1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:

 v. : CRIMINAL NO. 05-193-02 & 05-193-13

:

AKHIL BANSAL :

:

MATTHEW MELAO :

O R D E R 

AND NOW, this day of 2006, upon consideration of defendant

Akhil Bansal’s pro se “Brief and Motion to Suppress Evidence Derived from Electronic

Surveillance Conducted over Defendant’s E-mail Accounts” (Docket No. 308) and “Brief and

Motion to Suppress All Electronic Evidence Derived from Illegal Search & Seizure of

Defendant’s Stored Electronic Communications” (Docket No. 309) and “Motion to

Amend/Supplement Defendant’s Motion and Brief to Suppress” (Docket No. 310) and defendant

Matthew Melao’s pro se “Brief and Motion to Suppress All Electronic Evidence Derived from

Illegal Search & Seizure of Stored Electronic Communication,” (Docket No. 280), and the

government’s opposition thereto, and for good cause shown, it is hereby 

ORDERED 

that the Motions are DENIED.

BY THE COURT:

_____________________________

HONORABLE PAUL S. DIAMOND

United States District Court

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 1 of 39
 Bansal’s motion which is docketed at 309 appears to be, except for a different opening 1

“statement” and “summary,” and the omission of a single paragraph at the conclusion, a literal

copy of Melao’s motion which is docketed at 280. Bansal’s motion, which is docketed at 310

seeks to “amend/supplement” another motion to suppress, and consists of his attempt to inject the

same ill-fated argument for suppression (that federal law enforcement agents are not allowed to

apply for search warrants under 18 U.S.C. § 2703) which is briefly addressed herein. 

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:

 v. : CRIMINAL NO. 05-193-02 & 05-193-13

:

AKHIL BANSAL :

:

MATTHEW MELAO : 

 

GOVERNMENT’S OPPOSITION TO DEFENDANT AKHIL BANSAL’S PRO SE

MOTIONS TO SUPPRESS EVIDENCE FROM ELECTRONIC SURVEILLANCE

(DOCKET NOS. 308 & 309 & 310) AND DEFENDANT MATTHEW MELAO’S PRO SE

MOTION TO SUPPRESS ELECTRONIC EVIDENCE (DOCKET NO. 280)

The United States of America, by and through its attorneys, Patrick L. Meehan, United

States Attorney for the Eastern District of Pennsylvania, Frank Costello and Bea Witzleben,

Assistant United States Attorneys, files this response in opposition to the pro se motions of

defendant Akhil Bansal and defendant Matthew Melao for the suppression of the electronic

evidence obtained by law enforcement in this case. In their motions, the defendants appear to be 1

asking this Court to suppress or exclude from evidence virtually all of the electronic evidence

seized, whether it was seized pursuant to search warrant or interception order. Their motions are

based on fundamental misunderstandings of the law and should be denied. As explained more

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 2 of 39
 The term “email” refers to “the transfer of a message in electronic form from one 2

computer user to another, usually over a network. The message will often travel through a series

of computer systems until it reaches its final destination, where it can be stored for retrieval by its

3

fully below and in the government’s responses to other motions in this case, the order authorizing

the wiretap was properly issued, the emails at issue were electronic communications covered by

the Wiretap Act, and even if there were a defect in the issuance or use of the wiretap in this case,

suppression is not available as a remedy. Moreover, the email information which was acquired

by search warrants was also lawfully obtained, and again, even if there were a defect in the

issuance or use of any of the search warrants in this case, suppression is not available as a

remedy. There is no basis for suppression of the electronic communications which the

government intends to introduce at trial, nor is there any basis for ruling the evidence

inadmissible. 

I. INTRODUCTION 

A. Factual Background

Defendants Akhil Bansal and Matthew Melao and fifteen of their co-defendants have

been charged together in a 44-count indictment with conspiring to distribute and import

controlled substances, engaging in a continuing criminal enterprise, conspiring to introduce into

interstate commerce misbranded prescription drugs, money laundering and conspiring to commit

money laundering. 

During the lengthy investigation which led to the defendants’ indictment, the government

at different times sought and obtained search warrants to acquired stored electronic

communications related to various defendants pursuant to 18 U.S.C. § 2703(a). This allowed the

government to seize emails stored – at specific points in time – on the servers used by the 2

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 3 of 39
intended recipient . . . .” Geoff Ralston, et al., Electronic Mail, in Encyclopedia of Computer

Science, 637, 637-38 (Anthony Ralston, et al., eds. 4th ed. 2001).

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defendants to send and receive emails. The search warrants did not allow the government realtime acquisition of the contents of electronic communications as they were being transmitted. 

In January of 2005, pursuant to Section 2518 of Title 18 of the United States Code, the

government applied to a United States District Court Judge sitting in the Eastern District of

Pennsylvania (“the EDPA Judge”) for a order authorizing the interception of electronic

communications for two email accounts registered to the defendant. The requested order

permitted the government to “wiretap” the defendant’s email accounts, and obtain the contents of

his emails prospectively. To secure the wiretap, the government was required to satisfy the

substantial and demanding requirements of the Wiretap Act. See 18 U.S.C. §§ 2518(1)(b),

 2518(1)(c), 2518(1)(e), 2518(3)(d), 2518(4)(a) & 2518(5). Based on the government’s

satisfaction of the requirements, the EDPA judge authorized the wiretap. 

Defendants Bansal and Maleo now seek to suppress, it appears, all of the electronic

evidence obtained by the government pursuant to that wiretap and the search warrants.

B. The Statutory Scheme 

Two different federal statutes -- Title III of the Omnibus Crime Control and Safe Streets

Act of 1968 (the Wiretap Act), as amended, 18 U.S.C. § 2510 et seq., and the Stored

Communications Act, 18 U.S.C. § 2701 et seq. -- govern access to electronic data and

communications. Although the two statutory schemes overlap to some degree, there are

differences between them. 

The Wiretap Act was intended to address the significant potential for invasion of privacy

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 4 of 39
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into the most sensitive areas of our lives as the result of growing eavesdropping technology and

reliance on communications service providers. Congress was concerned that the “tremendous

scientific and technological developments that have taken place in the last century have made

possible today the widespread use and abuse of electronic surveillance techniques. As a result of

these developments, privacy of communication is seriously jeopardized by these techniques of

surveillance.” S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2154 (“S.

Rep. No. 90-1097"). To ensure the privacy of communications sent using new communication

technologies, such as email, Congress amended Title III in 1986 to extend the privacy protections

of the Wiretap Act to electronic mail and other electronic communications. See Electronic

Communications Privacy Act, Pub. L. 99-508, 100 Stat. 1858 (“ECPA”); see also In re

Pharmatrak, 329 F.3d 9, 16 (1 Cir. 2003). st

Not surprisingly, given its grave privacy concerns, the Wiretap Act “intercept”

prohibition is quite broad. The Act makes it unlawful to intercept or to procure anyone else to

intercept any oral, wire, or electronic communication. 18 U.S.C. § 2511(1)(a). The Act also

makes it unlawful to use or disclose an illegally intercepted communication. 18 U.S.C. §

2511(1)(c), (d). The Wiretap Act also provides a series of interrelated definitions for "wire

communication," "electronic communication," and "oral communication." 

The term "electronic communication" is defined as "any transfer of signs, signals, writing,

images, sounds, data, or intelligence of any nature transmitted in whole or in part by wire, radio,

electromagnetic, photoelectronic or photooptical system." 18 U.S.C. § 2510(12) (emphasis

added). That definition covers communications such as electronic mail (“email”) and faxes. The

definition of “electronic communication” has some express exclusions. It "does not include," for

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 5 of 39
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example, wire and oral communications (such as phone calls and in-person conversations), toneonly paging signals, tracking device signals, and "electronic funds transfer information stored by

a financial institution in a communications system used for the electronic storage and transfer of

funds." 18 U.S.C. § 2510(12). “Electronic communication” does not exclude generally

communications in “electronic storage,” as defined under the Wiretap Act. 18 U.S.C. §2510(17)

(recodifed as 18 U.S.C. §2510(18)). “Electronic storage” is “any temporary, intermediate storage

of a wire or electronic communication incidental to the electronic transmission thereof” as well

as the storage of such communication “by an electronic communication service for purposes of

backup protection of such communication.” 18 U.S.C. § 2510(17). 

