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United States v. Lewis

United States District Court, M.D. Florida, Ocala Division

May 6, 2019

UNITED STATES OF AMERICA
v.
JUSTIN LEWIS

          REPORT & RECOMMENDATION [1]

          PHILIP R. LAMMENS UNITED STATES MAGISTRATE JUDGE.

         Defendant Justin Lewis is charged by indictment with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). (Doc. 1). Lewis has filed a motion to suppress evidence seized by the government through orders under 18 U.S.C. § 2703(d) and while executing search warrants of his email, residence, and electronic devices. He has requested a Franks hearing to contest the validity of the orders and warrants.[2] (Doc. 14). The government has responded to the motion. (Doc. 32).

         In reviewing the motion, the Court has, at the parties' request, considered records that were created in the Northern District of Florida, where Lewis faces separate charges. In addition, the Court conducted its own hearing to allow Lewis to present supplemental argument and evidence in support of his motion. Lewis submitted multiple additional exhibits and testified at the hearing- mainly offering his own commentary and argument on the evidence. In addition, Lewis filed a twenty-six-page closing argument that included an additional thirty pages of line-by-line commentary on the previous hearing. After a review of this voluminous record and upon referral from the district court, I submit that the motion is due to be denied.

         I. Background

         In addition to this case, Lewis also faces charges for wire fraud in the Northern District of Florida. No. 1:18-cr-15. The fraud investigation in the Northern District began when FBI Special Agent Brannon Baxter determined, based on a referral from Lewis's bank and information from Verizon Wireless, that Lewis was involved in a scheme to re-sell wireless data accounts obtained as part of his corporate account. (Doc. 15-1, ¶¶4-10) (Doc. 37-1, pp. 17-18).

         The government then obtained two orders under the Stored Communications Act, 18 U.S.C. § 2703(d), directing Verizon and eBay to disclose additional information related to accounts associated with the alleged fraud. (Doc. 15-1, 18-2). Based on an affidavit provided by Agent Baxter, the government then sought, and received, search warrants for Lewis's Gmail account. (Doc. 15-2). The government used information obtained from Lewis's Gmail account and other sources to seek a search warrant for Lewis's home address from this Court. (Doc. 16-1, 17-1). Following a search of Lewis's home, the government identified several electronic devices that it believed contained child pornography. (Doc. 18-1, ¶¶4-6). The government then received ten separate warrants to search each of these devices and allegedly discovered evidence of child pornography. (Doc. 18-1).

         Lewis has filed a motion to suppress the evidence in this case based on alleged material and intentional, or reckless, misrepresentations made by law enforcement in their affidavits seeking to establish probable cause. (Doc. 14). Lewis challenged these same applications in his pending case in the Northern District of Florida. The district judge there found that Lewis failed to show that the applications “contained material deliberate falsehood or reckless disregards for the truth” and denied the motion to suppress. United States v. Lewis, No. 1:18-cr-15, slip op. at 13 (N.D. Fla. Jan. 9, 2019).

         Lewis filed the same motion to suppress here and provided the records from the previous proceeding, including the testimony of Lewis and Agent Baxter. (Doc. 14, 37-1, 38-1). Lewis supplemented the record with additional filings in this Court. (Doc. 40-1, 41-1, 42-1). The parties agreed that the Court can rely on the records from the Northern District in making its factual findings and neither party made any procedural objections to how the district judge in the Northern District of Florida disposed of the order. (Doc. 31).

         In the Northern District, the judge held a “pre-Franks” hearing where Lewis was given a chance to expound on his argument while the government was given the opportunity to explain the discrepancies in its affidavit. See United States v. McMurtrey, 704 F.3d 502, 509 (7th Cir. 2013). Lewis was also given “a full opportunity to challenge or rebut that evidence.” Id. The Court has considered the district judge's opinion from the Northern District, but is making its own independent findings based on the record, including the supplemental records and the hearing held here. See United States v. Harnage, 976 F.2d 633, 636 n.4 (11th Cir. 1992). At this hearing here, Lewis provided additional testimony and commentary on the supplemental exhibits provided to the Court. (Doc. 42, 44).

         II. Standard

         “Under the Fourth Amendment, a search warrant must be supported by a sworn affidavit containing information that ‘is believed or appropriately accepted by the affiant as true.'” United States v. Rocher, No. 2:17-cr-107, 2018 WL 1071892 (M.D. Fla. Feb. 26, 2018) (quoting Franks v. Delaware, 438 U.S. 154, 165 (1978)). “Affidavits supporting warrants are presumptively valid.” United States v. Lebowitz, 676 F.3d 1000, 1010 (11th Cir. 2012).

         “Under Franks, a defendant may challenge the veracity of an affidavit in support of a search warrant if he makes a ‘substantial preliminary showing' that (1) the affiant deliberately or recklessly included false statements, or failed to include material information, in the affidavit; and (2) the challenged statement or omission was essential to a finding of probable cause.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006). A defendant who satisfies both prongs is entitled to an evidentiary hearing. Id. If, at the hearing, “perjury or reckless disregard for the truth is established by a preponderance of the evidence, ” and if after the false information is set aside and the remaining facts are insufficient to support probable cause, then “the search warrant must be voided and the fruits of the search excluded.” Franks, 438 U.S. at 156.

         As to the first prong, the defendant must point to specific portions of the search warrant that are claimed to be false and support those allegations “by an offer of proof, including affidavits or sworn or otherwise reliable statements of witnesses; conclusory allegations of negligence or innocent mistakes are insufficient.” Leach, 498 Fed.Appx. at 917. While, as to the second prong, “in order to be entitled to relief, a defendant must show that the misrepresentations or omissions were material, which means that, absent the misrepresentations or omissions, probable cause would have been lacking.” Id.

         III. Discussion

         As an initial matter, the Court notes that much of the supplemental exhibits provided by Lewis are similar to Lewis's testimony, mere commentary on issues in the case. (Doc. 42, 44). The exhibits aren't a supplement to the actual issues raised in Lewis's motion to suppress, or to topics raised in the proceedings in the Northern District. Rather, they are new arguments embedded in what Lewis's counsel refers to repeatedly as demonstrative aids.

         For example, in Doc. 44, Exhibit F-3, which is a “demonstrative aid, ” Lewis himself annotates the § 2703(d) Verizon application and order by noting that the application says Verizon is in Bedminster, New Jersey while the order says its location is Bedford, New Jersey. Defense counsel, in his briefs to the Court, doesn't explain why this discrepancy matters, though.

         Lewis, not counsel in argument to the Court, then provides a legal assessment of his interpretations of 18 U.S.C. § 2703. Lewis's personal legal assessment then continues for the remainder of the exhibit as he annotates the order nearly line-by-line. Lewis does this for each order-even referring to it, correctly, as “commentary.” See (Doc. 44, Exh. F-3, L-3, P-3, & R-3). None of Lewis's personal legal opinions or commentary change the evidence or show that while Agent Baxter noted inaccuracies or typos, they were at most the result of mere negligence not the product of intentional or reckless acts. As Judge Walker noted in his order, Lewis is objecting to misrepresentations that are “at most the result of mere negligence.” (No. 1:18-cv-15, Doc. 73 at 6). Nevertheless, the Court will consider Lewis's allegations as to each application and affidavit.

         A. Verizon § 2703 Order

         The government obtained the Verizon order under § 2703(d).[3] (Doc. 15-1). The order required Verizon to produce records and information-excluding the contents of communications not involving representatives and employees of Verizon-associated with accounts for Lewis, Linda Maloney (Lewis's mother), and three corporate ...


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