ELLEN SEGAL HUVELLE, District Judge.
Defendant Ali Mohamed Ali is charged with conspiracy, aiding and abetting, piracy, and hostage taking as a result of the hijacking of the M/V CEC Future, a Bahamian-flagged cargo ship owned by Clipper Group A/S, a Danish company.
Before the Court are two motions in limine brought by the government seeking to preclude the admission of certain evidence relating to Ali's mental state;
Ali was born in Yemen on June 26, 1962. (Def. Mot. to Suppress, Ex. 2 at 1.) He spent most of his childhood in Mogadishu, Somalia, before coming to the United States in December 1981 on a student visa and subsequently attaining asylee status. [redacted]
In 2001, Ali moved to Memphis, Tennessee, where he worked for a wireless telephone company. [redacted]
In 2005, Ali moved to Washington, D.C., where he worked as a taxi cab driver. [redacted]
[redacted]
[redacted]
Among his purported anti-piracy efforts, Ali includes his role in the CEC Future incident, as well as in a number of other piracy incidents. In June 2008, before the CEC Future was hijacked, Somali pirates attacked the Rockall, and took its owners, a German couple, to shore in Somalia and held them there. (Defendant's Motion for a Deposition Under Federal Rule of Criminal Procedure 15, March 6, 2012 [Dkt. No. 128] (under seal), Ex. 2 at 1.) Ali was asked by a friend to assist in negotiating the couple's release. (Id. at 1-2; see Def. Mot. to Suppress at 6-7.) In July 2008, Ali traveled to the area where they were being held, camped with them, brought them medicine and supplies, and acted as a go-between for the German government and the kidnappers. (Id.; see Def. Mot. for Pretrial Rel., Exs. 1, 2, 10, 11.) The couple was released in August 2008 after a $1 million ransom was paid. (Def. Mot. to Suppress, Ex. 2 at 3.) [redacted]
A day or two after Ali boarded the CEC Future, on November 11 or 12, 2008, Somali pirates captured the M/V Karagöl, a chemical tanker owned by a Turkish company, and forced its captain to navigate the ship to an area near Eyl where it dropped anchor next to the CEC Future. (Id., Ex. 2 at 4; Government's Motion in Limine to Introduce Direct Evidence of the Conspiracy, March 2, 2012 [Dkt. No. 117] ("Gov't Karagöl Mot.") at 2.) Ali alleges that one of the CEC Future pirates ordered Ali to board the Karagöl and translate demands from those pirates to the Turkish company. (Def. Mot. to Suppress, Ex. 2 at 4, 6; see id., Ex. 9 at 1268; Gov't Karagöl Mot. at 2-3.) Ali allegedly made many trips back-and-forth between the CEC Future and the Karagöl, but his role with regard to the latter ship ended in late November 2008.
In February 2009, after the release of the CEC Future, Per Gullestrup asked Ali for help in reaching the pirates who had taken another ship, the Stolt Strength, and the two corresponded about that piracy for a number of months. (See Def. Mot. for Pretrial Rel., Exs. 4, 16, 17, 18, 33.) [redacted]
In November 2010, while Ali was still in Somalia, he was charged by a criminal complaint filed in this Court for his role aboard the CEC Future, and a warrant for his arrest was issued. (Gov't Suppression Opp'n at 1; see Complaint, Nov. 10, 2010 [Dkt. No. 1]; Arrest Warrant, Nov. 10, 2010 [Dkt. No. 52].) Ali was formally indicted on April 15, 2011. (See Indictment, April 15, 2011 [Dkt. No. 6].
The parties agree that Ali's "`intent in conducting the negotiations for the pirates [aboard the CEC Future] is expected to be the primary issue at trial.'" (Def. Omnibus Opp'n at 3 (emphasis in the original) (quoting "Gov't Karagöl Mot." at 9).) Ali seeks to introduce evidence to show that he opposed the goals of the pirates and acted "to shorten the crew's ordeal, protect their lives, and collect intelligence on pirates for the benefit of the United States and the seafaring community." (Id. at 3.
Under the Federal Rules of Evidence, relevant evidence is generally admissible and irrelevant evidence is not admissible. Fed.R.Evid. 402. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Id. Rule 401. For purposes of deciding the government's motions, the fact of consequence in determining the action is Ali's mental state, or mens rea, and evidence relating to it is relevant if such evidence would tend to make it more or less probable
Ali is charged with conspiracy to commit piracy under the law of nations (Count One) in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1651, piracy under the law of nations (Count Two) in violation of 18 U.S.C. § 1651, conspiracy to commit hostage taking (Count Three) in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1203, and hostage taking (Count Four) in violation of 18 U.S.C. § 1203. Counts Two and Four charge Ali with both the substantive offenses and with aiding and abetting in violation of 18 U.S.C. § 2. (Ind. at 1-6.)
Conspiracy and aiding and abetting are inchoate crimes. United States v. Bailey, 444 U.S. 394, 405, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (conspiracy is an "inchoate offense[]"); United States v. Seals, 130 F.3d 451, 463 (D.C.Cir.1997) (aiding and abetting is an "inchoate offense[]").
United States v. Feola, 420 U.S. 671, 694, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975) (citation omitted). Because of their focus on an "agreement to engage in a criminal venture," id.,
"`[T]he specific intent required for the crime of conspiracy is ... the intent to advance or further the unlawful object of the conspiracy.'" Childress, 58 F.3d at 708 (alterations in the original) (quoting United States v. Haldeman, 559 F.2d 31, 112 (D.C.Cir.1976)). Accordingly, in order to convict Ali of conspiracy, the government must prove beyond a reasonable doubt that Ali acted with the "specific intent to further the conspiracy's objective." Id.
The second superseding indictment alleges that the "purpose and object" of the conspiracy to commit piracy (Count One) was "to profit and make money by detaining the ship, crew and cargo of the M/V CEC Future and depriving the lawful owners of control over and the value of the ship and the cargo until ransom was paid." (Ind. at 2.) The indictment does not specifically define the objective of the conspiracy to commit hostage taking (Count Three), but alleges that Ali and others
(Ind. at 6.)
Therefore, in order to convict Ali of conspiracy, the government must establish that Ali acted with the specific intent, or the "purposeful intent," Childress, 58 F.3d at 707 (emphasis in the original), to a) profit and make money by detaining the CEC Future, its crew, and its cargo, and by depriving Clipper of control over the ship, and of the ship's value, until ransom was paid (Count One); and to b) compel Clipper to pay a ransom by seizing, detaining, and threatening to kill, injure, and continue to detain the CEC Future's crew (Count Three). (Ind. at 2, 6.) The government bears the burden of proving beyond a reasonable doubt that Ali "consciously desire[d] [these] result[s]." Bailey, 444 U.S. at 404, 100 S.Ct. 624 (internal quotation
Similarly, "[i]n order to aid and abet another to commit a crime it is necessary that a defendant `in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.'" Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938) (Hand, J.)) (cited in Moore, 651 F.3d at 92). "All the words used" in this definition — "even the most colorless, `abet' — carry an implication of purposive attitude." Peoni, 100 F.2d at 402 (emphasis added). Therefore, in order to convict Ali of aiding and abetting piracy under the law of nations (Count Two) and hostage taking (Count Four), the government must prove that Ali acted with "the specific intent to facilitate the commission of [these] crime[s] by []other[s]." Moore, 651 F.3d at 92 (internal quotation marks and citation omitted).
Ali argues that the evidence which the government seeks to prevent him from introducing is directly relevant to whether he acted with these intentions onboard the CEC Future. Specifically, he claims that evidence [redacted] and of his role in other piracy incidents both before and after the CEC Future hijacking would undercut the government's case as to his mens rea and further would, as to post-CEC Future events, show a lack of consciousness of guilt.
Court decisions, treatises, and law reviews are rife with debates about the relationship between specific intent and motive, and the relevance (if any) of the latter in a criminal case.
The Court further concludes that although this evidence pertains to Ali's "other act[s]," it is nonetheless "admissible" for the "purpose" of negating the government's showing of Ali's "intent." Fed.R.Evid. 404(b)(2). Evidence of a defendant's other acts is admissible under Rule 404(b) if it
However, the Federal Rules of Evidence require the Court, in its discretion, to "exclude relevant evidence if its probative value is substantially outweighed by a danger of," inter alia, "confusing the issues, misleading the jury, undue delay, wasting time, or needless presenting cumulative evidence." Fed.R.Evid. 403; see United States v. Brown, 597 F.3d 399, 406 (D.C.Cir.2010) ("`[T]he Rule 403 inquiry in each case involving Rule 404(b) evidence will be case-specific. There can be no `mechanical solution,' no per se rule.' United States v. Crowder, 141 F.3d 1202, 1210 (D.C.Cir.1998) (en banc).... [T]he decision on exclusion rests in the sound discretion of the district court." (some alterations in the original)).
For the reasons stated above and discussed at hearings on April 11, 2012, and May 17, 2012, the Court will grant Ali's 404(b) motion. Specifically, the Court will admit evidence pertaining to Ali's role in incidents of piracy involving the ships Rockall, Karagöl, Stolt Strength, Maersk Alabama, Lynn Rival, and De Xin Hai under Rule 404(b). (See also Order, April 12, 2012 [Dkt. No. 164] (under seal) at 2.) In addition, having already determined that it is relevant, the Court concludes that evidence of the following passes the Rule 403 balancing test and will be admitted:
(Def. Omnibus Opp'n at 9-10 n. 9.) [redacted]
Ali challenges six search warrants and the searches and seizures conducted pursuant to them.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and provides that "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. By its text, the Amendment "`contains no provision expressly precluding the use of evidence obtained in violation of its commands.'" Herring v. United States, 555 U.S. 135, 139, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (quoting Arizona v. Evans, 514 U.S. 1, 10, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995)). However, Supreme Court "decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial," id., in order "to `compel respect for the constitutional guaranty.'" Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011) (quoting Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)).
Although the Supreme Court "has applied the exclusionary rule to certain Fourth Amendment violations," it "`has never ... interpreted'" that provision as "`proscrib[ing] the introduction of illegally seized evidence in all proceedings or against all persons.'" United States v. Spencer, 530 F.3d 1003, 1006 (D.C.Cir. 2008) (quoting United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). To the contrary, the Court has "repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation." Herring, 555 U.S. at 141, 129 S.Ct. 695 (collecting cases). Rather, the judicially created exclusionary rule is designed to safeguard Fourth Amendment rights generally through its deterrent effect, and therefore applies only where it results in appreciable deterrence. Id. at 139, 141, 129 S.Ct. 695.
Furthermore, "[r]eal deterrent value is a necessary condition for exclusion, but it is not a sufficient one," because "[t]he analysis must also account for the substantial social costs generated" by the rule. Davis, 131 S.Ct. at 2427 (internal quotation marks and citations omitted). The rule "almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence." Id. Therefore, the Supreme Court has emphasized that "[f]or exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs." Id.
"In a line of cases beginning with" Leon, the Supreme Court has calibrated its "cost-benefit analysis" according to "the flagrancy of the police misconduct at issue" and has instructed that "the deterrence benefits of exclusion vary with the culpability of the law enforcement conduct." Id. (internal quotation marks and alterations omitted); see Leon, 468 U.S. at 909, 104 S.Ct. 3405. When the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Davis, 131 S.Ct. at 2427 (citing Herring, 555 U.S. at 144, 129 S.Ct. 695). But when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force, and "exclusion cannot `pay its way.'" Id. at 2427-28 (quoting Leon, 468 U.S. at 908 n. 6, 104 S.Ct. 3405).
Pursuant to Leon, courts determine the objective reasonableness of the police's reliance on a warrant by considering "`whether a reasonably well trained officer would have known that the search was illegal' in light of `all of the circumstances.'" Herring, 555 U.S. at 145, 129 S.Ct. 695 (quoting Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405).
Probable cause is "a fluid concept-turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a net set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In determining whether probable cause exists,
Id. at 238-39, 103 S.Ct. 2317 (some alterations in the original) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980)). Thus, the Supreme Court has "described ... probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
In this "totality-of-the-circumstances analysis," Gates, 462 U.S. at 238, 103 S.Ct. 2317, courts consider, inter alia, whether the facts in the underlying affidavit are "so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138,
Objectively reasonable reliance by the executing officers does not, however, bar application of the exclusionary rule in all instances. Suppression remains appropriate under Leon "`if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.'" Id. at 1007 (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405); see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
438 U.S. at 155-56, 98 S.Ct. 2674. Upon making this substantial showing, which must be "more than conclusory" and "accompanied by an offer of proof," id. at 171, 98 S.Ct. 2674, "the Fourth Amendment requires that a hearing be held." Id. at 156, 98 S.Ct. 2674. If the defendant proves his allegations "by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded." Id.
"[U]nder certain circumstances," a defendant may establish that he is entitled to a Franks hearing on the basis of "material omissions." Spencer, 530 F.3d at 1007 (citing United States v. Johnson, 696 F.2d 115, 118 n. 21 (D.C.Cir.1982)); see Burke, 405 F.3d at 81 ("the intentional or reckless omission of material exculpatory facts from information presented to a magistrate may ... amount to a Fourth Amendment violation" (citing DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir.1990))). Indeed, "[b]y reporting less than the total story, an affiant can manipulate the inference a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning." United States v. Stanert, 762 F.2d 775, 781 (9th Cir.1985)
Therefore, a defendant seeking to obtain a Franks hearing must show that (1) the affidavit contained false statements or omitted certain facts; (2) the false statements or omitted facts were material to the finding of probable cause; and (3) the false statements or omissions were made knowingly and intentionally, or with reckless disregard for the truth. United States v. Becton, 601 F.3d 588, 594 (D.C.Cir.2010); Spencer, 530 F.3d at 1007.
With regard to the second factor, allegedly false information in an affidavit is material only if, when it is "set to one side, the affidavit's remaining content is insufficient to establish probable cause." Franks, 438 U.S. at 156, 98 S.Ct. 2674. By corollary, omitted facts are only material if "their `inclusion in the affidavit would defeat probable cause.'" Spencer, 530 F.3d at 1007 (quoting Colkley, 899 F.2d at 301); see United States v. Davis, 617 F.2d 677, 694 (D.C.Cir.1979) (omitted facts are only material if their "recitation would have tipped the balance against a finding of probable cause"). Accordingly, for a defendant to be entitled to a Franks hearing, "[a] substantial preliminary showing that the affidavit contained reckless or deliberate falsities and omissions must be followed by a substantial showing that the affidavit purged of those falsities and supplemented by the omissions would not be sufficient to support a finding of probable cause." United States v. McNeese, 901 F.2d 585, 596 (7th Cir.1990), overruled on other grounds by United States v. Nance, 236 F.3d 820 (7th Cir.2000).
