Memorandum Opinion — United States v. Nicholas Perkins (M.D. Pa.)

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A memorandum opinion dated November 7, 2023 in United States of America v. Nicholas Perkins, No. 4:22-CR-00246, in the U.S. District Court for the Middle District of Pennsylvania, filed as Document 38 by Chief United States District Judge Matthew W. Brann. It addresses a four-count indictment charging wire fraud, an unlawful monetary transaction, bank fraud and a false loan application over a $465,786 PPP loan to Well Versed Oilfield Services, LLC through Northwest Bank, which the government alleges was partly used to buy a vacation home. The court holds that fraud requires deception at the time the promise is made and, because the government concedes the indictment does not allege the loan was obtained by fraudulent means, dismisses Count I and therefore Count II. The motion to suppress Google email account records is denied.

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“Memorandum Opinion — United States v. Nicholas Perkins (M.D. Pa.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-4-22-cr-00246-dkt-38-66475e1750/, SHA-256 93ab3831121eb52e50cb9c5f59c23365c7f9c5e228aa178ba65d65276e226242.

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Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, No. 4:22-CR-00246

v. (Chief Judge Brann)

NICHOLAS PERKINS,

Defendant.

MEMORANDUM OPINION

NOVEMBER 7, 2023

At the start of the COVID-19 pandemic, virtually every business in the

United States was forced to shut its doors or limit its services. As a result, business

owners found themselves without revenue to pay their expenses, leaving employees

without an income to pay their own bills. In response, and with uncharacteristic

urgency (but perhaps characteristic thoughtfulness and deliberation), Congress

devised a solution and passed the Coronavirus Aid, Relief, and Economic Security

(“CARES”) Act. The Act empowered the Small Business Administration to give

businesses the money they needed to pay expenses, so long as those businesses

promised to use that money to pay legitimate business expenses, in particular their

employees’ wages.

The Government alleges that Defendant Nicholas Perkins, the owner and

operator of Well Versed Oilfield Services, LLC, took that money, but broke his

promise when he used it to buy a vacation home. Perkins insists that the Government,
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 2 of 27

“feeling duped” by his home purchase, is seeking to criminalize behavior that it

“didn’t like,” but is not actually illegal.1 He seeks to dismiss the indictment against

him, as well as suppress evidence seized pursuant to a warrant he argues was

constitutionally deficient. For the reasons discussed below, the Court will grant in

part, and deny in part Perkins’ motion to dismiss and deny his motion to suppress.

I. PROCEDURAL HISTORY

On June 28, 2022, a grand jury sitting in the Middle District of Pennsylvania

returned a four-count indictment against Defendant Nicholas Perkins, charging him

with one count of Wire Fraud, in violation of 18 U.S.C. § 1343 one count of

Unlawful Monetary Transaction, in violation of 18 U.S.C. § 1957, one count of Bank

Fraud, in violation of 18 U.S.C. § 1344, and one count of False Loan Application,

in violation of 18 U.S.C. § 1014.2 On July 13, 2022, Perkins appeared before United

States Magistrate Judge William I. Arbuckle and pleaded not guilty to all charges.3

On August 1, 2023, Perkins filed two pretrial motions: a Motion to Dismiss

the Indictment,4 and a Motion to Suppress Evidence Seized Pursuant to the Search

Warrant for Email Account Records from Google.5 Both motions are fully briefed

1
Mot. to Dismiss Br., Doc. 27 at 6.
2
Indictment, Doc. 1.
3
Doc. 12.
4
Mot. to Dismiss (“MTD”), Doc. 26.
5
Mot. to Suppress (“MTS”), Doc. 28.

2
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 3 of 27

and ripe for disposition.6 For clarity, the Court will discuss the factual background

relevant to each motion separately.

II. MOTION TO DISMISS

A. Alleged Factual Background

In March 2020, the CARES Act was enacted to provide financial assistance

to counteract the effects of the COVID-19 pandemic.7 Among the relief provided

was the Paycheck Protection Program (“PPP”), administered by the Small Business

Administration, which provided loans to businesses through outside lenders.8 The

principal and interest of a PPP loan were entirely forgivable if the business used the

proceeds on certain authorized expenses.9 PPP loan applications were processed by

participating financial institutions, and the loans, though guaranteed by the SBA,

were funded with the lenders’ own monies.10

On April 28, 2020, Nicholas Perkins secured a $465,786 PPP loan in the name

of his company, Well Versed Oilfield Services, LLC, through Northwest Bank.11

Perkins transferred the funds to an account in the name of Well Versed, ending in

6
MTD Br., Doc. 27; MTD Opp., Doc. 32; MTD Reply, Doc. 36; MTS Br., Doc. 29; MTS Opp.,
Doc. 33; MTS Reply, Doc. 37.
7
Indictment ¶ 2.
8
Id. ¶ 2-3.
9
Id. ¶ 4. The Court notes that there is a potential dispute between the parties whether the loan
proceeds, or just an amount of money equal to the proceeds must be spent on authorized
expenses. The Court offers no opinion on that issue as it is not currently before it, as discussed
infra.
10
Id. ¶ 6.
11
Id. ¶¶ 8-10. Northwest Bank is referred to as Lender #1 in the indictment.

