In re Search of the Rayburn House, Room Number

• Decision Date: 10 July 2006
• Docket Number: No. 06-0231 M-01.,06-0231 M-01.
• Citation: 432 F.Supp.2d 100
• Parties: In re SEARCH OF THE RAYBURN HOUSE OFFICE BUILDING ROOM NUMBER 2113 Washington, D.C. 20515.
• Court: U.S. District Court — District of Columbia

432 F.Supp.2d 100

In re SEARCH OF THE RAYBURN HOUSE OFFICE BUILDING ROOM NUMBER 2113 Washington, D.C. 20515.

No. 06-0231 M-01.

United States District Court, District of Columbia.

July 10, 2006.

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MEMORANDUM OPINION

HOGAN, Chief Judge.

All laws should be made to operate as much on the law makers as upon the people; . . . Whenever it is necessary to exempt any part of the government from sharing in these common burthens, that necessity ought not only to be palpable, but should on no account be exceeded. 2 Founders' Constitution 331 (Philip B. Kurland & Ralph Lerner eds., 1987) (James Madison, The Militia Bill, House of Representatives (Dec. 16, 1790)). Pending before the Court is Congressman William J. Jefferson's Motion for Return of Property and Emergency Motion for Interim Relief, in which he contends that the execution of a search warrant on his congressional office was unlawful in violation of the Constitution's Speech or Debate Clause, separation of powers principle, and Fourth Amendment.¹ Having carefully considered the submissions of Congressman Jefferson, the Bipartisan Legal Advisory Group of the Unites States House of Representatives as amicus curiae, and the Government, the Court will deny the motion.²

I. BACKGROUND³

Over the past year, the Federal Bureau of Investigation (FBI) has been conducting an investigation into whether Congressman William J. Jefferson and other individuals bribed or conspired to bribe a public official, committed or conspired to commit wire fraud, or bribed or conspired to bribe a foreign official, in violation of federal criminal statutes. The investigation centers around allegations that Congressman Jefferson used his position in Congress to promote the sale of telecommunications equipment and services offered by iGate—a Louisiana-based communications firm—to Nigeria, Ghana, and possibly other African nations, in return for payments of stock and cash. As of result of the Government's investigation into the scheme, one of Congressman Jefferson's former staffers pleaded guilty to bribing and conspiring to bribe Congressman Jefferson, and was sentenced to eight years of imprisonment. The President and CEO of iGate also pleaded guilty to bribing and conspiring to bribe Congressman Jefferson.

On Thursday, May 18, 2006, the Government filed with this Court an application and affidavit for a warrant to search Congressman Jefferson's congressional office for paper documents and computer files related to the alleged bribery scheme and other fraudulent transactions. According to Congressman Jefferson and The Bipartisan Legal Advisory Group, the execution of a search warrant upon the office of a sitting Congressman is apparently without historical precedent since the adoption of the Constitution more than 200 years ago. The eighty-three-page affidavit laid out the evidence the Government had obtained over the course of the investigation. The application described in detail the paper documents to be seized and the precise search terms to be used in examining the computer files. The search warrant sought no legitimate legislative material that would be considered privileged under the Speech or Debate Clause.

The application also set forth a set of special search procedures to be used in an effort to minimize the likelihood that any potentially politically sensitive, nonresponsive items would be disclosed, and also to prevent investigators and members of the Prosecution Team from obtaining documents or files that may fall within the purview of the Speech or Debate Clause. . . or any other pertinent privilege. Aff. ¶ 136. These procedures involved the designation of a Filter Team, which was composed of two Department of Justice attorneys who were not on the Prosecution Team and an FBI agent who had no role in the investigation or prosecution of the case.

For paper documents, the Filter Team would review the documents seized to determine first whether each document was responsive, and second whether it fell within the purview of the Speech or Debate Clause or any other privilege. Any documents found to be non-responsive would be returned to counsel for Congressman Jefferson. As to the potentially privileged documents, a log and copies thereof would be provided to Congressman Jefferson's counsel within twenty days of the search. The Filter Team would then submit the documents to the Court for a final determination of privilege. Copies of documents that were found to be responsive and unprivileged would be provided to the Prosecution Team and to Congressman Jefferson's counsel within ten days of the search.

