United States v. Taylor
| Decision Date | 04 October 2022 |
| Docket Number | 6:21-CR-13-GFVT-HAI-1,6:21-CR-13-GFVT-HAI-2,6:21-CR-13-GFVT-HAI-3 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ROBERT TAYLOR, LORI BARNETT, & EVANN HERRELL, Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
RECOMMENDED DISPOSITION
Three of the defendants have moved to suppress various items including electronic records on a variety of grounds. The Court finds no hearing is warranted and recommends that the motion be denied.
On June 7, 2022, Defendants Robert Taylor and Lori Barnett jointly moved to suppress “electronic evidence,” along with other relief. D.E. 264. On June 20, Defendant Evann Herrell moved to adopt the motion to suppress (D.E. 282), and the Court granted that motion to adopt (D.E. 294). The government filed its response on June 12 (D.E. 305), and Taylor and Barnett replied (D.E. 325). Herrell moved to adopt that reply (D.E. 332), which was granted (D.E. 389). On August 10, 2022, the Court conducted a teleconference to discuss three pending motions to suppress, including this one. D.E. 341 (order); D.E. 358 (minutes).
This case involves the multi-year investigation of a multi-site addiction-treatment clinic (Express Health Care, or “EHC”) on suspicions of pain-pill diversion and accompanying fraud. This is one of numerous defensive motions filed by the medical-provider defendants in this matter.
The motion describes itself as follows:
This motion challenges the government's use of overbroad warrants used to obtain electronically stored information and its use of forensic software and/or case agents to review everything produced in response. This motion also challenges the government's use of warrants to obtain out-of-district electronic communications and to obtain e-mail account content after the government raided EHC and executed a warrant on Dr. Taylor and Ms. Barnett's residence.
D.E. 264 at 1. The motion goes on to say, “To the extent the government also obtained electronic evidence pursuant to court orders or subpoenas, Movants also ask the Court to suppress those materials for having been obtained without a warrant.” Id. at 2.
Based on these descriptions, the motion appears to make four substantive claims, which will be discussed in the following order:
The motion further claims that the government failed to produce in discovery all the relevant records. D.E. 264 at 2. However, this issue of inadequate discovery production has been resolved. As memorialized in the minutes of the August 10 teleconference, D.E. 358. Thus these Defendants possessed all of the instruments to potentially challenge prior to filing the motion and any lingering request to supplement the motion (or file another one) is denied.
According to the defense, their original discovery request was sent in April 2021. Since then not a single discovery dispute concerning these materials was presented to the Court.
Defendants' motion is broad, complicated, and at times difficult to decipher. Many of the claims appear to have been raised purely to preserve arguments on appeal. In this Recommended Disposition, the Court may not address every specific argument in Defendants' convoluted motion. This is because issues adverted to in a perfunctory manner unaccompanied by some effort at developed argumentation, are deemed waived. United States v. Kerns, 9 F.4th 342, 351 (6th Cir. 2021); Strickland v. City of Detroit, 995 F.3d 495, 511 (6th Cir. 2021).
To gain clarity, the Court asked Defendants at the August 10 teleconference (D.E. 358) to lay out exactly which issues needed a ruling from the Court given that the suppression motion was fully briefed. As memorialized in the audio recording of the teleconference, Mr. Davies (counsel for Defendant Taylor) explained they were challenging about thirteen warrants in all. He clarified that the three following issues remain live controversies for resolution:
First, Defendants challenge the warrants to search the Taylor/Barnett residence and the Herrell residence, issued on December 12, 2018, by Magistrate Judge Bruce Guyton in the Eastern District of Tennessee. Mr. Davies explained on the call that this challenge is directed solely to the seizure of electronic evidence under these warrants.[1] The residential warrants currently being challenged are:
Second, Defendants challenge as overbroad several warrants for email and other online accounts and for devices associated with EHC, including Defendant Taylor's MacBook and iPhone, Defendant Barnett's MacBook and iPhone, and Defendant Herrell's MacBook. The Court understands these warrants to be as follows, each of which was issued by the undersigned:
Third, Defendants challenge the manner of execution of the warrants. As Mr. Davies explained on the call, the government seized five-year's worth of Taylor's and Barnett's electronic communications. Defendants do not know how this data was processed. What forensic techniques were used? Did the government employ methods (such as keywords) to limit their review to only materials covered by probable cause? Defendants argue that if the search of their data went beyond the scope of the warrants, those searches should be suppressed. The Court will also acknowledge some other issues raised in the motion which are not among the three live controversies identified on the call.
The Court first addresses Defendants' argument that warrants issued to be executed in other Districts under the Stored Communications Act (“SCA,” 18 U.S.C. § 2701 et seq.) are invalid. Defendants' motion argues that certain warrants were “issued by magistrate judges in excess of their jurisdiction.” D.E. 264 at 2. They point to the jurisdictional limits of Federal Rule of Criminal Procedure 41(b) and 28 U.S.C. 636. Id. at 14-16. They argue that warrants issued for electronic information stored in another jurisdiction (such as the email accounts and Salesforce data) exceed these jurisdictional limitations. Id.
Nevertheless, Defendants concede that “[d]espite the limits of Rule 41, courts have held that extra-territorial warrants may issue based on the [Stored Communications Act (‘SCA').]” D.E. 264 at 16. “[S]ome courts have found that the SCA is a circumstance that extends magistrates' authority.” Id. Defendants argue such cases were wrongly decided because the SCA itself requires that SCA warrants issue “using the procedures described in the Federal Rules of Criminal Procedure.” 18 U.S.C.A. § 2703(a), (b), (c). Defendants' reply brief clarifies that their position is that “courts may eventually agree with Movants.” D.E. 325 at 3 n.3. Just as the Supreme Court in Carpenter overruled prior decisions concerning cellsite location information, they argue, courts may in the future change course on out-of-district electronic account seizures. Id. Defendants did not mention this issue during the August 10 teleconference.
Defendants have made clear that this territorial-jurisdiction issue was raised to preserve it for appeal. “[S]everal of the issues were raised to preserve Movants' rights . . . [because] case law is not in Movants' favor.” D.E. 325 at 1. They list the extraterritoriality issue among the “arguments Movants raised for preservation purposes and/or as good faith extensions of the law.” Id. at 3 & n.3. As the government points out, the First, Second, Third, and Seventh Circuits have ruled contrary to Defendants' argument, and district courts in this Circuit have followed suit. D.E. 305 at 2-4. The government also points to case law establishing that suppression is not the remedy for a Rule 41 violation. Id. at 4.
Defendants concede that case law is not currently on their side magistrate judges may issue SCA warrants for data held outside their judicial...
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