U.S. v. Jefferson

Decision Date08 May 2009
Docket NumberCriminal No. 1:07cr209.
PartiesUNITED STATES of America v. William J. JEFFERSON, Defendant.
CourtU.S. District Court — Eastern District of Virginia

Amy Berman Jackson, Robert Powel Trout, Gloria B. Solomon, Trout Cacheris PLLC, Washington, DC, for Defendant.

ORDER

T.S. ELLIS, III, District Judge.

In this multi-count prosecution of a now-former Member of Congress,1 defendant seeks to suppress evidence seized from his congressional office. This evidence was seized during a search authorized by a carefully crafted warrant issued by the United States District Court for the District of Columbia. Because they are central to a resolution of the motion to suppress at bar, the terms of the warrant and its litigation history merit a brief recounting here.

On May 18, 2006, the government filed an application and supporting affidavit for a warrant to search Room 2113 of the Rayburn House Office Building, defendant's congressional office at the time. The warrant sought only non-legislative materials, and the affidavit described the following special procedures to be used in executing the search:

(1) The search would be conducted by FBI agents with no substantive role in the investigation.

(2) The FBI agents were (i) to review all paper records to determine which were responsive to the search warrant and (ii) to copy, without reviewing, all electronic files on the computer hard drives or other electronic media in defendant's office.

(3) The FBI agents would be forbidden from disclosing any politically sensitive and non-responsive items seen during the course of the search.

(4) The responsive paper documents and the images of defendant's electronic files would be turned over to a filter team, composed of an FBI agent and two Justice Department attorneys not otherwise involved in the investigation, which would review the materials for Speech or Debate Clause privilege and responsiveness.

(5) Materials determined by the filter team to be privileged or non-responsive to the warrant would be returned to defendant without dissemination to the prosecution team.

(6) Materials determined by the filter team not to be privileged would be delivered to the prosecution team, with copies to defendant.

(7) Finally, materials determined by the filter team to be potentially privileged would be given to defendant and submitted to the district court for a privilege determination.

On May 18, 2006, the United States District Court for the District of Columbia issued the search warrant, which was executed on May 20 and May 21, 2006. Pursuant to the procedures outlined in the warrant's supporting affidavit, the designated FBI agents reviewed every paper record in the office and copied, without reviewing, the hard drives of all the office's computers and other electronic storage devices. In the end, these agents seized two boxes of documents deemed responsive to the warrant, as well as images of all the office's electronic files.

Immediately following the search, the Deputy Attorney General halted review of the seized materials by ordering a freeze. On May 24, 2006, defendant moved for the return of all seized property pursuant to Rule 41(g), Fed.R.Crim.P., which motion was denied by the United States District Court for the District of Columbia on July 10, 2006. In re Search of the Rayburn House Office Bldg. Room No. 2113 Washington, D.C. 20515, 432 F.Supp.2d 100 (D.D.C.2006). The district court also denied defendant's subsequent motion for a stay pending appeal, see In re Search of the Rayburn House Office Bldg., 434 F.Supp.2d 3 (D.D.C.2006), following which defendant immediately sought and obtained an emergency stay pending appeal from the United States Court of Appeals for the District of Columbia. United States v. Rayburn House Office Bldg., Room No. 2113, Washington, D.C. 20515, No. 06-3105 (D.C.Cir. July 25, 2006) (Order). Thereafter, the D.C. Circuit remanded the record to the district court with instructions to make findings regarding which, if any, of the seized materials were records of legislative acts. Rayburn House Office Bldg., No. 06-3105, 2006 U.S.App. LEXIS 19466 (D.C.Cir. July 28, 2006). Specifically, the D.C. Circuit instructed the district court to

(i) provide copies of all the seized paper records to defendant;

(ii) determine which electronic files would be responsive to the search warrant and provide a list of responsive records to defendant;

(iii) provide defendant with an opportunity to submit, ex parte, any claims that specific documents are legislative in nature; and

(iv) review the specific documents in camera to determine whether they are privileged under the Speech or Debate Clause.

The D.C. Circuit further enjoined the government from reviewing any of the seized documents pending further order of that Court. See id. This order was subsequently amended to allow the government to review seized materials that defendant concedes are not privileged under the Speech or Debate Clause. See Rayburn House Office Bldg., No. 06-3105, 2006 U.S.App. LEXIS 28335 (D.C.Cir. Nov. 14, 2006). During the course of today's hearing, the parties represented that the district court's privilege review is ongoing.2 As a result, the only materials from the May 20-21, 2006, search that the prosecution team has reviewed and could offer at trial are materials defendant concedes are not protected by the Speech or Debate Clause.

On August 3, 2007, the D.C. Circuit issued a decision in defendant's appeal of the district court's denial of his motion seeking the return of all materials seized in the May 20-21, 2006, search pursuant to Rule 41(g), Fed.R.Crim.P. The D.C. Circuit held that because the Speech or Debate Clause protects members of Congress from compelled disclosures of legislative materials, the FBI agents' search of the paper records in defendant's congressional office violated the Constitution since defendant was denied "any opportunity to identify and assert the [Speech or Debate Clause] privilege with respect to legislative materials before their compelled disclosure to Executive agents." See Rayburn House Office Bldg., 497 F.3d 654, 662 (D.C.Cir.2007).3 As a remedy for that violation, the D.C. Circuit rejected defendant's argument that all materials seized in the search should be returned to him under Rule 41(g), holding instead that defendant was only entitled to the return of materials protected by the Speech or Debate Clause. Id. at 665. The D.C. Circuit further ordered (i) that "the FBI agents who executed the search warrant shall continue to be barred from disclosing the contents of any privileged or politically sensitive and non-responsive items" and (ii) that the agents who conducted the search "shall not be involved in the pending prosecution." Id. at 666. The crux of the D.C. Circuit's opinion is that "a search that allows agents of the Executive to review privileged materials without the Member's consent violates the [Speech or Debate] Clause." Id. at 663. This does not mean that the Member has the last word on whether the privilege applies; rather, any claim of Speech or Debate Clause privilege must still be judicially assessed in camera.

Defendant now moves here to suppress all evidence seized during the May 20-21, 2006, search of his congressional office. The threshold question raised by defendant's motion—whether the manner in which defendant's congressional office was searched violated the Speech or Debate Clause—has already been answered by the D.C. Circuit. The government argues that the D.C. Circuit's finding of a Speech or Debate Clause violation is not binding here and asserts that the D.C. Circuit's opinion should receive little, if any, deference in this...

To continue reading

Request your trial
2 cases
  • US v. Renzi
    • United States
    • U.S. District Court — District of Arizona
    • February 18, 2010
    ...considered former-Congressman Jefferson's motion to suppress all evidence seized from his congressional office. United States v. Jefferson, 615 F.Supp.2d 448 (E.D.Va.2009). Although the District Court found the reasoning of Judge Henderson in Rayburn, supra, "appealing," the District Court ......
  • U.S. v. Jefferson
    • United States
    • U.S. District Court — Eastern District of Virginia
    • May 22, 2009
    ...from the Bench, an Order issued granting the government's motion in part and denying defendant's motion. See United States v. Jefferson, 615 F.Supp.2d 448 (E.D.Va.2009) (Order) (Docket No. 388). This Memorandum Opinion further explains the reasons stated from the Bench. More specifically, a......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT