USA v. Sullivan

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
LEIHINAHINA SULLIVAN,
Defendant.
CR. NO. 17-00104 JMS-KJM
ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANT’S MOTIONS
ALLEGING VIOLATIONS OF THE
ATTORNEY-CLIENT PRIVILEGE,
ECF NOS. 345, 667 & 670
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTIONS ALLEGING VIOLATIONS OF THE
ATTORNEY-CLIENT PRIVILEGE, ECF NOS. 345, 667 & 670
I. INTRODUCTION
Before the court are pro se Defendant Leihinahina Sullivan’s
(“Defendant” or “Sullivan”) “Motion to Dismiss Based on Violation of Attorney
Client Privilege Communication,” ECF No. 345; “Motion for Leave to File This
Motion in Limine to Exclude All Evidence Derived From All ‘Native’ Files,” ECF
No. 667; and “Motion for Leave to File This Motion in Limine Because Non-
Discoverable Attorney-Client Priviledge (sic) & Defense Work Product
Information was Unconstitutionally Disclosed on Discoverable Disc 13, 16, 18,
22,” ECF No. 670. Defendant argues, among other things, that the United States
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seized various documents protected by the attorney-client relationship and that this
intrusion violated her Sixth and Fourteenth Amendment1 rights.
Essentially, Defendant’s arguments turn on the allegedly deficient
“taint team” process2 implemented by the United States in relation to the execution
of two search warrants. As discussed below, although the court finds that the taint
team process was clearly lacking, resulting in a small number of privileged
documents being disclosed by the taint team to the prosecution team, this lapse
does not amount to any violation of Defendant’s constitutional rights and does not
warrant the ultimate sanction sought by Sullivan—dismissal of the Fourth
Superseding Indictment (“FSI”). The court does find, however, that a lesser
sanction is both appropriate and necessary. Accordingly, the motions are
GRANTED to the extent Defendant seeks to suppress all the “HEIC” files obtained
from the seizure and search of Defendant’s iCloud account records, but the
motions are otherwise DENIED.
1 The court liberally construes Sullivan’s Fourteenth Amendment due process claim as
one brought under the Fifth Amendment.
2 As described in more detail below, a “taint team,” sometimes called a “filter team,”
consists of individuals from an investigating agency (in this case, the Internal Revenue Service
Criminal Investigation Division (“IRS-CI”)) and the United States Attorney’s Office, who are
walled off from the “prosecution team.” The taint team is responsible for reviewing seized
documents for potentially privileged material, and thus insuring that the prosecution team is not
provided with any privileged material. See, e.g., In re Grand Jury Subpoena, JK-15-029, 828
F.3d 1083, 1087 (9th Cir. 2016).
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II. BACKGROUND
Defendant raises two claims related to the taint team process
employed by the United States during the execution of two separate search
warrants. First, she claims that the United States seized privileged documents,
which she labeled in a folder titled “Lexus Nexus,” and these documents were
listed on an inventory of seized items as non-privileged documents. Second,
Defendant alleges that the United States seized images that included photographs
of defense strategy boards protected under the attorney-client privilege and/or the
work-product doctrine. The court describes the background to each allegation as
follows.
A. 	“Lexus Nexus” Documents3
On March 21, 2019, the United States executed a search warrant on
Defendant’s residence. See ECF No. 625-1 at PageID #7134 (Rogers Aff. ¶ 3).
Defendant then filed a November 19, 2019 “Motion to Dismiss Based on Violation
of Attorney Client Privilege Communication,” ECF No. 345, making various
3 The inventory label states “Lexus Nexus docs.,” which appears misspelled. It is
undisputed for the purposes here that this was a reference to “LexisNexis,” a company providing
legal research tools, cases, and legal news, among other things.
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claims that the agents violated her attorney-client privilege during the execution of
the warrant.4
A hearing was held on January 23, 2020. IRS-CI Special Agent Mark
Macpherson (“SA MacPherson”), the lead agent overseeing the investigation, was
asked about the search’s inventory list that included a reference to the seizure of
“Lexus Nexus docs,” which Defendant claims were protected by an attorney-client
or work-product privilege. SA MacPherson was unable to recall the contents of
the “Lexus Nexus” documents.
Based on the uncertainty of the status of the “Lexus Nexus”
documents, on January 24, 2020, the court ordered the United States to produce the
purported “Lexus Nexus” documents for an in-camera review. ECF No. 610.
Although the United States provided other seized documents, it could not locate
any “Lexus Nexus” documents as listed on the inventory. ECF No. 611; see also
ECF No. 614 (sealed). This response then led to further briefing and a March 4,
2020 evidentiary hearing.
