Opinion
CV 22 80091 MISC
04-05-2022
ROBERT PURBECK, Plaintiff, v. MERRICK GARLAND, Defendant
Robert Purbeck (Pro-Se)
FILED UNDER SEAL
Robert Purbeck (Pro-Se)
EMERGENCY MOTION FOR RETURN OF PROPERTY PURSUANT TO RULE 41(G) FOR FLAGRANT AND DELIBERATE VIOLATIONS OF ATTORNEY CLIENT PRIVILEGE HEARING AND ORAL ARGUMENTS REQUESTED
Plaintiff humbly requests the return of prope1ty unlawfully seized from the Northern District of California along with other warrantlessly seized email records seized without a territorial nexus to the United States for which this court can apply its equitable power.
Because this is filed after indictment it is requested that the court view this as a motion to suppress those records that flagrantly violated attorney client privilege and flagrantly violated the 4"' Amendment right to be free from unreasonable searches and seizures. The prosecution of Petitioner is not a righteous prosecution. It is tainted by deliberate destruction of Brady materials, torture, and outright perjury by the case agents and AUSA Michael Herskowitz.
The government engaged in monstrous behavior in the 9th circuit including torturing Petitioner in a Summer/Ganwich detention in the State of Idaho to confess to a crime he did not commit. He did admit to other crimes during the torture and the indictment was performed in a court that explicitly condones compelled confessions and allows the use of unlawful general warrants in the Northern District of Georgia. The only probable cause alleged in the numerous warrants that was not tainted by perjury was for a crime occurring in the Northern District of California. The Government should have brought the prosecution in the No11hern District of California instead of manufacturing nexus after the fact from torture tainted evidence in the ND Georgia.
The District of idaho is allowing a suit for excessive force against the two primary case agents (as well as sexual assault against Agent James Pinette) and an additional charge against the search team leader for violation of McGrew, but those wins are meaningless when the agents and AUSA Michael Herskowitz deliberately destroyed (or obstructed) the physical evidence needed to prosecute that lawsuit. The government wants fact disputes, so they can overpower petitioner with perjury versus allowing the fact finder to rely on physical evidence. A government witness sent unsolicited messages in multiple unanswered emails after indictment that there were emails from an NGO circulating that petitioner had been t011ured. The AUSA got in front of the physical evidence by obstructing it and destroying evidence held by petitioners' previous government employer. The AUSA has obstructed petitioner from being able to conduct a forensic evaluation on the apparently "broken" audio recorder. Petitioner had requested the most pertinent evidence be ordered preserved by Federal Magistrate Judge Alan Baverman prior to fling a FOIA request with the ADA County Sheriffs Office. Petitioners was rebuffed by both his previous employer and the magistrate even though they acknowledged possession of recordings of the torture interview. After it was subpoenaed the government employer deliberately destroyed those Brady recordings. The employer was only present at the invitation of the AUSA and was thus pat1 of the search team and their evidence was required to be saved by the government. Zaragoza-Moreirademands the AUSA be imputed with destruction of Brady materials. I was exculpatory because Petitioner rightfully did not confess to the terrorism conspiracy the government had manufactured out of whole cloth and perjured themselves in front of Magistrates Bush and Walker when seeking warrants. The recording also contained evidence that the government employer relied on emails seized by the FBI that were covered by attorney/client privilege. The government subsequently hasn't disputed they forgot to tell the whole truth, only that petitioner can't prove they deliberately committed pe1jury even though they relied on the evidence that shows they were committing perjury.
Purbeck v. Wilkinson 1:2 1-cv-00047-BLW 2021 interlocutory dismissed 21-35467 (9th Cir 2022)
McGrew (122 F.3d 847 (9th Cir. 1997)
United States v. Zaragoza-Moreira, 780 F.3d 971 (9th Cir. 2015)
Petitioner doesn't intend vagueness. It is a byproduct of the oppressive protective order which only protects criminal actors in the government. The emails the government relied on were quite clear that petitioner was not a member of the terrorist group. The AUSA wanted to suborn perjury so he could prosecute a ND California crime in Georgia instead of the territorial nexus required by the 6th Amendment. The coui1 should order an in-camera review of the emails with a blogger. The government tried to obstruct these emails until they were ordered compelled by magistrate Judge Vineyard. The government has deliberately tried to suppress favorable evidence in violation of the Due Process Protection Act and the model 9th circuit DPPA rules that were adopted by the District of Idaho when petitioner was indicted on March 511', 2021. AUSA Whatcott objected in open court to being forced to comply with the DPPA.
ITEMS TO BE RETURNED
The government seized through deception at a minimum the following items from the Northern District of California.
• Email Account rpurbeck@gmail.com
• Apple Account rpurbeck@gmail.com
• All Records in the possession of the government that were stolen from Coinbase as a contractor by the criminal organization: Chainalysis.
• Because the government has de-anonymized him using stolen data that was in its possession at the time of the forfeiture hearing, petitioner requests a return of unpai1icularized items seized from Alphabay without a properly tailored warrant.,
Chainalysis was publicly fired by Coinbase for stealing private financial records of clients from Coinbase and through other illegal means including hacking, running honeypots in violation of wire fraud statutes, man-in-the-middle attacks and other thefts and then selling the records it stole to autocratic governments and agencies throughout the world including its biggest client the United States Government.
The government was required by this court in its forfeiture warrant to provide notice to those affected by the seizure. Since the task of entering blanket subpoenas is apparently so trivial the DOJ was obligated by the No11hern District of California to properly identify those affected by the forfeiture warrant and individually serve those individuals whose property interests were at risk.
