Case 5:11-cv SJO -OP Document 21 Filed 11/18/11 Page 1 of 25 Page ID #:621

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1 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 0 JEFFREY BURUM, Movant, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) NO. ED CV -0 SJO (OPx) ORDER DENYING MOVANT'S MOTION FOR RETURN OF PROPERTY [Docket No. ] 0 This matter is before the Court on Movant Jeffrey Burum's ("Movant" or "Burum") Motion for Return of Property Pursuant to Federal Rule of Criminal Procedure (g) ("Motion"), filed October, 0. The United States of America ("Government") filed an Opposition ("Opposition") on October 0, 0, to which Movant replied ("Reply"). The Court heard argument at a hearing on November 0, 0, at which both sides were represented by counsel. For the following reasons, the Court declines to exercise jurisdiction over the Motion, and therefore DENIES Movant's Motion. I. FACTUAL AND PROCEDURAL BACKGROUND On September, 0, Magistrate Judge Oswald Parada issued search warrants for nine locations in connection with a federal criminal investigation. One of the warrants was for the

2 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0 business offices of Diversified Pacific Development Group ("Diversified"), located in Rancho Cucamonga, California. Dozens of businesses operate out of Diversified, although FBI Special Agent Jonathan Zeitlin has stated that "[a]ll of the businesses identified as operating at this location appeared to be controlled by or affiliated with" Burum. (Supp. Decl. of Stephen Larson in Supp. of Mot., ECF No. ("Supp. Larson Decl.") Ex. (// Zeitlin Decl. ).) Movant agrees. (Mot. ("[Mr. Burum] has direct or indirect interests in all of the business entities whose records were seized at Diversified.").) Another warrant was for Burum's residence in Rancho Cucamonga, California. On September, 0, federal agents executed the warrants, searching the subject premises and seizing certain items. Among other items, the agents seized several financial documents and electronic devices (computers, laptops, external hard drives, servers, etc.), which the agents believed contained data subject to seizure under the warrants. On September 0, 0, Movant filed an ex parte application with Judge Parada seeking immediate return of certain electronic devices, or in the alternative, requesting that the electronic devices be copied and imaged immediately and delivered to Movant on a shortened timetable. This ex parte application did not seek the return of all the seized material, but rather sought only the return of four electronic devices that Movant claimed were essential to the day-to-day operations of the businesses at Diversified. The Government filed an opposition to the ex parte application on September, 0, and Judge Parada held two telephonic hearings on September and, 0. The Government indicated it was willing to work around the clock to image the devices that were the subject of the ex parte application, and would have the devices imaged promptly, at which point either the original or the imaged copy could be returned to Movant. Judge Parada denied in part and granted in part the ex parte application. In a September, 0 Order, Judge Parada permitted the Government to retain the seized materials, but set a date by which each of the four electronic devices had to be imaged and returned to Movant, the latest date being one week from the date of the Order. The Government has already imaged and returned the electronic devices that were the subject of Judge Parada's Order. (Opp'n n., ECF No..)

3 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: On October, 0, Movant filed the instant Motion, demanding the return of all of the items the Government seized from Diversified and Movant's home. Pursuant to Federal Rule of Criminal Procedure (g), the Motion seeks the return of both the copies and the originals of the devices and documents. To date, no federal charges have been filed against anyone in connection with this investigation. (Opp'n.) II. DISCUSSION A. Legal Standard. Jurisdiction 0 0 Rule (g) provides: A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return.... If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings. Fed. R. Crim. P. (g). This rule provides authority for a district court to order the government to return seized property even when there are no criminal proceedings pending. Ramsden v. United States, F.d, (th Cir. ). If no criminal proceedings are pending, however, the motion is treated as a civil equitable proceeding, and the district court must entertain "caution and restraint" before exercising jurisdiction. Id.; United States v. Comprehensive Drug Testing, Inc., F.d, (th Cir. 00) ("[W]hen the motion is made by a party against whom no criminal charges have been brought, such a motion is in fact a petition that the district court invoke its civil equitable jurisdiction."). The Ninth Circuit has listed four factors for a district court to consider when deciding whether to exercise its equitable jurisdiction over a motion for return of property under Rule (g) where no criminal proceedings are pending: ) whether the government displayed a callous disregard for the constitutional rights of the movant;

