BILLY J. WILLIAMS, OSB #901366

United States Attorney

District of Oregon

ETHAN D. KNIGHT, OSB #992984

GEOFFREY A. BARROW

CRAIG J. GABRIEL, OSB #012571

Assistant United States Attorneys

ethan.knight@usdoj.gov

geoffrey.barrow@usdoj.gov

craig.gabriel@usdoj.gov

1000 SW Third Ave., Suite 600

Portland, OR 97204-2902

Telephone: (503) 727-1000

Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

UNITED STATES OF AMERICA

v.

AMMON BUNDY, et al.,

Defendants.

3:16-CR-00051-BR

GOVERNMENT’S RESPONSE TO

DEFENDANT RYAN PAYNE’S

MOTION TO SUPPRESS

FACEBOOK EVIDENCE (#712)

The United States of America, by Billy J. Williams, United States Attorney for the

District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel,

Assistant United States Attorneys, hereby responds to Defendant Ryan Payne’s Motion to

Suppress Facebook Evidence (ECF No. 712), filed by defendant Payne on behalf of all

defendants.

I. Government’s Position

Nevada Facebook Warrants: The government does not intend to introduce at trial any

evidence obtained from the District of Nevada’s Facebook warrants, with one exception: the

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government reserves the right to use evidence from the Nevada Facebook warrants to impeach a

defendant at trial, if that defendant’s testimony is inconsistent with the defendant’s prior

statements contained in the evidence obtained from the Facebook warrants.

At this time, after consultation with counsel for Mr. Payne, the parties are not aware of

any evidence the government obtained as fruits of the returns of the Nevada Facebook warrants.

The defense, however, reserves the right to raise the issue anew if any evidence the government

intends to offer at trial is later determined to be fruits of the Nevada Facebook warrants.

The government therefore respectfully recommends that the Court deny defendants’

Motion as to the Nevada Facebook warrants as moot, with leave to renew.

Oregon Facebook Warrant: Because 18 U.S.C. § 2703 authorized Magistrate Judge

Papak to issue a warrant for the seizure of electronically-stored communications in the Northern

District of California, the government respectfully recommends that the Court deny defendants’

Motion as to the Oregon Facebook warrant as meritless.

II. Procedural Background

On April 8, 2016, U.S. Magistrate Judge Paul Papak issued a search and seizure warrant

for 23 Facebook accounts belonging to several defendants in this case. See Defs.’ Sealed

Attach. B to ECF No. 712, at 1. The warrant sought information associated with the 23

Facebook accounts that was “stored at premises owned, maintained, controlled, or operated by

Facebook, a company headquartered in Menlo Park, California.” See Sealed Attach. B, at 3.

Law enforcement timely executed the warrant on April 11, 2016, and Facebook subsequently

provided responsive materials to the government. See Sealed Attach. B, at 2.

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The search and seizure warrant was issued and executed pursuant to Fed. R. Crim. P. 41

and the Electronic Communications Privacy Act. See Sealed Attach. B, at 7 (“The warrant will

be executed under the Electronic Communications Privacy Act, in particular 18 U.S.C.

§ 2703(a), (b)(1)(A), and (c)(1)(A).”); see also Sealed Attach. A to Def. Fry’s Mem. in Support

of Def.’s Mot. to Suppress Evidence (Facebook Accounts), ECF No. 742, at 2,1(“I submit this

affidavit in support of an application for a search warrant under 18 U.S.C. § 2703(a),

2703(b)(1)(A), and 2703(c)(1)(A) to require Facebook, a social networking company

headquartered in Menlo Park, California, to provide information associated with certain

Facebook accounts.”).

III. Legal Argument

Defendants contend the government’s Facebook search warrant violated the jurisdictional

powers of magistrate judges under Fed. R. Crim. P. 41 and 28 U.S.C. § 636(a). According to

defendants’ Motion, “[t]hese authorities allow a magistrate judge to issue a search warrant only

for a location within the judicial district itself, with minor exceptions not applicable to the

present scenario.” (Defs.’ Mot. 3). Defendants’ Motion misses the mark by relying on cases

addressing Networking Investigative Technique (“NIT”) warrants that have absolutely nothing to

do with the standard Facebook warrant issued by Judge Papak in this case.2 As noted above, in

this case, the Oregon Facebook warrant was issued and executed pursuant to Fed. R. Crim. P. 41

1 The government cites to defendant Fry’s sealed attachment because the sealed Attachment B

to defendant Payne’s Motion, ECF No. 712, is missing the application for search warrant and the

first page of the affidavit.