3
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 4 of 27

XXXX7898.12 Less than a month later, Perkins and his wife Brandi Perkins signed

a purchase agreement for a home in Dauphin Island, Alabama for approximately

$850,000.13 On June 4, 2020, Perkins and his wife signed a loan application in which

Perkins listed $425,000 of the PPP loan proceeds as an asset.14 On July 1, 2020,

Perkins transferred $420,000 of the proceeds from the account ending in XXXX7898

to a Well Versed business checking account ending in XXXX1172.15 The memo for

the transfer included the street address of Alabama home.16 That same day, Perkins

signed a check from the Well Versed business checking account ending in

XXXX1172 payable to himself in the amount of $420,000 and deposited it into his

personal account ending in XXXX8515.17 Also that same day, Perkins sent a wire

transfer from his personal checking account to Nations Direct.18 The memo for that

transfer also identified the Perkins and the home”19

On December 8, 2020, Perkins submitted documentation to Northwest Bank

to forgive the PPP loan in which he stated that a qualifying amount of the loan

12
Id. ¶ 11.
13
Id. ¶¶ 12-13.
14
Id. ¶ 13.
15
Id. ¶ 14.
16
Id.
17
Id. ¶ 15.
18
Id. ¶ 16.
19
Id.

4
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proceeds were used for permissible expenses.20 The SBA provided the funds to

Northwest on January 21, 2021 to forgive the loan.21

B. Standard of Review

Federal Rule of Criminal Procedure 7(c) requires an indictment to “be a plain,

concise, and definite written statement of the essential facts charged.” “[A]n

indictment is deemed sufficient so long as it:”

(1) contains the elements of the offense intended to be charged, (2)
sufficiently apprises the defendant of what he must be prepared to meet,
and (3) allows the defendant to show with accuracy to what extent he
may plead a former acquittal or conviction in the event of a subsequent
prosecution.22
“Moreover, ‘no greater specificity than the statutory language is required so

long as there is sufficient factual orientation to permit the defendant to prepare his

defense and to invoke double jeopardy in the event of a subsequent prosecution.’”23

Therefore, to survive a motion to dismiss under Rule 12(b)(3)(B)(v), an

indictment must simply set forth facts that, if true, could permit a jury to find that

the defendant committed the charged offense.24 The scope of the Court’s review is

accordingly limited to the four corners of the indictment.25 “A pretrial motion to

20
Id. ¶ 17.
21
Id. ¶ 18.
22
United States v. Willis, 844 F.3d 155, 162 (3d Cir. 2016) (quoting United States v. Rankin, 870
F.2d 109, 112 (3d Cir. 1989)).
23
U.S. v. Bergrin, 650 F.3d 257, 264 (3d Cir. 2011) (quoting United States v. Kemp, 500 F.3d
257, 280 (3d Cir. 2007); Rankin, 870 F.2d at 112).
24
U.S. v. Huet, 665 F.3d 588, 596 (3d Cir. 2012) (citing United States v. Panarella, 277 F.3d
678, 685 (3d Cir. 2002); United States v. DeLarentis, 230 F.3d 659, 660 (3d Cir. 2000)).
25
Id. at 595.

5
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dismiss is not a permissible vehicle for addressing the sufficiency of the

government’s evidence,” making “credibility determinations [or] weighing of

proof.”26 However, the Court “need not blindly accept a recitation in general terms

of the elements of an offense.”27 Dismissal is appropriate where “the specific facts

alleged in the charging document fall beyond the scope of the relevant criminal

statute, as a matter of statutory interpretation.”28

C. Wire Fraud and Unlawful Money Transaction (Counts I and II)

To secure an indictment for wire fraud in violation of 18 U.S.C. § 1343, the

Government must show probable cause to believe that Perkins (1) “devised a scheme

to defraud;” (2) “acted with the intent to defraud;” and (3) used the wires “in

advancing, furthering, or carrying out the scheme.”29 To establish a scheme to

defraud, the Government must prove “that an aim of the alleged scheme was to

deprive another of money” or property.30

Perkins argues that the indictment fails to allege that either Northwest or the

SBA “were deprived of any money or property by Mr. Perkins”31 or that he

“fraudulently obtained the PPP funds.”32 The Government argues the allegation of

26
Id. (citing DeLarentis, 230 F.3d at 660; Bergrin, 650 F.3d at 265).
27
Id. at 595 (citing Panarella, 277 F.3d at 685).
28
Bergrin, 650 F.3d at 264-65 (quoting Panarella, 277 F.3d at 685).
29
Third Cir. Model Crim. Jury Instr. § 6.18.1343.
30
United States v. Porat, 2022 WL 685686, at *25 (E.D. Pa. Mar. 8, 2022), aff’d 76 F.4th 213
(3d Cir. 2023).
31
MTD Br. 15.
32
Id. at 13.

6
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 7 of 27

“[a]n internet transfer of $420,000 of PPP loan proceeds”33 for the purpose of

purchasing the vacation home “sufficiently alleges the money or property which was

the object of the defendant’s scheme.”34 Further, conceding that the indictment does

not allege that Perkins “[o]riginally obtatin[ed] the loan proceeds through fraudulent

means,”35 the Government argues that it is sufficient that the indictment details that

the funds were to be used for eligible business expenses, but were instead used to

purchase the vacation home, and that Perkins “submitted false documentation to

Northwest Bank in order to forgive the PPP loan.”36

Arguing that intent to defraud “need not have been present when [Perkins]

initially requested and received the loan, the Government relies on the Third

Circuit’s opinion in United States v. Fattah.37 In Fattah, the defendant was charged

with offenses relating to his “fraudulently obtaining and failing repay lines of

credit.”38 “In applying for lines of credit, Fattah represented to various banks that his

company, 259 Strategies, LLC, would use the money for business purposes when in

fact Fattah intended to use the money for personal expenses.”39 Fattah was also

charged with defrauding the Philadelphia School District.40 Fattah’s company

33
MTD Opp. 19 (quoting Indictment ¶ 20).
34
Id.
35
Id. at 13.
36
Id. at 20-21 (citing Indictment ¶¶ 11-17).
37
858 F.3d 801 (3d Cir. 2017). The Government refers to the case as Yattah.
38
Id. at 806.
39
Id.
40
Id.

