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United States v. Lustyik

United States District Court, S.D. New York

September 29, 2014

UNITED STATES OF AMERICA
v.
ROBERT LUSTYIK, JOHANNES THALER, and RIZVE AHMED, a/k/a " Caesar,", Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Robert Lustyik, Defendant: Raymond Mansolillo, LEAD ATTORNEY, PRO HAC VICE, Coloian Mansolillo L.L.C., Boston, MA; Joseph A. Vita, Joseph A. Vita Law Office, Port Chester, NY.

For Johannes Thaler, Defendant: Jason Immanuel Ser, Federal Defenders of New York Inc. (NYC), New York, NY.

For Rizve Ahmed, also known as Caesar, Defendant: Bradley Lamar Henry, The Blanch Law Firm, P.C., New York, NY.

For USA, Plaintiff: Emily Rae Woods, LEAD ATTORNEY, United States Department of Justice, Criminal Division, Publ, Washington, DC; Benjamin Rial Allee, U.S. Attorney's Office, White Plains, White Plains, NY.

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MEMORANDUM DECISION

Vincent L. Briccetti, United States District Judge.

Defendants Robert Lustyik, Jr., Yohannes Thaler, and Rizve Ahmed, a/k/a " Caesar," are charged with various federal crimes relating to an alleged bribery scheme.[1] Lustyik, who at the time was a

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special agent with the Federal Bureau of Investigation (" FBI" ), is accused of selling and agreeing to sell confidential FBI documents and information to Ahmed, with Thaler acting as a middleman.

Before the Court are Lustyik's and Thaler's motions to suppress digital evidence seized pursuant to several search warrants.[2] (Docs. ##74, 77). Thaler has also moved to suppress the statements he made to agents during and after the execution of a search warrant at his home.[3]

For the following reasons, the motions are DENIED.

BACKGROUND

The following facts are taken from the exhibits submitted in connection with the pending motions, and from the testimony and exhibits received at a suppression hearing held on August 26, 2014.

I. Investigation of Michael Taylor

This case arises out of a government procurement fraud investigation that culminated in the indictment of four defendants in the District of Utah. See United States v. Young, 12 CR 502 (D. Utah) (" Young" ). One of the individuals indicted in Young was Michael Taylor, a business associate of Lustyik and Thaler.

Investigators in Young obtained and executed search warrants for Taylor's email account and certain of his electronic devices. In reviewing emails seized pursuant to those warrants, an agent with the Justice Department's Defense Criminal Investigative Service read emails that he believed revealed Lustyik's efforts to obstruct the investigation into Taylor. The agent sent these emails to the United States Attorney's Office for the District of Utah, which in turn relayed them to the Justice Department's Office of the Inspector General (" OIG" ), the agency responsible for investigating alleged misconduct by Justice Department employees. OIG, together with prosecutors from the Justice Department, then began investigating Lustyik for obstruction of justice. OIG Special Agent Thomas Hopkins was assigned to be the lead case agent.

II. The Lustyik Warrants

Relying on emails seized from Taylor's email account, the government obtained a search warrant for Lustyik's email account on May 23, 2012. (GX 7 (" May 2012 Lustyik Warrant" )).[4] The May 2012 Lustyik Warrant consisted of a warrant form and two attachments, Attachments A and B. Section I of Attachment B directed Lustyik's email service provider to create a duplicate of his entire email account for the government to search. Section III of Attachment B listed the " Records and Data" the government was authorized to seize. (Id.). Section III described the items to be seized as " [e]vidence, fruits, or instrumentalities

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of violation of 18 U.S.C. § 1503(a) [" Section 1503" ] . . . including, without limitation, information relating to" eleven categories, such as " [a]ll records or communications consisting of or pertaining to Robert Lustyik's contact with individuals concerning the investigation of Michael Taylor." (Id.). But in the part of the warrant form directing the applicant to " describe the property to be seized," the form stated, " See Section II of Attachment B," not Section III.[5] (Id. (emphasis added)).

