After John M. Sember was “indicted for stealing certain
United States Air Force sensitive and proprietary technical, engineering and
computer data and codes having a value in excess of $1,000 in violation
of 18 U.S. Code § 641”, he moved to suppress certain evidence. U.S. v.
Sember, 2015 WL 1487588 (U.S. District Court for the Southern District of Ohio 2015).
The judge who has the case begins the opinion by explaining
how it arose:
Sember was the lead electrical engineer
on a `program’ being conducted for the U.S. Government by a contractor. . . . Effective at midnight on March 14, 2014,
Sember's employment on the `program’ was terminated. . . . On March 18, 2014,
Sember returned his laptop computers and external hard-drive. . . . On March
21, 2014, Sember said that he destroyed all of the data on his issued computers
to include the external hard-drive. . . .
The Government believed Sember had not destroyed the data but likely had
the data stored on a home computer. . . .
On March 28, 2014 multiple law
enforcement officers executed a search warrant . . . at a residence located at
1979 Centralia Avenue in Fairborn, Ohio (the `Residence’). . . . The search was
for classified materials. . . . Agent Pangburn admitted that the Search Warrant
limited recovery to information related to classified material. . . . The
search warrant authorized entry and search commencing at 6:00 a.m. . . . The
Residence was the home of Defendant Sember. . . .
U.S. v. Sember, supra.
The search warrant described the
place to be searched as
`1979 Centralia Avenue, Fairborn, Ohio
is a single-story ranch with a double garage door. The house is grey in color
with a bay window in front, and is located on the west side of Centralia and
has an east-facing entrance. The nearest intersection is Dayton Yellow Springs
Road and Beaver Valley Road.’
U.S. v. Sember, supra.
The judge notes that, notwithstanding Agent Pangburn’s
admission that the warrant only authorized searching for and seizing classified
material, “pre-classified information, classified information and proprietary
information was actually being seized.” U.S. v. Sember, supra. And
he went on to explain that the search was conducted by the
Federal Bureau of Investigation on
March 28, 2014. . . . Included in the
search operation were members of the FBI, the FBI Swat Team and Fairborn Police
Department Officers Maguire, Hardman and Bertles. . . . Uniformed Fairborn
Police Officers were present to indicate to the public that the search was an
official police action. . . .
A variety of items were seized by the
FBI, both classified and non-classified. . . . Included were computers, CDs,
hard drives, flash cards, notebooks, papers, cell phones and a FALO LA–4PRO DVR
(the `DVR’). . . . FBI Agent Hawley testified that the DVR was seized because
it might contain evidence relative to the case and because it contained methods
of approach. . . . Agent Pangburn was not aware that the garage and vehicle
were searched . . ., and nothing was reported seized from either the shed or
parked truck. . . . Finally, the Agents executing the search warrant turned
some, if not all, of Sember's surveillance cameras upward. . . .
U.S. v. Sember, supra.
As to the timing of the search, “various individuals”
testified about that at a hearing the judge held on the motion to
suppress. U.S. v. Sember, supra. Fairborn Police Officer
Maguire was a party to the search
operation. . . . He testified that he was dispatched between 4:30 and 5:00 a.m.
the morning of the search. . . . He and other Fairborn Police Officers met at
the Kmart store near Sember's home, were there for 10–15 minutes and then went
to the residence. . . . Fairborn Police Officer Hardman was also dispatched to
assist, getting the dispatch call at 5:24 a.m. . . .
FBI Agent Pangburn testified that the
search team arrived at Sember's residence at 6:01 or 6:02 a.m. . . . The search
team approached, knocked and, when no one answered, used a battering ram to
open the front door. . . . When the door opened, Sember was standing in
the doorway. . . .
Sember testified that he was awakened
by a loud crash followed by someone shouting `FBI.’ . . . When he then looked
at his clock, it was `five something.’ . . . Sember testified that he normally
kept his clock ten minutes fast. . . .
Sember, according to Agent Pangburn,
was taken into custody within a minute of the `knock and announce’ for the
search. . . . Fairborn Police Officer Bertles testified that Sember was brought
to his cruiser within 20 to 40 minutes after the residence was entered by the
search team. . . . Fairborn Police
Officer Maguire testified that Sember was removed from the residence between 10
and 30 minutes after the search team entered the residence. . . . Fairborn
Police Dispatcher Levandusky confirmed that the Fairborn Police Log indicates Sember
was in custody by 6:10 a.m. . . .
U.S. v. Sember, supra.
The judge also outlines certain events that occurred “after
the search”, i.e., that on
August 27, 2014, Agents Eilerman and
Pangburn returned items to Sember which had been seized but later determined to
not be significant. . . . Agent Pangburn testified that, at that time, Sember,
referring to the DVR, said, ‘I don't want it. You can keep it.’ . . . Agent
Pangburn took this statement as Sember's intent to abandon the DVR. . . .
Sember testified that he told Agent
Eilerman, `You sure you want to give that [the DVR] back to me now.’ . . .
Sember then explained that the DVR is from his security system and contained
video of the entry team entering his home. . . . According to Sember, the DVR
would contain images confirming the search of his truck and shed and would also
confirm the time agents entered the residence. . . .
The Agents retained the DVR. . . . As a
result of the discussion at the time between Agents Eilerman and Pangburn and
Sember, Sember believed the DVR would be returned to him at a later time with
the data intact. . . . The DVR was later `wiped clean’ by the FBI's forensic
team and returned to Sember's Counsel. . . .
