MEMORANDUM OPINION AND ORDER
AMY
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
Defendant
Paul J. Manafort, Jr. has moved to suppress the evidence
seized pursuant to a search warrant executed at his
Alexandria, Virginia residence on July 26, 2017. Def.'s
Mot. to Suppress [Dkt. # 264] ("Def.'s Mot.")
at 1-2. He argues that the warrant was unconstitutionally
overbroad. Id. at 1-4. He also complains that the
affidavit submitted in support of the warrant application did
not set forth probable cause to support the seizure of
electronic devices; that the agents who executed the search
exceeded its permissible scope; and that the government has
improperly retained some of the items it seized. Id.
at 1-2, 4-10.[1] The government opposed the motion,
Gov't Mem. in Opp. to Def.'s Mot. (Public) [Dkt. #
284], (Sealed) [Dkt. # 286] ("Gov't Opp."), the
motion is fully briefed, see Def.'s Reply to the
Gov't Opp. [Dkt. # 289] ("Def.'s Reply"),
and the Court heard argument on May 23, 2018. As explained in
more detail below, the Court will deny the motion. Given the
nature of the investigation, the warrant was not too broad in
scope, and the affidavit set forth sufficient grounds to
believe that there would be relevant material on the premises
stored on electronic media. And, even if the Court could find
fault with the warrant application if it were reviewing it in
the first instance, the agents relied in good faith on a
warrant signed by a United States Magistrate Judge. For all
of these reasons, the evidence obtained during the execution
of the warrant will not be suppressed.
FACTUAL
BACKGROUND
On July
25, 2017, federal agents applied for a warrant in the United
States District Court for the Eastern District of Virginia,
seeking authorization to search Manafort's condominium in
Alexandria.[2] Search Warrant, Notice Att. at 1-16
("Warrant"). The application sought authorization
to search for and seize materials relating to alleged
violations often criminal statutes, Application for a Search
Warrant, Notice Att. at 17-66 ("Appl."), and it was
supported by an affidavit prepared by an FBI agent, who
stated there was "probable cause to believe that the
[Alexandria residence] contain[ed] evidence, fruits, and
instrumentalities" of those offenses. Aff. in Supp. of
Appl., Notice Att. at 22-62 ("Aff") ¶ 3.
The
agent averred that between 2006 and 2014, Manafort and his
associate, Richard W. Gates, III, worked as political
consultants for the Ukrainian Party of Regions, and Viktor
Yanukovych, who was the head of the Party and the President
of Ukraine from 2010 to 2014. Aff. ¶ 9. According to the
affidavit, Manafort and Gates established a number of bank
accounts in Cyprus. Aff. ¶¶ 11-12. Those accounts
received payments to Manafort or Manafort-related entities
for their work on behalf of the Ukrainians, and they were
used to pay vendors directly for goods and services purchased
by Manafort. Aff. ¶¶ 11-14. The affiant also states
that Manafort performed "significant work" for
Rinat Akhmetov, a financial supporter of President
Yanukovych, and Oleg Deripaska, a Russian oligarch. Aff.
¶ 9. He adds that a company jointly owned by Manafort
and his wife received a $10 million loan from a "Russian
lender," identified in documents obtained by the
government as "Derapaska." Aff. ¶ 16.
The
affidavit sets forth grounds to believe that Manafort, Gates,
and their entities, including Davis Manafort, failed to
register as agents of a foreign principal as required by the
Foreign Agent Registration Act ("FARA"), 22 U.S.C.
§§611-21, until June of 2017. Aff. ¶¶ 19,
9. The agent also stated that the foreign source income
reported on Manafort's tax returns did not appear to
include the distributions to or from the Cypriot bank
accounts on his behalf, Aff. ¶¶ 20-21, nor did
Manafort file the reports required by the Bank Secrecy Act,
31 U.S.C. §§ 5314 and 5322(a), to disclose his
interest in those foreign accounts. Aff. ¶ 18. The
affidavit also detailed alleged misrepresentations to secure
bank loans and loan extensions. Aff. ¶¶ 24-46.
XXXXX
The
agent then listed a number of facts and circumstances
underlying his belief that defendant's Alexandria
residence was likely to contain evidence of these crimes.
First of all, an individual who works with Manafort had told
the agent that Manafort used a home office at that address to
conduct his business and that he maintained records there.
Aff. ¶¶ 64-66. Also, defendant had communicated
with the Department of Justice about filings to be made under
FAR A, and at least one communication from 2016 was addressed
to defendant's Alexandria residence. Aff. ¶ 68. The
government was in possession of bank and financial records
for defendant, XXXXX and "Davis
Manafort Part." addressed to his residence in
Alexandria, and it had records showing that Manafort's
prior residence had been listed as the address of record for
a number of accounts. Aff. ¶¶ 70-71. Also,
investigators had obtained bank records and invoices sent to
defendant's home in Alexandria reflecting the purchase of
clothing, jewelry, rugs, and other goods using funds wired
from several of the Cypriot accounts listed in the affidavit.
