UNITED STATES OF AMERICA v. DMITRIJ HARDER

Crim. No. 15-1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2016 U.S. Dist. LEXIS 181556

April 18, 2016, Filed

CORE TERMS: email, search warrants, suppression, seized, attachment, seizure, probable cause, electronic, suppress, interview, privileged, notice, fruit, com, inter alia, internet, provider, money laundering, privileged communications, attorney-client, consulting, searched, dmitrij, harder, gmail, grand jury, warrant applications, privileged information, citations omitted, impermissibly

COUNSEL: [*1] For DMITRIJ HARDER, Defendant: STEPHEN LACHEEN, LEAD ATTORNEY, LACHEEN DIXON WITTELS & GREENBERG LLP, PHILADELPHIA, PA; IAN M. COMISKY, BLANK ROME, LLP, PHILADELPHIA, PA; MATTHEW DAVID LEE, FOX ROTHSCHILD LLP, PHILADELPHIA, PA.

For USA, Plaintiff: ADAM L. SMALL, LEAD ATTORNEY, U.S. Department of Justice, National Security Division, Washington, DC; JASON DEAN LINDER, LEAD ATTORNEY, U.S. DEPT OF JUSTICE, WASHINGTON, DC; MICHELLE MORGAN, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA; LEO R. TSAO, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC.

JUDGES: Paul S. Diamond, J.

OPINION BY: Paul S. Diamond

OPINION

ORDER

The grand jury has charged Defendant Dmitrij Harder with conspiracy to violate the Foreign Corrupt Practices and Travel Acts, substantive violations of the FCPA and Travel Act, conspiracy to commit international money laundering, substantive violations of the international money laundering statute, and aiding and abetting. (Doc. No. 1, Cts. 1-14); 18 U.S.C. § 371; 15 U.S.C. § 78dd-2; 18 U.S.C. § 1952; 18 U.S.C. § 1956(h), (a)(2)(A); 18 U.S.C. § 2. On December 15, 2015, the grand jury returned a Superseding Indictment with the same counts and several wording changes. (Doc. No. 62.)

The Government alleges that from 2007 to 2009, Defendant conspired to pay and conceal some $3.5 million in bribes [*2] to Tatjana Sanderson, the sister of European Bank of Reconstruction and Development officer Andrej Ryjenko. These payments, which Defendant funneled through Chestnut Consulting Group (his company), were intended to obtain EBRD business and favorable EBRD treatment for two of Defendant's Russian clients: Irkustsk Oil and Gas Company and Vostok Energy.

On October 16, 2015, Defendant filed a Motion to Suppress statements he made to the authorities after he flew into New York's Kennedy Airport from overseas. (Doc. No. 38.) On December 10, 2015, I conducted a suppression hearing. (Doc. No. 74.)

On March 1, 2016, Defendant filed a second Motion to Suppress, this time asking me to exclude from trial emails obtained from Google and 1&1 pursuant to October 15, 2010 search warrants. (Doc. No. 79.) The Government has responded. (Doc. No. 102.) I held a suppression hearing on March 21, 2016. (Doc. No. 116, Suppress. Hr'g Tr.) On March 29, 2016, Defendant submitted a Supplement in Support of his Motion, which included a Declaration from Stephanie C. Chomentowski, an attorney for Defendant. (Doc. No. 118, Ex. A.)

At the conclusion of the March 21 hearing, I announced that I would deny the Defendant's [*3] Motion respecting his statements at JFK and issue findings and conclusions. See Fed. R. Crim. P. 12(d). Those issued on April 15, 2016. (Doc No. 123.) At this same hearing, I also announced my tentative decision to deny the instant Email Suppression Motion, subject to reviewing Defendant's supplemental submission. Having reviewed the submission, I will deny Defendant's Motion.

I. Factual Findings

During the March 21 hearing, the Government called FBI Special Agent Vickie Humphreys, whose testimony I credit. I find that the Government has proven the following facts by a preponderance of the evidence. Fed. R. Crim. P. 12(d); United States v. Lowe, 791 F.3d 424, 432 n.4 (3d Cir. 2015).

In October 2010, in connection with its investigation of Defendant, the Government prepared search warrants directed at two internet service providers--Google and 1&1 Internet--pursuant to the Stored Communications Act (enacted as Title II of the Electronic Communications Privacy Act). See 18 U.S.C. § 2703(a)-(c); (Doc. No. 116, Suppress. Hr'g Tr. at 8-9.). FBI Special Agent Stephen R. Gray signed the supporting affidavits, relying on, inter alia, witness statements, bank records, emails, and related documents to make out probable cause. Gray also relied on information obtained from the FBI's February 2010 interview of Defendant at [*4] JFK Airport (during which it learned Defendant's company email account: dharder@chestnut-consulting.com).

On October 15, 2010, then Magistrate Judge Restrepo approved the two search warrant applications. (Tr. at 8.) Additionally, on the Government's Motion, Judge Restrepo sealed the supporting affidavits. Each warrant also had an "Attachment A," listing "Property to Be Searched." Attachment A to the Google Warrant listed the "Property to Be Searched" as information associated with the email accounts dmitrij.harder@gmail.com (Defendant's email address) and aryjenko@gmail.com (Ryjenko's email address). (Doc. No. 79 at Ex. A, Attach. A.) Attachment A to the 1&1 warrant listed the "Property to Be Searched" as information associated with Defendant's company email account dharder@chestnut-consulting.com. (Id. at Ex. B, Attach. A.)

Each warrant also had an "Attachment B," listing "Items to be Seized." Attachment B provided that any seized item "constitute[] fruits, evidence and instrumentalities of violations of 15 U.S.C. § 78dd-1 et seq. (Foreign Corrupt Practices Act), 18 U.S.C. § 1343 (Wire Fraud), 18 U.S.C. § 1957 (Money Laundering), 18 U.S.C. § 371 (Conspiracy), 18 U.S.C. § 1001 (False Statements), and 31 U.S.C. § 5314 (FBAR)," involving Dmitrij Harder, Andrey Ryjenko, Tatjana Sanderson (the [*5] Subjects) since February 1, 2007 . . . ." (Doc. No. 79, Exs. A, B, Attachs. B.) In Attachment B, the Government further limited the seizure to information pertaining to the following seven matters:

1) Communications between the Subjects;

2) Communications between the Subjects and employees of Chestnut Consulting Group, Inc. or Dmitrij Harder;

3) Communications between the Subjects and EBRD employees;

4) Communications between the Subjects and officers, employees, or agents of several enumerated Russian energy companies;

5) Communications between the Subjects and financial institutions at which the Subjects banked during the course of the scheme;

6) Communications relating to payments to or from the Subjects to facilitate the scheme; and

7) Records relating to who created, used, or communicated with the account or identifier, including records about their identities and whereabouts.

(Doc. No. 79, Exs. A, B, Attachs. B.)

Special Agent Humphreys served the Google warrant by fax on October 15, 2010 and served the 1&1 Warrant in person on October 18, 2010. (Tr. at 9.) Within some ten days of receipt, both companies had complied with the warrants and produced the entirety of the requested email accounts. [*6] (Id.) Defendant alleges that the Google emails spanned 2006 to 2010, and that 1&1 emails spanned 2007 to 2010. (Doc. No. 79 at 7.) The Google production included thirteen emails or attachments between Defendant and his counsel, Stephen Lacheen. (Id.; Doc. No. 118, Ex. A at 2.) It also included 631 emails between Defendant and his former attorney, Sergei Bespalov, of which Defendant alleges "approximately two dozen" constituted attorney client communications. (Id.) Although the Google production apparently also included four emails between Defendant and another former attorney, Dmitrij Filippov, Defendant does not claim privilege respecting these emails. Finally, the Google production included emails between Ryjenko and his counsel. (Doc. No. 79 at 7.) Taken together, the search warrants yielded some 11,919 records (emails and attachments). (Doc. No. 118-1, Decl. at 1.)

On October 28, 2010, the FBI shared the search warrant returns with the City of London Police, which was also investigating Ryjenko and Sanderson. (Doc. No. 102 at 4; Tr. at 9.) The FBI kept a copy of the search warrant returns but did not review them. (Tr. at 11.) Shortly after, a City of London Police detective informed [*7] the FBI that he had seen the header of an email containing potentially privileged information and then stopped reading. (Doc. No. 102 at 4, Tr. at 10.) In response, the Government instituted a segregation and filter process to ensure that its review of the seized documents conformed to the warrant's requirements and did not otherwise violate attorney-client privilege. (Doc. No. 102 at 4; Tr. at 9-10.)

To further this objective, on December 14, 2010, the FBI submitted a request to a computer forensics laboratory to segregate potentially privileged emails. (Id.) The laboratory returned non-privileged emails to the FBI in February 2011. (Id.) Accordingly, the FBI Agents' subsequent (and only) review of the warrant returns was limited to non-privileged documents. (Tr. at 12-13.)

Once the FBI received the screened returns, Agent Humphreys conducted targeted searches for documents "between or among Mr. Harder, Mr. Ryjenko, and Ms. Sanderson and . . . certain key points of the investigation where deals were being solidified, [and] payments were anticipated coming to Chestnut Consulting." (Tr. at 13.) The Government's review of the seized communications thus required it to "identify and seize [*8] the more limited set of documents that constitute evidence of crimes within the scope of Attachment B." (Doc. No. 102 at 12.) Additionally, Agent Humphreys limited her review to communications occurring after February 1, 2007. (Tr. at 13.) Once she completed her initial targeted review, Agent Humphreys did not again look at the documents. (Id. at 14.)

To date, the Government has produced all the search warrant returns to Defendant. (Id.) On September 14, 2015, Defendant's Counsel contacted both Google and 1&1 requesting information pertaining to their responses to the warrants, including a request for: 1) the physical location of seized data, and 2) an explanation for why they did not notify Defendant of the seizure. (Doc. No. 79, Ex. D.) Neither Google nor 1&1 responded.

Defendant now moves to suppress the documents the Government obtained from Google and 1&1. (Doc. No. 79.)

II. Legal Standard

The Government must show by a preponderance of the evidence the reasonableness of each individual act constituting a Fourth Amendment search and seizure. See United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005).

A magistrate judge's initial probable cause determination is entitled to "great deference." Id.; United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993) ("[T]he duty of a reviewing court is simply to ensure that the magistrate [*9] had a substantial basis for . . . conclud[ing] that probable cause existed.") (citing Illinois v. Gates, 393 U.S. 410, 419 (1969) (internal citations omitted)). Additionally, "the exclusionary rule does not necessarily apply every time a Fourth Amendment violation occurs." United States v. Wright, 625 F. App'x 99, 102 (3d Cir. 2015). Rather, suppression is appropriate only where police behavior is "deliberate, reckless, or grossly negligent." Id.; see also Herring v. United States, 555 U.S. 135, 140, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) ("[Suppression] has always been our last resort, not our first impulse.") (further citations omitted).

