Case Document 355 Filed 07/18/18 Page 1 of 21

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA JUL 1 8 2018

Clark. U.S. District 8. Bankruptcy
Courts for the District of Columbia

 

UNITED STATES OF AMERICA,

v.
Crim. Action No. 17-0201-01 (ABJ)

PAUL J. MANAFORT, JR.,

Defendant.

 

MEMORANDUM OPINION AND ORDER

Defendant Paul J. Manafort, Jr. has moved to suppress the evidence seized pursuant to a
search warrant executed at his Alexandria, Virginia residence on July 26, 2017. Def.?s Mot. to
Suppress [Dkt. 264] (?Def?s Mot?) at 1?2. He argues that the warrant was unconstitutionally
overbroad. 1d. at 1?4. He also complains that the affidavit submitted in support ofthe warrant
application did not set forth probable cause to support the seizure of electronic devices; that the
agents who executed the search exceeded its permissible scope; and that the government has
improperly retained some of the items it seized. 1d. at 1?2, 4?10.1 The government opposed the
motion, Gov?t Mem. in Opp. to Def.?s Mot. (Public) [Dkt. 284], (Sealed) [Dkt. 286] (?Gov?t
Opp?), the motion is fully briefed, see Def.?s Reply to the Gov?t Opp. [Dkt. 289] (?Def?s

Reply?), and the Court heard argument on May 23,2018. As explained in more detail below, the

 

1 Manafort does not raise any concerns about the manner in which the agents gained entry
to the apartment to execute the warrant. See Tr. of Mots. Hr?g (May 23, 2018) [Dkt. 305] 
at 56. He does assert that the Special Counsel did not have the authority orjurisdiction to apply
for a search warrant at all, Def.?s Mot. at 1, citing his Motion to Dismiss the Superseding Indictment
[Dkt. 235]. But this Court has already considered and denied that motion. United States v.
Manafort, No. 2018 WL 2223656 (D.D.C. May 15, 2018); see also United States v.
Manafort, No. 18-CR-83, 2018 WL 3126380 (E.D. Va. June 26,2018) (denying motion made on
similar grounds to dismiss a superseding indictment filed by the Office of Special Counsel against
Manafort in the Eastern District of Virginia).

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Court will deny the motion. Given the nature ofthe investigation, the warrant was not too broad
in scope, and the affidavit set forth sufficient grounds to believe that there would be relevant
material on the premises stored on electronic media. And, even if the Court could findfault with
the warrant application if it were reviewing it in the first instance, the agents relied in good faith
on a warrant signed by a United States Magistrate Judge. For all of these reasons, the evidence
obtained during the execution of the warrant will not be suppressed.

FACTUAL BACKGROUND

On July 25, 2017, federal agents applied for a warrant in the United States District Court
for the Eastern District of Virginia, seeking authorization to search Manafort?s condominium in
Alexandria.2 Search Warrant, Notice Att. at 1?16 ("Warrant"). The application sought
authorization to search for and seize materials relating to alleged violations often criminal statutes,
Application for a Search Warrant, Notice Att. at 17?66 and it was supported by an
affidavit prepared by an FBI agent, who stated there was ?probable cause to believe that the
[Alexandria residence] contain[ed] evidence, fruits, and instrumentalities? of those offenses.
Aff. in Supp. oprpl., Notice Att. at 22?62 ll 3.

The agent averred that between 2006 and 2014, Manafort and his associate, Richard W.
Gates, worked as political consultants for the Ukrainian Party of Regions, and Viktor
Yanukovych, who was the head of the Party and the President of Ukraine from 20lf) to 2014.

Aff. ii 9. According to the affidavit, Manafort and Gates established a number of bank accounts

 

2 Defendant attached to his motion a partially redacted copy of the search warrant and
application. See Def.?s Mot, Ex. A [Dkt. 264-1]; Ex. [Dkt. 264-2]. A version ofthe search
warrant and application with fewer redactions was subsequently filed on the docket. See Not. of
Submission [Dkt. 340] (?Notice?); Attachment to Notice [Dkt. 340-1] (?Notice A fully
unredacted version appears at [Dkt. 286-1]. Where possible, the Court will cite to public
information in these materials. For ease of reference, it will use the docket page numbers appearing
at the top ofeach page ofthe Notice Attachment in citing specific pages ofthese documents.

2

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in Cyprus. Aff. 111] 1 1?12. Those accounts received payments to Manafort or Manafort-related
entities for their work on behalf ofthe Ukrainians, and they were used to pay vendors directly for
goods and services purchased by Manafort. Aff. 1714. The affiant also states that Manafort
performed ?significant work? for Rinat Akhmetov, a financial supporter of President Yanukovych,
and Oleg Deripaska, a Russian oligarch. Aff. 11 9. He adds that a company jointly owned by
Manafort and his wife received a $10 million loan from a ?Russian lender," identified in documents
obtained by the government as ?Derapaska.? Aff. 11 16.

