After “Paul Robert Gunter [was] convicted and sentenced on
multiple counts related to two international investment fraud schemes”, he
appealed. U.S. v. Odoni, 2015 WL 150740 (U.S. Court of Appeals for the 11th Circuit 2015). The case is captioned “U.S. v. Odoni” because Odoni and Gunter
were both convicted on the same charges after a joint trial. U.S.
Odoni, supra. Since they raised
different issues on appeal, the court divided its opinion into two sections,
addressing each in a separate section.
You can, if you are interested, read about the facts that
led to the prosecutions at issue in this opinion in the news stories you can
find here and here.
The Court of Appeals began its analysis of Gunter’s appeal
by explaining that he
provided escrow services and managed
bank accounts in connection with the two investment-fraud schemes. He raises
two issues on appeal. The only issue that warrants discussion is
whether the district court erred in denying Gunter's motion to suppress
electronic evidence (and the fruits thereof), which the United States received
directly from the United Kingdom's Serious Fraud Office (SFO) in connection
with an ongoing international investigation into the fraud schemes, and then
searched without obtaining a warrant.
U.S. v. Odoni, supra.
The court begins its consideration of Gunter’s appeal by
noting that the
only issue that warrants discussion
is whether the district court erred in denying Gunter's motion to
suppress electronic evidence (and the fruits thereof), which the United States
received directly from the United Kingdom's Serious Fraud Office (SFO) in
connection with an ongoing international investigation into the fraud schemes,
and then searched without obtaining a warrant.
U.S. v. Odoni, supra.
It goes on to explain that on April 13, 2007, Gunter arrived
at Gatwick Airport,
an international airport south of
London. He was arrested because he was on the British `wanted on all ports’
list. After he was arrested, Gunter was taken to Crowley police station, where
he was detained overnight, and then interviewed the following morning by Paul
Cook, a police officer with the Norfolk Constabulary Fraud Squad. Cook also
took six items that were seized from Gunter when he was arrested: two mobile
phones, a laptop computer, a thumb drive, some photo CDs, and a
camera.
Cook took the six seized items back to
his office and placed them in the Norfolk Constabulary's exhibit store. With
regard to Gunter's thumb drive, Cook did not personally analyze its contents
because `[t]he procedure in England is that an item of that description would
be sealed in a bag and it would only be opened or examined by a specialist’ -- that
is, a computer expert from the SFO. Once the thumb drive reached the SFO
computer expert, that expert `would examine . . . and copy it.’ On June 4,
2007, Cook delivered the seized evidence to the SFO in London.
U.S. v. Odoni, supra.
What came next provided the basis of Gunter’s motion to
suppress:
On September 7, 2007, Assistant IT
Forensic Investigator Peter Littler, who worked in the Digital Forensic Unit at
the SFO and had three years of experience working with networked and personal
computers, signed out Gunter's laptop computer and thumb drive from the SFO's
Exhibits and Records Office and created image copies of them. Although
Littler did not testify at trial, the record contains a signed witness
statement from him. In his statement, Littler explained that `[d]uring analysis
[of the laptop computer] the date/time of the computer settings was found to be
incorrect.’ Littler also stated he compiled `[c]ase notes (hard copy and
electronic) . . . during the analytical
process,’ which he `held for production if required.’ Following Investigator
Littler's imaging and analysis, the SFO shared the forensic images with the
City of London Police, who were investigating a related fraud scheme.
On November 1, 2007, Senior Special
Agent Anthony Cerreta (SSA Cerreta) of the U.S. Department of Homeland
Security, Bureau of Customs and Border Protection, received image copies of the
data files from Gunter's laptop and thumb drive directly from the British
authorities, which he inventoried as `CD R (From memory Stick)’ and `DVD R
(From Laptop).’ On November 9, 2007, Special Agent M. Anthony Magos (SA Magos)
of the U.S. Secret Service also received images of the seized data files
directly from the City of London Police, also in the form of a CD–R and a
DVD–R, which he inventoried as well. Federal agents began reviewing Gunter's
data files -- at least, the thumb drive -- in late 2007 without a search
warrant.
On March 12, 2008, SA Magos applied for
a warrant to search Gunter's business premises in the United States. On that
same day, SSA Cerreta applied for a warrant to search Gunter's Online Quick
Books Account. The affidavits submitted in support of the search
warrant applications discussed evidence from Gunter's laptop computer and thumb
drive.