7
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 8 of 27

contracted with Delaware Valley High School, and he became DVHS’s Chief

Operating Officer.41 “Through his position at DVHS, Fattah submitted fraudulent

budgets to the PSD that requested funding for nonexistent jobs and unperformed

services. All told, the PSD overpaid $940,000 over a two-year period, and Fattah

personally pocketed part of that sum.”42

Fattah argued that charges for bank fraud and wire fraud should have been

dismissed because they “merely charged a breach of contract, not a criminal

offense;” specifically that the conduct charged was “consistent with making truthful

representations at the time he applied for the loan but later failing to use the funds

as promised.”43 The Government notes that the court rejected Fattah’s argument,

holding that Fattah’s “requesting excess funds for DHVS’ budgets and pocketing the

surplus” sufficiently charged fraud.44

However, the Third Circuit rejected Fattah’s argument because the indictment

“properly charged that Fattah made express misrepresentations to obtain the loan.”45

41
Id.
42
Id.
43
Id. at 814-15.
44
MTD Opp. 18 (quoting Fattah, 858 F.3d at 815).
45
Fattah, 858 F.3d at 815 (emphasis added, internal quotations removed). The court discussed
this argument as it applied to the charge of bank fraud then subsequently rejected it as to the
wire fraud charges. See id. (“Fattah repeats his breach-of-contract argument that the
Superseding Indictment merely charged that he failed to perform all of the services identified
in the [DVHS’s] budgets, not that he lied to obtain those funds. We reject this argument for
the reasons provided above.”).

8
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 9 of 27

The Government concedes that this element is not charged in the indictment here.46

Because fraud “requires a showing of deception at the time the promise is made,”47

the Court will dismiss Count I of the indictment.

Therefore, Count II must also be dismissed. To secure an indictment for an

unlawful monetary transaction in violation of 18 U.S.C. § 1957, the Government

must show probable cause to believe that Perkins “(1) engage[d] or attempt to engage

(2) in a monetary transaction (3) in criminally derived property that is of a value

greater than $10,000 (4) knowing that the property is derived from unlawful activity,

and (5) the property is, in fact, derived from ‘specified unlawful activity.’”48 Here,

the specified unlawful activity is wire fraud,49 and because the Court has found that

46
Compare MTD Opp. 13 (“Originally obtaining the loan proceeds through fraudulent means,
however, is neither a requisite element of any of the four counts in the indictment, nor is it
alleged so by the Government.”) with Fattah, 858 F.3d 815 (“[T]he Superseding Indictment
plainly charged Fattah with making representations that he knew to be false or fraudulent at
the time he made them.”).
47
Corley v. Rosewood Care Center, Inc. of Peoria, 388 F.3d 990, 1007 (7th Cir. 2004) (emphasis
added); see also Puckett v. U.S., 556 U.S. 129, 137 (2009) (rejecting argument “that a mere
breach of contract retroactively causes the other party’s promise to have been coerced or
induced by fraud”); U.S. v. Steffen, 687 F.3d 1104, 1116 (8th Cir. 2012) (“[A] fraud claim is
permitted only if it arises from acts that are separate and distinct from the contract.”) (quoting
Dubinsky v. Mermart, LLC, 595 F.3d 812, 820 (8th Cir. 2010); Mills v. Polar Molecular Corp.,
12 F.3d 1170, 1176 (2d Cir. 1993) (“The failure to carry out a promise made . . . does not
constitute fraud unless, when the promise was made, the defendant secretly intended not to
perform or knew that he could not perform.”); Cavic v. Grand Bahama Development Co., Ltd.,
701 F.2d 879, 883 (11th Cir. 1983) (“[A] promise of future action or a prediction of future
events cannot, standing alone, be a basis for fraud because it is not a representation, there is no
right to rely on it, and it is not false when made.”).
48
United States v. Sokolow, 91 F.3d 396, 408 (3d Cir. 1996).
49
United States v. Cefaratti, 221 F.3d 502, 507 (3d Cir. 2000) (citing 18 U.S.C. § 1961(1)(B)).

9
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 10 of 27

the indictment does not show probable cause to believe that Perkins committed wire

fraud, the indictment does not satisfy the fifth element of the alleged violation.

D. Bank Fraud

To secure an indictment for bank fraud in violation of 18 U.S.C. § 1344, the

Government must show probable cause to believe that Perkins “knowingly

execute[d] a scheme or artifice to (1) “defraud a financial institution,”50 or (2) to

“obtain bank property” “by means of false or fraudulent pretenses, representations,

or promises.”51 As discussed above, a scheme to defraud is a scheme in which an

aim is to deprive another, here Northwest Bank, of money or property. Perkins

argues that Northwest was not defrauded because, “[u]pon Mr. Perkins being granted

forgiveness, the SBA paid [Northwest] the value of the loan.”52 The Government

argues that the indictment states how Perkins defrauded Northwest by submitting a

forgiveness application “stating falsely the dollar amount for which forgiveness was

requested had been used for costs that were eligible for loan forgiveness.”53

As an initial matter, the Court notes that the SBA is not a “financial

institution” under the statute.54 To the extent that the “indictment lays out, in detail,

50
18 U.S.C. § 1344(1).
51
Loughrin v. U.S., 573 U.S. 351, 355-356 (2014) (citing 18 U.S.C. § 1344(2)).
52
MTD Br. 26.
53
MTD Opp. 28.
54
18 U.S.C. § 20.

