Wednesday, May 13, 2015

The Defense Contractor, "Sensitive" Air Force Data and the Search Warrant

After John M. Sember was “indicted for stealing certain United States Air Force sensitive and proprietary technical, engineering and computer data and codes having a value in excess of $1,000 in violation of 18 U.S. Code § 641”, he moved to suppress certain evidence.  U.S. v. Sember, 2015 WL 1487588 (U.S. District Court for the Southern District of Ohio 2015).
The judge who has the case begins the opinion by explaining how it arose:
Sember was the lead electrical engineer on a `program’ being conducted for the U.S. Government by a contractor. . . .  Effective at midnight on March 14, 2014, Sember's employment on the `program’ was terminated. . . . On March 18, 2014, Sember returned his laptop computers and external hard-drive. . . . On March 21, 2014, Sember said that he destroyed all of the data on his issued computers to include the external hard-drive. . . .  The Government believed Sember had not destroyed the data but likely had the data stored on a home computer. . . .

On March 28, 2014 multiple law enforcement officers executed a search warrant . . . at a residence located at 1979 Centralia Avenue in Fairborn, Ohio (the `Residence’). . . . The search was for classified materials. . . . Agent Pangburn admitted that the Search Warrant limited recovery to information related to classified material. . . . The search warrant authorized entry and search commencing at 6:00 a.m. . . . The Residence was the home of Defendant Sember. . . .
U.S. v. Sember, supra.  The search warrant described the place to be searched as
`1979 Centralia Avenue, Fairborn, Ohio is a single-story ranch with a double garage door. The house is grey in color with a bay window in front, and is located on the west side of Centralia and has an east-facing entrance. The nearest intersection is Dayton Yellow Springs Road and Beaver Valley Road.’
U.S. v. Sember, supra.  
The judge notes that, notwithstanding Agent Pangburn’s admission that the warrant only authorized searching for and seizing classified material, “pre-classified information, classified information and proprietary information was actually being seized.”  U.S. v. Sember, supra.  And he went on to explain that the search was conducted by the
Federal Bureau of Investigation on March 28, 2014. . . .  Included in the search operation were members of the FBI, the FBI Swat Team and Fairborn Police Department Officers Maguire, Hardman and Bertles. . . . Uniformed Fairborn Police Officers were present to indicate to the public that the search was an official police action. . . .

A variety of items were seized by the FBI, both classified and non-classified. . . . Included were computers, CDs, hard drives, flash cards, notebooks, papers, cell phones and a FALO LA–4PRO DVR (the `DVR’). . . . FBI Agent Hawley testified that the DVR was seized because it might contain evidence relative to the case and because it contained methods of approach. . . . Agent Pangburn was not aware that the garage and vehicle were searched . . ., and nothing was reported seized from either the shed or parked truck. . . . Finally, the Agents executing the search warrant turned some, if not all, of Sember's surveillance cameras upward. . . .
U.S. v. Sember, supra.
As to the timing of the search, “various individuals” testified about that at a hearing the judge held on the motion to suppress.  U.S. v. Sember, supra.  Fairborn Police Officer
Maguire was a party to the search operation. . . . He testified that he was dispatched between 4:30 and 5:00 a.m. the morning of the search. . . . He and other Fairborn Police Officers met at the Kmart store near Sember's home, were there for 10–15 minutes and then went to the residence. . . . Fairborn Police Officer Hardman was also dispatched to assist, getting the dispatch call at 5:24 a.m. . . .

FBI Agent Pangburn testified that the search team arrived at Sember's residence at 6:01 or 6:02 a.m. . . . The search team approached, knocked and, when no one answered, used a battering ram to open the front door. . . . When the door opened, Sember was standing in the doorway. . . .

Sember testified that he was awakened by a loud crash followed by someone shouting `FBI.’ . . . When he then looked at his clock, it was `five something.’ . . . Sember testified that he normally kept his clock ten minutes fast. . . .

Sember, according to Agent Pangburn, was taken into custody within a minute of the `knock and announce’ for the search. . . . Fairborn Police Officer Bertles testified that Sember was brought to his cruiser within 20 to 40 minutes after the residence was entered by the search team. . . .  Fairborn Police Officer Maguire testified that Sember was removed from the residence between 10 and 30 minutes after the search team entered the residence. . . . Fairborn Police Dispatcher Levandusky confirmed that the Fairborn Police Log indicates Sember was in custody by 6:10 a.m. . . .
U.S. v. Sember, supra.
The judge also outlines certain events that occurred “after the search”, i.e., that on
August 27, 2014, Agents Eilerman and Pangburn returned items to Sember which had been seized but later determined to not be significant. . . . Agent Pangburn testified that, at that time, Sember, referring to the DVR, said, ‘I don't want it. You can keep it.’ . . . Agent Pangburn took this statement as Sember's intent to abandon the DVR. . . .

Sember testified that he told Agent Eilerman, `You sure you want to give that [the DVR] back to me now.’ . . . Sember then explained that the DVR is from his security system and contained video of the entry team entering his home. . . . According to Sember, the DVR would contain images confirming the search of his truck and shed and would also confirm the time agents entered the residence. . . .

