United States v. Nistor

• Decision Date: 17 April 2020
• Docket Number: No. 5:18-CR-81-JMH-MAS-14,5:18-CR-81-JMH-MAS-14
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. VLAD-CALIN NISTOR, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

UNITED STATES OF AMERICA, Plaintiff, v. VLAD-CALIN NISTOR, Defendant.

No. 5:18-CR-81-JMH-MAS-14

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON

April 17, 2020

REPORT AND RECOMMENDATION

This case is before the Court on Defendant Vlad-Calin Nistor's ("Nistor") Motion to Suppress. [DE 460]. The district judge referred this matter to the undersigned for a Report and Recommendation. The United States responded to the motion [DE 519], Defendant replied [DE 537], and the Court determined that a hearing was unnecessary. Thus, the matter is ripe for decision. For the reasons stated herein, the Court recommends the District Court deny Defendant's Motion to Suppress.

I. FACTUAL BACKGROUND

This case arises from an investigation into an alleged international online fraud conspiracy dating back to 2014. At issue in this case are seven search warrants of Nistor's various online accounts. The first search warrant ("Warrant 1") was executed on February 19, 2016. The remaining search warrants (respectively, "Warrant 2" through "Warrant 7") were executed later, supported in part by the evidence obtained through Warrant 1. The facts leading to this search warrant, as set forth in the supporting affidavit by Special Agent Mark Coleman ("SA Tremaine") with the United States Secret Service, are as follows: SA Coleman interviewed a target-turned- confidential informant ("the CI") about his admitted involvement in a bitcoin fraud scheme. The investigation ultimately led SA Coleman to Nistor, an alleged participant in the scheme. The CI explained that the fraud conspiracy operated by finding an American victim to provide funds or gift cards to a money launderer or processor. The funds were ostensibly to purchase a high-dollar item. The item to be purchased was listed on a website such as eBay or Craigslist, but the item did not exist. The processor would exchange the money or gift card into bitcoin and provide a percentage of the profit to fraudsters outside the United States. [DE 460-3 at Page ID # 3146]. According to the CI, one member of the conspiracy repeatedly directed him to send bitcoin to a specific bitcoin address. Law enforcement traced the movement of the bitcoin on the blockchain to the ultimate recipient, Defendant Nistor, a Romanian national. [DE 460-3 at Page # 3182]. Law enforcement then determined that Nistor's Google email address, vladnistor@gmail.com, was used to register his account on Kracken, the bitcoin exchange service he used to complete these bitcoin transactions. [DE 460-3 at Page ID # 3185].

On February 18, 2016, SA Coleman sought and obtained a search warrant for, among other items, "the contents of all emails, chats, or stored communications associated with the [Google] account . . ." and "[a]ll data associated with the use of the Location History and Web History between the dates of December 11, 2015, through December 18, 2015" that could be found in Nistor's Google account in connection with many of Google's services, such as Google Drive, Google Docs, Google Photos, Google Maps Engine, Google Calendar, Google Wallet, Google Chrome, and Web History (among many others). Eventually, utilizing the information obtained from Warrant 1, law enforcement sought and obtained six additional warrants for targeting Nistor's Google account, his Amazon web services account, and domain www.coinflux.com. Nistor now argues that the evidence obtained from all of these warrants must be suppressed because they lack particularity, the supporting affidavits failed to establish probable cause, and they function as a "general warrant," which is prohibited by the Fourth Amendment. Nistor argues that the subsequent search warrants have these same deficiencies and must be suppressed. Moreover, because Warrants 2 through Warrants 7 depend upon the information obtained from Warrant 1, Nistor contends Warrants 2 through Warrants 7 are "fruit of the poisonous tree" that must be suppressed. Nardone v. United States, 308 U.S. 338, 341 (1939).

The United States responded with many arguments countering Nistor's attack on the search warrants; however, its first argument is entirely dispositive of the dispute. Specifically, the United States argues that suppression is not a remedy available to Nistor, because "the Fourth Amendment does not "protect[] a nonresident alien, who has had no previous significant voluntary connection with the United States, from an unreasonable search and seizure of property located in the United States." [De 519 at Page ID # 3837] (quoting United States v. Alahmedalabdaloklah, 2017 WL 2839645, *2 (D. Ariz. July 3, 2017)).

