Case 4:09-cr-00342 Document 589 Filed in TXSD on 01/06/12 Page 1 of 40

Case 4:09-cr-00342 Document 589 Filed in TXSD on 01/06/12 Page 1 of 40

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

UNITED STATES OF AMERICA §
Plaintiff § CRIM. DOC. H-09-342-1(S)
§ HONORABLE DAVID HITTNER
vs. §
§
§
ROBERT ALLEN STANFORD §
Defendant §

MOTION TO SUPPRESS FOR VIOLATION OF THE FOURTH
AMENDMENT AND REQUEST FOR EVIDENTIARY HEARING

TO THE HONORABLE JUDGE DAVID HITTNER:

Robert Allen Stanford, the Accused in this matter, respectfully requests

this Court to conduct a hearing on this motion to suppress certain evidence

based upon violations of his Fourth Amendment right to protection from illegal

search and seizures, and would show as follows:

I. RELEVANT FACTS

1. On or about February 16, 2009, a motion and proposed Order was filed by

the United States Securities and Exchange Commission (“SEC”) requesting the

appointment of Ralph Janvey as Receiver over numerous corporate entities

owned by the Defendant.1 The Proposed Order requested by the SEC obligated

1
The Motion for Order Appointing Receiver, and Proposed Order prepared by
the Securities and Exchange Commission specifically requesting appointment of
Ralph Janvey as Receiver, and obligating Janvey as Receiver to “[p]romptly

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the Receiver to provide the SEC and any other governmental organization with

“all information and documentation they may seek in connection with its

regulatory or investigatory activities.” (emphasis added). At a hearing in which

the Accused was not represented by counsel, a receiver, Ralph Janvey

(“Receiver”), was appointed in the Northern District of Texas for, among others,

Stanford International Bank, Ltd. (SIB), Stanford Group Company (SGC),

Stanford Capital Management, LLC (SCM), and Robert Allen Stanford.2 Mr.

Stanford is a U.S. citizen born in Mexia, Texas, and was the sole shareholder of

all the corporate entities the Receiver was appointed to oversee by the Court.

2. Pursuant to the Order Appointing Receiver (the Order), the Court in the

Northern District, by way of the Receiver:

assume[d] exclusive jurisdiction and [took] possession of the assets,
monies, securities, properties, real and personal, tangible and
intangible, of whatever kind and description, wherever located, and
the legally recognized privileges (with regard to the entities), of the

provide the United States Securities and Exchange Commission and other
governmental agencies with all information and documentation they may seek in
connection with its regulatory or investigatory activities”, footnote 2, infra, was
submitted to the Court on February 16, 2009, and signed by District Judge
O’Connor on the same date. (emphasis added). The Motion was filed the next
day with the Clerk of Court on February 17, 2009. Monday, February 16, 2009
was a federal holiday—Washington’s Birthday—and no court staff would have
ordinarily been working to help the Judge draft the detailed 11-page Order. <see
http://www.opm.gov/operating_ status_schedules/ fedhol/ 2009.asp> <last
visited 01/03/2012>. See footnote 2.
2
See Securities and Exchange Commission v. Stanford International Bank, Ltd.,
et al., Case No. 3:09-CV-0298, Doc. 10 (“Receiver Order”), attached as Exhibit
A.

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Defendants and all entities they own[ed] or control[led]…and the
books and records, client lists, account statements, financial and
accounting documents, computers, computer hard drives, computer
disks, internet exchange servers telephones, personal digital devices
and other informational resources of or in possession of the
Defendants, or issued by Defendants and in possession of any agent
or employee of the Defendants.”3

3. Paragraph 5 of the Proposed Order requested by the SEC, and signed by

the Court, orders that “the Receiver is specifically directed and authorized to

perform the following duties:…(k) [p]romptly provide the United States

Securities and Exchange Commission and other governmental agencies with all

information and documentation they may seek in connection with its regulatory

or investigatory activities.”4 (emphasis added).

4. Before this time, the SEC, Department of Justice (“DOJ”), FBI, and U.S.

Postal Inspectors had been working together in jointly investigating the Stanford

Financial Group, Stanford International Bank Limited, and other Stanford

entities, since at least Summer 2008. See Written Testimony of Charles W. Rawl

to the House Financial Services Subcommittee On Oversight & Investigations

Hearing, May 13, 2011, p. 3-4.5 According to Rawl’s written testimony,

In June 2008, we learned that Louisiana Attorney General
Investigators had met with the SEC, the FBI and the DOJ.…On
August 6, 2008, I was interviewed by the SEC, the DOJ, the
Postmaster Inspector General’s office and the FBI for

3
Id. at ¶ 1.
4
Id. at ¶ 5, subsection (k).
5
Attached as Exhibit B.

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approximately seven hours. A few days later, my attorney was
contacted and told that I was the SEC’s man and would make an
excellent witness. They “would be in touch soon.” “Soon” felt like
an eternity. The SEC Inspector General later confirmed this was
about the time that the DOJ asked the SEC to “stand down” in its
investigation of Stanford.
The SEC was awakened when news of the Madoff Ponzi
scheme broke in December 2008. Within days of Madoff’s arrest,
the SEC contacted us in a panic, wanting to meet immediately after
many months of silence. The SEC was so anxious at this point, they
asked to meet over the Christmas weekend. We met with the SEC
the first week of January 2009. At this point, the SEC expressed its
concerns about lacking jurisdiction over the Antigua-based bank.
We helped the SEC design the legal strategy to implicate the
domestic U.S. broker-dealer in the offshore bank fraud.

5. In the Receiver’s initial submission for legal fees, Baker Botts, in

representing the Receiver, specifically noted that it “[c]oordinated with the SEC,

DOJ, FBI, USPI, DOL and DEA in identifying and gathering relevant documents

and information.”6

II. THE RECEIVER’S RELATIONSHIP WITH THE COURT AND
OBLIGATION TO PRODUCE RECORDS TO GOVERNMENT AGENCIES
CONSTITUTES STATE ACTION

6. The Receiver in this matter is a private equity receiver appointed pursuant

to the Court’s equitable powers and 28 U.S.C. § 754 and § 959, the statutes

regulating district courts in appointing receivers.7 “Court appointed receivers act

6
See 3:09-CV-0298, Doc. 385.
7
28 U.S.C. § 959, “Trustees and Receivers Suable; Management; State Laws”,
states:
“(a) Trustees, receivers or managers of any property, including debtors in
possession, may be sued, without leave of the court appointing them, with

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as arms of the court.” Davis v. Bayless, 70 F.3d 367, 373 (5th Cir. 1995). State

action exists in “cases in which the government has ‘so far insinuated itself into

a position of interdependence (with a private entity) that it must be recognized as

a joint participant in the challenged activity…’” Dobyns v. E-Systems, Inc., 667

F.2d 1219 (5th Cir. 1982) (quoting Burton v. Wilmington Parking Authority, 365

U.S. 715 (1961)) (emphasis added). Once the Court in the Northern District

placed “its power…and prestige” behind the Receiver, and obligated the

Receiver to provide the Securities and Exchange Commission and other

governmental agencies with all information and documentation they sought in

connection with their regulatory or investigatory activities, the relationship

between the two was one of “interdependence.” Burton, 365 U.S. at 724-25.

7. The Fourth Amendment protects against unreasonable searches and

seizures by Government officials and those private individuals acting as

respect to any of their acts or transactions in carrying on business connected
with such property. Such actions shall be subject to the general equity power of
such court so far as the same may be necessary to the ends of justice, but this
shall not deprive a litigant of his right to trial by jury.
(b) Except as provided in section 1166 of title 11, a trustee, receiver or
manager appointed in any cause pending in any court of the United States,
including a debtor in possession, shall manage and operate the property in his
possession as such trustee, receiver or manager according to the requirements of
the valid laws of the State in which such property is situated, in the same manner
that the owner or possessor thereof would be bound to do if in possession
thereof.”