III. Conclusions of Law

Defendant argues that the search warrants were impermissibly overbroad, and that as a result, the Government seized information outside the warrant's scope, including privileged emails. Defendant also argues that the warrants were deficient because: 1) they lacked probable cause; 2) Judge Restrepo lacked authority to approve them; and 3) the Government failed to comply with notification requirements. I do not agree.

a. Scope and Overbreadth

A valid search warrant "must contain, either on its face or by attachment, a sufficiently particular description of what is to be seized." Bartholomew v. Pennsylvania, 221 F.3d 425, 429 (3d Cir. 2000). As it did here, the Government often shows particularity by attaching to the warrant the list of items to be seized. See United States v. Wright, 493 F. App'x 265, 267 (3d Cir. 2012) ("It is common for applicants to fill [*10] in these sections by writing, "See ATTACHMENT A" or "See ATTACHMENT B." Attachment A is normally a description of the property to be searched, and Attachment B is normally a listing of the items to be searched for or seized."). The Third Circuit has acknowledged that during the execution of a sufficiently particular warrant, it is "certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized." United States v. Stabile, 633 F.3d 219, 234 (3d Cir. 2011) (citations omitted). As such, a cursory examination of non-responsive documents during the execution of a valid warrant does not violate the Fourth Amendment. Id.

Here, in Attachment B to each warrant, the Government detailed precisely the items to be seized, including only those documents relating to, inter alia, the alleged EBRD bribery and money laundering schemes. The warrants further required that any seized emails involve the Subjects and pertain to seven enumerated categories. (Doc. No. 79, Exs. A & B, Attachs. B (identifying relevant communications and records.).) Both warrants also included a temporal limitation on the emails to be seized: from February 1, 2007 forward. These requirements more [*11] than suffice to identify the relevant period, constrain the reviewing agents' discretion, and limit the warrants' scope.

Defendant nonetheless argues that the warrants were deficient because they lacked "search protocols." He relies on a suggestion in a concurring Ninth Circuit opinion that warrant applications for electronic seizures include search protocols to prevent investigating agents from "examining or retaining any data other than that for which probable cause is shown." United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1179 (9th Cir. 2010) (Kozinski, C.J., concurring). The en banc majority in Comprehensive Drug Testing did not impose such a requirement, however. Indeed, courts that have addressed the issue--including the Third Circuit--have not followed Judge Kozinski's suggestion. See, e.g., Stabile, 633 F.3d at 234 (permitting the seizure and subsequent off-site search of six hard drives pursuant to a search warrant lacking an ex ante search protocol); United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005) (search warrant need not "contain a particularized computer search strategy"); United States v. McNamara-Harvey, No. CRIM.A. 10-219, 2010 U.S. Dist. LEXIS 106141, 2010 WL 3928529, at *4 (E.D. Pa. Oct. 5, 2010) (rejecting Defendant's overbreadth argument based on Comprehensive Drug Testing); United States v. Bowen, 689 F. Supp. 2d 675, 681 (S.D.N.Y. 2010) ("[W]e join . . . several other federal courts in holding that the Fourth Amendment does not require a search warrant to [*12] specify computer search methodology."), aff'd sub nom., United States v. Ingram, 490 F. App'x 363 (2d Cir. 2012); United States v. Fumo, No. CRIM.A. 06-319, 2007 U.S. Dist. LEXIS 80543, 2007 WL 3232112, at *6 (E.D. Pa. Oct. 30, 2007) ("[S]earch protocols and keywords do not mark the outer bounds of a lawful search; to the contrary, because of the nature of computer files, the government may legally open and briefly examine each file when searching a computer pursuant to a valid warrant."). Defendant's reliance on Comprehensive Drug Testing is thus unpersuasive.

Defendant next argues that the warrants were facially invalid because the Government did not provide the underlying sealed affidavits to Google or 1&1. (Doc. No. 102.) I disagree. The Government was not required to provide the sealed affidavits to Google and 1&1 because neither company was required to conduct a detailed search of the seized accounts. Rather, the Third Circuit and sister circuits have repeatedly upheld the two-step process the Government employed here for executing search warrants for electronically stored information.

