Court filing
Joint Notice of Motion and Motion to Exclude Digital Device Files — USA v. Ayvazyan et al. (Dkt. 363, C.D. Cal.)
Filed May 24, 2021 in USA v. Ayvazyan et al.; one of 233 filings from this case.
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2021-05-24 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 363 · 2021-05-24 · Docket on CourtListener
Full text
NOTICE OF MOTION AND MOTION TO EXCLUDE DIGITAL DEVICE FILES
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Ashwin J. Ram (SBN 227513)
aram@steptoe.com
Michael A. Keough (SBN 327037)
mkeough@steptoe.com
Meghan L. Newcomer (pro hac vice)
mnewcomer@steptoe.com
Nicholas P. Silverman (pro hac vice)
nsilverman@steptoe.com
STEPTOE & JOHNSON LLP
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071
Telephone: (213) 439-9400
Facsimile: (213) 439-9599
Counsel for Defendant Richard Ayvazyan
Fred G. Minassian (SBN 170974)
fgminassian@yahoo.com
LAW OFFICES OF FRED G.
MINASSIAN, INC.
101 N. Brand Ave, Suite 1970
Glendale, CA 91203
Telephone: (818) 240-2444
Counsel for Defendant Tamara Dadyan
John L. Littrell (SBN 221601)
jlittrell@bklwlaw.com
Ryan V. Fraser (SBN 272196)
rfraser@bklwlaw.com
BIENERT KATZMAN LITTRELL
WILLIAMS, LLP
601 W. 5th Street, Suite 720
Los Angeles, CA 90071
Telephone: (213) 528-3400
Facsimile: (949) 369-3701
Counsel for Defendant Marietta Terabelian
Thomas A. Mesereau Jr. (SBN 91182)
mesereau@mesereaulaw.com
MESEREAU LAW GROUP, P.C.
10100 Santa Monica Blvd., Suite 300
Los Angeles, CA 90067
Telephone: (310) 651-9960
Jennifer J. Wirsching (SBN 263141)
wirschinglaw@outlook.com
ATTORNEY AT LAW
1935 Alpha Rd, Suite 216
Glendale, CA 91208
Telephone: (424) 902-9280
Counsel for Defendant Artur Ayvazyan
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICHARD AYVAZYAN,
MARIETTA TERABELIAN,
ARTUR AYVAZYAN,
TAMARA DADYAN,
Defendants.
Case No. 20-cr-579 (SVW)
JOINT NOTICE OF MOTION AND
MOTION TO EXCLUDE DIGITAL
DEVICE FILES FROM DEVICES
OBTAINED ON NOVEMBER 5,
2020
Hon. Stephen V. Wilson
Current Hearing Date: June 21, 2021
Requested Hearing Date: June 14, 2021
Time: 11:00 a.m.
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NOTICE OF MOTION TO SUPPRESS ELECTRONIC FILES
TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on Monday, June 14, 2021; Monday, June 21,
2021; or as soon as this counsel may be heard in Courtroom 10A of this Court at 350
W. 1st Street, 10th Floor, Los Angeles, CA 90012, Defendants Richard Ayvazyan,
Marietta Terabelian, Artur Ayvazyan, and Tamara Dadyan, through undersigned
counsel, will move the Court to exclude the digital device files contained in devices that
were obtained on November 5, 2020 and not subject to a timely responsiveness review.
This motion is based on this notice, the accompanying memorandum of points
and authorities, the declaration of Ashwin J. Ram in support, any reply that the
defendants may make, such other evidence and arguments as may be presented at or
prior to the hearing, and all records and files in this action.
Dated: May 24, 2021
Respectfully submitted,
STEPTOE & JOHNSON LLP
/s/ Ashwin J. Ram
Ashwin J. Ram (SBN 227513)
aram@steptoe.com
Michael A. Keough (SBN 327037)
mkeough@steptoe.com
Meghan L. Newcomer (pro hac vice)
mnewcomer@steptoe.com
Nicholas P. Silverman (pro hac vice)
nsilverman@steptoe.com
STEPTOE & JOHNSON LLP
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071
Telephone: (213) 439-9400
Facsimile: (213) 439-9599
Counsel for Defendant Richard Ayvazyan
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/s/ John L. Littrell
John L. Littrell (SBN 221601)
jlittrell@bklwlaw.com
Ryan V. Fraser (SBN 272196)
rfraser@bklwlaw.com
BIENERT KATZMAN LITTRELL
WILLIAMS, LLP
601 W. 5th Street, Suite 720
Los Angeles, CA 90071
Telephone: (213) 528-3400
Facsimile: (949) 369-3701
Counsel for Defendant Marietta Terabelian
/s/ Thomas A. Mesereau
Thomas A. Mesereau Jr. (SBN 91182)
mesereau@mesereaulaw.com
MESEREAU LAW GROUP, P.C.
10100 Santa Monica Blvd., Suite 300
Los Angeles, CA 90067
Telephone: (310) 651-9960
Jennifer J. Wirsching (SBN 263141)
wirschinglaw@outlook.com
ATTORNEY AT LAW
1935 Alpha Rd, Suite 216
Glendale, CA 91208
Telephone: (424) 902-9280
Counsel for Defendant Artur Ayvazyan
/s/ Fred G. Minassian
Fred G. Minassian (SBN 170974)
fgminassian@yahoo.com
LAW OFFICES OF FRED G. MINASSIAN, INC.
101 N. Brand Ave, Suite 1970
Glendale, CA 91203
Telephone: (818) 240-2444
Counsel for Defendant Tamara Dadyan
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TABLE OF CONTENTS
I.