4 The original indictment against Sullivan was returned by the grand jury on February
15, 2017. ECF No. 1. Prior to the execution of the March 21, 2019 search warrant, Sullivan had
been represented by privately-retained counsel William Harrison, followed by Assistant Federal
Public Defender Craig Jerome. At the time the warrant was executed, Sullivan was represented
by Criminal Justice Act counsel Megan Kau. She is now pro se.
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The discovery that the United States possessed no “Lexus Nexus”
documents then prompted further briefing and a March 4, 2020 continued
evidentiary hearing. The following evidence was adduced from various
declarations and the January 23 and March 4 evidentiary hearings.
Because Defendant was represented by counsel in the ongoing
prosecution against her when the search was executed, the United States initiated a
“taint team” process to preclude privileged or potentially privileged materials
(under either the attorney-client privilege or work-product doctrine) from reaching
the “prosecution team” (i.e., the agents and the prosecutors assigned to the actual
investigation and prosecution of Defendant). Accordingly, the United States
created a “taint team,” consisting of agents, Assistant United States Attorneys
(“AUSAs”), and paralegals, who were “walled off” and separated from the
prosecution team.5
Two taint team agents were on site at Defendant’s residence to
conduct an initial taint review of all seized materials—IRS-CI Special Agents
Clement Rogers (“SA Rogers”) and Mark Pahnke (“SA Pahnke”). During the
5 The use of this specific “taint team” process was set forth in the affidavit in support of
the search warrant and approved by a United States magistrate judge. See Mag. No. 19-00267
RT, ECF No. 1 at PageID #19.
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January 23, 2020 hearing, SA MacPherson6 explained that the taint team agents
were tasked with sorting and placing the seized material into three boxes: a “white
box,” which contained materials that were clearly not privileged; a “gray box,”
which contained materials that were questionable as to whether they were
privileged; and a “black box,” which contained materials that were clearly
privileged. ECF No. 637 at PageID #7271-72.7
SA Rogers collected and sorted various material, including documents
placed into a “white box” evidence bag titled “Control #6.”8 ECF No. 625-1 at
PageID #7135. He handwrote “a general description of the items in [evidence bag]
control #6,” to include “lexus nexus” docs. Id. at PageID #7135. He then provided
the unsealed Control #6 bag to SA Pahnke, who
ensur[ed] that each item was responsive to [the list of
items to be seized] and . . . determine[d] if there were any
items that could potentially be protected by attorney-
client privilege. If [he] determined that there were any
non-responsive items or items that could be potentially
protected by attorney-client privilege, then [SA Pahnke]
removed those items from the unsealed bag before
6 To be clear, SA MacPherson was part of the prosecution team and oversaw the March
21, 2019 execution of the search warrant. However, SA MacPherson stood outside the premises
the entire time the taint agents were reviewing documents and was not a part of the search team
inside the house. See ECF No. 637 at PageID #7194-95.
7 Members of the taint team were provided a specific “Filter Team Instruction.” See e.g.,
ECF No. 693-1.
8 The inventory is broken down into separate “Control” numbers. “Control #6” lists the
contents of its envelope as: “State tax Docs., Lexis Nexus Docs., 10 copies, W-2, and College
Docs.” ECF No. 614-1 at PageID #6865.
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officially sealing the bag. [He] would [then] initial the
hand written (sic) tag.
ECF No. 625-2 at PageID #7139. SA Pahnke had no “specific memory of
reviewing items resembling ‘lexus nexus’ documents in control #6.” Id. at PageID
#7140.
After SA Pahnke sealed the bags containing “responsive documents
and non-privileged information, including items in control #6,” he “provided and
transferred [evidence bag Control #6] to the custody and control of . . . [SA] Mark
MacPherson. Any items that were identified to contain potentially privileged
information (i.e., “gray box” material) were sealed and sent to Portland, Oregon,
and were not given to [SA] MacPherson.” Id. Items determined to be privileged
(i.e., “black box” material) were left at Defendant’s residence. Id.
SA MacPherson explained that upon receiving the non-privileged
“white box” documents,9 including evidence bag Control #6,10 he unsealed the bag,
9 There was inconsistent testimony as to when SA MacPherson received the non-
privileged documents. At the January 23, 2020 hearing, SA MacPherson testified that the non-
privileged documents were mailed to him on Oahu. ECF No. 637 at PageID #7624. At the
continued March 4, 2020 hearing, he testified that upon having his recollection refreshed by SA
Pahnke, he recalled receiving the non-privileged documents (including control item # 6) in Kauai
immediately after the search was conducted, which he kept secured in his hotel room, until he
brought the documents back to Oahu for processing. ECF No. 738 at PageID #7980-82, 7992.
