MEMORANDUM AND ORDER
The instant action arises out of a multidefendant indictment alleging that defendants participated in a fraudulent scheme to publicly report false and materially overstated sales figures to create artificial demand for, and increase the share price and trading volume of, the common stock of Spongetech Delivery Systems, Inc. (“Spongeteeh”). Metter is charged with conspiracy to commit securities fraud, in violation of 18 U.S.C. §§ 371, 3551 et seq. (Count 1), conspiracy to commit obstruction of justice, in violation of 18 U.S.C. §§ 371, 3551 et seq. (Count 2), securities fraud, in violation of 15 U.S.C. §§ 78j(b), 78ff, 18 U.S.C. §§ 2, 3551 et seq. (Count 3), obstruction of justice, in violation of 18 U.S.C. §§ 2, 1505, 3551 et seq. (Count 4), conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(h), 3551 et seq. (Count 5), and perjury, related to Metter’s testimony before the Securities and Exchange Commission (“S.E.C.”), in violation of 18 U.S.C. §§ 2,1621(1), 3551 et seq. (Count 9).
Metter moves to (i) dismiss the counts against him for improper venue (see Metter Motion to Dismiss, Doc. Entry No. 128), and (ii) suppress the evidence obtained pursuant to search warrants executed at his home and Spongetech’s office, as well as a search of his personal email account (see Metter Motion to Suppress, Doc. Entry No. 129).
DISCUSSION
I. Metter’s Motion to Dismiss for Improper Venue
Metter moves to dismiss Counts 1-5, and 9 of the Superseding Indictment (Superseding Indictment (“S.I.”), Doc. Entry No. 38), on the ground that the government has failed to establish that venue is proper in the Eastern District of New York. In Counts 1-5, the Superseding Indictment states that the conduct at issue occurred “within the Eastern District of New York and elsewhere.” (S.I. ¶¶ 24-25, 27, 30, 32, 34.) Metter’s pre-trial challenge to the appropriateness of venue as to Counts 1-5 is frivolous. “The law of this Circuit is clear that the Government’s burden is satisfied with regard to pleading venue by alleging that criminal conduct occurred within the venue, even if phrased broadly and without a specific address or other information.” United States v. Bronson,
Should the government fail to establish venue by a preponderance of the evidence at trial, Metter is not precluded from renewing his motion at the conclusion of the government’s case. See Bronson,
Metter also moves to dismiss Count 8, the perjury charge stemming from his testimony before the S.E.C. On October 5, 2009, the S.E.C. suspended trading of Spongetech shares. On October 13, 2009, the S.E.C. deposed Metter in the District of Columbia regarding Sponge-tech’s recent activity in the financial markets. (S.I. ¶47.) In March 2010, the United States Attorney’s Office for the Eastern District of New York opened its investigation into Spongetech, after preliminary investigations were initiated by the Internal Revenue Service (“I.R.S.”) and the Federal Bureau of Investigation (“F.B.I.”) in November 2009. (See Gov’t Letter dated Feb. 10, 2012, Doc. Entry No. 207.) On May 3, 2010, the United States Attorney’s Office for the Eаstern District of New York filed a sealed complaint against Michael Metter and Steven Moskowitz. (See Complaint, Doc. Entry No. 1.) On May 5, 2010, the S.E.C. filed a complaint against Spongetech, Metter, Moskowitz, other individuals associated with Spongetech, and other entities controlled by the individual defendants. (See S.E.C. v. Spongetech, et al., 10-CV-2031
The record makes it clear that Metter was deposed in the District of Columbia, at the behest of S.E.C. attorneys located in that District, prior to the commencement of the criminal and civil investigations undertaken by the government in this District. As set forth above, the government’s burden to establish venue at the pleadings phase is less arduous. In United States v. Clark,
In the instant action, Metter testified to the trаding of Spongetech stock, which occurred in this District and elsewhere. The effect of the crime was felt in this District as several victims have submitted letters detailing the financial losses that they incurred in this District as a result of purchasing Spongetech stock. Further, the S.E.C. and the government filed charges in this District, at least in part, as a result of the S.E.C.’s depositions of defendant Metter and other codefendants. Metter’s allegedly perjured testimony would have impeded the government’s and the S.E.C.’s investigations in this District. These considerations lead the Court to conclude that, at this stage in the litigation, venue is proper in this District. Accordingly, Metter’s motion to dismiss with respect to Count 8 is denied without prejudice to renew at the conclusion of the government’s case.