LEGAL STANDARD ............................................................................................ 2
II.
ARGUMENT .......................................................................................................... 3
A.
THE GOVERNMENT’S SEARCH WARRANT EXECUTION
VIOLATED THE TERMS OF THE WARRANTS AND THE
FOURTH AMENDMENT ........................................................................... 4
1.
The Government Failed to Complete a Responsiveness
Review as Soon as Practicable and Failed to Secure a
Valid Extension ............................................................................... 5
2.
The Government Violated the Warrant’s Requirement
that the Responsiveness Review Be Conducted By a
Law Enforcement Officer Search Team Utilizing
Search Protocols .............................................................................. 9
B.
THE GOVERNMENT’S SEARCH WARRANT EXECUTION
WAS UNREASONABLE BECAUSE IT AMOUNTS TO A
GENERAL WARRANT ............................................................................ 11
C.
EXCLUSION IS PROPER UNDER RULE 16 AND THE
DISCOVERY CUT-OFF ORDER ............................................................. 13
D.
THE ELECTRONIC FILES SHOULD BE EXCLUDED DUE TO
KASTIGAR TAINT INFECTING THE REVIEW PROCESS .................. 16
III.
CONCLUSION ..................................................................................................... 16
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TABLE OF AUTHORITIES
Cases
Page(s)
Andresen v. Maryland,
427 U.S. 463 (1976) ..................................................................................................... 3
In re App’n for Warrant (Cunnius),
770 F. Supp. 2d 1138 (W.D. Wash. 2011) .................................................................. 9
In re Apple iPhone,
31 F. Supp. 3d 159 (D.D.C. 2014) ..................................................................... 3, 9, 10
Armstrong v. Manzo,
380 U.S. 545 (1965) ..................................................................................................... 8
Coolidge v. New Hampshire,
403 U.S. 443 (1971) ................................................................................................... 10
Entick v. Carrington,
19 How. St. Tr. 1029 (1765) ........................................................................................ 2
Franklin v. Foxworth,
31 F.3d 873 (9th Cir. 1994) ....................................................................................... 12
Go-Bart Importing Co. v. United States,
282 U.S. 344 (1931) ..................................................................................................... 3
Matthews v. Eldridge,
424 U.S. 319 (1976) ..................................................................................................... 8
In re Odys Loox Plus Tablet,
28 F. Supp. 3d 40 (D.D.C. 2014) ............................................................................... 10
Payton v. New York,
445 U.S. 573 (1980) ..................................................................................................... 3
Purbeck v. Wilkinson,
No. 21-cv-47, 2021 WL 1550563 (D. Idaho Apr. 20, 2021) ....................................... 8
Riley v. California,
573 U.S. 373 (2014) ................................................................................................... 11
In re Search Warrant,
No. 00-cr-138, 2000 WL 1196327 (D.D.C. July 24, 2000) ......................................... 8
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In re Search Warrants Issued Aug. 29, 1994,
889 F. Supp. 296 (S.D. Ohio 1995) ............................................................................. 8
Stanford v. State of Texas,
379 U.S. 476 (1965) ..................................................................................................... 2
United States v. Adjani,
452 F.3d 1140 (9th Cir. 2006) ................................................................................... 12
United States v. Bonner,
No. 12-cr-3429, 2013 WL 3829404 (S.D. Cal. July 23, 2013) ................................. 10
United States v. Bridges,
344 F.3d 1010 (9th Cir. 2003) ..................................................................................... 3
United States v. Comprehensive Drug Testing, Inc.,
621 F.3d 1162 (9th Cir. 2010) ................................................................................. 2, 9
United States v. Davis,
244 F.3d 666 (8th Cir. 2001) ..................................................................................... 15
United States v. Garcia,
730 F. Supp. 2d 1159 (C.D. Cal. 2010) ..................................................................... 14
United States v. Garcia,
No. 2:10-cr-595 (C.D. Cal. July 13, 2010) ................................................................ 14
United States v. Huntoon,
No. 16-cr-46, 2018 WL 1755788 (D. Ariz. Apr. 12, 2018) ...................................... 11
United States v. Kirschenblatt,
16 F.2d 202 (2d Cir. 1926)..................................................................................... 2, 11
United States v. Mason,
No. 06-cr-80, 2008 WL 281970 (S.D.N.Y. Jan. 25, 2008) ....................................... 15
United States v. Ornelas,
906 F.3d 1138 (9th Cir. 2018) ................................................................................... 14
United States v. Ramirez,
523 U.S. 65 (1998) ....................................................................................................... 3
United States v. Roybal,
566 F.2d 1109 (9th Cir. 1977) ................................................................................... 14
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United States v. Sadr,
No. 18-cr-224 (S.D.N.Y. Oct. 10, 2019) ................................................................... 15
United States v. Schesso,
730 F.3d 1040 (9th Cir. 2013) ................................................................................. 3, 9
United States v. Schwartz,
857 F.2d 655 (9th Cir. 1988) ..................................................................................... 14
United States v. Tamura,
694 F.2d 591 (9th Cir. 1982) ................................................................................. 2, 12
United States v. W.R. Grace,
526 F.3d 499 (9th Cir. 2008) ..................................................................................... 14
Other Authorities
Fed. R. Crim. P. 16(a)(1)(E) ............................................................................. 1, 4, 13, 15
Fed. R. Crim. P. 41 ................................................................................................... passim
Michael Lesk, How Much Information Is There In the World?,
https://chnm.gmu.edu/digitalhistory/links/pdf/introduction/0.6a.pdf ........................ 13
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MEMORANDUM OF POINTS AND AUTHORITIES
The government executed broad search warrants at each of the moving
defendant’s homes on November 5, 2020, choosing to seize dozens of digital devices
containing private information. In the last two weeks, the government has disclosed
that (1) government agents or attorneys are currently selecting their exhibits from four
raw, complete devices belonging to each of the moving defendants, (2) the government
did not even begin to review any of these devices1 for responsiveness until after the
Warrant’s deadline passed, and (3) the government’s only argument for using the
totality of defendants’ digital lives without a Rule 41 responsiveness review is that it
obtained a post-indictment, ex parte, sealed extension permitting it to continue
reviewing the entire device and seizing files until after trial. There was no justification
for the government’s four-month delay in beginning a responsiveness review and no
need to deprive the defendants of their right to be heard on an extended deprivation of
property. The government hid the proceedings from the defendants because it knew
that if the presiding judge knew that the discovery cut-off was eleven days away, that
trial was two months away, and that the government had failed to diligently execute the
warrant, then the presiding judge would not grant an extension at all—much less allow
the prosecutors unrestricted access to select trial exhibits from raw digital device data.