Although this discrepancy is not particularly relevant to the court’s analysis, the court finds the
March 4, 2020 explanation to be credible.
10 SA MacPherson also testified that he received three other “white” box evidence
bags—Control Numbers 1, 7, and 8. ECF No. 738 at PageID #7982. The contents of these bags
are not at issue.
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scanned each document, and forwarded these scanned copies to the prosecution
team. ECF No. 738 at PageID #7982. He further testified that although he
reviewed the description of each bag generally, e.g., to determine if a thumb-drive
listed as being in the bag was actually in the bag, he did not specifically check the
contents of a particular envelope against the inventory listed for that envelope. Id.
at PageID #7994-95. SA MacPherson further testified he did not recall coming
across any documents that may be considered “Lexus Nexus” documents. Id. at
PageID #7985-86.
Once he scanned and reviewed the contents of Control #6, SA
MacPherson placed the bag and its contents in a locked room within the IRS
offices in the federal building. See id. at PageID #8004. The bag and its contents
stayed in this secure room until the court requested an in-camera review. SA
MacPherson testified that he did not remove, destroy or alter any documents in the
control envelopes, including Control #6. Id. In other words, although SA
MacPherson cannot explain where the “Lexus Nexus” documents are, he testified
that under the procedures he used, no documents that could be described as “Lexus
Nexus” were in Control #6 when he received it. Based on SA MacPherson’s
manner of testifying, demeanor, and memory of events, the court finds this
testimony to be fully credible.
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On January 31, 2020, the United States submitted two declarations—
one from SA Rogers and one from SA Panhke. See ECF Nos. 625-1 & 625-2.
Essentially, both agents attested to the taint procedure itself, but could not answer
(i) exactly what was contained in the documents labeled “Lexus Nexus;” and
(ii) the whereabouts of these documents. Accordingly, the court requested the
United States to conduct a search of all privileged and non-privileged documents in
an attempt to locate any documents that may potentially be “Lexus Nexus.” See
ECF No. 638. The United States conducted its review of the non-privileged (by
the prosecutorial team) and privileged materials (by the taint team), which did not
reveal any documents that may have been “Lexus Nexus” documents. ECF No.
656.
During the March 4, 2020 hearing, Defendant testified as to the
contents of the “Lexus Nexus” folder in her home. She testified that she created a
folder named “Lexus Nexus,” which included her research notes and notes
regarding discussions she had with her former attorney, William Harrison. ECF
No. 738 at PageID #8008-09. She testified that she created the folder after the first
search warrant was executed in June 1, 2016, and that this file was still in her home
as of March 19, 2019, but was no longer there as of March 24, 2019, after the
March 21, 2019 search. Id.
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B. 	Defendant’s Four Strategy Boards
On April 26, 2019, pursuant to a search warrant, a copy of
Defendant’s iCloud account was produced from Apple, Inc. to the United States.
In a November 19, 2019 motion, Defendant alleged that the prosecution team was
provided with privileged material from this iCloud search. In support of that
motion, she attached a litany of documents, including three unredacted
photographs of defense strategy boards relating to her pending case. See generally
ECF No. 345-1; see also id. at PageID #3240-42. As discussed below, the United
States now concedes that the strategy boards are privileged.
In its response to the November 19 motion, the United States took the
position that “until the [D]efendant herself disclosed [the strategy boards and other
documents] to the public writ large” that “the prosecution team had not seen the
vast majority of the materials contained” in the exhibit. ECF No. 471 at PageID
#5067. The United States surmised that Defendant may have “received copies of
her own iCloud materials through independent means, i.e., from her family
members” and that “[h]er receipt of documents through those avenues has no
bearing on how the United States conducted its search and seizures or how it
conducted discovery.” Id. The United States reasserted this position during the
January 23, 2020 hearing—that Defendant procured these privileged documents
independently, and thus the prosecution team had no knowledge of these
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documents outside of Defendant’s own disclosure. See ECF No. 637 at PageID
#7202-03.
In the interim, Defendant continued to review discovery.11 And on
February 18, 2020, after completing that review, Defendant filed two motions for
leave to file motions alleging, among other things,12 a violation of the attorney-
client privilege. ECF Nos. 667 and 670. Specifically, Defendant was able to
identify four images containing her defense strategy boards that were possessed by
the prosecution team (three of these four images were previously attached to her
November 19 motion at ECF No. 345-1 at PageID #3240-42). See ECF No. 708.
In other words, what Defendant was unable to prove in her November 19 motion—
that the defense strategy boards were possessed by the prosecution team—she was
able to prove after her continued discovery review.