If there was a warrant to seize these materials the government has refused to comply with its discovery obligations to do so. If the government did not make a prima facie case the organization was pervaded with fraud in the forfeiture warrant it is a defense against the seizure of those emails and alleged financial transactions where petitioner had a reasonable expectation of privacy. They can't claim pervaded by fraud after the warrant was unlawfully executed. "A generalized seizure of business documents may be justified if the government. establishes probable cause to believe that the entire business is merely a scheme to defraud or that all of the business's records are likely to evidence criminal activity. See generally United States v. Offices Known as 50 State Distrib. Co., 708 F.2d 1371, 1374 (9th Cir. 1983), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 677 (1984). quoted from United States v. Kow, 58 F.3d 423 (9th Cir. 1995) *427"
The Government also warrantlessly seized the encryption passwords for the following records through physical torture of petitioner. It has included these torture tainted records that it has included in its discovery for which there are no territorial strictures to the United States, so any competent federal court can order its return.
• Email account ronhuber@fastmail.net
• Email account jrjb@protonmail.com
Protective Order Violates the 6th Amendment and fundamental due process rights
The government has placed all discovery materials under seal and with a protective order. The vast majority of discovery materials are not viewable by the petitioner. Petitioner has sought to represent himself in certain matters including in a 41(g) motion in the district of Idaho. Because all the materials he needs are sealed from petitioner or otherwise restricted from disclosure it gives the government complete control over the case and makes the future trial nothing more than a formality without due process. As a pro-se filer, petitioner should have all the same rights to view necessary discovery and present arguments to file proper 41(G) motions as motions to suppress in the districts where his constitutional rights have been trampled. The obstructionist AUSA Herkowitz who has deliberately hidden evidence of course wants homefield advantage, but petitioner should be allowed due process in each of the districts where he can potentially file for return of property. Petitioner seeks access to provide this court with evidence of constitutional violations only. One of the balancing tests from the third circuit in United States v. Wecht, 484 F.3d 194, 211 (3d Cir. 2007) is "whether the information is being sought for a legitimate purpose or for an improper purpose" United States v. Torres, No. 20-cr-00418, at *6 (O.N.J. Aug. 4, 2020)
Beginning of investigation
Apparently, the Northern District of Georgia began an investigation using a grand jury sometime in summer of 2019. The government relied on an incompetent blogger who has previously misinformed the government of the membership of a certain terrorist hacking group known as TOO. They raided some poor guys (Justin Shafer) house 4 times trying to find evidence of his involvement with the group and could not make a connection and instead chose to charge him with a minor offense to save face after he exposed their repeated harassment of him.
Because the government is not interested in the truth it decided to again believe this blogger that someone else the informant had interacted with was also a member of the group. This led to the investigation of the hacker known as Lifelock. The government was provided with exculpatory evidence by the blogger showing that Lifelock was not a member of the terrorist group, but the government chose to suppress that evidence until it was ordered compelled by a magistrate judge in late 2021.
Instead, the AUSA knowing with certainty that Lifelock was not a member of TDO instead chose to lie to the grand jury to seek out records about Lifelock and his connection to the Northern District of Georgia. He did not find any responsive records. So instead through SA Roderick Coffin he suborned perjury to a magistrate judge to get access to records using court orders. Again, no records were identified with connections to the Northern District of Georgia. The government repeatedly hides from the court in fact a supposed victim of TDO (the only alleged nexus in any of the warrants issued in petitioners case) was from the Middle District of Georgia, not the Northern District of Georgia to deceive the hometown magistrates into giving them carte blanche court orders and warrants without telling the truth. Petitioner was not involved with the alleged victim of the terrorist organization in the MD Georgia.
The government does not appear to dispute that it lied under oath to magistrates regarding the knowledge of exculpatory emails showing that TOO and Lifelock both disputed any connection. Only that the defense cannot know with certainty that they lied intentionally. But defense can because AUSA Herskowitz chose to deliberately suppress the evidence until it was ordered compelled even though defense made repeated requests for the exculpatory emails.
However, it is likely using the combination of stolen data from BTC-E, and provided by Chainalysis from the theft of data from Coinbase the government was able to make a connection that the petitioner may have been involved in other crimes not involving the Northern District of Georgia. However, the AUSA and Agent deliberately hid that it had no nexus to the Northern District of Georgia in its requests for productions of evidence through large blanket subpoenas, court orders and warrants. The warrants for email and Apple were signed by a magistrate lacking territorial jurisdiction to issue the warrants as the government did not have probable cause for a crime occurring in the ND Georgia. The government does not seem to dispute it did not have probable cause to request the warrants in the ND Georgia.
The government accused Alexander Vinnick, a computer operator at BTC-E of stealing bitcoin from Mt. Gox in 2012-2013. BTC-E was the longest running bitcoin exchange after the fall of Mt. Gox. He was a small-time employee of BTC-e, but the government lied to a magistrate judge in the central district of California to seize all assets of BTC-e including client custodial accounts based on an accusation that Vinnick committed a crime using the platform in one personal account. The government then seized all the database records of the oldest bitcoin exchange and provided them to chainalysis. The DOJ has since used these fraudulently obtained records to shake down anyone who used the legal service with large holdings of bitcoins to help bolster their budget. Calling anyone who used BTC-e money launderers without any evidence showing that to be the case. (United States citizens could not deposit or withdraw dollars from the exchange.) This would be tantamount to a minor employee of Wells Fargo stealing a few bucks from a Chase bank customer and depositing it in his personal Wells Fargo account and a magistrate giving the DOJ permission to steal all of the assets including custodial trust accounts of Wells Fargo including every transaction record since the banks founding and then searching continuously through Wells Fargo's records looking for unrelated crimes they could use to bolster the DOJ budget from other external accounts and meanwhile bolstering the DOJ budget by not returning any of the funds stolen from Wells Fargos customers, and calling everyone who uses Wells Fargo money launderers without evidence. Several weeks later while Vinnick was in a Greek prison the website reappeared with some but not most of the cryptocurrency balances intact. This further dispels that Vinnick was the mastermind of the website.