10
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 11 of 27

[Perkins’] scheme to defraud Northwest Bank, and the SBA,” it is only the scheme

to defraud the former that is relevant to Count III of the indictment.

The Supreme Court has held that there is no requirement “that the victim bank

ultimately suffer financial harm, or that the defendant intend that the victim bank

suffer such harm.”55 Rather, “it is ‘sufficient’ that the [bank] be ‘deprived of its right’

to use of the property, even if it did not ultimately suffer unreimbursed loss.”56 The

alleged false statement deprived Northwest of its right to repayment of the loan by

Perkins.57 That Northwest was reimbursed by the SBA is not a basis to dismiss the

bank fraud charge. Nor is the fact that, had the loan not been forgiven, Perkins would

have still had a legal obligation to repay it.58

E. False Loan Application

To secure an indictment for false loan application in violation of 18 U.S.C. §

1014, the Government must show probable cause to believe that Perkins (1) “made

a ‘false statement or report,’” (2) “‘for the purpose of influencing in any way the

action of [a described financial institution] upon any application, advance, . . .

55
Shaw v. U.S., 580 U.S. 63, 68 (2016).
56
Id. at 67-8 (quoting Carpenter v. United States, 484 U.S. 19, 26-7 (1987)).
57
See United States v. Hird, 914 F.3d 332, 344 (3d Cir. 2019) (observing “that the right to be
paid has routinely been recognized as property”) (citing Pasquantino v. U.S., 544 U.S. 349,
356 (2005); accord United States v. Yates, 16 F.4th 256, 266 (9th Cir. 2021); United States v.
Maddux, 914 F.3d 437, 444 (6th Cir. 2019); U.S. v. Bengis, 631 F.3d 33, 39-40 (2d Cir. 2011).
58
See United States v. Greenlaw, 84 F.4th 325, 346 (5th Cir. 2023) (citing approvingly holding
of United States v. Saks, 964 F.2d 1514, 1519 (5th Cir. 1992) “that a fraudulent loan transaction
exposed financial institutions and lenders to risk of loss even though the loan was ‘secured,
and [defendants] assumed a legal obligation to repay it.’”).

11
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 12 of 27

commitment, or loan.’”59 Perkins argues that he did not make a false statement on

his Forgiveness Application because he did, in fact, spend “more than the dollar

amount for which forgiveness is requested on Permissible Expenses.”60 The

Government responds that Perkins’ contention that he “spent $796,367.55 on

Permissible Expenses” is inappropriate for a Rule 12 motion to dismiss because it

relies on evidence outside of the four corners of the affidavit.61

Perkins does not contest that his statement on the Forgiveness Application

was made for the purpose of influencing the action of Northwest. Rather, he argues

that he did not actually make a false statement on the Application. Unfortunately for

Perkins, this is an argument that cannot be made without referring to evidence

outside of the four corners of the indictment. If Perkins did spend at least $465,786

on Permissible Expenses, he may introduce such evidence at trial.

Relatedly, Perkins also argues that both Counts III and IV should be dismissed

because the Government does not “allege that Mr. Perkins did not spend

$465,786.00 on permissible expenses.”62 He notes that “borrowers of PPP loans are

eligible for forgiveness ‘in an amount equal to the sum of the costs incurred and

payments made during the covered period.’”63 This argument misses the mark.

59
Fattah, 914 F.3d at 184 (quoting Williams v. United States, 458 U.S. 279, 284 (1982)).
60
MTD Br. 32 (internal quotations removed).
61
MTD Opp. 31.
62
Reply 18.
63
Id. at 17 (citing 15 U.S.C. § 636m(b)).

12
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 13 of 27

Perkins is not being charged with a violation of the CARES Act. He is being charged

with making a false statement for the purpose of influencing Northwest Bank’s

action on his Forgiveness Application. The facts alleged in the indictment—that he

borrowed $465,786 in April 2020, signed a purchase agreement for the vacation

home in May, listed $425,000 of the funds as an asset on a mortgage application in

June, then used $420,000 of the proceeds for a down payment—are sufficient to

establish probable cause to believe that Perkins’ December 8, 2020 statement that

he spent $465,786 on Permissible Expenses was false.

III. MOTION TO SUPPRESS

A. Alleged Factual Background

On July 12, 2022, after Perkins had been indicted, Internal Revenue Service

Special Agent Ava-Marie Burnside applied for, and Chief Magistrate Judge Karoline

Mehalchick granted a warrant authorizing the production, search, and seizure of

certain information associated with the business email accounts of Nicholas and

Brandi Perkins (the “Target Accounts”).64 The warrant required Google, the provider

of email services to Well Versed, to turn over all information relating to the Target

Accounts, including emails from January 1, 2020 to May 15, 2021.65

In her affidavit of probable cause, Burnside stated that, in November 2020,

the IRS received bank information that showed Perkins secured approximately

64
Warrant App., Doc. 33-1 at 1; Warrant Aff. (“Aff.”), Doc. 33-1 pp. 3-17, ¶¶ 10, 12, 20.
65
Aff. Attach. A.

13
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 14 of 27

$465,000 in forgivable PPP loan funds from the SBA on April 28, 2020.66 PPP loans

are to be fully forgiven if the business incurs eligible costs within eight to twenty-

four weeks of origination, with a majority of those costs being payroll expenses.67

