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United States v. Cramer

United States District Court, D. Oregon

March 5, 2019

UNITED STATES OF AMERICA,
v.
GARY NEIL CRAMER, and THERON J. MARRS, Defendants. UNITED STATES OF AMERICA,
v.
THERON J. MARRS, Defendant.

          OPINION AND ORDER ON PENDING MOTIONS TO SUPPRESS OR EXCLUDE EVIDENCE

          Michael H. Simon, United States District Judge.

         Gary Neil Cramer (“Cramer”) and Theron J. Marrs (“Marrs”) are Defendants in United States v. Cramer and Marrs, No. 3:17-cr-267-SI (“Case '267”). Marrs also is a Defendant (indeed, the only Defendant) in United States v. Marrs, No. 3:17-cr-271-SI (“Case '271”). With the express consent of all parties, and pursuant to Rule 13 of the Federal Rules of Criminal Procedure, both cases will be tried together, as though brought in a single indictment. ECF 129.[1]The Court has scheduled trial to commence on April 23, 2019.[2]

         In Case '267, Cramer and Marrs have filed the following motions, among others: (1) Motion to Suppress Evidence and Motion to Dismiss for Due Process Violations (Search Warrant for Eugene Residence) (ECF 136); (2) Motion to Suppress Evidence (Arrest on December 8, 2017) (ECF 141); (3) Motion to Suppress Evidence (Search Warrant December 22, 2017) (ECF 142); (4) Motion to Suppress Evidence and Motion to Dismiss for Due Process Violations (Search Warrant for Electronic Mail December 2014) (ECF 143); and (5) Motion to Exclude Illegally Gathered Evidence (ECF 153).[3] After reviewing the parties' written submissions, the Court does not believe that oral argument is likely to be helpful or that an evidentiary hearing is needed. For the reasons that follow, these motions are denied.

         BACKGROUND

         A. The Indictments

         On July 18, 2017, a grand jury returned a four-count indictment against Cramer and Marrs in Case '267. Count 1 charges both Cramer and Marrs with conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. Count 2 charges only Cramer with evasion of payment of taxes, in violation of 26 U.S.C. § 7201. Count 3 charges only Cramer with filing a false federal tax return in 2014 for calendar year 2013, in violation of 26 U.S.C. § 7206(1). Count 4 charges only Marrs with aiding and assisting in the filing of a false federal tax return in 2014 for calendar year 2013, in violation of 26 U.S.C. § 7206(2). ECF 1.

         Also on July 18, 2017, a grand jury returned a seven-count indictment against only Marrs in Case '271. Count 1 charges Marrs with evasion of payment of taxes, in violation of 26 U.S.C. § 7201. Count 2 charges Marrs with filing a false federal tax return in 2013 for calendar year 2005, in violation of 26 U.S.C. § 7206(1). Count 3 charges Marrs with filing a false federal tax return in 2013 for calendar year 2006, in violation of 26 U.S.C. § 7206(1). Count 4 charges Marrs with filing a false federal tax return in 2013 for calendar year 2007, in violation of 26 U.S.C. § 7206(1). Count 5 charges Marrs with filing a false federal tax return in 2013 for calendar year 2009, in violation of 26 U.S.C. § 7206(1). Count 6 charges Marrs with filing a false federal tax return in 2013 for calendar year 2010, in violation of 26 U.S.C. § 7206(1). Count 7 charges Marrs with obstructing or impeding the due administration of the tax laws, in violation of 26 U.S.C. § 7212(a). ECF 1 in Case '271. On April 18, 2018, a grand jury returned a superseding indictment against Marrs in Case '271, charging the same violations alleged in the original indictment, but with a correction in the text of Count 7 to conform to a change in the case law. ECF 51 in Case '271.

         B. Procedural History Regarding Defendant Marrs

         On July 20, 2017, Marrs was arrested pursuant to a warrant, had his initial appearance, arraignment, and detention hearing on both indictments, and was released on conditions. The Court scheduled trial for September 26, 2017. Marrs filed motions to continue both trials, which the Court granted. On November 20, 2017, Marrs filed motions to declare both cases complex (ECF 32) and motions to dismiss both cases (ECF 33). On December 14, 2017, the Court declared both cases complex, set both cases for trial on June 4, 2018 (with the order of which trial would proceed first to be determined at a later date), and found the continuances entered in each case constituted excludable delay pursuant to 18 U.S.C. § 3161(h)(7)(A). ECF 38.

         On March 29, 2018, Marrs filed a motion to sever his trial in Case '267 from the trial of Cramer in that case. ECF 68. (Cramer filed a similar motion the day before. ECF 67.) On April 16, 2018, Marrs fired his counsel in both cases, Chief Deputy Federal Defender Stephen Sady. ECF 76. The Court appointed Paul Hood as Marrs's new counsel in both cases. Id. As previously noted, a grand jury issued a superseding indictment in Case '271 on April 18, 2018. ECF 51 in Case '271. Marrs was arraigned on the superseding indictment on April 25, 2018. ECF 57 in Case '271. On May 24, 2018, at Cramer's unopposed request, the Court rescheduled the trial date in Case '267 from June 4 to June 14, 2018. ECF 82. (The Court also reset the trial date in Case '271 to June 14. ECF 58 in Case '271.)