II. Metter’s Motion to Suppress
As set forth above, the government filed a sealed criminal complaint against Metter on May 3, 2010. The S.E.C. filed a civil complaint against Metter on May 5, 2010. The government then sought and executed several court authorized search warrants, which are the subject of defendant’s motion to suppress certain digital evidence.
A. Background
On May 4, 2010, Special Agent Thomas McGuire of the F.B.I. submitted an affidavit in support of an application for a warrant to search Metter’s home, located at 1 Tinker Lane, Greenwich, Connecticut 06830. (See McGuire Affidavit for Application to Search Metter’s Home (“McGuire Home Aff.”), attached as Ex. 3 to the Affidavit of Maranda Fritz (“Fritz Aff.”), Doc. Entry No. 132.) The Affidavit set forth detailed information rеgarding the investigation and incorporated the Complaint by reference. (Id.) The Affidavit indicated that Metter used computers from his home to further the fraudulent scheme and that agents had recovered numerous computer-generated documents related to the scheme from the Metters’ household trash.
The Honorable Warren Eginton, United States District Judge for the District of Connecticut, granted the application for thе search warrant on May 4, 2010. (See Metter Home Search Warrant, attached as Ex. 4 to the Fritz Aff.) The government searched Metter’s home and seized four computer hard drives, paper documents, and approximately $27,000 in cash.
On May 4, 2010, Special Agent John Carrano of the I.R.S. submitted an affidavit in support of an application for a warrant to search the offices of Spongetech and RM Enterprises International Ltd. (“RM Enterprises”), both of which were located in New York, New York. (See Carrano Affidavit for Office Search (“Carrano Aff.”), attached as Ex. 5 to the Fritz Aff.) The Affidavit set forth detailed information regarding the investigation and incorporated the Complaint by reference. (Id. ¶¶ 1, 5-48.) The Affidavit detailed the manner in which computers located in those offices were used to perpetrate the fraudulent scheme. (Id. ¶¶ 51, 53.) The Affidavit requested permission to “search, copy, image and seize the computer hardware” and to perform an off-site search for “evidence, fruits, and instrumentalities” of violations of specified criminal statutes. (Id. ¶ 60.) The Affidavit included a detailed attachment, Attachment A, specifying the categories of documents to be located.
The Honorable Kevin Nathaniel Fox, United States Magistrate Judge for the Southern District of New York, granted the application for the search warrant on May 4, 2010. (See Office Search Warrant, attached as Ex. 6 to the Fritz Aff.) The government searched Spongetech’s Office and seized 61 computer hard drives and 67 boxes of paper documents.
On November 1, 2010, Special Agent McGuire submitted an affidavit in support of an application for a warrant to search the personal email accounts of defendant Metter and several of his co-defendants. (See McGuire Affidavit for Application to Search Email (“McGuire Email Aff.”), attached as Ex. 8 to the Fritz Aff.) The Affidavit described the investigation and the Spongetech scheme and set forth the manner in which the personal email accounts were used to further the scheme. (Id. ¶¶ 118-128.) The Affidavit requested permission to seize from the respective Internet Service Providers (“ISPs”) “all images and all text messages” stored, explaining that:
First, because voluminous amоunts of information can be stored in a computer account, and because it might be stored in a deceptive fashion or with deceptive file names to conceal criminal activity, the searching authorities must carefully open and examine all the stored data to determine which of the various files are evidence, fruits, or instrumentalities of the crime.... Second, this sorting process must be done in a controlled environment, due to the extensive array of computer hardware or software that might be necessary....
(Id. ¶ 130.) The Affidavit included a detailed attachment, Attachment A-l, specifying the categories of electronic correspondence to be located.
