United States v. in the Matter of the Search Of: One Digital Device

CourtDistrict Court, District of Columbia
DecidedMay 14, 2024
Docket2024-0091
StatusPublished

This text of United States v. in the Matter of the Search Of: One Digital Device (United States v. in the Matter of the Search Of: One Digital Device) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. in the Matter of the Search Of: One Digital Device, (D.D.C. 2024).

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) IN THE MATTER OF THE SEARCH OF ) ONE DIGITAL DEVICE CURRENTLY ) LOCATED AT 601 4TH STREET NW, ) No. 24-sw-91 (GMH) WASHINGTON, DC UNDER RULE 41 ) __________________________________________)

MEMORANDUM OPINION AND ORDER

Generally, when a federal judicial officer rules on an application that disposes of a case,

the applicant has two options: it can seek reconsideration of the decision or it can seek review of

the decision through the normal, hierarchical appellate process. 1 Going to another court to seek a

more favorable outcome from a judge of coordinate jurisdiction is not one of the options. Yet that

is what the United States Attorney for the District of Columbia has done here.

The facts are laid out in prior filings. See, e.g., ECF Nos. 3-1, 5. In short, acting on

information that Isabella Maria DeLuca—a Washington, D.C. resident and January 6 defendant

who had not yet been arrested—would be in the Central District of California in mid-March 2024,

the government applied to the U.S. District Court there for a warrant to search her cell phone,

which it expected to recover upon her arrest. See ECF No. 3-1 at 3. Magistrate Judge Autumn

Spaeth denied the application and, later, issued a 21-page opinion explaining that the government

had not established probable cause to believe that the target device—which was the third phone

the defendant had owned since the events of January 6, 2021—would have “evidence of the

charged misdemeanors that occurred in 2021.” Memorandum Decision at 16, In re Search

1 The Federal Rules of Civil Procedure expressly provide for motions for reconsideration. See Fed. R. Civ. P. 59(e) (governing motions to alter or amend a judgment); Fed. R. Civ. P. 60 (governing motions for relief from a judgment or order). The Federal Rules of Criminal Procedure do not, but courts have determined that reconsideration is available in criminal cases, importing standards from the civil context. See, e.g., United States v. Gamble, No. 19-cr-348, 2020 WL 5062938, at *3 (D.D.C. Aug. 27, 2020); United States v. Dorsey, No. 14-cr-328, 2016 WL 3607155, at *1 (C.D. Cal. June 30, 2016). Warrant for the Property Located at [Redacted], No. 8:24-mj-125, (C.D. Cal. Mar. 27, 2024); see

also ECF No. 3-1 at 4. Thereafter, DeLuca was arrested in California on a warrant issued in this

District and the target cell phone was seized incident to that arrest. See ECF No. 5 at 1. “Rather

than seeking reconsideration or appealing Magistrate Judge Spaeth’s denial of the warrant to

search the cellphone in the Central District of California, the government . . . physically

transported the cellphone to this District” and submitted to the undersigned a substantially similar

warrant application to search the phone. 2 Id. at 2.

Although judge-shopping can take different forms, it is at its most basic a litigant’s attempt

to manipulate the judicial system to find a judge likely to rule in its favor. See, e.g., In re Mann,

229 F.3d 657, 658 (7th Cir. 2000) (describing as judge-shopping the situation in which a litigant

seeks recusal of a judge who has issued adverse rulings in the hope of drawing a judge “who might

be more sympathetic to [its] cause”); Nat’l Treasury Emps. Union v. IRS, 765 F.2d 1174, 1177 n.5

(D.C. Cir. 1985) (“The semblance of judge shopping in the court of first instance is also a concern

when a litigant discontinues a fray, only to start over again on another day.”). As such, it “clearly

constitutes ‘conduct which abuses the judicial process,’” Hernandez v. City of El Monte, 138 F.3d

393, 399 (9th Cir. 1998) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991)), and is

“universally condemned.” Lane v. City of Emeryville, 56 F.3d 71, 1995 WL 298614, at *2 (9th

Cir. 1995) (quoting United States v. Conforte, 457 F. Supp. 641, 652 (D. Nev. 1978), aff’d, 624

F.2d 869 (9th Cir. 1980)); see also, e.g., Standing Comm. on Discipline v. Yagman, 55 F.3d 1430,

1443 (9th Cir. 1995) (“Judge-shopping doubtless disrupts the proper functioning of the judicial

2 The government insists that the warrant application before this Court is “similar,” but “not identical” to the one before Judge Spaeth, highlighting some additional facts that it has learned since its submission in California. ECF No. 7 at 1–2. The government does not address why the charge of judge-shopping should apply only when an identical application is presented to multiple judges and, oddly, it suggests that none of the new facts are actually material to the probable cause finding. See ECF No. 2 at 1-4; ECF No. 7 at 2 n.1. In any case, the application here is still substantially similar to the prior application and, as discussed below, the government could and should have presented any new facts purportedly strengthening its showing of probable cause to Judge Spaeth.

2 system . . . .”); Hughes v. Berryhill, No. 16-cv-352, 2017 WL 3000035, at *1 (E.D. Ky. Feb. 21,

2017) (“Courts have . . . always been worried about . . . judge-shopping.”).

It is difficult to see how the government’s conduct here can be interpreted as anything other

than judge-shopping. Magistrate Judge Spaeth denied the government’s warrant application to

search DeLuca’s phone on March 14, 2024. See ECF No. 3-1 at 4. The phone was recovered

incident to her arrest on March 15, 2024. See id. Thereafter, the government “transported” the

phone to this District and less than one week later submitted a substantially similar warrant

application to the undersigned. Id.; see also Email sent on behalf of Jake Struebing, Assistant U.S.

Att’y, to D.D.C. Criminal Warrants Inbox (Mar. 20, 2024 12:42 PM ET) (on file with the chambers

of the undersigned). That is, the government had a decision from a judicial officer denying its

application to search DeLuca’s phone. As in this District, it could seek reconsideration from the

judge who made that decision—Judge Spaeth—or ask for review of the decision by a district judge

in the Central District of California. 3 It nevertheless eschewed established procedures for

reconsideration or appeal of Magistrate Judge Spaeth’s ruling and sought to circumvent her denial

of its search warrant application by submitting an application to search the same phone to the

undersigned magistrate judge in Washington, D.C. That the government viewed the new

application as effectively an appeal of Magistrate Judge Spaeth’s denial is clear from the

supplemental briefs it filed, which argue that she ignored facts supporting probable cause, that her

3 Section 636(b)(1)(A) of Title 28 of the United States Code provides for review of a magistrate judge’s decision on a pretrial matter.

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United States v. in the Matter of the Search Of: One Digital Device, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-in-the-matter-of-the-search-of-one-digital-device-dcd-2024.