The Agents retained the DVR. . . . As a result of the discussion at the time between Agents Eilerman and Pangburn and Sember, Sember believed the DVR would be returned to him at a later time with the data intact. . . . The DVR was later `wiped clean’ by the FBI's forensic team and returned to Sember's Counsel. . . .

The FBI had no court order to destroy the contents of the DVR nor did they seek Sember's permission. . . . Also, the individuals responsible for destruction of the evidence on the DVR were not aware that Defense Counsel had requested the information on the DVR from the U.S. Attorney's Office. . . . Finally, the FBI has no written protocol that would permit the destruction of evidence. . . .
U.S. v. Sember, supra.  You can, if you are interested, read more about the facts in the case in the news story you can find here.
Sember made four arguments as to why his motion to suppress should be granted, the first of which was that “the nature of the search exceeded the scope of the warrant because there was evidence that the Officers executing the Search Warrant entered the Residence before 6:00 a.m., the earliest starting time specified on the Search Warrant.” U.S. v. Sember, supra.  Rule 41(e)(2)(A)(i), of the Federal Rules of Criminal Procedure, which you can find here, requires that the officers who obtain a warrant must execute it “within a specified time”.  If Sember could show that the officers began executing the warrant before the time specified, that could be a basis for granting his motion to suppress. 
In ruling on that argument, the judge explained that Agent Pangburn testified that the
search began shortly after 6:00 a.m. No one else testified as to when the search began. Other Officers testified as to the timing of related events, but the testimony is too approximate to make a reasonable inference from the testimony. An inference could be drawn from Sember's testimony that his clock indicated, possibly when he was disoriented by the very loud crash, that the search began before 6:00 a.m., but this, of course is self-serving and not supported by any other evidence. Therefore, Sember has not satisfied his burden of showing that the Search Warrant was executed before 6:00 a.m.
U.S. v. Sember, supra.  
In his second argument, Sember claimed the officers exceeded the scope of the search warrant, which only authorized the search for and seizure of classified material, when they “removed information that was not classified.” U.S. v. Sember, supra.  The judge, though, was not convinced, holding that the
Search Warrant authorizes the seizure of documents containing classified material in any form including any and all hard-copy documents that may contain U.S. Government proprietary information. . . . Thus, the Search Warrant arguably authorized the seizure of information that was not classified.

Even if the Search Warrant did not authorize the seizure of non-classified information, items not specifically described in a search warrant may nevertheless be seized if they are `reasonably related’ to the offenses which form the basis for the search warrant. U.S. v. Wright, 343 F.3d 849 (U.S. Court of Appeals for the 6th Circuit 2003). In this case, the offenses which formed the basis for the Search Warrant were the suspected theft of U.S. Government property in violation of 18 U.S. Code § 641 and the suspected conversion of U.S. Government and DOD contractor owned trade secrets in violation of 18 U.S. Code §1832(a)(2).

And, Sember offers no argument or evidence that the items seized where not reasonably related to these offenses. Thus, Sember has not satisfied his burden of showing that the scope of the Search Warrant was exceeded by the removal of information that was not classified.
U.S. v. Sember, supra.  
Next, Sember argued that “the officers searched out-buildings and vehicles that were not included in the scope of the Search Warrant.”  U.S. v. Sember, supra.  Once again, the judge was not convinced, explaining that Sember’s argument was
without merit for at least three reasons. First, Sember has not identified evidence that any out-buildings or vehicles were searched. Second, no evidence was reported seized from the out-buildings or vehicles. And third, the Government does not intend to use any evidence from the out-buildings or vehicles. Thus, Sember has not satisfied his burden of showing that the scope of the Search Warrant was exceeded by the search of out-buildings and/or vehicles.
U.S. v. Sember, supra.  
Finally, Sember claimed the warrant “was not based upon probable cause that confidential information or proprietary information would be found at the Residence.”  
U.S. v. Sember, supra.  As with his other arguments, the judge did not buy this one:
Agent Eilerman's Affidavit In Support of an Application for a Search Warrant provides a substantial basis for probable cause to search the Residence for confidential information in any form including any and all hard-copy documents that may contain U.S. Government proprietary information. . . .

Agent Eilerman affirms that he is investigating Sember's activities for possible violations of specified federal statutes. Agent Eilerman had reliable information that Sember may have sensitive information stored on his home computer. This information was beyond speculation and, therefore, reliable because of Sember's background and experience as determined and affirmed by Agent Eilerman. The sensitive information was developed by Sember while employed and thus did not belong to him. Further, the destruction of this sensitive information could result in a significant loss to American taxpayers. Agent Eilerman concluded that there was probable cause to believe that Sember mishandled potentially damaging proprietary information without proper authority and that evidence of such was located at the Residence.

Thus, Sember has not satisfied his burden of showing that the Search Warrant was not based upon probable cause.
U.S. v. Sember, supra.  
Since the judge found Sember had not “satisfied his burden of showing that the scope of the Search Warrant was exceeded”, he denied his motion to suppress.  U.S. v. Sember, supra.  

You can, if you are interested, read more about the hearing on Sember’s motion to suppress in the news story you can find here.  It notes, among other things, that Sember’s trial was “tentatively” set for May 4.  And this story outlines the strategy Sember's lawyers seem to be using in an effort to have the prosecution dismissed.  I cannot find any information as to when, and if, the trial date has been rescheduled. 

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