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“instrument[s] or agent[s] of the Government.” See U.S. CONST. AMEND. IV;

Coolidge v. New Hampshire, 403 U.S. 445, 487 (1971).

8. Determining whether the requisite agency relationship exists

“necessarily turns on the degree of the Government’s participation in the

private party’s activities, . . . a question that can only be resolved ‘in light of

all the circumstances.’” Skinner v. Railway Labor Executives' Ass'n, 489 U.S.

602, 614-15 (1989). In Skinner, the Supreme Court found that private

railroads, in performing drug tests on their employees in a manner expressly

encouraged and authorized under Government regulations, acted as agents

sufficient to implicate the Fourth Amendment. Id. The Court concluded that

“specific features of the regulations combine to convince us that the

Government did more than adopt a passive position toward the underlying

private conduct.” Id.

9. Pursuant to the Receivership Order, U.S. Marshals Service deputies

and FBI agents physically assisted the Receiver throughout its takeover of all

Stanford-related entities cited in the Receivership Order.8 The District Court,

at the request of the SEC, specifically ordered that “Upon the request of the

Receiver, the United States Marshal’s Office is hereby ordered to assist the

Receiver in carrying out his duties to take possession, custody, or control

8
See Exhibit C, Video of Seizures.

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of, or identify the location of, any Receivership Estate assets or records.”

Receivership Order, at ¶ 6, n. 2.

10. Where the police prevent a property owner from using reasonable

force to protect his property from private action, state action under the Fourth

Amendment is established. Soldal v. Cook County, 506 U.S. 56, 60, n.6.

(1992) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct.

1598, 26 L. Ed.2d 142 (1970) (“Private persons, jointly engaged with state

officials in the prohibited action, are acting ‘under color’ of law for purposes

of the statute. To act ‘under color’ of law does not require that the accused be

an officer of the State. It is enough that he is a willful participant in joint

activity with the State or its agents.”). Although this action by the U.S.

Marshal’s Service was likely provided to ensure the unchallenged takeover of

the Stanford entities by the Receiver and its agents, “[s]uch ‘participation

would establish both state action and action under color of state law,’” thus

implicating Fourth Amendment requirements. Id.; see also Taunt v. Barman

(In re Barman), 252 B.R. 403, 413, n.6 (Bankr. E.D. Mich. 2000) (quoting

Howerton v. Gabica, 708 F.2d 380, 382, n.5 (9th Cir. 1983) (action taken by

landlord was ‘under color of state law’ where actions of police officer in

accompanying landlord when serving eviction notice and in privately

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approaching tenants and recommending that they leave created appearance

that police sanctioned eviction.)).

III. THEFT OF CONFIDENTIAL BANKING DATA BY STATE ACTOR.

A. THE COURT MUST SUPPRESS ALL DATA AND INFORMATION
ILLEGALLY OBTAINED FROM SIBL AND STCL IN ANTIGUA,
THROUGH UNAUTHORIZED ACCESS IN VIOLATION OF THE
TREATIES AND LAWS OF THE UNITED STATES, AND LAWS AND
COURT ORDERS OF ANTIGUA, AND ALL FRUITS DERIVED
THEREFROM.

11. In Reid v. Covert, 354 U.S. 1 (1957), the Supreme Court ruled that
constitutional protections apply to U.S. citizens while abroad. There the Court
held:
The United States is entirely a creature of the Constitution. Its
power and authority have no other source. It can only act in
accordance with all the limitations imposed by the Constitution.
When the Government reaches out to punish a citizen who is
abroad, the shield which the Bill of Rights and other parts of the
Constitution provide to protect his life and liberty should not be
stripped away just because he happens to be in another land.

Id. at 5-6 (emphasis added; footnote omitted).

12. The Receiver acted outside the scope of the Receivership Order when it

obtained control of records and documents of SIB that were outside the territorial

jurisdiction of the United States District Court. All evidence obtained in Antigua

was outside the scope of the Receivership Order, and the statutes Congress has

imposed limiting the territorial jurisdiction of federal district courts in

receivership proceedings. See 28 U.S.C. § 754. The Receiver’s actions as a state

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actor also violated U.S. treaty law. See Organization of American States Treaty,

<http://www.oas.org/en/member_states/member_state.asp?sCode=ANT><last

visited Jan. 3, 2012>.

13. After taking control of the Stanford entities within the United States, the

Receiver ordered a Stanford employee to unlawfully obtain unauthorized access

into Stanford International Bank (“SIB”) servers containing confidential bank

customer data located in Antigua, and download the entire bank customer

database in violation of U.S. computer unauthorized access statutes, Antiguan

law and court orders. See Letter from Ralph Janvey to Stanford Employees

(undated).9 Sohil Merchant, a former Stanford IT employee, has stated to

investigators for the defendant that, pursuant to Janvey’s claim of lawful

authority as stated in his letter, he acquiesced in circumventing the security

measures protecting SIB computers located in Antigua from allowing access to

customer bank data by non-bank employees, which Mr. Merchant understood

was prohibited under Antiguan law, and downloaded the entire SIB bank

customer database to a computer in the United States controlled by the Receiver.

Id. The Receiver’s agent, FTI Consulting, in prior sworn testimony before this

Court, was less than candid when they testified that the SIB bank customer data

9
Attached as Exhibit D.

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obtained by unauthorized access into SIB’s Antiguan servers was previously

existing in Stanford Financial Group’s accounting department in Houston:

MR. DeGUERIN: Clarification again, your Honor. Are they
talking about SIB worldwide or only the SIB that’s reflected in the
United States or records that are available to the receiver in the
United States as opposed to records elsewhere in the world,
particularly Antigua?
THE COURT: What’s the answer to that?
THE WITNESS: This record purports to provide the financial
statements for Stanford International Bank, Limited, which is I
believe located in Antigua.
THE COURT: And it’s an Antigua record, yes?
THE WITNESS: It’s a record that was located in the United States
that purports to be the financial statements for the bank that's
located in Antigua.
THE COURT: All right.
MR. DeGUERIN: Well, foundation, your Honor. I'm not satisfied
with the foundation. But we can address that as we go along.
THE COURT: Okay. What’s your objection?
MR. DeGUERIN: That the proper foundation has not been laid for
this to be a record of the worldwide operations of Stanford
International Bank. And the statement of the witness is it appears
to be this rather than this is what it is. So he can’t vouch for it.
THE COURT: How did you obtain it?
THE WITNESS: It was located in the Stanford offices located in
Houston.
THE COURT: Okay.
THE WITNESS: In their accounting department.
[p. 28-30]
…
Q And did you continuously have access to this database?
A No.
Q All right. What happened to the database?
A At one point our access was shut off.
Q And who shut it off? Was it shut off in the United States or was
it shut off in a foreign country?
A I don’t know.

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Q And these were records that you had access to in Houston that
were records of customers of what bank?
A Stanford International Bank, Limited.
Q And where is that bank physically located?
A My understanding is Antigua.
Q All right. And you were able to retrieve records from this
database when you first got in there into the Stanford Financial
Group offices. Is that what you just testified to?
A We were able to access those records at some point after we
arrived in Houston at the --
Q You made analysis of customer deposits as of February 2009?
A Correct.
Q All right. And from that database and those records, those
customer level account records, you were able to determine that
there was CD depositors for which Stanford International Bank was
obligated to the tune of 7.2 billion; is that correct?
A Correct.
Q As of the records that you were retrieving from that database,
that customer level database.
A Yes.
Q And at some point in time you were not able to access that
database any more because it had been terminated in some fashion.
A We continue to have access to the records that --
Q You had retrieved.
A That we had gained access to initially. We are not, to the best of
my knowledge, able to continue to access those records.
Q Because that actual database has been disrupted somehow.
A Yes.
Q That has prevented you from continuously accessing.
A Yes.
[p. 34-35]

Detention Hearing Transcript, pp. 28-30, 34-35, United States v. Robert Allen
Stanford, Case No. 4:09-cr-00342, Doc. 46.10

14. This testimony is false or, at a minimum, materially misleading, because

unlike the testimony offered to the Court, there was no access to SIB bank

10
Attached as Exhibit E.

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customer data in the Antiguan database from non-SIB employees at Stanford

Financial Group in Houston, as this would violate Antiguan law, in particular

International Business Corporations Act, § 244(1). Stanford Financial Group

employees were aware of these Antiguan laws restricting access to customer

banking data by non-SIB employees, which is reflected in the letter from Janvey

to the Houston IT staff addressing their concerns. (“You have asked whether

accessing information that is obtainable through computer systems located in the

United States, but which may be information protected from certain disclosures

under the laws of Antigua, can be provided to me (and persons under my

direction and control) as Receiver under the order. The Answer is yes.”). See

Exhibit D.

