The search warrant for defendant’s home for “[a]ny and all financial records,” “[e]vidence indicating Manafort’s state of mind as it relates to the crimes under Investigation,” and “[c]omputers or storage media used as a means to commit the Subject Offenses” was sufficiently limited by other descriptions of the offenses under investigation. As to state of mind, “[f]or example, records concerning one transaction may show a defendant’s intent to defraud in another transaction. See Andresen, 427 U.S. at 483-84 (seizure of documents reflecting unrelated transaction was permissible under the Fourth Amendment because the documents could help show defendant’s intent); …” United States v. Manafort, 2018 U.S. Dist. LEXIS 120063 (D. D.C. July 18, 2018):
Defendant contends that the warrant fails to “particularly describ[e] the place to be searched, and the persons or things to be seized,” Def.’s Mot. at 2 (edits in original), quoting Jones v. Kirchner, 835 F.3d 74,79 (D.C. Cir. 2016) and Marron v. United States, 275 U.S. 192, 195-96, 48 S. Ct. 74, 72 L. Ed. 231 (1927), and he points to the provisions in the warrant that call for the seizure of:
• “[a]ny and all financial records,” Warrant ¶ 1a, Notice Att. at 13;
• “[e]vidence indicating Manafort’s state of mind as it relates to the crimes under Investigation,” Warrant ¶ li, Notice Att. at 14; and
• “[c]omputers or storage media used as a means to commit the Subject Offenses,” Warrant ¶ 2, Notice Att. at 14. Def.’s Mot. at 2.Manafort’s objections are not well-taken, though, because they ignore the fact that these provisions are plainly limited by the scope of the overarching authorization to seize only “records relating to” the specifically enumerated offenses. See Warrant ¶ 1, Notice Att. at 13. The application requested permission to search for and seize “records relating to” the subject offenses, “including but not limited to: … [a]ny and all financial records for Paul Manafort, Jr., [TEXT REDACTED BY THE COURT] Richard Gates, or companies associated with [them] … [and] [e]vidence indicating Manafort’s state of mind as it relates to the crimes under investigation.” Appl. Attach. B ¶¶ 1, 1a, 1i, Notice Att. at 19-20 (emphasis added). In other words, the categories Manafort complains about are listed as examples of the types of records that would be covered by the warrant — subsets of the set of responsive records bounded by the particular crimes under investigation.
The Supreme Court has held that individual phrases in a search warrant must be read in the context of the rest of the warrant — in particular, the list of offenses — and not in isolation. Andresen v. Maryland, 427 U.S. 463, 479-82, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). In Andresen, the Court construed the broad grant of authority to seize “other fruits, instrumentalities and evidence of crime at this (time) unknown” in the context of the warrant’s “lengthy list of specified and particular items to be seized,” id. at 479-80, and it found that the warrant only permitted the executing officers “to search for and seize evidence relevant to the crime [alleged] and [the property at issue].” Id. at 481-82.
The defense asserts in his motion that authorizing a search for “‘any and all financial records’ of everyone residing at the subject location is exceptionally broad,” and that “nothing in the affidavit justifies so broad a warrant.” Def.’s Mot. at 3. But the D.C. Circuit held in United States v. Dale, 991 F.2d 819, 846-50, 301 U.S. App. D.C. 110 (D.C. Cir. 1993) (per curium), that when a warrant application, as here, alleges making a false statement in a tax return, a search for “any and all financial records” related to that offense would be valid under the Fourth Amendment. The Court explained that courts may “consider[ ] the circumstances of the crime in assessing the degree of particularity that should be required of descriptions of items to be seized in the warrant.” Id. at 848. Similarly, in United States v. Fattah, 858 F.3d 801, 819-20 (3d Cir. 2017), the court rejected a challenge to a search warrant that authorized seizure of “all financial records” in a case involving allegations including bank fraud and filing false tax returns. It held that the particularity requirement is to be applied with flexibility, especially “in cases involving complex schemes spanning many years that can be uncovered only by exacting scrutiny of intricate financial records.” Id., citing United States v. Christine, 687 F.2d 749, 760 (3d Cir. 1982).
