binders,” making it reasonable to believe that the storage unit was “a collection point for
Manafort’s and Gates’s business records from their work in Ukraine.” Id. ¶ 35.

4

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 5 of 33

The Agent did not open any of the boxes or file-cabinet drawers during his entry into Unit
3013. Aff. ¶ 31. Rather, the Agent prepared an application for a warrant to search the unit and
submitted it to a magistrate judge in the Eastern District of Virginia the next day. The affidavit in
support of the warrant explained at the outset that, since 2014, law enforcement agents had been
conducting an investigation into, among other things, Manafort’s financial dealings. Aff. ¶ 5. The
affidavit then set forth at length facts establishing probable cause to believe that violations of three
federal laws had been committed—viz., failure to report bank accounts, in violation of 31 U.S.C.
§§ 5314 and 5322(a); acting as an unregistered agent of a foreign principal, in violation of 22
U.S.C. §§ 612 and 618; and filing a false tax return, in violation of 26 U.S.C. § 7206(a)—and that
evidence and fruits of those crimes would be found in the storage unit. Aff. ¶ 4. In reciting those
facts, the affidavit described what the Employee had told the Agent about the contents of the
storage unit, how the Agent had obtained the Employee’s consent to enter the unit a day earlier,
and what the Agent had observed when he entered the unit. Id. ¶¶ 28-37. The affidavit also
explained that the unit had been locked with a key when the Agent exited and had been under
surveillance since that time to ensure that no one entered or took items from the unit. Id. ¶ 38.
On May 27, 2017, the magistrate judge issued a warrant authorizing the search of Unit
3013, “as well as any locked drawers, locked containers, safes, computers, electronic devices, and
storage media . . . found therein.” Doc. 257-2, Attach. A. Attachment B to the warrant identified
as the “[p]roperty to be seized” “[r]ecords relating to” the three federal offenses listed in the
Agent’s affidavit: failure to file a report of a foreign bank account, in violation of 31 U.S.C.
§§ 5314 and 5322; acting as an unregistered act of a foreign principal, in violation of 22 U.S.C.
§ 618; and filing a false tax return, in violation of 26 U.S.C. § 7206(a). Doc. 257-2, Attach. B ¶ 1.
The warrant listed the following eight categories of records as subject to seizure:

5

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 6 of 33

a. Any and all financial records for Paul Manafort, Richard Gates or companies
associated with Paul Manafort or Richard Gates, including but not limited to
records relating to any foreign financial accounts;
b. Any and all federal and state tax documentation, including but not limited to
personal and business tax returns and all associated schedules for Paul Manafort,
Richard Gates, or companies associated with Paul Manafort or Richard Gates;
b. Letters, correspondence, emails, or other forms of communications with any
foreign financial institution, or any individual acting as the signatory or
controlling any foreign bank account;
c. Any and all correspondence, communication, memorandum, or record of any
kind relating to the Party of Regions, Viktor Yanukovych, the European Centre
for a Modem Ukraine, or any other foreign principal of Paul Manafort or Richard
Gates, or any company associated with Paul Manafort or Richard Gates;
d. Any and all correspondence, memorandum, press release, or documentation of
any kind regarding any lobbying or advocacy performed by Paul Manafort,
Richard Gates, or any company associated with Paul Manafort or Richard Gates,
on behalf of the Party of Regions, Viktor Yanukovych, the European Centre for
a Modern Ukraine, or any other foreign principal of Paul Manafort, Richard
Gates, or any company associated with Paul Manafort or Richard Gates[;]
e. Records related to, discussing, or documenting Neocom Systems, Antes
Management, Yiakora Ventures, Global Highway Ltd., Global Endeavor,
Leviathan Advisors, Peranova Holdings, Bletilla Ventures, Lucicle Consultants,
and/or Telmar Investments, including but not limited to bank records, canceled
checks, money drafts, letters of credit, cashier’s checks, safe deposit records,
checkbooks, and check stubs, duplicates and copies of checks, deposit items,
savings passbooks, wire transfer records, and similar bank and financial account
records[;]
f. Records related to, discussing, or documenting the Podesta Group[;]
g. Any and all daily planners, logs, calendars, schedule books relating to Paul
Manafort or Richard Gates.
Id., Attach. B ¶ 1.
FBI agents entered the storage unit to execute the warrant at approximately 5:20 p.m. that
afternoon. Doc. 257-2 at 2 (reporting time as 17:20). Over the course of the next two hours, they
seized nine sets of documents that were within the scope of the warrant, a subset of what was in

6

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 7 of 33

the unit. See Exh. A, infra (FBI Collected Item Log lists time of seizure as 7:09 p.m.). Five of the
groups of documents (and some binders) were taken from a file cabinet, while the remaining four
sets were gathered from boxes located on the left-hand side and rear wall of the storage unit. Id.
On June 5, 2017, nine days after the search, the Agent submitted to the magistrate an inventory
that described one set of the seized items as “documents and binders” and the other eight sets as
“documents.” Doc. 257-2 at 2.
LEGAL STANDARD
A defendant generally must show a violation of his personal Fourth Amendment rights in
order to prevail on a motion to suppress evidence. Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978).
When challenging a warrant-authorized search, the defendant therefore bears the burden to
establish that the warrant was invalid or overbroad. See United States v. de la Fuente, 548 F.2d
528, 533-34 (5th Cir. 1977). In a challenge to a warrantless search or seizure, however, “the burden
shifts to the government” to justify the intrusion. United States v. Hassanshahi, 75 F. Supp. 3d
101, 108 (D.D.C. 2014); see United States v. Peyton, 745 F.3d 546, 552 (D.C. Cir. 2014)
(government can establish reasonableness of a search “by showing that the police, despite lacking
a warrant, were permitted to undertake the search by someone with authority”).
ARGUMENT
I. The Preliminary Consent Search Was Valid And, Even If Not, Would Not Require
Suppression Of Evidence Later Obtained Pursuant To The Warrant
Manafort argues (Doc. 257 at 3-13) that the Agent’s consent search of Unit 3013 was
unconstitutional because the Employee lacked authority to consent to a search. He claims that all
evidence obtained from the subsequent search pursuant to a warrant should be suppressed and that
an evidentiary hearing is necessary to determine whether the Employee’s consent was voluntary.
As explained below, those contentions lack merit.
7

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 8 of 33

A. The Employee Had Authority To Consent To The Search of Unit 3013
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.” U.S.
Const. Amend. IV. A search within the meaning of this Amendment occurs when the government
violates a person’s reasonable expectation of privacy or obtains information by physically
intruding into a constitutionally protected area. Florida v. Jardines, 569 U.S. 1, 5 (2013). Such a
“search” occurred in this case when the Agent entered Unit 3013 and observed its contents, and
the government accepts for purposes of this motion that Manafort is entitled to challenge that
search under the Fourth Amendment. See United States v. Karo, 468 U.S. 705, 720 n.6 (1984)
(noting individuals’ “reasonable expectation of privacy in their own storage locker”); see also,
e.g., United States v. Johnson, 584 F.3d 995, 1001 (10th Cir. 2009) (similar, even when the
individual “is not the lessee of the unit”).
The Agent’s entry into Unit 3013 was a “[c]onsent search[],” one of the “categories of
permissible warrantless searches” that are constitutionally “reasonable” and thus lawful under the
Fourth Amendment. Fernandez v. California, 134 S. Ct. 1126, 1132 (2014). Although the
government must establish that a search was conducted pursuant to valid consent, “[s]uch consent
need not come from the target of the search.” Peyton, 745 F.3d at 552. It may instead be provided
by “a third party who possessed common authority over or [had] other sufficient relationship to
the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171
(1974). This authority to consent rests not on “the law of property” but on indicia of “joint access
or control” that make it “reasonable to recognize that any of the co-inhabitants has the right to

