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United States v. Bonner

United States District Court, Ninth Circuit

November 13, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
TERENCE J. BONNER, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The following motion are pending before the Court:

1. Government's motion for reconsideration (ECF No. 79);

2. Defendant's motion to suppress evidence for lack of authorization (ECF No. 25);

3. Defendant's motion to suppress evidence from search warrants (ECF No. 30); and

4. Defendant's motion for dismissal of indictment (ECF No. 31).

BACKGROUND FACTS

In December of 2009, Special Agent Rebecca Phenicie of United States Customs and Border Patrol Internal Affairs was assigned to the investigation of vouchers submitted by the Defendant Terence J. Bonner for reimbursement of travel expenses for the period 2004-2009. Defendant was the president of the National Border Patrol Council, the union that represents all front-line Border Patrol employees from February 1989 to March 2010.

On March 8, 2012, United States Magistrate Judge Nita L. Stormes approved a warrant to search for documents from 2004 to the present at Defendant's residence located at 29520 Primrose Drive, Campo, California. The application for the warrant was supported by the Affidavit of Special Agent Phenicie.

On March 9, 2012, Special Agent Phenicie and other law enforcement officers executed the search warrant at the Bonner residence. Agents seized 18 boxes of paper documents and 35 items of electronic media. At the conclusion of the search, Special Agent Phenicie provided Defendant with a copy of the search warrant and the inventory of the items seized.

On August 16, 2012, the federal grand jury in the Southern District of California returned an Indictment charging Defendant Terence J. Bonner with one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, and eleven counts of wire fraud in violation of 18 U.S.C. § 1343. (ECF No. 1). Defendant was arraigned on the Indictment and entered pleas of not guilty. (ECF No. 4).

On November 21, 2012, the Government sought and received a second search warrant for documents and digital images seized during the March 9, 2012 search of Primrose Drive which were in the possession of the Government for the period January 1, 1993 to the present. (ECF No. 33-2). Defendant subsequently moved to suppress evidence seized pursuant to the search warrants.

On July 23, 2013, this Court entered an order concluding that the forensic analysis of the electronic media seized during the March 9, 2012 search violated the Defendant's rights under the Fourth Amendment. The Court entered an order suppressing "any evidence extracted from all items of electronic media" seized and searched pursuant to the March 8, 2012 warrant and "all evidence searched pursuant to the November 21, 2012 warrant." (ECF No. 77 at 29).

On September 25, 2013, the grand jury returned a Superseding Indictment charging Defendant with one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349, four counts of mail fraud in violation of 18 U.S.C. § 1341, and four counts of wire fraud in violation of 18 U.S.C. § 1343. (ECF No. 96).

RULINGS OF THE COURT

1. Government's Motion for Reconsideration (ECF No. 79);

Plaintiff United States of America moves the Court to reconsider the "portion of the July 23, 2013 Order finding that the forensic analysis of electronic evidence violated the Fourth Amendment, suppressing all electronic evidence seized pursuant to the March 8, 2012 Warrant, and suppressing all evidence seized pursuant to the November 21, 2012 Warrant." (ECF No. 79-1). The Government asserts that the Defendant's Fourth Amendment rights were not violated for the following "four reasons, taken singularly and in combination" as follows: 1) the electronic data seized and searched falls within the following language of the warrant "all records or data relating to [Defendant's] day to day activities"; 2) the theory of relevance was explained with specificity in the affidavit in support of the search warrant; 3) the volume [four million images of pornography] of the files at issue underscored their responsiveness; and 4) the seizure of the electronic files from the March 2012 warrant was disclosed to a second United States Magistrate Judge in the subsequent November 2012 warrant. (ECF No. 79-1).

Defendant contends that the Government has not presented any newly discovered evidence showing that Court committed clear error, or pointed to an intervening change in the controlling law. Defendant asserts that the search of the electronic data for "every single item" that contained a date and time information provided no limitation on the search amounting to a general warrant. (ECF No. 82 at 4). Defendant contends that there are no grounds to reconsider the conclusion of the Court that a fair reading of the March 2012 warrant does not reasonably identify adult pornography as an item to be seized or searched ...


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