It simply cannot be the case that the Fourth Amendment’s prohibition on general
searches is circumvented this easily such that law enforcement can seize massive digital
devices and obtain extensions until after a discovery cut-off and after trial that enable it
to fish through the entire digital devices for evidence to use against the devices’
owners. Were the government’s position correct, the exception would consume the rule
and functional general searches of digital devices would become permissible.
1 The government provided notice on April 26, 2021 that it intends to use four digital devices, one
belonging to each of the moving defendants. The government did not disclose that it had not
conducted a responsiveness review. Indeed, it is oxymoronic for the government to have decided
which devices it would use before conducting a responsiveness review to determine which devices and
files the government could seize.
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The government’s delayed responsiveness review strategy violates the terms of
the warrant, the Court’s discovery order mandating production of all Rule 16 discovery
by March 15, the Fourth Amendment’s prohibition on unreasonable execution, and the
prohibition of Kastigar v. United States and its progeny against using tainted
information to interpret evidence or select exhibits. The evidence from each of the
digital devices seized on November 5, 2020 should therefore be excluded.
I.
LEGAL STANDARD
The Fourth Amendment was enacted to prohibit the equivalent of “general
warrants known as writs of assistance,” which “had given customs officials blanket
authority to search where they pleased for goods imported in violation of the British tax
laws.” Stanford v. State of Texas, 379 U.S. 476, 481 (1965) (unanimous). In Entick v.
Carrington, the “wellspring” of the right now protected by the Fourth Amendment, the
court had declared a warrant unlawful because it authorized seizure of “all the party’s
papers, in the first instance.” Id. (quoting 19 How. St. Tr. 1029, 1064 (1765)) (noting
that the British House of Commons responded by passing a resolution condemning the
use of general warrants). Just as Entick found a general seizure of books and papers to
be unlawful, the Fourth Amendment sought to prohibit such general warrants from
being executed in the future. Stanford, 379 U.S. at 486 (holding unconstitutional a
search warrant that authorized broad seizure of a suspect’s books and papers); see also
United States v. Kirschenblatt, 16 F.2d 202, 204 (2d Cir. 1926) (Hand, J.) (“[T]o
rummage at will among his papers in search of whatever will convict him, appears to us
to be indistinguishable from what might be done under a general warrant.”).
In tension with the prohibition on general searches is the fact that “over-seizing is
an inherent part of the electronic search process.” United States v. Comprehensive
Drug Testing, Inc., 621 F.3d 1162, 1177 (9th Cir. 2010) (en banc). The Ninth Circuit
has therefore urged judicial officers to exercise “greater vigilance … in striking the
right balance between the government’s interest in law enforcement and the right of
individuals to be free from unreasonable searches and seizures.” Id. “In the
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comparatively rare instances where documents are so intermingled that they cannot
feasibly be sorted on site,” officers “may apply for specific authorization for large-scale
removal of material, which should be granted by the magistrate issuing the warrant only
where on-site sorting is infeasible and no other practical alternative exists.” United
States v. Tamura, 694 F.2d 591, 595-96 (9th Cir. 1982) (noting that the Fourth
Amendment requires executing warrants “in a manner that minimizes unwarranted
intrusions upon privacy.” (quoting Andresen v. Maryland, 427 U.S. 463, 482 n.11
(1976))).
“As the Ninth Circuit has made clear, ‘the reality that overseizing is an inherent
part of the electronic search process’ requires [courts] to ‘exercise greater vigilance in
protecting against the danger that the process of identifying seizable electronic evidence
could become a vehicle for the government to gain access to a larger pool of data that it
has no probable cause to collect.’” In re Apple iPhone, 31 F. Supp. 3d 159, 168
(D.D.C. 2014) (quoting Schesso, 730 F.3d at 1042). In search warrant execution as in
all Fourth Amendment analysis, the Fourth Amendment’s purpose to prevent general
warrants is paramount and the protections are “to be liberally construed” in favor of
individual rights. See United States v. Bridges, 344 F.3d 1010, 1014 & n.1 (9th Cir.
2003) (quoting Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931)); see
also United States v. Ramirez, 523 U.S. 65, 71 (1998); Payton v. New York, 445 U.S.
573, 583 (1980). Any attempt to exploit Fed. R. Crim. P. 41 to turn a temporary
overseizure into a general warrant must therefore be rejected.
II.