The offenses set forth in the affidavit justified a broad search of Manafort’s financial records, and the facts alleged also supported the grant of permission to seize records belonging to others. The affidavit identified transfers of millions of dollars from the Cypriot bank accounts allegedly funded by the Ukrainians to a number of U.S. accounts and entities associated with Manafort and [TEXT REDACTED BY THE COURT]. Aff. ¶¶ 21-22. And the affidavit details alleged misrepresentations by Manafort to obtain bank loans and loan extensions, Aff. ¶¶ 23-46, including an alleged scheme by a limited liability company owned by [TEXT REDACTED BY THE COURT] to obtain a multi-million dollar loan. Aff. ¶¶ 27, 34. Those facts supported the issuance of a warrant to seize financial records belonging not only to the defendant, but also [TEXT REDACTED BY THE COURT] his business associate, and their affiliated companies.
The defense next argues that the provision allowing the seizure of “[e]vidence indicating Manafort’s state of mind as it relates to the crimes under investigation,” Warrant ¶ 1i, Notice Att. at 14, imposed no limits on the executing agents’ discretion because all of the alleged offenses require knowledge and intent. Def.’s Mot. at 3. But this is precisely why this sort of provision was permissible. For example, records concerning one transaction may show a defendant’s intent to defraud in another transaction. See Andresen, 427 U.S. at 483-84 (seizure of documents reflecting unrelated transaction was permissible under the Fourth Amendment because the documents could help show defendant’s intent); United States v. Wormick, 709 F.2d 454, 459 (7th Cir. 1983), citing Andresen, 427 U.S. at 483 (evidence of other false statements may be introduced to show that the false report at issue was part of an intentional scheme rather than an accident or mistake).
Finally, the defendant complains that the second category of items the warrant permitted the agents to seize — “[c]omputers or storage media used as a means to commit” the alleged offenses, Warrant ¶ 2, Notice Att. at 14 — is also overbroad because it failed to limit the agents’ discretion in determining which computers or storage media fit that description. Def.’s Mot. at 3. But the only case he relies upon does not hear on this question.
Courts consider the totality of circumstances in determining the validity of a warrant, Gates, 462 U.S. at 230, and a key factor to be considered is the information available to the government. This principle applies when agents have reason to believe that electronic devices will be found at a location, but cannot precisely identify them. For instance, in United States v. Loera, 59 F. Supp. 3d 1089 (D.N.M. 2014), the court upheld a warrant authorizing seizure of “[a]ny computers, cell phones, and/or electronic media that could have been used as a means to commit the offenses described.” Id. at 1099, 1153. “Under the circumstances of the case, the agents had no information with which they could have provided further clarity in the search warrant …. They had no idea what computer equipment or electronic devices that [the defendant] would have used to access his electronic mail accounts, the hijacked electronic mail account, or the Domain, or where he could have concealed evidence that he had done so.” Id. at 1152.
Manafort states that the D.C. Circuit “found wanting a similar warrant” in United States v. Griffith, 867 F.3d 1265 (D.C. Cir. 2017). Def.’s Mot. at 3. But as the excerpt he quotes from the case reveals, Griffith involved a warrant that “authorized the wholesale seizure of all electronic devices discovered in the apartment, including items owned by third parties, see Def.’s Mot. at 3, quoting Griffith at 1270-71, and it did not involve a provision approving the seizure of devices that had been “used” in specific offenses. So the warrants are not “similar,” and the case is not instructive on this point. Since the challenged provision in the warrant involving Manafort’s residence was limited to computers used in the particular offenses identified, it was clear that provision did not authorize the wholesale removal of every electronic device in the house, and it was not so vague or broad to require invalidation of the entire warrant.
Therefore, the Court holds that the search warrant was sufficiently particularized.
