Case 1:08-cr-20612-PAS

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-20612-CR-SEITZ/OSULLIVAN UNITED STATES OF AMERICA vs. HASSAN SAIED KESHARI ________________________________/ MOTION TO VACATE EX PARTE ORDER OF AUGUST 11, 2008 AND TO COMPEL PRODUCTION OF UNREDACTED SEARCH WARRANTS AND AFFIDAVITS Hassan Saied Keshari hereby moves to vacate the ex parte order entered by the Court on August 11, 2008, permitting the government to produce only redacted search warrant affidavits that do not reveal the basis for the governments claim of probable cause to invade Mr. Kesharis privacy. Mr. Keshari further moves to compel production of the unredacted warrant affidavits as required by the United States Constitution. In support of this relief, Mr. Keshari states: 1. In April and May of 2008, this Court issued at least three search warrants in

connection with the investigation that resulted in the present action. The indictment in this case was returned on July 3, 2008. DE25. 2. Undersigned counsel noticed his appearance on behalf of Mr. Keshari on July

15, 2008. DE30. 3. Notwithstanding undersigned counsels appearance in the case, the

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government made at some unknown time an ex parte motion for a protective order. That motion appears never to have been docketed, and undersigned counsel has yet to see that motion. 4. On August 11, 2008, the Court signed an order that purports to authorize the

government to keep secret indefinitely material portions of the affidavits supporting the three search warrants issued by this Court. 5. The August 11, 2008, order is under seal but was produced to undersigned

counsel as part of the governments second discovery response. The Court did not provide a copy of the order to undersigned counsel. The order may be docketed as DE63, which reflects a sealed document. 6. Following entry of the order, the government produced copies of the three

warrants and heavily redacted versions of their supporting affidavits to undersigned counsel. The government warned undersigned counsel in a letter that the defendant himself could not be permitted to retain even the redacted versions. Specifically, virtually all of the information that purportedly established probable cause to search has been excised from one of the three affidavits. The remaining two affidavits are also so heavily redacted regarding probable cause that there is no way for Mr. Keshari to know whether his Fourth Amendment rights were violated by the ensuing searches. 7. Rule 41(i) requires that warrants and all other related papers must be

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delivered to the Clerk of the Court. The purpose of this provision is to ensure that warrants and their supporting documents are publicly available, as the incorporated Memorandum of Law explains. 8. Thus, the sealing or redacting of search warrants and their supporting

affidavits is not a simple discovery matter but rather implicates fundamental constitutional rights that cannot be adequately protected through secret, ex parte hearings. 9. While the Court may modify the governments mere discovery obligations

pursuant to Federal Rule of Criminal Procedure 16(d)(1) on a showing of good cause, a defendants right to have search warrants and their supporting affidavits is rooted in the Constitution, not the Rules of Criminal Procedure. Their production is constitutionally mandated by the Fourth Amendmentparticularly after an indictment has been brought. 10. Moreover, as public records of the federal judiciary, the sealing or redacting

of search warrants and their supporting documents implicates the right of public access to judicial records and proceedings. 11. Accordingly, the substance of those documents should not be kept from the

defendantor even from the publicand especially not on the basis of the governments unchallenged, secret, ex parte representations. 12. Furthermore, deciding such weighty constitutional matters ex parte is

fundamentally inconsistent with due process.

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13.

Accordingly, the Courts ex parte order should be vacated because it was

entered without an adversarial hearing, because it denies Mr. Keshari the ability to exercise his Fourth Amendment rights, and because it denies Mr. Keshari and the public their right to have his case open to public scrutiny. WHEREFORE the Courts order of August 11, 2008, should be vacated and the Court should compel the government to produce the search warrants and all underlying documents without redaction. MEMORANDUM OF LAW Permitting the government to keep the facts that purportedly established probable cause for the issuance of search warrants secret after indictment without so much as an adversarial hearing is unprecedented and unconstitutional. There are a few published opinions in which the government has tried to keep warrant affidavits sealed prior to indictment. The courts have required the government to support such requests with compelling reasons and have been correctly skeptical of speculative claims of harm to the governments ongoing investigation. Undersigned counsel has found no case in which any federal court has allowed the substance of a warrant affidavit to be kept from the target of a search under any circumstances after indictment. Search warrants are not mere prosecution documents subject to discovery under Rule 16(a). The warrants are federal court orders and records. The documents supporting

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a search warrant are, no less than the warrants themselves, expressly required by the Fourth Amendment. Accordingly, Rule 41(i) requires that warrants and all other related papers be forwarded to the Clerk of the Court where they are open to the public as well as to the defendant, particularly after indictment. See United States v. Smith, 483 F. Supp. 821, 825 (W.D. Ok. 1979) ([W]arrants are a matter of public record and can be examined at the office of the Clerk of the Court.). Publication is not optional; it is constitutionally required. In re Search Warrants Issued Aug. 29, 1994, 899 F. Supp. 296 (S.D. Ohio 1995) ([T]he Fourth Amendment right to be free of unreasonable searches and seizures includes the right to examine the affidavit that supports a warrant after the search has been conducted and a return has been filed with the Clerk of the Court pursuant to Fed. R. Crim. P. 41.). Without access to the affidavits underlying a warrant, a defendant usually has no way of ascertaining whether the governments search was made with probable cause or whether probable cause was established with correct information. This is because in 1972 Federal Rule of Criminal Procedure 41 was amended to no longer require a warrant to set forth the basis for probable cause. The Advisory Committee Notes explained that, given that all supporting documents must be filed with court anyway, the change was made for simple efficiency: The requirement that the warrant itself state the grounds for its issuance and the names of any affiants is eliminated as unnecessary paper work. . . . A 5