The affidavit sets forth grounds to believe that Manafort, Gates, and their entities, including
Davis Manafort, failed to register as agents ofa foreign principal as required by the Foreign Agent
Registration Act 22 U.S.C. 611?21, until June of 2017. Aff. 19, 9. The agent
also stated that the foreign source income reported on Manafort?s tax returns did not appear to
include the distributions to or from the Cypriot bank accounts on his behalf, Aff.111120~21, nor did
Manafort file the reports required by the Bank Secrecy Act, 31 U.S.C. 5314 and 5322(a), to
disclose his interest in those foreign accounts. Aff. ll 18. The affidavit also detailed alleged

misrepresentations to secure bank loans and loan extensions. Aff. 111124416. 

The agent then listed a number of facts and circumstances underlying his belief that
defendant?s Alexandria residence was likely to contain evidence ofthese crimes. First of all, an
individual who works with Manafort had told the agent that Manafort used a home office at that
address to conduct his business and that he maintained records there. Aff. 1111 64?66. Also,

defendant had communicated with the Department of Justice about filings to be made under

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and at least one communication from 2016 was addressed to defendant?s Alexandria
residence. Aff. Ti 68. The government was in possession of bank and financial records for
defendant, - and ?Davis Manafort Part." addressed to his residence in Alexandria, and it
had records shoWing that Manafort?s prior residence had been listed as the address of record for a
number of accounts. Aff. 70171. Also, investigators had obtained bank records and invoices
sent to defendant?s home in Alexandria reflecting the purchase rugs, and other
goods using funds wired from several of the Cypriot accounts listed in the affidavit. Aff. 
73. They had evidence of wire transfers from the Cypriot accounts to a rug store in Alexandria
totaling more than $360,000, and a store owner reported that it was defendant who purchased the
rugs. Aff. 73. This led the agent to believe that rugs purchased using funds from the Cypriot
accounts would also be found at the residence. Al?l?. ll 73.

With regard to electronic files, the employee source told the agent that Manafort: used a
Mac desktop computer in his home of?ce; ?frequently stored? historical and current records on
?external hard drives, thumb drives, and magnetic disks;? ?made widespread use of electronic
media in the course of his business activity;? and had kept a ?drawer full of phones and electronic
equipment? at a prior residence. Aff. 1i 76.

Based on the application and supporting affidavit, U.S. Magistrate Judge Theresa C.
Buchanan approved the issuance of a search warrant on July 25, 2017. Warrant, Notice Att. at l.
The warrant authorized law enforcement agents to search defendant?s Alexandria residence,
including ?any locked drawers, containers, cabinets, safes, computers, electronic devices, and
storage media (such as hard disks or other media that can store data) found therein.? Warrant,

Notice Att. at 12. Among other items, it authorized agents to seize:

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1. Records relating to violations of31 U.S.C. 5314, 5322(a) (failure to file
a report of foreign bank and financial accounts); 22 U.S.C. 611, et. seq.
(foreign agents registration act); 26 U.S.C. 7206(1) (filing a false tax
return); 18 1014 (fraud in connection with the extension oferedit);
18 U.S.C. 1341, 1343, and 1349 (mail fraud, wire fraud, and conspiracy
to commit these offenses); 18 U.S.C. 1956 and 1957 (money laundering
and money laundering conspiracy); 52 U.S.C. 30121(a)(1)(A) and 
(foreign national contributions); and 18 U.S.C. 371 and 2 (conspiracy,
aiding and abetting, and attempt to commit such offenses) . . . occurring on
or after January 1, 2006, including but not limited to:

a. An I and all financial records for Paul Manafort, Jr., -
Richard Gates, or companies associated with [them] . . . 



 

1. Evidence indicating Manafort?s state of mind as it relates to the crimes
under investigation; . . . . [and]



2. Computers or storage media used as a means to commit the
Subject Offenses.

Warrant, Notice Att. at 13?14.

On July 26, 2017, FBI agents executed the warrant and prepared an inventory of records
that they either seized or imaged on site. Warrant Return, Notice Att. at 2?11 (listing financial
documents including bank statements, deposit slips, transaction registers; business and personal
records including documents concerning real estate and taxes; and an iMac desktop computer, a
MacBook Air laptop computer, thumb drives, external hard drives, CDs, memory accessories to
cameras and printers, a drive,? DVD disks, as well as an iPod, two iPads, and an iPhone). The
agents imaged many ofthe electronic devices, including the two computers, on site and left them
there. Gov?t Opp. at 6; Warrant Return, Notice Att. at 7?9.