As to computer files, another designated Filter Team (made up of certified FBI computer examiners who had no role in the investigation or prosecution of the case) would perform the search of the computers, subject to the terms laid out in the warrant application. Again, the Filter Team would screen out non-responsive and potentially privileged files in the same manner as was to be done with the paper documents.

Having found that the application and affidavit established probable cause to believe that evidence of a crime would be found in Congressman Jefferson's congressional office, the Court granted the Government's application, issued the warrant, and ordered that the search be conducted on or before Sunday, May 21, 2006. On Saturday, May 20, 2006, federal agents executed the warrant. During the search, the agents excluded both Congressman Jefferson's counsel and counsel for the U.S. House of Representatives. The agents ultimately seized copies of the hard drives of each of the office's computers and two boxes of paper records.

On Wednesday, May 24, 2006, Congressman Jefferson filed the instant motion for return of the seized material under Rule 41 of the Federal Rules of Criminal Procedure. On June 7, 2006, the Bipartisan Legal Advisory Group (amicus), as amicus curiae, filed a brief in support of the Congressman's motion. The Government opposed the motion. On June 16, 2006, a hearing was held at which the Court heard oral argument on the motion.

II. ANALYSIS

Congressman Jefferson moves for return of the property seized during the execution of the search warrant on his congressional office under Rule 41 of the Federal Rules of Criminal Procedure, arguing that the search was unconstitutional as it violated the Speech or Debate Clause, the separation of powers principle, and the Fourth Amendment.

A. Rule 41

The Fourth Amendment shields citizens from unreasonable searches and seizures. Rule 41 of the Federal Rules of Criminal Procedure implements the Fourth Amendment by requiring that an impartial magistrate determine from an affidavit showing probable cause whether information possessed by law-enforcement officers justifies the issuance of a search warrant. Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). To be valid, a search requires a prior showing of probable cause, the warrant authorizing [the search] must particularly describe the place to be searched and the person or things to be seized, and ... it may not have the breadth, generality, and long life of the general warrant against which the Fourth Amendment was aimed. United States v. White, 401 U.S. 745, 758, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (internal quotation marks omitted). Here, neither Congressman Jefferson nor amicus contend that the search warrant issued here failed to meet any of those requirements.

Congressman Jefferson and amicus argue that the search was nonetheless unlawful because the manner in which it was executed violated the Constitution. The Supreme Court has made clear that reasonableness is the overriding test of compliance with the Fourth Amendment. Zurcher v. Stanford Daily, 436 U.S. 547, 559, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). For it is not the case that searches, however or whenever executed, may never be unreasonable if supported by a warrant issued on probable cause and properly identifying the place to be searched and the property to be seized. Id. at 559-60, 98 S.Ct. 1970; accord United States v. Koyomejian, 970 F.2d 536, 550 (9th Cir. 1992) (Kozinski, J., concurring) (Reasonableness is an independent requirement of the Fourth Amendment, over and above the Warrant Clause requirements of probable cause and particularity.); United States v. Torres, 751 F.2d 875, 883 (7th Cir.1984) ([A] search could be unreasonable, though conducted pursuant to an otherwise valid warrant, by intruding on personal privacy to an extent disproportionate to the likely benefits from obtaining fuller compliance with the law.). [T]here can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails. Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 536-37, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Therefore, while the issuance of the search warrant was valid, the search of Congressman Jefferson's office may still have been unlawful if it was an otherwise unreasonable invasion.

Rule 41(g) allows an owner to seek return of his property that has been unlawfully seized by the government. The rule provides in relevant part:

A person aggrieved by an unlawful search and seizure of property . . . may move for the property's return. ... The court must receive evidence on any factual issue necessary to decide the motion. 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. 41(g).

Actions seeking the return of property are governed by equitable principles. Industrias Cardoen, LTDA. v. United States, 983 F.2d 49, 51 (5th Cir.1993). Whether to exercise its jurisdiction to order the government to return the property is soundly within the discretion of the trial...