United States v. Loera

• Decision Date: 29 August 2018
• Docket Number: 09-cr-0466 (BMC)
• Citation: 333 F.Supp.3d 172
• Parties: UNITED STATES of America, v. Joaquin Archivaldo Guzman LOERA, Defendant.
• Court: U.S. District Court — Eastern District of New York

333 F.Supp.3d 172

UNITED STATES of America,

v.Joaquin Archivaldo Guzman LOERA, Defendant.

09-cr-0466 (BMC)

United States District Court, E.D. New York.

Signed August 29, 2018

Filed September 12, 2018

Andrea Goldbarg, Michael P. Robotti, Patricia E. Notopoulos, Gina Marie Parlovecchio, Hiral D. Mehta, Soumya Dayananda, U.S Attorney's Office, Eastern New York, Brooklyn, NY, Adam S. Fels, Lynn Kirkpatrick, United States Attorney's Office Southern District of Florida, Miami, FL, Amanda Liskamm, Anthony Nardozzi, Michael Lang, Narcotic and Dangerous Drug Section, Washington, DC, for Plaintiff.

A. Eduardo Balarezo, Balarezo Law, Washington, DC, Edward Scott Zas, Federal Defenders of New York, Rebecca Miriam Heinegg, Kunstler Law, New York, NY, Michael K. Schneider, Michelle A. Gelernt, Federal Defenders of New York, Brooklyn, NY, William B. Purpura, Pro Hac Vice, Law Office of Purpura and Purpura, Baltimore, MD, for Defendant.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Defendant has filed two motions to suppress evidence as the fruit of illegal searches and seizures. The first motion concerns evidence obtained from defendant's communication network located on servers in the Netherlands. The second relates to evidence obtained from his FlexiSpy spyware accounts located on servers in the United States. For the reasons given below, defendant's motions are denied.

The Court assumes familiarity with the facts and will discuss them below only as needed.

I. Timeliness

As a threshold matter, the Government argues that the Court should deny defendant's motions to suppress as untimely. Defendant claims that he was unaware of the basis for these motions until he received unredacted versions of related discovery after the April 9, 2018 deadline. After reviewing the discovery, I agree that defendant has put forth a good faith basis for his delay, and will therefore decide the motions on the merits.

II. Fourth Amendment Standing

Defendant moves to suppress evidence from the Dutch servers and the FlexiSpy accounts on the ground that it was obtained through violations of his Fourth Amendment rights. As the party moving to suppress, defendant bears the burden of establishing his standing. See United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991).

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. "The basic purpose of this Amendment, ... is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Carpenter v. United States, ––– U.S. ––––, 138 S.Ct. 2206, 2213, 201 L.Ed.2d 507 (2018) (internal quotation marks and citation omitted).

Under the Fourth Amendment, a search occurs when "the government violates a subjective expectation of privacy that society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). A seizure occurs when "there is some meaningful interference with an individual's possessory interests in that property." Soldal v. Cook Cty., 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ). The "ultimate touchstone of the Fourth Amendment is reasonableness." Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014).

To establish standing in the Fourth Amendment context, a defendant "must prove that he had a legitimate expectation of privacy that was violated by the Government's [conduct]." United States v. Montoya-Eschevarria, 892 F.Supp. 104, 106 (S.D.N.Y. 1995) ; see also United States v. Smith, 621 F.2d 483, 487-88 (2d Cir. 1980). This burden "is met only by sworn evidence, in the form of affidavit or testimony, from the defendant or someone with personal knowledge." Montoya-Eschevarria, 892 F.Supp. at 106. "The defendant's unsworn assertion of the Government's representations does not meet this burden." Id.; see also United States v. Singleton, 987 F.2d 1444, 1449 (9th Cir. 1993).

Montoya-Eschevarria is instructive. There, the defendant moved to suppress recorded phone calls for lack of probable cause. The defendant did not assert that the voice on the phone calls was his; instead, he claimed that the Government told his counsel that it was him. The court acknowledged the defendant's predicament – he would either have to admit that it was his voice or forego his motion to suppress. However, the Court concluded that the defendant could not establish his standing by relying on the Government's assertions.