15. By ordering unauthorized access into SIB’s banking server in Antigua in

order to download SIB bank customers’ account data, and taking SIB’s database

into the custody of the Receiver in the U.S., Janvey exceeded the scope of its

authority under the Receivership Order entered by the U.S. District Court for the

Northern District of Texas, n. 1, which by statute limits the Receiver’s

jurisdiction to take possession of property to judicial districts of the United

States. See 28 U.S.C. §§ 959; 754. The Receiver’s acts also violated Antiguan

law and court orders, including the Antigua and Barbuda International Business

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Corporations Act, § 244(1) in particular,11 and the Antiguan High Court’s Feb.

26, 2009 Order at ¶ 12,12 which prior to the unauthorized access by the Receiver

had explicitly ruled that “(1) no disclosure of customer specific information is

authorized without further or other order of Court; and, (2) no disclosure of

information is permitted under this Order to any foreign governmental or

regulatory body unless such disclosure is subject to mutual disclosure

obligations. For purposes of this Order, customer specific information means

information of sufficient detail to enable a recipient of the information to

identify the customer in question, the customer’s address or other location,

and/or the amount of such customer’s credit balances or other investments in the

Respondents/ Defendants.”

16. On April 24, 2009, the High Court of Antigua had rejected U.S. Receiver

Ralph Janvey’s petition to be appointed Receiver-Manager of SIB under

Antiguan law, and appointed the Antiguan Receiver-Managers as Liquidators.

April 24, 2009 Judgment of High Court of Justice, Antigua and Barbuda, p. 18

at ¶ 64.13 Receiver Janvey never obtained legal authority to access SIB customer

account data under either U.S. or Antiguan law, and violated U.S. law (18

U.S.C. § 1030) by obtaining unauthorized access into SIB’s Antiguan banking

11
Attached as Exhibit F.
12
Attached as Exhibit G.
13
Attached as Exhibit H.

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servers, as well as Antiguan law and court orders. Antigua and Barbuda

International Business Corporations Act, § 244(1), supra.

17. There is no doubt that the territorial jurisdiction of receivers appointed by

federal courts is limited to judicial districts of the United States. As the Ninth

Circuit held in Securities and Exch. Commn. v. Ross, 504 F.3d 1130, 1145-46

(9th Cir. 2007), agreeing with the D.C. Circuit in SEC v. Bilzerian, 378 F.3d

1100 (D.C. Cir. 2004) and the Sixth Circuit in Haile v. Henderson Nat'l Bank,

657 F.2d 816 (6th Cir. 1981):

Just as those statutes permit the district court to exercise nationwide
jurisdiction, [28 U.S.C.] §§ 754 and 1692 permit the district court
to obtain jurisdiction in a district where receivership property is
located so long as the receiver has properly filed pursuant to § 754.
See, e.g., SEC v. Bilzerian, 378 F.3d 1100 (D.C. Cir. 2004); SEC v.
Vision Comm'ns, Inc., 74 F.3d 287 (D.C. Cir. 1996); Haile v.
Henderson Nat'l Bank, 657 F.2d 816 (6th Cir. 1981). We agree with
the D.C. and Sixth Circuits that § 1692 extends “the territorial
jurisdiction of the appointing court . . . to any district of the United
States where property believed to be that of the receivership estate
is found, provided that the proper documents have been filed in
each such district as required by § 754.” Bilzerian, 378 F.3d at
1103-05; accord Haile, 657 F.2d at 823. (emphasis added).

The Sixth Circuit recognized in Haile that “by statute, the territorial jurisdiction

of the appointing court is extended to any district of the United States where

property believed to be that of the receivership estate is found, provided that the

proper documents have been filed in each such district as required by § 754.”

Haile v. Henderson Nat'l Bank, 657 F.2d 816, 823 (6th Cir. 1981)(emphasis

-‐14-‐


added). A receiver appointed by a federal district court thus is restricted by

statute to the territorial jurisdiction of the appointing court, and any judicial

district of the United States where a copy of the complaint and order of

appointment are filed within ten days of entry of the order of appointment

pursuant to 28 U.S.C. § 754. “The failure to file such copies in any district shall

divest the receiver of jurisdiction and control over all such property in that

district.” Id. Receivers appointed by a federal district court have no statutory

jurisdiction outside the territorial limits of the United States.

18. Similar to the receiver jurisdiction statute, a federal district judge or

magistrate has no authority to issue a search warrant outside the borders of the

United States or its territories, possessions, commonwealths, except for U.S.

diplomatic missions abroad. FED. R. CRIM. P. 41(b)(1-5). See United States v.

Bin Laden, 126 F.Supp.2d 264, 275 n.13 (S.D.N.Y. 2000) (“There is not even a

statutory provision for standard law enforcement searches conducted abroad.

Rule 41(a) of the Federal Rules of Criminal Procedure, which governs domestic

law enforcement searches, limits the jurisdiction of a federal magistrate.”);

Weinberg v. United States, 126 F.2d 1004, 1006 (2d Cir. 1942) (“With very few

exceptions, United States district judges possess no extraterritorial

jurisdiction.”).

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19. As the U.S. Supreme Court has held, a search warrant issued by a United

States magistrate authorizing a search outside the territorial limits of the United

States “would be a dead letter outside the United States.” United States v.

Verdugo-Urquidez, 494 U.S. 259, 274, 110 S.Ct. 1056 (1990). Any restrictions

on searches and seizures incident to American action abroad “must be imposed

by the political branches through diplomatic understanding, treaty, or

legislation.” Verdugo-Urquidez, 494 U.S. at. 275. The United States and

Antigua and Barbuda are Charter Members of the Organization of American

States, a treaty of the United States. See Department of State, Treaties in Force

211(2011);<http://www.oas.org/en/member_states/member_state.asp?sCode=A

NT><last visited Jan. 3, 2012>. As the Second Circuit has noted, the United

States has agreed in the Organization of American States Treaty to respect the

territorial sovereignty of member states, including Antigua and Barbuda:

Here, in contrast, Toscanino alleges that he was forcibly
abducted from Uruguay, whose territorial sovereignty this country
has agreed in two international treaties to respect. The Charter of
the United Nations, the members of which include the United States
and Uruguay, see Department of State, Treaties in Force 402-03
(1973), obligates ‘All Members’ to ‘refrain…from the threat or use
of force against the territorial integrity of political independence of
any state …’ See U.N. Charter, art. 2 para. 4. Additionally, the
Charter of the Organization of American States, whose members
also include the United States and Uruguay, see Department of
State, Treaties in Force 359 (1973), provides that the ‘territory of a
state is inviolable; it may not be the object, even temporarily, . . . of
. . . measures of force taken by another state, directly or indirectly,
on any grounds whatever . . ..’ See O.A.S. Charter, art. 17….

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Since the United States thus agreed not to seize persons
residing within the territorial limits of Uruguay, appellant's
allegations in this case are governed not by Ker but by the Supreme
Court's later decision in Cook v. United States, 288 U.S. 102, 53
S.Ct. 305, 77 L.Ed. 641 (1933).