Petitioner is also drafting a 41(g) motion for the Central District of California for the return of BTC-e funds stolen by the United States Government belonging to Silk Alpaca Corporation. The government will not provide discovery from BTC-e while relying on it in its case-in-chief. Silk Alpaca Corporations last accounting record from BTC-e shows a balance of -167 Litecoin worth $18,842.61 as of 3/20/22 Petitioner has standing to contest the stolen cryptocurrency and the stolen records, including private communications seized without a particularized warrant. The L TC in the account and transaction history predate any alleged criminal activity.
The government produced social security numbers and tax ids of many people and organizations it obtained through a large blanket subpoena of coinbase trying to identify people/businesses who used bitcoin even though none of the alleged transactions were criminal in nature. The request was not narrowly tailored to the needs of the government just a large fishing expedition of any records that might be responsive.
Chainalysis was employed by Coinbase to monitor transactions for money laundering compliance. Chainalysis tagged transactions and the locations the bitcoin travelled to. It had complete access to Coinbase transactions and was able to tag each bitcoin address that was from Coinbase. The company then started to steal this transaction history to sell to government agencies. It did not have permission to steal these records and sell them to government agencies.
In an interview with the news organization Cheddar on March yd, 2019 - more than 4 months before the government relied on knowingly stolen bitcoin transactions provided by Chainlaysis- Coinbase Head of Sales Christine Sandler said the following about two Blockchain intelligence firms they had fired: Elliptic and Chainalysis.
"It was important for us to migrate away from our current providers," Sandler said when asked about why Coinbase bought Neutrino. "They were selling client data to outside sources and it was compelling for us to get control over that and have proprietary technology that we could leverage to keep the data safe and protect our clients."
https://cheddar.com/media/coinbase-adds-support-for-ripple-s-xrp-despite-regulatory-uncertainty retrieved 3/27/2022
The records provided to Special Agent Roderick Coffin III were stolen by Chainalysis and appeared to be stale records from 2013-2015. None of them were even alleged to be criminal in nature. The third party doctrine does not save this illegal search. For one, petitioner did not knowingly transmit transaction information to Chainalysis. The transaction information obtained by the government was not public blockchain transactions only but rather internal exchange transactions from BTC-E and Coinbase. Coinbase did not provide records to Chainalysis so they could steal them and sell them to the government. It is true that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Forrester, 512 F.3d at 509 (quoting Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). In this circumstance, however, we are assuming, as did the district court, that, as he maintains, Kitzhaber did not mean to turn his private email over to DAS. United States v. Kitzhaber (In re Grand Jury Subpoena), 828 F.3d I 083, 1091 n.4 (9th Cir. 2016).
Second, the government had to expand the search of the stolen records. They issued a blanket subpoena to Coinbase of at least 32 addresses and received many social security numbers and other PII about customers of Coinbase that were not petitioner. This was not a narrowly tailored subpoena to serve a legitimate purpose, it was a fishing expedition of bitcoin addresses that were not alleged to be evidence of anything unlawful. The government investigated each of the leads from this fishing expedition. "Recently, the Supreme Court implicitly reaffirmed that subpoenas trigger Fourth Amendment concerns and may be challenged on Fourth Amendment grounds. City of Los Angeles, Cal. v. Patel, ___U.S.___, 135 S.Ct. 2443, 2453, 192 L.Ed.2d 435 (2015)." United States v. Kitzhaber (In re Grand Jury Subpoena), 828 F.3d I 083, l 088 n.1 (9th Cir. 2016)
The government also relied on completely legal transactions of Petitioner that were sent to merchants for which Bitpay processed the transactions. The government relied again on transaction history stolen from Bitpay by Chainalysis. The transactions with Bitpay were not transmitted to Bitpay as the third party but rather to individual merchants such as Overstock, and Dish Network. Bitpay confirmed with the government that it did not have a contractual relationship with petitioner for the transactions the government sought during the period sought. What the government was seeking was large swaths of transaction history without limits even though they did not allege illegal activities with those transactions.
Petitioner is a resident of the 9th Circuit
Petitioner has lived in Idaho since 2008, and prior to that in Southern California. He had never visited the Northern District of Georgia prior to being tortured by agents from the District. All of the emails and the Apple account seized from petitioner pursuant to warrants issued unlawfully in the Northern District of Georgia were located in the Northern District of California or the Southern District of New York.
The Government lied about the location of emails and Apple account
On the face of the warrants they state that the "In the Northern District of Georgia there is now concealed certain information, namely ..."
Warrant copy provided by Google to petitioner. This warrant is no longer covered by the protective order because it has been provided by Google.