The Stored Communications Act makes it unlawful for any individual to access

intentionally a facility through which electronic communication services are provided "without

authorization," or to do so in excess of an authorization, if the individual thereby "obtains, alters,

or prevents authorized access to a wire or electronic communication while it is in electronic

storage in such system." 18 U.S.C. § 2701. The Stored Communications Act thus would cover,

for example, a hacker who accesses or deletes stored emails. The Stored Communications Act

provides lesser penalties for its violation than the Wiretap Act. Compare 18 U.S.C. § 2701(b)

(Stored Communications Act) with 18 U.S.C. § 2511(4)(b) (Wiretap Act). The Stored

Communications Act also excludes from its criminal sanctions any person operating or providing

an electronic communications service, such as email accounts. 18 U.S.C. § 2701(c)(3). 

Both the Wiretap Act and the Stored Communications Act establish the showings that

law enforcement officers must make in order to acquire electronic communications. The Wiretap

Act requires a more compelling showing. Compare 18 U.S.C. §§ 2516-2518 with 18 U.S.C. §

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 6 of 39
 The protection of privacy under the Wiretap Act does not end with the issuance of the 3

wiretap order. The operation of a wiretap is subject to judicial oversight. 18 U.S.C. § 2518(6). 

Further, upon the expiration of the order, the fruits of the wiretap are immediately sealed and

carefully controlled. 18 U.S.C. § 2518(8). In addition, Congress put in place mechanisms to

ensure that both the courts and Congress maintain oversight of interceptions by law enforcement. 

See 18 U.S.C. § 2519(2) & (3) (setting forth interception reporting requirements to the

Administrative Office of the U.S. Courts and Congress).

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2703. To obtain access to electronically stored communications, the government can use a

search warrant or proceed by subpoena, just as the government might with respect to similar

information stored in paper rather than electronic form. To conduct a wiretap, in contrast, the

government must complete a detailed wiretap application. The application must, among other

things, detail the offense being investigated and include a complete statement concerning (1)

whether or not other investigative techniques have been tried and (2) whether and why those

other techniques are unlikely to succeed or appear too dangerous. 18 U.S.C. § 2518(1)(b), (c). 

The heightened showing imposed by the Wiretap Act reflects the perception that ongoing 3

eavesdropping on conversations and communications as they occur is a graver intrusion on

personal privacy than the one-time snapshot provided by searches of written or stored materials. 

II. DISCUSSION

A. The EDPA Judge had Jurisdiction to Authorize the Wiretap and

Suppression Would Not Be Appropriate Even If the EDPA Judge Did Not

Have Jurisdiction.

Defendant Bansal’s first argument in his pro se motion (Docket No. 308) appears to be

the same argument advanced in the motion filed by his counsel when he was represented (Docket

No. 220). The government has already responded to this argument, and incorporates herein its

response to the motion by Bansal when he was represented. As explained therein, the EDPA

Judge who entered the Wiretap Order had authority to do so, suppression is not available, and the

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 7 of 39
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motion must be denied. 

B. The Affidavit in Support of the Wiretap Was Adequate and Suppression

Would Not Be Appropriate Even If There Were Omissions

Defendant Bansal’s next argument in his pro se motion (Docket No. 308) also appears to

be the same argument advanced in the motion filed by his counsel when he was represented

(Docket No. 220). The government has already responded to this argument, and incorporates

herein its response to the motion by Bansal when he was represented. As explained therein, the

order provided adequate information about the nature and location of the communications facility

as to which authority to intercept was to be granted, in satisfaction of the statutory requirement

set forth in 18 U.S.C. § 2518(4)(b). The order directed “MSN Hotmail, a communication 

provider as defined in Section 2510(15) of Title 18,” to provide the information, facilities and

technical assistance necessary to carry out the order. See Order of January 12, 2005, page 4. 

Furthermore, there was no bad faith or intent to mislead on the part of the government in

obtaining this order. The accompanying application stated that the target e-mail accounts were

“operated by MSN Hotmail within the Northern District of California,” see Application at page

2, and the affidavit identified the address of MSN Hotmail as “1065 LaAvenida, Bldg. 4,

Mountain View, California, within the Northern District of California,” and stated that the

application was filed in the Eastern District of Pennsylvania because it was “one of the locations

where the offense conduct has occurred,” and that the interception would take place in

Philadelphia. See Affidavit at paragraphs 7-9.

C. The Emails Could be Intercepted Pursuant to The Wiretap Act and Even If

They Could Not, Suppression is Not An Available Remedy.

Defendant Bansal’s next argument in his pro se brief seems to be that emails “are not

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 8 of 39
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electronic communications” and therefore could not be “intercepted.” This argument appears to

be the same argument advanced in the motion filed by his counsel when he was represented

(Docket No. 220). The government has already responded to this argument, and incorporates

herein its response to the motion by Bansal when he was represented. As explained therein, the

emails were subject to “interception” pursuant to the Wiretap Act, and even if they were not,

suppression is not an available “remedy.” 

D. The Fact that MSN Hotmail Used Its Own Equipment Is Not a Violation of

Any Statute, and Even if It Were, Suppression is Not Available.

Defendant Bansal’s next argument is one seemingly advanced by his co-defendant,

Sanjeev Srivastav, in his “Omnibus” Pretrial Motions (Docket Nos. 213 & 298). The

government hereby incorporates its response to those motions into this pleading. As explained

therein, see Government’s Response to Defendant Srivastav’s Omnibus Pre-trial motion (Docket

No. 213) and Supplemental Omnibus Pre-trial motion (Docket No. 298) at p. 19, n. 12, MSN

Hotmail’s use of its own equipment to effectuate the Court’s Order does not provide the

defendant with any grounds for suppression. 

E. The Affidavit Sufficiently Sets Forth Why Normal Investigative Procedures

Appeared Unlikely to Achieve the Goals of the Investigation. 

The defendant complains that the government, when applying for the wiretap on his email

accounts, failed to provide a sufficient factual predicate regarding normal investigative

procedures. The defendant, however, has mischaracterized both the applicable law and the

detailed information contained in the affidavit supporting the wiretap application.

Given the fact that a wiretap authorization is presumed to be proper, see United States v.

Quintana, 70 F.3d 1167, 1169 (10th Cir. 1995), a defendant bears the burden of demonstrating

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 9 of 39
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that contested wiretap evidence should be suppressed, including when his suppression claim rests

upon the necessity requirement. See id.; cf. United States v. Acosta, 965 F.2d 1248, 1257 n.9 (3d

Cir. 1992)(proponent of suppression motion generally has burden).

Title III requires the judge approving an application to find that "normal investigative

procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried

or to be too dangerous." 18 U.S.C. § 2518(3)(c); see also § 2518(l)(c)(requiring affiants to

provide such information). The Third Circuit repeatedly has explained that the requirement

actually imposed by § 2518(3)(c) is not as onerous as the defendant suggests. For example, in

United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997), the Third Circuit recently

reaffirmed the following principles:

In Title III cases, courts have consistently held that 18 U.S.C. § 2518(3)(c) does

not require the government to exhaust all other investigative procedures before

resorting to electronic surveillance. . . . "The government need only lay a factual

predicate' sufficient to inform the judge why other methods are not sufficient."

Furthermore, in determining whether this requirement has been satisfied, a court

"may properly take into account affirmations which are grounded in part upon the

experience of specially trained agents . . . the government's showing is to be

‘tested in a practical and common-sense fashion.'"(citations omitted).

See also United States v. McGlory, ,968 F.2d 309, 345 (3d Cir. 1992) (holding the same); United

States v. Phillips, 959 F.2d 1187, 1189-1190 (3d Cir. 1992)(although defendant insisted that

wiretap is valid only if other investigative methods have been exhausted or would be too

dangerous or impractical, court declined to adopt such a strict interpretation); United States v.

Armocida, 515 F.2d 29, 38 (3d Cir. 1975)(wiretap statute only requires existence of factual

predicate regarding normal investigative procedures in affidavit for application).