8

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 9 of 33

permit the inspection in his own right and that the others have assumed the risk that one of their
number might permit the common area to be searched.” Id. at 171 n.7.
Even when the third party ultimately lacks the authority to consent, a search based on that
party’s consent is reasonable (and constitutional) “if it [was] reasonable for the police to believe”
that the party had the requisite authority. Peyton, 745 F.3d at 552. “Such ‘apparent authority’ is
sufficient to sustain a search because the Fourth Amendment requires only that officers’ factual
determinations in such situations ‘always be reasonable,’ ‘not that they always be correct.” Id.
(quoting Illinois v. Rodriguez, 497 U.S. 177, 185 (1990)). As explained below, the warrantless
entry into Unit 3013 was reasonable because the Employee had common authority or, at a
minimum, apparent authority to consent to the search.
1. The Employee had common authority to consent
As an initial matter, the Employee had common authority to consent to a search of Unit
3013. The Employee was listed as the occupant on the unit’s lease. Aff. ¶ 29; Doc. 257-3. He
had a key to the unit. Aff. ¶ 30. And he had accessed the unit multiple times as part of his job
responsibilities, both when first moving the files and boxes into the unit in 2015 and on the more
recent occasions when, at Manafort’s direction, he placed files in the filing cabinet stored in the
unit. Id. ¶¶ 28, 30. Under those circumstances, Manafort “assumed the risk that [the Employee]
would” use the key he possessed to “permit outsiders (including the police) into the” unit. Peyton,
745 F.3d at 555; see Matlock, 415 U.S. at 171 & n.7.
Two courts of appeals have held that materially indistinguishable facts establish a storage
unit lessee’s authority to consent to a search of the unit. In United States v. Kim, 105 F.3d 1579
(9th Cir.), cert. denied, 522 U.S. 940 (1997), an associate of Kim’s (Wee) had rented storage units
that officers believed to contain stolen goods. Id. at 1580. The officers reviewed lease agreements

9

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 10 of 33

showing that Wee had rented the units and that others, including Kim, also had access to them.
Wee did not have the keys to the units but told the officers that Kim had hired him to rent the
storage units and inventory merchandise in them. Officers “also learned that Wee had been the
only individual present during the unloading of some of the allegedly stolen goods and that Wee
had temporarily kept the keys to the storage units afterwards.” Id. Based on those facts, the Ninth
Circuit held “that Wee possessed common authority to consent to the search.” Id. at 1582. The
court explained that Kim had “allowed Wee to keep possession of the leases, supervise unloading
of the goods and retain the keys on occasion.” Id. By “ced[ing] partial control” of the units “to
Wee at all times, and allow[ing] him total control on occasion,” the court reasoned,” Kim “assumed
the risk that Wee would allow a search of the units.” Id.
The Tenth Circuit followed Kim in United States v. Trotter, 483 F.3d 694 (10th Cir. 2007),
vacated on other grounds, 552 U.S. 1090 (2008). The defendants there, two brothers, participated
in a drug-distribution conspiracy with King, who rented a storage unit in his own name at the
direction of one of the brothers. Id. at 697. The brothers kept the three keys to the unit, “but on
numerous occasions Mr. King was temporarily given a key so that he could retrieve drugs and
drug paraphernalia from unit.” Id. After surreptitiously copying or stealing one of the keys, King
cooperated with the police and consented to searches of the unit using the key. Id. The brothers
moved to suppress the resulting evidence on the ground that King lacked actual authority to
consent to the search, but the Tenth Circuit rejected that argument. The court pointed out both that
King’s status as lessee of the unit gave him the right to have the facility open the unit at any time
without the brothers’ knowledge and that the brothers had allowed “King to access the storage unit
when they sent [him] to the unit to retrieve or drop off items.” Id. at 699. The court concluded
that “King’s position as lessee of the unit and his active participation in renting and using the

10

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 11 of 33

facility gave him a ‘sufficient relationship to the premises’ to justify the searches based upon his
consent.” Id. (quoting Matlock, 415 U.S. at 171); see also United States v. Atiyeh, No. 00-cr-682,
2001 WL 66409, at *9 (E.D. Pa. 2001) (party who rented storage locker in his own name at the
behest of, and had been partially reimbursed by, the defendant had authority to consent to search).
The same result is warranted in this case. As in Kim and Trotter, the Employee was the
lessee of the storage unit and thus had the right and capability to gain access to the unit at any time
“without [Manafort’s] knowledge or permission.” Kim, 105 F.3d at 1582. As in those cases, the
other person listed on the lease (Manafort) “allowed” the Employee access to the storage unit by
sending the Employee to the unit to “drop off items.” Trotter, 483 F.3d at 699; see Aff. ¶¶ 28, 30
(in addition to having the Employee move materials into the larger storage unit at the outset,
Manafort occasionally sent the Employee emails “directing [him] to put certain records into the
filing cabinet” in the unit). And as in those cases, the Employee had a key to the storage unit.
Indeed, the Employee’s access to a key is more probative of his authority here than in Kim and
Trotter. Unlike in Kim, 105 F.3d at 1580, the Employee possessed the key at the time that he
consented to the search. Aff. ¶¶ 30-31. And he did not have to steal or “surreptitiously” make a
copy of the key to obtain access to it, as in Trotter, 483 F.3d at 697. The undisputed facts, in short,
overwhelmingly support the conclusion that the Employee “possessed common authority to
consent to the search.” Kim, 105 F.3d at 1582.
2. The Agent reasonably believed that the Employee had authority to consent
At a minimum, the search is valid based on the Employee’s apparent authority to consent.
The relevant question in deciding apparent authority is whether “the facts available to the officer
at the moment [would] warrant a man of reasonable caution in the belief that the consenting party
had authority over the premises.” Rodriguez, 497 U.S. at 188 (internal quotation marks and

11

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 12 of 33

ellipses omitted); see United States v. Law, 528 F.3d 888, 904 (D.C. Cir. 2008) (per curiam). Here
the answer to that question is “yes.”
As noted above, the Agent had verified that the Employee was listed as the occupant of the
unit on the lease, Aff. ¶ 29, a factor that courts have considered significant in determining the
existence of common authority. Compare Rodriguez, 497 U.S. at 181 (rejecting commonauthority argument in part because the consenting party’s “name was not on the lease”). The
Employee also had a key to the unit, another fact that signals authority to consent. See United
States v. Murphy, 506 F.2d 529, 530 (9th Cir. 1974) (even where employee “was given the key to
the warehouse” only on occasions when he performed work there, his “custody of the key gave
him sufficient dominion over the premises to enable him to grant the necessary consent”). In
addition, the Agent understood that the Employee “current[ly]” worked for Manafort, received a
salary from one of his affiliated companies, and that the “functions” the Employee performed “for
Manafort and his companies” included moving files into the storage unit. Aff. ¶ 28. Even if those
circumstances did not definitively establish the Employee’s common authority to consent, they
made it reasonable for the Agent to believe that the Employee had sufficient authority “over the
premises” to give consent. See Rodriguez, 497 U.S. at 188; Law, 528 F.3d at 904. 3

