United States District Court, S.D. New York
For Yudong Zhu(1), Defendants: Maurice H. Sercarz, LEAD ATTORNEY, Sercarz & Riopelle, L.L.P., New York, N.Y. USA; John D. Cline, Law Office of John D. Cline, San Francisco, CA USA; Robert M. Baum, Federal Defenders of New York Inc. (NYC), New York, N.Y. USA.
For Defendants: Christian R. Everdell, U.S. Attorney's Office, SDNY (St Andw's), New York, N.Y. USA.
DECISION AND ORDER
VICTOR MARRERO, United States District Judge.
By Indictment dated October 10, 2013, a grand jury charged defendant Yudong Zhu (" Zhu" ) with conspiring to commit honest services fraud in violation of 18 U.S.C. § 1341, 18 U.S.C. § 1343, 18 U.S.C. § 1346, and 18 U.S.C. § 1349; conspiring to receive bribes in violation of 18 U.S.C. § 666(a)(1)(B) and 18 U.S.C. § 371; commercial bribery conspiracy in violation of 18 U.S.C. § 1952(a)(3) and 18 U.S.C. § 371; honest services fraud in violation of 18 U.S.C. § 1341 and 18 U.S.C. § 1346; receipt of bribes in violation of 18 U.S.C. § 666(a)(1)(B); commercial bribery in violation of 18 U.S.C. § 1952(a)(3); and falsification
of records in violation of 18 U.S.C. § 1519. (Dkt. No. 20.) Zhu moved to suppress evidence seized from his laptop computer and the fruits of such evidence. (Dkt. No. 28.) For the reasons set forth below, Zhu's motion is DENIED.
On October 27, 2008, Zhu -- an expert in magnetic resonance imaging (" MRI" ) -- began work as an assistant professor in the radiology department at the New York University School of Medicine (" NYU" ). In 2010, Zhu applied, through NYU, for a grant from the National Institutes of Health (" NIH" ) to conduct MRI research, and NIH awarded the grant in May 2011. All grant funds were to be the property of NYU, and NYU would become the owner of all equipment purchased with the funds. (Decl. of Anthony Carna in Opp'n by USA as to Yudong Zhu, dated Apr. 8, 2014 (" Carna Decl." ), Dkt. No. 36, at 4.)
In August 2011, Zhu ordered a laptop using funds provided by the NIH grant. Upon its arrival, Zhu configured the laptop, created several levels of passwords, and encrypted the hard drive. Between its arrival and May 2013, Zhu used the laptop for both personal and professional matters. Zhu did not leave the laptop overnight in his office; he brought it home with him at the end of each day.
In early 2013, NYU began investigating Zhu regarding the current charges, and on May 8, 2013 Zhu met with NYU lawyers and an NYU vice president to discuss the investigation. At this meeting, Zhu turned over his laptop to NYU but refused to provide his passwords. Following this meeting, NYU reported Zhu to the Department of Justice, which prompted the FBI and the United States Attorney's Office to commence a criminal investigation. On May 19, 2013, the Government filed a criminal complaint against Zhu.
As part of the Government's investigation of Zhu, NYU provided Zhu's laptop to the FBI. On June 27, 2013, Annette Johnson, general counsel of the NYU Medical Center, signed a " Consent to Search Computer(s)" form, authorizing the FBI to search the laptop. Without obtaining a warrant, the FBI decrypted the laptop and searched its contents.
Before beginning his employment with NYU in 2008, Zhu had signed two documents regarding NYU's computer use policies. One document was entitled " Policy Statement on Privacy, Information Security, and Confidentiality," and stated, among other things,
I understand that the confidential information and software I use for my job are not to be used for personal benefit or to benefit another unauthorized institution. I also understand that my institution may inspect the computers it owns, as well as personal PCs used for work, to ensure that its data and software are used according to its policies and procedures.
(Decl. of Nicole Delts in Opp'n by USA as to Yudong Zhu, dated Apr. 7, 2014 (" Delts Decl." ), Ex. C at ¶ 13, Dkt. No. 35) (emphasis in original). Zhu signed this document,
affirming that he understood its contents, on ...