United States v. Toscanino, 500 F.2d 267, 277-78 (2nd Cir. 1974).

17. Where violations of international treaties of the United States by state

actors occur, the rule established by the Supreme Court in Cook v. United States,

288 U.S. 102, 120-22, 53 S.Ct. 305, 77 L.Ed. 641 (1933) controls. In Cook the

Supreme Court held:

Searches and seizures in the enforcement of the laws
prohibiting alcoholic liquors are governed, since the 1930 Act, as
they were before, by the provisions of the Treaty….
The objection to the seizure is not that it was wrongful
merely because made by one upon whom the government had not
conferred authority to seize at the place where the seizure was
made. The objection is that the government itself lacked power to
seize, since, by the Treaty, it had imposed a territorial limitation
upon its own authority. The Treaty fixes the conditions under which
a “vessel may be seized and taken into a port of the United States,
its territories or possessions for adjudication in accordance with”
the applicable laws. Thereby, Great Britain agreed that adjudication
may follow a rightful seizure. Our government, lacking power to
seize, lacked power, because of the Treaty, to subject the vessel to
our laws. To hold that adjudication may follow a wrongful seizure
would go far to nullify the purpose and effect of the Treaty….
Here, the objection is more fundamental. It is to the
jurisdiction of the United States. The objection is not met by
distinguishing between the custody of the Coast Guard and the
subsequent custody of the Marshal. Nor is it lost by the entry of an
answer to the merits. The ordinary incidents of possession of the
vessel and the cargo yield to the international agreement.

-‐17-‐


Cook v. United States, 288 U.S. at 120-22 (dismissing the libel). (emphasis

added).

20. The U.S. Department of Justice recognizes that searches by American

state actors taking place in another country must be accomplished with the

permission of the local country and its laws. In the Department of Justice

manual “Searching and Seizing Computers and Obtaining Electronic Evidence

in Criminal Investigations,” the Department notes:

When United States authorities investigating a crime believe
electronic evidence is stored by an Internet service provider or on a
computer located abroad (in “Country A”), U.S. law enforcement
usually must seek assistance from law enforcement authorities in
Country A. Since, in general, law enforcement officers exercise
their functions in the territory of another country with the consent
of that country, U.S. law enforcement should only make direct
contact with an ISP located in Country A with (1) prior permission
of the foreign government; (2) approval of DOJ’s Office of
International Affairs (“OIA”) (which would know of particular
sensitivities and/or accepted practices); or (3) other clear indicia
that such practice would not be objectionable in Country A….
Where Country A cannot otherwise provide informal
assistance, requests for evidence usually will be made under
existing Mutual Legal Assistance Treaties (MLATs) or Mutual
Legal Assistance Agreements, or through the Letters Rogatory
process. See 28 U.S.C. § 1781-1782.…
In the event that United States law enforcement inadvertently
accesses a computer located in another country, CCIPS, OIA, or
another appropriate authority should be consulted immediately, as
issues such as sovereignty and comity may be implicated.

-‐18-‐


United States Department of Justice, Searching and Seizing Computers and
Obtaining Electronic Evidence in Criminal Investigations (July 2002), pp. 24-
26.

IV. THE DEFENDANT HAS STANDING TO ASSERT THE RECEIVER’S
UNLAWFUL SEARCH AND SEIZURE OF SIB BANK DATA IN
ANTIGUA, DUE TO HIS LIABILITY FOR NEGLIGENCE IN ALLOWING
THE RECEIVER TO GAIN UNAUTHORIZED ACCESS TO SIB BANK
CUSTOMER DATA.

21. Under Antiguan law, the Defendant, as an “officer” under the Antiguan

International Business Corporations Act, owed a duty to SIB bank customers to

prevent the unauthorized access of third parties to confidential SIB bank

customer data. Antiguan International Business Corporations Act (IBCA) §

244(1).14 IBCA § 244(1) states:

Subject to an express agreement between a banking corporation
and a customer of the corporation, no person shall disclose any
information relating to the business affairs of the customer that
he has acquired as an officer, employee, agent, auditor, solicitor
of the banking corporation, or otherwise in the performance of
his duties or the exercise of his functions under this Act, except
in the performance or exercise of those duties or functions…or
pursuant to an order of a court of competent jurisdiction in
Antigua and Barbuda.

22. The failure to exercise due care in complying with the International

Business Corporations Act results in liability for officers of Antiguan banks.

IBCA § 95 states:

(1) Every director and officer of a corporation in exercising his
powers and discharging his duties must

14
Attached as Exhibit F.

-‐19-‐


(a) act honestly and in good faith with a view to the best
interests of the corporation; and
(b) exercise the care, diligence and skill that a
reasonably prudent person would exercise in comparable
circumstances.
(2) Every director and officer of a corporation must
comply with this Act and the regulations and with the articles
and bylaws of the corporation and any unanimous shareholder
agreement relating to the corporation.
(3) Subject to subsection (3) of section 124, no provision
in a contract, the articles of a corporation, its bylaws or any
resolution, relieves a director or officer of the corporation
from the duty to act in accordance with this Act or the
regulations, or relieves him from liability for a breach of this Act
or the regulations.

An “officer” is defined in the Act to include “the chairman, deputy chairman,

president, or vice-president.” IBCA § 2(k)(1). The Accused was the Chairman of

SIB at the time the Receiver gained unauthorized access to SIB bank customer

records, and had lawful possession of the bank records as an officer of SIB.

V. THE ACCUSED HAS STANDING TO ASSERT VIOLATION OF THE
FOURTH AMENDMENT

23. Whether a search violated a defendant’s Fourth Amendment rights

involves two inquiries. First, a defendant must establish that he or she had a

subjective expectation of privacy in the place or property searched. Smith v.

Maryland, 442 U.S. 735, 740 (1979). Second, a defendant must establish that

society would recognize his or her subjective expectation as objectively

reasonable. “[A] person who is not the owner of the container but who possesses

it by virtue of his status as bailee certainly has standing to object to illegal

-‐20-‐


interference with his possessory interest.” 4 Wayne R. LaFave, Search and

Seizure § 11.3(f), at 344 (2d ed. 1987). See generally United States v. Oswald,

783 F.2d 663, 666 (6th Cir.1986) (explaining “[a] suitcase or briefcase is

property of a kind in which the owner or bailee normally has a strong expectation

of privacy”).

24. In United States v. Perea, 986 F.2d 633, 639-40 (2nd Cir. 1993), the

Second Circuit applying bailee standing under the Fourth Amendment, held:

A bailee has the right--and often the duty--to exclude others
from possession of the property entrusted to him. See generally
Dobie, Handbook on the Law of Bailments and Carriers § 61, at
133 (1914) (right); id. § 65, at 157-58 (duty); Story, Commentaries
on the Law of Bailments § 422a, at 421 (4th ed. 1846) (right); id. §
457, at 465-66 (duty). “As to everybody except the true owner of”
the bailed property, the bailee “ha[s] the right of the owner to have
and defend its custody and direct possession.” Foulke v. New York
Consolidated Railroad Co., 228 N.Y. 269, 275, 127 N.E. 237
(1920). And with respect to that property, the bailee, whether
gratuitous or for hire, has some duty of care. See, e.g., Voorhis v.
Consolidated Rail Corp., 60 N.Y.2d 878, 879, 470 N.Y.S.2d 364,
365, 458 N.E.2d 823, 823 (1983) (gratuitous bailee must avoid
gross negligence; gross negligence presumed from nonreturn of
property); Aronette Manufacturing Co. v. Capitol Piece Dye Works,
Inc., 6 N.Y.2d 465, 468, 190 N.Y.S.2d 361, 364, 160 N.E.2d 842,
844 (1959) (bailee for mutual benefit must exercise ordinary care).
Further, even if he would not be liable to the bailor, the bailee has a
sufficient possessory interest to permit him to “recover for the
wrongful act of a third party resulting in the loss of, or injury to, the
subject of the bailment.” Rogers v. Atlantic, Gulf & Pacific Co.,
213 N.Y. 246, 258, 107 N.E. 661 (1915).
Accordingly, in the Fourth Amendment context, bailees can
have a sufficient interest in bailed property to give them standing to
object to its seizure or search. See, e.g., United States v. Benitez-
Arreguin, 973 F.2d 823, 827-28 (10th Cir.1992); Robles v. State,

