After being indicted for mail fraud, wire fraud and
conspiracy to commit mail and/or wire fraud in violation of 18 U.S. Code §1349, Barrett Byron Staton filed a motion for return of property under Rule
41(g) of the Federal Rules of Criminal Procedure. U.S. v.
Staton, et al., Indictment, 2011 WL 8184554 (U.S. District Court for theEastern District of Pennsylvania 2011).
As I’ve explained in other posts, when someone files a Rule 41(g) motion, they are not asking to have evidence suppressed, exactly. They are, instead, asking the court to return
their property to them because it was, or so they argue, seized improperly. As I’ve also noted, if the court grants the
motion, it must return the property to its owner.
While we’re not directly concerned with the facts that led
to the filing of charges against Staton and his co-defendants, Matthew Staton
and William Haken, Jr., I think it’s useful to know how the prosecution arose:
Essentially, (collectively, `Defendants),
would use various office copier brokerage businesses (`Businesses’) to entice
small businesses and non-profit organizations (`Customers’) into executing new
office copier leases by making attractive promises. Defendants did not fulfill
these promises.
They were supposed to use the payments
received from the financing companies as a result of the new leases for the Customers'
benefit (e.g., to pay off their office copier leases). However, the
payments were instead used for personal expenses. When Defendants became
overwhelmed with complaints from the Customers, they would shut down the
Business, only to reopen it under a different company name, and at times, under
a nominee owner. Defendant Barrett Byron Staton also used the Businesses to
obtain financing for personal purchases that included luxury vehicles. . . .
U.S. v. Staton, supra. (From here on, “Staton” refers to Barrett
Byron Staton.)
During the investigation, FBI agents and other officers
executed a search warrant at Staton’s home, where they seized a computer, and
at a self-storage unit, from which they seized “[c]ompact disks” and “`various
other documents’”. U.S. v. Staton, supra. Several
years later (the investigation apparently was in process from 2004 to 2008),
they executed another warrant at Staton’s home and seized
(1) a Grey Averatec Laptop, 3260
series; (2) a Dell CPU, Serial No. X–10–60256–00045–599–844–596; (3) a Dell
CTU, Serial No. CP 384–00144–348–171–542; (4) a Dell CPU, Serial No. BSB
481–J4BG1C6H6C6–KPUFR–FCR4F–2MXFB; (5) `Various CD's’; and (6) a `Number of USB
units.’
U.S. v. Staton, supra.
FBI computer experts examined the “computer hard drives and
other electronic devices” that were seized during the investigation and found
they “documents, including internal office memoranda concerning, and business
records showing, fraudulent deals and e-mails.”
U.S. v. Staton, supra. Since
the prosecution intends to use these documents at Staton’s trial, they are a
target of “discovery,” i.e., the process by which both sides can get access to
evidence the other side intends to use at trial.
After Staton was indicted, the prosecution invited his
lawyer to the U.S. Attorney's Office in Wilmington, Delaware to review the
evidence. U.S. v. Staton, supra. In
March of 2012, Staton went to the office to review the evidence. U.S. v.
Staton, supra. He and his lawyer “`were shown the computer hard drives and
other electronic media devices’” noted above. U.S. v. Staton, supra. At the end of the review, the prosecution “offered
to copy any paper documents or computer data” they asked for. U.S. v. Staton, supra.
On April 26, 2012, Staton asked for an “imaged copy of the seized
materials” and on April 27, the prosecution told Staton’s lawyer that “if he
wanted an imaged hard drive containing data of the material seized during the
2004 and 2008 searches, he would have to send the Government a hard drive.” U.S. v. Staton, supra.
On May 2, Staton’s
lawyer provided two hard drives. U.S. v.
Staton, supra. On May 10, the prosecution gave Staton’s lawyer “imaged hard
drives containing the data of
the items seized during the 2004 and 2008 searches.” U.S. v.
Staton, supra. It also gave him “a
copy of the word search used by the Government's computer expert.” U.S. v.
Staton, supra.
On May 11, Staton’s lawyer “informed the Government that he
and [Staton] could not access the data on these imaged hard drives.” U.S. v. Staton, supra. His email said “the
imaged hard drives did not have accessible materials on them and that while `[t]here
are files, [ ] you can't get into the files. There is also gibberish which I
don't understand.’” U.S. v. Staton, supra.
The lawyer offered to bring the prosecution one
of the hard drives for inspection, noting that he was sending the other hard
drive to Staton’s expert so he could Counsel noted that he was forwarding the other
hard drive to Defendant's expert so he could “have access and physical custody
over it.” U.S. v. Staton, supra.
Staton’s lawyer also asked for “`[a]ny guidance [the Government] and [its]
technical people could give us.’” U.S.
v. Staton, supra.
On May 17, the Court held a status conference on this issue.
U.S. v. Staton, supra. After the
conference, the Government gave Staton “three manuals produced by the
Department of Justice to show [him] and his computer experts how to download
and use free forensic software available on the Internet.” U.S. v. Staton, supra. ( Id.) The software would let
him “access . . . the Internet.” U.S. v.
Staton, supra. ( Id.) It would also allow him “access to the
data stored on the imaged hard drives.” U.S. v. Staton, supra.