In Stabile, for instance, the Third Circuit approved the Government's off-site search of six seized hard drives because the "practical realities of computer investigations preclude on-site searches." 633 F.3d at 234. The Stabile Court recognized that [*13] electronic-based searches--which are "time consuming and require trained forensic investigators"--necessarily cannot be "rushed by a cursory on-site search." Id. The Third Circuit thus found reasonable the Government's initial seizure of large amounts of potentially non-responsive data, followed by a subsequent off-site filtering and search of those data. Id. Plainly, the Stabile Court's approval of this two-step process applies not only to the seizure of physical electronics (e.g., computers and hard drives) but also to that of electronic data (e.g., email accounts); see also Fed. R. Crim. P. 41(e)(2)(B) (permitting a "later review of the media or information [including electronically stored information] consistent with the warrant").

Because the seizure of electronic data necessarily requires two steps--the internet service provider produces all potentially responsive data, and an independent technician then segregates and reviews that data to ensure warrant compliance--any failure to provide Google and 1&1 with the underlying affidavits did not violate the Fourth Amendment. In these circumstances, providing the affidavits to the providers would have been pointless. See, e.g., United States v. Bach, 310 F.3d 1063, 1065-66 (8th Cir. 2002) ("According to Yahoo!, when executing warrants, technicians [*14] do not selectively choose or review the contents of the named account . . . Yahoo!'s execution of the search warrant in this case did not violate [Defendant's] Fourth Amendment rights); United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006); United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012); United States v. Scully, 108 F. Supp. 3d 59, 95 (E.D.N.Y. 2015) ("[E]very case of which we are aware that has entertained a suppression motion relating to the search of an email account has upheld the Government's ability to obtain the entire contents of the email account to determine which particular emails come within the search warrant."); In the Matter of a Warrant for All Content & Other Info. Associated with the Email Account xxxxxxx gmail.com Maintained at Premises Controlled By Google, Inc., 33 F. Supp. 3d 386, 395 (S.D.N.Y. 2014) ("Google Warrant") ("Not surprisingly, courts have routinely rejected arguments made in the course of suppression motions that a warrant should have required a third party to conduct searches of electronic information."). In sum, the warrants' execution was thus proper and reasonable.

Finally, relying on United States v. Ganias, Defendant argues that the Government's retention of all seized emails (privileged or otherwise) warrants suppression. 755 F.3d 125 (2d Cir. 2014); (Doc. No. 79 at 20-22). In Ganias, the Second Circuit held that the Government's seizure and retention for two and a half years of Defendant's personal records, which were plainly outside the [*15] warrant's scope, violated the Fourth Amendment when the Government used the warrant returns to develop probable cause in an unrelated investigation. Id. at 141.

Here, the circumstances are wholly dissimilar. Agent Humphreys testified that she has not re-reviewed the search warrant returns since her initial 2011 review. (Tr. at 14.) Rather, the Government has retained the returns for proper purposes including, inter alia, authentication. (Doc. No. 102 at 19); see, e.g., Scully, 108 F. Supp. 3d at 101 ("[T]he Government states that any such emails are being retained for authentication purposes only and will not be used in future criminal investigations. Accordingly, consistent with Ganias, suppression is not an appropriate remedy for the alleged improper retention."); see also Google Warrant, 33 F. Supp. 3d at 398 ("[W]e recognize that the Government has a need to retain materials as an investigation unfolds for the purpose of retrieving material that is authorized by the warrant"). Ganias thus provides no support for the result Defendant urges.

The warrants were thus sufficiently particular and were not overbroad. Accordingly, I will deny suppression on these grounds.

b. Privilege

Defendant argues that the Government's failure to provide the sealed affidavits to Google and 1&1 impermissibly [*16] resulted in the production of privileged information. Defendant thus requests a "hearing into who had access to the privileged communications" and the appointment of a special master for document review because "it appears that the FBI and not the DOJ reviewed" the purportedly tainted documents. (Doc. No. 79 at 19-20.) I will deny these requests, which appear intended to delay Defendant's trial needlessly.