3

None of Manafort’s cited cases—all of which involve residential searches—supports a
contrary result. Doc. 257 at 7. The consenting party in United States v. Corral, 339 F. Supp. 2d
781 (W.D. Tex. 2004), was a part-time housekeeper who did not even have a key to the house. Id.
at 792. In Boyer v. Peterson, 221 F. Supp. 3d 943 (W.D. Mich. 2016), the police knew that the
woman who gave consent had not resided at the house for months and had to make an
“appointment” with her estranged husband to enter. Id. at 957-58. And United States v. Toan
Phuong Nghe, 925 F. Supp. 2d 1142, 1145-47 (W.D. Wash. 2013), involved consent from a motel
manager, which the Supreme Court has generally deemed insufficient to justify entry into a guest’s
room since Stoner v. California, 376 U.S. 483 (1964).
12

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 13 of 33

3. Manafort’s contrary arguments lack merit
Manafort makes a series of factual and legal arguments against the Employee’s authority
to consent, but none undermines the lawfulness of the Agent’s entry.
a. Factually, Manafort bases much of his argument on the assertion that the Agent knew
the Employee who gave consent to be merely a “former employee” of one of Manafort’s
companies, DMP. That assertion is inaccurate. What the Agent actually knew is that the
consenting party was “a former employee of [DMP], and a current employee of Steam Mountain,
LLC, which is a business currently operated by Paul Manafort.” Aff. ¶ 28 (emphasis added). The
Agent further understood the Employee to be “a salaried employee” of one Manafort company
who “perform[ed] a variety of functions for Manafort and his companies as directed by Manafort.”
Id. (emphasis added). Accordingly, this is not like a situation in which an employee quits his job,
keeps a copy of the key to the job site, and then invites the police to enter. Cf. 4 Wayne R. LaFave,
Search And Seizure: A Treatise On The Fourth Amendment § 8.6(c) at n.49 (5th ed. 2012). Rather,
it involves at most a formal change in the identity of the business entity (from DMP to Steam
Mountain) used to pay a worker’s salary, where the principal remains the same. Nothing about
that change would have signaled to a reasonable officer (or even the Employee himself) that the
Employee’s access to and authority over the storage unit had suddenly ceased; indeed, it did not
change anything about the Employee’s services to Manafort or access to the unit.
Manafort also makes a series of factual assertions about how the Employee and others
would have understood the bounds of the Employee’s authority. Doc. 257 at 5 (calling it “clear to
the [Employee] and others at DMP that he had no authority to enter the storage unit for any reason
absent prior express permission from Mr. Manafort”). But those assertions are not backed up by
affidavits from Manafort, the Employee, or any of the “others at DMP’ (id.) who supposedly

13

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 14 of 33

understood these limitations on the Employee’s access to the unit. Cf. United States v. Wilson,
493 F. Supp. 2d 364, 380 (E.D.N.Y. 2006) (defendant must develop a factual dispute through “an
affidavit of someone with personal knowledge of the underlying facts”). More to the point,
Manafort does not allege that the Agent was aware of these internal DMP understandings, such
that those purported understandings could render unreasonable the Agent’s reliance on the
objective indicia of common authority described above.
b. Legally, Manafort argues (Doc. 257 at 4-6) based on civil cases and the Restatement of
Agency that the Employee’s authority to consent depended on the specifics of his interactions with
Manafort or on what Manafort would have told the Agent (had they spoken). Id. at 5-6. The
principles he cites, however, do not govern how third-party consent works under the Fourth
Amendment. To the contrary, the point of the common-authority concept is that consent given by
an individual with the requisite connection to the premises is effective against an absent cooccupant, without the police’s having to reach out to the co-occupant for his agreement. See
Matlock, 415 U.S. at 170 (“the consent of one who possesses common authority over premises or
effects is valid as against the absent, nonconsenting person with whom that authority is shared”).
For the same reason, the validity of the Employee’s consent does not depend on Manafort’s having
“manifested an express or implied desire to allow [the Employee] to consent to a law enforcement
search” of the storage locker, Doc. 257 at 5. See United States v. Jenkins, 46 F.3d 447, 456 (5th
Cir. 1995) (fact that company never gave employee “permission to allow the FBI to copy or view
the videotapes” did not affect the employee’s “actual or apparent authority to consent”); cf. 4
LaFave, supra, § 8.6(c) (“an employer runs some necessary risks that his employees will permit a
search—even if such permission is not strictly within their authority as an agent of the employer”).

14

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 15 of 33

Manafort’s reliance on the decision in Peyton, 745 F.3d 546, is also misplaced. Peyton
“concern[ed] the scope of a contenant’s common authority.” Id. at 556. The D.C. Circuit agreed
that the cotenant there (a great-grandmother) had authority to consent to a search of most areas in
the one-bedroom apartment that she shared with her grandson. Id. at 555. The court held, however,
that police could not reasonably believe that this authority extended to a closed shoebox stored in
an area where the grandmother had told officers “that Peyton kept his ‘personal property.’” Id. at
554. This case, by contrast, does not involve any analogous scope-of-authority issues. Manafort
challenges not the extent of any search that police conducted in the storage unit based on the
Employee’s consent but whether the Employee had authority to consent to a search of the storage
unit at all. And on that point, Peyton supports the existence of common authority here by
underscoring the significance of the Employee’s status as the lessee of the unit and the risks that
Manafort assumed as the Employee’s cotenant. See id. at 549 (Peyton and his grandmother were
“[b]oth named as residents on the lease”); id. at 555 (“Peyton assumed the risk that [his
grandmother] would permit outsiders (including the police) into the room where he slept” and thus
that “those outsiders would see any of his possessions left in plain view”). 4
c. Finally, Manafort speculates (Doc. 257 at 11) that the Agent himself must not have
believed the Employee’s consent to be valid because he obtained a warrant before seizing and
opening the containers that he had observed in the storage unit. But the Agent can hardly be faulted

4

Manafort appears to draw from Peyton (Doc. 257 at 10-11) a requirement that the
Employee have stored items of his own in Unit 3013 in order to have common authority over the
area. But Peyton involved cotenants in an apartment. In an area that an employee jointly accesses
because of his job, “mutual use” is established when the employee “is authorized to enter” a
location “to perform his [job] duties” and in fact performs those duties there. See United States v.
Buettner-Janusch, 646 F.2d 759, 765 (2d Cir. 1981) (research assistant with keys to university
laboratory and permission to enter had common authority). And it is undisputed here that the
Employee performed his job duties by moving items into the storage unit outside the presence of,
and without supervision from, Manafort or other DMP principals. Aff. ¶¶ 28, 30.
15

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 16 of 33

for honoring “the Fourth Amendment’s strong preference for searches conducted pursuant to a
warrant.” Illinois v. Gates, 462 U.S. 213, 236 (1983). In any event, Manafort’s speculation is
unfounded. As Manafort elsewhere emphasizes (Doc. 257 at 12), the Agent described in the
warrant affidavit the circumstances of his consent entry into the storage unit and what he observed
in the unit. That disclosure confirms not that the Agent believed that the consent was insufficient
to justify a full search, but that the added assurance of a warrant could help eliminate later disputes
over the authorization for and bounds of the search. Officers should not be penalized for taking
such precautions.
B. Suppression Would Not Be Warranted Even If The Entry Was Not Supported By
Valid Consent
Even assuming the Agent’s entry into Unit 3013 were unlawful, Manafort errs in arguing
(Doc. 257 at 11-12) that “[t]he appropriate remedy” would be “suppression of all evidence seized
. . . from the premises and the fruits thereof.” That is so for two reasons.
First, even without the information obtained from the initial warrantless entry, the warrant
affidavit establishes probable cause that evidence of the three listed offenses would be found in
the storage unit. See United States v. Karo, 468 U.S. 705, 719 (1984) (where information from an
earlier unconstitutional search was included in a warrant affidavit, “the warrant was nevertheless
valid” because “sufficient untainted evidence was presented in the warrant affidavit”). Based on
the Agent’s interview with the Employee, the affidavit established that the storage unit housed
“office files of Manafort’s business contained in boxes,” as well as a metal filing cabinet that was
heavy enough to “contain[] a large amount of records” and into which the Employee had more
recently placed other records at Manafort’s request. Aff. ¶¶ 28, 30. The affidavit also explained
that Manafort was authorized to access the unit and that Richard Gates—the Manafort associate
alleged to be involved in the offenses set forth in the warrant—was an alternate point of contact
16