-‐21-‐


510 N.E.2d 660, 663 (Ind.1987), cert. denied, 487 U.S. 1218, 108
S.Ct. 2872, 101 L.Ed.2d 907 (1988); State v. Casey, 59 N.C.App.
99, 296 S.E.2d 473, 482 (1982); State v. Grundy, 25 Wash.App.
411, 607 P.2d 1235, 1237-38 (1980), review denied, 95 Wash.2d
1008 (1981); see also United States v. Oswald, 783 F.2d 663, 666
(6th Cir.1986) (“suitcase or briefcase is property of a kind in which
the owner or bailee normally has a strong expectation of privacy”).
See generally 4 LaFave, Search and Seizure § 11.3(f), at 344 (2d
ed. 1987) (“person who is not the owner of the container but who
possesses it by virtue of his status as bailee certainly has standing to
object to illegal interference with his possessory interest”).

25. In United States v. Benitez-Arreguin, 973 F.2d 823, 827-28 (10th Cir.

1992), applying a bailee’s standing to challenge unlawful search and seizure

under the Fourth Amendment, where the bailee was carrying luggage for another

person, the Tenth Circuit held:

We agree that in such circumstances a bailee carrying
luggage for another person could have a legitimate expectation of
privacy in the luggage. In analyzing the case of a bailee, we
consider the factors that generally might give any defendant a
legitimate expectation of privacy, including ownership, lawful
possession, or lawful control of the property or place searched. A
bailee may make a substantial claim of legitimate expectation of
privacy because, as we have observed, “[a]lthough neither
ownership nor lawful possession are determinative, they are often
dispositive factors.” Id. at 445; see also Rakas v. Illinois, 439 U.S.
128, at 143 n. 12, 99 S.Ct. at 430 n. 12 (1978) (one owning or
lawfully possessing or controlling property will in all likelihood
have legitimate expectation of privacy by virtue of right to
exclude).

26. Other Circuits are in agreement. In Via Mat Intern. South America Ltd. v.

United States, 446 F.3d 1258, 1262-63 (11th Cir. 2006), the defendant, a

transport company, was transporting cash for a currency exchange house from

-‐22-‐


Uruguay to London for deposit there, when the currency was seized by the U.S.

government in Miami. The government claimed the transport company could not

contest the seizure because it had no standing. The Eleventh Circuit held:

At the heart of Article III standing is the existence of an
injury, not ownership. Ownership of property that has been seized
can be evidence of the existence of an injury that is direct enough to
confer standing, but ownership is not required; non-owners, such as
bailees or those with possessory interests, can also have injuries
resulting from the seizure of property that are sufficient to establish
standing. See United States v. $38,000.00 in U.S. Currency, 816
F.2d 1538, 1544 (11th Cir. 1987) (“A claimant need not own the
property in order to have standing to contest its forfeiture; a lesser
property interest, such as a possessory interest, is sufficient for
standing.... As a bailee, [the plaintiff] has a possessory interest in
the bailed currency…[and] has Article III standing to contest the
forfeiture of the currency.”); United States v. $260,242.00 in U.S.
Currency, 919 F.2d 686, 687-88 (11th Cir. 1990) (“[A] possessory
interest generally is constitutionally sufficient for claims in
forfeiture actions.”).
The economic harm to a party with a possessory interest in
seized property, imposed by virtue of its liability to the owner of
such property, can constitute a palpable injury sufficient to confer
standing under Article III. The Second Circuit, in United States v.
Cambio Exacto, 166 F.3d 522, 527-28 (2nd Cir. 1999), held that
two money transmitters had standing to contest the forfeiture of
money seized out of their accounts by the Government due to
crimes allegedly committed by their clients. The court found that
the companies “had a financial stake in the funds because they had
a liability to their customers in an amount equal to the forfeited
funds.” Id. at 528. “Substantial economic harm is plainly the type
of injury for which parties may seek redress in federal court.” Id.
The injury was “the direct result of ‘putatively illegal’
[G]overnmental action in the form of an allegedly unlawful
forfeiture. This injury would be redressed by a successful challenge
to the forfeiture. Article III does not require more.” Id. (citations
omitted).

-‐23-‐


Though Via Mat was not the owner of the monetary
instruments, it had a possessory interest in the property when it was
seized by the Government. Via Mat then suffered a direct,
substantial economic injury due to its liability to Lespan for any of
the property the Government did not return to the owner. Via Mat's
injury is real and direct, and is sufficient under Article III.

Via Mat Intern. South America Ltd. v. United States, 446 F.3d 1258, 1262-63

(11th Cir. 2006).

27. In United States v. Cambio Exacto, 166 F.3d 522, 528 (2nd Cir. 1999), the

person contesting government seizure was a money transmitter who had its

funds, obtained from a client, seized by the government. The money transmitter

was liable if it failed to deliver the client’s funds under New York law. The

Second Circuit held:

It is clear in any event that Perusa and Pan American have
produced other evidence of a “distinct and palpable injury”
sufficient to give them standing under Article III. See Warth, 422
U.S. at 501, 95 S.Ct. 2197. They had a financial stake in the funds
because they had a liability to their customers in an amount equal to
the forfeited funds. Those liabilities exposed them to substantial
economic loss, if they made up the shortfall created by the
forfeitures, or to potential loss of the bonds that they were required
to post according to New York law in order to operate as money
transmitters. Substantial economic harm is plainly the type of injury
for which parties may seek redress in federal court. The injury that
Pan American and Perusa assert is also the direct result of
“putatively illegal” governmental action, Gladstone, Realtors, 441
U.S. at 99, 99 S.Ct. 1601, in the form of an allegedly unlawful
forfeiture. This injury would be redressed by a successful challenge
to the forfeiture. Article III does not require more.

-‐24-‐


28. In United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1119-20

(9th Cir. 2004), the Ninth Circuit held:

[A] gratuitous bailee like Mayzel has a sufficient property interest
in the seized property such that he would be ‘punished’ by the
forfeiture and can therefore bring a challenge in his own right under
the Excessive Fines Clause….As a gratuitous bailee, Mayzel has
rights and obligations with respect to the entrusted funds. A
gratuitous bailee must deliver the property to the owner on demand.
If he misdelivers the property to the wrong person, even by
accident, he is liable to the owner for conversion. See Byer v.
Canadian Bank of Commerce, 8 Cal.2d 297, 65 P.2d 67, 68 (1937)
(holding a gratuitous bailee liable for the bonds entrusted to it when
the bailee delivered the bonds to an impostor). Moreover, a
gratuitous bailee owes a duty to exercise ‘slight care’ over the
property. Todd, 23 Cal.Rptr.2d at 494. Consequently, he is liable
for loss or damage to the property if he is grossly negligent in
handling it. (citations omitted).

29. The defendant, as the chairman of the corporation with possession,

custody and control of SIB’s bank customer data, owed an explicit duty of care to

SIB’s bank customers under Antiguan law; and therefore has standing under the

Fourth Amendment to challenge illegal search and seizure of SIB bank data.

VI. VIOLATION OF THE ACCUSED’S FOURTH AMENDMENT RIGHT TO
PRIVACY – PERSONAL DATA

30. The Accused has standing to object to the admissibility of evidence

seized pursuant to the Receivership Order in the Northern District, which was

subsequently turned over to the Department of Justice (DOJ) and Federal

Bureau of Investigations (FBI) for use in its criminal investigation and

prosecution.