ARGUMENT
The government seized the digital devices at issue almost seven months ago.
During Friday’s hearing, the government revealed that it still has not conducted the
responsiveness reviews required by Fed. R. Crim. P. 41 and the Fourth Amendment to
determine which files are responsive to the warrant and subject to seizure. Instead of
having a search team conduct a responsiveness review pursuant to a search protocol and
seizing only a portion of each device (as the Warrant requires), in this case, the
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government—apparently including attorneys who are not part of the search team as
defined by the Warrants—is selecting its trial exhibits from the entirety of massive
digital devices and announced that it intends to deem the files it selects as exhibits
“seized.” That is contrary to the letter and spirit of the Fourth Amendment, Federal
Rules of Criminal Procedure 16 and 41, and this Court’s discovery cut-off, which
required production of all discovery by March 15, 2020—precisely to avoid this sort of
last-minute addition of evidence.
The government’s search warrant execution strategy in this case was to exploit
the off-site responsiveness review permitted by Fed. R. Crim. P. 41 to seize entire
digital devices (i.e., execute a general warrant seizing all of one’s papers), then delay
that responsiveness review until after the government had selected which of the files on
those devices it wanted to introduce into evidence. The government flouted this
Court’s discovery order, ignored the prosecution’s Rule 16 obligation to produce the
portion of the device that had been seized by March 15, 2021, and undermined the
Fourth Amendment by seeking to accomplish exactly what it was designed to prohibit:
a general warrant in which the government is free to peruse at its leisure the entirety of
a person’s life use any digital file in a person’s possession against them. Exclusion of
the files—none of which were timely seized in a responsiveness review—is therefore
proper under Rule 16 and the discovery cut-off order and under the Fourth Amendment.
A.
The Government’s Search Warrant Execution Violated the Terms of
the Warrants and the Fourth Amendment
The Warrants (Ram Decl. Ex. A, Ex. B) imposed two important limitations on
the government’s review of seized digital devices. First, the Warrants required a
responsiveness review be completed “as soon as is practicable” and no later than March
5, 2021. Warrants Attach. B ¶ 4.a. Second, the Warrants required that a “search team
will conduct the search only by using search protocols specifically chosen to identify
only the specific items to be seized under this warrant.” Id. ¶ 4.b; see also id. ¶ 5
(noting that after law enforcement officials conducted the responsiveness review,
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government attorneys could review the resulting “seized or copied” data). Rather than
execute a responsiveness review using search protocols, the government sought an
unlawful extension that would give the prosecutors unfettered access to the raw data
throughout trial. Because the government failed to complete a responsiveness review
as soon as practicable, failed to secure a valid extension, and failed to utilize proper
search protocols, exclusion is appropriate.
1.
The Government Failed to Complete a Responsiveness Review
as Soon as Practicable and Failed to Secure a Valid Extension
The Fourth Amendment and Fed. R. Crim. P. 41 permit the temporary
overseizure of electronic data to identify the limited files within that data that fall
within the scope of the warrant’s probable cause. Fed. R. Crim. P. 41(e)(2)(B). In
order to avoid “frequent petitions to the court for additional time,” Rule 41 does not
impose a one-size-fits-all deadline and instead permits “a judge [to] impos[e] a deadline
… at the time the warrant is issued.” Fed. R. Crim. P. 41 adv. comm. note (2009). In
this case, the Warrant instructed that “[t]he search team shall complete the search of
[digital devices or forensic copies thereof] as soon as is practicable but not to exceed
120 days from the date of execution of the warrant.” Warrant Attach. B ¶ 4.a. The
120-day period expired on March 5, 2020.
The government failed to complete its review as soon as practicable. When the
120-day period expired, the government had not even begun a responsiveness review of
the digital devices at issue. See Sealed Ex Parte App’n for Extension ¶ 8.a (Mar. 4,
2021) (DOJ_PROD_0000162873) (Ram Decl. Ex. C) (“Extension App’n”) (claiming
that the only devices that had begun a responsiveness review were tainted devices from
the Miami airport stop and that the remaining devices were “still being imaged and
process by the lab and reviewed by the filter team”).2 This “backlog in the imaging and
2 This application was produced to the defendants on May 13, 2021 along with the government’s
motion to file its ex parte application under seal. See Ram Decl. Ex. D (DOJ_PROD_0000162894)
(“Sealing App’n”). A substantially identical application was filed with respect to each of the devices
at issue.
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review process” was the government’s own doing; it was “caused” by the decision to
seize approximately 50 devices during the ransacking of the defendants’ houses. Id.
¶ 8.d. Although the government blamed the FBI forensic team’s resources being
“stretched” due to important “investigations arising out of the January 6, 2021
insurrection at the U.S. Capitol,” id. this was (at best) a red herring. The relevant
devices were seized on November 5, 2020. Although the government has not produced
the FD-302 memoranda for these devices, the memoranda for other devices show that
CART was able to process the data within one week but that the government waited
multiple months to submit a request.3 In any event, all of the relevant devices had been
processed by February 1, 2020 at the latest,4 leaving the government with over one
month to complete its responsiveness review.5
At Friday’s hearing, the government attempted to argue that it had obtained an
extension and had until July to finish its responsiveness review, but that extension is
invalid. The government obtained a post-indictment extension on an ex parte and
sealed basis to prevent the defendants from being heard on an additional deprivation of
property. The government’s extension was obtained by deceiving the Court,
withholding material facts, and seeking relief that is not authorized by any statute. To
prevent the defendants from challenging its unlawful warrant execution, the
government wrongfully applied for and received permission to seal its extension
request even though the underlying warrant had already been disclosed and the
3 See Ram Decl. Ex. E (DOJ_PROD_0000153655; DOJ_PROD_0000153807;
DOJ_PROD_0000153808) (Dec. 16, 2020 request to process 7 devices completed by Dec. 21, 2020;
Jan. 4, 2021 request to process 6 devices completed by Jan. 7, 2021; Jan. 4, 2021 request to re-process
7 devices completed by Jan. 7, 2021).