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 17 of 33

on the lease. Id. ¶ 29. And the affidavit gave specific reasons, apart from box labeled “Ukraine”
in the unit, to believe that the storage unit was a repository for business records relevant to the tax,
FBAR, and FARA offenses at issue. Id. ¶ 35 (reasonable to believe that financial records would
be found in light of IRS guidelines recommending that business records be retained for three to
seven years); id. ¶ 37 (noting that people often retain records “in anticipation of litigation” and that
Manafort had been “sued by his former client, Oleg Deripaska, sometime in or about 2008”).
Taken together, this information met the legal standard for probable cause—i.e., it “demonstrate[d]
cause to believe that ‘evidence’” relevant to proving the listed offenses “‘[wa]s likely to be found
at the place to be searched.’” United States v. Griffith, 867 F.3d 1265, 1271 (D.C. Cir. 2017)
(quoting Groh v. Ramirez, 540 U.S. 551, 568 (2004)).
Second, suppression is unwarranted under the good-faith exception to the exclusionary
rule. See generally United States v. Leon, 468 U.S. 897 (1984). In particular, and as several courts
of appeals have held, the good-faith exception applies when a warrant affidavit cites information
obtained in violation of the Fourth Amendment but the police conduct that violated the Fourth
Amendment was “close enough to the line of validity to make the officers’ belief in the validity of
the warrant objectively reasonable.” United States v. Cannon, 703 F.3d 407, 413 (8th Cir.)
(internal quotation marks omitted), cert. denied, 569 U.S. 987 (2013); see also, e.g., United States
v. Massi, 761 F.3d 512, 527-28 (5th Cir. 2014) (adopting that rule but noting that a minority of
circuits have rejected it), cert. denied, 135 S. Ct. 2377 (2015). That standard is readily satisfied
here. Given that two courts of appeals have validated a third party’s authority to consent on almost
identical facts, see Part I.A.1, supra, the Agent’s entry into Unit 3013 based on the Employee’s
consent was at least “close . . . to the line of validity.” See Cannon, 703 F.3d at 413; see also
United States v. Thornton, 746 F.2d 39, 49 (D.C. Cir. 1984) (“eminently reasonable” for officers

17

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 18 of 33

to rely on warrant where “the overwhelming weight of authority” had upheld the type of
warrantless search that preceded the warrant). As a result, it was objectively reasonable for the
Agent to believe in the lawfulness of the warrant, and suppressing the fruits of the subsequent
search would not further the deterrent purpose “of the exclusionary rule in any appreciable way.”
Leon, 468 U.S. at 920 (internal quotation marks omitted). For that reason too, the storage-locker
evidence should not be suppressed even if the initial warrantless entry was unlawful.
C. Manafort Is Not Entitled To An Evidentiary Hearing On The Voluntariness Of
The Employee’s Consent
Contrary to Manafort’s contention, the Court need not hold an evidentiary hearing to
determine whether the Employee’s “consent to the initial search of the storage unit was voluntary.”
Doc. 257 at 13.

While Manafort correctly points out that the government bears the burden of

establishing that a party’s consent was voluntary, the government has carried that burden here by
(1) describing in the warrant affidavit the circumstances surrounding the Employee’s consent and
(2) producing the consent-to-search form that the Employee signed. See Exh. B, infra. Manafort
cannot secure a hearing to challenge that showing merely by citing the legal factors that courts
consider in deciding voluntariness. See Doc. 257 at 13. He must instead “allege facts, sufficiently
definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial
claim is presented.” United States v. Calderon, 77 F.3d 6, 9 (1st Cir. 1996) (internal quotation
marks omitted); see Law, 528 F.3d at 903-904 (D.C. Cir.) (“A defendant is entitled to an
evidentiary hearing on his motion to suppress only upon factual allegations which, if established,
would warrant relief.”) (internal quotation marks omitted).
The decision in Calderon illustrates the deficiencies in Manafort’s hearing request. The
defendant there claimed that his Spanish-speaking girlfriend’s written consent to search an
apartment they shared was invalid because she did not understand the English-speaking officers
18

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 19 of 33

when they came to the door late at night. 77 F.3d at 9. In affirming the district court’s decision to
reject that claim without an evidentiary hearing, the First Circuit explained that the defendant had
“filed no affidavits in support of the motion, not even from [his girlfriend], on whose state of mind
he now so heavily relies,” and had not made an offer of proof in response to police reports produced
by the government that tended to contradict his version of events. Id. Likewise here, Manafort
has filed no affidavits—from the Employee or otherwise—that would contradict the signed form
evincing the Employee’s free and voluntary consent to the Unit 3013 search. Nor has he
“describe[d any] circumstances supporting his” bare suggestion that the Employee was somehow
coerced into meeting with the Agent, accompanying him to the storage facility, signing the consent
form, and using his key to give the Agent access to the unit. See id. Manafort is therefore not
entitled to an evidentiary hearing on the voluntariness of the Employee’s consent. 5
II. Manafort’s Challenges To The Breadth Of The Search Warrant Are Unavailing And Do
Not Support Blanket Suppression
Manafort argues (Doc. 257 at 14-21) that the warrant issued by the magistrate judge was
“unconstitutionally overbroad” and that the government executed it unreasonably by seizing
materials beyond the warrant’s scope and providing a search inventory that allegedly violated
Federal Rule of Criminal Procedure 41(f). These arguments lack merit and would not, in any
event, support the remedy of blanket suppression that Manafort seeks.

5

Manafort has not requested an evidentiary hearing to resolve his other challenges. In the
government’s view, those challenges raise legal questions that do not turn on disputed facts and
that can therefore be resolved based on the warrant and supporting materials and without an
evidentiary presentation. See, e.g., United States v. Mejia, 953 F.2d 461, 467 (9th Cir. 1991) (no
hearing on consent required where “the contest is over the legal significance of undisputed facts
rather than over the facts themselves”). But if the Court determines that witness testimony is
necessary, the government respectfully requests notice well in advance of the May 23, 2018
hearing date because the affiant for the warrant is currently stationed overseas and arrangements
would have to be made for him to return to the United States.
19