11 Defendant was having difficulty opening files on certain electronic discovery discs at
Honolulu’s Federal Detention Center. In order to provide Defendant with needed assistance, the
court obtained certain discs from Defendant’s stand-by counsel, had those discs downloaded on a
laptop by the court’s IT staff, and then permitted Defendant to review that discovery from the
cellblock in the courthouse. See, e.g., ECF Nos. 638, 640, 647, 651, 663, and 674.
12 These other issues were addressed separately by the court—ECF No. 667 was denied
in part, noting that “[i]ssues not resolved by this [March 4, 2020 electronic order] will be
addressed by separate order following a March 4, 2020 hearing.” ECF No. 702.
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These new motions then prompted further briefing13 and the March 4,
2020 evidentiary hearing. The following evidence was adduced from declarations
and the March 4 evidentiary hearing.
SA MacPherson “coordinated the delivery of [the] hard drive
containing Apple’s response to the iCloud search warrant to IRS-CI Computer
Investigative Specialist Mike Hammond [“CIS Hammond”].” ECF No. 693-2 at
PageID #7742. SA MacPherson did not otherwise receive the hard drive, as it was
“sent directly from Apple to CIS Hammond.” Id. Similar to the search of
Defendant’s home in March 2019, because the United States was aware that
Defendant was represented by counsel, the United States utilized a taint team to
review the iCloud production.14
CIS Hammond and IRS-CI Special Agent Clint Kindred (“SA
Kindred”) were on the taint team charged with reviewing the iCloud account
production for privileged materials. Id. CIS Hammond conducted various
keyword searches for documents that may contain the names of Defendant’s prior
13 The United States filed its response to ECF Nos. 667 and 670 on February 28, 2020.
ECF No. 693. The parties submitted supplemental briefing after the March 4 hearing. ECF Nos.
739 (the United States) and 748, 754, 756 (Defendant). Defendant filed ECF Nos. 748, 754, and
756 as separate motions for leave, which the court construed as Replies and considers for
purposes of this Order. See ECF No. 760.
14 And similarly, the use of the taint team process for the iCloud production was
reviewed and approved by a neutral United States magistrate judge. See Mag. No. 19-00374
KJM, EFC No. 1 at PageID #25-26.
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counsel. ECF No. 693 at PageID #7717. Responsive and non-privileged materials
were provided to SA MacPherson, who subsequently turned these documents over
to the prosecution team. ECF No. 693-2 at PageID #7742-43.
Documents that were potentially privileged (i.e., contained the names
of Defendant’s prior counsel in their text), along with all images, were sent to SA
Kindred for review. ECF No. 693-3 at PageID #7747. The image files he received
included HEIC files,15 JPEG files, JPG files, and PNG files. Id. at PageID #7748.
He opened and reviewed each JPEG, JPG, and PNG file. Id. SA Kindred
explained the extent of his work on the HEIC files: “[t]he HEIC files require
downloading and installing additional codecs to work with those files, which we
cannot do on our government computers. As such, they were not viewable by me
and so I was unable to see or review the contents of those files.” Id. at PageID
#7748.
SA Kindred also reviewed an “Apple iCloud (Backup)_2019-06-
28_Report.pdf” (“iCloud Extract Report”) created by CIS Hammond. Id. at
PageID #7749. That report contained thumbnail images of the HEIC files. Per SA
Kindred:
15 A “.heic” file “contains one or more images saved in High Efficiency Image Format
(HEIF), a file format commonly used to store photos on mobile devices.” ECF No. 693-5 at
PageID #7758.
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I could not determine if potentially privileged information was
contained in the thumbnail images in that report because they
were too small to be pixelated. I also reviewed the file in the
folder titled “thumbnails” which contained small images that
also were too small and pixelated to be legible. Therefore, the
images were unintelligible and revealed no potentially
privileged information.
Id. Approximately 100 MB of potentially privileged material was sent to a taint
team AUSA for further review. Id. SA Kindred then “cleared” the remaining
items, including the HEIC files that he could not open or view, and provided them
directly to the prosecution team. Id.
On February 21, 2020, in response to Defendant’s motion, AUSA
Michael Albanese (who is not part of the prosecution team) was assigned to
conduct a further review of the documents, including the HEIC files, that
Defendant alleged were privileged and possessed by the prosecution team. ECF
No. 693-5. After conducting his review, AUSA Albanese concluded that four
HEIC files—Defendant’s “strategy boards” (contained on discovery disc 18 at
#1620, #1623, #1625, and #1627)—were in fact privileged but nonetheless
provided to the prosecution team. Id. at PageID #7758, 7760. According to
AUSA Albanese, these four documents were not legible in thumbnail view in the
iCloud Extract Report, and that “[f]iles in .heic format cannot be opened on the
current configuration of computers used by employees at the United States
Attorney’s Office for the District of Hawaii, which run a 2015 edition of Windows
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10. According to Microsoft.com, the software needed to open .heic files was
released in January 2018.” Id. at PageID #7758.