Defendant apparently does not understand that the FBI is part of the Department of Justice. His suggestion that there was something improper about the FBI review of this material thus makes no sense. In any event, as I have discussed, the Government has adequately described its extensive efforts--including the establishment of an independent forensics filter team--to segregate potentially privileged information. (Doc. No. 102 at 4, n.1.) Moreover, Agent Humphreys testified credibly that no agent at the DOJ reviewed the search warrant returns before they were screened for potentially privileged communications. (Tr. at 12.) I am thus satisfied that the Government employed proper procedures to exclude emails that were privileged or otherwise outside the warrants' scope, including emails [*17] between Defendant and Mr. Lacheen or Mr. Filippov. See, e.g., In re Search of Elec. Commc'ns in the Account of chakafattah gmail.com at Internet Serv. Provider Google, Inc., 802 F.3d 516, 530 (3d Cir. 2015) (approving of a similar privilege review procedure).

Nor has Defendant shown that he entitled to suppression based on the Government's purported review of privileged communications, including approximately "two dozen" emails between Defendant and his former attorney, Sergei Bespalov. (Doc. No. 118 at 2.) Although Defendant perfunctorily suggests that the Government seized voluminous privileged information, he has made no showing that the Government actually reviewed these communications, much less did so deliberately or in bad faith. (Doc. No. 118 at 2); cf. United States v. Voigt, 89 F.3d 1050, 1066 (3d Cir. 1996) (an intrusion into the attorney-client relationship, standing alone, is not per se prejudicial; a claim of outrageous government conduct premised on intrusion into attorney-client relationship is cognizable only if the defendant can show deliberate action causing actual and substantial prejudice); see also United States v. Trombetta, No. CR 13-227-01, 2015 U.S. Dist. LEXIS 154748, 2015 WL 7289407, at *2 (W.D. Pa. Nov. 16, 2015). Quite to the contrary, Agent Humphreys credibly testified that she may have reviewed "one or two" emails between Defendant and Bespalov (which [*18] did not appear privileged), and that the Government went to great lengths to ensure proper segregation of potentially privileged material. (Tr. at 20.)

Assuming, arguendo, the Government viewed even a few privileged communications, this de minimis "intrusion" does not warrant the wholesale suppression of the approximately 11,919 records at issue. As Agent Humphreys explained, the Government subpoenaed Chestnut Consulting Group (Defendant's company), seeking documents respecting the EBRD investigation. (Id.) In response and without asserting privilege, Chestnut disclosed responsive emails between Defendant and Bespalov that Agent Humphreys also reviewed. (Tr. at 20); see Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1429 (3d Cir. 1991) (disclosures in response to DOJ subpoena waived attorney-client privilege). Moreover, Bespalov testified during the grand jury proceedings as to, inter alia, his communications with Defendant, and I anticipate that Bespalov will testify at trial. See In re Grand Jury Subpoena, 745 F.3d 681, 690 (3d Cir.) (upholding ruling requiring Bespalov to testify before the grand jury based on an application of the crime-fraud exception to attorney-client privilege), cert. denied sub nom., Corp. & Client v. United States, 135 S. Ct. 510, 190 L. Ed. 2d 361 (2014); see In re Grand Jury Subpoena, No. 10-127, 2013 U.S. Dist. LEXIS 8127 , 2013 WL 228115 (E.D. Pa. Jan. 18, 2013). In these circumstances, it is apparent that the Government would have inevitably learned [*19] of any information it purportedly viewed in emails between Defendant and Bespalov, thus vitiating any prejudice to Defendant. Accordingly, the drastic remedy of suppression is not required. See, e.g., Voigt, 89 F.3d at 1066; United States v. Squillacote, 221 F.3d 542, 556-560 (4th Cir. 2000) ("Appellants complain only about the manner by which the government executed the warrant, a complaint that is inadequate to justify the severe remedy of blanket suppression . . . [W]e do not believe that suppression of any evidence derived from the privileged conversations would be proper in this case, given that the privilege is a testimonial or evidentiary one, and not constitutionally-based.")

