U.S. v. Jefferson

• Decision Date: 14 August 2008
• Docket Number: No. 1:07cr209.,1:07cr209.
• Citation: 571 F.Supp.2d 696
• Parties: UNITED STATES of America v. William J. JEFFERSON, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

571 F.Supp.2d 696

UNITED STATES of America v. William J. JEFFERSON, Defendant.

No. 1:07cr209.

United States District Court, E.D. Virginia, Alexandria Division.

August 14, 2008.

COPYRIGHT MATERIAL OMITTED

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

Mark Lytle, Rebeca H. Bellows, United States Attorney's Office, Alexandria, VA, Charles E. Duross, U.S. Department of Justice, Washington, DC, for United States of America.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

A sixteen-count indictment (the "Indictment") charges defendant William J. Jefferson, a sitting member of the United States House of Representatives, with a variety of crimes including bribery, conspiracy, wire fraud, foreign corrupt practices, money laundering, obstruction of justice, and racketeering. As part of the investigation leading to the Indictment, Federal Bureau of Investigation (FBI) agents executed a search warrant at defendant's residence at 1922 Marengo Street in New Orleans, Louisiana on August 3, 2005. Defendant was also consensually interviewed on that date. Following his arraignment, Defendant moved to suppress (i) his statements to agents during the interview and (ii) certain evidence seized during the search, as well as the investigative fruits of the evidence alleged to have been improperly seized.

The facts pertinent to both motions were adduced in the course of an evidentiary hearing held over parts of four days in December, 2007 and January, 2008. Special Agents Lisa Horner and Timothy Thibault testified regarding the execution of the search. A previous memorandum opinion resolved the motion to suppress defendant's statements. See United States v. Jefferson, 562 F.Supp.2d 707 (E.D.Va.2008). This Memorandum Opinion addresses the search motion, setting forth factual findings pursuant to Rule 12(d), Fed.R.Civ.P., together with the legal reasons that compel the conclusion that, except with regard to two specific documents, defendant's motion to suppress must be denied.

I.

Defendant is the currently sitting member of the United States House of Representatives representing Louisiana's 2nd Congressional District, an office he has held since 1991. The Indictment alleges that beginning in or about January 2001, defendant used his office to advance the business interests of various individuals and corporations in return for money and other things of value paid either directly to defendant or via "nominee companies," i.e., companies ostensibly controlled by one of defendant's family members, but in fact controlled by defendant himself. The specific schemes alleged in the Indictment are described in greater detail in an earlier Memorandum Opinion. See United States v. Jefferson, 534 F.Supp.2d 645 (E.D.Va. 2008).

As part of the investigation leading to the Indictment in this case, agents from the Federal Bureau of Investigation (FBI) went to defendant's residence at 1922 Marengo Street in New Orleans, Louisiana on the morning of August 3, 2005 to execute a search warrant and to interview defendant. Following the conclusion of the interview, FBI agents executed a search of defendant's residence pursuant to the terms of a warrant issued by the United States District Court for the Eastern District of Louisiana. Schedule B to the search warrant listed "items to be seized from" the Marengo Street residence in four general categories: (1) records and documents related to various corporate entities, (2) records and documents related to specific correspondence or communications between certain individuals, (3) records and documents related to travel to Ghana and/or Nigeria by certain individuals, and (4) records and documents related to appointments, visits, and telephone messages to or for defendant.

During the course of the search, which lasted roughly seven-and-a-half hours, FBI agents seized and removed approximately 1,400 pages of documents from defendant's residence. Defendant has not challenged the seizure and removal of any of those 1,400 pages of documents. In addition to these seizures, an FBI photographer took high-resolution photographs of thirteen separate items,¹ and agents conducting the search took cursory notes of the contents of certain documents not seized or photographed as well as bank account information discovered during the search but not physically seized. It is the agents' photographs and notes that are the focus of defendant's suppression motion.