Only after consulting with the Department of Justice’s IT staff was
AUSA Albanese able to devise a “work-around” solution to open the files—
emailing the HEIC files to an Apple iPhone, and then opening the files on that
phone. Id. at PageID #7759-60. Upon opening the HEIC strategy board files
identified by Defendant in her motion, AUSA Albanese was then able to confirm
that these images were “privileged.” Id. at PageID #7760. Members of the
prosecution team, other than viewing Defendant’s own publicly-filed exhibits (as
discussed further below), have not viewed the HEIC images of the four strategy
boards. See ECF No. 693-4 at PageID #7752-53 (Declaration of prosecution
paralegal); ECF No. 693-6 at PageID #7764 (Declaration of AUSA Perlmutter);
ECF No. 693-8 at PageID #7769 (Declaration of AUSA Khatib); ECF No. 693-2 at
PageID #7744 (Declaration of SA MacPherson).16
16 When Defendant was given access to discovery on a laptop provided by the court (see
footnote 11), that laptop contained the software required to open an HEIC file on a windows
device. This explains why Defendant was able to view the full image of the strategy boards,
while SA Kindred and AUSA Albanese could not (at least without a software update or a “work-
around”).
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Given this somewhat tortured history, the court now considers three
separate motions,17 making redundant and overlapping arguments. The remedies
Defendant seeks include dismissal of the FSI (ECF No. 345), to exclude “all
evidence” derived from “Native Files” (ECF No. 667), and to
“suppress[] . . . all evidence” (ECF No. 670). At the hearing and in her
supplemental briefing, Defendant clarified that the specific remedy she seeks is the
suppression of all evidence obtained through the iCloud search warrant. See ECF
Nos. 731 & 733.
III. LEGAL STANDARDS
A. 	The Attorney-Client Privilege and Work-Product Doctrine
As stated by the Supreme Court:
We readily acknowledge the importance of the attorney-
client privilege, which is one of the oldest recognized privileges
for confidential communications. By assuring confidentiality,
the privilege encourages clients to make full and frank
disclosures to their attorneys, who are then better able to
provide candid advice and effective representation. This, in
turn, serves broader public interests in the observance of law
and administration of justice.
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 108, (2009) (internal citations
and quotation marks omitted).
17 Defendant filed a fourth motion relating to the alleged violation of her attorney-client
privilege. See ECF No. 668. This motion was denied in its entirety by a separate order. ECF
No. 701.
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An intrusion by the government into an attorney-client relationship in
order to obtain confidential information may be deemed a violation of a
defendant’s Sixth Amendment right to effective assistance of counsel. See
Nordstrom v. Ryan, 762 F.3d 903, 910 (9th Cir. 2014) (“When the government
deliberately interferes with the confidential relationship between a criminal
defendant and defense counsel, that interference violates the Sixth Amendment
right to counsel if it substantially prejudices the criminal defendant.”) (citing
Williams v. Woodford, 384 F.3d 567, 584-85 (9th Cir. 2004) and United States v.
Irwin, 612 F.2d 1182, 1186-87 (9th Cir. 1980)). In such situations, a court may
suppress evidence gathered as a result of the communication or, in egregious cases
where the prejudice cannot otherwise be cured, dismiss the indictment. See United
States v. Haynes, 216 F.3d 789, 796 (9th Cir. 2000), cert. denied, 531 U.S. 1078
(2001); United States v. Marshank, 777 F. Supp. 1507, 1521-22 (N.D. Cal. 1991).
See also United States v. Morrison, 449 U.S. 361, 364 (1981) (“Sixth Amendment
deprivations are subject to the general rule that remedies should be tailored to the
injury suffered from the constitutional violation and should not unnecessarily
infringe on competing interests.”).
Relatedly, the work-product doctrine covers documents or materials
prepared by an attorney or an attorney’s agent in preparation for litigation and
protects such documents or materials from discovery. See United States v.
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Nobles, 422 U.S. 225, 238-39 (1975). This doctrine is essential to the attorney-
client relationship because attorneys must “work with a certain degree of privacy,
free from unnecessary intrusion by opposing parties and their counsel.” Hickman
v. Taylor, 329 U.S. 495, 510 (1947). “Proper preparation of a client’s case
demands that [a lawyer] assemble information, sift what he considers to be relevant
from the irrelevant facts, prepare his legal theories and plan his strategy without
undue and needless interference.” Id. at 511. Together, “the attorney-client
privilege and the work-product doctrine jointly support the Sixth Amendment’s
guarantee of effective assistance of counsel.” In re Search Warrant Issued June
13, 2019, 942 F.3d 159, 174 (4th Cir. 2019).