The May 2012 Lustyik Warrant did not contain any search protocols limiting the manner in which the government could search Lustyik's email account. The Warrant did not, for example, require the government to perform keyword searches to identify emails potentially within the Warrant's scope. Accordingly, using an online document review platform called Relativity, a team of reviewers inspected every email in Lustyik's account (with the exception of emails that were removed from the Relativity database either because they were privileged or fell outside the Warrant's date range). Reviewers marked each email as " relevant," meaning the email was within the scope of the Warrant, " not sure," or " not relevant," meaning the email fell outside the scope of the Warrant. Emails marked as either " not sure" or " not relevant" were not deleted from the Relativity database.

The government obtained additional search warrants for Lustyik's email account in August 2012 (" August 2012 Lustyik Warrant" ) and January 2013, as well as search warrants for his smartphone in September and December 2012. (GX 8, 9, 15; Gov't Mem. Ex. F (collectively, with the May 2012 Lustyik Warrant, the " Lustyik Warrants" )).[6] Like the May 2012 Lustyik Warrant, the August 2012 Lustyik Warrant comprised a warrant form and Attachments A and B. (GX 8). In describing the " property to be seized," the warrant form in the August 2012 Lustyik Warrant referred only to Section II of Attachment B. (Id.). It did not refer to Section III, which, like its counterpart in the May 2012 Lustyik Warrant, identified the crimes for which evidence was sought and provided an illustrative list of items to be seized. None of the Lustyik Warrants issued between August 2012 and January 2013 contained search protocols restricting the manner in which the government could search Lustyik's email account or smartphone. Thus, as with the May 2012 Lustyik Warrant, the government examined the full contents of Lustyik's email account and smartphone (save only privileged communications or communications outside the other Lustyik Warrants' date parameters).

III. The Thaler Warrants

The government also obtained warrants for Thaler's email account and smartphone (GX 10-12 (collectively, the " Thaler Warrants" )), as well as his home. (Gov't Mem. Ex. I).

The first Thaler Warrant, issued June 13, 2012, permitted the government to search Thaler's entire email account. (GX 10 (" June 2012 Thaler Warrant" )). Agent Hopkins submitted an affidavit in support of the government's application for the June 2012 Thaler Warrant. In substance, the affidavit discussed the investigation into Taylor, noting that " [c]riminal indictment of Taylor in the District of Utah

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[wa]s being pursued," and described Lustyik's efforts to obstruct the investigation. (June 2012 Hopkins Aff. ¶ ¶ 5-9, 26-44). The affidavit quoted emails in which Lustyik asked investigators and prosecutors in Young not to indict Taylor, or at least to " give me a heads up before u guys indict him" (id. ¶ 40), because Lustyik wanted to use Taylor as a confidential FBI source. According to the affidavit, Lustyik gave the lead Young prosecutor FBI 302 reports[7] to prove " why Taylor was valuable as a confidential source." (Id. ¶ 34). But the reports " appear[ed] to deviate from standard FBI 302 reports, in that they [we]re unsigned and [did] not have a file number . . . [and] were unaccompanied by any indication that their creation or dissemination was authorized by FBI supervisory personnel, in apparent violation of FBI policy." (Id. ¶ 35).

Agent Hopkins's affidavit also detailed the business relationship among Lustyik, Thaler, and Taylor, and asserted there was probable cause to believe Thaler used his email account to communicate with Lustyik and Taylor about business opportunities. (Id. ¶ ¶ 3, 13-20). To support that assertion, the affidavit cited emails between Thaler and Taylor, copying Lustyik, discussing potential contracts to provide security for oil drilling operations in Iraq. (Id . ¶ 19).

And the affidavit made clear Thaler used his email account to communicate not only about potential business ventures, but also about Lustyik's attempts to thwart the investigation into Taylor. The affidavit quotes a May 14, 2012, email chain that begins with Taylor informing Lustyik that Taylor's attorney believes Taylor will be indicted. (Id. ¶ 25). Lustyik forwarded Taylor's email to Thaler, who responded, " I know. This doesn't sound good. [Taylor] told me a while back his family would be better off with him dead than indicted." (Id.). Lustyik replied, " I've done everything possible. The [Assistant United States Attorney] is crazy." (Id.).