On March 13, 2008, Gunter was arrested
and a federal grand jury subsequently returned a superseding indictment charging
him with numerous counts related to the investment fraud schemes.
U.S. v. Odoni, supra.
The Court of Appeals goes on to explain that on August 3,
2010, Gunter
moved to suppress all items seized from
him by British authorities in April 2007, and thereafter searched by U.S. law
enforcement agents without a warrant. Gunter argued that the 4th Amendment required
the U.S. agents to obtain a warrant before searching his electronic data files,
even if the files were lawfully seized in the United Kingdom and provided to
U.S. officials by British authorities. Gunter also requested an evidentiary
hearing to determine whether all the evidence seized pursuant to the March 2008
search warrants should be excluded as fruit of the poisonous tree.
The district court denied Gunter's
motion without requiring a response from the Government and without holding an
evidentiary hearing. The district court concluded even if Gunter's factual
allegations were true, suppression of the evidence was not warranted. The court
reasoned that the 4th Amendment does not apply to searches and seizures made by
foreign authorities enforcing foreign law in their own country.
U.S. v. Odoni, supra.
When the court denied his motion to suppress, went to trial
and was convicted of
one count of conspiracy to commit mail
and wire fraud, in violation of 18 U.S.C. § 1349; one count of conspiracy
to commit wire fraud, in violation of 18 U.S.C. § 1349; one count of
conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956;
thirteen counts of engaging in illegal monetary transactions, in violation
of 18 U.S.C. § 1957; ten counts of mail fraud, in violation of 18
U.S.C. § 1341; and nine counts of wire fraud, in violation of 18 U.S.C. §
1343. Gunter was sentenced to a total of 300 months' imprisonment.
U.S. v. Odoni, supra.
As noted above, Gunter argued, in his motion to suppress,
that he had a
reasonable expectation of privacy in
the electronic data files seized from him by British authorities in the United
Kingdom and thereafter provided to the United States. Accordingly, U.S.
officials allegedly violated the 4th Amendment when they examined his files
without a warrant.
U.S. v. Odoni, supra.
The Court of Appeals then explained that the 4th
Amendment prohibits
unreasonable searches and
seizures. U.S. Const. amend. IV. `A “search” occurs when an expectation of
privacy that society is prepared to consider reasonable is infringed.’ U.S.v. Jacobsen, 466 U.S. 109 (1984). `A “seizure” of property occurs when
there is some meaningful interference with an individual's possessory interests
in that property.’ U.S. v. Jacobsen,
supra. Searches and
seizures implicate two distinct interests: a privacy interest affected by a
search, and a possessory interest affected by a seizure. See U.S. v. Jacobsen, supra. We therefore
must analyze the search and the seizure separately, keeping in mind that the
fact that police have lawfully come into possession of an item does not
necessarily mean they are entitled to search that item without a warrant. See Walter
v. U.S., 447 U.S. 649 (1980) (`The fact that FBI agents were
lawfully in possession of the boxes of film did not give them authority to
search their contents’).
Gunter does not challenge the seizure
of his belongings by British authorities, as the 4th Amendment exclusionary
rule does not apply to searches and seizures conducted by foreign officials on
foreign soil. U.S. v. Morrow, 537 F.2d 120 (U.S. Court of Appeals for the 5th Circuit 1976) (`The reasoning usually tendered in
support of this limitation [on the exclusionary rule] is the doubtful deterrent
effect on foreign police practices that will follow from a punitive exclusion
of the evidence in question by an American court’); see
also U.S. v. Janis, 428 U.S. 433, 455 n.31 (1976) (`[T]he
exclusionary rule, as a deterrent sanction, is not applicable where a private
party or a foreign government commits the offending act.’). The 4th Amendment
exclusionary rule does . . . apply to searches and seizures conducted by U.S.
state and federal officials. See generally Mapp v. Ohio, 367 U.S. 643 (1961). Consequently, Gunter contests only the search of his data
files conducted in the United States by U.S. officials.
U.S. v. Odoni, supra.