Perkins used his Well Versed email account to submit the business’ financial records

to Northwest as part of his PPP loan application.68 On June 15, 2021, the IRS

received emails between Perkins and his accountants which included discussions of

the PPP loan, financial issues, and a house purchase in Dauphin Island, Alabama.69

In April 2021, June 2021, and March 2022, the IRS received multiple records from

multiple real estate, mortgage, and title companies which each communicated with

Nicholas and Brandi Perkins using their Well Versed email addresses.70

On June 15, 2020, Perkins emailed his accountants, stating that he would be

using $420,000 from a Well Versed bank account to purchase a vacation home.71

Perkins and his mortgage company emailed his accountants multiple times during

the day requesting a letter that Well Versed would not be adversely affected by the

withdrawal.72 On July 1, 2020, Perkins initiated a transfer of $420,000 from Well

Versed’s bank accounts to his personal account and then used those funds for the

66
Aff. ¶ 9.
67
Id.
68
Id. ¶ 10.
69
Id. ¶ 12.
70
Id. ¶ 13.
71
Id. ¶ 16.
72
Id.

14
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 15 of 27

down payment of the vacation home.73 On December 28. 2020, Perkins submitted a

PPP loan forgiveness application which was subsequently approved.74

The warrant describes the “property to be searched” as the information

associated with the Target Accounts, “stored at premises owned, maintained,

controlled, or operated by Google LLC.”75 It required Google to disclose to the

Government all emails from January 1, 2020 to May 15, 2021 for the Target

Accounts, as well as information relating to the identification of the Accounts;

access of the Accounts; address books, contact lists; calendar data, pictures and files

of the Accounts; and all records of communications between Google and any person

regarding the accounts.76 It then described the information to be seized by the

Government as all information that constitutes evidence of violations of 18 U.S.C.

§§ 1957, 1956, 1014, 1343, and 1344, including (a) “communications and messages

detailing any preparatory steps taking in furtherance of the scheme;” (b) evidence

indicating how and when the email account was accessed or used; (c) “[e]vidence

indicating the email owner’s state of mind as it relates to the crime under

investigation;” and (d) “identity of the person(s) who created or used the user ID.”77

73
Id. ¶ 17.
74
Id. ¶ 18.
75
Id. Attach. A.
76
Id. Attach B-I.
77
Id. Attach. B-II.

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B. Fourth Amendment

The Fourth Amendment to the United States Constitution prohibits

“unreasonable searches and seizures” and mandates that “no Warrants shall issue,

but upon probable cause.” When determining whether a warrant is supported by

probable cause, “[a] reviewing court may not conduct a de novo review of a probable

cause determination.”78 Rather, “[t]he duty of a reviewing court is ‘simply to ensure

that the magistrate had a substantial basis for concluding that probable cause

existed.’”79 “[I]f a substantial basis exists to support the magistrate’s probable cause

finding, [this Court] must uphold that finding even if a different magistrate judge

might have found the affidavit insufficient to support a warrant.”80 Although this

Court must “not merely rubber stamp a magistrate’s conclusions, [the Court] must

heed the Supreme Court’s direction that ‘doubtful or marginal cases in this area

should be largely determined by the preference to be accorded to warrants.’”81

“A magistrate may find probable cause when, viewing the totality of the

circumstances, ‘there is a fair probability that contraband or evidence of a crime will

be found in a particular place.’”82 The United States Court of Appeals for the Third

78
United States v. Golson, 743 F.3d 44, 53 (3d Cir. 2014) (citing Illinois v. Gates, 462 U.S. 213,
236 (1983)).
79
United States v. Miknevich, 638 F.3d 178, 182 (3d Cir. 2011) (quoting Gates, 462 U.S. at 238
(ellipsis omitted)).
80
Id. (internal quotation marks omitted).
81
United States v. Stearn, 597 F.3d 540, 554 (3d Cir. 2010) (quoting Gates, 462 U.S. at 237 n.10
(internal citation omitted)).
82
Miknevich, 638 F.3d at 182 (quoting Gates, 462 U.S. at 238).

16
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 17 of 27

Circuit has “held that probable cause is a fluid concept that turns on the assessment

of probabilities in particular factual contexts not readily, or even usefully, reduced

to a neat set of legal rules.”83 “The supporting affidavit to a search warrant is to be

read in its entirety and in a common sense, nontechnical manner.”84

C. Analysis

Perkins advances six arguments that the evidence obtained pursuant to the

warrant should be suppressed: 1) the warrant was not supported by probable cause;

2) the evidence underlying the warrant was stale; 3) the warrant was overbroad; 4)

the warrant was insufficiently particularized; 5) the warrant did not establish a nexus

between the alleged crime and the property to be searched; and 6) the warrant

violated his Sixth Amendment right to counsel.85 The Court addresses each argument

in turn.