B. 	The Court’s Inherent Supervisory Power Under the Fifth Amendment
A federal court may also exercise its inherent supervisory powers to
dismiss an indictment when outrageous government conduct violates “a recognized
statutory or constitutional right.” United States v. Chapman, 524 F.3d 1073, 1085
(9th Cir. 2008). And under this rubric, a court may dismiss an indictment on the
ground of outrageous government conduct where the conduct amounts to a due
process violation. United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.
1991); see also Haynes, 216 F.3d at 796 (deliberate intrusion into attorney-
client relationship may violate Fifth Amendment). But dismissal based on
prosecutorial misconduct may be warranted “only in cases of flagrant prosecutorial
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misconduct,” that results in “substantial prejudice” to the defendant. Chapman,
524 F.3d at 1085, 1087 (internal quotation marks omitted); see United States v.
Landeros, 748 F. App’x 135 (9th Cir. 2019) (mem.) (citing cases). “[A]ccidental
or merely negligent governmental conduct is insufficient to establish flagrant
misbehavior.” Chapman, 524 F.3d at 1085.
IV. ANALYSIS
A. 	The “Lexus Nexus” Documents
As to the missing “Lexus Nexus” documents, the court finds no
wrongdoing by the United States. While the court cannot speculate as to what
happened to the missing documents, the court finds SA MacPherson’s testimony
that he did not remove, destroy, or alter the documents in Control #6 to be fully
credible. Stated differently, the court determines that there was no violation of the
attorney-client privilege by the United States because there is no evidence that the
prosecution team ever obtained any “Lexus Nexus” documents, let alone then hid
or destroyed them.18
18 Relatedly, Defendant also seeks, in a separate motion, for the United States to return
all privileged documents obtained from the March 21, 2019 search. See ECF No. 801 (denying
motion, but noting that “[t]o the extent Defendant seeks the return of privileged materials seized
during the March 21, 2019 search, the court will address this request in its order”). However,
because the court finds that the United States does not possess any privileged materials from the
March 21, 2019 search, such request is DENIED. Further, to the extent Defendant is seeking to
have returned all privileged materials (i.e., the images of the four strategy boards procured from
(continued . . .)
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B. 	The Four Strategy Boards
Understanding the importance of the attorney-client and work-product
privileges to our system of justice, the court entrusted the United States with a
unique responsibility to ensure that any and all privileged material seized pursuant
to the iCloud warrant was not provided to the prosecution team. And in this task,
the United States failed.
As the United States was certainly aware, the responsibility to protect
these privileges is particularly important when using a taint team in a criminal
proceeding—some courts have concluded, rightfully so, that taint team procedures
may “create an appearance of unfairness.” United States v. Neill, 952 F. Supp. 834
(D.D.C. 1997); see In re Search Warrant Issued June 13, 2019, 942 F.3d at 182
(“Appearances of unfairness are especially apparent in these proceedings, in that
the [Taint] Team includes prosecutors employed in the same judicial district where
Law Firm clients are being investigated”) (internal quotation marks omitted).
Further, many courts have also been highly critical of taint teams because “the
government’s fox is left in charge of the [criminal defendants’] henhouse, and may
err by neglect or malice, as well as by honest differences of opinion.” In re Grand
the iCloud search warrant), there is no physical property to return as the images are all digital—
accordingly, as discussed further below, the suppression of the HEIC files is the appropriate
remedy.
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Jury Subpoenas, 454 F.3d 511, 523 (6th Cir. 2006); see also United States v. SDI
Future Health, Inc., 464 F. Supp. 2d 1027, 1038 (D. Nev. 2006) (“[T]he court
recognizes that other courts have questioned and/or rejected the use of the taint
team procedure.”). Specifically,
taint teams present inevitable, and reasonably
foreseeable, risks to privilege . . . . That is to say, the
government taint team may have an interest in preserving
privilege, but it also possesses a conflicting interest in
pursuing the investigation, and, human nature being what
it is, occasionally some taint-team attorneys will make
mistakes or violate their ethical obligations.
In re Grand Jury Subpoenas, 454 F.3d at 523.
