Ex Parte Application and Memorandum of Points and Authorities — United States v. Andrew Marnell

Summary

A government ex parte application filed July 15, 2020 as Document 3 in Case 2:20-mj-03313, asking the court to seal the complaint, the arrest warrant, the application itself and all supporting documents to maintain the integrity of its investigation. The memorandum cites Local Rule 79-5.1 and Ninth Circuit authority that courts have inherent power to seal warrant affidavits. In an attached declaration, Assistant United States Attorney Kerry L. Quinn of the Major Frauds Section states that the arrest warrant had not yet been executed, that a related search was planned for the time of the arrest, and that the primary target did not know about the investigation. The government asks that the papers stay sealed until further order of the Court or until they fall within its discovery obligations.

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Issuer: U.S. District Court for the Central District of California
Document type: Application
Date: 2020-07-15
Case: United States v. Andrew Marnell magistrate
Case number: 2:20-mj-03313

Cite this document

“Ex Parte Application and Memorandum of Points and Authorities — United States v. Andrew Marnell.” U.S. District Court for the Central District of California, No. 2:20-mj-03313, dated 2020-07-15. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/article-lender-help-marnell-cacd-788492-doc-3-0-criminal-complaint/, SHA-256 66a143c71cad404fe8fb20f0284533fae224286668b232cfc1212ac17bec0330.

Full text

Case 2:20-mj-03313-DUTY Document 3 Filed 07/15/20 Page 1 of 6 Page ID #:33
Case 2:20-mj-03313-DUTY Document 3 Filed 07/15/20 Page 2 of 6 Page ID #:34

1 in which case the government is also permitted to disclose the

2 sealed information.

3 This ex parte application is based on the attached memorandum

4 of points and authorities, the declaration of AUSA Kerry L. Quinn,
5 and the records and files in this case.
6 Dated: July 15, 2020 Respectfully submitted,

7 NICOLA T. HANNA
United States Attorney
8
BRANDON D. FOX
9 Assistant United States Attorney
Chief, Criminal Division
10

11 /s/
KERRY L. QUINN
12 Assistant United States Attorney
Major Frauds Section
13
Attorneys for Applicant
14 UNITED STATES OF AMERICA

2
Case 2:20-mj-03313-DUTY Document 3 Filed 07/15/20 Page 3 of 6 Page ID #:35

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 The government requests that this Court seal the complaint and

3 arrest warrant, as well as this ex parte application and all

4 supporting documents, to maintain the integrity of its
5 investigation. Approval from this Court to seal these documents is
6 required under Local Rule 79-5.1. The Court of Appeals for the
7 Ninth Circuit has held that district courts have the inherent power
8 to seal affidavits in support of warrants. In re Sealed Affidavit
9 (Agosto), 600 F.2d 1256 (9th Cir. 1979) (per curiam) (holding that
10 even aside from Federal Rule of Criminal Procedure 41 “courts have
11 inherent power, as an incident of their constitutional function, to
12 control papers filed with the courts within certain constitutional
13 and other limitations”); see also Offices of Lakeside Non-Ferrous
14 Metals, Inc., 679 F.2d 778, 779-80 (9th Cir. 1982) (citing Agosto).
15 The Court of Appeals for the Seventh Circuit has rejected the
16 proposition that pre-indictment disclosure of a search warrant
17 affidavit is required under either constitutional principles or
18 Federal Rule of Criminal Procedure 41. In re EyeCare Physicians of
19 America, 100 F.3d 514 (7th Cir. 1996). In doing so, the Seventh
20 Circuit held:
21 By the very nature of a secret criminal investigation of
this type, the target of an investigation more often than
22 not remains unaware of the specific grounds upon which a
warrant was issued. If preindictment disclosure of sealed
23 warrant affidavits was required to satisfy due process
(assuming there had been a predicate deprivation of life,
24 liberty or property), the hands of law enforcement would
be needlessly tied and investigations of criminal activity
25 would be made unduly difficult if not impossible.
26 Id. at 517. Accord In re Grand Jury Proceedings, 115 F.3d 1240,
27 1247 (5th Cir. 1997). Similar principles apply to a complaint and
28 attached affidavit.

1
Case 2:20-mj-03313-DUTY Document 3 Filed 07/15/20 Page 4 of 6 Page ID #:36

1 Here, for the reasons described in the attached declaration,

2 sealing is necessary to maintain the integrity of the government’s

3 investigation. Accordingly, the government requests that the

4 documents described in the attached declaration be kept under seal

5 until further order of the Court, or until the government determines

6 that these materials are subject to its discovery obligations, at

7 which time they may be produced to defense counsel, or the

8 government otherwise determines that disclosure would be in the

9 public interest or would otherwise serve a law enforcement purpose,

10 in which case the government is also permitted to disclose the

11 sealed information.

2
Case 2:20-mj-03313-DUTY Document 3 Filed 07/15/20 Page 5 of 6 Page ID #:37

1 DECLARATION OF AUSA KERRY L. QUINN

2 I, Kerry L. Quinn, declare as follows:

3 1. I am an Assistant United States Attorney in the United

4 States Attorney’s Office for the Central District of California. I

5 represent the government in the investigation of this matter, in

6 which the government has submitted an affidavit in support of a

7 complaint and arrest warrant.

8 2. The arrest warrant in this case has not yet been executed,

9 and a related search is being planned at the time of the arrest.

10 The likelihood of discovering the items sought in the search warrant

11 would be diminished if the affidavit in support of the arrest

12 warrant in this case were made publicly available before the warrant

13 was executed.

14 3. Further, public disclosure of the warrant or the

15 information in the warrant application could seriously jeopardize

16 other aspects of the investigation, which is ongoing. The

17 investigation is still in a covert stage, and to the best of my

18 knowledge, the primary target does not know about the investigation,

19 much less the status of the investigation and evidence gathered to

20 date. In this situation, disclosure of the warrant to the target or

21 associated individuals could lead to: (1) flight from prosecution;

22 (2) destruction of or tampering with evidence; (3) intimidation of

23 potential witnesses; or (4) otherwise seriously jeopardizing the

24 investigation. Further, to the extent that all of the potential co-

25 conspirators involved in the crimes under investigation have not yet

26 been identified, public disclosure of the warrant and information in

27 the warrant application could lead individuals involved in criminal

1
Case 2:20-mj-03313-DUTY Document 3 Filed 07/15/20 Page 6 of 6 Page ID #:38

1 activity to take steps to mask their identity and their criminal

2 activity, all of which would seriously jeopardize the investigation.

3 4. Accordingly, the government requests that the complaint

4 and arrest warrant and all attachments thereto, as well as this ex

5 parte application, the memorandum of points and authorities, this
6 declaration, and this Court’s sealing order, and all documents
7 subsequently filed under this same case number until such time as a
8 unsealing order is issued, be kept under seal until further order of
9 the Court, or until the government determines that these materials
10 are subject to its discovery obligations, at which time they may be
11 produced to defense counsel, or the government otherwise determines
12 that disclosure would be in the public interest or would otherwise
13 serve a law enforcement purpose, in which case the government is
14 also permitted to disclose information the sealed information.
15 I declare under penalty of perjury under the laws of the United
16 States of America that the foregoing is true and correct and that
17 this declaration is executed at Los Angeles, California, on July 15,
18 2020.
19
KERRY L. QUINN
20

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