4 See Ram Decl. Ex. F (Feb. 1, 2021 discovery letter).
5 The government also claimed to have utilized a filter review. Extension App’n ¶ 8.b. It is unclear
whether this is true. The government never asked for a filter term list and the resulting productions
included both attorney-client privileged materials and privileged confidential marital communications.
Regardless of whether the government’s claim is false, the government knew a filter review was
necessary when it secured the Warrant and any such review would therefore have been accounted for
in the 120-day limit.
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indictment on the underlying warrant had already been returned. The government
falsely informed the Court that it needed the application to be sealed—four months
after the devices were seized from their owners and the owners were given a copy of
the underlying search warrant and affidavits—“to maintain the integrity of the
government’s ongoing investigation.” Sealing App’n at 3-4 (Ram Decl. Ex. D). In
support, the government cited cases about “pre-indictment disclosure of a search
warrant affidavit,” but they do not appear to have cited a single case or statute that
permits post-indictment sealing. Cf. Fed. R. Crim. P. 41(f)(3) (noting that notice may
only be delayed “if the delay is authorized by statute”). The government further
misrepresented that “[t]he search warrants in this case remain under seal,” only
disclosing that the affidavits had been produced to the defendants. Sealing App’n at 5.
The government did not disclose that all of the devices were seized from the four
existing defendants; that the government had been ordered to produce all outstanding
discovery to those four defendants by March 15, 2020; and that those four defendants
had a May 4, 2020 trial date. The government did not disclose these facts because it
knew that they would be material to denying the government’s application. Instead, the
government falsely assured the Court—five days before obtaining the superseding
indictment—that if the property owners were informed “before any additional charging
decisions can be made, there is a significant risk that the case would be jeopardized by,
among other reasons, potentially alerting additional subjects that the investigation is
ongoing.” Id.
The government’s stated justification to prevent the defendants from being heard
was utterly false for two reasons. First, as the government has trumpeted to this Court
it had told the defendants that the investigation was ongoing months earlier. See, e.g.,
Gov’t’s Opp’n to Mot. to Dismiss at 1, Dkt. 278 (Apr. 12, 2021) (“[In a January 2021
email,] [t]he government put defendant on notice that he was subject to an ongoing
investigation ….”). The government is not free to assure one judge that its
investigation is so secret that property owners cannot be permitted their constitutional
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right to notice and an opportunity to be heard while simultaneously assuring another
judge that the same people are fully informed of the ongoing investigation. Second,
knowledge of the ongoing investigation had nothing to do with the government’s
sealing. Indeed, the superseding indictment was unveiled less than one week later, and
yet the government refused to produce the Extension Application and Sealing
Application for over two months thereafter. The Extension Application revealed no
privileged trial strategy or investigatory details, and there was no valid reason to seal.
The government did not want the defendants to object to the unlawful bases for seizing
their property, so it lied to the Court to keep them in the dark.
The defense has twice asked the government for its legal authority for proceeding
on an ex parte, sealed basis after an indictment of the owners or possessors of the
digital devices. The government has not responded. That is because no authority
exists. Cf. Purbeck v. Wilkinson, No. 21-cv-47, 2021 WL 1550563, at *5 (noting that
even property owners who have not yet been indicted can have a Fourth Amendment
right of access); In re Search Warrant, No. 00-cr-138, 2000 WL 1196327, at *1
(D.D.C. July 24, 2000) (noting that the general right to unsealing affidavits derives
from a defendant’s constitutional right to move to suppress and therefore attaches after
indictment); In re Search Warrants Issued Aug. 29, 1994, 889 F. Supp. 296, 299 & n.4
(S.D. Ohio 1995) (holding that the Fourth Amendment includes the right to examine the
affidavit supporting a warrant and holding that fears of jeopardizing a continuing
criminal investigation were insufficient because the government demonstrate “no less
restrictive means, such as redaction” would satisfy that interest). The defendants were
entitled to object to the seizure of their property for an additional 120 days, see
Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental requirement of due
process is the opportunity to be heard “‘at a meaningful time and in a meaningful
manner.’” (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965))), but they were
wrongfully deprived of that right by the government’s misrepresentations to the Court.
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The resulting extension violated the defendants’ rights under Rule 41 and the
Constitution and is without force or effect.
2.
The Government Violated the Warrant’s Requirement that the
Responsiveness Review Be Conducted By a Law Enforcement
Officer Search Team Utilizing Search Protocols
The Warrants require that the “[t]he search team will conduct the search only by
using search protocols specifically chosen to identify only the specific items to be
seized under the warrant.” Warrant ¶ 4.b. The search team (defined as “law
enforcement personnel or other[s] assisting law enforcement personnel”) is supposed to
use these search protocols to identify specific files, copy the specific files (¶ 4.e),
produce the resulting seized or copied files to the prosecutors (¶ 5).