         On June 11, 2018, the Court denied Marrs's motion to dismiss Case '267 and denied in part and granted in part his motion to dismiss Case '271. ECF 86. On June 14, 2018, the Court held a status and scheduling conference, rather than a trial, in the two cases. ECF 91. At that status conference, the Court set a schedule on the pending motions to sever in Case '267. Id. The Court also reset the trial of Case '267 and the trial of Case '271 for April 23, 2019 (again, with the order of which case would be tried first to be determined later). Id.

         On July 6, 2018, Marrs, joined by Cramer, filed a motion requesting to withdraw their previously-filed motions to sever. ECF 95. The Court promptly granted Defendants' requests to withdraw their motions to sever. ECF 96. On August 8, 2018, both Cramer and Marrs filed a joint motion to allow hybrid counsel. ECF 97. On October 19, 2018, after conducting a hearing required under Faretta v. California, 422 U.S. 806 (1975), the Court granted in part both Defendants' motions for hybrid counsel. ECF 109; ECF 110. Also on October 19, 2018, both Cramer and Marrs requested additional time of almost three months to file substantive pretrial motions, which the Court allowed. ECF 108.

         On January 9, 2019, the Court held a status and scheduling conference in both cases. After the government, on the one hand, and both Defendants, on the other, disagreed over whether Case '267 should be tried before or after Case '271, the Court asked all parties whether both cases should be tried together on April 23, 2019, as though brought in a single indictment. See Fed. R. Crim. P. 13. Without waiving their objections based on speedy trial issues, Marrs and Cramer both expressly consented to trying Case '267 and Case '271 jointly on April 23, 2019, as did the government. The Court agreed and scheduled both cases to be tried together in a 15-day jury trial commencing on April 23, 2019. The Court also set final deadlines for filing and responding to substantive pretrial motions. ECF 129.

         C. Procedural History Regarding Defendant Cramer

         Defendant Cramer was a fugitive for five months after the grand jury returned the indictment in Case '267, despite Cramer being aware of the charges and, as discussed below, even filing pro se several documents in that case shortly thereafter in which Cramer challenged the case against him. On December 8, 2017, local police in South Bend, Washington, arrested Cramer pursuant to a federal warrant. On December 11, 2017, Cramer had an initial appearance before U.S. Magistrate Judge Theresa L. Fricke, in the U.S. District Court for the Western District of Washington (Tacoma), pursuant to Fed. R. Crim. P. 5(c)(3). Judge Fricke appointed counsel for Cramer, had the prosecutor read the charges and penalties to Cramer, and set an identity and detention hearing. On December 14, 2017, Judge Fricke determined that Cramer was the person charged in the indictment, detained him, and ordered that he be transferred to the District of Oregon. As Cramer correctly asserts in his Motion, at neither hearing did Judge Fricke ask Cramer to plead to the charges.

         On January 19, 2018, Cramer made an initial appearance in the District of Oregon (Eugene) before U.S. Magistrate Judge Thomas M. Coffin. Judge Coffin appointed counsel for Cramer, briefly advised Cramer of the charges against him, and ordered that Cramer be detained to ensure his appearance in federal court in Portland.

         Cramer appeared before U.S. Magistrate Judge Stacie F. Beckerman in Portland on January 29, 2018, for a detention hearing and status conference. Judge Beckerman ordered that Cramer continue to be detained. On March 8, 2018, U.S. Magistrate Judge John V. Acosta conducted a review of Cramer's detention and continued to detain him as a flight risk. On March 20, 2018, the undersigned district judge held a status and scheduling conference in both cases, explained that the Court had previously designated both cases as complex, set the trial date in Case '267 for June 4, 2018, and found excludable delay pursuant to 18 U.S.C. § 3161(h)(1)(D), (6), and (7)(A). ECF 64.

         As discussed above, on March 28, 2018, Cramer filed a motion in Case '267 to sever his trial from the trial of Marrs in that case. ECF 67. (As also previously noted, Marrs filed a similar motion on March 29, 2018. ECF 68.) At Cramer's unopposed request, the Court rescheduled trial from June 4 to June 14, 2018. ECF 82. On June 14, 2018, with the motions to sever still pending, the Court ordered Cramer's release on conditions and reset the trial of both cases to April 23, 2019. As also discussed above, on July 6, 2018, both Marrs and Cramer filed requests to withdraw their previously-filed motions to sever, which the Court promptly granted. After July 6, 2018, the rest of the proceedings regarding Cramer are as described above regarding Marrs.

         STANDARDS

         The Warrant Clause of the Fourth Amendment requires that “no Warrants shall issue, but upon probable cause, . . . and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The description in the warrant must be specific enough to guide the executing officer as to which items to search or seize.[4] See Marron v. United States, 275 U.S. 192, 196 (1927). The “manifest purpose of this particularity requirement” is to prevent “wide-ranging exploratory searches” by “limiting the authorization to search to the specific areas and things for which there is probable cause to search.” Maryland v. Garrison, 480 U.S. 79, 84 (1987).