4 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 ) whether the movant has an individual interest in and need for the property he wants returned; ) whether the movant would be irreparably injured by denying return of the property; and ) whether the movant has an adequate remedy at law for the redress of his grievance. Ramsden, F.d at. If the district court weighs these factors and determines that exercising equitable jurisdiction is appropriate, the district court will then reach the merits of whether to order a return of the property pursuant to Rule (g).. Rule (g) Rule (g) does not provide a remedy any time an individual's Fourth Amendment right to be free from unreasonable seizures is violated. Rather, Rule (g) permits a court to order the 0 return of seized property: () when the governmental interest in possession of the property is outweighed by the legitimate interests of the individuals aggrieved by the seizure, even if that seizure was lawful; or () when the government engaged in intentional wrongdoing in seizing the material. Comprehensive Drug Testing, F.d at -. Accordingly, the test for whether relief is proper pursuant to Rule (g) is not merely whether the warrant and subsequent search and seizure were constitutional. The Advisory Committee Notes that accompanied the amendments to Rule explain that mandated return of property may be required even where the seizure was constitutional, and that return of property might not be required even if the seizure did run afoul of constitutional mandates. Fed. R. Crim. P. advisory committee's note ( amendments). Accordingly, proving that a warrant, search, or seizure was unconstitutional is neither necessary nor sufficient to prevail on a Rule (g) motion. A person who believes he has been subjected to an unconstitutional seizure may: () seek to have the evidence obtained through the unreasonable seizure suppressed if the government tries to use it against him; or () file an action under U.S.C. for deprivation of his rights.

5 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0 The Committee noted that the amendment was made in part because: "Prior to the amendment, Rule (e) [now Rule (g)] did not explicitly recognize the right of a property owner to obtain return of lawfully seized property even though the government might be able to protect its legitimate law enforcement interests in the property despite its return - e.g., by copying documents or by conditioning the return on government access to the property at a future time." Id. Thus, even if the seizure was entirely lawful, Rule (g) may require the return of property if an aggrieved party's interests in the property (e.g., a privacy interest, a property interest) outweighs the government's interest in the property. The Advisory Committee Note also explains that there are many instances where the government is permitted to use evidence seized in violation of the Fourth Amendment. For instance: "evidence seized in violation of the fourth amendment, but in good faith pursuant to a warrant, may be used even against a person aggrieved by the constitutional violation." Id. (citing United States v. Leon, U.S. ()). The Committee also noted that the Supreme Court has held that "illegally seized evidence may be admissible against persons who are not personally aggrieved by an illegal search or seizure." Id. (citing Rakas v. Illinois, U.S. ()). Furthermore, "Property that is inadmissible for one purpose (e.g., as part of the government's case-in-chief) may be admissible for another purpose (e.g., impeachment)." Id. (citing United States v. Havens, U.S. 0 (0)). After enumerating many instances in which the government is permitted to use evidence even if that evidence was obtained in contravention of the constitutional prohibition on unreasonable searches and seizures, the Committee stated that Rule (g) is not intended "to deny the United States the use of evidence permitted by the fourth amendment and federal statutes, even if the evidence might have been unlawfully seized." Id. (citing United States v. Calandra, U.S., n. () ("Rule (e) does not constitute a statutory expansion of the exclusionary rule")). Accordingly, simply demonstrating that the government executed a seizure of property in violation of the Fourth Amendment is not enough, by itself, to entitle the aggrieved party to return of the seized property under Rule (g). The Ninth Circuit has confirmed that return of property under Rule (g) is not warranted simply upon a showing that the seizure was unconstitutional.

6 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: The return of seized property under Rule (g) and the exclusionary rule serve fundamentally different purposes. Suppression helps ensure that law 0 0 enforcement personnel adhere to constitutional norms by denying them, and the government they serve, the benefit of property that is unlawfully seized. Rule (g) is concerned with those whose property or privacy interests are impaired by the seizure. Suppression applies only to criminal defendants, whereas the class of those aggrieved can be [] much broader. Comprehensive Drug Testing, F.d at (emphases added). The Court entertaining a Rule (g) motion for return of property will thus weigh the aggrieved party's interests in the property against the governmental interest in the retention of the property, taking into consideration compromise measures such as requiring the government to make copies of the seized material and return the originals. "In some circumstances, however, equitable considerations might justify an order requiring the government to return or destroy all copies of records that it has seized." Fed. R. Crim. P. advisory committee's note ( amendments). Furthermore, "When the district court determines that the government has obtained the evidence through intentional wrongdoing - rather than through a technical or good faith mistake - it should order return of the property without the need for balancing that is applicable in the more ordinary case." Comprehensive Drug Testing, F.d at. With this framework in mind, the Court will turn to the instant case to determine whether invoking equitable civil jurisdiction is appropriate and, if so, whether mandated return of property under Rule (g) is warranted. B. Equitable Jurisdiction In the instant case, Movant argues that each of the four Ramsden factors weighs in favor of exercising equitable jurisdiction. (Mot..) Because the vast majority of the briefing focuses on the first Ramsden factor - whether the Government displayed a callous disregard for the constitutional rights of the movant - the Court will first quickly address the remaining factors, before turning to the factor that is most hotly disputed. ///