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 20 of 33

A. The Warrant Satisfies The Particularity Requirement
As stated above, p. 8, supra, the Fourth Amendment’s warrants clause “requires that
warrants ‘particularly describ[e]’ the ‘things to be seized.’’ Griffith, 867 F.3d at 1275 (quoting
U.S. Const. amend. IV). Manafort contends that the warrant here runs afoul of that requirement
“because it allowed the searching agents to indiscriminately seize everything from the storage
unit.” Doc. 257 at 14. In so doing, he claims, the warrant authorized the kind of “general,
exploratory rummaging in a person’s belongings” that the Fourth Amendment was designed to
avoid. Id. (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)).
Manafort’s contention blurs two related but distinct types of specificity relevant under the
Fourth Amendment: “particularity and breadth.” United States v. Hill, 459 F.3d 966, 973 (9th Cir.
2006) (internal quotation marks omitted), cert. denied, 549 U.S. 1299 (2007); see United States v.
Ulbricht, 858 F.3d 71, 102 (2d Cir. 2017) (“[B]readth and particularity are related but distinct
concepts.”), pet. for cert. filed, No. 17-950 (Jan. 4, 2018). As one court of appeals has explained,
“[p]articularity is the requirement that the warrant must clearly state what is sought,” while
“[b]readth deals with the requirement that the scope of the warrant be limited by the probable cause
on which the warrant is based.” Hill, 459 F.3d at 973 (internal quotation marks omitted); see
Griffith, 867 F.3d at 1275-1276 (explaining that the particularity requirement “prevents the issuance of warrants on loose, vague or doubtful bases of fact” and, “[i]n that way, . . . is closely tied
to the requirement of probable cause”) (internal quotation marks, citations, and brackets omitted).
The warrant here poses no particularity problem. Attachment B, which is expressly
incorporated on the face of the warrant, identifies by name and citation three federal offenses for
which the accompanying affidavit establishes probable cause—failure to report foreign bank
accounts (FBAR), acting as an unregistered agent of a foreign principal (FARA), and filing a false

20

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 21 of 33

tax return. Doc. 257-2 at 4. It then lists eight categories of records “to be seized.” Id.; p. 6, supra
(quoting categories in full). Two of the listed categories (¶¶ 1c and 1d) seek specific types of
records reflecting the work of Manafort and Richard Gates on behalf of named individuals and
entities. Id. (“the Party of Regions, Viktor Yanukovych, the European Centre for a Modern
Ukraine”). One category (¶ 1f) covers a single lobbying firm involved in the FARA scheme.
Another category (¶ 1e) authorizes seizure of records relating to ten specific Manafort-affiliated
companies. Still another (¶ 1g) refers to “daily planners, logs, calendars, [and] schedule books”
of two named individuals (Manafort and Gates). And two other categories (both listed as ¶ 1b)
seek, respectively, “federal and state tax documentation” and correspondence “with any foreign
financial institution” or individual signatory on a foreign bank account.
All of those descriptions fully satisfied the particularity requirement. See United States v.
Young, 260 F. Supp. 3d 530, 549 (E.D. Va. 2017) (rejecting particularity challenge to warrant that
sought “all records and documents” falling within eight enumerated categories). Each “suppl[ied]
enough information to guide and control the executing agent’s judgment in selecting where to
search and what to seize.” United States v. Kuc, 737 F.3d 129, 133 (1st Cir. 2013); see United
States v. Dale, 991 F.2d 819, 846 (D.C. Cir. 1993) (explaining that courts “assessing particularity
. . . are concerned with realities of administration of criminal justice,” and that “[i]t is sufficient if
the warrant signed by the judicial officer is particular enough if read with reasonable effort by the
officer executing the warrant” (internal quotation marks omitted)). And by so doing, they ensured
that the agents who executed the warrant would not have “unbridled discretion to rummage at will”
among the “effects” found in the storage locker. See Doc. 257 at 14 (quoting Arizona v. Gant, 556
U.S. 332, 345 (2009)).
Manafort bases his contrary argument (Doc. 257 at 15, 16) largely on the first category in

21

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 22 of 33

Attachment B (¶ 1a), which authorized the seizure of “[a]ny and all financial records” for
Manafort, Gates, and their associated companies, “including but not limited to records relating to
any foreign financial accounts.” But for three reasons, this language does not transform the
warrant into an “‘all documents’ warrant,” Doc. 257 at 14, as Manafort suggests. First, the clause
is limited by its terms to “financial” records of two individuals and their companies. It therefore
would not authorize agents to seize and retain, for example, family letters or analogous personal
documents. Second, while the final portion of the clause does not strictly limit the first, it does
focus the executing agents on one specific class of records—viz., those “relating to any foreign
financial account.” Cf. Kuc, 737 F.3d at 133 (construing broader clause in a warrant that was
linked to more a particular one by the “transitional phrase” “including, without limitation”). Third,
the clause must be read in light of the three criminal offenses that are listed in the warrant
immediately before it. See Andresen v. Maryland, 427 U.S. 463, 479-81 (1976) (the phrase
“together with other fruits, instrumentalities, and evidence of crime at this (time unknown),” had
to be read in context and together with the warrant’s “lengthy list of specified and particular items
to be seized”). And when it is so read, the warrant’s reference to “all financial records” of Manafort
and Gates serves to focus the executing agents on those financial records that relate to three specific
criminal offenses.

See United States v. Maxwell, 920 F.2d 1028, 1033 (D.C. Cir. 1990)

(recognizing that “a warrant’s reference to a particular statute may in certain circumstances limit
the scope of the warrant sufficiently to satisfy the particularity requirement”); United States v.
Jones, 31 F.3d 1304, 1313 (4th Cir. 1994) (similar); see also 2 LaFave, supra, § 4.6(d) (“A warrant
for seizure of ‘records’ has also been upheld where the listing of other objects in the warrant made
it apparent precisely what type of records were sought.”).

22

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 23 of 33

But even if this category had the sweep that Manafort ascribes to it, the warrant would still
not violate the particularity requirement. Courts “take into consideration the circumstances of the
crime in assessing the degree of particularity that should be required of descriptions of items to be
seized in the warrant.” Dale, 991 F.2d at 848. And in cases of financial malfeasance that require
investigators to follow a paper trail, courts have long held that some broader or more generically
described categories may satisfy the Fourth Amendment. See id. (recognizing, in a case that
included “tax evasion allegations,” that “specificity is even more difficult because evidence of the
crimes can be found in almost every type of business document conceivable”); see also, e.g.,
United States v. Yusuf, 461 F.3d 374, 395 (3d Cir. 2006) (cited in Doc. 257 at 17), cert. denied,
549 U.S. 1338 (2008); United States v. Logan, 250 F.3d 350, 365 (6th Cir.), cert. denied, 534 U.S.
895 (2001). Here, given the warrant’s focus on crimes that involved multi-million-dollar financial
transactions, that arose from foreign connections, and that related to the tax code, the inclusion of
a single more capacious category alongside the seven narrower ones did not violate the Fourth
Amendment’s particularity requirement. See Andresen, 427 U.S. at 479-81; Kuc, 737 F.3d at 133.
B. Any Temporal Overbreadth Does Not Justify Blanket Suppression
Manafort also argues (Doc. 257 at 16-18) that the warrant is overbroad because it does not
expressly limit the records subject to seizure to a specific time frame. He points out that this
warrant differs in that respect from the warrant authorizing a search of his residence, which
permitted the seizure of records relating to violations of several statutes that occurred “on or after
January 1, 2006.” Id. at 16. And he argues that the absence of date limits invalidates the warrant,
because “[f]or a search warrant to be valid, it must provide the executing agents with guidance as
to the time frame for which the agents are to seize evidence.” Id. But as explained below,
Manafort’s challenge fails whether understood as contesting particularity or breadth, and blanket

23

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 24 of 33

suppression would be inappropriate in any event under the good-faith exception to the exclusionary
rule and the doctrine of severance.
1. Construed as the type of particularity challenge addressed in Part II.A, Manafort’s
contention fails. The omission of a specific time frame does not detract from the clarity with which
Attachment B described the various categories of records to be seized. And while the absence of
date limits authorized the seizure of a wider swath of records, “a search warrant does not
necessarily lack particularity simply because it is broad.” Ulbricht, 858 F.3d at 100.
2. Manafort’s objection is equally unavailing if it is understood as focusing on the issue of
“breadth” discussed above (p. 20, supra). Although the absence of date limits can contribute to a
mismatch between the scope of the seizures authorized by a warrant and the probable cause
supporting that warrant, Manafort’s own cases confirm that a specific time frame is not an
indispensable requirement. See United States v. Blake, 868 F.3d 960, 973-74 n.7 (11th Cir. 2017)
(concluding that “the lack of a time limitation did not render the warrant unconstitutional” where
other aspects of the warrant ensured that it was “appropriately limited in scope”) (cited in Doc.
257 at 16-17). Warrants need not be limited by “specific time periods,” for example, when “[t]he
dates of specific documents” relevant to the offenses at issue “could not have been known to the
Government.” United States v. Shilling, 826 F.2d 1365, 1369 (4th Cir. 1987), cert. denied, 484
U.S. 1043 (1988). And courts have further held that some temporal “flexibility” must be afforded
the warrant drafter, “because evidence that date[s] from outside of the time period” described in a
warrant affidavit “may be relevant to the activity within the time period.” United States v. Abboud,
438 F.3d 554, 576 n.7 (6th Cir.) (cited in Doc. 257 at 17), cert. denied, 549 U.S. 976 (2006).
Several aspects of the warrant and accompanying affidavit here support the seizure of
records that predate Manafort’s Ukraine work, which the affidavit describes as starting in 2005.