Consistent with the pragmatic approach which courts employ when reviewing attacks

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based upon § 2518(3)(c) , the Third Circuit has observed that "[i]nvestigators are not obliged to

try all theoretically possible approaches." United States v. Vento, 533 F.2d 838, 849 (3d Cir.

1976). As long as the government avoids routinely employing electronic surveillance as the

initial step in investigations, and fully explains why it is requesting authorization of electronic

surveillance, "[i]t is sufficient that the government show that other techniques are impractical

under the circumstances and that it would be unreasonable to require pursuit of those avenues of

investigation." Id. Although a factual predicate consisting merely of "boiler plate" allegations

unrelated to the circumstances of the case at issue will be insufficient, applications which

"combine statements about general investigative experience in the type of crime and the

particular facts of the case at hand" are satisfactory. Id. at 850 n. 19. Ultimately, "the statutory

burden on the government is not great in showing compliance with § 2518(3)(c)." Armocida,

515 F.2d at 38; accord United States v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1994)(burden

imposed by 2518(3)(c) is "not great;" courts should employ "practical and common-sense"

review of government's factual predicate that avoids "hamper[ing] unduly the investigative

powers of law enforcement agents"); United States v. Geller, 560 F.Supp. 1309, 1322-23

(E.D.Pa. 1983)(burden is "not great"); United States v. Baynes, 400 F.Supp. 285, 299 (E.D.Pa.

1975)(holding the same).

Electronic surveillance is appropriate where, as here, there was a strong probability of

ongoing illegal activities, and the full extent of these crimes could not otherwise be probed

satisfactorily. United States v. Vastola, 670 F. Supp. 1244, 1282-1283 (D.N.J. 1987); United

States v. Armocida, 515 F.2d 29, 38 (3d Cir. 1975). 

The affidavit submitted in support of the initial intercept, a copy of which is attached as

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Exhibit 1, contained ten pages that outlined the affiant’s position that the interception of

electronic communications was the only available technique that had a reasonable likelihood of

securing the evidence necessary to achieve the goals of the investigation, which included “the

determination of the extent of the Bansals’ drug importation and distribution network, including

the identities of individuals who supply and purchase controlled substances and non-controlled

pharmaceutical drugs unlawfully, the means of payment for these shipments, the laundering of

proceeds derived from this unlawful activity, the location of criminal proceeds and assets, and to

determine the methods of operation used by the participants in that network.” See Affidavit at

paragraphs 96-130. 

The affiant described the investigative procedures that were unsuccessfully attempted,

reasonably appeared unlikely to succeed if tried, or were tried with limited success, all in

relation to the facts and circumstances and goals of the investigation. The following reasons

were provided to show why physical surveillance was of limited usefulness without the real-time

monitoring of the target e-mail accounts that electronic surveillance could provide: 

1) because bulk shipments of the drugs originated outside the United States, it was not possible

to know where and how the illegal shipments were entering to establish surveillance from their

points of entry or from their multiple destinations within the United States; 2) the apparent use of

commercial courier services also made it virtually impossible, without advance notice, to

establish evidence of these bulk importations; 3) while physical surveillance had proven valuable

in identifying some activities of targets and resulted in the seizures of a limited number of

packages containing prescription drugs, it had not succeeded in gathering sufficient evidence of 

the full scope of criminal activity under investigation, and the elements of the violations; 4)

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physical surveillance had failed to establish the identities of many of the conspirators; and 5) was

not expected to enlarge upon available information and would most likely be noticed, causing the

subjects to become more cautious in their illegal activities, to flee to avoid further investigation

and prosecution, or to otherwise compromise the investigation.

The affiant also explained why subpoenaing persons believed to be involved in the

conspiracy and their associates before a federal grand jury would not have been successful in

achieving the stated goals of this investigation. First, if any of the principals of this conspiracy,

their co-conspirators and other participants had been called to testify before the grand jury, they

would most likely invoke their Fifth Amendment privilege not to testify, and seeking any kind of

immunity for these persons would be unwise, because it could foreclose prosecution without

ensuring truthful testimony. Second, the service of such grand jury subpoenas would only alert

the recipients to the existence of the investigation, causing them to become more cautious, to

encrypt all of their electronic correspondence, to flee, as the principal targets were foreign

nationals with substantial ties – and assets – outside the United States, to destroy evidence, or to

otherwise compromise the investigation. 

As described in the affidavit, there was only one cooperating source with connections to

the targets - defendant Richard Dabney, who identified codefendants Akhil Bansal and Atul Patil

as the persons who paid him to mail packages. Dabney, because of his peripheral role, had

virtually no knowledge of the scope of the enterprise, its activities, or its participants. Moreover,

once Dabney told Bansal and Patil that some the packages had been seized by police and found to

contain drugs, they ceased all contact with him. 

Another potential cooperating witness, a pharmacist on federal probation in an unrelated

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criminal case, was mentioned as a potential cooperator who could be possibly utilized in an

attempt to purchase bulk quantities of controlled substances from the target subjects. The

affidavit noted, however, that even if this witness was successful, as a purchaser whose only

contact with the target subjects was likely to be through e-mail, the witness would not be privy to

information that would achieve the goals of the investigation.

The affiant described the undercover activities conducted to date by a federal agent,

which consisted of three undercover purchases of generic forms of controlled prescription drugs

from one of the websites believed to be supplied by the target subjects. The website did not

require a prescription and no doctor ever contacted the agent. Because all contact was through

e-mail, the agent was unable to learn any useful information concerning the participants or their

methods of operation. The purchases have served to show only the means by which the agents’

undercover credit card accounts were charged for the drugs for their particular purchases, and to

establish the nature of the drugs being sent to customers from that particular website. 

The affiant also explained that interviews of the named interceptees would not achieve

the goals of the investigation, because they would not produce information of the identities of all

of the participants, would also produce a lot of false information and false leads, and more

importantly, would alert the targets and subjects, compromising the investigation and resulting in

the likely destruction or concealment of evidence and flight. 

The search warrants that had been employed prior to the submission of the affidavit to

date were described. One resulted in the recovery 119 packages, which were shipments made by

Richard Dabney on behalf of Bansal and Patil. Another resulted in the recovery of nine UPS

boxes and one box from the United States Postal Service (USPS) seized in connection with their

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investigation into the activities of Armstrong Wholesale and target subjects David Armstrong

and Elizabeth Armstrong. Through this search warrant, agents determined that nine of the ten

boxes contained controlled substances. No locations associated with the Armstrongs were

searched at the time so as not to alert them to the existence of the investigation.

The affidavit also described the execution of search warrant on the dedicated server that

housed websites operated by Andrew Shackleton, who was charged in a separate indictment. 

Although the search yielded a considerable amount of information concerning Shackleton’s

activities, including stored e-mail messages that identified Brij Bansal and Akhil Bansal as one of

Shackleton’s suppliers, and some evidence of the wire transfer of funds from Shackleton to the

Bansals’ bank accounts in India in payment for the drugs, there was very little correspondence

between the Bansals and Shackleton.

A search warrant served upon MSN Hotmail for subscriber information and e-mails

stored within the e-mail accounts that were the subject of the wiretap application resulted in the

acquisition of 2,731 stored e-mails, which demonstrated that Akhil and Brij Bansal were

supplying controlled and non-controlled prescription drugs to customers in the United States and

elsewhere. The e-mails discussed shipments of drugs to the United States and alluded to the

Bansals’ use of possibly corrupt Customs officials to ensure that their shipments passed

undisturbed through Customs. 

Five search warrants were also served upon companies that owned servers hosting

websites and associated e-mail accounts. One of the servers contained the e-mail accounts

associated with David and Elizabeth Armstrong (who were charged with their participation in the

charged conspiracy in the Eastern District of New York). That search yielded a total of 2,118

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messages contained in the two accounts. Some of the e-mails discussed specific shipments.

The other four search warrants involved four servers containing e-mail accounts

pertaining to websites associated with Klaus Rieder and Corinna Mehrer (who were also charged

with their participation in the charged conspiracy in the Eastern District of New York). 