With regard to the third factor, "Franks protects against" false statements and "omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate." Colkley, 899 F.2d at 301 (emphasis omitted). "Under Franks, negligent police miscommunications in the course of acquiring a warrant do not provide a basis to rescind a warrant and render a search ... invalid." Herring, 555 U.S. at 145, 129 S.Ct. 695. Courts are
In Davis, the D.C. Circuit defined recklessness as it pertains to alleged false statements with recourse to "precedents in the area of libel and the [F]irst [A]mendment," where "reckless disregard for the truth requires a showing that" the speaker "`in fact entertained serious doubts as to the truth of his publication.'" 617 F.2d at 694 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). At issue in Davis was whether the defendant was entitled to a Franks hearing where the affidavit included statements made by an informant whom the affiant knew to have been "under coercion" when he made them. Id. Importing the "subjective test" for reckless disregard from the libel area, the court held that a defendant could succeed "by showing actual deliberation" on behalf of the affiant or "by demonstrating that there existed `obvious reasons to doubt the veracity of the informant or the accuracy of his reports.'" Id. (quoting St. Amant, 390 U.S. at 732, 88 S.Ct. 1323). Since the D.C. Circuit decided Davis, "most Circuits that have had occasion to address the issue have adopted a" similar test, which asks whether the affiant "in fact entertained serious doubts as to the truth of the ... statements" which the defendant alleges to be false. United States v. Kunen, 323 F.Supp.2d 390, 395 (E.D.N.Y.2004) (internal quotation marks, alterations, and citation omitted).
Determining whether an omission was made recklessly presents particular difficulties. On the one hand, "[a]ll storytelling involves an element of selectivity," and courts "cannot demand that police officers relate the entire history of events leading up to a warrant application with every potentially evocative detail that would interest a novelist or gossip." Wilson, 212 F.3d at 787. To do so "would make the process of applying for a search warrant a cumbersome procedure inimical to effective law enforcement" and therefore "might encourage rather than discourage improper police behavior: facing ever more stringent requirements for obtaining warrants, police might forego applying for one whenever they think they might have a tenable case for proceeding without one." Davis, 617 F.2d at 694 (citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).
"On the other hand, one of the reasons for requiring a neutral magistrate to evaluate probable cause is that an uninterested party is presumably better suited to review and evaluate the facts than an officer pursuing a lead." Wilson, 212 F.3d at 787. As the Supreme Court has emphasized,
Payton v. New York, 445 U.S. 573, 586 n. 24, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). Thus, consistent with the Fourth Amendment, "a police officer cannot make unilateral decisions about the materiality of information, or, after satisfying him or herself that probable cause exists, merely inform the magistrate or judge of inculpatory evidence." Wilson, 212 F.3d at 787.
Balancing these competing concerns, the Third Circuit chose to "follow the common sense approach" of the Eighth Circuit, id., and held that "omissions are made with reckless disregard for the truth when an officer recklessly omits facts that any reasonable person would know that a judge would want to know." Id. at 783; see United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.1993) (inferring reckless disregard based on the "highly relevant" nature of the omitted information); United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) (noting inference permissible when omission would have been "`clearly critical'" to the issuing judge's probable cause determination) (quoting United States v. Martin, 615 F.2d 318, 329 (5th Cir.1980)). It is clear that courts cannot "infer recklessness solely from [an affiant's] alleged awareness" of exculpatory material. Davis, 617 F.2d at 694. Yet, the weight of legal authority permits the inference "`where the omitted information was critical to the probable cause determination.'" Burke, 405 F.3d at 81 (quoting Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir.1991); citing Wilson, 212 F.3d at 783); accord Madiwale v. Savaiko, 117 F.3d 1321, 1327 (11th Cir.1997); DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir.1990).
With these principles in mind, the Court proceeds to address Ali's specific arguments for suppression. To begin, the Court will consider two issues that concern many of the underlying affidavits: first,
Ali's primary challenge to the sufficiency of the affidavits is born of the fact that he maintains a view of his role on the CEC Future that is completely at odds with the government's characterization of the evidence. Ali's chief defense at trial will be that he intended neither to conspire with, nor to aid and abet, the pirates. The government, on the other hand, argues that Ali had the requisite intent. The jury will make the ultimate determination of Ali's mens rea. But, in his motion to suppress, Ali presses a related argument. He claims that the affidavits underlying certain warrants omitted facts which he alleges show his innocent intent,
In so arguing, however, Ali has confused the showing required of an affidavit — for probable cause — with that required of the government to prove his guilt. "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Gates, 462 U.S. at 245 n. 13, 103 S.Ct. 2317; see Jones, 362 U.S. at 270, 80 S.Ct. 725 (the "`difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search'" is "`large'" (quoting Brinegar v. United States, 338 U.S. 160, 172, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949))). And "`[o]nce it is established that probable cause exists to believe a federal crime has been committed a warrant may issue for the search of any property which the magistrate has probable cause to believe may be the place of concealment of evidence of the crime.'" Zurcher v. Stanford Daily, 436 U.S. 547,
While Ali maintains that his own involvement in the piracy of the CEC Future was not criminal, he does not contest that what occurred was a crime. Therefore, the only question is whether there was a `fair probability that contraband or evidence of [that] crime [would] be found in' the warrants' targets. Gates, 462 U.S. at 238, 103 S.Ct. 2317; see Zurcher, 436 U.S. at 558, 98 S.Ct. 1970; Mays, 134 F.3d at 814 ("[S]earch warrants are directed, not at persons, but at property where there is probable cause to believe that ... evidence of a crime will be found.").