-‐25-‐


31. The Fourth Amendment guarantees that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” The Supreme Court has held that

“the word ‘houses,’ as it appears in the Amendment, is not to be taken literally,

and that the protection of the Amendment may extend to commercial premises.”

Mancusi v. DeForte, 392 U.S. 364 (1968).

32. As the Supreme Court made clear in Soldal, “[The court of appeals]

acknowledged what is evident from our precedents—that the Amendment's

protection applies in the civil context as well. See O’Connor v. Ortega, 480 U.S.

709 (1987), New Jersey v. T.L.O., 469 U.S. 325, 334-335 (1985); Michigan v.

Tyler, 436 U.S. 499, 504-506 (1978); Marshall v. Barlow’s Inc., 436 U.S. 307,

312-313 (1978); Camara v. Municipal Court of San Francisco, 387 U.S. 523,

528 (1967)). Nor did the Court of Appeals suggest that the Fourth Amendment

applied exclusively to law enforcement activities. It observed, for example, that

the Amendment's protection would be triggered ‘by a search or other entry into

the home incident to an eviction or repossession.’” Soldal, 506 U.S. at 67.

33. “[S]eizures of property are subject to Fourth Amendment scrutiny even

though no search within the meaning of the Amendment has taken place. More

generally, an officer who happens to come across an individual’s property in a

-‐26-‐


public area could seize it only if Fourth Amendment standards are satisfied—for

example, if the items are evidence of a crime or contraband.” Id. at 68.

34. “It has long been settled that one has standing to object to a search of his

office, as well as of his home.” Mancusi, 392 U.S. at 369 (citing Gould v.

United States, 255 U.S. 298; United States v. Lefkowitz, 285 U.S. 452; Goldman

v. United States, 316 U.S. 129; cf. Lopez v. United States, 373 U.S. 427; Osborn

v. United States, 385 U.S. 323).

A. THE ACCUSED HAS A REASONABLE EXPECTATION OF PRIVACY IN
PERSONAL FILES AND E-MAILS

35. The Accused, as an employee and sole owner of his companies, has a

reasonable expectation of privacy in the offices of those companies, and his

personal papers and effects. “[T]he question whether an employee has a

reasonable expectation of privacy must be addressed on a case-by-case basis.”

O’Connor v. Ortega, 480 U.S. 709, 718 (1987). In O’Connor, the Supreme

Court held that a government doctor had a reasonable expectation of privacy in

his personal desk and file cabinets in his office which had been searched by

supervisors for evidence of misconduct. “As with the expectation of privacy in

one’s home, such an expectation in one’s place of work is ‘based upon societal

expectations that have deep roots in the history of the Amendment.’”

O’Connor, 480 U.S. at 716 (quoting Oliver v. United States, 466 U.S. 170, 178).

36. The Court in O’Connor went on to state:

-‐27-‐


[T]he individual’s interest in privacy and personal security
suffers whether the government’s motivation is to investigate
violations of criminal laws or breaches of other statutory or
regulatory standards. [I]t would be anomalous to say that the
individual and his private property are fully protected by the Fourth
Amendment only when the individual is suspected of criminal
behavior.
Because the reasonableness of an expectation of privacy, as
well as the appropriate standard for a search, is understood to differ
according to context, it is essential to first delineate the boundaries
of the workplace context. The workplace includes those areas and
items that are related to work and are generally within the
employer’s control.

O’Connor, 480 U.S. at 715 (citing New Jersey v. T.L.O., 469 U.S. 325, 335

(1985) (quoting Marshal v. Barlow’s Inc., 436 U.S. 307, 312-313 (1978) and

Camara v. Municipal Court, 387 U.S. 523, 530 (1967)) (internal citations

omitted).

37. Email and file servers are today’s Information Age business equivalent of

the locked, shared file cabinets housing business records and letters found to be

within the reasonable sphere of personal privacy contemplated by the Fourth

Amendment in Mancusi v. DeForte, 392 U.S. 364, 367-70, 88 S.Ct. 2120, 20

L.Ed.2d 1154 (1968). In Mancusi v. DeForte, the Supreme Court held:

The Fourth Amendment guarantees that

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated.

-‐28-‐


The papers which were seized in this case belonged not to
DeForte, but to the Union. Hence, DeForte can have personal
standing only if, as to him, the search violated the “right of the
people to be secure in their…houses…” This Court has held that
the word “houses,” as it appears in the Amendment, is not to be
taken literally, and that the protection of the Amendment may
extend to commercial premises. See, e.g., See v. Seattle, 387 U.S.
541; Go-Bart Importing Co. v. United States, 282 U.S. 344;
Silverthorne Lumber Co. v. United States, 251 U.S. 385.
Furthermore, the Amendment does not shield only those who
have title to the searched premises. It was settled even before our
decision in Jones v. United States, 362 U.S. 257, that one with a
possessory interest in the premises might have standing. See, e.g.,
United States v. Jeffers, 342 U.S. 48. In Jones, even that
requirement was loosened, and we held that anyone legitimately on
premises where a search occurs may challenge its legality . . . when
its fruits are proposed to be used against him. 362 U.S. at 267.[5]
The Court's recent decision in Katz v. United States, 389 U.S. 347,
also makes it clear that capacity to claim the protection of the
Amendment depends not upon a property right in the invaded place,
but upon whether the area was one in which there was a reasonable
expectation of freedom from governmental intrusion. See 389 U.S.
at 352. The crucial issue, therefore, is whether, in light of all the
circumstances, DeForte’s office was such a place.
The record reveals that the office where DeForte worked
consisted of one large room, which he shared with several other
union officials. The record does not show from what part of the
office the records were taken, and DeForte does not claim that it
was a part reserved for his exclusive personal use. The parties have
stipulated that DeForte spent “a considerable amount of time” in
the office, and that he had custody of the papers at the moment of
their seizure.
We hold that, in these circumstances, DeForte had Fourth
Amendment standing to object to the admission of the papers at his
trial. It has long been settled that one has standing to object to a
search of his office, as well as of his home. See, e.g., Gouled v.
United States, 255 U.S. 298; United States v. Lefkowitz, 285 U.S.
452; Goldman v. United States, 316 U.S. 129; cf. Lopez v. United
States, 373 U.S. 427; Osborn v. United States, 385 U.S. 323. Since
the Court in Jones v. United States, supra, explicitly did away with

-‐29-‐


the requirement that, to establish standing, one must show legal
possession or ownership of the searched premises, see 362 U.S. at
265-267, it seems clear that, if DeForte had occupied a “private”
office in the union headquarters, and union records had been seized
from a desk or a filing cabinet in that office, he would have had
standing. Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344;
Silverthorne Lumber Co. v. United States, 251 U.S. 385. In such a
“private” office, DeForte would have been entitled to expect that he
would not be disturbed except by personal or business invitees, and
that records would not be taken except with his permission or that
of his union superiors. It seems to us that the situation was not
fundamentally changed because DeForte shared an office with
other union officers. DeForte still could reasonably have expected
that only those persons and their personal or business guests would
enter the office, and that records would not be touched except with
their permission or that of union higher-ups. This expectation was
inevitably defeated by the entrance of state officials, their conduct
of a general search, and their removal of records which were in
DeForte's custody. It is, of course, irrelevant that the Union or some
of its officials might validly have consented to a search of the area
where the records were kept, regardless of DeForte’s wishes, for it
is not claimed that any such consent was given, either expressly or
by implication.

Mancusi v. DeForte, 392 U.S. at 367-70.