The Court of Appeals then explained that to prove the search
of his data files violated the 4th Amendment, Gunter had to show he
had an
objectively reasonable expectation of
privacy in the data files when United States agents examined them. U.S.
v. Segura–Baltazar, 448 F.3d 1281 (U.S. Court of Appeals for the 11th
Circuit 2006). An objectively reasonable expectation of privacy is one that
society is prepared to recognize as reasonable. U.S. v. Segura–Baltazar,
supra. An individual does not have a reasonable expectation of privacy in
an object to the extent the object has been searched by a private party. See
U.S. v. Jacobsen, supra. In Jacobsen, the Supreme Court
considered a case in which Fedex employees inspected a damaged package and
discovered a tube containing a series of plastic bags, the innermost of which
was filled with white powder. The employees called the Drug Enforcement
Agency. When the first DEA agent arrived, he removed the tube from the
box and took the plastic bags out of the tube. The Supreme Court held the
agent's warrantless search was constitutional to the extent it simply replicated
the prior private search. The Court reasoned the officer's acts `enabled [him]
to learn nothing that had not previously been learned during the private
search,’ and `[t]he agent's viewing of what a private party had freely made
available for his inspection did not violate the Fourth Amendment.’
Although the third party who conducted
the prior search in Jacobsen was a private actor, the
reasoning in Jacobsen applies with equal force when the third
party who conducts the prior search is a foreign governmental official. The 4th
Amendment generally does not apply to the actions of foreign officials
enforcing foreign law in a foreign country just as it does not apply to the
actions of private parties. And, in both cases, an entity other than a U.S.
state or federal agent or official has already examined the object and its
contents and therefore eliminated the individual's reasonable expectation of
privacy in the contents. See U.S. v. Jacobsen, supra (`Once
frustration of the original expectation of privacy occurs, the 4th Amendment
does not prohibit governmental use of the now-nonprivate information.). As a
result, agents of the Government do not violate the 4th Amendment when they
replicate a prior search without a warrant.
To the extent British officials
searched Gunter's data files before sending them to Agents Cerreta and Magos,
Gunter had no reasonable expectation of privacy in the files when the U.S.
agents examined them. Without a reasonable expectation of privacy in the
data files, Gunter cannot claim the protection of the 4th Amendment.
U.S. v. Odoni, supra.
Gunter, though, claimed that
there is no evidence in the record that
the British authorities searched his data files (i.e., actually opened and
looked at them) after seizing them. We disagree. After a thorough
review of the record, we are convinced British authorities searched Gunter's
electronic data files before sending them to the United States. We reach this
conclusion based on the intensity of the SFO's investigation, its pattern of
inspecting all seized evidence, Investigator Littler's witness statement, and
the totality of the record. . . .
The SFO, the agency in charge of the
investigation, expended great effort to gather evidence of the fraud scheme in
which Gunter participated. The SFO undertook fifteen searches on the same day
in different locations throughout the UK; sought and obtained international
assistance; traveled to Spain twice to investigate; and participated in
searches carried out in Spain. Throughout the course of its investigation, the
SFO repeatedly searched any evidence it discovered or received. . . . SFO
investigators also analyzed the approximately fifty computers and numerous
boxes of documents seized in Spain in November 2006.
In addition, British officials seized
six items in total from Gunter, including two cell phones, but only provided
the United States and the City of London Police with image copies of two of the
items: Gunter's laptop and his thumb drive. This suggests the British officials
reviewed all of the seized items and then determined the other electronic
devices -- the cell phones, the CDs, and the camera -- did not relate to the
fraud, while the laptop and thumb drive did.
The record also leads to the conclusion
that Littler not only copied, but examined, the thumb drive and laptop
computer. Littler's signed witness statement says he discovered an error on the
date and time of the laptop computer settings `[d]uring analysis.’
Moreover, trial testimony established
that the routine procedure in the UK for handling electronic evidence, like the
thumb drive, is for a forensic analyst at the SFO, such as Littler, to both `examine
the [electronic material] and copy it.’ Nothing in the record suggests Littler
deviated from this protocol.
In short, given the intensity of the
SFO's investigation, its pattern of inspecting all seized evidence, Littler's
witness statement, and the totality of the record, we are convinced British
officials reviewed Gunter's data files before sending them to the United
States. As a result, Gunter had no reasonable expectation of privacy in the
files when the U.S. officials examined them. Under the circumstances of this
case, the district court did not err by denying Gunter's motion to suppress.
U.S. v. Odoni, supra.
For these and other reasons, the Court of Appeals affirmed
Gunter’s conviction and sentence. U.S. v. Odoni, supra.
No comments:
Post a Comment