the government could properly invoke CIPA and that the government made a
sufficient showing to warrant the issuance of an order protecting against
disclosure of the classified information. The October 2, 2001, Protective
Order also directed that the government's proposed unclassified summary
of information relating to the KLS under Section 4 of CIPA would be
sufficient to allow the defense to effectively argue the motion to
suppress. Accordingly, the Protective Order permitted the government to
provide Scarfo with the unclassified summary statement in lieu of the
classified information regarding the KLS. Pursuant to Section 6(d) of
CIPA, the Court also sealed the transcript of the September 26th ex
parte, in camera hearing and the government's supporting Affidavits. The
government filed with the Court and served on Scarfo the unclassified
summary on October 5, 2001, in the form of an October 4, 2001, Affidavit
of Randall S. Murch, Supervisory Special Agent of the Federal Bureau of
Investigation, Laboratory Division (the "Murch Affidavit").
Having the benefit of the September 26th ex parte, in camera hearing
and the many supplemental submissions of the parties, the Defendants'
motion for discovery and suppression is now ripe for resolution.
Defendants Scarfo and Paolercio advance several arguments in moving to
suppress certain evidence seized by the FBI. The Defendants first contend
that the KLS constituted an unlawful general warrant in violation of the
Fourth Amendment to the Constitution. In addition, the Defendants, after
reviewing the government's unclassified summary, i.e., the Murch
Affidavit, argue that the Murch Affidavit is inadequate under CIPA and
would conflict with the United States Supreme Court decision of Jencks
v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957).
Lastly, Defendants urge the Court to suppress the evidence because the
KLS effectively intercepted a wire communication in violation of Title
III, 18 U.S.C. § 2510.
I. General Warrant
Scarfo argues that since the government had the ability to capture and
record only those keystrokes relevant to the "passphrase" to the
encrypted file, and because it received an unnecessary overcollection of
data, the warrants were written and executed as general warrants. This
claim is without merit.
Typically, the proponent of a motion to suppress bears the burden of
establishing that his Fourth Amendment rights were violated. See United
States v. Acosta, 965 F.2d 1248, 1257 n. 9 (3d Cir. 1992) (citing Rakas
v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387
(1979)). The standard of proof in this regard is a preponderance of the
evidence. See United States v. Matlock, 415 U.S. 164, 178 n. 14, 94
S.Ct. 988, 39 L.Ed.2d 242 (1974) ("[T]he controlling burden of proof at
suppression hearings should impose no greater burden than proof by a
preponderance of the evidence.").
It is settled that at a hearing on a motion to suppress, "the
credibility of the witnesses and the weight to be given the evidence,
together with the inferences, deductions and conclusions to be drawn from
the evidence, are all matters to be determined by the trial judge."
United States v. McKneely, 6 F.3d 1447, 1452-53 (10th Cir. 1993). See
also United States v. Matthews, 32 F.3d 294, 298 (7th Cir. 1994); United
States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir. 1990); Government
of the Virgin Islands v. Gereau,
502 F.2d 914, 921 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct.
829, 42 L.Ed.2d 839 (1975).
The Fourth Amendment states that "no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized." U.S. CONST. amend. W. Where a search warrant is obtained, the
Fourth Amendment requires a certain modicum of particularity in the
language of the warrant with respect to the area and items to be searched
and/or seized. See Torres v. McLaughlin, 163 F.3d 169, 173 (3d Cir.
1998), cert. denied, 528 U.S. 1079, 120 S.Ct. 797, 145 L.Ed.2d 672
(2000). The particularity requirement exists so that law enforcement
officers are constrained from undertaking a boundless and exploratory
rummaging through one's personal property. See United States v. Johnson,
690 F.2d 60, 64 (3d Cir. 1982) (citing Coolidge v. New Hampshire,
403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)), cert. denied,
459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 450 (1983).
From a review of the two Court Orders authorizing the searches along
with the accompanying Affidavits, it is clear that the Court Orders
suffer from no constitutional infirmity with respect to particularity.
Magistrate Judge Donald Haneke's May 8, 1999, Order permitting the search
of Scarfo's computer clearly states that Judge Haneke found probable
cause existed to believe that "Nicodemo S. Scarfo has committed and
continues to commit offenses in violation of Title 18, U.S.C. § 371,
892-94, 1955 and § 1962." See Judge Haneke's May 8, 1999 Order, at
¶ 1. That Order further stated that there was "probable cause to
believe that Nicodemo S. Scarfo's computer, located in the TARGET
LOCATION, is being used to store business records of Scarfo's illegal
gambling business and loansharking operation, and that the above
mentioned records have been encrypted." See Judge Haneke's May 8, 1999
Order, at ¶ 3.