The affidavit explained that while valuable information was obtained through use of all of

these search warrants, there was essential evidence that could not be obtained in this manner for

the following reasons: 1) past e-mail messages which had been read and deleted were not

available through such a search; 2) the search warrant on the target e-mail accounts appeared to

have yielded only a small percentage of the e-mails that had been sent and received by these

accounts by the time the warrants were served; 3) although the seized e-mails provided a far

more detailed picture of the criminal conduct than had been available previously, they did not

provide any information concerning when and where shipments entered the United States so that

they could be intercepted and establish the nature and quantity of the drugs being shipped; 4) the

seized e-mails did not usually identify – other than by first name and e-mail address – most of the

individuals who corresponded with the Bansals about the offenses under investigation; and,

finally, 5) the use of all of these search warrants did not, and, in all likelihood, would not,

achieve the primary goals of the investigation, which, as noted above, were to determine the

extent of the drug importation and distribution network, the identities of the individuals and

businesses supplying the drugs, the methods by which the drugs are shipped into the United

States, how they are stored, packaged, and distributed once they enter the United States, the

identities of individuals within the United States who purchase the drugs in bulk for resale, and

the flow of proceeds from these importations and distributions. 

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 16 of 39
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The affidavit also noted that a search of Akhil Bansal’s apartment in Philadelphia, and

any computer located there, might have yielded some previously received mail messages and

attachments, such as spread sheets and invoices, but would not reflect the identities of those in

the chain of distribution. Similar searches of the e-mail accounts, homes and computers of the

other named interceptees would not have revealed the identities of all of the people and

businesses who were sources and purchasers of the drugs. 

For these reasons, the affiant stated that an ongoing electronic surveillance of the target

email account accounts was the only means by which all of the information to achieve the goals

of the investigation could be obtained. Furthermore, the affiant set forth his belief that search

warrants executed on the targets’ residences and computers would compromise the investigation

by alerting the named interceptees, and others who have yet to be identified, to the existence of

this investigation.

The affiant also described the pen register information had been used to date, which

included pen registers on the target Hotmail accounts, on cellular phones used by Akhil Bansal

and Atul Patil, and on hard-line telephones used by Akhil Bansal and Ashok Bhanushali. 

Additionally, In New York, pen registers had been obtained for cellular telephones subscribed to

David and Elizabeth Armstrong. The affidavit acknowledged that the pen registers yielded

limited useful information which strengthened the suspicion that the target subjects used the

target e-mail accounts as their primary means of communication. The pen registers on the

cellular telephones of David and Elizabeth Armstrong, however, showed minimal activity and

further supported the conclusion that the members of this conspiracy used electronic mail as their

primary form of communication. The affiant also pointed out that pen registers, even when

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 17 of 39
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productive, do not record the identity of the parties to the conversation, cannot identify the nature

or substance of the computer transmissions or differentiate between legitimate computer

transmissions and transmissions related to criminal purposes. Telephone toll information was

similarly limited, did not show local calls, and was generally available only on a monthly basis.

The affiant’s recitation concerning the use of other investigative techniques was based on

his training and experience, as well as that of his fellow agents, conversations with experienced

prosecutors, and addressed the unique facts and circumstances of this investigation, and therefore

satisfied the requirement set forth in Section 2518(3)(c). 

This case is analogous to United States v. Armocida, 515 F.2d 29 (3d Cir. 1975), and

other cases affirming the district court's necessity finding. In Armocida, the wiretap affidavit had

revealed a history of physical surveillance, utilization of informants, undercover agents, and other

wiretap interceptions. The affidavit explained, however, that the informant would not testify,

surveillance was too easily noticeable and could jeopardize the investigation, and a search

warrant was unlikely to reveal the identities of those believed involved in the narcotics

conspiracy or the source of the narcotics. The Third Circuit held that this was sufficient to

support the necessity finding made by the district court. Armocida, 515 F.2d at 38. Although the

normal investigative techniques had identified one of the defendants as a "street-level"

distributor, they had not been effective in achieving the objectives of the investigation, which

was "to ascertain the scope of the alleged narcotics conspiracy and to identify the participants." 

Id. Thus, even though the government had "evidence sufficient to prosecute one of the

conspirators, it is unrealistic to require the termination of an investigation before the entire scope

of the narcotics distribution network is uncovered and the identity of its participants learned." Id.

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 18 of 39
19

The instrumentalities of Title III are properly employed when, as here, there is a strong

probability of the existence of ongoing illegal activities, and the full extent of these crimes and

conspiracies cannot otherwise be probed satisfactorily. See United States v. McGlory, 968 F.2d

at 345 (wiretap necessary to discover content of conversations between conspirators); United

States v. Adams, 759 F.2d at 1114 (despite successful undercover drug purchases, normal

investigative methods would have risked discovery of investigation); United States v. Vento, 533

F.2d at 850 (wiretap was appropriate tool to discern full extent of conspiracy); United States v.

Baynes, 400 F. Supp. 285, 298-300 (E.D.Pa. 1975).

Suppression of evidence is an extreme remedy. Accordingly, the Supreme Court ruled in

Leon v. United States, 468 U.S. 897 (1984), that illegally seized evidence should not be

suppressed if the investigating agents relied in "good faith" upon the authorization of a neutral

and detached magistrate when obtaining the evidence. The Leon "good faith" doctrine applies to

motions to suppress wiretap evidence. See United States v. Meling, 47 F.3d 1546, 1553 (9th Cir.

1995); United States v. Moore, 41 F.3d 370, 376-77 (8th Cir. 1994); United States v.

Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988); United States v. Gotti, 42 F.Supp. 2d 252,

267 (S.D.N.Y 1999). Therefore, even if this Court finds that the affidavit deficient, the evidence

recovered as a result of the order authorizing the interception should not be suppressed if the

agents relied upon the order in good faith. 

F. The Delays in Sealing the Recordings Do Not Justify Suppression.

The defendant next argues that the electronic communications intercepted as a result of

the Title III intercepts should be suppressed because the recordings were not sealed immediately

after the final authorization order expired, as required by 18 U.S.C. § 2518(8)(a), which requires

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 19 of 39
20

that recordings of “the contents of any wire, oral, or electronic communication” be sealed 

“[i]mmediately upon the expiration of the period of the order, or extensions thereof . . .” under

the direction of the judge issuing the order. Because the manner in which the recordings were

sealed was consistent with Section 2518(8)(a) as interpreted by the Third Circuit, his claim

should be denied. 

The interceptions of the electronic communications at issue were conducted from January

12, 2005 to February 10, 2005, and from March 3, 2005 to April 1, 2005. The recordings

obtained pursuant to the initial authorization were sealed on February 17, 2005; the recordings

obtained pursuant to the first (and only) extension of that authorization were sealed on April 11,

2005. 

One of the more recent and comprehensive discussions of the sealing requirement of

2518(8)(a) by the Third Circuit was set forth in United States v. Quintero, 38 F.3d 1317 (3d Cir.

1994). The defendants in Quintero challenged the district court's refusal to suppress certain

telephone recordings obtained by a Title III wiretap, asserting that the tapes were not sealed

immediately after the final authorization order expired, as required by statute, and that the

government failed to offer a satisfactory explanation for the delay in sealing. 

The electronic surveillance in question was conducted pursuant to three thirty-day

authorizations: 1) the first authorization expired on August 30, 1991 (“August tapes”) - the tapes

were sealed 11 days later, on September 10, 1991; 2) the authorization for the first extension

expired on September 29, 1991 (“September tapes”) - the tapes were sealed 5 days later, on

October 5, 1991 ( the emergency judge); and 3) the authorization for the second and final

extension expired on October 29, 1991 (“October tapes”) - the tapes were sealed 20 days later, on

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 20 of 39
21

November 18, 1991. Id. at 1321-22. The Third Circuit first determined that because the

extensions were a continuation of the initial interception authorization, the tapes from the initial

authorization and first extension did not have to be sealed until the termination of the entire

wiretap on October 29, 1991. Because both were sealed before the wiretap terminated on

October 29, 1991, the Third Circuit held that the district court properly admitted the tapes

obtained by both authorizations. Id. at 1326. 

The court of appeals held that the October tapes should have been suppressed because the

government failed to supply a satisfactory explanation for the 20-day sealing delay, which the

government conceded was not “as soon as administratively practical,” the interpretation of

“immediately” adopted by the Third Circuit for the purposes of Section 2518(8)(a). Id. at 1330.