         The Ninth Circuit has developed the following three-factor test to determine whether a warrant is sufficiently precise:

(1) whether probable cause exists to seize all items of a particular type described in the warrant, (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not, and (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.

United States v. Vasquez, 654 F.3d 880, 884 (9th Cir. 2011) (quoting United States v. Stubbs, 873 F.2d 210, 211 (9th Cir. 1989)); see also United States v. Hill, 459 F.3d 966, 973 (9th Cir. 2006) (describing similar factors). The level of specificity required depends on what is reasonable given “the circumstances of the case and the type of items involved.” Hill, 459 F.3d at 973 (quoting United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986)); see also Id. at 974 (“As always under the Fourth Amendment, the standard is reasonableness.”).

         Warrant specificity has two aspects: particularity and breadth. In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 856-57 (9th Cir. 1991). The Fourth Amendment requires that a search warrant “particularly describe the place to be searched and the persons or things to be seized, ” and “[t]he warrant must make clear to the executing officer exactly what it is that he or she is authorized to search for and seize.” Id. at 857. Furthermore, “[t]he description must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized.” Id. Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based. Id. The concept of breadth is “the requirement that there be probable cause to seize the particular thing named in the warrant.” Id.

         In order to evaluate particularity and breadth, a court must determine “the threshold question of whether the warrant incorporated . . . [the] affidavit” of the agent. United States v. SDI Future Health, Inc., 568 F.3d 684, 699 (9th Cir. 2009). “If [the affidavit] was incorporated, then we evaluate the affidavit and the warrant as a whole, allowing the affidavit to cure any deficiencies in the naked warrant.” Id. An affidavit is incorporated “only if (1) the warrant expressly incorporated the affidavit by reference and (2) the affidavit either is attached physically to the warrant or at least accompanies the warrant while agents execute the search.” Id. An affidavit is expressly incorporated into a warrant when the warrant uses suitable words of reference. Id. There are “no magic words of incorporation.” United States v. Vesikuru, 314 F.3d 1116, 1121 (9th Cir. 2002). The Ninth Circuit held in Vesikuru that the phrase, “Upon the sworn complaint made before me there is probable cause to believe that the [given] crime . . . has been committed, ” were words that denoted a reference suitable for incorporating the affidavit into the warrant. Id. at 1120 (emphasis in original).

         When digital evidence is concerned, the Ninth Circuit has often upheld broad warrants to seize all storage media for later examination. See, e.g., United States v. Hay, 231 F.3d 630, 636-37 (9th Cir. 2000) (upholding a warrant that “authorized the government to search and seize Hay's entire computer” because the government “had no way of knowing where the [illegal] images were stored”); United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (allowing seizure of the defendant's “entire computer system”); but see United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995) (invalidating a warrant that “authorized the seizure of virtually every document and computer file” at the defendant's business). Such warrants must be supported by affidavits “giving a reasonable explanation . . . as to why a wholesale seizure is necessary, ” enabling the magistrate to “intelligently . . . exercise the court's oversight function.” Hill, 459 F.3d at 976; see also Lacy, 119 F.3d at 746 (distinguishing Kow because “the affidavit [in Lacy] established probable cause to believe Lacy's entire computer system was likely to evidence criminal activity” (quotation marks omitted)).

         The Ninth Circuit has also declined to require warrants for digital storage media to specify a search protocol for the government to follow. See, e.g., United States v. Giberson, 527 F.3d 882, 889-90 (rejecting the argument that “a search of [the defendant's] computer files should have been limited to files likely to be associated with those identified in the search warrant”); Hill, 459 F.3d at 978 (“[W]e look favorably upon the inclusion of a search protocol; but its absence is not fatal.”); United States v. Adjani, 452 F.3d 1140, 1150 (9th Cir. 2006) (similar). Such restrictions are unnecessary because even without them, “the officer is always limited by the longstanding principle that a duly issued warrant . . . may not be used to engage in a general, exploratory search.” Hill, 459 F.3d at 978 (quotation marks omitted).

         When a warrant violates the Fourth Amendment, the exclusionary rule applies, which prohibits the use at trial of “evidence seized during an unlawful search.” See Wong Sun v. United States, 371 U.S. 471, 484 (1963). “[I]ndirect products” of an illegal search, such as “statements or physical evidence subsequently obtained in part as a result of the search, ” are also barred “if they bear a sufficiently close relationship to the underlying illegality.” United States v. Shetler, 665 F.3d 1150, 1157 (9th Cir. 2011) (quotation marks omitted). When only portions of a warrant are insufficiently specific, however, the Ninth Circuit has “endorsed a doctrine of severance, which allows a court to strike from a warrant those portions that are invalid and preserve those portions that satisfy the [f]ourth [a]mendment.” SDI Future Health, Inc., 568 F.3d at 707 ...


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