7 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0. Movant's Interest in and Need for the Property The second Ramsden factor is whether the movant has an individual interest in and need for the property he wants returned. Ramsden, F.d at. Movant claims that he has a profound interest in and need for the property, as it is essential to run the businesses that operate out of Diversified. (Mot. -.) The Court agrees that so long as the Government deprives Movant of access to the seized material, Movant has a strong interest in and need for the seized property. The seized material is necessary to run the multiple businesses that operate out of Diversified. (See generally Decl. of Glen Rogers in Supp. of Mot.) The Court is not persuaded by the Government's argument that Movant has not established an ownership interest in all of the companies run out of Diversified. (Opp'n.) The Government has already conceded that all of the businesses run out of Diversified are controlled by or affiliated with Movant. (Supp. Larson Decl. Ex. (// Zeitlin Decl. ).) Therefore, whatever his relationship to the businesses, Movant is closely enough affiliated to be an "aggrieved person" under Rule (g). However, as of the date of this Order, the Government has copied all the materials and returned them to Movant. (Opp'n.) The issue of whether to order the return of the originals of the seized material is now moot, as the Government has already returned that material. The only live controversy is whether to order the return of the copies that the Government made for itself. Even in his Reply, Movant has not expressed any argument for why he has an interest in or need for the duplicate copies. As the originals of the seized materials have been returned, the businesses that operate from Diversified have the material necessary to resume their regular operations. Accordingly, this factor weighs against exercising equitable jurisdiction.. Irreparable Injury The third Ramsden factor is whether the movant would be irreparably injured by denying return of the property. Ramsden, F.d at. Once again, all of the originals have now been returned to Movant. The only issue remaining is whether to order return of the copies made by the Government. Even on Reply, Movant does not put forth any argument for why he would suffer irreparable injury if the copies of his documents and electronic devices are not returned. This factor weighs against exercising equitable jurisdiction.

8 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0. Adequate Remedy at Law The fourth Ramsden factor is whether the movant has an adequate remedy at law for the redress of his grievance. Ramsden, F.d at. Because the Government has not initiated a criminal or civil forfeiture proceeding, Movant does not have a remedy at law to regain possession of the copies of his documents and electronic devices currently in the Government's possession. This factor weighs in favor of exercising equitable jurisdiction.. Government's Callous Disregard for Movant's Constitutional Rights The first Ramsden factor is "whether the Government displayed a callous disregard for the constitutional rights of the movant." Ramsden, F.d at. Movant argues that the Government has engaged in a number of misdeeds that display a callous disregard for his constitutional rights: () the Government executed warrants that were unconstitutionally overbroad and vague; () FBI Special Agent Steve Chris stated that under the terms of the warrant, the Government could "walk in and seize every single computer in the place [Diversified]," a threat the Government followed through on; () the Government executed the warrants without regard to Movant's attorney-client privilege and violated his Sixth Amendment right to counsel; and () the Government submitted a false declaration to Judge Parada claiming that they had not searched the office that Movant's attorney maintained at Diversified, when in fact the Government had searched this office. (Mot..) Through these activities, Movant claims that "the government has exhibited a consistent, pervasive, and callous disregard for Mr. Burum's constitutional rights." (Mot..) After a thorough review of the factual record, the Court does not believe that any of the Government's conduct constitutes callous disregard of Movant's constitutional rights. a. Unconstitutional Overbreadth and Vagueness Movant first claims that the warrants are unconstitutionally vague and overbroad. As an initial matter, the Court notes that a callous disregard for Movant's constitutional rights is a higher threshold than a mere violation of Movant's constitutional rights. While an egregiously vague or overbroad warrant might constitute "callous disregard," if the Government sought in good faith to

9 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0 obtain narrowly-tailored warrants but obtained warrants that do not quite pass constitutional muster, this would not constitute "callous disregard" for Movant's constitutional rights. Movant is correct that general warrants are unconstitutional. Marron v. United States, U.S., (). The Fourth Amendment provides that "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. Thus, the Constitution prohibits "general, exploratory rummaging in a person's belongings." United States v. Webber, F.d, (th Cir. ) (quoting VonderAhe v. Howland, 0 F.d, (th Cir. )). The requirement of particularity mandates that the warrant must "clearly state what is sought." In re Grand Jury Subpoenas Dated Dec. 0,, F.d, (th Cir. ). The Ninth Circuit has enumerated a set of factors for courts to consider when ruling on the constitutionality of a search warrant: ) whether probable cause exists to seize all items of a particular type described in the warrant; ) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not; and ) whether the government was able to describe the items more particularly in light of information available to it at the time the warrant issues. United States v. Spilotro, 00 F.d, (th Cir. ) (citations omitted). Importantly, Movant does not argue that the Government lacked probable cause for the search and seizure. The affidavits that supported the issuance of the warrants remain sealed (Mot. ), and neither Movant nor this Court has viewed their contents. Movant therefore cannot rely on the first Spilotro factor - lack of probable cause - to advance his claim that the warrants were unconstitutional. Spilotro also states: "Warrants which describe generic categories of items are not necessarily invalid if a more precise description of the items subject to seizure is not possible." Id. Accordingly, the third Spilotro factor also cannot advance Movant's argument, as neither Movant nor the Court is currently capable of discerning whether the Government could have described the items to be seized with any greater particularity. Thus, for Movant to convince the Court at this juncture that the warrants were unconstitutionally overbroad and vague (much

