ORDER FOLLOWING HEARING ON MOTION TO SUPPRESS EVIDENCE
On August 30 and 31, 2010, the Court held a hearing on Defendants Western Titanium, Inc. (Western) and Schroeder's motion to suppress evidence seized outside the scope of the search warrant. (Doc. Nos. 438, 561, 565.) Having fully considered the parties' submissions and the evidence and argument presented at the hearing, the Court rules as follows:
1. Defendants' Request to Hold the Suppression Hearing Open
At the request of all defense counsel present, the Court held the August 30 and 31, 2010 suppression hearing open pending a determination of whether the Government fully complied with the Jencks Act with respect to Agent Mark Dao's testimony at the suppression hearing. See 18 U.S.C. § 3500 (2010); Fed. R. Crim. P. 26.2. Having reviewed in camera the complete transcripts of Agent Dao's grand jury testimony, the Court finds that the excised portions do not relate to the subject matter of Agent Dao's direct examination testimony at the suppression hearing, namely, whether and why the subject documents fell within or without of the search warrant's scope. See Fed. R. Crim. P. 26.2(c). Accordingly, the Government having met its Jencks Act obligations, the Court deems the suppression hearing closed.
2. Defendants Western and Schroeder's Motion to Suppress Evidence (Doc. No. 438)
The Court previously held that the Government did not engage in an impermissible general search requiring suppression of all documents seized under the April 15, 2008 search warrant. (See Doc. No. 537, at 2.) Accordingly, the narrow issue before the Court is whether specified documents seized by the agents fell outside the scope of the warrant and must be suppressed. See United States v. Crozier, 777 F.2d 1376, 1381 (9th Cir. 1985).
It is axiomatic that search warrants must "particularly describ[e] the . . . things to be seized."
U.S. Const. amend. IV. Agents conducting a search pursuant to a warrant may seize only those items specifically enumerated in the warrant. See United States v. Tamura , 694 F.2d 591, 595 (9th Cir. 1982); see also Bivens v. Six Unknown Agents, 403 U.S. 388, 395 n.7 (1999). "In identifying the property to be seized, the agents are 'required to interpret the warrant,' but are 'not obliged to interpret it narrowly.'" United States v. Hill, 19 F.3d 984, 987 (5th Cir. 1994) (quoting United States v. Stiver, 9 F.3d 298, 302--03 (3d Cir. 1993)); see also United States v. Marques, 600 F.2d 742, 751 (9th Cir. 1979 ("[W]hile it is true that as a general rule, items seized pursuant to a warrant must be specifically mentioned in the warrant, it makes no sense to interpret the terms of a warrant in a hypertechnical manner when the interpretation of the [affidavit] upon which that warrant is based may be non-technical and common-sense.") (citation omitted). "[T]he question whether the evidence seized falls within the scope of the warrant ultimately turns on the substance of the item to be seized 'and not the label assigned to it by the defendant.'" Hill, 19 F.3d at 988 (quoting United States v. Word, 806 F.2d 658, 661 (6th Cir. 1986)). An item to be seized comes within the scope of the warrant if it is the "functional equivalent" of an item specifically listed in the warrant. Hill, 19 F.3d at 987--88.
With these principles in mind, the Court turns to the documents identified at the suppression hearing.
Defs.' Ex. 6, at 79 (Grand Jury (GJ) Ex. 55); id. at 115 (GJ Ex. 394); id. at 116 (GJ Ex. 395): These documents contain the notation "Customer Supplied Sample(s)," indicating that Western supplied pre-cut samples of titanium material to Atlas Testing Laboratories, Inc. for testing. Accordingly, these documents come within Item 7*fn1 of Attachment "B" to the search warrant (Attachment B), which authorizes the seizure of "[a]ll records which identify procedures used by [Western] to cut test blocks or specimens to be sent to the laboratory for . . . testing." Defendants' motion is DENIED as to these documents.