2 NIT warrants allow an investigative agency to plant code (i.e., malware) on a suspect’s

computer. No NIT warrants were issued in this case.

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and 18 U.S.C. § 2703(a). Title 18 U.S.C. § 2703(a) provides in relevant part:

A governmental entity may require the disclosure by a provider of

electronic communication service of the contents of a wire or

electronic communication, that is in electronic storage in an

electronic communications system for one hundred and eighty days

or less, only pursuant to a warrant issued using the procedures

described in the Federal Rules of Criminal Procedure . . . by a court

of competent jurisdiction.

Title 18 U.S.C. § 2711(3)(A)(i) defines the term “court of competent jurisdiction” to

include “any district court (including a magistrate judge of such a court) or any United States

court of appeals that has jurisdiction over the offense being investigated” (emphasis added). In

United States v. Bansal, 663 F.3d 634, 662 (3d Cir. 2011), the Third Circuit addressed the same

claim defendants raise here:

[Defendant] contends that the Pennsylvania Magistrate Judges who

issued the warrants lacked jurisdiction to do so because the warrants

were ultimately executed upon internet service providers in

California. We disagree. The procedures that federal and state

law enforcement officers must follow when compelling disclosure

from network service providers is set forth at 18 U.S.C. § 2703(a).

The version of the statute in effect when these warrants were issued

in 2004 authorized any “court with jurisdiction over the offense

under investigation” to issue a warrant for electronic

communications—even if the warrants were ultimately executed in

another state. See § 2703(a). [Defendant] contends that Rule

41(b), which limits a Magistrate Judge’s jurisdiction to the District

in which he or she sits, trumps § 2703(a). We, along with other

courts to consider the question, reject that contention. E.g., United

States v. Burkos, 543 F.3d 392, 396-398 (7th Cir.2008) (holding that

Rule 41(b) “does not apply to § 2703(a)”). We therefore conclude

that the Pennsylvania Magistrate Judges had authority to issue the

warrants in this case, even though they were ultimately executed in

California.

In United States v. Scully, 108 F. Supp. 3d 59, 79 (E.D.N.Y. 2015), the court thoroughly

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reviewed the case law pertaining to search warrants issued under § 2703(a). There, the court

held that “a federal magistrate judge may issue a search warrant for electronic evidence outside

his or her district under Section 2703(a).” The court continued by finding that “2703(a)

authorizes electronic search warrants by a federal magistrate judge that extend outside his or her

district . . . [b]ecause the plain terms of Section 2703, considered with Rule 41, dictate this

result.” Id. at 83. In an unpublished opinion, In re Search of Yahoo, Inc., No. 07-3194-MB,

2007 WL 1539971 (D. Ariz., May 21, 2007), the court, after a lengthy analysis, reached the same

conclusion—that is, § 2703 authorizes a federal district court located in the district in which the

alleged crime occurred to issue an out-of-district warrant for the seizure of electronically-stored

communications. See also United States v. Kernell, No. 3:08-CR-142, 2010 WL 1408437 (E.D.

Tenn., Apr. 2, 2010); In re Search Warrant, No. 6:05-MC-168-Orl-31JGG, 2005 WL 3844032

(M.D. Fla., Feb. 13, 2006).

Finally, under 28 U.S.C. § 636(a), United States Magistrate Judges have power not only

within the district in which they are appointed, but also “elsewhere as authorized by law.”

Therefore, it is not a violation of the Federal Magistrate Act when a magistrate signs a warrant as

specifically authorized under 18 U.S.C. § 2703(a).

/ / /

/ / /

/ / /

/ / /

IV. Conclusion

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For the reasons set forth above, the government respectfully recommends that the Court

deny defendants’ Motion to Suppress Facebook Evidence as to the Nevada warrants as moot and

as to the Oregon warrant as meritless.

Dated this 29th day of June 2016.

Respectfully submitted,

BILLY J. WILLIAMS

United States Attorney

s/ Craig J. Gabriel

ETHAN D. KNIGHT, OSB #992984

GEOFFREY A. BARROW

CRAIG J. GABRIEL, OSB #012571

Assistant United States Attorneys

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