United States v. Sember

170 F. Supp. 3d 1049, 2016 WL 1047134, 2016 U.S. Dist. LEXIS 33810
CourtDistrict Court, S.D. Ohio
DecidedMarch 16, 2016
DocketCase No. 3:14-cr-141
StatusPublished

This text of 170 F. Supp. 3d 1049 (United States v. Sember) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sember, 170 F. Supp. 3d 1049, 2016 WL 1047134, 2016 U.S. Dist. LEXIS 33810 (S.D. Ohio 2016).

Opinion

ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO SUPPRESS (DOC. 62)

THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE

This case is before the Court on the Motion to Suppress (Doc. 62) filed by Defendant John M. Sember, by which he seeks to suppress evidence seized from his residence on March 28, 2014, pursuant to a search warrant. On January 26, 2016, the Court held a hearing on the Motion to Suppress, and the parties have submitted post-hearing memoranda based on the testimony and other evidence admitted at the hearing. (Docs. 75, 78-79, 81-82, 83.) For the reasons stated below, the Motion to Suppress is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND1

Sember has been indicted for knowingly, intentionally and without proper authority stealing certain sensitive and proprietary technical, engineering and computer data and codes belonging to the United States Air Force and having a value in excess of $1,000, in violation of 18 U.S.C. § 641. (Doc. 27.) Sember’s Trial is scheduled for March 28, 2016.

In or around early 2013, Sember became an employee of Booz-Allen Hamilton Engineering Services (“BAHES”), a Department of Defense contractor with contracts with the United States Air Force (“Air Force”). (Ex. A, ¶ 6-7.) Sember was the lead electrical engineer on a project called the “LEAP” program at the Air Force Research Laboratory’s Center for Rapid Product Development (“CRPD”). {Id. at ¶ 6-7, 10.) On March 14, 2014, Sember’s employment on the LEAP program was terminated. {Id. at ¶ 12.) On March 18, 2014, Sember returned to his employer two laptop computers and one external hard drive, which he had used in working on the LEAP program. {Id. at ¶ 10,16.) On March 21, 2014, Sember told the Booz-Allen Hamilton human resources and legal departments that he had destroyed all of the data on the computers and external hard-drive. {Id.) Vincent Parisi, a U.S. Government employee and Chief at the CRPD, served as Sember’s non-BAHES supervisor. {Id. at ¶ 8.) Both Parisi and Bernard Bosma, one of Sember’s co-workers on the LEAP program, believed that Sember had not destroyed the data, but likely had it stored on a home computer. {Id. at ¶ 20-21.)

Andrew J. Eilerman, Special Agent of the Federal Bureau of Investigation (“FBI”), conducted interviews of Parisi, Bosma, and Karen Paulsen, the Facility Security Officer for BAHES, regarding Sember’s termination. {Id. at ¶ 6, 8, 18.) Based on his investigation, Eilerman then applied for a warrant to search Sember’s residence for the data that he erased from his computer equipment. Eilerman’s affidavit supporting the application summarized his investigation into Sember’s possible violations of 18 U.S.C. § 1832(a)(2) [1054]*1054(theft of trade secrets) and 18 U.S.C. § 641 (theft of United States Government property). (Id.) On March 27, 2014, Magistrate Judge Michael R. Merz reviewed Eil-erman’s application and supporting affidavit and issued the search warrant. (Exs. A, W.)

On March 28, 2014, the FBI executed the search warrant at Sember’s residence located at 1979 Centraba Avenue in Fair-born, Ohio. (Doc. 75 at PAGEID# 634.) The FBI seized a total of 44 items during the search, many of which were electronic media. (Doc. 75 at PAGEID# 647.)

On September 25, 2014, the Government filed the original Indictment in this case. (Doc. 3.) On November 12, 2014, Sember brought a motion to suppress the evidence obtained from the search of his residence. (Doc. 14.) On January 16, 2015, the Court held a hearing on the Motion to Suppress, after which the parties submitted post-hearing memoranda. (Docs. 18-21.) On April 1, 2015, the Court denied the motion to suppress. (Doc. 22.) On April 14, 2015, the Government filed the Superseding Indictment — which is the current indictment. (Doc. 27.)

On September 22, 2015, Sember’s attorney moved to withdraw from the case due to a conflict of interest that would arise if a member of his law firm were called to testify as a witness. (Doc. 43.) After a hearing, the Court granted the motion to withdraw; and shortly thereafter, on October 6, 2015, Sember’s current counsel filed his notice of appearance. (Doc. 46.)

On December 11, 2015, Sember’s current counsel filed the Motion to Suppress that is now before the Court. (Doc. 62) While the Motion to Suppress raises some of the same issues that the Court addressed in considering the motion to suppress filed by Sember’s former counsel, it also contains additional arguments that were not previously raised. On January 26, 2016, the Court held a hearing on the Motion to Suppress. (Doc. 75.) After the hearing, Sember submitted a post-hearing memorandum in support of the Motion to Suppress (Docs. 78-79), the Government submitted a response to Sember’s memorandum (Doc. 81), and Sember submitted a reply (Doc. 83.) The Motion to Suppress is fully briefed and ripe for the Court’s review.

II. LEGAL STANDARD

The Fourth Amendment to the United States Constitution protects the rights of individuals against unreasonable searches and seizures. United States v. Ganias, 755 F.3d 125, 133 (6th Cir.2014). A search occurs when the Government acquires information by either “physically intruding on persons, houses, papers, or effects” or otherwise invades an area in which the individual has a reasonable expectation of privacy. Id. (citing Florida v. Jardines, — U.S. -, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013)). “A seizure occurs when the Government interferes in some meaningful way with the individual’s possession of property.” Id. (citing United States v. Jones, — U.S. -, 132 S.Ct. 945 n. 5, 181 L.Ed.2d 911 (2012)). The party seeking suppression of evidence obtained by a search has the burden of proving that the search was unlawful. United States v. Blakeney, 942 F.2d 1001, 1015 (6th Cir.1991).

A search warrant will issue only if “(1) the Government establishes probable cause to believe the search will uncover evidence of a specific crime; and (2) the warrant states with particularity the areas to be searched and the items to be seized.” Ganias, 755 F.3d at 134. Probable cause “is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, [1055]*105576 L.Ed.2d 527 (1983). “Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision [whether to issue a warrant]. While an effort to fix some general, numerically precise degree of certainty corresponding to ‘probable cause’ may not be helpful, it is clear that ’only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’” Gates, 462 U.S.

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Cite This Page — Counsel Stack

Bluebook (online)
170 F. Supp. 3d 1049, 2016 WL 1047134, 2016 U.S. Dist. LEXIS 33810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sember-ohsd-2016.