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The data responsive to the warrants most assuredly was not located in the Northern District of Georgia. "The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional. Stanford v. Texas, 379 U.S. 476 (1965); United States v. Cardwell, 680 F.2d 75, 77-78 (CA9 1982); United States v. Crozier, 674 F.2d 1293, 1299 (CA9 1982); United States v. Klein, 565 F.2d 183, 185 (CAI 1977); United States v. Gardner, 537 F.2d 861, 862 (CA6 1976); United States v. Marti, 421 F.2d 1263, 1268-1269 (CA2 1970). Quoted from Groh v. Ramirez, 540 U.S. 551, 559-60 (2004)
The Government wholesale particularized records not responsive to the warrant particularity nor apparent evidence of crimes
The Government requested warrants of AOL, Apple, and Google that had a temporal limitation on it. The government assured the magistrate that the agent would particularize only the emails that the two-step process authorized. A copy of the warrant pa1ticularities is provided as exhibit I (filed under seal). All three warrants were issued minutes apart from each other. The warrant particularities are identical across all three warrants to what can be seized with some minor exceptions in the Apple warrant to allow for apple specific services. The Government did not comply with the terms of the warrant particularity in even the broadest interpretation of the readings of the warrants. They seized anything they found interesting whether complying with particularity or not. They also deliberately seized legally privileged documents and particularized at least 28 documents from Gmail that were prohibited by the temporal limitations of the warrant. They relied on the temporally illegally seized documents when seeking a warrant to search the home. They also relied on emails protected by state law as well as attorney client privilege to try and manufacture a crime (it wasn't a crime; at most civil libel well outside the civil statutes of limitations) for which they could invite petitioners employer into his home during the home search warrant execution. The government employer directly referenced these files saved in google that were protected by attorney client privilege from a previous government employer. Again, petitioner only had these files stored on google because he provided them to his attorney. The dates are all around the same month of the Idaho Personnel Commission hearing.
Even if the deputy could have made a valid showing that a crime of harassment had been committed from this unlawfully paiticularized email communication. It carries a one year statute of limitations, The interrogation by to1ture of petitioner occurred 3 years and 3 months after the messages had been posted on a website, Petitioner does not believe that anonymously posting a message about a public figure on line could reach the level of a crime without even naming the individual. This would have been stale evidence of a crime. Similarly where the government particularized a message sent to petitioners attorney from Gm ail and Apple where the previous government entity baselessly accused him of stealing a phone, the theft of a $650 phone would if true only be a petit theft and the statute of limitations had ran out again after l year. Ada County, petitioners employer at the time of the interrogation violated the 4th amendment by coming into petitioners home to conduct an inquiry on a past alleged civil wrong made to a different government employer outside the statutes of limitations and for a matter completely irrelevant to the FBI warrant of the home. Agent James Pinette's 302 of the interview performed by Ada County Detective Ryan Pacheco confirms the officer was performing HR related questioning from that 3 year old stale dismissed HR matter. see: Bills v. Aseltine 958 F.2d 697 (6th Cir. 1992), Buonocore v. Harris, 65 F.3d 347 (4th Cir. 1995), Wilson v. Layne, 526 U.S. 603 (1999)
The Warrants make no assertion why the email and Apple accounts would contain evidence of crimes.
The probable cause affidavit is under seal so petitioner cannot provide them to this court unless it authorizes the disclosure. The comt should order the government to provide the affidavit in camera to the court. There was insufficient evidence of probable cause that the email accounts would contain evidence of crimes. Just a single sentence where Agent Coffin manifests probable cause for the email and Apple accounts. The rest of his affidavit relying on stolen information from Coinbase might have been sufficient for an arrest warrant for petitioner, but it does not provide probable cause to search the primary email accounts of petitioner which contained all kinds of medical records, personal correspondences with family members, friends, and most importantly legally privileged materials. To emphasize this more, the affidavit contained two email addresses that much better showed allegations of criminal activity that would have more likely contained probable cause information, but warrants were not sought for those two addresses only the most personal communications of petitioner in his primary accounts. These warrants were issued for a fishing expedition by the AUSA and case agents. "Personal email can, and often does, contain all the information once found in the "papers and effects" mentioned explicitly in the Fourth Amendment. Kitzhaber thus has a strong claim to a legitimate expectation of privacy in his personal email, given the private information it likely contains." United States v. Kitzhaber (In re Grand Jury Subpoena), 828 F.3d I 083, I 090 (9th Cir. 2016)
If the government had explicitly stuck to performing a search that complied with the warrant particularity the government might be able to show good faith in the execution of the warrant, but these warrants were conducted so abusively that no good faith can possibly exist for the agents. Petitioner will provide the bates numbers of the records particularized by the government. Petitioner would request that the court order them produced to the court to, examine in-camera.
In support of this contention the government when executing the Apple warrant particularized more than I 00 photos of petitioners cats. This was not a comprehensive set of the cat pictures just what the government particularized. Maybe the government believes the cats were co-conspirators of petitioner, but more than likely the pictures were of every single room in petitioners house. They used these photos to build a layout of petitioners house a very definite 4th amendment violation. Kyllo v. United States, 533 U.S. 27 (200 I)
The agents also particularized information from text messages with petitioners mother of medical conditions suffered by various family members. These were unlawfully seized. There is no basis for the agents paiticularizing only those texts with his mother of ailments suffered by family members. It is sick and depraved. Other text messages seized were ones where petitioners brother admitted that he suffered a car accident after a concert. These might have been evidence of a state crime in Illinois, but certainly not relevant to the investigation at hand.
The agents also particularized images of Petitioners political leanings. Petitioner lives in a very red state and maintains voter registration as a republican to fit in with locals, but he does not generally vote for republicans. Copying images of what political party petitioner supports violates the I st amendment. Such images included an artistically drawn picture of former president Trump nude, and various images shared in text messages where petitioner derided the former president. There was a photo particularized showing that when the word "idiot" is typed into google the pictures that show up are images of the former president. The agents particularized more than one hundred emails from political action committees in the gmail account. None of the political emails and messages captured and specifically particularized as part of all three warrants are lawful.
In all 3 warrants the agents particularized vast amounts of business emails, pictures of inventory for Amazon and Ebay listings. They seized an email for a login that clearly identifies it was for mental health purposes at a local hospital. They seized medical records of petitioner and his common law wife. Including of specific therapies recommended by the doctors. They presented no probable cause to the magistrate to seize business documents for silk alpaca corporation. Petitioner has standing to defend this unlawful seizure as he was an executive officer of the corporation and worked in many areas of the business. Further the warrant pat1icularity had no provisions to search for business records and the government has made no showing that the business was pervaded with fraud. United States v. Wey, 256 F.Supp.3d 355 (S.D.N.Y. 2017) Quite to the contrary the dozens of images of vintage plates ant other yard sale finds that the agents pa11icularized will quite clearly show the business to be resellers of legally acquired collectibles.