The government appears to be violating the Warrants in two ways. First, the
government is not using search protocols to identify specific responsive files. A search
protocol is “an explanation of the scientific methodology the government will use to
separate what is permitted to be seized from what is not, will explain to the Court how
the government will decide where it is going to search.” In re Apple iPhone, IMEI
013888003738427, 31 F. Supp. 3d 159, 166 (D.D.C. 2014); CDT III, 621 F.3d at 1179
(Kozinski, C.J., concurring) (equating search protocol with “[t]he process of sorting,
segregating, decoding and otherwise separating seizable data (as defined by the
warrant) from all other data”). Ideally, search protocols will ensure that those
prosecuting the case are not exposed to raw data until after an independent
responsiveness review has deemed it within the scope of the warrant. See In re App’n
for Warrant (Cunnius), 770 F. Supp. 2d 1138, 1150 (W.D. Wash. 2011) (endorsing
CDT concurrence protocols and emphasizing the importance of releasing only
responsive data to investigating agents); see also CDT III, 621 F.3d at 1179 (Kozinski,
C.J., concurring) (urging courts to require a protocol that prevented agents involved in
the investigation from seeing data until the responsive data has been segregated); cf.
United States v. Schesso, 730 F.3d 1040, 1049 (9th Cir. 2013) (explaining that “The
seized electronic data was reviewed by Investigator Holbrook, a specialized computer
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expert, rather than Detective Kennedy, the case agent, and Schesso does not assert that
Holbrook disclosed to Kennedy ‘any information other than that which [was] the target
of the warrant.’”).
In United States v. Bonner, a court in the Southern District of California
explained that search protocols must be “reasonably directed to identify data within the
scope of the warrant in order to meet the particularity requirement.” No. 12-cr-3429,
2013 WL 3829404, at *19 (S.D. Cal. July 23, 2013). Without such a protocol in place,
“the search of the electronic data becomes general exploratory rummaging in a person's
belongings.” Id. Because the government’s protocol “expanded the search to data
which the Government had no probable cause to collect,” the Bonner court concluded
that the search protocol was “not directed to identify data within the scope of the
warrant and violated the Defendant’s rights under the Fourth Amendment.
So too here. The government has jettisoned the search protocol requirement
altogether. In its March 4 extension request, the government revealed that its protocols
contain no restrictions on search methodology mistakenly defining the protocol as
imaging and processing devices, conducting a filter review, and producing the devices
to the case agents for a responsiveness review pursuant to the warrant. Extension
App’n ¶ 7. Search protocols are supposed to provide a detailed “explanation of how the
government intends to conduct the search so that the Court may conclude that the
government is making a genuine effort to limit itself to a particularized search.” Apple
iPhone, 31 F. Supp. 3d at 168; see also In re Odys Loox Plus Tablet, 28 F. Supp. 3d 40,
46 (D.D.C. 2014) (holding that no search protocol would be deemed adequate without
an explanation of how the search would be done to ensure it was not a “general,
exploratory rummaging in a person’s belongings” (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 467 (1971)). The government’s protocol does not explain
how it will limit its responsiveness review at all, and indeed it has not. Implicit in the
government’s in-court representations on Friday is the conclusion that the
government—including its attorneys who are not authorized members of the search
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team—are selecting trial exhibits directly from the raw phones with no protocol or
restrictions in place. That is the essence of a “general, exploratory rummaging in a
person’s belongings” and is anathema to the Fourth Amendment and the Warrant.
Because government attorneys are accessing data that has not already been seized
and because they are doing so without a valid search protocol in place, the government
is violating the Warrant’s terms and the Fourth Amendment.
B.
The Government’s Search Warrant Execution Was Unreasonable
Because It Amounts to a General Warrant
An individual’s liberty is not protected from general warrants if the government
remains free to seize “a digital record of nearly every aspect of [individuals’] lives” and
avoid narrowing that digital record until after trial. See Riley v. California, 573 U.S.
373, 395 (2014). In Riley, the Supreme Court stated with approval: “In 1926, Learned
Hand observed (in an opinion later quoted in Chimel) that it is ‘a totally different thing
to search a man’s pockets and use against him what they contain, from ransacking his
house for everything which may incriminate him.’” Id. (quoting United States v.
Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926)). In another portion of Judge Hand’s
quoted opinion, he noted that while “a thorough search of all that the offender has” may
be necessary to ensure that the government finds every piece of evidence, that is
“exactly what the [Fourth] amendment was designed to prevent.” Kirschenblatt, 16
F.2d at 204. Here, the government seeks not just to ransack defendants’ houses for a
thorough search of all that the defendants have, but to be able to continue doing so
through trial. The government has an executed a strategy in this case that would allow
it to do just that: pushing out its responsiveness review deadline to ensure that it
maintains the whole of each defendant’s digital record for use at trial.
That strategy, particularly in light of the discovery cut-off, violated the Fourth
Amendment’s prohibition of unreasonable search warrant execution. “[B]oth the scope
of a seizure permitted by a warrant, and the reasonableness of government conduct in
executing a valid warrant, can present Fourth Amendment issues.” United States v.
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Huntoon, No. 16-cr-46, 2018 WL 1755788, at *2 (D. Ariz. Apr. 12, 2018); see also
Tamura, 694 F.2d at 596 (“The government’s unnecessary delay in returning the [non-
responsive property] appears to be an unreasonable and therefore unconstitutional
manner of executing the warrant.”). “The reasonableness of a search or seizure
depends not only on when it is made, but also on how it is carried out.” Franklin v.
Foxworth, 31 F.3d 873, 875 (9th Cir. 1994); see also United States v. Adjani, 452 F.3d
1140, 1149 (9th Cir. 2006) (“We understand the heightened specificity concerns in the
computer context, given the vast amount of data they can store.”).