38. In today’s computerized, Internet-centered business environment,

computer and email servers are the equivalent of the shared file cabinets of the

Mancusi case and its era of technology. Because persons working in a business

share password-limited locked access to the “file cabinet” of the Internet era—

the password-protected computer and computer servers where they store emails

and files—search and seizure of these “file cabinets” without a warrant violates

the Fourth Amendment’s prohibition against warrantless searches and seizures,

-‐30-‐


unless there is a clearly-established exception to the warrant requirement, and

suppression is mandated under the Supreme Court’s precedent in Mancusi.

39. In United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010), the

Sixth Circuit held that e-mails are the practical equivalent of letters in today’s

technological environment and normal business and personal usage, and as such,

are protected by the Fourth Amendment warrant requirement. Bearing repeating,

there the Court held:

In confronting this question, we take note of two bedrock
principles. First, the very fact that information is being passed
through a communications network is a paramount Fourth
Amendment consideration. See ibid.; United States v. U.S. Dist.
Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)
(“[T]he broad and unsuspected governmental incursions into
conversational privacy which electronic surveillance entails
necessitate the application of Fourth Amendment safeguards." ).
Second, the Fourth Amendment must keep pace with the inexorable
march of technological progress, or its guarantees will wither and
perish. See Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038,
150 L.Ed.2d 94 (2001) (noting that evolving technology must not
be permitted to “erode the privacy guaranteed by the Fourth
Amendment”); see also Orin S. Kerr, Applying the Fourth
Amendment to the Internet: A General Approach, 62 Stan. L.Rev.
1005, 1007 (2010) (arguing that “the differences between the facts
of physical space and the facts of the Internet require courts to
identify new Fourth Amendment distinctions to maintain the
function of Fourth Amendment rules in an online environment”).
With those principles in mind, we begin our analysis by
considering the manner in which the Fourth Amendment protects
traditional forms of communication. In Katz, the Supreme Court
was asked to determine how the Fourth Amendment applied in the
context of the telephone. There, government agents had affixed an
electronic listening device to the exterior of a public phone booth,
and had used the device to intercept and record several phone

-‐31-‐


conversations. See 389 U.S. at 348, 88 S.Ct. 507. The Supreme
Court held that this constituted a search under the Fourth
Amendment, see id. at 353, 88 S.Ct. 507, notwithstanding the fact
that the telephone company had the capacity to monitor and record
the calls, see Smith, 442 U.S. at 746-47, 99 S.Ct. 2577 (Stewart, J.,
dissenting). In the eyes of the Court, the caller was “surely entitled
to assume that the words he utter[ed] into the mouthpiece w[ould]
not be broadcast to the world.” Katz, 389 U.S. at 352, 88 S.Ct. 507.
The Court’s holding in Katz has since come to stand for the broad
proposition that, in many contexts, the government infringes a
reasonable expectation of privacy when it surreptitiously intercepts
a telephone call through electronic means. Smith, 442 U.S. at 746,
99 S.Ct. 2577 (Stewart, J., dissenting) (“[S]ince Katz, it has been
abundantly clear that telephone conversations are fully protected by
the Fourth and Fourteenth Amendments.”).
Letters receive similar protection. See Jacobsen, 466 U.S. at
114, 104 S.Ct. 1652 (“Letters and other sealed packages are in the
general class of effects in which the public at large has a legitimate
expectation of privacy [.]”); Ex Parte Jackson, 96 U.S. 727, 733, 24
L.Ed. 877 (1877). While a letter is in the mail, the police may not
intercept it and examine its contents unless they first obtain a
warrant based on probable cause. Ibid. This is true despite the fact
that sealed letters are handed over to perhaps dozens of mail
carriers, any one of whom could tear open the thin paper envelopes
that separate the private words from the world outside. Put another
way, trusting a letter to an intermediary does not necessarily defeat
a reasonable expectation that the letter will remain private. See
Katz, 389 U.S. at 351, 88 S.Ct. 507 (“[W]hat [a person] seeks to
preserve as private, even in an area accessible to the public, may be
constitutionally protected.”).
Given the fundamental similarities between email and
traditional forms of communication, it would defy common sense
to afford emails lesser Fourth Amendment protection. See Patricia
L. Bellia & Susan Freiwald, Fourth Amendment Protection for
Stored E-Mail, 2008 U. Chi. Legal F. 121, 135 (2008) (recognizing
the need to “eliminate the strangely disparate treatment of mailed
and telephonic communications on the one hand and electronic
communications on the other”); City of Ontario v. Quon, __ U.S.
__, 130 S.Ct. 2619, 2631, 177 L.Ed.2d 216 (2010) (implying that “a
search of [an individual's] personal e-mail account” would be just

-‐32-‐


as intrusive as “a wiretap on his home phone line”); United States v.
Forrester, 512 F.3d 500, 511 (9th Cir.2008)(holding that “[t]he
privacy interests in [mail and email] are identical”). Email is the
technological scion of tangible mail, and it plays an indispensable
part in the Information Age. Over the last decade, email has
become “so pervasive that some persons may consider [it] to be
[an] essential means or necessary instrument[ ] for self-expression,
even self-identification.” Quon, 130 S.Ct. at 2630. It follows that
email requires strong protection under the Fourth Amendment;
otherwise, the Fourth Amendment would prove an ineffective
guardian of private communication, an essential purpose it has long
been recognized to serve. See U.S. Dist. Court, 407 U.S. at 313, 92
S.Ct. 2125; United States v. Waller, 581 F.2d 585, 587 (6th
Cir.1978) (noting the Fourth Amendment’s role in protecting
“private communications”). As some forms of communication
begin to diminish, the Fourth Amendment must recognize and
protect nascent ones that arise. See Warshak I, 490 F.3d at 473 (“It
goes without saying that like the telephone earlier in our history, e-
mail is an ever-increasing mode of private communication, and
protecting shared communications through this medium is as
important to Fourth Amendment principles today as protecting
telephone conversations has been in the past.”).
If we accept that an email is analogous to a letter or a phone
call, it is manifest that agents of the government cannot compel a
commercial ISP to turn over the contents of an email without
triggering the Fourth Amendment. An ISP is the intermediary that
makes email communication possible. Emails must pass through an
ISP’s servers to reach their intended recipient. Thus, the ISP is the
functional equivalent of a post office or a telephone company. As
we have discussed above, the police may not storm the post office
and intercept a letter, and they are likewise forbidden from using
the phone system to make a clandestine recording of a telephone
call—unless they get a warrant, that is. See Jacobsen, 466 U.S. at
114, 104 S.Ct. 1652; Katz, 389 U.S. at 353, 88 S.Ct. 507. It only
stands to reason that, if government agents compel an ISP to
surrender the contents of a subscriber's emails, those agents have
thereby conducted a Fourth Amendment search, which necessitates
compliance with the warrant requirement absent some exception.
As an initial matter, it must be observed that the mere ability
of a third-party intermediary to access the contents of a

-‐33-‐


communication cannot be sufficient to extinguish a reasonable
expectation of privacy. In Katz, the Supreme Court found it
reasonable to expect privacy during a telephone call despite the
ability of an operator to listen in. See Smith, 442 U.S. at 746-47, 99
S.Ct. 2577 (Stewart, J., dissenting). Similarly, the ability of a rogue
mail handler to rip open a letter does not make it unreasonable to
assume that sealed mail will remain private on its journey across
the country. Therefore, the threat or possibility of access is not
decisive when it comes to the reasonableness of an expectation of
privacy.
Nor is the right of access. As the Electronic Frontier
Foundation points out in its amicus brief, at the time Katz was
decided, telephone companies had a right to monitor calls in certain
situations. Specifically, telephone companies could listen in when
reasonably necessary to “protect themselves and their properties
against the improper and illegal use of their facilities.” Bubis v.
United States, 384 F.2d 643, 648 (9th Cir.1967). In this case, the
NuVox subscriber agreement tracks that language, indicating that
“NuVox may access and use individual Subscriber information in
the operation of the Service and as necessary to protect the
Service.” Acceptable Use Policy, available at http:// business.
windstream. com/ Legal/ acceptable Use.htm (last visited Aug. 12,
2010). Thus, under Katz, the degree of access granted to NuVox
does not diminish the reasonableness of Warshak’s trust in the
privacy of his emails.
Our conclusion finds additional support in the application of
Fourth Amendment doctrine to rented space. Hotel guests, for
example, have a reasonable expectation of privacy in their rooms.
See United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997). This
is so even though maids routinely enter hotel rooms to replace the
towels and tidy the furniture. Similarly, tenants have a legitimate
expectation of privacy in their apartments. See United States v.
Washington, 573 F.3d 279, 284 (6th Cir. 2009). That expectation
persists, regardless of the incursions of handymen to fix leaky
faucets. Consequently, we are convinced that some degree of
routine access is hardly dispositive with respect to the privacy
question.
Accordingly, we hold that a subscriber enjoys a reasonable
expectation of privacy in the contents of emails “that are stored
with, or sent or received through, a commercial ISP.” Warshak I,