10 Case :-cv-0-sjo -OP Document Filed // Page 0 of Page ID #:0 0 0 less that these infirmities constitute "callous disregard"), Movant would have to persuade the Court that there could not exist any supporting affidavit to justify the warrants in this case. Movant therefore contends that regardless of what is contained in the affidavits that supported the warrants, the warrants are facially deficient. (Mot..) The warrants in question permit the seizure of categories of documents. (Decl. of Stephen Larson in Supp. of Mot. ("Larson Decl.") Exs. -.) The categories are described with a decent level of detail. For instance, three of the categories are:. All documents, records, applications, communications, and materials pertaining to the litigation between Colonies Partners, L.P., and the San Bernardino County Flood Control District, in Case No. RCV 0.. Documents, records, applications, communications, and materials pertaining to visits to China or travel to or from China.. For the period January, 00 to January, 00, documents, records, applications, communications, and materials pertaining to the communications with or possible employment of private investigators or private investigation firms. (Larson Decl. Ex..) From the face of the warrants, it is clear that these are not "general warrants" that permit seizure of everything found at the subject premises. Nevertheless, Movant claims the warrants are improper because several of the categories do not refer to suspected criminal activity, several of the categories do not have date limitations, and the warrants did not differentiate between the various businesses at Diversified. Movant also claims the warrants did not provide sufficient guidance for the agents executing the warrant to discern which items were subject to seizure and which were not. (Mot..) This argument does not merit the in-depth review the Court affords Movant's other arguments. Whether the categories of seizable documents are overbroad (i.e., whether they permit seizure of too much material) is a debatable point; but it is clear that the confines of the categories are readily discernable. Contrary to Movant's assertions, a capable government agent would be able, upon review of a document, to discern whether the document falls into one of the warrant's categories. This is not a situation where wide discretion is given to the agent executing the warrant. 0

11 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0 Movant argues that the warrants in this case must be unconstitutional because they lack a preamble stating what crimes the Government suspects were committed, and it is not apparent from the face of the warrants how certain categories of documents relate to any crimes. (Mot. 0-.) Such a preamble is not an absolute requirement of a valid warrant. Particularly where, as here, the warrants enumerate specific categories of documents subject to seizure (as opposed to a general "all books and records" category), the warrant need not list the suspected criminal activity to be constitutional. The cases cited by Movant involve warrants that the courts found to be general warrants, permitting seizure of anything at the subject premises. In disapproving general warrants, courts often point out devices the government could have used to narrow the scope, one such device being to tie the categories of items to be seized more closely to the suspected crime. These decisions do not, however, impose a constitutional requirement that all valid warrants must include a preamble stating what crime was supposedly committed. For instance, in United States v. Kow, F.d (th Cir. ), the warrant provided for the seizure of fourteen categories of documents that were described so generally that, when taken together, they permitted seizure of every document at the subject premises. "The warrant authorized the seizure of virtually every document and computer file at HK Video.... [T]he warrant apparently sought to describe every document on the premises and direct that everything be seized." Id. at. Faced with a true "general warrant," the Ninth Circuit criticized the government for not doing things to narrow the scope of the warrant, such as "fail[ing] to give any indication of the alleged crime to which the seized documents pertained." Id. In United States v. Cardwell, 0 F.d, (th Cir. ), the warrant permitted seizure of all "corporate books and records... which are the fruits and instrumentalities, of violations of U.S.C. 0." In Cardwell, the "only limitation" distinguishing this warrant from a true general warrant was the clause requiring the items to be instrumentalities or evidence of a general tax evasion statute. Id. at (emphasis added). Cardwell stands for the proposition that where a warrant that would otherwise be a general warrant is only limited through reference to a criminal statute, the warrant must also include a reference to "particular criminal episodes." Id.

