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United States v. Caputo

United States District Court, D. Oregon

November 6, 2019


          Billy J. Williams, United States Attorney, and Michelle Holman Kerin, Assistant United States Attorney, Attorneys for Plaintiff.

          Laurie Shertz, and Ryan O'Connor, Attorneys for Defendant.


          Karin J. Immergut, United States District Judge

         Defendant was indicted on four counts of wire fraud, in violation of 18 U.S.C. § 1343, and one count of making a false statement in a document, in violation of 18 U.S.C. § 1001(a)(3). ECF 1. On September 10, 2019, Defendant filed a motion to suppress emails and evidence derived from a warrantless search of Defendant's workplace email account. ECF 37. The Government's response to the motion provided additional facts about the email account and the context in which the Government received copies of Defendant's emails. ECF 48. The response included an image of the banner message displayed when Defendant logged on to his work computer system. Id. at 4. The response also attached two policies which governed Defendant's computer use at work. ECF 48-1, 48-2.

         On October 15, 2019, this Court held a hearing on the motion to suppress. At the hearing, Defendant's counsel stated that for the purpose of this motion, Defendant stipulates to the facts as presented in Government's response and its attachments. Defendant's counsel also declined the opportunity to present any additional evidence at an evidentiary hearing on the motion. At the end of the hearing, this Court orally denied the motion and indicated that this opinion and order would follow.


         Since at least September 2011, Defendant worked for the Oregon National Guard in a position subject to computer policies and restrictions established by the U.S. Department of Defense. ECF 48 at 2. The Defense Department conveyed these policies in a banner message displayed each time Defendant logged on to his computer as well through an annual training, the “Cyber Awareness Challenge, ” in which Defendant participated. Id. at 2-3, 5. The Department also owned and operated the server that stored and processed Defendant's work emails. Id. at 2.

         The indictment concerns the period 2012 through 2014. ECF 1 at 4, 8. During this time, Defendant had to comply with two overlapping computer-use policies as a condition of his employment. ECF 48 at 3. First, he was subject to Army Regulation 25-2 (“AR 25-2”), which was originally issued in October 2007 and revised in March 2009. Id. at 5-6. AR 25-2 specified that using Defense Department computer systems constitutes consent to monitoring and “that there is no expectation of privacy while using [information systems] or accessing Army resources.” ECF 48-2. AR 25-2 also required that a warning banner detailing this information be displayed each time a user accessed the computer system. Id. The regulation required not only that the warning appear, but also that the user “take a positive action to accept the terms of the notice and consent warning banner before a successful logon is completed.” Id. During the period at issue in this case, the warning banner advised:

You are accessing a U.S. Government (USG) Information System (IS) that is provided for USG-authorized use only. By using this IS (which includes any device attached to this IS), you consent to the following conditions:
- The USG routinely intercepts and monitors communications on this IS for purposes including, but not limited to, penetration testing, COMSEC monitoring, network operations and defense, personnel misconduct (PM), law enforcement (LE), and counterintelligence (CI) investigations.
- At any time, the USG may inspect and seize data stored on this IS.
- Communications using, or data stored on, this IS are not private, are subject to routine monitoring, interception, and search, and may be disclosed or used for any USG-authorized purpose.
- This IS includes security measures (e.g., authentication and access controls) to protect USG interests--not for your personal benefit or privacy.
- Notwithstanding the above, using this IS does not constitute consent to PM, LE or CI investigative searching or monitoring of the content of privileged communications, or work product, related to personal representation or services by attorneys, psychotherapists, or clergy, and their assistants. Such communications ...

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