The Fourth Circuit's recent decision in Sennett v. United States, 667 F.3d 531 (4th Cir.2012), is illustrative. Laura Sennett was "a photojournalist who claim[ed] a special interest in covering protests, political demonstrations, and grassroots activism." Id. at 532 (internal quotation marks omitted). In April 2008, she "received a phone tip that there would be a demonstration during the International Monetary Fund's (`IMF') annual spring meeting at the Four Seasons Hotel in Washington, D.C." Id. at 533. She "arrived at the Four Seasons at approximately 2:30 a.m. on April 12, 2008, in order to photograph the protest," allegedly "unaware that the purported protesters planned to destroy property or commit other criminal acts." Id. Nonetheless, the protest turned violent. "[I]ndividuals entered the hotel lobby and threw firecrackers and smoke-generating pyrotechnic devices, along with paint-filled balloons, at various targets," and "shattered a large glass window by the entrance" before fleeing the scene. Id.
The hotel's security camera footage revealed a woman "using a small handheld camera to videotape or photograph the protest." Id. The photographer was dressed similarly to the protestors. Id. "Like several others present, the photographer... remained outside during the incident in the lobby. And, after the people who damaged the lobby exited the hotel, the unidentified female fled from the hotel with or in the same general direction as the protesters." Id.
Eventually, Sennett was identified as the female photographer, id., and a warrant was issued for a search of her residence for evidence of suspected criminal activity that occurred during the protest. Id. at 534. When the warrant was executed, the agents "seized dozens of items, including an external hard drive allegedly containing more than 7,000 photographs, two computers, several cameras, and several camera memory cards." Id. "Sennett was never arrested or charged with any crimes relating to" the protest. Id.
Id. at 536. The Fourth Circuit, however, upheld the grant of summary judgment in favor of the government:
Sennett, 667 F.3d at 536 (emphasis added, some alterations in the original);
Under Franks, "the intentional or reckless omission of material exculpatory facts from information presented to a magistrate may ... amount to a Fourth Amendment violation," Burke 405 F.3d at 81 (emphasis added), and omitted facts are "material" only if "their inclusion in the affidavit would defeat probable cause." Spencer, 530 F.3d at 1007 (internal quotation marks omitted). The exculpatory facts that Ali claims were omitted from the affidavits (see supra n. 24) speak to his intent and nothing more.
Ali also argues that the affidavits were based on such stale information that the executing officers "`could not have harbored an objectively reasonable belief in the existence of probable cause.'" Webb, 255 F.3d at 905 (quoting Leon, 468 U.S. at 926, 104 S.Ct. 3405). Specifically, Ali protests that the piracy of the CEC Future concluded more than fifteen months before the first warrant application was submitted on May 25, 2010, and more than two years before the majority of the warrant applications were submitted in April and May 2011.
It is true that in cases that pre-date Leon, the D.C. Circuit concluded that probable cause expired in far shorter periods. See, e.g., Schoeneman v. United States, 317 F.2d 173, 177-78 (D.C.Cir.1963) (no probable cause to believe that classified documents were in defendant's house when they were last seen 107 days before the application for the warrant was made). Yet, "[i]n determining probable cause for the issuance of a search warrant, time alone, of course, is not controlling." Id.; see United States v. Harris, 369 F.3d 1157, 1165 (10th Cir.2004) ("The determination of timeliness ... does not depend on simply the number of days that have elapsed between the facts relied on and the issuance of the warrant." (internal quotation marks and citation omitted)). Rather, "the probable-cause requirement looks to whether evidence will be found when the search is conducted." United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) (emphasis in the original). Accordingly, the critical question is whether, at the time an affidavit is presented to a magistrate, it establishes probable cause that evidence will be found at the location of the search. United States v. Abboud, 438 F.3d 554, 572 (6th Cir.2006). In answering this question, courts consider, inter alia, "the nature of the criminal activity, the length of the activity, and the nature of the property to be seized." Harris, 369 F.3d at 1165 (internal quotation marks and citation omitted).
As relevant here, "courts have determined that when the evidence sought is of a type that would be maintained after the criminal activity ceased, then older information can still be considered reliable when used to obtain a search warrant." United States v. Edelin, 128 F.Supp.2d 23, 46 (D.D.C.2001) (collecting cases). Where a warrant targets documentary materials
In addition, "[c]ourts have been considerably more lenient in assessing the currency of information supporting probable cause in the context of extended conspiracies than in the context of single-incident crimes." Webb, 255 F.3d at 905. Accordingly, staleness is also less likely to defeat the existence of probable cause where the affidavit alleges ongoing criminal activity. Abboud, 438 F.3d at 573; see United States v. Greene, 250 F.3d 471, 481 (6th Cir.2001); accord United States v. McElroy, 587 F.3d 73, 77-78 (1st Cir. 2009); United States v. Kennedy, 427 F.3d 1136, 1142 (8th Cir.2005); United States v. Riddick, 156 F.3d 505, 509 (3d Cir.1998); United States v. Harris, 20 F.3d 445, 450 (11th Cir.1994) (collecting cases). Furthermore, "acts which are not inherently criminal may become criminal and support a finding of probable cause if committed to further an ongoing conspiracy." Id. at 451 n. 7.