As part ofthe seizure, agents identified ten sets of documents as potentially covered by the
attorney client privilege. Warrant Return, Notice Att. at 10?1 1. This material was separated and

made available to defense counsel. Gov?t Opp. at 6. The government utilized attorneys who were

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not members of the trial team to screen electronic devices that had been seized for privileged
materials and used automated processes to screen for irrelevant materials. Gov?t Opp. at 6. The
government described the procedure it was following for these purposes in correspondence with
defense counsel. Gov?t Opp. at 19?20; LetterofNov. I7, 2017, Ex. A to Gov?t Opp. [Dl<t. 284-1]
(?Nov 17 Letter?) at 3, 1; Letter ofDec. 1,2017, Ex. to Gov?t Opp. [:Dkt. 284-2] at 3.
LEGAL STANDARD
The Fourth Amendment to the United States Constitution states:
The 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

af?rmation, and particularly describing the place to be searched, and the
persons or things to be seized.

US. Const. amend. IV. The Supreme Court has explained that a search warrant is supported by
probable cause ifthere is a ?fair probability that . . . evidence ofa crime will be found in a particular
place." Illinois v. Gates, 462 US. 213, 238 (1983). Agents executing a search warrant must do
so ?in a reasonable manner, appropriately limited to the scope and intensity called for by the
warrant.? Uni/ed Slates v. Helcll, 668 F.2d l238, 1256 (DC. Cir. 1981). The proponent of a
motion to suppress bears the burden of establishing that his Fourth Amendment rights were
violated by the challenged search or seizure. Rakas v. Illinois, 439 US. 128, I30 n.l (I978).

ANALYSIS

Defendant argues that the warrant authorizing the search of his residence violated the
Fourth Amendment because it was overbroad and it impermissibly authorized seizure of
electronic devices without probable cause. He also contends that agents violated the Fourth

Amendment by seizing and retaining materials that fell outside the scope ofthe warrant.

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I. The search warrant was sufficiently particularizcd and not overbroad.

The Constitution limits searches by law enforcement to ?the speci?c areas and things for
which there is probable cause to search,? and it requires that a search ?be carefully tailored to its
justifications? and ?not take on the character ofthe wide-ranging exploratory searches the Framers
intended to prohibit.? Maryland v. Garrison, 480 U.S. 79, 84 (1987). Accordingly, ?[s]earch
warrants must be specific.? UniiedSlales v. Hill, 459 F.3d 966, 973 (9th Cir. 2006). ?Speci?city
has two aspects: particularity and breadth. Particularity is the requirement that the warrant must
clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be
limited by the probable cause on which the warrant is based.? Id, quoting UniredSlaies v. 
997 F.2d 537, 544 (9th Cir. 1993).

Defendant contends that the warrant fails to ?particularly describ[e] the place to be
searched, and the persons or things to be seized,? Def.?s Mot. at 2 (edits in original), quoting Jones
v. Kirchner, 835 F.3d 74, 79 (DC Cir. 2016) and Marron v. UnitedSiaies, 275 U.S. 192, 195496
(1927), and he points to the provisions in the warrant that call for the seizure of:

I ?[ajny and all ?nancial records,? Warrant 11 1a, Notice Att. at 13',

?[e]vidence indicating Manafort?s state of mind as it relates to the crimes under
Investigation,? Warrant 1] 1i, Notice Att. at 14; and

0 ?[c]omputers or storage media used as a means to committhe Subject Offenses,?
Warrant 11 2, Notice Att. at 14.

Def.?s Mot. at 2.

Manafort?s objections are not well-taken, though, because they ignore the fact that these
provisions are plainly limited by the scope ofthe overarching authorization to seize only ?records
relating to? the speci?cally enumerated offenses. See Warrant 11 1, Notice Att. at 13. The
application requested permission to search for and seize ?records relating to? the subject offenses,

?including but not limited in: . . . and all financial records for Paul Manafort, Jr.,

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Richard Gates, or companies associated with [them] . . . [and] [e]vidence

indicating Manafort?s state of mind as it relates to the crimes under investigation.? Appl. Attach.
1, la, 1i, Notice Att. at 19?20 (emphasis added). In other words, the categories Manafort
complains about are listed as examples ofthe types ofrecords that would be covered by the warrant
subsets ofthe set of responsive records bounded by the particular crimes under investigation.

The Supreme Court has held that individual phrases in a search warrant must be read in the
context ofthe rest ofthe warrant in particular, the list ofoffenses and not in isolation. Andresen
v. Mary/amt, 427 US. 463, 479?82 (1976). In Amiresen, the Court construed the broad grant of
authority to seize ?other fruits, instrumentalities and evidence ofcrime at this (time) unknown? in
the context ofthe warrant?s list of specified and particular items to be seized,? id. at 479?
80, and it found that the warrant only permitted the executing officers ?to search for and seize
evidence relevant to the crime [alleged] and [the property at issue].? 10?. at 481?82.