Because the encrypted file could not be accessed via traditional
investigative means, Judge Haneke's Order permitted law enforcement
officers to "install and leave behind software, firmware, and/or hardware
equipment which will monitor the inputted data entered on Nicodemo S.
Scarfo's computer in the TARGET LOCATION so that the F.B.I. can capture
the password necessary to decrypt computer files by recording the key
related information as they are entered." See Judge Haneke's May 8, 1999
Order, at pp. 4. The Order also allowed the F.B.I. to
search for and seize business records in whatever form
they are kept (e.g., written, mechanically or computer
maintained and any necessary computer hardware,
including computers, computer hard drives, floppy
disks or other storage disks or tapes as necessary to
access such information, as well as, seizing the
mirror hard drive to preserve configuration files,
public keys, private keys, and other information that
may be of assistance in interpreting the password
— including address and telephone books and
electronic storage devices; ledgers and other
accounting-type records; banking records and
statements; travel records; correspondence;
memoranda; notes; calendars; and diaries — that
contain information about the identities and
whereabouts of conspirators, betting customers and
victim debtors, and/or that otherwise reveal the
origin, receipt, concealment or distribution of
criminal proceeds relating to illegal gambling,
loansharking and other racketeering offenses.
See Judge Haneke's May 8, 1999 Order, at pp. 4-5.
On its face, the Order is very comprehensive and lists the items,
including the evidence in the encrypted file, to be seized with more than
sufficient specificity. See Andresen v. Maryland, 427 U.S. 463, 480-81,
96 S.Ct. 2737, 2748-49, 49 L.Ed.2d 627 (1976) (defendant's general
warrant claim rejected where search warrant contained, among other
things, a lengthy list of specified and particular items to be seized).
One would be hardpressed to draft a more specified or detailed search
warrant than the May 8, 1999 Order.*fn2 Indeed, it could not be written
with more particularity. It specifically identifies each piece of
evidence the F.B.I. sought which would be linked to the particular crimes
the F.B.I. had probable cause to believe were committed. Most
importantly, Judge Haneke's Order clearly specifies the key piece of the
puzzle the F.B.I. sought — Scarfo's passphrase to the encrypted
That the KLS certainly recorded keystrokes typed into Scarfo's keyboard
other than the searched-for passphrase is of no consequence. This does
not, as Scarfo argues, convert the limited search for the passphrase into
a general exploratory search. During many lawful searches, police
officers may not know the exact nature of the incriminating evidence
sought until they stumble upon it. Just like searches for incriminating
documents in a closet or filing cabinet, it is true that during a search
for a passphrase "some innocuous [items] will be at least cursorily
perused in order to determine whether they are among those [items] to be
seized." United States v. Conley, 4 F.3d 1200, 1208 (3d Cir. 1993). See
also United States v. Carmany, 901 F.2d 76 (7th Cir. 1990) (upholding
seizure of unregistered handgun found in filing cabinet while validly
executing warrant to discover evidence relating to cocaine distribution
charges) United States v. Fawole, 785 F.2d 1141, 1145 (4th Cir. 1986);
United States v. Santarelli, 778 F.2d 609, 615-16 (11th Cir. 1985)
(search warrant entitled agents to search for documents, i.e., records of
loansharking activity, etc., and agents were entitled to examine each
document in bedroom or in filing cabinet to determine whether it
constituted evidence they were entitled to seize under warrant); United
States v. Issacs, 708 F.2d 1365, 1368-70 (9th Cir.), cert. denied,
464 U.S. 852, 104 S.Ct. 165, 78 L.Ed.2d 150 (1983); United States v.
Christine, 687 F.2d 749, 760 (3d Cir. 1982).
Hence, "no tenet of the Fourth Amendment prohibits a search merely
because it cannot be performed with surgical precision." Conley, 4 F.3d
at 1208 (quoting United States t'. Christine, 687 F.2d 749, 760 (3d Cir.
1982)). Where proof of wrongdoing depends upon documents or computer
passphrases whose precise nature cannot be known in advance, law
enforcement officers must be afforded the leeway to wade through a
potential morass of information in the target location to find the
particular evidence which is properly specified in the warrant. As the
Supreme Court stated in Andresen, "the complexity of an illegal scheme
may not be used as a shield to avoid detection when the [government] has
demonstrated probable cause to believe that a crime has been committed
and probable cause to believe that evidence of this crime is in the
suspect's possession." Andresen, 427 U.S. at 482, 96 S.Ct. at 2749 n.
10. Accordingly, Scarfo's claim that the warrants were written and
executed as general warrants is rejected.
II. Jencks Argument
Scarfo next contends that the use of the Murch Affidavit would pose a
direct conflict with the Supreme Court's decision in Jencks v. United
States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). For several
reasons, this claim also lacks merit.*fn3
The plainest answer to Scarfo's invocation of Jencks is that it simply
does not apply in this context. The Jencks Act, which bears its name from
the famous Jencks Supreme Court ruling, requires the government to
disclose prior recorded statements of its witnesses, when related to the
subject matter of their testimony, after each witness testifies on direct
examination. See 18 U.S.C.A. § 3500(b); United States v. Weaver,
267 F.3d 231, 245 (3d Cir. 2001). Its primary purpose is to allow the
defense to utilize on cross-examination a government witness' prior
testimony or statements to impeach the witness. See Goldberg v. United
States, 425 U.S. 94, 107, 96 S.Ct. 1338, 1346, 47 L.Ed.2d 603 (1976).
Here, the discovery sought by Scarfo does not involve a government
witness, but rather the KLS device. Hence, no Jencks conflict arises.*fn4
As the Court will explain more fully below, Scarfo will not be
"crippled" in his ability to defend himself in the prosecution of this
case if his discovery request is denied. The Court has determined that,
pursuant to Section 4 of CIPA, the unclassified summary in the form of the
Murch Affidavit will provide Scarfo with all the information that is
necessary to litigate this motion.
Defendant Scarfo is also mistaken in asserting that the government's
obligation to produce and disclose information during the course of the
criminal discovery process is absolute. Although typically the government
owes an ongoing duty to disclose information to the defense, the Congress
has, by statute, carved out exceptions. CIPA is one such example.
In relation to his argument that the KLS unlawfully intercepted a wire
communication, Scarfo disputes the government's insistence that the Murch
Affidavit is sufficient for purposes of litigating the suppression
motion. Since the Court's October 2nd Protective Order deemed the Murch
Affidavit sufficient for purposes of adjudicating this motion, Scarfo in
essence asks the Court to reconsider that ruling.
Congress enacted CIPA on October 15, 1980, to address the issues which
accompany criminal prosecutions involving national security secrets. CIPA
establishes certain pretrial, trial and appellate procedures regarding
the handling of classified information in criminal cases and protects
against disclosure of sensitive, classified information. Section 1(a) of
CIPA defines the term "classified information" as follows:
any information or material that has been determined
by the United States Government pursuant to an
Executive order, statute, or regulation, to require
protection against unauthorized disclosure for reasons
of national security and any restricted data, as
defined in paragraph
r. of section 11 of the Atomic Energy Act of 1954 (
42 U.S.C. § 2014 (y)).
The term "national security" is defined in Section 1(b) of the Act as
"the national defense and foreign relations of the United States."
Section 2 allows "any party [to] move for a pretrial conference to
consider matters relating to classified information that may arise in
connection with the prosecution." Section 6(a) sets forth the procedure
for hearing a motion in a case involving classified information:
Within the time specified by the court for the filing
of a motion under this section, the United States may
request the court to conduct a hearing to make all
determinations concerning the use, relevance, or
admissibility of classified information that would
otherwise be made during the trial or pretrial
proceeding. Upon such a request, the court shall
conduct such a hearing. Any hearing held pursuant to
this subsection . . . shall be held in camera if the
Attorney General certifies to the court in such
petition that a public proceeding may result in the
disclosure of classified information. As to each item
of classified information, the court shall set forth
in writing the basis for its determination. Where the
United States' motion under this subsection is filed
prior to the trial or pretrial proceeding, the court
shall rule prior to the commencement of the relevant
After hearing such a motion, Section 4 permits the court, upon a
sufficient showing, to authorize the United States to substitute a
summary of the information the defendant seeks for the classified
documents. This section also authorizes the court to seal and preserve in
the records of the court the entire text of the statement.