-‐34-‐


490 F.3d 455, 473 (6th Cir. 2007); see Forrester, 512 F.3d at 511
(suggesting that “[t]he contents [of email messages] may deserve
Fourth Amendment protection”). The government may not compel
a commercial ISP to turn over the contents of a subscriber's emails
without first obtaining a warrant based on probable cause.
Therefore, because they did not obtain a warrant, the government
agents violated the Fourth Amendment when they obtained the
contents of Warshak's emails. Moreover, to the extent that the SCA
purports to permit the government to obtain such emails
warrantlessly, the SCA is unconstitutional.

Warshak, 631 F.3d at 285-86.

40. In United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007), the Fifth

Circuit recognized the continuing precedential value of Mancusi, and applied its

holding to find that a reasonable expectation of privacy in text messages (a form

of email messaging on phones) exists for an employee on his employer-provided

cellphone that was seized and then searched by law enforcement. There the Fifth

Circuit held:

In determining whether a defendant has a reasonable expectation of
privacy sufficient to contest the validity of a search, we inquire “(1)
whether the defendant is able to establish an actual, subjective
expectation of privacy with respect to the place being searched or
items being seized, and (2) whether that expectation of privacy is
one which society would recognize as reasonable.” The factors we
consider include:
whether the defendant has a [property or] possessory
interest in the thing seized or the place searched,
whether he has a right to exclude others from that
place, whether he has exhibited a subjective
expectation of privacy that it would remain free from
governmental intrusion, whether he took normal
precautions to maintain privacy[,] and whether he was
legitimately on the premises.

-‐35-‐


The district court found that, although Finley’s employer
issued him the cell phone, Finley nonetheless maintained a property
interest in the phone, had a right to exclude others from using the
phone, exhibited a subjective expectation of privacy in the phone,
and took normal precautions to maintain his privacy in the phone.
The government concedes that Finley had a possessory
interest in the cell phone and that his use of the phone weighs in
favor of his right to challenge the search. The sole basis for the
government’s argument appears to be that Finley's employer, not
Finley, had a property interest in the phone and that Finley should
have expected the employer to read the messages on the phone after
he returned it to the employer. But a property interest in the item
searched is only one factor in the analysis, and lack thereof is not
dispositive. See, e.g., Mancusi v. DeForte, 392 U.S. 364, 368, 88
S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (“[C]apacity to claim the
protection of the [Fourth] Amendment depends not upon a property
right in the invaded place but upon whether the area was one in
which there was a reasonable expectation of freedom from
governmental intrusion.”); see also Cardoza-Hinojosa, 140 F.3d at
615 (“[N]o one of [the Ibarra] factors is necessarily decisive ....”).
The district court did not clearly err in finding that Finley had
a right to exclude others from using the phone. That Finley’s
employer could have read the text messages once he returned the
phone does not imply that a person in Finley’s position should not
have reasonably expected to be free from intrusion from both the
government and the general public. Further, the government
stipulated that Finley’s employer permitted him to use the phone
for his own personal purposes. And we see no error in the district
court’s finding that Finley took normal precautions to maintain his
privacy in the phone, despite the government's protestation that the
phone was not password protected. In these circumstances, we
conclude that Finley had a reasonable expectation of privacy in the
call records and text messages on the cell phone and that he
therefore has standing to challenge the search.

Finley, 477 F.3d at 259 (citations omitted).

-‐36-‐


41. Searches and seizures of homes or offices by state actors require a valid

warrant under the Fourth Amendment, or must occur under a recognized

exception to the warrant requirement.

VII. ALL “FRUITS OF THE POISONOUS TREE” MUST BE SUPPRESSED

42. The “fruit of the poisonous tree” doctrine holds that the use of derivative

evidence must be suppressed if the evidence is discovered by the exploitation of

a prior illegality. Nardone v. United States, 308 U.S. 338, 84 L.Ed. 307, 60 S.Ct.

266 (1939). “The exclusionary prohibition extends as well to the indirect as the

direct product of such invasions.” Wong Sun v. United States, 371 U.S. 471, 484,

83 S.Ct. 471, 416 (1963). “The test for determining whether evidence is

inadmissible as fruit of the poisonous tree is ‘whether, granting establishment of

the primary illegality, the evidence to which instant objection is made has been

come at by exploitation of that illegality or instead by means sufficiently

distinguishable to be purged of the primary taint.’” Ward v. Dretke, 420 F.3d

479, 488 (5th Cir. 2005); Wong Sun, 371 U.S. 471, 488 (internal quotation marks

and citations omitted).

43. “Evidence that would otherwise be suppressible as fruit of the poisonous

tree is purged of the primary taint ‘if it derives from an independent source, if the

link to the illegally secured evidence is attenuated, or if it would inevitably have

been discovered without the aid of the illegally obtained evidence.’” Ward, 420

-‐37-‐


F.3d 479, 488-89; United States v. Singh, 261 F.3d 530, 535 (5th Cir. 2001); see

also United States v. Ceccolini, 435 U.S. 268, 276-77 (1978) (holding that even

testimonial evidence is subject to suppression if it represents the unattenuated

fruit of an illegal search and seizure).

44. The evidence seized by the Receiver’s unauthorized access could not have

been obtained through an independent source or inevitably discovered. As

detailed above, the evidence was kept in one location housed on a server in SIB

in Antigua. Without this unauthorized access the Receiver would have no other

means of obtaining this evidence from any other source. Thus, due to these

circumstances, it is clear that the Receiver was well aware of these circumstances

and chose to exceed the scope of its Receivership Order, violate the laws of the

United States and Antigua and Barbuda, and Antiguan Court orders. Given these

violations, the Court should suppress the evidence that is discovered by the

exploitation of this prior illegality as fruits of the poisonous tree.

PRAYER

The Accused files this motion and request an evidentiary hearing, after

which, all matters illegally obtained be suppressed.

-‐38-‐


Respectfully submitted,

BY: /s/ Ken McGuire
Kenneth W. McGuire
Federal Admission No. 21917
State Bar No. 00798361
P.O. Box 79535
Houston, TX 77279
Telephone: (713) 223-1558
Facsimile: (713) 335-3340

/s/ Ali R. Fazel
Ali R. Fazel
State Bar of Texas: 24012611
1004 Congress St., 3rd Floor
Houston, Texas 77002
Phone: (713) 229-9292
Fax: (713) 229-9931
Attorneys for Defendant,
ROBERT ALLEN STANFORD

CERTIFICATE OF SERVICE & CONFERENCE

I, Ken McGuire, do hereby certify that on this January 6th ,
2012, a copy of the foregoing Motion was served by ECF service to the
following counsel of record, and their position on this motion is as follows:

Gregg Costa [ ] UNOPPOSED
U.S. Attorney’s Office [X] OPPOSED
P.O. Box 61129 [ ] COULD NOT REACH
Houston, Texas 77002
Attorney for United States

/S/ Ken McGuire
KENNETH W. MCGUIRE

-‐39-‐

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