The defense asserts in his motion that authorizing a search for ??any and all ?nancial
records? ofeveryone residing at the subject location is exceptionally broad,? and that ?nothing in
the af?davitjusti?es so broad a warrant.? Def.?s Mot. at 3. But the DC. Circuit held in United
States v. Dale, 991 F.2d 819, 846?50 (DC. Cir. 1993) (per curium), that when a warrant
application, as here, alleges making a false statement in a tax return, a search for ?any and all
naneial records? related to that offense would be valid under the Fourth Amendment. The Court
explained that courts may ?consider[ ,1 the circumstances ol?the crime in assessing the degree of
particularity that should be required of descriptions of items to be seized in the warrant.? Id. at
848. Similarly, in Um'tedStales v. Farrah, 858 F.3d 801, 819?20 (3d Cir. 2017), the court rejected
a challenge to a search warrant that authorized seizure of?all financial records? in a case involving

allegations including bank fraud and filing false tax returns. It held that the particularity

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requirement is to be applied with ?exibility, especially ?in cases involving complex schemes
spanning many years that can be uncovered only by exacting scrutiny of intricate financial
records.? 1d, citing United States v. Christine, 687 1".2d 749, 760 (3d Cir. 1982).

The offenses set forth in the affidavit justi?ed a broad search of Manafort?s financial
records, and the facts alleged also supported the grant of permission to seize records belonging to
others. The affidavit identified transfers of millions of dollars from the Cypriot bank accounts
allegedly funded by the Ukrainians to a number of U.S. accounts and entities associated with
Manafort anc-. Aff. 21422. And the affidavit details alleged misrepresentations by
Manafort to obtain bank loans and loan extensions, Aff. ilil 23?46, including an alleged scheme by
a limited liability company owned by? to obtain a multi?million dollar loan. Aff.
27, 34. Those facts supported the issuance ofa warrant to seize ?nancial records belonging
not only to the defendant, but also - his business associate, and their affiliated companies.

The defense next argues that the provision allowing the seizure of ?[e]vidence indicating
Manafort?s state of mind as it relates to the crimes under investigation,? Warrant 1] 1i, Notice Att.
at 14, imposed no limits on the executing agents? discretion because all of the alleged offenses
require knowledge and intent. Def.?s Mot. at 3. But this is precisely why this sort of provision
was permissible. For example, records concerning one transaction may show a defendant?s intent
to defraud in another transaction. See Andresen, 427 U.S. at 483-84 (seizure of documents
reflecting unrelated transaction was permissible under the Fourth Amendment because the
documents could help show defendant?s intent); United States v. Wormiek, 709 F.2d 454, 459
(7th Cir. 1983), citing Amtresen, 427 U.S. at 483 (evidence of other false statements may be
introduced to show that the false report at issue was part ofan intentional scheme rather than an

accident or mistake).

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Finally, the defendant complains that the second category of items the warrant permitted
the agents to seize ?[c]omputers or storage media used as a means to commit" the alleged
offenses, Warrant 11 2, Notice Att. at 14 is also overbroad because it failed to limit the agents?
discretion in determining which computers or storage media fit that description. Def.?s Mot. at 3.
But the only case he relies upon does not bear on this question.

Courts consider the totality of circumstances in determining the validity of a warrant,
Gales, 462 US. at 230, and a key factor to be considered is the information available to the
government. This principle applies when agents have reason to believe that electronic devices will
be found at a location, but cannot precisely identify them. For instance, in Um'ledStare.s' v. Loam,
59 F. Supp. 3d 1089 (D.N.M. 2014), the court upheld a warrant authorizing seizure of ?[a]ny
computers, cell phones, and/or electronic media that could have been used as a means to commit
the offenses described.? Id. at 1099, 1 153. ?Under the circumstances of the case, the agents had
no information with which they could have provided further clarity in the search warrant. . . . They
had no idea what computer equipment or electronic devices that [the defendant] would have used
to access his electronic mail accounts, the hijacked electronic mail account, or the Domain, or
where he could have concealed evidence that he had done so.? Id. at 152.

Manafort states that the D.C. Circuit ?found wanting a similar warrant? in United States v.
Griffith, 867 F.3d 1265 (DC. Cir. 2017). Def.?s Mot. at 3. But as the excerpt he quotes from the
case reveals, Griffith involved a warrant that "authorized the wholesale seizure of all electronic
devices discovered in the apartment, including items owned by third parties, see Def.?s Mot. at 3,
quoting Griffith at 1270?71, and it did not involve a provision approving the seizure of devices
that had been ?used? in speci?c offenses. So the warrants are not ?similar,? and the case is not

instructive on this point. Since the challenged provision in the warrant involving Manafort?s

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residence was limited to computers used in the particular offenses identi?ed, it was clear that
provision did not authorize the wholesale removal of every electronic device in the house, and it
was not so vague or broad to require invalidation ofthe entire warrant.