Finally, to the extent Defendant asks me to suppress any fruits of the Government's review of the privileged emails, I decline to do. See United States v. Marashi, 913 F.2d 724, 731 n.11 (9th Cir. 1990) ("[N]o court has ever applied the [fruit of the poisonous trees] theory to any evidentiary privilege and . . . we have indicated we would not be the first to do so.") (emphasis in original); cf. Nickel v. Hannigan, 97 F.3d 403, 409 (10th Cir.1996) (refusing to suppress fruits of a seized privileged communication); United States v. Lefkowitz, 618 F.2d 1313, 1318 n. 8 (9th Cir.1980) ("Because we reject . . . [Defendant's] argument that the marital privileges are somehow constitutionally grounded in, among other locations, the Fourth Amendment, we doubt that a secondary source of information obtained [*20] through information protected by the confidential marital communications privilege would in any way be 'tainted.'").

Defendant is thus not entitled to suppression on this ground.

c. Probable Cause

Defendant argues that the warrants lacked probable cause "in the first instance." (Doc. No. 79 at 1, 17.) Defendant also argues that the affidavits supporting the warrant applications were based on purportedly illegally obtained information, namely the alleged custodial interrogation of Defendant at JFK Airport. (Id.at 18.) Defendant thus requests a "taint hearing" to determine whether the Government relied on illegally obtained information in its search warrant applications. (Doc. No. 79 at 10, 18.) I will deny Defendant's request.

In his supporting affidavits, Agent Gray detailed extensive probable cause that Defendant participated in, inter alia, complex bribery and money laundering schemes. The affidavits relied on, inter alia: a whistleblower report that Defendant bribed Ryjenko; banking records reflecting bribes; contracts between Defendant and its clients for "success fees"; interviews suggesting that neither Defendant nor Sanderson provided the bona fide consulting services they claimed [*21] to have provided; and an EBRD report finding that Defendant bribed Ryjenko. Agent Gray's affidavits thus amply made out probable cause, even without considering Defendant's statements during the JFK interview.

In any event, Defendant's argument respecting the JFK interview mistakenly assumes that the interview was illegal. I have already rejected this argument. (Doc. No. 123.) Accordingly, because the Airport interview was proper, the Government did not improperly rely on it in establishing probable cause for the email search warrants.

Finally, assuming, arguendo, the Airport interview was improper under the Fifth Amendment, Defendant is still not entitled to suppression of its physical fruits. See United States v. Patane, 542 U.S. 630, 634, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004) (plurality opinion) (a failure to provide Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements); see also United States v. Latz, 162 F. App'x 113, 118 (3d Cir. 2005) (same); United States v. DeSumma, 272 F.3d 176, 180-81 (3d Cir. 2001) (same). Accordingly, even assuming, arguendo, the JFK interview was improper (which it was not), Defendant has still not shown that I must suppress the fruits of that interview.

d. The Magistrate Judge's Authority

Defendant argues that Judge Restrepo impermissibly issued warrants to be executed in another district. (Doc. No. [*22] 79 at 23-24.) Defendant argues that this violated Rule 41, requiring the Government to obtain search warrants in the district where the items will be seized. Fed. R. Crim. P. 41(b)(1) ("A magistrate judge with authority in the district . . . has authority to issue a warrant to search for and seize a person or property located within the district."). I disagree.

Defendant ignores the SCA's plain language, authorizing a court to issue search warrants for electronic communications provided the issuing court has jurisdiction over the offense under investigation. 18 U.S.C. § 2703(a);see United States v. Noyes, No. 1:08-CR-55-SJM-1, 2010 U.S. Dist. LEXIS 130041, 2010 WL 5139859, at *9 n.9 (W.D. Pa. Dec. 8, 2010). This Court certainly had jurisdiction over this offense based on Defendant's alleged criminal conduct in this District.