Agents Thibault and Horner testified that they would normally have removed the documents at issue under the "plain view" doctrine,² rather than photographing them or taking notes of their contents. But according to these agents, attorneys with the U.S. Attorney's Office for the Eastern District of Virginia had instructed them to seize and remove only evidence that was directly responsive to the list of items in the warrant's Schedule B. Both agents testified they understood this instruction to be a prudential limit on their ability to remove evidence that they were nonetheless Constitutionally permitted to search and seize under the plain view doctrine, and that the photographs and notes were taken in an effort to comply with the prosecutors' instructions while still giving effect to the plain view doctrine.

Defendant now seeks blanket suppression of all evidence seized during the August 3, 2005 search of his residence and all evidence tainted by having been obtained in reliance on information seized or recorded during the search.³ Although defendant does not specifically challenge seizure of the 1,400 pages of documents, he argues that all evidence seized in the search should be suppressed because the FBI agents' decision to photograph and take notes of documents that were not (in defendant's view) subject to seizure under the terms of the search warrant transformed the search into an impermissible general search of the sort prohibited by the Fourth Amendment.⁴ In the alternative, defendant seeks suppression of the specific documents photographed by agents or about which agents took notes during the search, as well as all tainted evidence, i.e. evidence obtained in reliance on those photographs or notes. As this matter has been fully briefed and argued by the parties, it is now ripe for disposition.

II.

The Supreme Court long ago established an exclusionary rule which prohibits the use of unlawfully seized evidence in the prosecution's case in chief. See Weeks v. United States, 232 U.S. 383, 391-94, 34 S.Ct. 341, 58 L.Ed. 652 (1914); United States v. Mowatt, 513 F.3d 395, 403 (4th Cir.2008). That same exclusionary rule also prohibits admission of evidence acquired as a direct or indirect result of an illegal search, unless the connection between the search and the evidence is "so attenuated as to dissipate the taint." Wong Sun, 371 U.S. at 487-88, 83 S.Ct 407; Mowatt, 513 F.3d at 403. But importantly, the exclusionary rule has its limits; specifically, the rule will not be applied to put the prosecution in a worse position than they would have been had there been no police misconduct. Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Accordingly, evidence obtained by independent, legitimate means may be admitted if the government establishes that the legitimate discovery of the evidence was not the result of information obtained by means of the original, illegal search. Murray v. United States, 487 U.S. 533, 537-41, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988); Mowatt, 513 F.3d at 403-04.

Application of these principles to this case requires a three-step analysis:

1. First, as a threshold matter, it is necessary to determine whether (i) taking high-resolution photographs of documents or (ii) taking notes of the contents of documents constitutes either a search or a seizure under the Fourth Amendment.

2. Next, as to each specific item either photographed by the FBI or about which agents took notes, it is necessary to determine whether the item or document was properly subject to search or seizure under either the terms of the search warrant or the plain view doctrine.

3. Finally, as to those items or documents not subject to search or seizure, it is necessary to determine whether the government later obtained the same evidence from independent, legitimate sources so as to avoid any taint. Any improperly seized evidence, and any evidence tainted by the improper seizure, must then be suppressed. See Wong Sun, 371 U.S. at 487-88, 83 S.Ct. 407.

III.

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV. Accordingly, it is first necessary to determine whether photographing documents or taking notes of the contents of documents constitutes either a search or a seizure as those terms are used in the Fourth Amendment context.⁵ A "search" occurs when "an expectation of privacy that society is prepared to consider reasonable is infringed." Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985). A "seizure" occurs when "there is some meaningful interference with an individual's possessory interests in the property seized." Id. The question, then, is whether taking photographs or notes constitutes a meaningful interference with an individual's possessory privacy interest in the property seized.

Importantly in this respect, the Supreme Court has extended the Fourth Amendment's protections to intangible as well as tangible possessory interests. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). In Hoffa, a paid government informant overheard the defendant make numerous incriminating statements and reported those statements to law enforcement officials. Following his conviction, the defendant challenged the use of those statements on the ground that they had been unconstitutionally seized by...