On November 1, 2010, the Honorable Andrew L. Carter, then United States Magistrate Judge for the Eastern District of New York, authorized the search war
With respect to the seized computer hard drives, the government created images
This case originally was assigned to a different district judge of this Court. The parties first appeared before this Court at a status conference held on November 22, 2010. (See Transcript of Nov. 22, 2010 Status Conference (“11/22/10 S/C Tr.”), attached as Ex. 10 to the Fritz Aff.) At that conference, the government initially stated that it had seized roughly 50 hard drives and intended to provide the defendants with imaged copies by January 2011. (Id. at 5.) When questioned by the Court about the procedures in place for conducting a privilege review of the electronic evidence, the government indicated that it had not begun the privilege review and was unable to give an estimated completion date for its review. (Id. at 5-8.) The Court directed the parties to confer regarding discovery and to update the court as to the progress achieved. (Id. at 12-13.) The government provided the Court with a summary of the discovery process on January 25, 2011, to which none of the defendants filed objections.
On February 4, 2011, the parties appeared before the Court for another status conference. (See Transcript of Feb. 4, 2011 Status Conference (“2/4/11 S/C Tr.”), attached as Ex. 11 to the Fritz Aff.) At that conference, the government represented that it would produce to defendants a list of the computers and emails seized pursuant to the search warrants by March 2011. (Id. at 7.) With respect to the imaged, seized hard drives and email accounts, the government indicated that it intended to set up a “taint team” to review that imaged evidence for any privilege issues. (Id. at 19.) The defendants agreed to provide the government with a list of attorneys for the government’s privilege review within one week of the status conference. (Id. at 20.) The Court exhorted the parties to work together to resolve these issues. (Id. at 20-21.)
Upon further questioning by the Court, the government indicated that it intended to produce all of the imaged evidence (without reviewing it first) to all defendants and then, at a later time, conduct a privilege review of the imaged evidence. (Id. at 24-26.)
Metter’s attorney expressed concern for this approach:
It is very troubling to me that the Government would take the position that they can come in and seize a computer with probably years’ worth of confidential completely irrelevant material on it and then disseminate it out to a group of other individuals. This is completely apart from attorney-client privilege.This is really a matter of irrelevant personal confidential data. Heaven only knows what’s on there. Financial data, personal information, relationship information. That cannot — that can’t be permissible.
(Id. at 27.) Metter’s counsel then suggested that each attorney review the computer of his or her client to weed out imaged evidence that fell outside the scope of the search warrant to avoid “willy-nilly distributing” of personal and unrelated imaged evidence to every party in the case. (Id. at 29.) The government objected, arguing that its discovery productions should not be limited to any particular defendant’s determination that a document is outside the scope of the search warrant. (Id. at 29- 30.) The Court explained that a defendant’s objection would not be taken as fact, but that the government has a duty to make its own determination as to whether or not a particular imaged document fell within the scope of the warrant. (Id. at 30- 31.) The Court ordered the government to produce an inventory of the computers seized and for defense counsel to review his or her client’s computers for what he or she believed to be irrelevant and privileged evidence. (Id. at 32-33, 36.)
On February 28, 2011, the government filed a discovery status report with the Court. In its letter, the government stated that it would permit the defendants to inspect the various hard drives at the government’s office and to lodge objections to any imaged evidence that the defendant believed fell outside the scope of the search warrant. (See 2/28/11 Gov’t Letter, Doc. Entry No. 101, at 2.) Yet, the government further stated that: “Any attorney can request in writing a copy of any other computers seized, and arrangements can then be made for that attorney to provide the government with appropriatеly-sized hard drives for the purpose of copying the requested computers.” (Id.) Metter immediately filed a letter indicating his continued objections to the “notion that the government can seize dozens of entire hard drives, fail to conduct any review of the extent to which the material far exceeds the scope of a warrant, but then disseminate that material to others.” (See 02/28/11 Metter Letter, Doc. Entry No. 102.)
As of the time the instant motion was fully briefed, approximately fifteen months after the government executed its search warrants, the government had not conducted its review of the evidence seized and imaged to determine whether any of that imaged evidence fell outside the scope of the search warrant. Additionally, as of the dаte of this Memorandum and Order, it remains uncertain when the government would complete its privilege review of the imaged evidence.