Therefore, the Court holds that the search warrant was sufficiently particularized.

II. The application contained ample grounds to believe that electronic records related
to the offenses identi?ed in the warrant would be stored on the premises.

Relying on Griffith again, Manafort argues that the ?affidavit does not establish probable
cause to believe that the electronic devices purportedly used in the commission of the subject
offenses are likely to be found in the Manafort Home.? Def.?s Mot. at 4?5, quoting Griffith, 867
F.3d at 1271 search warrant . . . is grounded in probable cause to believe that the legitimate
object of a search is located in a particular place?).

The law is clear that an affidavit in support of a warrant application ?must provide the
magistrate with a substantial basis for determining the existence of probable cause,? and it cannot
consist of?wholly conclusory Gates, 462 U.S. at 239. ?[P]robable cause is a ?uid
concept turning on the assessment ofprobabilities in particular factual contexts not readily, or
even usefully, reduced to a neat set oflegal rules.? at 232. The Supreme Court has recognized
that the ?task of the issuing magistrate is simply to make a practical, common-sense decision
whether, given all the Circumstances set forth in the affidavit before him, including the ?veracity?
and ?basis ofknowledge? ofpersons supplying hearsay information, there is a fair probability that
. . . evidence ofa crime will be found in a particular place.? 1d. at 238 (abandoning the rigid two-
prong test for determining informant veracity in favor ofa totality ofcircumstances approach).

Manafort?s objections to the warrant on these grounds fall short for several reasOns. First,
it was not necessary for the agent to allege that the electronic devices on the premises had

themselves been used in the commission of the offense; while the warrant did call for the seizure

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of any that had, see Warrant 11 2, Notice Att. at 14, it also authorized the search of electronic
devices for relevant records that might be stored on them. Warrant, Notice Att. at 12. Thus, it was
sufficient that the affidavit provided reason to believe that evidence related to the crimes listed in
the warrant would be stored on the devices in the home. See Griffith, 867 F.3d at 1273 (tojustify
the search for and seizure of a cell phone, ?police needed reason to think not only that [the
defendant] possessed a phone, but also that the device would be located in the home and would
contain incriminating evidence about his suspected offense?).

Second, once more, Griffith is distinguishable. In that case, the police were following leads
in a year-old murder case. The DC. Circuit invalidated the warrant because ?the affidavit failed
to establish probable cause to believe that any cell phone (or other electronic device) containing
incriminating information about Griffith?s suspected offense would be found in the apartment."
867 F.3d at 1279 (emphasis in original). The Court of Appeals noted the lack of any allegation in
the affidavit that the defendant even possessed a cell phone, as well as the absence of any evidence
that he was still in possession of the same cell phone he might have used at the time ofthe murder
under investigation. 10?. at 1278. Also, Griffith had been incarcerated on other charges in the
interim. The Court was therefore concerned that even ifGrifi?ith did own a phone at the time the
agent applied for the warrant, there were no facts in the affidavit suggesting that it would still
contain evidence from the year before, or, if he had obtained a new phone, that it would contain
anything of value. And there were no facts tying phones belonging to any other occupant ofthe
apartment to the offense at all. See id. at 1276. At bottom, the problem in Griffith was the failure
to articulate any connection between the items to be seized and the crime that was being
investigated; the Circuit based its ruling on the ?limited likelihood that any cell phone discovered

in the apartment would contain incriminating evidence ofGriffith?s suspected crime.? 1d. at 1275.

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That is hardly a problem in this case. The crimes for which probable cause was set forth
in the affidavit relate to the conduct of an international business operation and international
financial transactions, and they involve activities for which records are ordinarily generated and
often retained on electronic media. Moreover, the agent specifically averted, based on information
provided by a person with knowledge, that Manafort maintained business records in his home and
conducted business with his computer. Aff. 65, 69. In particular, the allegations in paragraphs
64ofthe affidavit set forth what was missing in Griffith, and therefore,
that case does not require the exclusion ofthe evidence here.

The affidavit included information from a source with knowledge of how the defendant
maintained his electronic records. The source was an individual who had worked for Manafort?s
consulting business, and then worked for Manafort directly. Aff. ll 62. Information from the
source about the contents of a storage unit used by Manafort had proved to be accurate, Aff. 63,
and he was last inside the residence approximately two weeks before the agent applied for the
search warrant for that location. Aff. ll 67. In other words, the source had the necessary ?basis of
knowledge? for what he reported concerning defendant?s use of electronic devices. Gates, 462
US. at 238.