The agents are sexual deviants. Completely licentious in their particularization of any emails involving petitioners dating life. They par1icularized emails with girlfriends outside the temporal limitations permitted by the magistrate in the gmail search. In the fastmail account for which they had no warrant the government particularized unsolicited genital and breast pictures sent by potential and actual suitors. Petitioner is ashamed he hadn't deleted the files of past lovers that had been sent to his email. He had forgotten about them. The agents though particularized anything that was humiliating to petitioner and shared them with AUSA's. They had no warrant and these were images of adults that petitioner is ashamed were shared with the whole government. These women do not deserve to be visually raped by licentious perverts in the government just because in 2009-2013 they crossed paths with petitioner. It is absolutely disgusting! These all predated the temporal limitations in the actual warrants. The licentious degenerate AUSA should be sanctioned for distribution of revenge pornography.
The government agents also particularized with excessive zeal any files showing petitioners religious beliefs. In the house warrant the government seized his personal journal from when he was 15 and refused to return it until petitioner filed an appeal to the 9th circuit. The journal was almost entirely religious beliefs of petitioner. It was a shameful seizure. They also particularized documents in the Gmail warrant that were religious in nature and outside of the temporal limits provided by the magistrate. Such as this document written by petitioner last edited outside the temporal limits
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The government made no attempt to tailor the execution of the warrant to the particularity in any of the three warrants and therefore it is impossible after the fact to distinguish what was allowed and what was not. The government should be penalized for treating the warrants as general warrants. As noted by the 9th Circuit, "Here, there is a clear potential for the violation of Kitzhaber's rights. "[A}n order for the production of books and papers may constitute an unreasonable search and seizure within the 4th Amendment." Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 3 70, 50 L.Ed. 652 (1906), abrogated in part on other grounds by Murphy v. Waterfront Comm 'n of New York Harbor, 378 U.S. 52, 68, 84 S.Ct. 1594, 12 l.Ed.2d 678 (1964). This can be true "whether under a search warrant or a subpoena duces tecum ." Id. When the government crafts subpoenas, it must "make a reasonable effort to request only those documents that are relevant and non-privileged, consistent with the extent of its knowledge about the matter under investigation." In re Horn, 976 F.2d 1314, 1318 (9th Cir. 1992). A subpoena without such tailoring is "equally indefensible as a search warrant would be if couched in similar terms." Hale, 201 U.S at 77, 26 S.Ct. 370. (Kitzhaber *1088)
The combination of the subpoena's vast overbreadth and inclusion of messages as to which Kitzhaber has a reasonable expectation of privacy implicates privacy interests similar to those triggered by the issuance of a general warrant. As currently .famed, the subpoena will, if complied with, allow federal government agents seeking out the messages that bear relevance to their investigation to peruse all manner of private communications that do not. See generally United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en bane) ... We have also noted that electronic storage devices such as laptops "contain the most intimate details of our lives: fnancial records, confidential business documents, medical records and private emails," and held that "[t]hese records are expected to be kept private and this expectation is one that society is prepared to recognize as reasonable." United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (citation omitted). United States v. Kitzhaber (In re Grand Jury Subpoena), 828 F.3d 1083, 1090 (9th Cir. 2016)" The Agents deliberately and flagrantly seized emails and records covered by attorney/clieni privilege and work product doctrines
GMAIL-1018 Attorney client privilege for whistleblower reporting between DOL labor lawyer Meredith Young and petitioner. Falls well outside temporal limits of the warrant. The file was sent on April 2nd, 2008.
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GMAIL-1272 Continued protected whistleblower and attorney client privilege
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GMAIL-1322, GMAIL-932, GMAIL-1314, GMAIL-924, GMAIL-1312, GMAIL-922, GMAIL-1328, GMAIL-938, GMAIL-1326, GMAIL-936, GMAIL-1327, GMAIL-936, GMAJL-1329, GMAIL-939, GMAIL-1330, GMAIL-940, GMAIL-934, GMAIL-1324, APPLE-922. These were all protected under attorney client privilege, work product an(or subject to an inquiry which was conducted by the Idaho Personnel Commission. Idaho personnel commission inquiries cannot be disclosed under state law, they are classified. It is doubtful even a state court would have the power to disclose these communications. It would be impossible for the AUSA to not realize these were legally privileged.
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GMAIL-0909, OA TH-2809 -Provided to bankruptcy attorney to show financial records of Bitcoin sales. There are many more. The agents mined the bankruptcy emails and seized and pat1icularized all the attachments sent to the bankruptcy lawyer. The agents stripped the headers off of the emails so could try to hide their § 1983 crimes. For example the bankruptcy trustee specifically asked about various wire transfers sent in the 3 years prior to the bankruptcy filing. The agents seized the documentation of these wire transfers directly from the emails petitioner sent to his bankruptcy lawyer.
OATH-8125-8128 legally privileged work product used in pro-se bankruptcy filing regarding ECMC violating the automatic stay.
OATH-7422-7424, GMAJL-3100 Work product from same ECMC filing. It would be impossible for the agents to not see this was privileged work product. The 3100 listed it as an exhibit for court.
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OATH-6470 Legally privileged document sent by registered agent for Silk Alpaca Corporation. The government seized hundreds of documents from registered agents who are lawyers working on behalf of the corporation whom petitioner was the chief executive officer and was its day to day managing employee as part of its sweeping general warrant search of OATH.