Similarly, defendant has not demonstrated the threshold for a legitimate expectation of privacy by swearing that the information on the Dutch servers or FlexiSpy accounts is his. Instead, defendant uses Special Agent Grey's affidavit as a proxy for his own. However, Special Agent Grey does not have personal knowledge that the Dutch servers and FlexiSpy accounts are defendant's. [redacted] That is too tenuous a link to create standing for a motion to suppress, and impermissibly relies entirely on the Government's theory of the case.

Because defendant has not met his burden to establish standing, defendant's motions to suppress are denied. However, even if defendant could establish standing by relying on Special Agent Grey's affidavit, I would still deny defendant's motions for the reasons that follow.

III. Motion to Suppress the Dutch Servers Communications

Defendant challenges the FBI's search of servers that ran his encrypted communication network, including telephone calls, text communications, and information stored on that network. [redacted] At all relevant times, the servers that ran this encrypted communication network were located in the Netherlands.

The United States and the Netherlands are parties to a Mutual Legal Assistance Treaty ("MLAT"). Over the course of 2011 and 2012, the FBI obtained evidence from the Dutch servers in three ways. First, the FBI made several MLAT requests for Dutch authorities to surveil certain IP addresses connected to defendant's communication network, and the Dutch authorities intercepted and recorded phone calls and provided that surveillance to the FBI on an ongoing basis. Second, the Dutch authorities executed search warrants on the servers and provided the FBI with copies of their contents. [redacted] The Dutch authorities also leased additional servers to house the recorded conversations and created a backup server that automatically received and stored the surveilled data for the FBI.

As discussed further in Part IV.A below, the Supreme Court has characterized the Government's "acquisition" of collected, recorded data as a search, rather than a seizure. See Carpenter, 138 S.Ct. at 2221. The FBI's receipt of the communications and information stored on the Dutch servers did not interfere with defendant's possessory interests, because it did not impede his ability to use the communication network or access the data on those servers. Instead, the challenged conduct involves a possible invasion of any privacy interest defendant had in their contents – constituting a search under the Fourth Amendment, rather than a seizure.

Several searches occurred in this case. First, the Dutch authorities conducted searches by their surveillance of each IP address, and by providing the FBI with ongoing information from that surveillance.¹ [redacted] Finally, the Dutch authorities conducted searches when they accessed and copied the contents of the Dutch servers pursuant to search warrants, and when they transferred those copies to the FBI.

Even if this conduct were characterized as a seizure rather than a search, the seizure would still have been reasonable in light of the Government's need to avoid the loss of evidence. "Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, ... [officers may] seiz[e] [ ] the property ... to examine its contents, if the exigencies of the circumstances demand it ...." United States v. Martin, 157 F.3d 46, 53 (2d Cir. 1998) (quoting United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) ).

[redacted]. [redacted] As a result, the Government likely had probable cause to believe that defendant and his associates used the network to discuss the Sinaloa Cartel and details of its narcotics trafficking, among other illegal activity. Over the course of the investigation, the FBI became concerned that the calls containing this evidence would be lost, [redacted] and asked the Dutch authorities to adjust their method of surveillance. Seizing the communications was therefore necessary to avoid "loss or destruction of suspected contraband." Martin, 157 F.3d at 53 (internal quotation marks omitted). The Court agrees with the Government that any seizure was reasonable under the circumstances.

A. Extraterritorial Application of the Fourth Amendment

The Supreme Court in United States v. Verdugo-Urquidez, 494 U.S. 259, 261, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), held that the Fourth Amendment does not apply "to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country." Only aliens who "have otherwise developed sufficient [voluntary connections] with this country to be considered part of [the national] community" may invoke its protections. Id. at 265, 110 S.Ct. 1056.

The Second Circuit has strictly adhered to this holding. See In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157, 174 (2d Cir. 2008) (observing that its previous holding articulated in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), "that aliens may invoke the Fourth Amendment...