All of the above factors weigh in the government's favor. The magistrates were entitled to conclude that the evidence targeted by the warrants (documents, computer files, emails, call records, text messages, photos, and address book entries pertaining to piracy) was of the "type that would be maintained after" the pirates released the CEC Future. Edelin, 128 F.Supp.2d at 46. Furthermore, the affidavits allege that Ali continued to use his email account, cell phone, and computer to communicate about piracy well after the CEC Future incident,
Having rejected Ali's general challenges to the affidavits' omissions of certain allegedly
On May 25, 2010, a magistrate issued a warrant authorizing the police to search Ali's email account. (Def. Mot. to Suppress, Ex. 1) Ali alleges that he is entitled to a Franks hearing because the affidavit underlying the warrant contains misrepresentations and omissions.
Certain of Ali's allegations can be summarily dismissed. First, Ali protests that the affidavit described him as "very knowledgeable about pirate operations, procedures and ransom negotiations" (id., Ex. 1 at 1386), notwithstanding that Gullestrup had told the affiant that, after Ali boarded the CEC Future, Ali "realized he was in over his head and remained in his own cabin away from the pirates." (Id., Ex. 14
Second, Ali challenges the fact that the affidavit describes as a "ruse" his alleged statement to Clipper that "his was life in danger." (Id., Ex. 1 at 1391.) Ali alleges that the characterization was false because Gullestrup had told the affiant that, "[a]round day 60 of the hijacking, the pirates were thinking about getting another negotiator" and "confined Ali to his cabin." (Id., Ex. 14 at 2013.) However, Gullestrup's source for this information was Ali himself. The fact that Gullestrup relayed Ali's statements to the affiant does not undercut the affiant's belief that the whole story was pretextual.
Ali's remaining challenges to the sufficiency of the affidavit underlying the
Second, the affiant's statement that Ali "expressed concern that [redacted] would have his email address," and the affiant's corresponding "belie[f] that this indicates that Mr. Ali still utilizes this email address for communications and is concerned that [redacted] may be able to access the account," are also troublesome. (Id., Ex. 1 at 1392.) In fact, as the affiant knew, [redacted] That the affiant knew this, [redacted], belies his characterization in the affidavit.
Yet, although these misstatements and omissions may well have misled the magistrate, Ali is only entitled to a Franks hearing if they are material, i.e. if, when the misstatements are "set to one side" and the omitted facts are included, the corrected affidavit does not "support a finding of probable cause." 438 U.S. at 171-72, 98 S.Ct. 2674; see Spencer, 530 F.3d at 1007. Here, Ali argues that the misstatements and omissions are material
Ali is surely correct that it would not be enough if the corrected affidavit amounted to nothing more than, for example, "crimes were committed aboard the CEC Future, Ali was aboard the CEC Future and may have participated in those crimes, and Ali has an email account." In concluding that warrants to search suspects' email accounts adequately establish a nexus, courts insist on a direct connection between the alleged criminal activity and the specific email account at issue,
Nonetheless, especially given that Ali's intent is the central issue in this case, the
Ali alleges that the second warrant for his email, issued on October 11, 2011 (Def. Mot. to Suppress, Ex. 7), contains similar misstatements and omissions. The Court concludes that Ali's arguments fail for similar reasons.
First, Ali protests that the affiant for this warrant repeated the statement, made in the May 25, 2010 affidavit, "that Ali's knowledge about piracy indicates that `he was a key participant in the conspiracy.'" (Id. at 28 (quoting id., Ex. 7 at 1416).) There is nothing misleading here. Ali's actions aboard the CEC Future, which the affiant described in some detail (see id., Ex. 7 at 1416), justify the affiant's characterization of Ali as a "key participant." Whether Ali was a conspirator is a separate issue, and one that is not relevant to the probable cause analysis. (See supra Section 11(B).)
Second, Ali argues that this affiant, like the affiant of the May 25, 2010 affidavit, sought "to conjure a nexus by misleading the magistrate into believing that Ali used his personal email account during the CEC
In addition to challenging the validity of the May 25, 2010 and October 11, 2011 warrants, Ali challenges their execution, claiming that the officers exceeded the scope of the warrants when they searched his email. Specifically, Ali claims that the government seized emails that were outside the date ranges and not pertinent to the subject matters specified in those warrants. (Def. Mot. to Suppress at 27-28, 30-31.)
Here, Ali's claims go to the behavior of the police, and they therefore implicate the precise concerns that motivate the exclusionary rule. Davis, 131 S.Ct. at 2427-28. Furthermore, challenges to the scope of searches for digital evidence raise unique Fourth Amendment issues, in part because computers and email accounts "`often contain significant intermingling of relevant documents with documents that the government has no probable cause to seize.'" United States v. Cioffi, 668 F.Supp.2d 385, 391 (E.D.N.Y.2009) (quoting United States v. Vilar, No. S305CR621, 2007 WL 1075041, at *35 (S.D.N.Y. April 4, 2007)).