OATH-5888-5889 Covered by attorney client privilege. These were sent to petitioner's bankruptcy lawyer when disclosing assets for the worksheets. The government stripped the email headers from the files so they could disguise the attorney client privilege.
Here are the email headers from the email sent to the attorney's office in Gmail of these files.
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Fastmail and Protonmail accounts had no warrant
The government seized emails from petitioner based on a signed consent form signed during extreme duress by petitioner on August 21, 2019 while being custodially interrogated without Miranda warnings in a Summers/Ganwich detention. The high temperature of the day was 97F, and petitioner was not provided water and was prohibited from standing or entering his home. He was isolated from his common law wife and prohibited from calling a lawyer when requested. The government does not dispute that Petitioner asked for a lawyer. The interrogation occurred in the 9th circuit. It lasted 6 ½ hours, and petitioner was in direct unobstructed summer sunlight on a day with a UV index of 8. His chair collapsed from heat stress and he was still not allowed to leave the interrogation location. He ultimately suffered heatstroke around the time his employer arrived at approximately high noon either before or after. There are some memory issues caused by suffering heatstroke. The FBI agents had a recorder but have lied ever since about its existence. Ada County admits having a recorder but they destroyed the recording a year after it was required to be saved by county policy. So here are the Kirn/Craighead factors on voluntariness for the supposed "consent" form.
https://xkcd.corn/538/ This work is licensed under a Creative Commons Attribution-NonCorrnercial 2.5 License.
1. Like the comic above, the agents used an inexpensive method to crack an impenetrable encryption scheme. They used the power of the sun to inflict deliberate hypertherria on Petitioner until he cracked from the dangers of heatstroke. The government didn't relent even after petitioner had suffered heatstroke. There was a specific time during an interview where Petitioner felt an unusual sensation that his body could no longer produce sweat.
2. Heat illness is a gradual disease that affects the central nervous system. It started off as excessive sweating and involved severe muscle cramps. It created severe dehydration and gagging. The government only allowed 2 cups of coffee the entire day in direct unobstructed sunlight. No water whatsoever was allowed, and the agents taunted petitioner.
3. It is clearly established that invoking heat illness is a violation ofthe4lh amendment., , , For reference the high temperature of the day in Hope v. Pelzer was 75F. It was 97F in the instant case.
Patel v. Lanier Cnty. Ga, 969 F.3d 1173 (11th Cir. 2020)
Kassab v. San Diego Police Dep't, 453 Fed.Appx. 747 (9th Cir. 2011)
Wilcomb v. City of Houston, No. H-17-1866, 2018 WL 925081, at * 1, *4-*5 (S.D. Tex. 2018)
HoDe v. Pelzer. 536 U.S. 730
The Pictures above are as follows from top left to bottom right.
1. From the location Petitioner was interviewed he was in direct unobstructed sunlight facing directly east.
2. Temperature in one of the plastic lawn chairs showing with outside shaded temperature at 68F the chair is 81.9F
3. Outside temp was 68F at the time of this photo.
4. Same Ada County Polo worn by petitioner during his custodial interrogation. High temperature was 97F for the day. In direct unobstructed sunlight the temperature reaches 110.1 F5. Substantially similar day to interrogation day showing a temperature of 97F with polo reaching 110. IF Lisinopril/HCTZ prescription taken by Petitioner. Warning: "You should avoid prolonged or excessive exposure to direct ... sunlight",
"Hydrochlorothiazide is a prescription drug used to treat high blood pressure and swelling. It is known to make skin more sensitive to ultraviolet radiation and sunlight, meaning patients can get sunburned more easily." https://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2019/68976a-eng.php Health Canada: Retrieved 9/12/21
"Many drugs also up your risk of heatstroke, a dangerous condition that requires immediate medical attention. They do this by reducing your body's ability to sweat, increasing the amount that you urinate, and decreasing your thirst so that you're less likely to drink an adequate amount of fluids ... Diuretics such as furosemide (Lasix), bumetanide (Bumex) and hydrochlorothiazide (HCTZ, Microzide)" McMillan, Matt. AARP. Drugs, Sun and Heat: A Dangerous Combination. https://www.aarp.org/health/drugs-supplements/info-2016/drugs-medicines-sunburn-heatstroke.htm I Retrieved 9/12/21
"Any Miranda waiver form(s) that Mr. Purbeck was presented with and/or signed. (Your client was not in custody. As such, agents did not provide Miranda warnings, and none were required)."
The Bold print above is AUSA Michael Herskowitz making a deliberately false statement about custody in the District of Idaho on August 21st, 2019.
i. Mr. Purbeck was seized. Agent Coffin laid a hand on Mr. Purbecks shoulder while he reached into his car to get his coffee mug. An unknown agent seized his car keys from him. James Pinette laid hands on Mr. Purbeck multiple times during the day. The first time was holding on to him so he could not wander about inside his own house while the agents devised a place to force an interrogation. He was seized again and taken outside where Mr. Purbeck was forced to sit in the chair of the agents choosing in direct unobstructed summer sunlight facing with his eyes directly East at approximately 7:35-7:45 just as the sun was rising above the fence line. Mr. Purbeck was searched and ordered to remove his phones for the agents. He hesitated and asked to be able to keep one, they ordered it removed from his pockets and then hands. Mr. Purbeck was again seized several hours in when his chair collapsed from heat stress, and he fell to the ground and complained of pain. Pinette seized him and placed him in a new chair. He was again seized when Agent Pinette decided it was break time. Petitioner couldn't walk of his own accord and was half carried by Agent Pinette until he regained his ability walk. He was taken to the restroom where the door was not allowed to be closed while he urinated brown urine. Mr. Purbeck was again seized near the end of the day when Pinette patted him down and then repeatedly felt around and held petitioner's testicles, At first petitioner thought it was as though the agent thought he has contraband somehow attached to his testicles or perineum. But it was too focused and weird. Petitioner imagines that the agent will dispute that claim however he also ordered the removal of Mr. Purbecks wallet and an emptying of his pockets. He dug through Mr. Purbecks wallet. This was a seizure of Mr. Purbeck and completely unreasonable. Mr. Purbeck was headed to work at a courthouse when he was seized earlier in the day. The Probable cause in the warrant was for a crime(s) that occurred in 2016-2018. Well over a year and a half before the search of the home. It is not plausible that petitioner had contraband attached to his penis or testicles including such things as personal bank statements or a laptop or a file drawer of personal data etc... He goes to work and is scanned through a metal detector with advanced screening just like at any federal courthouse. This search of his person for fruits of a stale crime was completely irrational and unreasonable. It does however implicate the 4lh amendment as a Summers/Ganwich detention only allows for at most a quick pat-down if there appears to be a gun or weapon on the person.