12 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 Where a warrant describes the items to be seized with a high degree of particularity, however, reference to a particular suspected crime is not mandated. By way of example, suppose the government suspects a murder has been committed and that the murder weapon is a 0-inch butcher's knife with a green handle. The government submits an affidavit establishing probable cause to believe that the murder was committed and that the weapon is being stored at a certain residence. Based on that affidavit, the government obtains a warrant authorizing search of that residence and seizure of a 0-inch butcher's knife with a green handle, but the warrant does not incorporate the affidavit or state what crime the government believes was committed. This warrant, authorizing the seizure of a 0-inch butcher's knife with a green handle, would be sufficiently particular to satisfy constitutional requirements, notwithstanding the lack of anything in the warrant suggesting what crime the government suspects has been committed. The Court engages in this exercise to demonstrate that what the Constitution requires is particularity; it does not require a recitation of what crime is being investigated. It is true that one way of meeting the particularity requirement is to tie the scope of the search closely to the criminal incident. But this is not the only way to meet the particularity requirement. Where the documents to be seized are described with sufficient detail - e.g., "Documents, records, applications, communications, and materials pertaining to visits to China or travel to or from China" - the particularity requirement can be met without reference to a criminal incident. 0 In a related argument, Movant claims that there is nothing illegal about traveling to China or making campaign contributions. (Mot.,.) Movant argues that the warrants, which authorize seizure of documents evidencing trips to China or certain campaign contributions (see Larson Decl. Ex. ), must be overbroad, since they allow for seizure of non-criminal activity. This argument is unpersuasive. It is true that, viewed in isolation, there is nothing improper about traveling to China or making a campaign contribution. There is also nothing illegal about owning a 0-inch butcher's knife with a green handle. Where the items provide evidence of crime, they are subject to seizure, even if the item, in itself, does not constitute a crime. Many crimes can only be proven by piecing together evidence, no single piece of which is proof of the crime. As discussed above, where the items are described with the requisite degree of specificity, the crime suspected need not be explicitly stated to meet the particularity requirement.

13 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 Movant also argues that the warrants must be unconstitutional because they permit seizure of certain categories of documents unbounded by time limitations. (Mot. -.) Once again, providing a date limitation on seizable documents is one way to provide particularity to a warrant. It is not the only way. The validity of a warrant does not turn on whether categories of documents have date restrictions. As explained above, if the documents to be seized are described with particularity, other limiting criteria - such as limiting the category to documents evidencing a particular criminal incident, or providing a date limitation - need not be employed in every instance. The cases Movant cites to support his date-limitation argument are cases where it was shown that the government had sufficient information to limit the warrant to a narrower time period, but opted not to include that date limitation in the warrant. For instance, in Kow, where the warrant permitted seizure of essentially every document found at a business called HK Video, the court invalidated the warrant because "[t]he government did not limit the scope of the seizure to a time frame within which the suspected criminal activity took place, even though [FBI Special Agent] Gordon's affidavit indicates that the alleged criminal activity began relatively late in HK Video's existence." Kow, F.d at. Here, there is nothing to suggest that the Government was capable of limiting the warrants to a narrower date range. Date ranges are not per se requirements for a warrant to be valid. It is true that some of the categories of documents listed in the warrants are broader than others. From the face of the warrant, categories and appear to the Court to be the broadest: 0 Movant additionally argues the warrants are unconstitutional because they do not differentiate between the dozens of different businesses that operate out of Diversified. (Mot..) However, as mentioned above, Special Agent Zeitlin has stated that "[a]ll of the businesses identified as operating at this location appeared to be controlled by or affiliated with" Burum. (Supp. Larson Decl. Ex. (// Zeitlin Decl. ).) Nowhere does Movant claim that the Government improperly searched a business with which Burum had no connection. The Court has no reason to believe that the Government was in a position to know which of the businesses were more likely than others to have evidence of a crime. Indeed, given Burum's affiliation with each business, the Government may have had probable cause for each and every business operating out of Diversified. As the supporting affidavits remain sealed, the Court is not analyzing whether probable cause existed for these warrants, only whether the warrants are facially deficient.

14 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0. For the period January, 00 to the present, documents, records, applications, communications, and materials identifying amounts and sources of income and expenses, including profit and loss statements, tax returns, pay stubs, cash receipts, wage and earning statements, bank statements, ledgers, construction contracts, consulting contracts, loan and mortgage documents, expense receipts, and canceled checks.. For the period January, 00 to the present, records, documents, applications, or materials containing business, non-profit entities, and personal income tax returns, both Federal and state together with all forms, schedules and attachments thereof, to include Federal and State Statements; tax return preparation workpapers, worksheets and/or supporting documentation used in the preparation of tax returns; invoices, receipts or other records relating to tax consulting or preparation fee charged. (Larson Decl. Ex..) Read together, these categories appear to permit the seizure of all financial documents. The breadth of these categories is somewhat mitigated by the date limitations. Movant has produced no evidence suggesting that the Government was capable of narrowing the scope of these requests further, but chose not to do so. "Warrants which describe generic categories of items are not necessarily invalid if a more precise description of the items subject to seizure is not possible." Spilotro, 00 F.d at. The Supreme Court has also noted that permitting broad seizures may be appropriate where the illegal scheme the government is investigating is complex: Petitioner also suggests that the specific list of the documents to be seized constitutes a "general" warrant. We disagree. Under investigation was a complex [] scheme whose existence could be proved only by piecing together many bits of evidence. Like a jigsaw puzzle, the whole "picture" of petitioner's [] scheme [] could be shown only by placing in the proper place the many pieces of evidence that, taken singly, would show comparatively little. The complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated

15 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0 probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect's possession. Andresen v. Maryland, U.S., n.0 (). At this juncture, particularly in light of the fact that the affidavits supporting the warrants remain sealed, the Court cannot say that the warrants are unconstitutional. Evidence uncovered later may support Movant's contention that the warrants in this case fail to pass constitutional muster, and Movant has made clear that he reserves his rights to challenge the warrants again if and when the affidavits are unsealed. (Mot. n..) Although the Court, in the absence of full information, cannot say for sure whether the warrants are constitutional, the Court is confident that the scope of the warrants does not demonstrate "callous disregard" on the part of the Government towards Burum's constitutional rights. Most of the categories of items to be seized are described with a high degree of particularity. Others are described with a moderate degree of particularity, which may or may not be sufficient, depending on whether the Government was capable of narrowing the scope with the information it knew prior to obtaining the warrant. But the warrants are not "general warrants" that permit unchecked rummaging in Movant's belongings, and therefore the alleged overbreadth and vagueness of the warrants does not constitute "callous disregard" for Burum's constitutional rights. b. Seizure of "Every Single Computer" Burum next argues that FBI Special Agent Chris's "threat" - that the Government would "walk in and seize every single computer in the place [Diversified]" - constitutes callous disregard for his constitutional rights. (Mot..) In executing the warrant at Diversified, the Government seized three servers, fourteen hard drives, and other electronic storage devices. (Mot. ; Larson Decl. Ex..) However, because the Government was constitutionally permitted to seize "every single computer" at Diversified, Special Agent Chris's statement that the Government intended to follow this course could not constitute callous disregard for Burum's constitutional rights. The warrants in this case authorize seizure of a number of documents, many of which are likely to be stored electronically. (Larson Decl. Ex..) In recognition of the fact that most information is stored electronically in this day and age, the warrants permit seizure of documents

16 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 that fall into the enumerated categories regardless of whether they are stored in paper or electronic form. (Larson Decl. Ex..) Under the terms of the warrants, the executing agents can either search the electronic devices found at the subject property on-site or else seize and transport the devices to a facility where the devices can be searched. (Larson Decl. Ex..) The warrants permit the Government to seize "[a]ny digital device capable of being used to... store evidence of the offenses of conspiracy, bribery, honest services fraud scheme, false statement in tax document, or money laundering." (Larson Decl. Ex..) Movant points out that any electronic device is "capable" of storing such evidence, and Movant faults the Government for not limiting the warrant to seizure of devices actually storing such evidence. According to Movant, because of this flaw in the warrants, the Government was able to (and indeed did) seize all electronic devices "indiscriminately" from his home and the offices at Diversified. However, Movant does not indicate how the Government could have been able to discern in advance which of the devices actually contained seizable material. Judge 0 Parada, who issued the warrants, was convinced that the Government had probable cause to believe that electronically stored information evidencing a crime was being stored at Movant's residence and at Diversified. In the absence of any evidence suggesting that the Government had sufficient information prior to issuance of the warrants to know on which electronic devices the seizable material was stored, the Government was entitled to seize and search all electronic devices found at the subject premises. The warrants do not permit the seizure of electronic devices for their own sake. They permit seizure of electronic devices because of the possibility that the devices contain information that falls into the categories of seizable material enumerated earlier in the warrant. Importantly, the warrants do not permit the Government to retain all information stored on the seized devices. Movant attaches the transcript of a September, 0, phone conversation between Special Agent Chris and Eric Hanson, an individual who assists in the IT Services for Diversified. (Decl. of Eric Hanson in Supp. of Mot. Ex..) The conversation illustrates that Special Agent Chris reached out to Mr. Hanson to see if information provided by Mr. Hanson could help narrow the scope of what the Government had to seize. The conversation ended with Mr. Hanson agreeing to send someone to meet with the Government. It is not clear from the evidence whether such a meeting ever took place.

17 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0 Upon review, the Government can only keep those files that are responsive to the enumerated categories, and the rest of the files must be returned or (if they are copies) destroyed. If a review of a particular device demonstrates that the device does not contain any material that is seizable under the warrant, the device must be promptly returned. (Larson Decl. Ex..) In short, the warrants do not permit the seizure of all electronic files. Rather, the warrants permit the seizure of all electronic devices, so that those devices can be searched for that subset of information that is seizable under the warrant. This procedure comports with Federal Rule of Criminal Evidence (e)()(b), which governs warrants seeking electronically stored information: "A warrant under Rule (e)()(a) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant." Fed. R. Crim. P. (e)()(b). Thus, Movant's complaint that the seizure of every electronic device constituted a massive over-seizure, as the Government took possession of a whole world of data not authorized by the warrant, is unpersuasive. In seizing electronic devices for off-site review (as permitted by Rule (e)()(b)), the Government necessarily takes possession of vast amounts of data not subject to seizure. For this reason, warrants permitting seizure of electronic devices must include a search protocol so that the data on the devices that is seizable under the warrant can be separated from the data that is not seizable. The warrants in this case do contain such a search protocol, which will serve to ensure that only data that is seizable pursuant to the warrants is actually seized, and the rest of the information is returned. (Larson Decl. Ex..) The parties have stipulated that this search protocol will be overseen by a court-appointed special master, further bolstering the Court's confidence that the Government will not retain data that is not seizable under the terms of the warrant. In recognition of the large intrusion into Movant's personal and business operations a seizure of all electronic devices would cause, the warrants mandate prompt return of all devices. The warrants provide that all seized electronic devices must be returned within 0 days, although the Government can request an extension. (Larson Decl. Ex..) As explained above, the

