New York Federal Criminal Practice Blog
February 3, 2008

SDNY Judge Addresses Interaction of Illegal Search Warrant and Legal Subpoena for Same Documents

There was a time when the execution of a search warrant at the company's headquarters would have sent the company's lawyers to the mattresses, but in a reflection of the current climate of deference - some may say submission - to government investigators in corporate America, counsel for Amerindo Investment Advisors, Inc. instead apparently advised the prosecutor in a phone conversation while the warrant was being executed that the company would "cooperate fully," and then reminded him that the government could obtain the same documents by means of a grand jury subpoena.  This prompted the prosecutor to serve a subpoena hours later that mirrored the documents listed in the warrant - a subpoena that later became the government's safety valve when portions of the warrant were found to be invalid. 

The issue in United States v. Vilar, 2008 WL 140958, 05 CR 621 (RJS) (S.D.N.Y 2008), was whether the inevitable discovery and independent source exceptions to the exclusionary rule permitted the government to offer at trial the documents that were illegally seized under the warrant but legally within the ambit of the subpoena.  

The Second Circuit has advised caution when the government tries to rely on a subpoena issued after or at the time of the illegal search to prove inevitable discovery.  The concern is that the subpoena is being used "as an after the fact insurance policy to validate an unlawful search under the inevitable discovery doctrine."  Of particular concern is whether any information from the unlawful search prompted the entire investigation or the particular subpoena requests.  Since neither scenario occurred here - the government had not reviewed one piece of paper prior to issuing the subpoena - the court held the government would have inevitably discovered most of the documents legitimately through the subpoena, with its more relaxed relevancy requirements.  For the same reasons, the court found that the subpoena was a "genuinely independent source" for the documents.

The court was at pains to demonstrate that while the company counsel's suggestion of a subpoena caused it to be issued, this suggestion was made in a spirit of cooperation, and not as a damage control measure in response to an overbroad search warrant.  Had the lawyer protested the legality of the warrant and only proposed the subpoena as a stopgap measure to give the company an opportunity to litigate the issues prior to seizure, the court’s implication is that the decision would have been different.  Indeed, in such a scenario, the subpoena would have been precisely what the Second Circuit cautions against: an after-the-fact insurance policy.  It should also be noted here that in resolving inconsistencies between the respective recollections of the prosecutor and lawyer, the court credited the prosecutor's version of events - which only underlines the golden rule of litigation: put important communications in writing.

The case isn't entirely without victory for the defense.  The court granted the defense request for early disclosure of the government's trial evidence to facilitate litigation of taint issues relating to documents illegally seized under the warrant that were not later validated by the subpoena.  Although rejecting the defense claim that a taint hearing must be held pre-trial as a matter of law (and also rejecting the government’s claim that the defense must meet a “pre-hearing burden” of establishing taint), the court ordered the government to turn over sixty days before the commencement of the trial all trial witness lists, exhibit lists and proposed 404(b) (prior bad act) evidence so that the defense could review them and file a motion to suppress tainted evidence. 

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