Filed: Jan. 22, 2016
Latest Update: Jan. 22, 2016
Summary: MEMORANDUM DECISION AND ORDER DENYING MOTION TO SUPPRESS AND DENYING REQUESTS FOR EVIDENTIARY HEARINGS DAVID NUFFER , District Judge . Defendant Scott Leavitt filed a motion to suppress evidence and request for evidentiary hearing alleging that evidence gathered by the government should be suppressed "due to mishandling and loss of key Defendants' emails." 1 Defendants Riddle 2 and Payne 3 joined in the motion. The prosecution filed a consolidated response to this and other motions. 4 S
Summary: MEMORANDUM DECISION AND ORDER DENYING MOTION TO SUPPRESS AND DENYING REQUESTS FOR EVIDENTIARY HEARINGS DAVID NUFFER , District Judge . Defendant Scott Leavitt filed a motion to suppress evidence and request for evidentiary hearing alleging that evidence gathered by the government should be suppressed "due to mishandling and loss of key Defendants' emails." 1 Defendants Riddle 2 and Payne 3 joined in the motion. The prosecution filed a consolidated response to this and other motions. 4 Su..
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MEMORANDUM DECISION AND ORDER DENYING MOTION TO SUPPRESS AND DENYING REQUESTS FOR EVIDENTIARY HEARINGS
DAVID NUFFER, District Judge.
Defendant Scott Leavitt filed a motion to suppress evidence and request for evidentiary hearing alleging that evidence gathered by the government should be suppressed "due to mishandling and loss of key Defendants' emails."1 Defendants Riddle2 and Payne3 joined in the motion. The prosecution filed a consolidated response to this and other motions.4 Subsequently, Defendant Johnson joined in Defendant Leavitt's motion5 and Defendant Leavitt filed a reply.6 Although already requested, Defendant Leavitt filed another request for hearing on the Motion.7 For the reasons set forth below, the Motion and requests for hearing are DENIED.
DISCUSSION
Once again Defendants raise the issue of missing email data from the Zeus server. While acknowledging "that investigation into the loss is still being conducted by the U.S. Attorneys [sic] Office in coordination with the FBI,"8 Defendants accuse the prosecution of mishandling the evidence causing the loss of Defendants' emails.9 This allegation is unsupported by any evidence.
In October 2015, then-counsel for Defendant Johnson notified the prosecution at the United States Attorney's Office (USAO) "that there were blocks of data missing from the email boxes of Mr. Johnson, co-defendants, and government witnesses."10 While Johnson has been a defendant in this case since June 201111, and was familiar with the Zeus server, he did not raise the issue of missing email data earlier. The court appointed receiver for iWorks in Federal Trade Commission v. Jeremy Johnson, Case No. 2:10-cv-2203 (D. Nev.) has had possession of the Zeus server since January 2011,12 and was still in possession of the server when Defendant Johnson's counsel made the notification to the USAO. The receiver was still in possession of the server when Defendant Leavitt filed this motion. Recently, the server was released to Special Agent Randy Kim by court order in the Nevada case.13 Pursuant to that order, S.A. Kim is conducting a forensic investigation of the server at the Intermountain West Regional Computer Forensics Laboratory (IWRCFL) in Salt Lake City, Utah, for the purposes of
(1) creating a clone of the Zeus server; (2) attempting to restore certain e-mails on the clone of the Zeus server generally described in the Emergency Motion and referred to as the Missing Data; and (3) attempting to determine when the Missing Data was deleted from the Zeus server.14
Until S.A. Kim took possession of the Zeus server, the prosecution has never had custody of this server, and has relied on the same data extractions as were delivered to the defendants. Consequently, "regardless of whether or not there are emails missing from the Manatt database and/or the Zeus hard drive, Defendants have the same data the Government has in its possession. They have every email and document the Government has obtained in this matter."15 "[I]f the data is recoverable [from the Zeus server], it will be provided to Defendants."16
Defendants allege that their emails are missing during specific time frames.17 "But not all emails during that time frame are missing. The prosecution provided a detailed James proffer of the emails they intend to use at trial which include emails from the senders and timeframes Defendants claim are missing."18
As explained in an earlier order addressing the issue of these missing blocks of email data,
The prosecution has worked with the same Zeus server data as was provided to the defendants. The prosecution is not relying on any data from the new data store [Defendants] feel[] should be pursued. [Defendants] offer[] no explanation for the belated discovery of the discrepancy in data file sizes.
Further, the possibility of recovering meaningful data is unknown. . . . [The forensic] extraction process and actual ability to retrieve any data, whether there is actually missing email data [on the Zeus server], and the materiality of any data retrieved is all speculative, unsupported by evidence.19 Defendants' Motion also fails to identify what evidence they seek to suppress.
Apparently, what Defendants are really seeking is an evidentiary hearing to obtain evidence that they may then seek to suppress.20 As stated above, after S.A. Kim completes the forensic examination of the Zeus server, any recoverable data will be provided to Defendants. After review of the recovered data, Defendants may then seek remedies they deem appropriate. But Defendants could have done this long, long ago, if they truly had an interest in this data.
ORDER
IT IS HEREBY ORDERED that the Motion to Suppress and Requests for Hearing21 are DENIED.
