Summary
noting that “Section 636 is unique within the statute in its lack of a mechanism for review or expressed standard of review” and concluding that “Congress's failure to include a standard of review or right of appeal for § 636 indicates it did not intend to provide such a mechanism”
Summary of this case from United States v. LopezOpinion
CRIMINAL ACTION NO. 19MJ2012
2020-03-27
UNITED STATES of America v. INFORMATION ASSOCIATED WITH EMAIL ACCOUNT (WARRANT)
OPINION
WENDY BEETLESTONE
On December 2, 2019, a magistrate judge issued a warrant pursuant to the Stored Communications Act ("SCA"), 18 U.S.C. § 2701, et seq. , to search Petitioner's email in support of an ongoing investigation of healthcare fraud and wire fraud. The warrant required Oath Inc., the company that runs Petitioner's email account, to turn over the requested information. On December 18, 2019, Petitioner learned of the warrant from Oath, which advised him that it would respond to the warrant within seven calendar days unless he filed a challenge to the warrant. On December 20, at Petitioner's request, Oath provided Petitioner with a copy of the warrant.
After some back and forth with the government in which the Petitioner's attorney sought unsuccessfully to negotiate the terms of production – particularly with respect to a privilege review of the documents – on December 24 he filed an emergency motion to intervene, stay execution of the search warrant, and quash the warrant, or in the alternative for a protective order permitting defense counsel to conduct a privilege review. The magistrate judge denied the motion but granted Petitioner's emergency motion to stay pending appeal to the district court. Petitioner's "appeal" is now before this Court. Petitioner's arguments are that the magistrate judge should have quashed the warrant or provided a detailed rationale as to why it did not do so; that the information the government seeks is stale (in that the most recent information requested is over one-and-a-half years old); and that his counsel should be permitted to review information for privilege before any materials are handed over to the government rather than the "taint team" planned by the government to shield privileged material from the investigation.
The government contends that the magistrate judge's jurisdiction to issue the search warrant arises directly from 28 U.S.C. § 636(a), the statute which lays out the authority and duties of magistrate judges as explicated in Federal Rule of Criminal Procedure 41(b). More specifically, the Government argues that the source of authority to issue the warrant in this case is found in Subsection 636(a)(1), which provides that:
(a) Each United States magistrate judge serving under this chapter shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law–
(1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Court ....
Petitioner, on the other hand, argues that the warrant was issued pursuant to § 636(b), specifically Subsection (b)(3), which provides that a "magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States."
The distinction matters because whereas when a magistrate exercises authority under Subsection 636(a) he or she is the court of first resort – in other words is acting without the need for designation or referral by a district judge – in proceeding under any matter pursuant to Subsection 636(b), their authority stems from such a designation or referral. See 28 U.S.C. § 636(b)(1)(A) (authorizing magistrates to hear and determine non-dispositive pretrial matters pending before the court upon authorization by a district judge); 28 U.S.C. § 636(b)(1)(B) (same with respect to magistrate judges conducting hearings, including evidentiary hearings, and submitting proposed findings of facts and recommendations on dispositive motions to the district court).
Most of Section 636(a) delineates specific areas of magisterial authority – such as determining whether a defendant should be released on bail, trying persons charged with misdemeanors, and sentencing defendants for petty offenses and class A misdemeanors, 18 U.S.C. § 636(a)(2)-(5), but the language of Subsection (a)(1) is broader in that it grants magistrates "all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts."
The use of the word "commissioners" in a statute concerning the authority of magistrate judges has historical dimensions. Indeed, it harks back to 1793 when Congress first authorized circuit court judges to appoint "discreet persons learned in the law" to take bail in federal criminal proceedings. Over the course of the nineteenth century, Congress periodically expanded the powers of these persons – who became known as commissioners – to enforce federal laws. In 1896, Congress established the formal office of "United States Commissioner," and transferred the power to appoint commissioners from the circuit to the district courts. Frustrated with the lack of uniform standards for appointment and desiring to expand the judicial responsibilities of the commissioners, in 1968 Congress passed the Federal Magistrates Act, which abolished the office of United States Commissioner and substituted for it the office of United States Magistrate (later Magistrate Judge). See A Guide to the Legislative History of the Federal Magistrate Judges System , Admin. Office of the United States Courts, at 1-15 (Sept. 2009).