Here, SA Kindred was tasked with “conduct[ing] . . . [the] filter
review for potentially privileged material from the iCloud search warrant.” ECF
No. 693-3 at PageID #7747 (Kindred Decl. ¶ 3). When he could not open the
HEIC files, instead of seeking IT assistance or even simply conducting a Google
search to determine why the file would not open, he presumed the documents were
not privileged and thus provided them to the prosecution team. Id. at PageID
#7748-49. Of course, the exact opposite presumption should apply—if a taint team
cannot determine if a document is privileged or not, that document must be
shielded from the prosecution team. Stated differently, only documents known to
be privilege-free should pass from the taint team to the prosecution team. And
because SA Kindred did not take any steps to try to open the HEIC files prior to
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forwarding them to the prosecution team, his action can best be characterized as
demonstrating a total disinterest in both the rights of Defendant and the court’s
expectation that the taint team would fulfill its obligation to the court.19
In fact, as the United States has shown through AUSA Albanese’s
declaration, the extra precautions SA Kindred could have taken to protect
Defendant’s rights would have been minimal. AUSA Albanese, in conducting a
further taint review of the HEIC files, discovered a rather simple “work-around”—
email the files to an Apple device and then open the files on that device. Similarly,
a quick search on the internet would have identified the software update needed to
open HEIC files on a Windows device. See ECF No. 693-5 at PageID #7758. In
short, the court is deeply troubled with the lack of effort and concern demonstrated
by the United States when entrusted with such a vital responsibility.
And the United States’ written responses to Defendants’ motions
reflect a disappointing lack of recognition of this wrongdoing—in fact, several
astonishing statements were made in its response. See ECF No. 693 at PageID
#7727 (“[I]t has been determined that item numbers 1620, 1623, 1625, and 1627
19 And this indifference was also evident in SA Kindred’s declaration, even after he
learned about the disclosure of privileged information to the prosecution team. That is, his
declaration states that because the “thumbnail” files were too small to view, “the images were
unintelligible and revealed no potentially privileged information.” ECF No. 693-3 at PageID
#7749. In other words, because SA Kindred could not determine if the images were privileged
after a cursory inspection, in his mind they were not.
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are in fact privileged, but there was no failure to follow taint review protocols.
Similarly, based on the facts here, there was no improper disclosure of privileged
material to the prosecution team.”);20 see also ECF No. 693-3 at PageID #7750
(Kindred’s declaration attesting “[he] followed filter team protocols in [his] review
for potentially privileged materials and exercised due diligence in executing [his]
responsibilities as the filter agent.”).21
With this analysis, the court turns to the appropriate remedy.
C. 	Appropriate Remedy and Sanction
Regardless of its conduct,22 the United States points out that there was
no prejudice or harm to Defendant because no member of the prosecution team has
actual knowledge of the contents of the four strategy boards (despite having
constructive knowledge), and it has now revised its taint team procedure to prevent
20 As the court stated during the March 4, 2020 hearing, this statement may be literally
true, but nonetheless is shocking. That is, perhaps there was no failure to follow taint review
protocols; but, if true, those protocols were obviously wholly deficient.
21 Unlike the almost defiant tone in the United States’ briefing, the United States
Attorney’s Office chief of the criminal division appeared at the March 4 hearing and recognized
that the United States fell well short of the court’s expectations.
22 And, to be clear, the court’s finding of misconduct is limited solely to the taint team
procedure reviewing the items seized from Defendant’s iCloud account. As stated earlier, the
court finds no misconduct in the taint team process as to the missing “Lexus Nexus” documents.
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such a future error.23
The court agrees that Defendant was not prejudiced. The prosecution
team has shown that nobody on the team has viewed the contents of the four
strategy boards. In fact, not until AUSA Albanese, as a taint AUSA, discovered
the work-around, no one on the taint team nor the prosecution team viewed any
HEIC files, let alone the HEIC files containing the four strategy boards. And
Defendant has not shown that the prosecution team possesses or has viewed any
other privileged documents (either as a HEIC file or any other file).24 Thus, there
is no evidence that anyone on the prosecution team had actual knowledge of the
contents of the four boards (despite having constructive knowledge) or any other
privileged materials; to the extent anyone on the prosecution team may have
viewed the contents of the three of the four strategy boards, it was through
23 The United States also argues that any error was harmless because Defendant waived
any privilege over three strategy boards that she herself disclosed in her November 19, 2019
motion. While Defendant should have sought leave to file those strategy boards under seal, she
is pro se and was simply attempting to notify the court of the United States’ potential
wrongdoing. Regardless, any error made by Defendant does not mitigate the United States’
obvious negligence.
24 During a February 21, 2020 hearing, Defendant identified numerous other documents
provided to the prosecution team that she alleges are privileged. See ECF No. 679. The court
directed Defendant to explain how these documents were privileged, see id., and she then
provided her response in two filings, ECF Nos. 731 & 733, which were docketed as motions.