Furthermore, the source told the agent that Manafort used a Mac desktop computer in his
home office in the residence, ?frequently stored" historical and current records on ?external hard
drives, thumb drives, and magnetic disks,? ?made widespread use ofelectronic media in the course
of his business activity," and had kept a ?drawer full of phones and electronic equipment? at a
prior residence. Aff. ii 76.

The affidavit also contained other facts indicating that electronic devices in the residence

would likely contain evidence of the alleged crimes. The government had already obtained

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numerous email communications related to the offenses of interest, including exchanges with
Gates concerning FARA reporting requirements, Aff. 1  19; emails related to the payment ofvendors
using funds from a Cypriot account, Aff. 1T 14; and 
- Thus, the affidavit presented grounds for the Magistrate Judge to conclude that there
was probable cause to believe that Manafort regularly relied on electronic communications in the
conduct of his affairs, that electronic devices used by defendant could be found in the Alexandria
residence, and that they would contain evidence of the alleged crimes. See 867 F.3d at
1273 (stating that probable cause may be based on a ?reliable indication ofa suspect?s possession?
of a device and reason to think the device ?would contain incriminating evidence about his
suspected offense?).

The agents relied in good faith on a warrant signed by a federal Magistrate Judge,
and therefore, the exclusionary rule does not apply.

As the Court found in connection with the warrant to search the contents ofthe storage unit
in this case, United States v. Manet/0N, No. 2018 WL 3079474 (D.D.C. June 21,
2018), the evidence seized while executing the warrant for the residence should not be suppressed
even ifthis Court could find reasons to differ with the issuing magistrate. 'The agents were acting
within the scope of a valid warrant when they conducted the search, and their reliance on the
warrant issued by the Magistrate Judge was objectively reasonable. According to the Supreme
Court, in those circumstances, exclusion is not the appropriate remedy. United States v. Leon,
468 U.S. 897, 920?22 (l 984). This good faith exception to the exclusionary rule applies not only
when a reviewing court concludes that the affidavit in support of the warrant lacked probable
cause, but also to warrants later found to be overbroad. See ti/[assachusetts v. Sheppard, 468 U.S.

981, 987?91 (l984); UnttedStates v. Maxwell, 920 F.2d l028, 1034 (DC. Cir. 1990).

Case Document 355 Filed 07/18/18 Page 15 of 21

In Lean, the Court made it clear that suppression is not available as a remedy in every
situation in which a reviewing court concludes that there has been a constitutional violation, and
the DC. Circuit has reiterated that a mere disagreement with the issuing court is not sufficient to
justify the exclusion of evidence. ?That is because the ?exclusionary rule was adopted to deter

55"

unlawful searches by police, not to punish the errors of magistrates and judges. United Sta/es 12.
Spencer, 530 F.3d 1003, 1006 (DC. Cir. 2008), quoting Sheppard, 468 US. at 990. The Supreme
Court recognized that the ordinary case, an officer cannot be expected to question the
magistrate?s probable-cause determination or his judgment that the form of the warrant is
technically sufficient.? Leon, 468 US. at 921. ?Nevertheless, the officer?s reliance on the
magistrate?s probable-cause determination and on the technical sufficiency ofthe warrant he issues
must be objectively reasonable . . . 1d. at 922.

Manafort?s argument that it was not reasonable for the agents to rely on the warrant here
is largely conclusory; he simply repeats his complaint that the warrant was flawed because it
authorized the seizure of?any and all financial records? as well as broad categories of electronic
devices and storage media. Def.?s Mot. at 3. But this does not negate the proposition that the
agents were entitled to rely on the judgment and expertise of the federal Magistrate Judge who
reviewed and signed the warrant. And, as explained above, the warrant is sufficiently
particularized, and the nature and number of criminal offenses under investigation justified a
search for broad categories of business records which are often stored on computers and other
devices, so it was not objectively unreasonable for the agents to rely upon the Magistrate Judge?s
decision to permit the search.

Defendant again points the Court to the opinion of the DC. Circuit in United States v.