However, absent a showing that an executing officer exhibited "a flagrant disregard for the limitations in a warrant [that] might transform an otherwise valid search into a general one, thereby requiring the entire fruits of the search to be suppressed," where "officers seize some items outside the scope of a valid warrant, this by itself will not affect the admissibility of other contemporaneously seized items which do fall within the warrant." Id. at 1259 (collecting cases). In Ali's motion to suppress, he does not allege that the officers executing the May 25, 2010 and October 11, 2011 warrants exhibited such a flagrant disregard. Indeed, in protesting the scope of the email searches he only moved for the suppression of "all seized information not specifically identified by the warrant[s]." (Def. Mot. to Suppress at 27-28, 31 (emphasis added).) For its part, the government has represented that it will not "use any emails outside the scope of the warrant[s] in its case-in-chief at trial." (Gov't Suppression Opp'n at 16-17.) Given this representation, and in the absence of any argument or evidence by Ali to support a claim of flagrant disregard, Heldt compels this Court to deny Ali's unsubstantiated request (see Def. Suppression Reply at 24) for a hearing on the issue.
While Ali states, without elaboration, that the affidavit underlying the April 21, 2011 warrant for his suitcase and computer bag "is materially misleading," the only argument he puts forward is that the affidavit so lacked in indicia of probable cause as to make official reliance on it unreasonable because "[t]here is no reason to believe that probable cause existed that Ali would be carrying ... incriminating documents relating to piracy on his person" when he landed at Dulles purportedly en route to attend a conference in North Carolina. (Def. Mot to Suppress at 31 (emphasis in the original).) Without more, this claim cannot justify exclusion of the evidence obtained. When the customs agents opened Ali's suitcase, the affiant "observed ... that it contained documents," and in the affidavit she stated her belief that Ali's luggage might "contain records or documents related to Ali's participation in the piracy of the CEC Future and may identify individuals or associates who were also involved in the piracy." (Id., Ex. 3 at 1490-91.) In combination with the other facts relayed, including that Ali communicated with Clipper during the piracy via fax (id., Ex. 3 at 1490), these statements were enough to establish probable cause, or at the very least to make it objectively reasonable for the executing officers to rely on the magistrate's determination thereof. Leon, 468 U.S. at 922, 104 S.Ct. 3405.
The affidavits underlying the April 21, 2011 warrant for Ali's laptop and the May 4, 2011 warrant for Ali's external hard drive are nearly identical. After briefly describing the piracy of the CEC Future and Ali's alleged role, the affidavit underlying the April 21, 2011 warrant indicates that:
(Def. Mot. to Suppress, Ex. 5 at 1442-43 (emphasis added).) The affidavit underlying the May 4, 2011 warrant omitted the two italicized sentences, each beginning "Witnesses observed ...," and swapped the italicized references to Ali's "laptop computer" with references to the "external hard drive" that Ali also had with him when he was arrested. (Id., Ex. 6 at 1458-59.) Otherwise, the affidavits established how the government had come to possess the devices, described their chain of custody, defined mostly irrelevant "technical terms" (including "digital camera," "GPS," "PDA," and "pager"), and proposed search protocols. (Id., Ex. 5 at 1443-8; id., Ex. 6 at 1459-64.)
Ali argues that both affidavits suffer from misstatements and omissions that were made intentionally or with reckless disregard for the truth, and that, when corrected, the affidavits fail to establish probable cause. Critically, whereas the May 25, 2010 warrant for Ali's email only implied that Ali had communicated with Clipper during the crisis via email, these warrants state that, "[d]uring the negotiations, Ali communicated with Clipper Group A/S via email and fax." (Id., Ex. 5 at 1442 (emphasis added); id., Ex. 6 at 1458 (emphasis added).) To the contrary, at least some government agents knew that Ali did not have email access while he was onboard the CEC Future. (Id., Ex. 14 at 2010 ("There was no email contact with the [p]irates.").) Indeed, the government has conceded that these statements are "incorrect (and should have read `via phone and fax')." (Gov't Suppression Opp'n at 15.) Still, these warrants sought to search Ali's laptop and external hard drive, not his email, so the nexus calculus is different. Thus, the government argues that the misstatements are immaterial.
Also troubling is Ali's allegation that the government knew that the laptop computer Ali used aboard the CEC Future was damaged sometime after the piracy, and replaced by a different computer, which was the one that Ali carried when he landed
Again, however, the Court concludes that these misstatements and omissions were not material to the establishment of probable cause. Even the corrected affidavits would establish a sufficient nexus. The affiants placed Ali onboard the CEC Future using a laptop, and landing at Dulles with a laptop and external hard drive. Even if the affidavits omitted any mention of email and stated that two different laptops were at issue, the possibility that Ali might have transferred his files from one to the other, or from his original laptop to the external drive, would establish a "fair probability" that Ali's laptop and external hard drive would contain evidence of a crime. Gates, 462 U.S. at 238, 103 S.Ct. 2317. Therefore, the alleged omissions and misstatements do not provide a basis for a Franks hearing.
For the reasons stated, the Court will deny the government's motions in limine pertaining to evidence of Ali's mental state, grant Ali's motion for the admission of evidence under Rule 404(b), and deny Ali's motion to suppress. A separate Order accompanies this Memorandum Opinion.