24

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 25 of 33

Aff. ¶ 6. 6 As an initial matter, the subject offenses in the warrant include tax violations, id. ¶ 4, a
context in which courts have recognized that earlier conduct can inform the assessment of
violations alleged to have occurred later. See Shilling, 826 F.2d at 1359 (“as for income tax
violations, documents from an earlier time may have bearing on the tax violations alleged in a later
year”). Further, both of the other named offenses (FBAR and FARA) are specific-intent crimes
that involve international connections—one the failure to report foreign bank accounts, and the
other acting as an unregistered agent of a foreign principal. See 31 U.S.C. § 5322(a) and (b)
(penalties for willful FBAR violation); 22 U.S.C. § 618(a) (penalty for “willfully violat[ing]”
FARA). Evidence that predated the specific course of conduct described in the affidavit could
shed light on Manafort’s (or Gates’s) past use of or access to foreign accounts, as well as prior
representation of foreign clients, both of which may be relevant to establishing the mental state
needed to prove the FBAR and FARA violations. See United States v. Cohan, 628 F. Supp. 2d
355, 365 (E.D.N.Y. 2009) (explaining, where warrant lacked a date limit, how prior instances of
conduct predating criminal scheme by as much as 14 years “would be potentially admissible under
Federal Rule of Evidence 404(b) to demonstrate intent or absence of mistake”); cf. Warden, Md.
Penitentiary v. Hayden, 387 U.S. 294, 307 (1967) (“[P]robable cause must be examined in terms
of cause to believe that the evidence sought will aid in a particular . . . conviction.”). This is
therefore not an instance in which the scope of the search authorized by the warrant outstrips the
probable cause established by the affidavit.
3. The Court, however, need not definitively resolve whether the absence of a specific

6

Manafort suggests (Doc. 257 at 18) that the supporting affidavit cannot be consulted
because the issuing magistrate did not expressly incorporate it into the warrant. But when the
alleged defect inheres in the breadth of a warrant (i.e., probable cause) and not the specificity of
the descriptions in it, a reviewing court may consult the affidavit “regardless of whether it is
incorporated or attached.” United States v. Cohan, 628 F. Supp. 2d 355, 364 n.4 (E.D.N.Y. 2009).
25

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 26 of 33

time frame renders the warrant overbroad. That is because, even if the warrant is overbroad,
suppression is inappropriate under the good-faith exception to the exclusionary rule. See Leon,
468 U.S. at 925 (authorizing courts to “turn[] immediately to a consideration of the officers’ good
faith” without resolving validity of the warrant).
As the Supreme Court has explained, the exclusionary rule “does not apply when the police
conduct a search in ‘objectively reasonable reliance’ on a warrant later held invalid.” Davis v.
United States, 564 U.S. 229, 238-39 (2011) (quoting Leon, 468 U.S. at 922). “The error in such a
case rests with the issuing magistrate, not the police officer, and ‘punish[ing] the errors of judges’
is not the office of the exclusionary rule.” Id. at 239 (quoting Leon, 468 U.S. at 916). Of relevance
here, the Court has applied that reasoning both where the warrant was allegedly unsupported by
probable cause (as in Leon, 468 U.S. at 903), and where it was found to be overbroad (as in the
companion case of Massachusetts v. Sheppard, 468 U.S. 981, 988-91 (1984)).
Lower courts, in turn, have applied Leon and Sheppard to the specific type of defect that
Manafort emphasizes here—viz., temporal overbreadth. 7

See United States v. Ninety-Two

Thousand Four Hundred Twenty-Two Dollars & Fifty-Seven Cents ($92,422.57), 307 F.3d 137,
149 (3d Cir. 2002) (“Evidence seized pursuant to an overly broad warrant need not be suppressed
if the good faith exception applies.”). In an opinion by then-Judge Alito, for example, the Third
Circuit assumed that a warrant was overly broad because it authorized the seizure of a decade’s

7

The D.C. Circuit and other courts have also applied Leon to warrants found overbroad
because they reached “virtually all of [a party’s] business records,” Maxwell, 920 F.2d at 1033-34,
or were similarly expansive in scope, see, e.g., United States v. Gros, 824 F.2d 1487, 1497 (6th
Cir. 1987) (executing officers reasonably presumed validity of warrant permitting “seizure of
‘books, documents and other papers tending to show motive and intent’”). Under those precedents,
the good-faith exception would equally foreclose suppression if the Court found merit in the
particularity challenge addressed in Part II.A above.
26

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 27 of 33

worth of records that predated the food-stamp-fraud scheme under investigation. Id. at 151. But
the court held that “[t]he absence of limiting dates” did not preclude officers who had fully
presented the facts gathered in their investigation “to a neutral and detached [m]agistrate [j]udge”
from relying on that judge’s conclusion that the officers were entitled to conduct the search that
they had requested. Id. at 152. The same conclusion follows in this case, where the Agent prepared
a detailed affidavit that undisputedly established probable cause, that affidavit was reviewed by an
Assistant U.S. Attorney, and a magistrate judge issued a warrant that authorized the seizure of the
enumerated categories of records that the Agent had listed in Attachment B. See id.; see also,
e.g., United States v. Diaz, 841 F.2d 1, 4-6 (1st Cir. 1988) (applying good-faith exception where
the warrant allowed officers to seize records that predated by months “the first instance of
wrongdoing mentioned in the affidavit”); Cohan, 628 F. Supp. 2d at 367 (applying good-faith
exception where warrant had no date limits).
“[A] few narrow exceptions to the Leon principle” do exist, United States v. Spencer, 530
F.3d 1003, 1007 (D.C. Cir.), cert. denied, 555 U.S. 1017 (2008), but neither of the two exceptions
potentially relevant to this case are applicable. This is not the rare case in which the affidavit was
so lacking in probable cause that the executing agents could not rely on the warrant issued based
on that affidavit. See Messerschmidt v. Millender, 565 U.S. 535, 547 (2012) (Supreme Court
“precedents make clear . . . that the threshold for establishing this exception is a high one, and it
should be”). Nor does “the absence from the warrant of a provision limiting the search and seizure
to documents pertaining to the time period” described in the affidavit “make the warrant so facially
deficient as to render official belief in its legality entirely unreasonable.” $92,422.57, 307 F.3d at
151 (internal quotation marks and brackets omitted). To the contrary, Manafort’s own cases make
clear that date limits are not indispensable, see p. 24, supra, and courts in the district where this