The FBI had no court order to destroy
the contents of the DVR nor did they seek Sember's permission. . . . Also, the
individuals responsible for destruction of the evidence on the DVR were not
aware that Defense Counsel had requested the information on the DVR from the
U.S. Attorney's Office. . . . Finally, the FBI has no written protocol that
would permit the destruction of evidence. . . .
U.S. v. Sember, supra.
You can, if you are interested, read
more about the facts in the case in the news story you can find here.
Sember made four arguments as to why his motion to suppress
should be granted, the first of which was that “the nature of the search
exceeded the scope of the warrant because there was evidence that the Officers
executing the Search Warrant entered the Residence before 6:00 a.m., the
earliest starting time specified on the Search Warrant.” U.S. v. Sember, supra. Rule
41(e)(2)(A)(i), of the Federal Rules of Criminal Procedure, which you can find here, requires that the officers who obtain
a warrant must execute it “within a specified time”. If Sember could show that the officers began
executing the warrant before the time specified, that could be a basis for
granting his motion to suppress.
In ruling on that argument, the judge explained that Agent
Pangburn testified that the
search began shortly after 6:00 a.m. No
one else testified as to when the search began. Other Officers testified as to
the timing of related events, but the testimony is too approximate to make a
reasonable inference from the testimony. An inference could be drawn from
Sember's testimony that his clock indicated, possibly when he was disoriented
by the very loud crash, that the search began before 6:00 a.m., but this, of
course is self-serving and not supported by any other evidence. Therefore,
Sember has not satisfied his burden of showing that the Search Warrant was
executed before 6:00 a.m.
U.S. v. Sember, supra.
In his second argument, Sember claimed the officers exceeded
the scope of the search warrant, which only authorized the search for and
seizure of classified material, when they “removed information that was not
classified.” U.S. v. Sember, supra. The judge, though, was not convinced, holding
that the
Search Warrant authorizes the seizure
of documents containing classified material in any form including any and all
hard-copy documents that may contain U.S. Government proprietary information. .
. . Thus, the Search Warrant arguably authorized the seizure of information
that was not classified.
Even if the Search Warrant did not
authorize the seizure of non-classified information, items not specifically
described in a search warrant may nevertheless be seized if they are
`reasonably related’ to the offenses which form the basis for the search
warrant. U.S. v. Wright, 343 F.3d 849 (U.S. Court of Appeals for the 6th Circuit 2003). In this case, the offenses which formed the basis for the Search
Warrant were the suspected theft of U.S. Government property in violation
of 18 U.S. Code § 641 and the suspected conversion of U.S. Government
and DOD contractor owned trade secrets in violation of 18 U.S. Code §1832(a)(2).
And, Sember offers no argument or
evidence that the items seized where not reasonably related to these offenses.
Thus, Sember has not satisfied his burden of showing that the scope of the
Search Warrant was exceeded by the removal of information that was not
classified.
U.S. v. Sember, supra.
Next, Sember argued that “the officers searched
out-buildings and vehicles that were not included in the scope of the Search
Warrant.” U.S. v. Sember, supra. Once
again, the judge was not convinced, explaining that Sember’s argument was
without merit for at least three
reasons. First, Sember has not identified evidence that any out-buildings or
vehicles were searched. Second, no evidence was reported seized from the
out-buildings or vehicles. And third, the Government does not intend to use any
evidence from the out-buildings or vehicles. Thus, Sember has not satisfied his
burden of showing that the scope of the Search Warrant was exceeded by the
search of out-buildings and/or vehicles.
U.S. v. Sember, supra.
Finally, Sember claimed the warrant “was not based upon
probable cause that confidential information or proprietary information would
be found at the Residence.”
U.S. v. Sember, supra.
As with his other arguments, the
judge did not buy this one:
Agent Eilerman's Affidavit In Support of an Application for a Search Warrant provides a substantial basis for
probable cause to search the Residence for confidential information in any form
including any and all hard-copy documents that may contain U.S. Government
proprietary information. . . .
Agent Eilerman affirms that he is
investigating Sember's activities for possible violations of specified federal
statutes. Agent Eilerman had reliable information that Sember may have
sensitive information stored on his home computer. This information was beyond
speculation and, therefore, reliable because of Sember's background and
experience as determined and affirmed by Agent Eilerman. The sensitive
information was developed by Sember while employed and thus did not belong to
him. Further, the destruction of this sensitive information could result in a
significant loss to American taxpayers. Agent Eilerman concluded that there was
probable cause to believe that Sember mishandled potentially damaging
proprietary information without proper authority and that evidence of such was
located at the Residence.
Thus, Sember has not satisfied his
burden of showing that the Search Warrant was not based upon probable cause.
U.S. v. Sember, supra.
Since the judge found Sember had not “satisfied his burden
of showing that the scope of the Search Warrant was exceeded”, he denied his
motion to suppress. U.S. v. Sember, supra.
You can, if you are interested, read more about the hearing
on Sember’s motion to suppress in the news story you can find here. It notes, among other things, that Sember’s
trial was “tentatively” set for May 4. And this story outlines the strategy Sember's lawyers seem to be using in an effort to have the prosecution dismissed. I cannot find any information as to when, and if, the trial date has been rescheduled.
No comments:
Post a Comment