Through these changes, Congress sought to ensure that magistrate judges continued to exercise the same powers as commissioners. See S. Rep. No. 371, 90th Cong., 1st Sess. 11 (1967) (explaining that the committee believed it was "neither practical nor desirable simply to abolish the commissioner system and transfer the functions now performed by that office to the U.S. district court judges"). Section 636(a)(1) was thus included in the statute to preserve the historic powers and duties of commissioners. In re Search of Scranton Hous. Auth. , 487 F. Supp.2d 530, 533 (M.D. Pa. 2007) ; see also A Guide to the Legislative History of the Federal Magistrate Judges System, supra , at 17-18.
One such historic power is the power to issue search warrants. When the Federal Rules of Criminal Procedure were enacted in 1944, Rule 41 authorized search warrants to be issued by a district court judge or a commissioner. Issuing search warrants thus falls under the powers granted by § 636(a)(1).
Rule 41 was modified in the 1972 amendments to the Federal Rules of Criminal Procedure to update the language to reflect the Federal Magistrates Act, replacing "commissioner" with "magistrate." Fed. R. Crim. P. 41(d) Advisory Committee's Note (1972).
Turning to the warrant issued in this case, the Government applied for the warrant pursuant to the SCA. The SCA was passed in the wake of congressional concern about protecting individual's privacy interests in information held online by third parties. See In re Search Warrant No. 16-960-M-1 to Google , 275 F. Supp.3d 605, 609 (E.D. Pa. 2017) (citing S. Rep. No. 99–541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3557). Thus the SCA "was born from congressional recognition that neither existing federal statutes nor the Fourth Amendment protected against potential intrusions on individual privacy arising from illicit access to stored communications in remote computing operations and large data banks that stored e-mails." In re Google Inc. Cookie Placement Consumer Privacy Litig. , 806 F.3d 125, 145 (3d Cir. 2015) (internal quotation and citation omitted). The SCA addressed this issue through the creation of "a set of Fourth Amendment-like privacy protections by statute" for electronic communications held by two types of network service providers: providers of "electronic communication service" and providers of "remote computing service." See Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It , 72 Geo. Wash. L. Rev. 1208, 1212-14 (2004).
Under § 2703 of the Act, Congress established three separate methods for the Government to request electronic information: (1) "a warrant issued using the procedures described in the Federal Rules of Criminal Procedure," 18 U.S.C. § 2703(a), (b)(1)(A), (c)(1)(A) ; (2) a "court order for disclosure" issued based on an offer by the Government of "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation," id. § 2703(d) ; and (3) "an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena," id. § 2703(b)(1)(B)(i), (c)(2). Which of these three the Government needs to obtain depends on the type of information it seeks, with more intrusive disclosures requiring a higher showing by the Government, e.g. , a warrant.
In this instance, the Government requested a search warrant, the highest form of protection authorized by the SCA. As required by the SCA, the Government's application was made pursuant procedures established in the Federal Rules of Criminal Procedure, specifically Rule 41(c). Thus when the magistrate issued the warrant in this case, he was acting pursuant to his historic duties to issue warrants as reflected in § 636(a)(1).
The propriety of the magistrate judge issuing the warrant is further confirmed by the text of the SCA. The SCA allows the issuance of warrants by any "court of competent jurisdiction." Id. § 2703(b)(1)(A). It defines a "court of competent jurisdiction" as "any district court of the United States (including a magistrate judge of such a court ) ... that ... has jurisdiction over the offense being investigated." Id. § 2711(3)(A) (emphasis added). Thus, for this reason and for the reasons set forth above, the magistrate judge was authorized by statute, and not by designation or referral of a district judge, to issue the warrant.
Other courts that have concluded that a magistrate's authority to issue SCA warrants falls under § 636(b)(3) were considering not challenges to the issuance of the warrant itself, but instead challenges brought by providers regarding compliance with the warrant. See, e.g., In re Search Warrant No. 16-960-M-1 , 275 F. Supp.3d at 608 n.4 ; In re Search of Info. Associated with [redacted]@gmail.com that is Stored at Premises Controlled by Google, Inc. , 2017 WL 3445634, at *4 (D.D.C. July 31, 2017) (same). Section 2703 provides a limited mechanism for providers to object to a warrant. 18 U.S.C. § 2703(d), (h)(2)(A). Unlike issuing a warrant, ruling on objections provided for by statute in the SCA context does not fall into the historic duties of a magistrate judge or the scope of Rule 41.
Having determined the magistrate's source of authority to issue the warrant, the next question is whether there is a mechanism under Section 636(a) to appeal to or have it reviewed by a district court.