B. Analysis
Metter contends that the government’s significant delay in conducting off-site searches of the imaged evidence merits blanket suppression of all seized and imaged evidence as routine delays of this duration would eviscerate the Fourth Amendment’s privacy protections. The government counters that the wholesale seizure of hard drives and email accounts and off-site review of such electronic data is necessary given the nature of such evidence and has widely been deemed permissible under the Fourth Amendment. The government further contends that the search warrants were properly executed in this case. The government argues that its prompt return of the original electronic evidence (ie., the physical hard drives) negates any harm arising out of its delayed review of the imaged evidence as to whether or not that evidence fell within the scope of the warrant. With respect to the passage of time between the seizure and off-site relevance review, the government contends that it reviewed the imaged
This case raises an interesting issue of first impression in this Circuit that may impact electronic discovery in future criminal investigations and cases: How long may the government retаin seized and imaged electronic evidence before conducting a review of that evidence to determine whether any of it falls outside the scope of a search warrant? The answer to this question requires a careful case-by-case factual analysis because what may be appropriate under one set of facts and circumstances may not be so under another. For the reasons discussed below, the Court finds that the government’s more than fifteen-month delay in reviewing the seized electronic evidence, under the facts and circumstances of this case, constitutes an unreasonable seizure under the Fourth Amendment.
An image of an electronic document contains all оf the same information as the original electronic document. To the extent the owner or custodian of the electronic document has privacy concerns regarding the government’s retention of the original document, the owner would have identical privacy concerns with the government’s retention of the imaged document. For example, the seizure of a personal email account could, in addition to evidence responsive to a search warrant, yield personal communications between a cheating spouse and his or her paramour or communications between an individual and his or her family regarding an embarrassing medical condition. These hypothetical communications clearly fall outside the scope of the search warrants in this case (and arguably those in most criminal cases). Thus, the government’s long-term retention of images of these communications presents the same privacy concerns as would the government’s retention of the original communications.
Under the Fourth Amendment’s Warrant Clause, “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 clause was intended as a bulwark against the ‘general warrant’ abhorred by the colonists and protects against a general, exploratory rummaging in a person’s belongings.” United States v. Cioffi,
Searches for documents (whether in electronic or paper form) pose unique Fourth Amendment concerns. Courts have recognized that “searching a сomputer for evidence of a crime can be as much an art as a science.” United States v. Vilar,
As technology and white collar and other complex criminal litigation evolved, courts began distinguishing between the execution of search warrants seeking physical evidence such as guns or narcotics, and the execution of search warrants seeking documents (whether in electronic or paper form). As the Supreme Court explained more than thirty-five years ago, “[i]n searches for papers, 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.” Andresen v. Maryland
Computers and electronic information present a more complex situation, given the extraordinary number of documents a computer can contain and store and the owner’s ability to password protect and/or encrypt files, documents, and electronic communications. As a result, the principle of permitting law enforcement some flexibility or latitude in reviewing paper documents just described, has been extended to computerized or electronic evidence. Courts have applied the principles recognized in Andresen “in analyzing the method used by the police in searching computers and have afforded them leeway in searching computers for incriminating evi
The warrants drafted in this case comport with modern standards of reasonableness. The warrants requested permission to seize computer hard drives and email accounts and to image them offsite. (See McGuire Home Aff. ¶ 58; Carrano Aff. ¶ 60; McGuire Email Aff. ¶ 130.) The Court does not expect the government to make onsite determinations of whether a file or document contained on a hard drive or in an email account falls within the scope of the warrant and, thus, off-site imagining is a necessity of the digital era. See, e.g., United States v. Burns,
The government seized 61 computer hard drives from Spongetech, four computer hard drives from Metter’s home, and a snapshot of all of the activity that had occurred in Metter’s personal email account.