Defendant also ignores extensive case law permitting out-of-district electronic search warrants pursuant to the SCA. See, e.g., United States v. Bansal, 663 F.3d 634, 662 (3d Cir. 2011) ("[Defendant] contends that Rule 41(b), which limits a Magistrate Judge's jurisdiction to the District in which he or she sits, trumps ß 2703(a). We, along with other courts to consider the question, reject that contention."); United States v. Berkos, 543 F.3d 392, 398 (7th Cir. 2008) ("Rule 41(b) deals with substantive judicial authority--not procedure--and thus does not apply to ß 2703(a)."); Scully, 108 F. Supp. 3d at 83 ("[Section] 2703(a) authorizes electronic search warrants by a federal magistrate [*23] judge that extend outside his or her district . . . the plain terms of Section 2703, considered with Rule 41, dictate this result."). Rule 41 thus provides no ground for suppression.

e. Notification

Defendant argues that the Government failed to inform him that it had seized his emails and so violated Rule 41. (Doc. No. 79 at 22-23.) He further argues that because it did not obtain a court order pursuant to 18 U.S.C. § 2705, the Government impermissibly directed Google and 1&1 to withhold notification of the Government's seizure. Again, I disagree.

The Government is not required to inform a defendant when it seizes his emails pursuant to the SCA. See 18 U.S.C. § 2703 (law enforcement may require disclosure of electronic communications "without required notice to the subscriber or customer, if [it] obtains a warrant issued . . . by a court of competent jurisdiction."); see also Bansal, 663 F.3d at 662-63 ("The plain text of Rule 41 . . . requires notice only "to the person from whom, or from whose premises, the property was taken."). Indeed, the Third Circuit has explicitly rejected that notice is necessary when the Government provides the internet service provider with a copy of the warrant, as it did here. See id. ("Because [Defendant] does not deny that the warrant was provided [*24] to the internet service providers upon whom the search warrants were executed, we conclude that notice was properly made in this case."); see also In re U.S., 665 F. Supp. 2d 1210, 1221 (D. Or. 2009) ("In this third party context, the Fourth Amendment notice requirement is satisfied when a valid warrant is obtained and served on the holder of the property to be seized, the ISP.").

Defendant next argues without factual basis that because the Government failed to obtain a protective order barring Google and 1&1 from disclosing the seizures, it could not properly direct the providers to withhold notice of the seizures. Apart from supposition, Defendant has offered no evidence suggesting that the Government so instructed Google and 1&1. Indeed, the warrants do not mention any such instruction. Moreover, Agent Humphreys testified credibly that the FBI did not instruct either Google or 1&1 to withhold notice to Defendant. (Tr. at 9.) Defendant has thus not shown that the Government acted improperly concerning notification.

f. Standing

Finally, to the extent that Defendant seeks suppression of Ryjenko's emails, he lacks standing to do so. See United States v. Stearn, 597 F.3d 540, 551 (3d Cir. 2010) ("To invoke the Fourth Amendment's exclusionary rule, a defendant must demonstrate that his own Fourth Amendment rights were violated by the challenged [*25] search or seizure." (citation omitted)). Defendant has not shown that he has a reasonable expectation of privacy in Ryjenko's emails. Accordingly, Defendant is not entitled to suppression of the Google production relating to aryjenko@gmail.com.

IV. Conclusion

The Government has shown that the Google and 1&1 warrants comported with the Fourth Amendment. Moreover, the Government's application for and execution of the warrants fully complied with the law governing electronic seizures. Accordingly, I will deny Defendant's Motion.

AND NOW, this 18th day of April, 2016, upon consideration of Defendant's Motion to Suppress (Doc. No. 79), the Government's Opposition (Doc. No. 102), and all related submissions, and after a suppression hearing, it is hereby ORDERED that Defendant's Motion to Suppress Emails Obtained from Google and 1&1 Internet is DENIED.

AND IT IS SO ORDERED.

/s/ Paul S. Diamond

Paul S. Diamond, J.