Defs.' Ex. 6, at 80--97 (GJ Ex. 56): These documents contain the notation " 1 TP," indicating that Western supplied pre-cut test pieces of titanium material to Aerocraft Heat Treating Co. (Aerocraft) for heat treating. (See Suppression Hr'g Tr. 131, Aug. 30--31, 2010.) Accordingly, these documents come within Item 7 because they identify procedures Western used to cut test blocks or specimens. Defendants' motion is DENIED as to these documents.
Defs.' Ex. 6, at 98--108 (GJ Ex. 57): This document is a copy of Aerospace Material Specification 4965G. Contrary to the Government's assertion, this document does not bear any relation to procedures Western used to cut test blocks or specimens. Rather, it only identifies the procedures that a manufacturer must use to comply with AMS 4965G. Accordingly, this document does not come within Item 7. Defendants' motion is GRANTED as to this document.
Defs.' Ex. 6, at 109 (GJ Ex. 81): This document is a copy of a certification from Press Forge Co. and lists Western as the customer. The document identifies the subject material as "6-4." The Government contends that the document "is an inventory record sheet that comes with Items 5 and 6 which permits (sic) seizure of records containing reference to Western's inventory of Ti 6AL-4V . . . ." (Consolidated Opp'n 16.)
Item 5 authorizes the seizure of "[a]ll inventory record sheets for all titanium Ti-6-AL-4V and Ti-6AL-6V-2SN," and Item 6 authorizes the seizure of "[a]ll Receiving & Inspection Reports regarding Ti-6AL-4V and Ti-6AL-6V-2SN." However, the Government would have the Court read Items 5 and 6 collectively to mean, "Any and all records relating to Western's inventory of Ti-6AL- 4V and Ti-6AL-6V-2SN." The Court's interpretation of the Government's argument is confirmed by a review of the Government's briefing, which identifies virtually every disputed document as coming within Items 5 and 6, in addition to at least one other listed Item. (See generally Consolidated Opp'n 13--17; Gov't's Supplemental Br.2--4.)
The Court declines to read Items 5 and 6 so broadly. The Government's proposed construction of Items 5 and 6 would render many of the thirteen other Items listed in Attachment B mere surplusage because virtually all of Western's records relate to its inventory of Ti-6AL-4V and Ti-6AL-6V-2SN in some conceivable way.*fn2 Although the Court is cognizant of the principle that it should not read Attachment B in a "hypertechnical" manner, Marques, 600 F.2d at 751, the Court is nevertheless wary of reading Attachment B in a manner that would render certain of its components unnecessary. If the Government wanted Item 5 to authorize the seizure of "all documents relating to Western's inventory of Ti-6AL-4V and Ti-6AL-6V-2SN," it should have said so in Attachment B. Instead, it chose the more specific language, "[a]ll inventory record sheets" and "[a]ll Receiving & Inspection Reports . . . ." Accordingly, the Court rejects the Government's proposed construction of Items 5 and 6.
Because the Press Forge certification does not come within a reasonable construction of Items 5 and 6, Defendants' motion is GRANTED as to this document.
Defs.' Ex. 6, at 110 (GJ Ex. 144); id. at 111 (GJ Ex. 157): These Western certificates of analysis indicate that the subject pieces of Ti-6AL-4V test material were cut from larger slabs of intermediate titanium product. Accordingly, these documents come within Item 7 because they identify procedures Western used to cut test blocks or specimens. Additionally, it is apparent from the sizes of the intermediate and final material that these documents come within Item 14, which authorizes the seizure of "[a]ll records regarding [Western's] procedures relating to cutting the thickness or short transverse of titanium material and or forged bar." Therefore, Defendants' motion is DENIED as to these documents.
Defs. Ex. 6, at 112 (GJ Ex. 223): This document is a quotation from Pittsburgh Flatroll Co. The Government contends that this document comes within Items 5 and 6. (Consolidated Opp'n 16.) For the reasons stated above, the Court disagrees. ...