Leveto v. Lapina, 258 F.3d 156 (3d Cir. 2001)
(Image Omitted)
Caption on Evidence bag states "!phone on Robert Purbeck" and location "Person"
ii. Police Dominated Atmosphere: When Mr. Purbeck turned around after Agent Coffin laid a hand on him, he could see many agents swarming the house with guns drawn. It turns out that there were 14 armed FBI agents from New Jersey, Atlanta, Boise, Boston and perhaps elsewhere, two forensic personnel based out of Salt Lake, the dog Iris from New Jersey, and an armed Ada County Detective with gun visible along with a not visibly armed IT Director from Ada County. This is a 1200 square foot house. To say it was swarming with visibly armed police wearing body armor would be an understatement. 17 individuals not including Petitioner and his common law wife SG. If Mr. Purbeck was actually free to leave he had been stripped of his car keys and phones. It was a 97F day the closest designated heat shelter is 2.7 miles away at the Meridian Police Department.
iii. Freedom to leave: The government claims they told Mr. Purbeck he was free to leave. This is very much in dispute, however for the purposes of this inquiry it doesn't matter that much. "the mere recitation of [that] statement ... does not render an interrogation non-custodial per se" and must be assessed "within the context of the scene as a whole." Craighead, 539 F.3d at 1088 quoted from United States v. Herran, 20-10157 (9th Cir. Oct. 29, 2021) *3Mr. Purbeck was held in a Summers/Ganwich detention and was not allowed to stand without permission. He was escorted tc the toilet where he was unable to close the door while he urinated. He was not given water, food, or sunscreen. He was not allowed to speak to his common law wife nor allowed to use a phone when one was requested for the exclusive purpose of calling a lawyer when the agents wouldn't stop questioning him. The interrogating agents initially wore body armor and always had guns in plain view. An agent sat in the way of the door so that Mr. Purbeck could not exit the interview to go into the police dominated house without first walking past the armed agent.
United States v. Blanford, 467 Fed.Appx. 624 (9th Cir. 2012)
United States v. Herran, 20-10157 (9th Cir. Oct. 29, 2021) *3
(Image Omitted)
FBI provided photo NMH5149.JPG and closeup of agent in plastic lawnchair wearing Body armor with Petitioner facing directly East into direct unobstructed sunlight while the agent is shown deliberately blocking the entry to the home at timestamp 8:01 a.m. August 21, 2019. When the other officer sat down the curtains were drawn closed for the remainder of the day.
iv. Presentation of Guilt: The agents report of the interview contains many outright lies, but for this inquiry it doesn't matter. The report is 9 pages long and is chock full of evidence that the agents continuously presented Mr. Purbeck with evidence of guilt for an extended period. The agents did not stick to booking questions. This was a full-scale interrogation by the agents who also refused access to a lawyer and a phone to call one. By the time Mr. Purbeck requested a lawyer it had been over two hours of questioning. Mr. Purbeck was screamed at by a third agent who came out during the during the interrogation with his hand on his gun. Apparently, he was looking for a gun.
v. Length of Interrogation: The hand written contemporaneous notes of the agents consisted of 12 pages for Agent Pinette, and 6 pages from Coffin. After this portion of the interrogation Ada County conducted its own interrogation. Agent Pinette recorded two additional pages of notes from this questioning. In all. Mr. Purbeck was left in mostly direct unobstructed sunlight for 6 14 hours with minimal breaks from questioning. He was given one short break completely controlled by the agent. He also sat in the shade for a short period of time with a kind agent from Boise who allowed him to sit in the shaded area of the yard. When Agent Pinette came back out and saw the act of kindness he then did the sexual assault "pat-down" mentioned earlier in the brief and continued questioning afterwards in direct sunlight. If no Miranda warnings were given per the governments view of the events. 6 ½ hours would be on the long side of interrogation especially given the lack of water, access to use a phone and food a critical factor in early 20th century pre-Miranda forced confession cases.