Graffiti/1, in which the Court found a search warrant to be both so lacking in probable cause to

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believe that evidence would be found on the premises, and so overbroad in its description ofthe
items to be seized, that it ordered the evidence to be excluded notwithstanding Leon. Def.?s Mot.
at 576, citing 86713.3d at 1278. But the defense again places too much weight on that decision,
which did not purport to narrow the Leon principle, but simply found it to be ?inapplicable in the
particular circumstances? ofthat case. Griffith, 867 F.3d at 1278.3

Griffith is inapposite primarily because the decision to suppress was based on the unique
combination ofthe Court?s finding that the affidavit was ?so lacking in indieia ofprobable cause
as to render official belief in its existence entirely unreasonable,? 867 F.3d at 1278, quoting Leon,
468 U.S. at 923, and the concerns about overbreadth. While Griffith, the individual under
investigation, lived in an apartment leased by his girlfriend, ?the warrant did not stop with any
devices owned by Griffith, which already would have gone too far. It broadly authorized seizure
of all cell phones and electronic devices, without regard to ownership.? 1d. at 1276 (emphasis in
original). This compounded the problem the Court of Appeals had already identified, that "the
affidavit failed to establish probable cause to believe that any cell phone (or other electronic
device) containing incriminating information about [the defendant?s] suspected offense would be
found in the apartment." Id. at 1279 (emphasis in original); see also id. at 1278 affidavit
sought, and the warrant granted, authorization to search for and seize every electronic device found
in the home. The warrant?s material overbreadth in that regard underscored the police?s
unawareness of the existence ofany such devices in the first place (much less the existence of any

belonging to Griffith). . . 

 

3 The defense acknowledged that Griffith did not change the legal standard. Tr. at 72?73.
COURT: You don?t suggest thatjust because Griffith decided to find an exception, that it
has purported to change the standard applicable in these cases? MR. WESTLING: 1 don?t think
that we say that it has changed the standard?).

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Case Document 355 Filed 07/18/18 Page 17 of 21

Thus, there is little in the opinion that bears on the case at hand. The claimed overbreadth
here is not comparable since the warrant application did not ask for devices or files with no
connection to Manafort or the ?nancial transfers to him that were the subject of FBI
scrutiny. And unlike the affidavit that failed to aver that Griffith even had a cell phone, much less
a cell phone that might still contain messages that had been exchanged about a murder a year
before, the affidavit here supplied reason to believe that the business and banking records that were
the object ofthe search had been seen and could still be found in the premises to be searched.

IV. The government?s execution of the search warrant and retention of seized materials
did not violate the Fourth Amendment.

Finally, the defense argues that the agents who executed the search warrant exceeded its
scope when they seized or copied ?every electronic and media device in the Manafort Home,?
including an Apple iPod and other music devices and cameras and video cameras. Def.?s Mot.
at 7. Defendant asserts that agents could not have reasonably believed these devices were ?used
in the commission ofthe subject offenses.? Def.?s Mot. at 6?7, quoting Heidi, 668 F.2d at 1256,
I260 (holding that ?the search itself must be conducted in a reasonable manner, appropriately
limited to the scope and intensity called for by the warrant,? requiring an officer to execute a search
?strictly within the bounds set by the warrant"); see also Def.?s Reply at 3?4.

But, as noted earlier, the warrant authorized the seizure of records stored on electronic
devices related to the alleged offenses, not just devices used to commit the alleged crimes.
Paragraph 2 ofAttachment items to be Seized did call for ?[c]omputers or storage media
used as a means to commit the Subject Offenses." Warrant 2, Notice Att. at 14. But Paragraph 1
of Attachment authorized a search for and the seizure of ?[rjecords relating to? the subject
offenses, Warrant 1] 1, Notice Att. at 13, and the warrant defines ?records" to include ?all forms of

creation or storage, including any form of computer or electronic storage (such as hard disks or

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Case Document 355 Filed 07/18/18 Page 18 of 21

other media that can store data) . . . and any photographic form (such as . . . videotapes, motion
pictures, or photocopies)? Warrant at 3, Notice Att. at 15. While devices such as an iPod Touch
are primarily used to play music or videos, see Def.?s Mot. at 7, they are also ?storage media? that
can be used to store ?les or photographs of important records. Sec, cg, v. Ballard,
551 F. App?x. 33, 36 (3d Cir. 2014) (unpublished) (personal information relevant to identity-
theft scheme found on iPod); United States v. ()keayaimveh, No. 1 1?cr-87, 201 1 WL 2457395, at
*10 (D. Minn. May 13, 2011) (affidavit established probable cause to believe that an iPod was
among the devices used to store and transmit information in a fraud and identity-theft scheme).
Thus, agents did not exceed the scope of the warrant when they seized or copied il?ods, cameras,
or other electronic media that could be used to store materials related to the alleged offenses.

Finally, Manafort complains in this motion that the government violated his Fourth
Amendment rights by failing to return those materials seized that were not covered by the warrant.
He told the Court, ?[jtilo date, the government has not represented that the materials seized were
subject to any process or procedure to insure the government only retained materials within the
scope of the search warrant. The government has only represented that the materials have been
subject to aprivilege review." Def.?s Mot. at 7 (emphasis in original).