Like the Lustyik Warrants, each Thaler Warrant was composed of a warrant form along with Attachments A and B. Section III of Attachment B to the June 2012 Thaler Warrant authorized the seizure of " [e]vidence, fruits, or instrumentalities of [obstruction of justice under Section 1503] involving Robert Lustyik or Michael Taylor since January 1, 2009, including, without limitation, information relating to" a list of eleven categories substantially similar to the eleven categories enumerated in the May 2012 Lustyik Warrant. (GX 10). At the August 26, 2014, suppression hearing, Agent Hopkins testified he read the illustrative list of items to be seized as " relat[ing] back" to the specified crime or crimes, meaning the government could search only for emails " relating to those alleged violations." (See Tr. 268-69).[8]

The warrant form in the June 2012 Thaler Warrant also incorporated Section II--but not Section III--of Attachment B when identifying the " property to be seized" from Thaler's email account. (GX 10). Although the warrant form did not specifically mention Section III, Agent Hopkins credibly testified the government's team of reviewers were " guided by" Section III when reviewing the emails seized pursuant to the June 2012 Thaler Warrant. (Tr. 268).

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The second Thaler Warrant was issued on September 7, 2012, and also authorized a search of the entire contents of Thaler's email account. (GX 11 (" September 2012 Thaler Warrant" and, together with the June 2012 Thaler Warrant, the " Thaler Email Warrants" )). In addition to evidence of obstruction of justice, the September 2012 Thaler Warrant sought evidence of (i) a violation of 18 U.S.C. § 208 (" Section 208" ), which bars federal employees from having financial conflicts of interest, and (ii) honest services fraud. Such evidence " includ[ed], without limitation, information relating to" the same eleven categories listed in the June 2012 Thaler Warrant. (GX 11).

Agent Hopkins again submitted a supporting affidavit. In this affidavit he stated he had probable cause to believe Lustyik had violated Section 208 by " open[ing]" Taylor as an FBI source, even though the two had a business relationship that Lustyik had not disclosed to the FBI. (September 2012 Hopkins Aff. ¶ ¶ 5, 12). With respect to his probable cause to believe Lustyik had committed honest services fraud, Agent Hopkins explained that Lustyik had attempted to derail the investigation into Taylor in exchange for " the prospect of substantial financial gains from the[ir] business relationship." (Id. ¶ 5).

Agent Hopkins confirmed at the August 26, 2014, suppression hearing that the government sought evidence of a Section 208 violation because it suspected the agent-source relationship between Lustyik and Taylor was inappropriate. (See Tr. 320-21). Agent Hopkins also testified the government's search for evidence of honest services fraud was " premised on Agent Lustyik . . . interfering with the investigation of Mr. Taylor." (Id. at 322; see also id. at 333 (agreeing that " the suspicion for the honest services fraud stemmed allegedly [from] Agent Lustyik trying to interfere with the investigation of Mr. Taylor" )).

The Thaler Email Warrants were executed on June 15 and September 10, 2012. The government began reviewing the emails seized pursuant to those Warrants within days. Like the Lustyik Warrants, the Thaler Email Warrants did not include search protocols. The government therefore searched Thaler's account in the same email-by-email manner in which it had searched Lustyik's account, marking emails as " relevant," " not sure," or " not relevant," and retaining emails marked as either " not sure" or " not relevant" in the Relativity database.

IV. The Re-Coded Emails

On September 18, 2012, the government executed warrants for Lustyik's and Thaler's smartphones, extracting the phones' entire contents. As it had done with Lustyik's and Thaler's email accounts, the government reviewed the contents of the smartphones without search protocols and retained communications marked as " not sure" or " not relevant."

In searching the smartphones, the government uncovered text messages among Lustyik, Thaler, and Ahmed " explicitly discussing the sale of U.S. government information and documents by Special Agent Lustyik through Mr. Thaler to Mr. Ahmed concerning Sajeeb Wazed Joy," the son of the Prime Minister of Bangladesh. (Tr. 249, 256-57). Joy is a member of the Awami League, one of Bangladesh's two main political parties. Ahmed, a native of Bangladesh, is a member of the Bangladesh Nationalist Party, the Awami League's rival. (Id. at ...


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