18 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0 Government has returned the four devices that Movant claimed were most essential to the day-today operations at Diversified within two weeks of the seizure. The Government has now informed the Court that all electronic devices have been returned (Opp'n ), although the Government maintains copies of all devices, the contents of which are being searched for material that is seizable pursuant to the warrants. The Constitution does not prohibit the Government from taking "every single computer" found at the subject premises where the Government has no way of knowing which computer or other electronic device is likely to contain the data that is subject to seizure. Accordingly, Agent Chris's statement that the Government was planning to "walk in and seize every single computer in the place" was not an ominous threat to violate Movant's constitutional rights. It was merely a factual statement made in the course of a telephone conversation that reflects that the Government agents were exploring ways to minimize disruption to Movant's businesses. This statement does not reflect "callous disregard." c. Attorney-Client Privilege and Right to Counsel Movant additionally claims that the Government exhibited callous disregard for his constitutional rights because the warrants did not lay out procedures to protect information on the electronic devices that are covered by the attorney-client privilege. (Mot..) It is true that protections for attorney-client privileged information do not appear on the face of the warrants. (Larson Decl. Ex..) However, Judge Parada found that the Government had taint procedures in place before the warrants were executed that served to protect Movant's privileged material. (Opp'n Ex. C.) The better practice would have been to include the taint procedures on the face of the warrants. However, Movant has not cited any case suggesting that warrants authorizing the search of electronic documents cannot be valid absent taint procedures on the face of the warrant to protect privileged material. Thus, the Court finds that the absence of the taint procedures on the face of these warrants does not render the warrants unconstitutional. Especially in light of the fact that the Government had appropriate taint procedures in place before the warrants were executed and the fact that the parties have stipulated to have the taint

19 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0 procedures overseen by a court-appointed special master, the Government's treatment of Movant's privileged material does not constitute callous disregard for his constitutional rights. Movant also claims the Government violated his Sixth Amendment right to counsel. (Mot. -, -.) At the time the federal warrants were executed, Movant was already a criminal defendant in a state court criminal proceeding. Movant claims the Government's seizure of his computers denied him access to documents he needed for his defense. (Mot. -, -.) However, nothing was seized from the office that Movant's attorney maintained at Diversified or from the room at Diversified designated "Law Library." If there existed documents critical to Movant's defense of the state criminal action that were stored only on his own electronic devices (i.e., his attorney did not have a copy), Movant might have an argument that the seizure of the computers violated his Sixth Amendment right to counsel. Movant has not indicated that there were any such documents. To the extent that the Government did seize the only copies of certain documents related to Movant's state court criminal defense, the Government has returned all such documents, and Movant and his attorney are no longer denied access to them. Tellingly, in Movant's emergency ex parte application for return of property, filed five days after the warrants were executed, Movant sought the immediate return of those devices crucial to the day-to-day business operations at Diversified. This application did not seek the immediate return of any information critical to Movant's criminal defense. If the seized material contained the only copies of documents critical to Movant's criminal defense, this ex parte application likely would have sought return of those documents as well. Accordingly, the Court is not convinced that the Government's seizure of Movant's documents and electronic devices deprived Movant of data in such a manner that his Sixth Amendment right to counsel was violated. This cannot serve as "callous disregard" to warrant exercising civil equitable jurisdiction. /// /// d. False Declaration

20 Case :-cv-0-sjo -OP Document Filed // Page 0 of Page ID #:0 0 0 Movant's attorney Stephen Larson maintained a temporary law office at Diversified. Movant asserts that the Government lied in a declaration, which claimed that the agents executing the warrant walked through the "Law Library" and Mr. Larson's office at Diversified with Mr. Larson's consent and accompanied by Mr. Larson. (Mot..) The declaration in question is the September, 0 declaration of Special Agent Zeitlin that supported the Government's opposition to Movant's ex parte application for appointment of a special master. The offending language in the declaration is as follows: Based upon my communications with SA Parris, SA Montero, and FBI SA Kristin Almeda, I have learned the following regarding the execution of the search warrant at SUBJECT PREMISES TWO [Diversified]: a) Searching agents encountered an office with a door that had affixed to it a label which read, "Law Office of Stephen G. Larson." A sign on the door of another room read, "law library." Inside the "law library" were several boxes on the floor. b) While agents were conducting the search, Mr. Larson arrived on scene. With Mr. Larson's consent and while being accompanied by Mr. Larson, SA Montero and SA Almeda walked through the office marked "Law Office of Stephen G. Larson" and the "law library." c) After walking through the "Law Office" with Mr. Larson, SA Montero determined that the "Law Office" would not be searched. Nothing from that room was seized by agents. A sign was placed on the door leading to the "Law Office" which read "Do Not Search" or words to that effect. d) SA Montero and Mr. Larson together reviewed the contents of the boxes in the "law library." Nothing from the "law library" was seized by agents. After the meeting between SA Montero and Mr. Larson in the "law library," a sign was placed on the door which read "Do Not Search" or words to that effect. Nothing from the "law library" was reviewed by anyone other than SA Montero and Mr. Larson. 0