But none of the explanations provided by Defendant demonstrates that either the attorney-client
privilege or work-product doctrine are implicated in any of those documents. Defendant also
raised matters in these two filings beyond the scope of this court’s February 21, 2020 order, ECF
No. 679, which thus are not properly before the court.
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Defendant’s own disclosure by attaching these images as exhibits in her own
filings. See ECF No. 345-1 at PageID #3240-42. Accordingly, Defendant has not
shown any actual injury or prejudice from the disclosure of the four strategy board
HEIC files to the prosecution team, let alone any injuries arising to a violation of
her constitutional rights. Put differently, Defendant has not shown, and the court
does not find, that Defendant’s constitutional rights have been violated by the
disclosure of the four strategy boards. See Clutchette v. Rushen, 770 F.2d 1469,
1470 (9th Cir. 1985) (“Standing alone, the attorney-client privilege is merely a rule
of evidence . . . . In some situations, however, government interference with the
confidential relationship between a defendant and his counsel may implicate Sixth
Amendment rights . . . [but] only when it substantially prejudices the defendant.”)
(internal citations omitted). Given this finding, dismissal of the FSI is
unwarranted. Dismissal is an extraordinary remedy, and requires a showing that
Defendant was substantially prejudiced from the United States’ outrageous
conduct. Chapman, 524 F.3d at 1087.
As an alternative, Defendant seeks the suppression of all the materials
obtained from her iCloud account, ECF No. 748 at PageID #8129, while the
United States in turn argues that the appropriate remedy is to suppress only the
images of the four strategy boards, ECF No. 739 at PageID #8105-06. And at the
March 4, 2020 hearing, the attorney for the United States suggested another
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possible remedy—suppression of all HEIC files on the iCloud account, whether
privileged or not. ECF No. 738 at Page ID #8054.25
The court finds Defendant’s proposed sanction, suppression of all the
documents obtained from the iCloud account, to be too disproportionate to the
violation. See United States v. Esformes, 2018 WL 5919517, at *34-35 (S.D. Fla.
Nov. 13, 2018) (adopting the magistrate judge’s findings “that the prosecutors and
agents . . . failed to uphold the high standards expected from federal agents and
prosecutors from the [federal Government]” including that “the Government
conducted multiple errors over the course of its investigation and infringed on
[defendant’s] attorney-client and/or work product privileges,” but declined to
dismiss the indictment, and instead, suppressed privileged evidence, because it
found that the defendant was minimally prejudiced). Thus, the court declines to
suppress all files from the iCloud search warrant (amounting to over 6,563 pages)
as overly broad.
The court finds the appropriate remedy is to suppress all 473 HEIC
files obtained from the iCloud account. First, the court finds this sanction
appropriate given the reckless and grossly negligent conduct demonstrated by the
25 During the March 4, 2020 hearing, the United States represented that the iCloud
production contained 473 HEIC documents. Id. at PageID #8046; see also Kindred Decl., ECF
No. 693-3 at PageID #7748.
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taint team. As set forth above, the United States’ conduct cannot be described as a
mistake or honest disagreement of opinion; instead, it demonstrated a clear lack of
concern for Defendant’s rights and its obligations to this court. This sanction will
also serve as a deterrent. Although the United States will be precluded from using
files that contain non-privileged information, at the same time, this sanction is
proportionate because the taint team turned over all HEIC files (not just the four
strategy boards) to the prosecution team before determining whether those files
contained privileged information.
V. CONCLUSION
Based on the foregoing, Sullivan’s “Motion to Dismiss Based on
Violation of Attorney Client Privilege Communication,” ECF No. 345; her
“Motion for Leave to File This Motion in Limine to Exclude All Evidence Derived
From All ‘Native’ Files,” ECF No. 667; and her “Motion for Leave to File This
Motion in Limine Because Non-Discoverable Attorney-Client Priviledge (sic) &
Defense Work Product Information was Unconstitutionally Disclosed on
Discoverable Disc 13, 16, 18, 22,” ECF No. 670, are DENIED in part and
GRANTED in part. They are DENIED to the extent the motions seek to dismiss
the FSI or to suppress the use of all documents obtained from the iCloud search.
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The Motions are GRANTED to extent all 473 HEIC files obtained
from the iCloud search warrant are hereby suppressed for use at trial.
ECF Nos. 731 and 733 are DENIED as moot.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 9, 2020.
United States v. Sullivan, Cr. No. 17-00104 JMS-KJM, Order Granting in Part and Denying in
Part Defendant’s Motions Alleging Violations of the Attorney-Client Privilege, ECF Nos. 345,
667, & 670
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
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