(Def. Omnibus Opp'n at 9-10 n. 9.)
The Seventh Circuit affirmed Cullen's conviction. Id. at 392. Writing for the court, then-Judge Stevens responded to Cullen's contention "that his evidence of `compulsion' [was] relevant to the issue of intent" by first "recogniz[ing] that the term `intent' may be used in at least three different senses: First, that the prohibited act was performed deliberately; second, that defendant knew it was wrong; and third, that it was designed to further some ultimate goal." Id. at 390. Judge Stevens concluded that the crimes with which Cullen was charged only required a showing of intent as contemplated by the first and second meanings of the term, such that any religious compulsion he may have felt was irrelevant. Id. at 392. As to the third type of intent, however, Judge Stevens recognized that, "[i]n some situations the defendant's ultimate objective may be an element of the particular offense charged." Id. at 391. As an example, Judge Stevens stated that "to prove a criminal attempt an analysis of the defendant's purpose beyond the overt act actually completed is necessary." Id. at 391-92 (footnote omitted). Conspiracy and aiding and abetting, as other inchoate offenses, require the same. As noted above, under "`the law of inchoate offenses,'" with regard to crimes "`such as attempt[,] ... conspiracy,'" and aiding and abetting, "`a heightened mental state separates criminality itself from otherwise innocuous behavior.'" Childress, 58 F.3d at 707 (quoting Bailey, 444 U.S. at 405, 100 S.Ct. 624); see Seals, 130 F.3d at 463 (aiding and abetting is an inchoate offense).
Burke v. Town of Walpole, 405 F.3d 66, 82 (1st Cir.2005) (quoting Velardi v. Walsh, 40 F.3d 569, 574 n. 1 (2d Cir.1994)).
"The D.C. Circuit has not yet weighed in on whether a court can make an inference of recklessness if an affiant omits material that is `clearly critical' to the finding of probable cause." United States v. Lindsey, 596 F.Supp.2d 55, 60 n. 4 (D.D.C.2009). However, in the context of false statements, the Circuit in Davis held that an affiant acts with reckless disregard for the truth where "there exist[] `obvious reasons to doubt [the statement's] veracity.'" 617 F.2d at 694 (quoting St. Amant, 390 U.S. at 732, 88 S.Ct. 1323). By extension, it seems that reckless disregard can be inferred in the context of omissions where "any reasonable person would know that a judge would want to know" the omitted facts in making a determination of probable cause. Wilson, 212 F.3d at 783; see, e.g., United States v. Robinson, 546 F.3d 884, 889 (7th Cir.2008) (To be entitled to a Franks hearing, "a defendant has the burden to `offer direct evidence of the affiant's state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard.'" (emphasis added) (quoting McNeese, 901 F.2d at 594)).
In addition, Ali notes that an affiant related the fact that Ali told Gullestrup [redacted], but characterized this as "show[ing] that Ali currently utilizes [his] email account to relay information about past and present pirate activities." (Def. Mot. to Suppress, Ex. 1 at 1392.) Ali argues that this communication shows Ali's efforts [redacted] and counters evidence of criminal intent. Similarly, Ali argues that an affiant's characterization of emails he sent pertaining to the piracy of the Lynn Rival was "intended to create the impression that" Ali was a "`pirate consultant'... who provide[d] consulting services to pirates," when the affiant knew that "Ali was attempting to provide anti-piracy consulting services to [redacted] and other legitimate actors." (Id. at 30 (emphasis in the original).)
Finally, Ali also notes that an affiant stated that, in light of the affiant's "training and experience, and information provided to [him] by other law enforcement agents, he" knew that "individuals who use email in connection with criminal activity, or activity of questionable legality, often set up separate email accounts to be used solely for limited criminal purposes" in "an effort to avoid detection and to separate personal communication from communication and information that is related to the criminal activity." (Id., Ex. 1 at 1395-96.) [redacted] As with the above, this argument hinges on Ali's characterization of his communications as showing his innocent state of mind.
(Def. Suppression Reply at 3 n. 1 (emphasis added).) Sennett demonstrates why Ali is incorrect: the omission of such an "innocent explanation" would not be determinative where the affidavit stated "other facts" that would "permit [the affiant] to reasonably conclude that" the building would contain evidence of a crime. 667 F.3d at 536.
(Def. Mot. to Suppress, Ex. 1 at 1387 (emphasis added).) Later, the affidavit stated that, "[a]s noted above, the investigation has revealed that Mr. Ali utilized the ali—ali692@hotmail.com account to communicate with Clipper Shipping." (Id., Ex. 1 at 1392.) The implication is that Ali was able to access his email via the ship's satellite phone and used his email to conduct negotiations.
United States v. Lucas, 640 F.3d 168, 178 (6th Cir.2011).
668 F.2d at 1260 (internal quotation marks, citations, and footnotes omitted). The court went on to quote at length from the Supreme Court's decision in Andresen, "which involved a search and seizure of a criminal defendant's office files":
Heldt, 668 F.2d at 1260 (quoting Andresen, 427 U.S. at 482 n. 11, 96 S.Ct. 2737).