1. Probable Cause

Perkins argues that the warrant fails to establish probable cause that both a

crime was committed,86 and that evidence of that crime would be found in the

Perkins’ email accounts.87 As to the former, the Court notes that “[t]he grand jury’s

return of the indictment suffices to demonstrate probable cause that the[] offenses

83
Id. (internal quotation marks omitted).
84
Id.
85
See generally MTS Br.
86
Id. at 7-8.
87
Id. at 10.

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were committed.”88 As to the latter, the affidavit stated that 1) Perkins used the email

account to supply information to Northwest as part of his PPP loan application; 2)

Perkins emailed his accountants and his wife regarding the PPP loan and the vacation

home purchase; and 3) Perkins and his wife communicated via email with real estate,

mortgage, and title companies regarding the home purchase.89 This is more than

sufficient to show probable cause that evidence of the alleged misappropriation of

PPP loan proceeds would be found in the Perkins’ email accounts.90

2. Staleness

Perkins argues that the information in the affidavit purporting to establish

probable cause was stale because “[t]he most recent information specifically tied to

the Google account was dated June 15, 2021, more than one year prior to the issuance

of the search warrant.”91 Though “[i]t is true that the ‘age of the information

supporting a warrant application is a factor in determining probable cause,’”92 “age

alone does not determine staleness.”93 “Rather, we must also examine the nature of

the crime and the type of evidence.”94 “Digital files, particularly those stored with

88
U.S. v. Atkins, 2015 WL 4920831, at *4 (W.D. Pa. Aug. 18, 2015) (citing United States v.
Suppa, 799 F.2d 115, 119 (3d Cir. 1986)).
89
Aff. ¶¶ 10-13, 16.
90
See Orie v. Zappala, 2016 WL 1069097, at *13 (W.D. Pa. Mar. 17, 2016), rev’d on other
grounds 940 F.3d 845 (3d Cir. 2019) (probable cause where email account had been identified
in communications regarding alleged illegal activity).
91
MTS Br. 13.
92
U.S. v. Urban, 404 F.3d 754, 774 (3d Cir. 2005) (quoting United States v. Zimmerman, 277
F.3d 426, 434 (3d Cir. 2002)).
93
Id. (quoting United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993)).
94
Id. (quoting Harvey, 2 F.3d at 1322).

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an email service provider, are qualitatively different” because they “remain [the

email provider’s] servers indefinitely unless the subscriber had deleted them or the

subscriber’s mailbox had exceeded its limits.”95 In particular, “[b]anking and other

records relating to the operation of a business are generally maintained for longer

than other sorts of records.”96 The nature of email and the records contained in those

emails supports a finding of probable cause that the relevant records would still be

found in the Perkins’ emails even thirteen months later.

3. Overbreadth, Particularity, and Nexus

The Court finds that the warrant is, with one possible exception—the seizure

of information described in Attachment B-I(d)—not overbroad, insufficiently

particular, or without a nexus to the alleged crime. For ease of discussion, the Court

will address the parties’ arguments to the warrant globally, then highlight a potential

area of concern.

a. Global Considerations

Perkins argues that the warrant, seeking “the contents of all emails associated

with the accounts from January 1, 2020 to May 15, 2021” including “all records

regarding the identification of the accounts,” and all other information stored on the

95
United States v. Khateeb, 2015 WL 6438755, at *4 (M.D. Fla. Oct. 21, 2015).
96
United States v. Addaquay, 2021 WL 1899355, at *3 (N.D. Ga. Feb. 18, 2021) (citing United
States v. Yusuf, 461 F.3d 374, 392 (3d Cir. 2006)); accord United States v. Wheat, 2022 WL
16851663, at *11 (N.D. Ga. Nov. 10, 2022).

19
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accounts, is overbroad97 and fails to state the place to be searched and information

to be seized with sufficient particularity.98

“As the Third Circuit has explained, ‘there is a legal distinction between a

general warrant,’ which is invalid because it lacks particularity, ‘and an overly broad

warrant which describes in specific terms the items to be seized, ‘but authorizes the

seizure of items to which there is no probable cause.’”99 “[A] magistrate may infer

probable cause to search [a particular place] so long as the affidavit establishes a

nexus between [that place] and the crime under investigation.”100 Federal Rule of

Criminal Procedure 41(e)(2)(B) sets out a two-step approach to search warrants for

electronic evidence: 1) “the internet service provider produces all potentially

responsive data” then 2) “an independent technician segregates and reviews that data

to ensure warrant compliance.”101

Perkins first takes issue with Attachment B-I’s authorization of the seizure

from Google of the entirety of the information contained in the Target Account for

the period between January 1, 2020 and May 15, 2021.102 The date range is plainly

reasonable and the seizure of the entirety of the information contained in the Target

97
MTS Br. 14-15.
98
Id. at 15-19.
99
U.S. v. Christie, 570 F. Supp. 2d 657, 683 (D.N.J. 2008) (quoting Yusuf, 461 F.3d at 393 n.19).
100
Stearn, 597 F.3d at 560.
101
United States v. Harder, 2016 WL 7647635, at *5 (E.D. Pa. 2016) (collecting cases).
102
MTS Br. 14, 17-8.

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Account is the first step in the process called for by Rule 41, which has been

repeatedly ratified by the courts.103

Perkins also takes issue with Attachment B-II’s description of the information

to be seized as “all information described in Section I that constitutes evidence and

instrumentalities” of the alleged crime under investigation.104 Search warrants which

limit their scope to “evidence of specific federal crimes” are sufficiently particular105

and not impermissibly overbroad.106 Further, the affidavit describes the alleged

scheme.107 Insofar as Perkins objects that the warrant is invalid because Attachment

B-II “provides absolutely no criteria to guide the searching officers in distinguishing

between items which may provide evidence of the purported crimes and those which

do not,” that argument is unavailing. Attachment B-II is an attachment to the

affidavit and not to be read in isolation.108 The affidavit’s description of the alleged

scheme is more than sufficient to “guide the searching officers.”