Aff. ¶¶ 72-73. They had evidence of wire transfers
from the Cypriot accounts to a rug store in Alexandria
totaling more than $360, 000, and a store owner reported that
it was defendant who purchased the rugs. Aff. ¶ 73. This
led the agent to believe that rugs purchased using funds from
the Cypriot accounts would also be found at the residence.
Aff. ¶ 73.
With
regard to electronic files, the employee source told the
agent that Manafort: used a Mac desktop computer in his home
office; "frequently stored" historical and current
records on "external hard drives, thumb drives, and
magnetic disks;" "made widespread use of electronic
media in the course of his business activity;" and had
kept a "drawer full of phones and electronic
equipment" at a prior residence. Aff. ¶ 76.
Based
on the application and supporting affidavit, U.S. Magistrate
Judge Theresa C. Buchanan approved the issuance of a search
warrant on July 25, 2017. Warrant, Notice Att. at 1. The
warrant authorized law enforcement agents to search
defendant's Alexandria residence, including "any
locked drawers, containers, cabinets, safes, computers,
electronic devices, and storage media (such as hard disks or
other media that can store data) found therein."
Warrant. Notice Att. at 12. Among other items, it authorized
agents to seize:
1. Records relating to violations of 31 U.S.C. §§
5314, 5322(a) (failure to file a report of foreign bank and
financial accounts); 22 U.S.C. § 611, el. seq.
(foreign agents registration act); 26 U.S.C. § 7206(1)
(filing a false tax return); 18 U.S.C. § 1014 (fraud in
connection with the extension of credit): 18 U.S.C.
§§ 1341, 1343, and 1349 (mail fraud, wire fraud,
and conspiracy to commit these offenses); 18 U.S.C.
§§ 1956 and 1957 (money laundering and money
laundering conspiracy); 52 U.S.C. §§ 30121
(a)(1)(A) and (a)(2) (foreign national contributions); and 18
U.S.C. §§ 371 and 2 (conspiracy, aiding and
abetting, and attempt to commit such offenses) . . .
occurring on or after January 1, 2006, including but not
limited to:
a. Any and all financial records for Paul Manafort,
Jr., XXXXX Richard Gates, or
companies associated with [them] . ...;
* * *
i. Evidence indicating Manafort's state of mind as it
relates to the crimes under investigation; . . . . [and]
* * *
2. Computers or storage media used as a means to commit the
Subject Offenses.
Warrant, Notice Att. at 13-14.
On July
26, 2017, FBI agents executed the warrant and prepared an
inventory of records that they either seized or imaged on
site. Warrant Return, Notice Att. at 2-11 (listing financial
documents including bank statements, deposit slips,
transaction registers; business and personal records
including documents concerning real estate and taxes; and an
iMac desktop computer, a MacBook Air laptop computer, thumb
drives, external hard drives, CDs, memory accessories to
cameras and printers, a "G drive," DVD disks, as
well as an iPod, two iPads, and an iPhone). The agents imaged
many of the electronic devices, including the two computers,
on site and left them there. Gov't Opp. at 6; Warrant
Return, Notice Att. at 7-9.
As part
of the seizure, agents identified ten sets of documents as
potentially covered by the attorney client privilege. Warrant
Return, Notice Att. at 10-11. This material was separated and
made available to defense counsel. Gov't Opp. at 6. The
government utilized attorneys who were not members of the
trial team to screen electronic devices that had been seized
for privileged materials and used automated processes to
screen for irrelevant materials. Gov't Opp. at 6. The
government described the procedure it was following for these
purposes in correspondence with defense counsel. Gov't
Opp. at 19-20; Letter of Nov. 17, 2017, Ex. A to Gov't
Opp. [Dkt. # 284-1 ] ("Nov. 17 Letter") at 3, 11;
Letter of Dec. 1, 2017, Ex. B to Gov't Opp. [Dkt. #
284-2] at 3.
LEGAL
STANDARD
The
Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const, amend. IV. The Supreme Court has explained that a
search warrant is supported by probable cause if there is a
"fair probability that. . . evidence of a crime will be
found in a particular place." Illinois v.
Gates,462 U.S. 213, 238 (1983). Agents executing a
search warrant must do so "in a reasonable manner,
appropriately limited to the scope and intensity called for
by the warrant." United Slates v. Heldt, 668
F.2d 1238, 1256 (D.C. Cir. 1981). The
proponent of a motion to suppress bears the burden of
establishing that his Fourth ...