The Quintero court applied the test forth in United States v. Ojeda Rios, 495 U.S. 257,

260 (1990), in which the Supreme Court held that § 2518(8)(a) contains “an explicit exclusionary

remedy for noncompliance with the sealing requirement,” and determined that, in the absence of

a timely sealing, the government must “explain not only why a delay occurred but also why it is

excusable.” Id. at 265. The Third Circuit noted that it had twice previously evaluated whether

the government's delay in sealing tapes could be excused based on a “satisfactory explanation”

provided by the government in United States v. Vastola, 989 F.2d 1318 (3d Cir.1993) (issue was

whether the prosecutor's mistaken view of the law was objectively reasonable), and United States

v. Carson, 969 F.2d 1480 (3d Cir.1992). 

In Carson, the court of appeals held that there were two kinds of justifiable government

delays under Section 2518: 1) “relatively short delays necessitated by the process required to

comply with the provisions of the Act,” and 2) “longer delays attributable to non-administrative,

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 21 of 39
22

objectively reasonable causes like understandable mistakes of law and interference from

unexpected, extrinsic events beyond the government's control.” Id. at 1326. See Carson, 969

F.2d at 1488. The Quintero court rejected the government’s explanation that a reasonable

explanation for the 20-day delay was the trial schedules of the Assistant United States Attorneys

involved in the case, concluding that “a prosecutor's routine duties, hectic as that routine may be,

are not a satisfactory explanation for failing to comply with the immediacy requirement of §

2518(8)(a).” Id. at 1330. 

1. The Recordings Obtained as a Result of the First Authorization Were

Sealed As Soon as Administratively Practicable and Are Admissible. 

The initial authorization ended on February 10, 2005; the recordings were sealed

on February 17, 2005. The gap of 7 days between the expiration of the authorization and sealing

of the recordings is not outside of the sealing requirement of Section 2518(8)(a) as interpreted by

the Third Circuit. See United States v. Carson, 969 F2d at 1487-88. In Carson, the Third Circuit

has construed "immediately" in section 2518(8)(a) to mean that recordings must be sealed "as

soon as administratively practical." 969 F.2d at 1487. In Carson, the Third Circuit held that

sealing conducted after a delay of 6 days was "as soon as administratively practical" for the

purposes of Section 2518(8)(a) and thus required no additional justification or explanation. 969

F.2d at 1498. The Carson court noted that the intervening weekend was a factor. Id. The panel

in Carson also found that a 14-day sealing delay was not "immediate," but was excused by the

prosecutor's reasonable mistake of law concerning the limits on (and consequences of) delay,

based on the fact that Ojeda Rios had not yet been decided. Id. at 1492-93. The court of appeals

also opined that a 10-day sealing delay would not often qualify as "as soon as administratively

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 22 of 39
23

practical." Id. at 1490. The district court below had simply assumed that a 10-day delay was not

immediate and required an explanation. Id. at 1493. The Third Circuit remanded the case to the

district court to decide this question. Id. at 1496. Under this standard, the 7-day delay in this

case (which included one weekend) in sealing the recordings obtained by the initial authorization

can reasonably be characterized as sealed "as soon as administratively practical," since it is only

1 day longer than the 6-day delay that was the subject of one of the holdings of Carson. See

United States v. Quintero, 38 F.3d at 1329 (court declined to determine whether a 7-day delay

would be acceptable, also noting that the length of the dely is a factor in considering whether the

explanation for the delay is satisfactory). 

2. The Recordings Made Pursuant to the First Authorization Are

Admissible Because The Second Authorization Was an Extension of

the First and the Recordings Made Pursuant to the First

Authorization Were Sealed Before Expiration of the Second

Authorization. 

Section 2518(8)(a) of Title III does not require that the recordings to be sealed

immediately after the expiration of each 30-day period; recordings from an original order need

only be sealed upon the termination of the last extension of that order. 18 U.S.C. § 2518(8)(a). 

See United States v. Quintero, 38 F.3d at 1326; United States v. Carson, 969 F2d at 1487-88. 

The "second order need not be entered before the expiration of the first in order to qualify as an

extension," provided the subject, location and criminal subject matter are the same, and “the new

authorization was obtained a soon as administratively practical or any delay is satisfactorily

explained." Id. at 1488. Delays in obtaining an extension can be justified by the administrative

process of applying for an extension, and other events, including "understandable mistakes of

law" and events beyond the government's control. Id. Gaps between orders may justifiably be

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 23 of 39
The government does not concede that the two additional weekends between

4

February 10 and March 3 should not be deducted, a question left open in Quintero, 38 F.3d at

1327 n.7. 

24

longer than delays in sealing because "more time is needed to secure an extension than to obtain

the sealing order." Id. at 1489. The Third Circuit in Carson held that a gap of 17 days between

the expiration of one authorization and the start of the next was "unduly long" absent extenuating

circumstances. Id. 

In the instant case, the first intercept order expired on February 10, 2005; the second

order was issued on March 3, 2005. Even deducting at least one weekend, as explicitly permitted

in Quintero, as well as one day for President’s Day, results in a 17-day delay. Thus, under 4

Carson, the government would arguably be required to provide a reasonable explanation for the

delay, which could include the requirement to seek review and approval from Justice officials in

Washington or the emergence of probable cause to continue an interception only near the end of

the initial 30-day period. See id. at 1490 & n.4. To the extent that it is necessary, the

government is prepared to present evidence concerning the reasons for the delay. See United

States v. Plescia, 48 F.3d 1452, 1463 (7th Cir. 1995)(court held that government’s explanation

for 20-day delay between periods of interception was reasonable “as necessary to draft the Title

III surveillance request affidavit and to get the request processed by the federal bureaucracy").

3. The Eleven-Day Delay in Sealing in the Recordings Obtained as a

Result of the First Extension of the Initial Authorization Was

Reasonable; Therefore the Recordings Are Admissible.

The second sealing order was not entered until April 11, 2005; the authorization expired

on April 1, 2005. Because the 11-day delay is closer to the 14-day delay in Carson that required

an explanation, as opposed to the 6-day period that did not, the government is prepared, if

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 24 of 39
The majority of the e-mails (and attachments) that were obtained by the 5

Title III interception were also obtained via search warrants that were obtained after the initial

interception and during and after the first extension and from the defendants’ computers that

were recovered during the arrests of April 19, 2005. Even if the Court declines to accept the

government’s explanation for the delay in sealing the recordings obtained during the first

extension as reasonable, the e-mails obtained by search warrants that were based, in part, on

information obtained as a result of the Title III interception, would not necessarily be suppressed

under Section 2518(8)(a). The suppression provision of Section 2518(8)(a) refers specifically to

"the use or disclosure of the contents of any wire, oral, or electronic communication or evidence

derived therefrom under subsection (3) of section 2517." Section 2517 defines the uses to which

law enforcement officers can use the contents of a Title III interception or evidence derived

therefrom as follows: 1) “disclose such contents to another investigative or law enforcement

officer to the extent that such disclosure is appropriate to the proper performance of the official

duties of the officer making or receiving the disclosure; 2) “use such contents to the extent such

use is appropriate to the proper performance of his official duties;”or 3) “disclose the contents of

that communication or such derivative evidence while giving testimony under oath or affirmation

in any proceeding held under the authority of the United States or of any State or political

subdivision thereof.” 18 U.S.C. §§ 2518(8)(a)(1) - (3). Because Section 2518(8)(a) refers

specifically to Section 2517(3), and not to 2517 generally, the statutory suppression remedy

under Section 2518(8)(a) appears to be limited to the use of recordings or transcripts at trial. To

hold otherwise would effectively bar the disclosure and use in the course of an investigation as

authorized under 2517(1) and (2), which are expressly excluded from the reach of 2518(8)(a). 

The Second Circuit, the only federal appeals court to address this question, has adopted this

position. United States v. Donlan, 825 F.2d 653, 655-57 (2d Cir 1987) (sealing delay does not

require the exclusion at trial of evidence, not mentioned in intercepted conversations, obtained

when officers make a stop and search on the basis of such conversations). The Third Circuit has

acknowledged but declined to rule on this issue in two later cases. See United States v. Carson,

969 F.2d 1480, 1500 (3d Cir. 1992); United States v. Vastola, 915 F.2d 865, 876 n.19 (3d Cir.

1990). 