103
Matter of Search of Info. Associated with [redacted]@mac.com that is Stored at Premises
Controlled by Apple, Inc., 13 F. Supp. 3d 157, 165 (D.D.C. 2014) (collecting cases); accord
United States v. Loera, 182 F. Supp. 1173, 1237 (D.N.M. 2016); Harder, 2016 WL 7647635,
at *5; United States v. Karkalas, 2016 WL 2710879, at *4 (D. Minn. Feb. 1, 2016); U.S. v.
Lee, 2015 WL 5667102, at *10 (N.D. Ga. Sept. 25, 2015).
104
MTS Br. 18; see also Aff. Attach. B-II.
105
U.S. v. Christie, 717 F.3d 1156, 1165 (10th Cir. 2013) (quoting United States v. Riccardi, 405
F.3d 852, 862 (10th Cir. 2005)).
106
See Yusuf, 461 F.3d at 395 (observing “that a search warrant seeking ‘documents, records, and
personal effects’ of the defendants in connection with an investigation into violations of [a
specific statute is] not impermissibly overbroad”) (quoting United States v. Kepner, 843 F.2d
755, 757 (3d Cir. 1988)).
107
See Aff. ¶¶ 9-22.
108
See Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco, and Firearms, 452
F.3d 433, 440 (6th Cir. 2006) (“[A]ll of the courts of appeals (save the Federal Circuit) have
permitted warrants to cross-reference supporting affidavits and to satisfy the particularity

21
Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 22 of 27

Perkins’ argument that the affidavit does not establish a nexus between the

alleged crimes and the Target Account is similarly flawed. As Perkins himself notes,

the affidavit discusses “emails between Mr. Perkins and his accountant,”109 as well

as occasions where Perkins used the Target Account to discuss the alleged scheme

and provide information to lenders and other entities in connection with his PPP loan

and home purchase.110 The affidavit need not “show Mr. Perkins’ email account was

used to commit a federal crime.”111 It must simply show that “there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.”112 “[D]irect evidence linking the place to be searched with criminal activity

is not required to establish probable cause to search.”113 The affidavit includes

information sufficient for a magistrate to infer therefrom that evidence of the alleged

scheme would be within the information contained in the Target Account, such as

communications regarding the ability to use the PPP funds for the home purchase.114

requirement through an incorporated and attached document—at least when it comes to the
validity of the warrant at the time of issuance.”) (collecting cases).
109
MTS Br. 20.
110
Aff. ¶
111
Cf. MTS Br. 20.
112
Stearn, 597 F.3d at 560 (quoting Gates, 462 U.S. at 238) (emphasis added).
113
United States v. Bowers, 548 F. Supp. 3d 504, 509 (W.D. Pa. 2021) (citing United States v.
Burton, F.3d 91, 103 (3d Cir. 2002); United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001);
United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993)).
114
See id. at 511 (finding that affidavit set out sufficient information to establish fair probability
email accounts would contain communications with like-minded individuals or co-
conspirators, evolution of defendant’s animus, and ability to acquire weaponry in case of mass
shooting at a synagogue).

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b. Attachment B-I(d)

In its opposition, the Government suggests that “the search warrant authorized

the disclosure, search, and seizure of a finite set of information maintained by

Google as it related to the Target Emails between January 1, 2020 and May 15,

2021.”115 However, as Perkins points out, the warrant is broader than that. “It also

includes ‘all records or other information regarding the identification of the

accounts’ and ‘all records or other information stored by an individual using the

accounts, including address books, contact and buddy lists, calendar data, pictures

and files . . . .’”116

As to records and information regarding the identification of the accounts, the

Court finds that the affidavit sets out sufficient probable cause to seize this

information unlimited by a temporal scope. In the affidavit, Burnside asserts that

“email providers generally ask their subscribers to provide certain personal

identifying information when registering for an email account.”117 Limiting

production of such information to the time of the alleged crime, often well after the

registration of the account,118 could result in the misidentification of who was using

the account at the relevant time.

115
MTS Opp. 24.
116
MTS Br. at 14-15; see also Aff. Attach. B-I(c-d).
117
Aff. ¶ 23.
118
See id. ¶ 19 (noting that Perkins had been using the account since at least 2016).

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Case 4:22-cr-00246-MWB Document 38 Filed 11/07/23 Page 24 of 27

However, the seizure of information such as “address books, contact and

buddy lists, calendar data, pictures, and files” without any limiting temporal scope

is overbroad. There is no principled basis for limiting the seizure of emails from

January 1, 2020 to May 15, 2021 without similarly limiting the seizure of

information described in Section B-I(d), which may include information attached to

emails outside of that timeframe.119

However, the Court cannot determine on the record before it that the

Government has actually seized any information under Section B-I(d) that falls

outside of the temporal scope.120 If it turns out that the Government did seize such

information, Perkins may ask the Court to revisit the issue at that time.121

4. Privilege

Perkins argues that the evidence seized from the Target Account should be

suppressed because the warrant was issued after his Sixth Amendment right to

counsel had attached.122 As Perkins notes, he received a target letter on May 13,

119
Cf. United States v. Rosario, 2022 WL 827806, at *6 (M.D. Pa. Mar. 18, 2022) (denying
motion to suppress where warrant for electronic data had “a limited temporal scope” but also
observing that “a warrant is not required to have a specific time frame listed to be sufficiently
particularized”).
120
See U.S. v. Wright, 777 F.3d 635, 640 (3d Cir. 2015) (observing that courts should consider
“what the Government gained from the violation” when evaluating a motion to suppress); id.
at 641-42 (suppression not warranted where officers limited search despite overbroad warrant).
121
To be sure, to the extent that suppression is warranted, it would only be of evidence seized
under Section B-I(d) outside of January 1, 2020 to May 15, 2021. See United States v. Ninety-
Two Thousand Four Hundred Twenty-Two Dollars & Fifty-Seven Cents ($92,422.57), 307
F.3d 137, 151 (3d Cir. 2002) (observing that the remedy for an overly broad warrant is “to
excise the [terms] for which there was no probable cause”).
122
MTS Br. 23.