21 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0 (Larson Decl. Ex. (Zeitlin Decl. ).) Movant points out that this declaration is incorrect. Special Agent Montero only asked for and received Mr. Larson's permission to walk through the law library; no one asked for his permission to walk through his law office and he did not accompany anyone into his law office. (Mot. ; Larson Decl. -.) The Government has conceded that the September Zeitlin Declaration contained this inaccuracy. (See Decl. of Anthony Montero in Supp. of Opp'n to Mot. for Review of Judge Oswald Parada's // Order ("Montero Decl."), ECF No. in Case No. - CV-0.) According to the Government, the inaccuracy arose as follows: Special Agent Zeitlin spoke to the agents involved in executing the warrant before submitting his September Declaration. (October Decl. of Jonathan Zeitlin in Supp. of Opp'n to Mot. for Review of Judge Oswald Parada's // Order ("0/ Zeitlin Decl.").) Based on those communications, he drafted his declaration, which he believed to be accurate. (0/ Zeitlin Decl..) He sent the draft of the declaration to Special Agent Montero by and spoke to Special Agent Montero by telephone. (0/ Zeitlin Decl..) Special Agent Montero confirmed to Special Agent Zeitlin that the declaration was correct. (0/ Zeitlin Decl..) Special Agent Montero has now explained to the Court that when reviewing the September Zeitlin Declaration, he did not notice the error - that the declaration erroneously stated that he walked through both the law library and the law office with Mr. Larson, instead of just the law library. (Montero Decl..) Special Agent Montero declares that "I do not know how I missed that mistake. In any event, I did not intentionally mislead SA Zeitlin or the Court. I apologize for my error." (Montero Decl..) Naturally, a declaration should not contain inaccuracies. However, submitting a declaration with inaccuracies does not constitute a "callous disregard for the constitutional rights of the movant." Ramsden, F.d at. Movant does not even explain which constitutional right was supposedly violated by submission of the September Zeitlin Declaration. It appears that Movant simply hopes to paint the Government agents involved in this case as untrustworthy. While the Court cautions the Government to be more careful with the content of its declarations in the future, the Court finds that this inaccurate declaration - which all evidence suggests was the

22 Case :-cv-0-sjo -OP Document Filed // Page of Page ID #: 0 0 result of mere inadvertence, rather than an intent to deceive the Court - does not constitute callous disregard. Movant also complains about the scope of the search of Mr. Larson's law office. When Mr. Larson arrived at Diversified on the day the warrant was being executed, Special Agent Montero informed him that the agents had only entered his law office to perform an initial security sweep, at which time a "Do Not Search" sign was placed on the door. (Mot. ; Larson Decl. -.) Mr. Larson reviewed security footage after the agents were done executing the warrants and discovered that after the initial security sweep, "agents entered my law office additional times." (Larson Decl..) The Court has reviewed the security footage submitted by Movant. The security footage does show that agents entered Mr. Larson's office a number of times. Most of these entrances were exceedingly brief. Some involved nothing more than an agent leaning into the doorway. Others involved an agent who began a cell phone call in the hallway outside the office pacing into Mr. Larson's office while on the call and pacing back out into the hallway. Special Agent Montero declared that in one instance, he entered the room and opened a few cabinets "to see if the office appeared to be used as a law office as represented by the sign on the door." (Montero Decl..) One of the other instances involved an agent entering the office to get a post-it in order to write "Do Not Search" and place it on the door to the office. (Montero Decl..) The parties agree that nothing was seized from Mr. Larson's office or the law library, and that the Government did not review any electronic files from computers or other devices located in Mr. Larson's office or the law library. The September Zeitlin Declaration does not say how many times Mr. Larson's office was entered by agents. (See Larson Decl. Ex..) Although perhaps the implication from the declaration is that the office was entered only once, the declaration is not technically inaccurate. Given that Mr. Larson's office was not thoroughly searched, the Court finds that the September Zeitlin Declaration is not even misleading in this respect. The September Zeitlin Declaration gives the impression that Mr. Larson's office was only searched to the extent necessary to