Since Staton’s lawyer claimed “he still could not access the
data on the imaged hard drives”, the prosecution, on May 24, gave him “a
Government-issued laptop, pre-loaded with the free forensic software, that
permitted [Staton] to view the data on the imaged hard drives.” U.S. v. Staton, supra. It also told the lawyer that “he would still
need to download some software programs, such as Microsoft Word or Excel, in
order to view the data.” U.S. v. Staton, supra.
Staton’s lawyer “contacted
several information technology professionals to determine the availability and
accessibility of such software programs”, but Staton claimed that “even if he were
to obtain these programs, `there is no guarantee at this point in time that the
programs obtained will access all the files on the computers if all of the
appropriate programs are not obtained.’” U.S.
v. Staton, supra. He therefore filed his Rule 41(g) motion for
return of property “to `avoid that exercise’ of obtaining the necessary
software.” U.S. v. Staton, supra.
On June 4, in response to the Motion, the prosecution met with
Staton’s lawyer and installed “Microsoft Office software (e.g.,
Microsoft Word, Excel and Powerpoint) onto the Government-issued laptop.” U.S. v. Staton, supra. The prosecution “confirmed
that the forensic software, in conjunction with the Microsoft Office programs,
properly opened the data on the imaged hard drives.” U.S. v. Staton, supra.
The prosecution could not access “the
Peachtree data files, since it did not possess the software required for
opening those files.” U.S. v. Staton, supra. (The opinion notes that these files “related
to an accounting software program” Staton used during the time frame at issue
in the indictment. U.S. v. Staton, supra.)
The prosecution did install “trial Peachtreee software on the laptop”, but
Staton “still could not access the Peachtree data files on the imaged hard
drives.” U.S. v. Staton, supra.
On June 6, Staton’s lawyer told the prosecution they had
downloaded the “Peachtree data files onto a different computer”, but the “free
trial . . . installed on the Government-issued laptop did not allow for access
to those files.” U.S. v. Staton, supra.
In his email, the lawyer noted that the “free trial
. . . does not authorize to go back into pre-existing Peachtree documents.” U.S. v. Staton, supra.
On June 7, the prosecution “bought new software that
permitted access to the Peachtree files.”
U.S. v. Staton, supra. It notified Staton’s lawyer and offered him
two options: (i) come to the U.S. Attorney's Office in Wilmington “as soon as
practical to inspect the Peachtree files”; or (ii) buy the same software the prosecution
bought and let the prosecution install it onto “Staton’s Government-issued
laptop to ensure he had access to this data.” U.S. v. Staton, supra.
The “estimated cost” of the software was $569.00.
U.S. v. Staton, supra. On June 8, Staton indicated that his lawyer
would “inspect the Peachtree files on June 9 at the U.S. Attorney's Office.” U.S. v. Staton, supra.
After outlining all this, the district court judge who has
the case began his ruling on Staton’s motion for return of property. U.S. v.
Staton, supra. He noted that Staton
made several arguments for why the property should be returned: (i) “none of the seized items are contraband”
(i.e., things it is illegal to possess, like drugs or child pornography); (ii)
returning the property will let Staton review the data without the need for
“government intervention” or to hire “outside personnel” to access the data;
(iii) the prosecution “no longer needs . . these items” since it has examined
them and copies the files it needs; and (iv) the prosecution has “had “`more
than a reasonable time within which to derive from the items seized that which
it sought.’” U.S. v. Staton, supra.
The prosecution, in turn, argued that (i) it has provided
Staton with the original imaged hard drives plus “`a laptop computer, forensic
software to review the computer data, access to other specialized software
programs, and personalized instruction from government personnel on how to operate
these software programs’”; and (ii) “has a reasonable need” to retain the
property because the items contain evidence . . . for its prosecution in this
case, and it needs to `preserve the integrity of the computer data contained
inside these items.’” U.S. v. Staton,
supra.
The judge found that Staton had “not met his burden of
proving why he is entitled to the return of his property at this
juncture.” U.S. v. Staton, supra. He
noted that since the prosecution “intends to use this evidence to prove its
case at trial, its need for these materials remains ongoing in this case and
the Motion will be denied.” U.S. v. Staton, supra. The judge also explained that if the
prosecution were ordered to return the
materials it seized in 2004 and 2008
prior to trial, [Staon] could destroy the data contained therein or create new
data, then claim bad faith retention by the Government. Moreover, by
maintaining custody and control over the materials that were seized in 2004 and
2008, the Government can ensure that the chain of custody for the data
contained in these materials is preserved for trial.
U.S. v. Staton, supra.
The judge also found that, based on the facts outlined
above, the prosecution had “met, and exceeded, its obligations to allow [Staton]
access to the materials.” U.S. v. Staton, supra. He explained that this is not a case in which
the prosecution has
hindered [Staton’s] access to the
materials . . . or has only allowed access to the materials at the eve of
trial. The facts clearly point to the contrary. The Government has made these
materials available to the defense for at least the last five months. It is [Staton]
who has not taken advantage of the Government's offers of access to these
materials.
Accordingly,
the circumstances in this case cannot support a grant of a Motion for Return of
Property.
U.S. v. Staton, supra.
(In a footnote, the judge says Staton “presently lives in
Florida” and claims “family obligations prevented him from coming to Wilmington
to view” the materials with his lawyer. U.S. v. Staton, supra.)
So, as must be obvious, the judge denied Staton’s motion for
return of property. U.S. v. Staton,
supra.
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