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person who wishes to challenge the validity of a search warrant has access to the affidavits upon which the warrant was issued. Fed. R. Crim. P. 41, Notes to 1972 Amendments. The Committee assumed such access because warrants and all underlying documents must be filed by the Clerk of Court. In this case, Mr. Keshari cannot evaluate or challenge the legality of the searches because the basis for probable cause is undisclosed. This violates the Fourth Amendment because it makes impossible the vindication of the right to privacy that Amendment guarantees: Implicit in [the Fourth Amendment] is the publics right to challenge both the reasonableness of the search and the degree to which the warrant was supported by probable cause. Without the right of access to the affidavit on which the search warrant was based, the search subject could never make such a challenge. In re Search Warrants Issued on April 26, 2004, 353 F. Supp.2d 584, 588 (D. Md. 2004). Thus, rights guaranteed by the Fourth Amendment include the right to examine the affidavit in support of a search warrant once the search has been executed, absent a demonstration to the court there are compelling governmental interests in keeping the affidavit under seal. Id. at 58586; accord In re Search Warrant for Second Floor Bedroom, 489 F. Supp. 207, 208 n.1 (D.R.I. 1980) (Indeed, in the usual case, it is important that the affidavit be available to a defendant who wishes to challenge the validity of a search warrant in a pretrial motion to suppress.); see also Franks v. Delaware, 438 U.S. 154, 155 (1978) (permitting defendant to challenge search on the basis that a false statement knowingly and intentionally, or with 6

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reckless disregard for the truth, was included in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.). As the style of the case suggests, In re Search Warrants Issued on April 26, 2004, was an unindicted matter. Notwithstanding that, the magistrate judge and the district judge agreed that the governments ex parte affidavits claiming that disclosure would reveal the governments legal theories, interfere with the ongoing investigation, and identify potential targets failed to rise to the level of a compelling interest. 353 F. Supp.2d 59192. Virtually the same conclusion was reached by another district court in the earlier case of In re Search Warrants Issued Aug. 29, 1994, 899 F. Supp. 296 (S.D. Ohio 1995). Thus, even before indictment while the governments investigation is ongoing, an executed search warrant and its supporting documentation cannot be kept secret without a demonstrated compelling government need. Because the documents are public, judicial records, courts are extremely reluctant to keep them secret. Undersigned counsels research discloses no case where any federal court has kept from the defendant or the public the basis of probable cause justifying an executed search warrant after indictment for any reason. As mentioned, doing so totally denies Mr. Keshari the protection of the Fourth Amendment for the benefit of the very government from whose overreaching the Amendment is intended to protect him. In addition to violating Mr. Kesharis Fourth Amendment right, the Courts ex parte

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order violates the right of the public to know what the government is doing. Discussing Rule 41(i) (which was Rule 41(g) at the time), one district court wrote: Obviously, the person subjected to the search is a prime beneficiary of the rule; the rule makes it possible for him to challenge the validity of the search warrant. The search victim need not be the only beneficiary, however. Since important public policies are served by public disclosure of court records, there is every reason to suppose that the Rule was adopted to benefit the public as well. In re Search Warrant for Second Floor Bedroom, 489 F. Supp. 207, 208 n.1 (D.R.I. 1980). While affidavits may arguably remain sealed pre-indictment where the government shows a need, see Baltimore Sun Co. v. Goetz, 886 F.2d 60, 6465 (4th Cir. 1989) (acknowledging circuit split), after indictment, the governments need to keep secrets dissipates. The public and the press then enjoy a common law right of access to judicial records. See In re Search Warrant for Second Floor Bedroom, 489 F. Supp. 207 (1980).

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The governments highly unusual request to keep secret its asserted reasons for invading Mr. Kesharis constitutionally protected privacy violates Mr. Kesharis Fourth Amendment rights as well as his Fifth Amendment right to due process. The order must accordingly be vacated and the warrants and supporting affidavits must be produced and made part of the public record of this case forthwith.

Respectfully submitted,

____________________________ David Oscar Markus Fla. Bar No. 119318 Robin Kaplan Fla. Bar. No. 773751 DAVID OSCAR MARKUS, PLLC Alfred I. duPont Building 169 East Flagler Street, Suite 1200 Miami, Florida 33131 Telephone: 305-379-6667 Facsimile: 305-379-6668 www.markuslaw.com

CERTIFICATE OF SERVICE A copy of the foregoing was served through the electronic filing system on August 25th, 2008, on AUSA Melissa Damian. ___________________________ David Oscar Markus 9