Fed. R. Crim. P. 41’s authorization of off-site review was meant as a substitute
for on-site review, not a substantive expansion of the federal government’s authority to
search private property. See Fed. R. Crim. P. 41 adv. comm. note (2009) (noting that
the reason for permitting off-site review is “[]practical[ity]” and “the need for a two-
step process,” not a desire to afford a new substantive power to law enforcement and
that property owners should retain “an expectation of the timing for return of the
property”); cf. Warrants Attach. B ¶ 4.a (“The search team shall complete the search as
soon as is practicable ….”). The government’s strategy in this case attempts to use that
authorization as a loop hole that would provide precisely that: a substantive expansion
of its power to search and seize items to be used against their owners. Here, the
government chose to execute a mass seizure of devices, chose to indict the case two
weeks later, chose to wait approximately one month before it started processing the
devices, made no effort to complete its responsiveness review (or even start it) was
aware that it was subject to a discovery cut-off, and submitted a misleading extension
request that it kept from the defendants in order to hide material information from the
reviewing judge. The government’s strategy was designed to ensure that it had the full
forensic device at its disposal when picking trial evidence, which is precisely the type
of general warrant that the Fourth Amendment was designed to prevent. The strategy
should result in exclusion.
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C.
Exclusion is Proper Under Rule 16 and the Discovery Cut-Off Order
The government’s failure to complete its discovery has violated this Court’s
Discovery Order. The government was required to comply with all of its discovery
obligations—including disclosure of items material to preparing the defense and items
that the government intends to use in its case-in-chief at trial—by March 15, 2021. In-
Chambers Order, Dkt. 105 (Dec. 22, 2020).
The government’s argument at Friday’s hearing was that disclosing a forensic
copy of the devices containing terabytes of data was sufficient to meet its obligations,
but the government is wrong. Rule 16 applies to each “portion[] of any of these items”
that is material to preparing the defense, that the government intends to use in its case
in chief, or that was obtained from the defendant. Fed. R. Crim. P. 16(a)(1)(E). By
producing the entire item, the government does not obviate its duty to produce the
“portion” of the item that it intends to use particularly where knowing that subset is
material to preparing the defense. The government claims that the devices hold so
much data that it could not complete a cursory responsiveness review—meant to be a
substitute for paging through a bookcase while on site—in the four months provided by
the initial warrant. How can the defendants (without the resources of the federal
government) possibly be expected to complete an in-depth substantive content review
and prepare a defense while simultaneously processing the other information the
government has amassed? The defendants pushed for disclosure and a discovery cut-
off because the government used the grand jury’s powers to secure over 20 terabytes of
data, more than the Library of Congress and its 20 million books.6 The simple answer
is that the defendants cannot possibly process the government’s addition of newly
seized data7 within two weeks.
6 See Michael Lesk, How Much Information Is There In the World?,
https://chnm.gmu.edu/digitalhistory/links/pdf/introduction/0.6a.pdf.
7 To be clear, the entire devices were obtained from the defendants in November 2020. Only the
portion marked responsive can lawfully be seized. Thus, the government has produced the data
obtained from the defendants, but it has not produced the portion that was seized.
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Based on the government’s failure to produce the portion of the phones that it
was seizing in time for the discovery cut-off, the Court has discretion to exclude the
proposed seized data to enforce its order. See United States v. W.R. Grace, 526 F.3d
499, 514 (9th Cir. 2008) (en banc) (upholding exclusion of government evidence not
disclosed by discovery deadline); United States v. Ornelas, 906 F.3d 1138, 1150-51
(9th Cir. 2018) (affirming exclusion of testimony disclosed shortly before trial as
enforcement of discovery order); United States v. Roybal, 566 F.2d 1109, 1110-11 (9th
Cir. 1977) (reversing conviction, emphasizing that the provision of late discovery in
violation of a specific order resulted in “unfairness and potential prejudice to the
defendant” as well as “unfairness and discourtesy to the trial judge”); United States v.
Schwartz, 857 F.2d 655, 659 (9th Cir. 1988) (reaffirming that “the district court may
exclude documents or witnesses” where the government “fail[s] to comply with the
court’s pretrial or discovery orders.”). Although no showing of prejudice is necessary,
see W.R. Grace, 526 F.3d at 515, prejudice will occur in this case because the addition
of the seized data to the government’s already large pool of seizures, with only two
weeks until trial, would make it potentially impossible for the defendants to adequately
prepare.
In United States v. Garcia, a defendant moved to exclude evidence of a prior
conviction because it was not produced to her in discovery before the discovery
deadline of June 30, 2010. 730 F. Supp. 2d 1159 (C.D. Cal. 2010). The government
argued that by producing Garcia’s entire criminal record, it had satisfied its discovery
deadline. Opp’n to Def’t’s Mot. in Limine to Exclude Evidence of Garcia’s Prior
Offense, United States v. Garcia, 2:10-cr-595, Dkt. 32 (C.D. Cal. July 13, 2010). The
court, expressing doubt that the production actually contained the did not rule on that
bassis. Instead, it ruled that due the government’s failure to produce the evidence that it
sought to admit prior to the discovery cut-off, enforcement of the discovery cut-off and
exclusion of evidence was appropriate. Garcia, 730 F. Supp. 2d at 1168-69.