27

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 28 of 33

warrant was issued have repeatedly held that “a search warrant does not fail the particularity
requirement by not explicitly articulating a time frame.” Young, 260 F. Supp. 3d at 550 (quoting
United States v. Moore, 775 F. Supp. 2d 882, 898 (E.D. Va. 2011), aff’d, 498 Fed. Appx. 195 (4th
Cir. 2012)). Against that legal backdrop, “a reasonably well trained officer would [not] have
known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922
n.23; see also Cohan, 628 F. Supp. 2d at 367 (good-faith exception applied where regional court
of appeals had not addressed whether “time-frames are a constitutional requirement in businessrecord search warrants, and district courts in th[at] circuit have not converged upon a clear rule”).
Finally, nothing in the D.C. Circuit’s recent decision in Griffith, 867 F.3d 1265 (cited in
Doc. 257 at 15-16, 18), supports a contrary result. Griffith involved a warrant that the court found
to be clearly defective in two ways: it authorized the seizure of cellphones from a residence despite
the affidavit’s failure to establish probable cause to believe that the suspect even owned a
cellphone, let alone that one would contain evidence of the crime under investigation; and the
warrant was “material[ly] overbr[oad]” in authorizing the seizure of “every electronic device found
in the home.” Id. at 1278-79. “[T]hose failings,” when “[t]aken together,” placed “the warrant
beyond the good-faith exception’s reach.” Id. at 1279. The warrant in this case, by contrast,
features no analogous probable-cause deficiency, and any temporal overbreadth is far less clear or
“material” than was the case in Griffith given the other limits in the warrant, including the
requirement that seizable record relate to the three specific criminal offenses listed in
Attachment B.
4. Even if any overbreadth required suppression, it would not support exclusion of “[a]ll
evidence seized from the storage unit,” as Manafort claims (Doc. 257 at 20-21). Rather, under the
doctrine of severance, any suppression remedy would be limited to evidence seized under the

28

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 29 of 33

portion of the warrant that is overbroad, which would at most be records that predate 2005.
The courts of appeals have uniformly applied the doctrine of severance (also sometimes
referred to as “partial suppression” or “redaction”) when a warrant only partly satisfies either the
particularity or probable cause requirements. United States v. Sells, 463 F.3d 1148, 1150 n.1 (10th
Cir. 2006) (citing cases from every circuit), cert. denied, 549 U.S. 1229 (2007); see also United
States v. Nader, 621 F. Supp. 1076, 1085 (D.D.C. 1985) (explaining that the D.C. Circuit, among
other courts, had “recognized the severability of the seized evidence and upheld the seizure of the
items described with particularity”). The doctrine reflects a judgment that “it would be harsh
medicine indeed if a warrant issued on probable cause and particularly describing certain items
were to be invalidated in toto merely because the affiant and magistrate erred in seeking and
permitting a search for other items as well.” 2 LaFave, supra, § 4.6(f).
Notably, courts—including in Manafort’s cited cases—have applied the severance doctrine
in the particular circumstances at issue here, in which a warrant is allegedly overbroad because it
authorizes the seizure of items without a sufficient (or any) limitation on timeframe. The warrant
in Abboud, supra, for example, was overbroad because “law enforcement knew that the evidence
in support of probable cause in the affidavit revolved only around a three-month period in 1999,”
yet the “warrant authorized search for records from January 1996 to May of 2002.” 438 F.3d at
576. The Sixth Circuit concluded that the warrant’s overbreadth did “not require suppression of
all of the items seized pursuant to the warrant,” and instead that the proper result was that “all
evidence seized irrelevant to the three-month period in 1999 should have been suppressed, while
evidence relevant to this period should be upheld.” Id. The Third Circuit reached a similar
conclusion in $92,422.57, explaining that even if a warrant is temporally overbroad insofar as it
covers time periods for which probable cause may not have existed, “the proper remedy . . . [i]s

29

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 30 of 33

simply to excise the years for which there was no probable cause.” 307 F.3d at 151; accord United
States v. Flores, 802 F.3d 1028, 1045 (9th Cir. 2015) (applying severance to a warrant with “no
temporal limit” under which investigators “[s]eiz[ed] five or six years’ worth of data”), cert.
denied, 137 S. Ct. 36 (2016).
Under these decisions, the severance doctrine applies to any overbreadth resulting from the
absence of date limits in the warrant here. Manafort does not dispute that the affidavit established
probable cause to seize the enumerated categories of materials for the period of conduct described
in the affidavit—that is, 2005 to the date of the warrant. Aff. ¶ 6 (Manafort’s Ukraine work
extended from 2005 through “at least 2014”); see Doc. 257 at 16 (raising no objection to another’s
warrant probable cause showing as to offenses “occurring on or after January 1, 2006”). The
proper remedy under the severance doctrine would therefore be to suppress evidence dating from
the pre-2005 time period for which probable cause was ostensibly lacking.
C. The Execution Of The Warrant Violated Neither The Constitution Nor Rule 41
Manafort’s final contentions concern the execution of the search warrant. He asserts,
without submitting any affidavit or making any proffer, that the executing agents exceeded the
scope of the warrant by “seiz[ing] virtually everything from the premises” and that they violated
both the Fourth Amendment and Federal Rule of Criminal Procedure 41(f) by preparing an
inventory of seized items that was, Manafort asserts, “devoid of description.” Doc. 257 at 19.
These contentions lack merit.
As an initial matter, Manafort is simply incorrect about the scope of the materials seized
from the storage unit. He infers from the listing of “nine groups of unidentified documents” in the
inventory returned to the magistrate judge that the searching agents “seized everything contained
within the storage unit.” Doc. 257 at 19. But that inference is unfounded. Before the search, the

30

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 31 of 33

Agent observed in the unit “approximately 21 bankers’ boxes that could contain documents, as
well as a five-drawer metal filing cabinet.” Aff. ¶ 31. The agents seized from those containers the
nine sets of documents listed in the inventory returned to the magistrate—five sets of documents
(including binders) from the filing cabinet, two sets from bankers’ boxes on the left-hand side of
the unit, and two sets from boxes on the rear wall. Exh. A, infra (Collected Item Log). The
documents taken do not amount to anywhere near the entire contents of the storage unit, much less
demonstrate a seizure beyond the scope authorized by the warrant. 8
Manafort’s criticisms of the inventory itself are equally misguided. He cites no cases
supporting his contention (Doc. 257 at 20) that an unclear “description of what was seized” in a
post-search inventory can render the previously completed search “unreasonable” within the
meaning of the Fourth Amendment. Relevant authority is instead to the contrary. In particular,
courts have explained that “restrictions regarding the preparation of a search inventory . . . are
creatures of statute or rules,” and that “[a] failure to inventory the property seized during a search
has no relation to the Fourth Amendment prohibition against unreasonable searches and seizures.”
United States v. Fredericks, 273 F. Supp. 2d 1032, 1038 (D. N.D. 2003) (citing, among others,
United States v. Dudek, 530 F.2d 684, 688 (6th Cir. 1976)). Nor would any such constitutional
violation give rise to a suppression remedy. As a leading treatise explains, “the ‘overwhelming
weight of authority’ is to the effect that required warrant return procedures are ministerial and that
failure to comply with them is not a ground for voiding an otherwise valid search.” 2 LaFave,
supra, § 4.12(c); see United States v. Hubbard, 493 F. Supp. 209, 221 (D.D.C. 1979) (“failure

8

The inventory and Collected Items Log, when read together, refute Manafort’s assertion
(Doc. 257 at 17-18) that the agents finished executing the warrant within 33 minutes of obtaining
it. Those documents instead show that the agents entered the unit to execute the warrant at
approximately 5:20 p.m. and completed their seizure of items from the cabinet and boxes just
under two hours later, at 7:09 p.m. See Doc. 257-2 at 2 (inventory); Exh. A, infra (log).
31