Section 636(a) does not explicitly provide for any right of appeal or review of acts performed pursuant to that section's authority by a magistrate judge. See 28 U.S.C. § 636(a) ; see also E.D. PA. LOC. R. 50.2(IV).
In contrast, the subsections of § 636(b) provide not only for rights of appeal or review of a magistrate judge's decision to a district court judge, but also set forth the standards of review to be used by the district judge in deciding that appeal or review. Section 636(b)(1)(A) explicitly contemplates a right of appeal, providing that a "judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). Likewise, § 636(b)(1)(C) provides that, for any report and recommendation made pursuant to Subsection (b)(1)(B), a party can object to the report and a "judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. § 636(b)(1)(C). Next, § 636(b)(2) authorizes a district court judge to designate a magistrate judge to serve as a special master in any civil case. Federal Rule of Civil Procedure 53, which governs special masters, provides a mechanism for de novo review by a district court of the special master's order, report, or recommendation. Fed. R. Crim. P. 53(f). The only provision of § 636(b) lacking an explicit appeal mechanism is § 636(b)(3), which provides that magistrate judges may be assigned additional duties that are not inconsistent with the Constitution and laws of the United States. The Third Circuit requires that, in line with the statutory scheme for review of duties designated by the district court set out in § 636(b)(1), district courts should ascertain whether the matter before them is closer to the non-dispositive motions governed by Section 636(b)(1)(A) or the dispositive motions of Section (b)(1)(B), with the standard of review according with the provision to which the motion is most similar. N.L.R.B. v. Frazier , 966 F.2d 812, 816 (3d Cir. 1992) ; see also 18 U.S.C. § 636(c) (granting magistrates the power to conduct civil trials with the consent of parties and providing appeal directly to the Court of Appeals); id. § 636(e) (granting magistrates authority to issue contempt orders and providing appeal directly to the Court of Appeals).
Section 636(a)(1) is thus unique within the statute in its lack of a mechanism for review or expressed standard of review. In such an instance, the interpretive canon expressio unius est exclusio alterius, i.e. that "expressing one item of [an] associated group or series excludes another left unmentioned," provides useful guidance. NLRB v. SW General, Inc. , ––– U.S. ––––, 137 S. Ct. 929, 940, 197 L.Ed.2d 263 (2017) (internal quotation and citation omitted). The canon only applies when "circumstances support[ ] a sensible inference that the term left out must have been meant to be excluded." Chevron USA Inc. v. Echazabal , 536 U.S. 73, 81, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002). Here, every other subsection in the Act provides a standard of review, except Subsection 636(a). While § 636(b)(3) did not explicitly contain a standard, its inclusion amongst authorities the district court can delegate to magistrates understandably led to the Third Circuit's conclusion that all authority delegated by a district court can then be reviewed by a district court, consistent with the established statutory scheme. For powers under § 636(a), however, there is no such obvious scheme in place. Instead, context yields the more natural reading that Congress, in creating § 636(a), intended to simply codify existing authority held by magistrates and grant them authority to conduct other limited criminal proceedings. Congress's failure to include a standard of review or right of appeal for § 636(a)(1) indicates it did not intend to provide such a mechanism.
The conclusion that Congress did not intend to provide an appeal mechanism within the framework of § 636(a) is strengthened by the fact that, after enactment, it provided an appeal mechanism for at least one power granted to the magistrate in Subsection (a). The Bail Reform Act, passed in 1984, grants district courts the ability to review a magistrate's determination on a defendant's release pending trial, as authorized by § 636(a)(2). 18 U.S.C. § 3145. If a right to appeal or to review was inherent in § 636(a), there would have been no need to pass legislation provided for one in this narrow circumstance.
Ultimately, however, even assuming arguendo that this court has jurisdiction to hear Petitioner's appeal, he faces another issue– standing. See In re Search Warrant , 810 F.2d 67, 69 (3d Cir. 1987).
The United States Constitution protects the rights of persons subject to search warrants by imposing "ex ante , the deliberate, impartial judgment of a judicial officer ... between the citizen and the police ... and by providing, ex post , a right to suppress evidence improperly obtained and a cause of action for damages." United States v. Grubbs , 547 U.S. 90, 99, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). Courts thus generally review challenges to search warrants either in a motion to suppress during a criminal case or in an after-the-fact civil rights lawsuit, not in a pre-execution motion to quash. See Warshak v. United States , 532 F.3d 521, 528 (6th Cir. 2008). This stands in contrast to subpoenas, which are regularly challenged pre-execution. In re Search of Electronic Communications in the Account of chakafattah@gmail.com , 802 F.3d 516, 527 n.39 (3d Cir. 2015) (" Fattah ").