25

necessary, to present testimony pertaining to a reasonable explanation for the delay. 

5

G. The Defendant Has Not Shown that There Are False Statements in the

Sealing Application and Orders 

The defendant alleges that the sealing application and order contained a typographical

error concerning the notification requirement - Section 2518(d) instead of 2518(8)(d) - and then

states that the error was unlawful. This argument does not merit further discussion. Similarly,

the allegedly false statement by the AUSA in the sealing application that 20 individuals were

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 25 of 39
If the defendant does so, the court must hold a hearing. At such hearing, the 6

defendant bears the burden of proving, by a preponderance of the evidence, that the allegations

regarding the false statements are true. Id.. at 156. Under Franks, however, even if the Court

finds that the affiant made an intentional or reckless omission, suppression is not appropriate

unless the defendant also proves that the omitted information, if included, would have made a

difference to the probable cause determination. Id. at 171-72.

26

charged was correct - 17 in the instant case and 3 in the case of U.S. v. Andrew Shackleton, et

al., Cr. No. 05-194, which charged the defendants with conspiring with Ahkil Bansal and the

other supplier defendants. 

H. The Defendant Has Not Set Forth Any Other Legitimate Basis For

Challenging the Admissibility Suppression of the Electronic Evidence 

The defendant presents a rambling discussion of various aspects of electronic surveillance

on pages 20 - 35 of his motion. As discussed in this and prior motion responses, most of the

emails and attachments that will be presented in this case were obtained by search warrants, Title

III interceptions, and from the defendant’s computers. The only portion of the motion from

pages 20-35 that merits any response is the defendant’s allegations of false statements in the

affidavit. Most of the examples given by the defendant reflect, at best, inconsistencies. Any

allegations of false statements must be evaluated in light of Franks v. Delaware, 438 U.S. 154,

155-56 (1978), in which the Supreme Court established a two-step procedure to be followed

when a defendant makes a claim that a search warrant affidavit contains a false statement or

material omission. First, the defendant must make a substantial preliminary showing that the

affidavit contains an intentional or reckless falsehood or omission. Id. A defendant must come 6

forward with "allegations of deliberate falsehood or of reckless disregard for the truth, and those

allegations must be accompanied by an offer of proof." Id. at 171. See United States v. Jackson,

65 F.3d 631, 635 (7th Cir 1995) (Franks applies to wiretap affidavits), vacated in part on other

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 26 of 39
 Defendant Bansal also appears to assert that the fact that in its compliance with the 7

Wiretap Order, MSN Hotmail made a mirror or “clone” account of the defendant’s account for

the government somehow undermines the authenticity of what the government acquired. The

government’s evidence will include testimony about the process for “cloning” the defendant’s

account which will prove the authenticity of the electronic evidence. This evidence will show

that the “cloning” process produced a perfect copy of the e-mail messages. Under Rule 1003, a

duplicate is admissible to the same extent as the original, unless there is a genuine question about

the authenticity of the original. Fed. R. Evid. 1003. The copy can be authenticated by showing

that the process used to produce it produces an accurate result. Fed. R. Evid. 901(b)(10). Thus,

by showing that the cloning process produced an accurate copy, the government will authenticate

the clone or duplicate. 

27

grounds on rehearing, 74 F.3d 751 (7th Cir 1996). The defendant has failed to do so, therefore

his allegations should be rejected. 

I. The E-mails Which the Government Will Introduce As Evidence Will Be

Authenticated.

In “Part IV(D)” of his pro se motion, defendant Bansal argues that the “emails presented

by government as ‘evidence’ are inadmissible in the Court,” and then, invoking various

principles governing the authentication and admission of evidence, seems to set forth his belief

that the government will be unable to prove that he sent the emails which were obtained from his

computer and his email accounts. In this regard, he is sadly mistaken, as the government will be

able to authenticate the electronic evidence, and will seek its admission through a number of

accepted bases.7

The admission of computer records generally raises two distinct issues. First, the

government must establish the authenticity of all computer records by providing "evidence

sufficient to support a finding that the matter in question is what its proponent claims." Fed. R.

Evid. 901(a). Second, if the computer records are computer-stored records that contain human

statements, the government must show that those human statements are not inadmissible hearsay.

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 27 of 39
28

At the trial in this case, the government will establish both the authenticity and admissibility of

the electronic evidence which it seeks to introduce. 

1. Authentication

Before a party may move for admission of a computer record or any evidence, the

proponent must show that it is authentic. That is, the party must offer evidence "sufficient to

support a finding that the [computer record or other evidence] in question is what its proponent

claims." Fed. R. Evid. 901(a). “All that is required is a foundation from which the fact finder

could legitimately infer that the evidence is what its proponent claims it to be.” In re: Japanese

Electronic Products, 723 F.2d 238, 285 (3d Cir. 1983), rev'd on other grounds, Matsushita

Electric Industrial Co., Ltd., v. Zenith Radio Corporation, 475 U.S. 574 (1986). This is a prima

facie showing only and the evidence from which this finding is made must itself be admissible

(in contrast to rulings under Fed. R. Evid. 104(a)). Once a prima facie showing has been made, if

authenticity is disputed, the dispute is to be resolved by the jury. Id. The standard for

authenticating computer records is the same for authenticating other records. The degree of

authentication does not vary simply because a record happens to be (or has been at one point) in

electronic form. See United States v. Vela, 673 F.2d 86, 90 (5th Cir. 1982); United States v.

DeGeorgia, 420 F.2d 889, 893 n.11 (9th Cir. 1969). But see United States v. Scholle, 553 F.2d

1109, 1125 (8th Cir. 1977) (stating in dicta that "the complex nature of computer storage calls for

a more comprehensive foundation"). For example, witnesses who testify to the authenticity of

computer records need not have special qualifications. The witness does not need to have

programmed the computer himself, or even need to understand the maintenance and technical

operation of the computer. See United States v. Salgado, 250 F.3d 438, 453 (6th Cir. 2001);

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 28 of 39
29

United States v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) (citing cases). Instead, the witness

simply must have first-hand knowledge of the relevant facts to which she testifies. See generally

United States v. Whitaker, 127 F.3d 595, 601 (7th Cir. 1997) (FBI agent who was present when

the defendant's computer was seized can authenticate seized files); United States v. Miller, 771

F.2d 1219, 1237 (9th Cir. 1985) (telephone company billing supervisor can authenticate phone

company records); Moore, 923 F.2d at 915 (head of bank's consumer loan department can

authenticate computerized loan data). 

In this case, defendant Bansal seems to be challenging the authenticity of computer-stored

records by questioning the identity of their author. The evidence in this case, however, will

include overwhelming circumstantial evidence of defendant Bansal’s authorship of his emails. 

For example, with respect to the MSN Hotmail accounts, the government’s evidence will

include, among other things, the facts that: both accounts were established by the defendant, who

gave his address as the address which will be shown to be the defendant’s; the defendant was

listed as the user of one of the accounts and that his father and co-defendant, Brij Bansal, was

listed as user for the other account; extra storage on the accounts was paid for by the defendant

with a Visa credit card; the same Visa credit card which was used to pay the accounts was taken

from defendant at the time of his arrest; the defendant consistently signed the emails with his

name; the defendant admitted to law enforcement agents after his arrest that he used both of the

hotmail accounts to run his illegal drug distribution operation; the defendant repeatedly provided

the hotmail account as his email address; and files taken from the defendant’s computer, compact

disks and jump drives (all recovered from the defendant’s home) have e-mails and spreadsheets

that match ones obtained by the government through the wiretap or search warrants. Such

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 29 of 39
 When a computer record contains only computer-generated data untouched by human 8

hands, however, the record cannot contain hearsay. Fed. R. Evid. 801(c) requires that hearsay be

a “statement.” Rule 801(a) defines a “statement” as an oral or written assertion of a person or

noverbal conduct of a person, if it is intended by the person as an assertion. To the extent that

the records offered are generated solely by a computer (such as computer logs), they are not

statements because they are not made by a person. In such cases, the government must establish

the authenticity of the record, but does not need to establish that a hearsay exception applies for

the records to be admissible in court. See State v. Armstead, 432 So.2d 837, 840 (La. 1983). See

also People v. Holowko, 486 N.E.2d 877, 878-79 (Ill. 1985) (automated trap and trace records);

United States v. Duncan, 30 M.J. 1284, 1287-89 (N-M.C.M.R. 1990) (computerized records of

ATM transactions); 2 J. Strong, McCormick on Evidence § 294, at 286 (4th ed.1992); Richard O.

