United States District Court, D. Oregon
OPINION AND ORDER ON PENDING MOTIONS TO SUPPRESS OR
Michael H. Simon, United States District Judge.
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.The Court has scheduled trial to commence
on April 23, 2019.
'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). 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
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.
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.
Procedural History Regarding Defendant Marrs
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).
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
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.
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.
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.
Procedural History Regarding Defendant Cramer
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.
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.
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.
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.
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. 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
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
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.”).
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
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).
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)).
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).
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 ...