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United States v. Gasperini

United States District Court, E.D. New York

July 13, 2017

UNITED STATES OF AMERICA
v.
FABIO GASPERINI, Defendant.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.

         Before the court is Defendant Fabio Gasperini's pre-trial motion to suppress (the "Motion"). (Mot. to Suppress ("MTS") (Dkt. 59). Defendant is charged with two counts of computer intrusion, one count of conspiracy to commit wire fraud, one count of wire fraud, and one count of conspiracy to commit money laundering. (See Indictment (Dkt. 3) ¶¶ 11-21.) Defendant moves to exclude evidence obtained pursuant to (1) warrants issued under the Stored Communications Act (the "SCA"), 18 U.S.C. §§ 2701 et seq; (2) a March 26, 2015, warrant issued by Magistrate Judge Marilyn D. Go; and (3) search warrants executed by Italian law enforcement in Italy. (See generally MTS.) For the following reasons, Defendant's motion is DENIED.

         I. BACKGROUND

         The court assumes familiarity with the allegations against Defendant, which are discussed at greater length in the court's most recent opinion. (See May 31, 2017, Mem. & Order (Dkt. 45) at 2-3.) Accordingly, the court recites only the facts that are relevant to the present motion.

         A. Warrants for Electronic Communications and Related Information

         The Government's investigation of Defendant began in 2015. (Gov't Opp'n to MTS ("MTS Opp'n") (Dkt. 71) at 5.) Pursuant to the SCA, the Government obtained multiple search warrants for Google email accounts associated with Defendant (the "SCA Warrants"). (Id.) In support of the Government's first SCA Warrant application, Federal Bureau of Investigation ("FBI") Special Agent George Schultzel prepared an affidavit (the "Schultzel Affidavit") which included observations by a confidential informant who claimed to have observed computers infected by malicious software. (Id; see also March 26, 2015, Warrant ("Mar. Warrant"), Ex. A to MTS (Dkt. 59-1) at ECF pp.3-10.) Based on that application, Judge Go issued a warrant (the "March 2015 Warrant") permitting searches of "information associated with 'gaspoplo@gmail.com' that is stored at the premises owned, maintained, controlled, or operated by Google, a company that accepts service of legal process at 1600 Amphitheatre Parkway, Mountain View, CA 94043." (Mar. Warrant at ECF pp.1, 13.) The Government obtained subsequent five subsequent SCA Warrants. (MTS Opp'n at 5.)

         Prior to the issuance of the final SCA Warrant, the Second Circuit issued its decision in In re Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp. ("Microsoft"), 829 F.3d 197 (2d Cir. 2016). The panel held that the SCA's reach is limited by the presumption against extraterritoriality, such that warrants issued under that act cannot reach data stored on servers located outside of the United States. Id. at 220-22. Responding to the sole post-Microsoft warrant, Google stated that its production in that instance included only responsive records stored on U.S. servers. (Google Ltr., Ex. B. to MTS Opp'n (Dkt. 71-2).)

         B. Searches by Italian Authorities

         The Government provided information related to the present prosecution to Italian law enforcement officials in June 2016. (MTS Opp'n at 6.) The Government also requested that Italian authorities conduct a search of Defendant's home in Italy. (Id.) Italian law enforcement conducted the search with FBI agents present. (Gov't Sur-Response to MTS Opp'n (Dkt. 85) atl.)

         II. DISCUSSION

         Defendant asks the court to suppress all evidence obtained pursuant to (1) the SCA Warrants; (2) the March 2015 Warrant specifically; and (3) searches conducted by Italian law enforcement. (See MTS at 1-2.) In the alternative, Defendant requests an evidentiary hearing pursuant to Franks v. Delaware. 438 U.S. 154 (1978), to evaluate alleged misstatements in the Schultzel Affidavit. (MTS at 1.) The court addresses these elements of the Motion in turn and concludes that Defendant is not entitled to any of the relief sought.

         A. Information Obtained Pursuant to the SCA Warrants

         Defendant argues that all information obtained from foreign servers controlled by Google, including Defendant's emails and other information, must be suppressed based on the Microsoft decision. (MTS at 2-5.) The court concludes that, even taken as true, Defendant fails to provide facts that would justify suppression of any evidence obtained in violation of the SCA and dismisses the Motion on that ground.

         1. The SCA and the Microsoft Decision

         The SCA provides privacy protection for, inter alia, certain electronic communications in the possession of third parties that provide communications services to the public ("service providers").[1] See, e.g., Orin S. Kerr, A User's Guide to the Stored Communications, and a Legislator's Guide to Amending It, 72 Geo. Wash.L.Rev. 1208, 1213 (2004). Among its many provisions and protections, the SCA limits the Government's ability to require service providers to disclose their users' content and information. See 18 U.S.C. § 2703. As relevant here, the Government may compel service providers to disclose the contents of users' electronic communications by obtaining a warrant that complies with the Federal Rules of Criminal Procedure. Id. § 2703(a), (b)(1)(A).

         In Microsoft, the Second Circuit held that (1) the SCA's warrant provisions do not apply extraterritorially; and (2) the SCA does not permit issuance and enforcement of a warrant against U.S.-based service providers to obtain contents of electronic communications stored abroad. Microsoft, 829 F.3d at 222. With respect to the second of these points, the court found that the SCA's "focus" was on the "privacy of stored communications." Id. at 217. From this, the panel determined that "the invasion of the customer's privacy takes place under the SCA where the customer's protected content is accessed-here, where it is seized by Microsoft, acting as an agent of the government." Id. at 220. Accordingly, the court concluded that "execution of [a warrant seeking data stored outside the United States] would constitute an unlawful extraterritorial application of the act." Id.

         2. Defendant's Objection to the SCA Warrants

         Defendant argues that the Second Circuit's decision in Microsoft requires suppression of all information obtained in reliance on the SCA Warrants. In support of this contention, Defendant states that he "lived in Italy at all times, making it more than likely that the vast majority of [Defendant's] emails and information was stored in Google's foreign servers."[2](MTS at 5.) The Government argues that Defendant provides neither a sufficient factual nor legal basis for suppression. (MTS Opp'n at 6-12.) The court concludes that ...


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