Few courts have squarely addressed whether someone other than the provider has standing to challenge an SCA warrant. In Fattah , both the district court and the Third Circuit assumed without deciding that the petitioner could intervene, but "noted the odd procedural posture of the case, observing that Fattah ‘ha[d] cited no reported decision’ supporting his contention that he may raise a Fourth Amendment challenge to a warrant prior to its execution." 802 F.3d at 521.
An instance when the Third Circuit allowed an appeal by an intervener to go forward, however, provides instruction as to when such an intervention might be appropriate. A doctor was being investigated for healthcare fraud, and the Government received a warrant to search his offices, including patient files. In re Search Warrant , 810 F.2d 67, 69 (3d Cir. 1987). The doctor challenged the warrant, arguing that it violated the constitutional rights of his patients because it breached their privilege against disclosure of confidential medical records. Id. The Circuit held that the doctor had standing to intervene and could file an interlocutory appeal of the denial of his motion because the patients' privacy rights were immediately threatened by the warrant and could not adequately, if at all, be protected at trial. Id. The issue was thus "sufficiently independent from the anticipated criminal proceeding." Id. This stood in stark contrast to the doctor's own rights–were he to have been asserting his own rights, "his appeal would certainly be foreclosed" as insufficiently independent of the proceedings. Id.
Here, Petitioner is exclusively seeking to protect his own rights. Thus, like the doctor, his rights are adequately protected by mechanisms that would be available to him at trial should the Government indict him. See id. If he has reason to conclude that the warrant was issued without probable cause or that the Government acted in an unconstitutional manner while executing the warrant, he has within his defensive arsenal the option of filing a motion to suppress the evidence.
To the extent Petitioner is concerned with protecting privileged material, the Government volunteered to utilize a taint team to pre-screen for any potentially privileged matters. Nothing in the Constitution requires that warrants specify the precise manner in which they are to be executed. Dalia v. United States , 441 U.S. 238, 257, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). Instead, execution is generally left to the discretion of the executing officers, subject to later judicial review for reasonableness. Id. Nonetheless, some courts have limited the circumstances in which prosecutors may employ taint teams during criminal investigations. See, e.g., In re Grand Jury Subpoenas , 454 F.3d 511, 522 (6th Cir. 2006). As Petitioner lacks standing to intervene, however, and taint teams are a "common tool employed by the Government" in this type of situation, there is no legitimate reason to dictate how the Government exercises its discretion in executing the warrant. See Fattah , 802 F.3d at 530.
Practical concerns support the conclusion that Petitioner cannot challenge the warrant ex ante in this case. Allowing targets of SCA warrants to challenge the warrant could open the floodgates to huge numbers of such challenges, straining judicial resources. In re Search of Information Associated with Facebook Accounts DisruptJ20, Lacymacauley, and Legba.Carrefour that is Stored at Premises Controlled by Facebook, Inc. , 2017 WL 5502809, at *9 (D.C. Super. Nov. 09, 2017) (" DisruptJ20 "). The Federal Magistrates Act reserved the traditional duties of magistrates, including issuing search warrants, in large part because district court judges were "already overburdened by their present duties." S. Rep. No. 371, 90th Cong., 1st Sess. 11 (1967). Granting standing to subjects of SCA warrants to intervene would undercut Congress' goals in passing the Act. Allowing litigation of these types of claims at this point in the proceeding runs a high risk of unduly compounding the proceeding, turning the swift execution of warrants into protracted legal battles that would prevent the Government from timely resolving its investigations. See DisruptJ20 , 2017 WL 5502809, at *9.
Petitioner's concerns over privilege and privacy by all accounts appear to be raised in good faith, but "in a legal sense such interests have already been taken into account by requiring the government to meet the higher burden [of probable cause], and correspondingly higher protections, involved in obtaining a search warrant" as opposed to a subpoena. Id. at *10.
In short, even if there were a mechanism for this Court to hear Petitioner's appeal, he lacks standing to intervene to challenge the warrant, remaining free to raise such concerns, should the need arise, in a motion to suppress or civil rights motion.
For the foregoing reasons, Petitioner's Motion shall be denied. An appropriate order follows.