Lempert & Stephen A. Saltzburg, A Modern Approach to Evidence 370 (2d ed. 1983). 

30

evidence will certainly exceed the standard prima facie showing and will provide ample

authentication of the electronic evidence. See United States v. Siddiqui, 235 F.3d 1318, 1322-23

(11th Cir. 2000) (e-mail messages were properly authenticated where messages included

defendant's e-mail address, defendant's nickname, and where defendant followed up messages

with phone calls); see also United States v. Simpson, 152 F.3d 1241, 1250 (10th Cir.

1998)(upholding admission of printout of an Internet chat conversation between undercover

agent and defendant when circumstantial evidence showed that name used in chat room was alias

of the defendant); United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000).

2. Admissibility

When a computer record contains the assertions of a person, whether or not processed by

a computer, and is offered to prove the truth of the matter asserted, the record may contain

hearsay. Of course, admissions by a party-opponent and statements made by co-conspirators of 8

a party and during the course and in furtherance of the conspiracy are defined as “not hearsay” by

the Federal Rules of Evidence. Fed. R. Evid. 801(d)(2). Furthermore, well-established

exceptions to the rule against hearsay existence, including the exception which permits the

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 30 of 39
31

admission of business records, Fed. R. Evid. 803(6) and other statements which have

circumstantial guarantees of trustworthiness equivalent to the hearsay exceptions, Fed. R. Evid.

807, are set forth in the Federal Rules of Evidence. In this case, the government will meet the

legal requirements for admissibility of all of the electronic evidence it will introduce. 

J. The Volume of Emails Is Not a Grounds for Excluding Them. 

In his final argument, defendant Bansal contends that “most of” the “thousands of emails

and hundreds of spreadsheets” which the government “wishes to present” are “irrelevant in

context of the case,” and that the “sheer number of irrelevant emails” will “create a risk of unfair

prejudice, confusion of issues, misleading the jury, or cause unde delay, waste of time, or

needless presentation of cumulative evidence,” and moves the Court to exclude “these emails.” 

All of the electronic evidence that the government intends to present was sent in furtherance of

the conspiracies charged in the indictment. While a substantial amount of electronic evidence

will certainly be moved in by the government at trial, not all of it will be displayed to the jury and

much of it will be presented in summary fashion. The defendant is obviously free to oppose the 

admission of any specified communication; however, his motion as stated should be denied. 

K. The Government’s Use of A Search Warrant to Obtain Emails Was Lawful

and Appropriate, and Even if There Were Errors, Suppression is Not

Available. 

Defendant Melao, in his pro se suppression motion (Docket No. 280) makes a number of

assertions that appear to be trying to advance arguments similar to those advanced by defendant

Bansal, and which are responded to above. Defendant advances some additional arguments,

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 31 of 39
 Melao’s arguments that federal law enforcement agents are legally distinct from, and 9

not included within, the “government entity” referenced in the statute as able to require

disclosure from an electronic communication service, see Melao pro se Br. at pp. c-1 to c-7, and

that an order to compel an electronic communication service provider to “disclose” information

is somehow legally distinct from legal authority to “acquire or seize” the information, see Melao

pro se Br. at pp. 8-9, do not warrant discussion. 18 U.S.C. § 2703. Needless to say,

“government entities” can act only through their agents and representatives, and Congress clearly

contemplated that federal law enforcement agents would be among the persons allowed to apply

for search warrants. See 18 U.S.C. § 2703(g), providing that the “officer” need not be present for

the service or execution of the search warrant. Similarly, in the context of search warrants for the

contents of electronic communications, “disclosure” of the “contents” has no separable meaning

from a seizure of the electronic data which comprises the communications. The defendant’s

requests for suppression and “punishment” of the agents must be rejected. 

32

however, none of which presents any valid basis for suppression. Defendant Bansal argues, 9

somewhat opaquely, that the government’s use of a search warrant under 18 U.S.C. §2703(a) to

obtain the email messages and associated records stored in an email account was “unlawful as

per [the Stored Communications Act].” Melao pro se Mot. at 7. This claim is baseless, and

should be rejected.

At the outset, defendant Melao is correct that e-mail received by a recipient's service

provider but not yet accessed by the recipient is in “electronic storage.” See Orin S. Kerr, A

User’s Guide to the Stored Communications Act – and a Legislator’s Guide to Fixing It, 72 Geo.

Wash. L. Rev. 1208, 1217 (2004) (“email is in ‘electronic storage’ awaiting [the user’s] retrieval

of the message” from the service provider). Further, defendant Melao correctly notes that law

enforcement must, as a general matter, obtain a search warrant in order to compel an Internet

service provider to disclose such electronic communications in “electronic storage.” See 18

U.S.C. §2703(a).

The defendant does not argue, however, that the government failed to adhere to the

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 32 of 39
 We note that defendant Melao fails to specify which messages received by the 10

government were allegedly not in “electronic storage.” As explained below, however, this defect

is immaterial because the defendant’s underlying legal claim is wrong.

 “[W]hen an e-mail customer leaves a copy of an already-accessed e-mail stored on a 11

server, that copy is no longer [in ‘electronic storage’]: rather, it is just in remote storage like any

other file held by [a ‘remote computing service’].” Kerr at 1217.

33

dictates of section 2703(a); indeed, the government’s use of a valid search warrant forecloses any

such claim. Instead, the defendant asserts that the government also received other stored

messages not in “electronic storage,” and that this receipt somehow violated the Act. He is 10

incorrect, and the motion to suppress should be denied.

Most obviously, defendant Melao fails to note that 18 U.S.C. §2703 provides a

comprehensive mechanism for obtaining any customer record from an Internet service provider

by means of a search warrant. Some content records – for example, unopened email – can only

be obtained via warrant. See 18 U.S.C. §2703(a). There is only one other category of

communications content protected by the Stored Communications Act: communications held by

a provider in its capacity as a “remote computing service.” See 18 U.S.C. §2703(b). This

category comprises any message stored by a service provider after the user has accessed it and

retrieved a copy, such as “opened” email. Critically, Defendant’s argument ignores the fact that 11

such “opened” messages may also be obtained by means of a warrant. See 18 U.S.C.

§2703(b)(1)(A); Kerr at 1220. 

To the extent that defendant Melao argues that non-content records (such as the log files

requested in Paragraph 4 of the Attachment to the warrant) may not be obtained with a warrant,

he is again mistaken. Section 2703(c)(1) explicitly permits the government to compel “a record

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 33 of 39
 Defendant’s corollary argument – that the government violated 18 U.S.C. § 2701 by 12

improperly acquiring the contents of communications – ignores the exception in Section

2701(c)(3), which ratifies the use of the various compulsory mechanisms set out in Section 2703.

34

or other information” other than contents by a wide variety of means, including a search warrant. 

See 18 U.S.C. § 2703(c)(1)(A).12

Moreover, assuming that any violation of the Stored Electronic Communications Act was

committed, there is no suppression remedy for such a violation. See 18 U.S.C. §§ 2707 & 2708; 

United States v. Smith, 15 F.3d 1051, 1056 (9th Cir. 1998) (“the Stored Communications Act

[chap. 121] expressly rules out exclusion as a remedy”); United States v. Charles, 1998 WL

204696 at *21, No. Crim. 97-10107-PBS (D. Mass. Jan. 13, 1998) (“ECPA provides only a civil

remedy for a violation of § 2703"), aff’d, 213 F.3d 10 (1st Cir. 2000); United States v. Reyes,

922 F. Supp. 818, 837-38 (S.D.N.Y. 1996) (“Exclusion of the evidence is not an available

remedy for this violation of the ECPA . . . . The remedy for violation of Title II of the ECPA [i.e.,

chap. 121] lies in a civil action.”). For these reasons, defendant Melao’s motion to suppress

should be denied.