In re Fried, 161 F.2d 453 (2d Cir. 1947)
vi. Isolation: Mr. Purbeck was isolated from any contact outside of FBI agents and two Ada County employees for 6 ½ hours. The curtains to all the back rooms of the house were closed so that Mr. Purbeck could not see anyone. He asked if he would be able to see his common law wife before he was taken to jail, and the agents told him it would depend on the AUSA. He asked repeatedly if he was under arrest and was told the same thing. The first time he knew he would be allowed to stay at his home was right after Agent Pinette physically searched his person and was looking through the wallet of Petitioner. Pinette got a call from the AUSA telling him to release Mr. Purbeck. That was the first time the whole day that petitioner knew he would not be formally arrested. That was less than 15 minutes before everyone left the home. He was prohibited from making a phone call on the corporation phone, his own phone which was seized, the Ada County phone that was part of his work equipment which was seized, and Agent Coffin refused to let him make a phone call. He was completely isolated and eventually the extreme heat and the helplessness of the situation where petitioner was suffering advanced heat illness made him waver and give a confession and testimonial encryption password.
vii. Exploitation of a Summers/Ganwich, , detention: Mr. Purbeck twice-searched was isolated from his common-law wife and business partner for 6.5 hours. She too was also isolated and unable to leave the house. She was told she was free-to-leave. Petitioner does not recall the agents telling him he was free-to-leave. Both individuals were stripped of their phones including from the pocket of Petitioner during a Summers detention. Both were prohibited from using any phone including the Silk Alpaca Corporation telephone for which both were employed and which the government prohibited its use in violation of Ganwich. Petitioners' common-law wife is disabled and receives SSDI for a back surgery performed when she was 19 years old. She is unable to walk any large distance without injuring herself. The agents also told her she could not use her phone. She was isolated and prohibited from using her car to drive and she wished to call an attorney to assist both petitioner and herself, but they refused to allow access to a phone and then exploited the detention to force interrogations. At the end-of-the-day no phone or even memory-equipped camera was left for either individual to document constitutional violations.
Michigan v. Summers, 452 U.S. 692 (1981)
Ganwich v. Knapp, 319 F.3d 1115 (9th Cir. 2003)
Cruz v. Barr, 926 F.3d 1128 (9th Cir. 2019)
The Government fully exploited the detention to conduct interrogations which was something the Summers court warned law enforcement from doing. The detention was for law enforcement safety, it was not to be exploited for interrogations. Both Petitioner and SG were interrogated. Petitioner for 6 ½ hours. Not as Iong for SG because she needs constant medical attention for a disability.
viii. Garrity:
Garrity is also implicated. Petitioner was told his employer would be there to "interview" him. Because of the invocation. Petitioner felt he could be fired for leaving the interrogation even if that was actually a possibility., The agents had absolutely no reason to inform petitioner of the future presence of Ada County except for coercion. Petitioner tried to maintain silence for nearly two hours only answering biographical questions, but eventually the isolation, the extreme heat, cramping, sweating, and sunburn and the knowledge that he would lose his job caught up to him. It was a Hobsons choice between water and non-prosecution and continued lack of water and losing his job. Of course, the agents didn't provide water or shelter from the heat or sunscreen anyway after petitioner confessed and gave the encryption password.
Garrity v. New Jersey, 385 U.S. 493 (1967)
United States v. Goodpaster, 65 F.Supp.3d 1016 (D. Or. 2014')
The agents explicitly wrote in their report that Mr. Purbeck made an equivocal request for a lawyer. Since the agents are unwilling to provide the recording they made, and are willing to commit perjury regarding it, Petitioner is forced to work with what they submitted. He will again put in the record that he did make the request, "Do I need a lawyer?" agent Coffin suggested this was just a conversation. Petitioner then explicitly asked to make a phone call on his own cell phone for a lawyer. Agent Coffin suggested he could destroy evidence. Petitioner then asked if he could use Agent Coffins phone to call a lawyer and was again rebuffed that he could destroy evidence. Agent Coffin then stated, "You better make that call soon, only the first person to talk gets a deal." However, since we are working with the agents record, the ambiguous request for a lawyer required clarification by the agent and no questioning could proceed without a true waiver.
U.S. v. Rodriguez, 518 F.3d 1072 (9th Cir. 2008)
Therefore, because the interrogations within the 9th circuit were conducted illegally the consent to authorize access to the email accounts without warrants was involuntary and signed under extreme duress. The government is attempting to wash the taint of an unlawful confession by moving the prosecution to the ND Georgia, but the choice of law favors the Lex Loci of Idaho in the 9th circuit over the Lex Fori of ND Georgia. U.S. v. Gerena, 667 F.Supp. 911 (D. Conn. 1987)*927
Conclusion
Petitioner requests a hearing to inspect the documents that were covered by attorney client privilege. The precedent in the circuit appears that the court should order a hearing to inspect documents covered by attorney-clieni privilege. See Kitzhaber and United States v. Sullivan, CR. No. 17-00104 JMS-KJM (D. Haw. Apr. 9, 2020) The amount of files seized that were not covered by the warrant particularity was so immense that the court could also order blanket suppression for deliberate over seizure. They even particularized some spam from the spam folders and daily advertisements from all sorts of businesses like Petsmart and Home Depot. The government had the headers of the email accounts prior to the execution of the search warrant. They knew the accounts listed were used as the primary accounts for petitioner since as early as 2006. They had the names of attorneys Petitioner had worked with from 2006 and should have informed the magistrate of the need for a taint team. But the AUSA and agents wanted to use the warrant as a writ-of-assistance to search out leads in the bankruptcy filings and attorney communications in regard to the !PC hearings and subsequent lawsuit against COHO.
The Government had no warrant for the Fastmail and Protonmail accounts and yet they particularized all sorts of files including legal nude photos of adult women. Even if the court decided the unmirandized interrogation was consensual despite Herranand Craighead, the seizure was profoundly unreasonable. (U.S. v. Strickland, 902 F.2d 937 (I I th Cir. 1990))
United States v. Herran, 20-10157 (9th Cir. Oct. 29, 2021)
U.S. v. Craighead, 5 39 F.3d 1073 (9th Cir. 2008)
The government also destroyed the encryption key for Protonmail prohibiting petitioner from gathering a specific set of emails that constituted Brady materials. The government only particularized emails favorable to their case-in-chief from the protonmail accounts. The Brady materials destroyed by the government showed that the Lifelock account on Alphabay was created for a different person then petitioner and that the account was controlled by that person with access to all encryption keys and login information.
Signed this day March 31, 2022.