764 F.Supp.2d 230 (D.Me. 2011), Crim. 10-86-P-H, 10-86, United States v. Taylor

Docket Nº:Criminal 10-86-P-H.
Citation:764 F.Supp.2d 230
Opinion Judge:D. BROCK HORNBY, District Judge.
Party Name:UNITED STATES of America v. Jackie Darrel TAYLOR, Jr., Defendant.
Attorney:Craig M. Wolff, Stacey D. Neumann, Assistant United States Attorneys, Office of the United States Attorney District of Maine, Portland, ME, for United States of America. J. Hilary Billings, Federal Defender's Office, Portland, ME, for Defendant.
Case Date:February 09, 2011
Court:United States District Courts, 1st Circuit, District of Maine
 
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764 F.Supp.2d 230 (D.Me. 2011)

UNITED STATES of America

v.

Jackie Darrel TAYLOR, Jr., Defendant.

Criminal No. 10-86-P-H.

United States District Court, D. Maine.

February 9, 2011

Page 231

Craig M. Wolff, Stacey D. Neumann, Assistant United States Attorneys, Office of the United States Attorney District of Maine, Portland, ME, for United States of America.

J. Hilary Billings, Federal Defender's Office, Portland, ME, for Defendant.

DECISION AND ORDER ON MOTION TO SUPPRESS

D. BROCK HORNBY, District Judge.

The indictment charges the defendant with failure to pay child support, in violation of 18 U.S.C. § 228(a)(3). After indictment, the government obtained a search warrant for an e-mail account registered to the defendant. The defendant has filed a motion to suppress all the seized e-mails and related information on the following grounds: (1) the government failed to take adequate precautions to exclude privileged communications, (2) attorney-client information has in fact been disclosed to the government, (3) the search warrant was overly broad and insufficiently particularized, and (4) e-mails that qualified as " arguably privileged" were not isolated in the

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review process. The motion to suppress is DENIED.

FACTS

It is undisputed that, before indictment, lawyers were appointed for the defendant in both Idaho, where he lives, and Maine, where he has been indicted, and that the government knew of their appointment. After indictment, a magistrate judge of this court issued a warrant that authorized a search of all information associated with an identified Microsoft hotmail account of the defendant, and the seizure of all information " that constitutes fruits, evidence and instrumentalities of violations of 18 U.S.C. § 228" including " [r]ecords relating to business and/or other financial and accounting matters, as well as all records relating to the purchasing and selling of goods and services." 1

In response to the warrant, Microsoft provided a " zip drive" containing messages from the e-mail address.2 When a government agent began searching the e-mails, he first began viewing only the header information, which revealed the sender, receiver, date, and subject.3 In this initial review of header information, the agent saw that there was e-mail correspondence to or from the defendant's lawyer(s).4 At that point he stopped his review and contacted the prosecuting AUSA.5

The government then filed a Motion for Approval of Government's Search Procedure to Protect Privileged Materials, proposing a " filter agent" procedure whereby an AUSA uninvolved with the prosecution would review the e-mail materials to cull out any potentially privileged materials before the investigating agent and the prosecuting AUSA received them.6 Over the defendant's objection 7 and after making modifications for the defendant's benefit, the magistrate judge entered an order permitting the filter agent procedure.8 The order identified three categories of materials: privileged, arguably privileged, and unprivileged.

Next, the filter agent reviewed the materials using the procedures prescribed in the court's order and removed eleven privileged e-mails. These privileged materials were provided to counsel for the defendant, not to the prosecuting AUSA or the investigating agent.9 The filter agent also

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determined that there was nothing within the category of " arguably privileged" material, and so informed the defendant's lawyer.10 The remaining, unprivileged, materials were provided to the investigating agent and the prosecuting attorney in the case.11

ANALYSIS

A. Failure to Take Adequate Precautions to Exclude Privileged Communications

The defendant argues that he is entitled to suppression of all the seized evidence because " the government seized privileged and confidential communications as a result of the failure to take adequate protective measures in the drafting of the warrant and in its execution." 12 His argument is that the filter agent approach " is per se inadequate as a matter of law," that knowing he already had a lawyer the government should have realized in advance that its search warrant would produce privileged communications and have taken preventive steps accordingly, and that these failures call for suppression of all the material seized.13

The parties have not referred me to any First Circuit decision dealing with the use of a filter agent. Case law from the rest of the country does not yield clear answers,14 but some themes emerge. A

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number of cases have permitted its use.15 At the same time, there is a healthy skepticism about the reliability of a filter agent or Chinese or ethical wall within a prosecutor's office,16 a skepticism perhaps prompted by the famous failures of such a procedure in United States v. Noriega, 764 F.Supp. 1480 (S.D.Fla.1991).17 Courts exhibit particular concern over use of filter agents or taint teams in searches of lawyers' offices, where privileged materials of many clients could be compromised.18 There, judges have sometimes required alternatives such as appointment of a special master, a wholly independent third party.19 Courts seem to recognize a distinction between circumstances where the government has not yet obtained the records on the one hand (allowing defense counsel's preliminary review), 20 and, on the other hand, what the government should do when it has already seized the records, then realizes that it may have privileged materials (allowing use of filter agent there).21 Finally, some of the cases and some of the commentators suggest a role for judicial review.

In the circumstances of this search and this e-mail account, I have no reason to find that it was inherently negligent for the government to fail to foresee that its seizure of the defendant's e-mails would produce privileged documents simply because he had a lawyer, and I do not conclude that every warrant for an e-mail search must have at the outset a built-in privilege protection procedure, any more than there is such a requirement for every paper document search.22 Instead, I conclude

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that the government behaved reasonably here by immediately seeking judicial instructions once its agent noticed that e-mail headers reflected communications between lawyer and client. It is true that some cases could be read to suggest that at that point the defendant and his lawyer should have been allowed a first look at the e-mails, so as to create a privilege log and then let the government challenge it in court, rather than vice versa as here. But the defendant did not propose that procedure to the magistrate judge, and instead simply opposed the government's proposal in toto. The government sought judicial instructions, the magistrate judge modified its proposal, and then issued an order on how to proceed. I reject the argument that somehow that was per se an inappropriate way of proceeding.

Moreover, if something was seized improperly, the remedy is suppression of that item and perhaps its fruit,23 not suppression of everything: " The remedy in the case of a seizure that casts its net too broadly is ... not blanket suppression but partial suppression." 24 Here, there is nothing to suppress. After becoming aware of the existence of potentially privileged e-mails, the government took the appropriate steps to remove those e-mails from the materials the prosecuting attorney and case agent could obtain, and thus they cannot be used at trial.

Finally, there is no suggestion that the government has failed to comply with the procedures prescribed by the magistrate judge. During the initial review, the agent examined only the header information and not the content of the e-mail.25 Thereafter, the government used the filter agent procedure approved by the magistrate judge. That agent removed the privileged e-mails and they were not disclosed to...

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