L. Neither Defendant Has Not Set Forth Any Other Basis For Suppression of

the E-Mails Obtained by Search Warrant. 

The defendants make a number of additional allegations in an attempt to suppress the

emails obtained by search warrants. See Bansal motion #309 at pages 15-37; Melao motion #

280 at pages c-1 to c-7, 15-37. The allegations are identical; both recite a number of definitions

in support of his arguments that the affiants were not authorized to apply or execute the warrants. 

Melao motion at c-1 to c-7; Bansal Motion to Amend (Docket No. 310). These arguments are

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 34 of 39
35

without merit and should be denied. 

They also allege that the warrants did not contain sufficient probable cause, without

identifying any specific warrant or affidavit. These arguments, to the extent that they merit a

response, are without merit and should be rejected. The affidavits, which are attached hereto

with the warrants as Exhibit 2, set forth sufficient facts which established, to the magistrate

judge’s satisfaction, probable cause to believe that the defendants’ email accounts contained

evidence of various violations of the federal law. 

A magistrate judge may find probable cause when, viewing the totality of the

circumstances, "there is a fair probability that contraband or evidence of a crime will be found in

a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). This Court must uphold the

finding if the affidavit on which it was based provided a substantial basis for finding probable

cause. See Id. at 236; United States v. Jones, 994 F.2d 1051, 1054-55 (3d Cir. 1993); United

States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993). The Court need not determine whether

probable cause actually existed, but only whether there was "a 'substantial basis' for finding

probable cause." Jones, 994 F.2d at 1054; Conley, 4 F.3d at 1055, 1057. 

Because of the preference for searches conducted pursuant to warrants, challenges to such

searches generally should be rejected in cases in which the issue of whether probable cause exists

is close. United States v. Whitner, 219 F.3d 289, 299 (3d Cir. 2000). The Fourth Amendment

does not require direct evidence linking the crime to the location to be searched to support the

issuance a search warrant. Probable cause can be established by circumstantial evidence that

establishes a fair probability that evidence of a crime or contraband will be found at the location

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 35 of 39
36

to be searched. United States v. Burton, 288 F.3d 91, 103 (3d Cir. 2000); United States v. Jones,

994 F.2d at 1056. A court "is entitled to draw reasonable inferences about where evidence is

likely to be kept, based on the nature of the evidence and the type of offense." United States v.

Whitner, 219 F.3d 289, 296 (3d Cir. 2000) (quoting United States v. Caicedo, 85 F.3d 1184,

1192 (6th Cir.1996)).

In this case, the affidavits provided ample basis for the reasonable inference that the

defendants were using their email accounts to conduct and further their illegal drug importation

and distribution scheme. The affidavits, read in their entirety, clearly provided a substantial

basis for the magistrates to conclude that there was a fair probability that evidence of

involvement in the illegal scheme then under investigation was likely to be found in the

defendants’ email accounts. This information, particularly in light of the nature and scope of the

scheme at issue and the logical inferences from the rest of the affidavit, provided ample probable

cause to justify a warrant to search the defendants’ email accounts. 

However, even if this Court were to find that there was not sufficient probable cause to

support the issuance of the warrants to search the defendants’ email accounts, the evidence that

was recovered pursuant to the warrants should not be suppressed, because the agents relied on

the warrants in good faith. Evidence seized pursuant to a warrant should not be suppressed

“when an officer executes a search in objectively reasonable reliance on a warrant's authority.” 

United States v. Williams , 3 F.3d 69, 74 (3d Cir. 1993). The purpose of the exclusionary rule is

to deter unlawful police conduct. United States v. Leon, 468 U.S. 897, 906 (1984). Thus, if a

law enforcement officer has obtained a warrant and executed it in good faith, "there is no police

illegality and thus nothing to deter." Id. at 921. The fact that an officer executes a search

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 36 of 39
37

pursuant to a warrant is prima facie evidence of good faith. United States v. Hodge, 246 F.3d

301, 308 (3d Cir. 2001).

The mere existence of a warrant typically suffices to prove that an officer conducted a

search in good faith and justifies application of the good faith exception. Leon , 468 U.S. at 922;

Williams , 3 F.3d at 74. Of course, there are a few situations in which an officer's reliance on a

warrant is not reasonable and will not trigger the exception. These occur when: (1) the judge

issued the warrant in reliance on a deliberately or recklessly false affidavit; (2) the judge

abandoned his judicial role and failed to perform his neutral and detached function; (3) the

warrant was based on an affidavit “so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable;” or (4) the warrant was so facially deficient that it

failed to particularize the place to be searched or the things to be seized. Williams , 3 F.3d at 74

n. 4 (citations omitted).

Plainly, none of these exceptions apply here. The defendants cannot credibly claim that

the good faith exception should not be applied because the warrants were based on an affidavit so

lacking in probable cause that no reasonable officer could rely on any one of them as the basis for

a search warrant. To determine whether the good faith exception applies in the face of this

challenge, the Court must determine "whether a reasonably well trained officer would have

known that the search was illegal despite the magistrate's authorization." United States v. Loy,

191 F.3d 360, 367 (3d Cir. 1999) (citations omitted). See also United States v. $ 92,422.57, 307

F.3d 137, 145-46 (3d Cir. 2002). Based on the record and the affidavits in this case, the agents’

reliance on the warrants was objectively reasonable, and the evidence obtained pursuant to these

warrants should not be suppressed. 

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 37 of 39
38

Furthermore, the affidavits sufficiently identified the suspected violations and the items to

be seized. The execution of the warrants was done in conformity with the law. The defendants

have not set forth any facts that indicate otherwise. 

Many of the arguments alleged by the defendants in this section are alleged and addressed

elsewhere. The nature of most of the defendants’ allegations is illustrated by their contention

that the bad faith of DEA Special Agent Eric Russ was exemplified by his deliberate submission

of eight search warrants to magistrate judges on Fridays, knowing that he could get the warrants

more easily that way. Bansal motion at 28. Because these allegations are without any factual or

legal basis, they should be rejected. 

WHEREFORE, the United States respectfully requests that this Court enter an order

denying the pro se motions of defendant Akhil Bansal at Docket Nos. 308, 309 and 310 and

defendant Matthew Melao at Docket No. 280 for the suppression of the electronic evidence

obtained by law enforcement in this case.

Respectfully submitted,

PATRICK L. MEEHAN

United States Attorney

 

FRANK R. COSTELLO, JR. 

BEA L. WITZLEBEN

Assistant United States Attorneys

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 38 of 39
CERTIFICATE OF SERVICE

I certify that on this the day of 2006, I caused this pleading to be electronically filed , 

and caused a copy of this pleading to be served upon the following by first class mail:

Akhil Bansal, Pro Se

USM# 59593-066

Federal Detention Center

700 Arch Street

Philadelphia, PA 19106

Richard Harris, Esquire

El-Shabazz & Harris LLC

100 S. Broad Street, Suite 1525

Philadelphia, PA 19110

Standby Counsel for Akhil Bansal

J. Michael Farrell, Esquire

718 Arch Street, Suite 402-S

Philadelphia, PA 19106

Counsel for Sanjeev Anand Srivastav

Steven G. Laver, Esquire

1515 Market Street, Suite 1915

Philadelphia, PA 19102

Counsel for Frederick Mullinix

 a/k/a “Tom Peters”

Matthew Melao, Pro Se

USM# 33230-177

Federal Detention Center

700 Arch Street Philadelphia, PA 19106

Henry S. Hilles, III, Esquire

509 Swede Street

Norristown, PA 19401

Standby Counsel 

for Matthew Joseph Melao

Anne M. Dixon, Esquire

Stephen R. LaCheen & Associates

1429 Walnut Street, Suite 1301

Philadelphia, PA 19102

Counsel for Kelly Ann Couchman

a/k/a “Kelly Mullinix”

Robert J. O’Shea, Jr., Esquire

1818 Market Street, Suite 3520

Philadelphia, PA 19103

Counsel for Christopher Geoff Laine

 

FRANK R. COSTELLO, JR. 

BEA L. WITZLEBEN

Assistant United States Attorneys

Case 2:05-cr-00193-PD Document 330 Filed 01/17/06 Page 39 of 39