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 32 of 33

even to complete an inventory is merely a ministerial violation which does not affect the validity
of the search”), aff’d sub nom. United States v. Heldt, 668 F.2d 1238 (D.C. Cir. 1981).
Manafort’s argument under the Rules of Criminal Procedure fares no better. Although
Rule 41(f)(1)(B) requires that executing agents “prepare and verify an inventory of any property
seized,” the Rule “do[es] not dictate a requisite level of specificity for inventories.” Matter of
Searches of Semtex Indus. Corp., 876 F. Supp. 426, 430 (E.D.N.Y. 1995). And of relevance here,
“[i]n circumstances where filing cabinets of documents are seized, routine practice is to list the
storage devices, i.e., the cabinets, on the inventory, as opposed to making a document by document
list of the contents.” Fed. R. Crim. P. 41 adv. comm. note (2009 amendment). The inventory in
this case did not violate Rule 41(f) when, rather than providing such “a document by document
list” of the materials seized from the filing cabinet and bankers boxes, it described the seized items
more generically as consisting of nine sets of documents (and some binders). See, e.g., United
States v. Rollack, 90 F. Supp. 2d 263, 271 (S.D.N.Y. 1999) (no violation of Rule 41 where
inventory prepared following search of a jail cell “refer[red] only to ‘miscellaneous papers’ and
the like without listing specific items seized”).
In any event, any Rule 41(f) violation would not justify suppression. Manafort makes no
effort to establish prejudice from the asserted violation, which is the showing that the D.C. Circuit
has required for a defendant to obtain suppression based on “ministerial errors” under Rule 41.
United States v. Gerald, 5 F.3d 563, 567 (D.C. Cir. 1993). Citing out-of-circuit authority,
Manafort instead suggests that suppression is appropriate because the description in the inventory
evinces “intentional and deliberate disregard” of Rule 41(f)’s requirements. Doc. 257 at 20 (citing
United States v. Krueger, 809 F.3d 1109, 1114 (10th Cir. 2015)). But it is far from clear that the
“intentional and deliberate” standard applies outside the context of “pre-search procedures.”

32

 Case 1:17-cr-00201-ABJ Document 283 Filed 04/23/18 Page 33 of 33

United States v. Burroughs, 882 F. Supp. 2d 113, 127 (D.D.C. 2012). And even if it did, Manafort
does not explain how an inventory description that mirrors the “routine practice” in cases where
entire cabinets are seized, see Fed. R. Crim. P. 41 adv. comm. note (2009 amendment), could
demonstrate intentional and deliberate disregard of Rule 41(f)’s requirements.
CONCLUSION
For the foregoing reasons, Manafort’s motion to suppress evidence derived from the search
of the storage unit (Doc. 257) should be denied.
Respectfully submitted,
ROBERT S. MUELLER, III
Special Counsel
Dated: April 23, 2018

/s/ Andrew Weissmann
Andrew Weissmann
Greg D. Andres (D.D.C. Bar No. 459221)
Scott A.C. Meisler
U.S. Department of Justice
Special Counsel’s Office
950 Pennsylvania Avenue NW
Washington, D.C. 20530
Telephone: (202) 616-0800
Attorneys for the United States of America

33

 Case Document 283-1 Filed 04/23/18 Page 1 of 4

EXHIBIT A

Case Document 283-1 Filed 04/23/18 Page2

   

1 .

(Rev. 5-8-10)
UNCLASSIFIED
FEDERAL BUREAU OF INVESTIGATION
Collected Item Log
Event Title: (U) Search of 370 Holland Lane, Date: 

Unit 3013, Alexandria, Virginia

Drafted By: 
Case ID 


Full Investigation Initiated: 

Collected From: 

370 Holland Lane
Unit 3013
Alexandria, Virginia

Receipt Given?: Yes
Holding Office: WASHINGTON FIELD

Details:

On 5/27/2017, a search was conducted at 370 Holland Lane, Unit 3013,
Alexandria, Virginia pursuant to a Federal Search and Seizure Warrant
obtained in the Eastern District of Virginia.

Item Type Description

lB General (0) Documents/ Binders
Collected On: 05/27/2017 07:09 PM EDT
Receipt Number: 1
Seizing Individual:
Collected By:
Location Area: orage
Specific Location: File Cabinet

 
 
   

UNCLASSIFIED

This document contains neither recommendations nor conclusions ofthe 11 is the property oi'thc FBI and is loaned to your agency; ii and its
contents are not to be distributed outside your agency.

Case Document 283-1 Filed 04/23/18 Page 3 of 4

Title: (U)

UNCLASSIFIED

Search of 370 Holland Lane, Unit 3013, Alexandria, Virginia

Re: 05/31/2017

18 General

1B General

1B General

1B General

1B General

   


(U) Documents
Collected On: 05/27/2017 07:09 PM EDT
Receipt Number: 2
Seizing Individual: 
Collected By: 
Location Area: Storage Unit 3013
Specific Location: File Cabinet

(U) Documents
Collected On: 05/27/2017 07:09 PM EDT
Receipt Number: 3
Seizing Individual: 
Collected By: 
Location Area:_ Storage Unit 3013
Specific Location: File Cabinet
a
(U) Documents
Collected On: 05/27/2017 07:09 PM EDT
Receipt Number: 4
Seizing Individual: 
Collected By: 
Location Area: Storage Unit 3013
Specific Location: File Cabinet
(U) Documents
Collected On: 05/27/2017 07:09 PM EDT
Receipt Number: 5
Seizing Individual:
Location Area: Storage Unit 3013
Specific Location: File Cabinet
(U) Documents
Collected On: 05/27/2017 07:09 PM EDT
Receipt Number: 6
Seizing Individual:
Collected By:
Location Area: Storage Unit 3013
Specific Location: Bankers Boxes on Left Hand Side

of Unit

UNCLASSIFIED

2

Case Document 283-1 Filed 04/23/18 Page 4 of 4

Title: (0)

UNCLASSIFIED

Search of 370 Holland Lane, Unit 3013, Alexandria, Virginia

Re: 05/31/2017

1B General

1B General

1B General

90

(0) Documents

Collected On: 05/27/2017 07:09 PM EDT
Receipt Number: 7

Seizing Individual:

Collected By:

Location Area: Storage Unit 3013

Specific Location: Bankers Boxes on Left Hand Side
of Unit

(U) Documents

Collected On: 05/27/2017 07:09 PM EDT
Receipt Number: 8

Seizing Individual: 

Location Area: Storage Unit 3013
Specific Location: Boxes on Rear Wall

(0) Documents

Collected On: 05/27/2017 07:09 PM EDT
Receipt Number: 9

Seizing Individual:
Location Area: Storage Unit 3013
Specific Location: Boxes on Rear Wall

UNCLASSIFIED

3

Case Document 283-2 Filed 04/23/18 Page 1 of 2

EXHIBIT 

Case Document 283-2 Filed 04/23/18 Page 2 of 2

Hit-26 (Rev. 7-20-94)

DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF INVESTIGATION
CONSENT TO SEARCH
I. I have been asked by Special Agents of the Federal Bureau of Investigation to permit a complete

search of:
(Describe lhe person(s}. planets). or thing(s} to be searched.)

WI 1'1? 29/110 Mme, 
Mw1?9m%

2. have been advised of my right to refuse consent.
3. I give this permission voluntarily.
4. I authorize these agents to take any items which determine ma be related to their in ation.



Date . Igna rm:


- 
Witness