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In United States v. Sadr, the government produced both a forensic copy of the
defendant’s email account in April 2018 and the portion of that email account
(approximately 358 documents) marked “responsive” or “pertinent” in May 2018. The
discovery cut-off in that case passed in July 2018. See Mem. of Law Supp. Mot. to
Exclude at 2-6, United States v. Sadr, No. 18-cr-224, Dkt. 149 (S.D.N.Y. Oct. 10,
2019). Later in the litigation, after the discovery deadline had passed, the government
proposed to add 1,775 documents to the pool of responsive documents, arguing (as the
government does here) that the forensic copy of the defendant’s email account was
sufficient to comply with its discovery obligations. See Sept. 17, 2019 Letter from U.S.
Attorney’s Office for the Southern District of New York, United States v. Sadr, No. 18-
cr-224, Dkt. 149-3 (S.D.N.Y. Oct. 10, 2019). The defendant moved to exclude
pursuant to Rule 16 arguing that the court should exercise its discretion to enforce the
discovery deadline or to sanction the government’s discovery failures and that the
prejudice to the defense from expanding the pool of potential evidence exceeded the
prejudice to the government, who had already indicted the case based on the more
limited pool. After initially opposing the motion, the government ultimately agreed not
to use the documents despite the earlier production of a forensic copy, and the
documents were properly excluded.8
In cases like this, courts frequently look to the reason for the delay. See, e.g.,
United States v. Davis, 244 F.3d 666, 671 (8th Cir. 2001) (chastising the government
for not seeking a continuance or otherwise challenging the discovery deadline and
affirming exclusion of evidence); United States v. Mason, No. 06-cr-80, 2008 WL
281970, at *3, *4 (S.D.N.Y. Jan. 25, 2008) (“Here, the government concedes that there
were ‘shortfalls . . . ,’ but offers no excuse or explanation, acceptable or otherwise, for
the failure to timely disclose evidence” that defendant had specifically sought for
eleven months). Here, there is no good reason for the government’s delay. It was
8 See Nov. 25, 2019 Hr’g Tr. at 36-39.
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given three months’ warning of the March 15, 2021 discovery cut-off and yet it treated
that cut-off as a mere suggestion. It exhibited no interest in protecting the rights of the
defendants either to discovery or to exclusive possession of their property. The
government’s delay merits exclusion and under the Court’s discovery cut-off order, it
has that authority.
D.
The Electronic Files Should Be Excluded Due to Kastigar Taint
Infecting the Review Process
Based on the government’s description at Friday’s hearing, the same government
team members are reviewing the phones that previously reviewed, received, or used
tainted information. Kastigar prohibits using tainted information as an investigatory
lead or to uncover evidence, to interpret evidence, to build a case, or to make trial
decisions like selecting exhibits. See Joint Mot. for Kastigar Hearing, to Disqualify the
Prosecution Team, and to Dismiss at 8-9, Dkt. 338 (May 17, 2021). The ongoing
responsiveness review is therefore tainted.
III.
CONCLUSION
The Fourth Amendment’s purpose is to prohibit general warrants. If the
government’s strategy in this case—seizing masses of digital device data and refusing
to perform the required responsiveness review until after it figures out which evidence
to mark as trial exhibits against the device’s owner—is tantamount to a declaration that
the Fourth Amendment’s restrictions do not apply to digital devices. That declaration
can and should be emphatically rejected. The government’s failure to promptly
perform a responsiveness review, unlawful extension request, and unconstitutional
strategy merits exclusion of the digital device evidence the government proposes to use.
//
//
//
//
//
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Dated: May 24, 2021
Respectfully submitted,
/s/ Ashwin J. Ram
Ashwin J. Ram (SBN 227513)
aram@steptoe.com
Michael A. Keough (SBN 327037)
mkeough@steptoe.com
Meghan L. Newcomer (pro hac vice)
mnewcomer@steptoe.com
Nicholas P. Silverman (pro hac vice)
nsilverman@steptoe.com
STEPTOE & JOHNSON LLP
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071
Telephone: (213) 439-9400
Facsimile: (213) 439-9599
Counsel for Defendant Richard Ayvazyan
/s/ John L. Littrell
John L. Littrell (SBN 221601)
jlittrell@bklwlaw.com
Ryan V. Fraser (SBN 272196)
rfraser@bklwlaw.com
BIENERT KATZMAN LITTRELL
WILLIAMS, LLP
601 W. 5th Street, Suite 720
Los Angeles, CA 90071
Telephone: (213) 528-3400
Facsimile: (949) 369-3701
Counsel for Defendant Marietta Terabelian
[SIGNATURES CONTINUE ON NEXT PAGE]
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/s/ Thomas A. Mesereau Jr.
Thomas A. Mesereau Jr. (SBN 91182)
mesereau@mesereaulaw.com
MESEREAU LAW GROUP, P.C.
10100 Santa Monica Blvd., Suite 300
Los Angeles, CA 90067
Telephone: (310) 651-9960
Jennifer J. Wirsching (SBN 263141)
wirschinglaw@outlook.com
ATTORNEY AT LAW
1935 Alpha Rd, Suite 216
Glendale, CA 91208
Telephone: (424) 902-9280
Counsel for Defendant Artur Ayvazyan
/s/ Fred G. Minassian
Fred G. Minassian (SBN 170974)
fgminassian@yahoo.com
LAW OFFICES OF FRED G. MINASSIAN, INC.
101 N. Brand Ave, Suite 1970
Glendale, CA 91203
Telephone: (818) 240-2444
Counsel for Defendant Tamara Dadyan
SIGNATURE ATTESTATION
Pursuant to Local Rule 5-4.3.4(a)(i), the filer attests that all signatories listed, and
on whose behalf the filing is submitted, concur in the filing’s content and have
authorized the filing.
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