The government responded that it imaged as many of the devices and storage media as
possible on site so that it would not have to take them all. Gov?t Opp. at 19; Notice Att. at 7?9
(listing thirty?one items digitally imaged on the premises, including an Apple iMac, a Mac Book
Air, and numerous flash drives). The agents then utilized an automated process to segregate
categories of irrelevant and privileged information from what had been seized or imaged. Gov?t
Opp. at 19. Meanwhile, prosecutors communicated with the defense in November and December

of2017, explaining the review protocol and offering to discuss it with counsel:

Case Document 355 Filed 07/18/18 Page 19 of 21

in particular, these materials are being processed to segregate out both
privileged material (including, for example, those instances where Manafort
is the sole privilege holder) and personal material that is irrelevant to the
prosecution. If you would like to discuss in further detail what these
processes entail, please let us know. . . . The government also has obtained
possession ofother electronic devices (including computers), which . . . are
being processed and/or reviewed by a separate taint team of agents and
prosecutors to ensure that the prosecution team is not provided with any
privileged material.
Nov. 17 Letter at 3.

According to the government, the defendant did not ask to review the materials that had
been sorted pursuant to the government?s protocol; he did not suggest that the protocol was
inadequate to segregate material that fell outside the scope of the warrant; and he did not ask the
government to return any materials found to be outside the scope ofthe warrant. Gov?t Opp. at 20.
So, there seems to be little to defendant?s contention that materials seized were not subject to the
necessary review, and defendant has not pointed to circumstances that require suppression.

This case does not present the sorts ofproblems identified in the cases cited in defendant?s
pleadings. In United States v. Melter, 860 F. Supp. 2d 205, 214?16 (E.D.N.Y. 2012), the court
held that the government?s failure to review electronic records fifteen months after seizing them
was ?unreasonable and disturbing? and constituted bad faith given repeated requests from defense
counsel and orders from the court to do so. Here, the November correspondence reveals that the
government was already in the process of reviewing seized materials within four months of
executing the search warrant. See Nov. 17 Letter at 3. And in United States v. Debbi, 244 F.

Supp. 2d 235, 237?38 (S.D.N.Y. 2003), the court found that agents seized many records from a

doctor?s office that ?plainly" fell outside the parameters of the search warrant, ?such as personal

5

and religious files, general correspondence, family financial records, [and] private patient records?

and did not attempt to separate them from evidence ofthe subject crimes either during or after the

Case Document 355 Filed 07/18/18 Page 20 of 21

search. Here, the government took responsible steps to segregate privileged or irrelevant material
and offered to provide more detail on its processes to defense counsel. See Nov. 17 Letter at 3.
At the hearing, defense counsel also complained that the government had not yet returned
any paper records it has found to be irrelevant, Tr. at 69, and neither side could state definitively
whether electronic devices that are not needed have been returned. See Tr. at 80. The defendant
did not file a motion for return of property, see Fed. R. Crim. Proc. 4l(g), but with respect to the
retention of seized materials, the government will be ordered to return any paper records it has
determined fall outside the warrant. Regarding electronic devices that were seized, in particular,
devices such as iPods or cameras that are not used primarily to store records or to transmit
communications, the Court will order the parties to confer and file a status report on whether there
are any that can be returned that have not yet been delivered. As for imaged devices, they pose no
constitutional problem. Courts have upheld the government?s retention of images created during
the execution ofa search warrant given the need to authenticate exhibits at a later date. See United
Slates v. Gam'as, 824 F.3d 199, 215?l6 (2d Cir. 2016) (prosecutors may need to retain a digital
storage medium or its forensic copy ?during the course of an investigation and prosecution, to
permit the accurate extraction ofthe primary evidentiary material sought pursuant to the warrant;
to secure metadata and other probative evidence stored in the interstices of the storage medium;
and to preserve, authenticate, and effectively present at trial the evidence thus lawfully
obtained?), cert. denied, 137 S. Ct. 569 (2016). Thus, the government?s retention of imaged

electronic devices seized from the residence does not violate the Fourth Amendment, particularly

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Case Document 355 Filed 07/18/18 Page 21 of 21

since defendant retains the originals, and the defense has pointed to no other circumstances that
would call for the exclusion ofthe evidence obtained from the residence.

CONCLUSION

For the reasons stated above, it is ORDERED that defendant?s motion to suppress the
evidence obtained from the search ofhis Alexandria residence [Dkt. 264] is hereby DENIED. It
is FURTHER ORDERED that the government must return to defendant any paper documents or
electronic devices that it has determined are irrelevant to the case by August l7, 2018, and that the
parties shall confer and file a status report by that date stating whether there are any electronic
devices in the government?s possession as opposed to imaged copies of those devices that
remain in dispute.

SO ORDERED.

 

BQCH


AMY BERMAN JACKSON
United States District Judge

DATE: July 18, 2018

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