The Court recognizes that under current law there is no established upper limit as to when the government must review seized electronic data to determine whether the evidence seized falls within the scope of a warrant. See, e.g., Mutschelknaus,
The parties have not provided the Court with аny authority, nor has the Court found any, indicating that the government may seize and image electronic data and then retain that data with no plans whatsoever to begin review of that data to determine whether any irrelevant, personal information was improperly seized. The government’s blatant disregard for its responsibility in this case is unacceptable and unreasonable. See United States v. Debbi
This conclusion leaves the Court with a final determination to make: What is the appropriate remedy in this case? It is well-sеttled that “[g]overnment agents ‘flagrantly disregard’ the terms of a warrant so that wholesale suppression is required only when (1) they effect a “widespread seizure of items that were not within the scope of the warrant,’ ... and (2) do not act in good faith.” United States v. Liu,
The first prong is satisfied here as the “snapshot” the government sought permission to take resembles a general search. The warrants specifically sought, and the government was granted, permission for the widespread seizure of all information contained in the personal email accounts and computers at issue with imaging and review to occur off-site. (See McGuire Home Aff. ¶ 58; Carrano Aff. ¶ 60; McGuire Email Aff. ¶ 130.) The government subsequently “imaged” all of the seized items. There can be no doubt under these circumstances that this is a “general search” as described above.
The lack of good faith by the government can be inferred from its conduct in this case. In the affidavits in support of the search warrants issued in this case, the government promised to review the evidence seized offsite to determine whether any evidence fell outside the scope of the warrants. {See McGuire Home Aff. ¶ 58; Carrano Aff. ¶ 60; McGuire Email Aff. ¶ 130.) The government then failed to commence the review, despite repeated requests from defense counsel and directions from the Court to do so. In fact, the government seemed shocked that the Court would require such a review, and, as mentioned above, threatened to provide all of the evidence seized and imaged to each defendant in the case, without conducting any such review. {See 2/4/11 S/C Tr. 24-26, 29-30; 2/28/11 Gov’t Letter at 2.) The government’s own conduct and statements indicate that it had no intention of fulfilling its obligations as promised in the search warrants. Nor has the government presented any evidence or arguments to the effect that it failed to fulfill this obligation due to limited resources, such as it has argued in other cases.
The Court has not reached this conclusion lightly. However, the Court cannot, in'the interest of justice and fairness, permit the government to ignore its obligations. Otherwise, the Fourth Amendment would lose all force and meaning in the digital era and citizens will have no recourse as to the unlawful seizure of information that falls outside the scope of a search warrant and its subsequent dissemination. Accordingly, Metter’s motion to suppress is granted. This conclusion is limited to the • electronic evidence seized and imaged pursuant to the Metter Home Search Warrant, Office Search Warrant, and Email Search Warrant and does not include the paper documents and currency seized pursuant to those warrants.
CONCLUSION
Metter’s motion to dismiss on the basis of improper venue is denied without prejudice to renew at the conclusion of the government’s case at trial. Metter’s motion to suppress the electronic evidence seized and imaged pursuant to the Metter Home Search Warrant, Office Search Warrant, and Email Search Warrant is granted.
SO ORDERED.
Notes
. Certain co-defendants joined in these motions and subsequently withdrew their joinder because they either pled guilty or will plead guilty to certain charges in satisfaction of the indictment.
. The evidence obtained from the Metters' household trash is not affected by this Decision and Order as it is well-established that an individual has no expectation of privаcy in his trash. See, e.g., United States v. Caputo,
. An “image” of a hard drive is a copy of a computer's hard drive that "duplicates every bit and byte on the target drive including all files, the slack space, Master File Table, and metadata in exactly the order they appear on the original.” United States v. Vilar,
. Metter does not challenge the Metter Home Search Warrant or the Office Search Warrant for particularity or overbreadth. His challenge with respect to the evidence seized and imaged by these warrants is the government’s mishandling of the off-site review of the evidence. Metter challenges the Email Search Warrant on the same ground, in addition to overbreadth. Becausе the Court has granted Metter’s motion to suppress on the ground of the manner the government executed the warrants, the Court need not address the over-breadth challenge to the Email Search Warrant.
. As discussed earlier, the government seized hard drives from other defendants, in addition to those seized from Metter at his home and Spongetech office. The evidence seized from the other defendants is not the subject of this Decision and Order, as those defendants have pleaded guilty or are in the process of pleading guilty. Accordingly, nothing in this Decision and Order should be construed as limiting the: government from relying upon evidence seized from the other defendants.
. The government’s seizure of a snapshot of Metter’s personal email account had no effect on his continued access to or use of that account.