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2021, was indicted on June 28, 2022, and the warrant was issued on July 12, 2022.123

The warrant sought emails from January 1, 2020 to May 15, 2021.124 “The

‘right to counsel granted by the Sixth and Fourteenth Amendments means at least

that a person is entitled to the help of a lawyer at or after the time that judicial

proceedings have been initiated against him whether by way of formal charge,

preliminary hearing, indictment, information, or arraignment.’”125 A “target letter

does not mark the initiation of formal charges.”126 Perkins does not explain, nor is it

apparent to the Court how a warrant for information within the Target Account for

a time period that ended over a year prior to his indictment violated his Sixth

Amendment right to counsel.127

123
Id.
124
Aff. Attach. B-1(a).
125
United States v. Lewis, 322 F. Supp. 3d 579, 585 (M.D. Pa. 2018) (quoting Brewer v. Williams,
430 U.S. 387, 398 (1977)).
126
U.S. v. Mshihiri, 2014 WL 348571, at *9 n.3 (D. Minn. Jan. 31, 2014) (citing United States v.
Ingle, 157 F.3d 1147, 1151 (8th Cir. 1998)). Perkins does not argue that the existence of an
attorney-client privilege at any point prior to his indictment creates a Sixth Amendment right
to counsel, which is just as well because that argument has been rejected by the Supreme Court.
Id. (citing Moran v. Burbine, 475 U.S. 412, 430 (1986)). See also United States v. Scarfo, 41
F.4th 136, 173 (3d Cir. 2022) (“Government intrusions into pre-indictment attorney-client
relationships do not implicate the Sixth Amendment.”) (quoting United States v. Kennedy, 225
F.3d 1187, 1194 (10th Cir. 2000)).
127
The Court notes that the issue discussed above regarding Section B-I(d) of the warrant affidavit
could have resulted in the seizure of information that would have been protected by Perkins’
Sixth Amendment right to counsel. However, as above, there is insufficient record evidence
for the Court to determine whether Perkins’ Sixth Amendment right was in fact violated, or, if
so, what the appropriate remedy would be. To the extent that Perkins becomes aware of such
a violation, he may raise the issue at that time.

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“The use of filter teams is an acceptable method of protecting constitutional

privileges.”128 Though, Perkins cites several decisions in which courts have found

Government filter teams offered insufficient protections, each turned on issues not

present here. The filter team protocol did not assign judicial functions—the

resolution of privilege disputes—to the filter team.129 This is not a search of a law

office.130 Perkins has not argued that he is unable to undertake his own privilege

review of the documents.131 Nor had the Sixth Amendment right to counsel

attached.132 Perkins highlights that the use of filter teams can create “risks to

privilege [because] the government’s fox is in left in charge of [Perkins’]

henhouse,”133 but overstates the extent to which those risks are implicated here.134

128
Scarfo, 41 F.4th at 173.
129
Compare In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 177 (4th Cir. 2019)
(“[W]hen a dispute arises as to whether a lawyer’s communications or a lawyer’s documents
are protected by the attorney-client privilege or work-product doctrine, the resolution of that
dispute is a judicial function.”); U.S. v. Neill, 952 F. Supp. 834, 841 (D.D.C. 1997) (“Where
the government chooses to take matters into its own hands rather than using more traditional
alternatives of submitting disputed documents under seal for in camera review by a neutral
and detached magistrate or by court-appointed special masters, it bears the burden to rebut the
presumption that tainted material was provided to the prosecution team.”) (internal citations
omitted) with Filter Team Protocol, Doc. 33-3 ¶ 11 (providing that privilege disputes will be
determined by a court).
130
June 13 Warrant, 942 F.3d 159.
131
Cf. In re Grand Jury Subpoenas, 454 F. 3d 511, 515, 522 (6th Cir. 2006) (noting that third
party intervenor, asserting privilege over documents turned over by target of investigation, did
not have access to the documents, and was at mercy of filter team’s privilege determinations).
132
Cf. United States v. Castro, 2020 WL 241112, at *2 (E.D. Mich. Jan. 16, 2020) (rejecting use
of taint team to “to protect attorney-client information with regard to each [of] defendant’s
prison calls”).
133
Cf. MTS Reply 10 (quoting In re Grand Jury Subpoenas, 454 F.3d at 523-24).
134
This finding is without prejudice to Perkins’ right to raise privilege arguments (either attorney-
client or spousal) that may not be covered by his Sixth Amendment right to counsel. Those
issues, to the extent they arise, are not properly before the Court on the present motion. The

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IV. CONCLUSION

For the foregoing reasons, Defendant Nicholas Perkins’ Motion to Dismiss

the Indictment is granted in part and denied in part and Perkins’ Motion to Suppress

Evidence Seized Pursuant to the Search Warrant for the Email Account Records

from Google is denied.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

Court notes that the Filter Team Protocol provides that it will furnish Perkins with “a log of all
presumptively and potentially privileged documents.” Protocol ¶ 11(g).

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