For the reasons stated below, the Court agrees with the United States that Nistor is not entitled to the protections of the Fourth Amendment.

II. ANALYSIS

The question before the Court is straightforward: does the Fourth Amendment apply to Nistor? In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court held that the Fourth Amendment protects "the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory." United States v. Verdugo-Urquidez, 494 U.S. 259, 264-66 (1990). Nistor does not dispute that he is a Romanian national, lives full-time in Romania, and is only present in the United States due to extradition for prosecution in this case. [See, e.g., DE 459- at Page ID # 3104]. Thus, it appears that the holding in Verdugo-Urquidez precludes Nistor's present motion.

Nistor's response to the holding in Verdugo-Urquidez is twofold. First, Nistor suggests that the holding should not be extended to apply to aliens outside of the United States when the property searched resides within the United States. Second, and assuming such an extension of Verdugo-Urquidez is permitted, Nistor contends that he has "significant voluntary connections" with the United States to invoke the protections of the Fourth Amendment.

A. UNITED STATES V. VERDUGO-URQUIDEZ AND ITS PROGENY

To his first argument, Nistor claims that the United States and other courts have impermissibly extended the holding in Verdugo-Urquidez. [DE 537 at Page ID # 3986-7]. Nistor's reference to other courts, while subtle and without any real support or analysis, is telling. Although the Sixth Circuit has not addressed such an extension, the courts that have addressed it are in agreement that the holding in Verdugo-Urquidez can be extended to electronic searches or surveillance involving nonresident aliens even when the property is here in the United States. United States v. Verdugo-Urquidez, 494 U.S. 259, 261 (1990); See United States v. Hasbajrami, 945 F.3d 641, 663 (2d Cir. 2019) ("Verdugo-Urquidez and In re Terrorist Bombings make it dear that the Fourth Amendment does not require the government to obtain a warrant before collecting the [domestically located] e-mails of foreign individuals abroad."); United States v. Mohammad, 339 F.Supp.3d 724, 749 (N.D. Ohio 2018) (holding that Fourth Amendment protections are not available to a nonresident alien simply because the searched electronic data was stored on servers located in the United States).

Nistor counters that the Court should look to Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018) (certiorari granted) for guidance. The problem for Nistor, which he all but admits, is that this argument has been previously advanced and rejected. In United States v. Alahmedalabdaloklah in response to post-trial motion practice, the Court flatly rejected this argument.

In Rodriguez, . . . [t]he mother of the Mexican citizen sued the Border Patrol agent in federal court, asserting a Bivens claim under the Fourth Amendment. . . . The Ninth Circuit made clear, however, that the case was "not about searches and seizures broadly speaking." Id.

Despite the language in Rodriguez attempting to limiting it to the peculiar context of the use of deadly force, Defendant argues the reasoning of Rodriguez establishes he had viable Fourth Amendment rights that were infringed through the SCA order and warrant. Regardless of the impact Rodriguez might have on other Fourth Amendment cases, it has no application here because the Ninth Circuit has already concluded that seizing the e-mail communications of an individual such as Defendant does not implicate the Fourth Amendment.

. . .

In United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016), . . . [t]he Ninth Circuit concluded the foreign national did not have "sufficient voluntary connection[s] to the United States for the Fourth Amendment to apply." Id. at 439 n.22. Thus, the foreign national was a "non-U.S. person with no Fourth Amendment right." Id. at 439. And while the foreign national's e-mails were collected from computers located in the United States, the applicability of the Fourth Amendment was dictated by "the location of the target, and not where the government literally obtained the electronic data." Id.

2018 WL 5807091, at *9 (D. Ariz., Nov. 6, 2018) (emphasis in original).

Similarly, in United States v. Mohamud, the defendant, a United States' citizen, sought to suppress evidence of a nonresident alien's emails that were searched without a warrant. He argued that although the target was a nonresident alien, the emails were located on a server in the United States, which required a warrant to search. The Ninth Circuit dismissed this argument, because "what matters here is the location of the target, and not where the government literally obtained the electronic data." United States v. Mohamud, 843 F.3d 420, 439 (9th Cir. 2016) (quotation marks and citations omitted; emphasis in original).¹

Nistor suggests the Court ignore the holdings of Mohamud and Alahmedalabdaloklah, two cases with nearly identical facts to the case at bar, in favor of Rodriquez, which was a Bivens civil action currently under Supreme Court review. The Court...