The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
A federal grand jury indicted Defendant Stephen Linder, a Deputy United States Marshal for the Northern District of Illinois, in a four count indictment charging that he violated the civil rights of two individuals by using excessive force on two separate occasions and then attempted to conceal or prevent information regarding those incidents to be presented in the course of the investigation. Specifically, the indictment alleges that Linder struck and choked Individual SS on July 8, 2010 (Count One) and head-butted Individual EU on May 13, 2008 (Count Three) both in violation of 18 U.S.C. § 242 . The indictment also alleges that Linder then attempted to corruptly persuade two other individuals, known respectively as Individual HS and Individual SM, to withhold evidence concerning the incidents from federal authorities in order to hinder, delay, and prevent the communication of a possible commission of a federal offense in violation of 18 U.S.C. § 1512(b)(3) (Counts Two and Four). Linder moved to dismiss the Indictment (Doc. 26), suppress all evidence obtained from the search of electronic devices seized by the government (Doc. 25), for a bill of particulars (Doc. 24), for disclosure of favorable evidence (Doc. 23), and for early return of trial subpoenas (Doc. 22).
In the government's response to Linder's Motion for the Early Return of Trial Subpoenas it requested that this Court order it to be able to issue subpoenas pursuant to Federal Rule of Criminal Procedure 17(c) as well. On June 13, 2012, the Court granted the Motion for the Early Return of Trial Subpoenas as to both sides. (Doc. 37). On the same day, the Court denied Linder's Motion for the Disclosure of Favorable Evidence as moot. (Id.). The remainder of Linder's motions are contested by the government.
I. Motion for a Bill of Particulars
Linder first moves this Court for an order directing the government to provide him with a bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f) regarding Counts Two and Four of the indictment. Specifically, he seeks to have the Government identify the unlawful conduct charged, namely, the attempt to corruptly persuade Individual HS to withhold evidence that he allegedly engaged in on July 8, 2010 and the alleged attempt to do the same with Individual EU two years earlier.
The government counters that Linder has received substantial discovery regarding Counts Two and Four that included the internal investigation that the U.S. Marshal Service conducted after Individual EU filed a formal complaint against Linder. As part of that investigation several individuals were interviewed, including Individual SM, and the entire file, including a transcript of the internal affairs investigators' interview of Individual SM has been provided to Linder. Furthermore, the government contends that it has agreed to Linder's request to provide Jencks v United States, 353 U.S. 657 (1957),and Giglio v. United States, 405 U.S. 150 (1972), materials at least thirty days before trial. The government asserts that in disclosing this additional material it will be providing additional information to Linder regarding Counts Two and Four.
A bill of particulars is only necessary in those circumstances in which an indictment lacks sufficient detail to allow a defendant to prepare for trial, avoid prejudicial surprise, or protect himself against double jeopardy. See U.S. v. Glecier, 923 F.2d 496, 502 (7th Cir. 1991). The test for whether a bill of particulars is "necessary is whether the indictment sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges to enable him to prepare for trial." United States v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981) (internal citations and quotations omitted). An indictment that includes each of the elements of the charged crime, the time and place of the defendant's conduct which constitutes a violation, and a citation to the statute provides sufficient notice for the defendant to prepare for trial. See United States v. Fassnacht, 332 F.3d 440, 446 (7th Cir. 2003).
Although a defendant is not entitled to know all of the evidence that the government intends to produce against him at trial; he is entitled to know only the theory of the government's case. See Kendall, 665 F.2d at 135. If that theory is known through some other satisfactory form such as discovery, the bill is not necessary. See United States v. Blanchard, 542 F.3d 1133, 1140 (7th Cir. 2008). Usually, a bill of particulars is inappropriate if the defendant has access to the documents and witness statements which the government's case is built upon. See Glecier, 923 F.2d at 502.
Recognizing that the decision of whether or not to grant a bill of particulars lies within the sound discretion of the district court, and the decision will only be reversed if the defendant suffers actual prejudice from a denial of a motion for a bill of particulars, see Glecier, 923 F.2d at 501, the Court examines whether the indictment in this case provides Linder with sufficient notice to prepare for trial. With respect to Count Two, Linder has been able to identify the individual he is alleged to have attempted to corruptly persuade based on the evidence provided to him; yet, he is unable to identify the manner in which Linder allegedly corruptly persuaded HS. Corrupt persuasion can take many forms. What Linder claims he is not aware of are the specific acts that he allegedly committed which constituted the corrupt persuasion. Similarly, with respect to Count Four, Linder has been able to identify the individual he has allegedly corruptly persuaded, but he is not certain of the means that he did so, since the indictment is void of any facts alleging how he did so.
According to Linder, not only does the discovery tendered by the government to date not provided sufficient detail to allow him to prepare for trial, the reports provided actually provide conflicting information. For example, as to Count Four Linder alleges that the internal affairs investigation provides a report of Individual SM's testimony that the government alleges reveals to him the corrupt persuasion, when in fact, the testimony actually exonerates him with respect to the assault charged in Count Three. As such, the information provided has failed to give Linder the detail necessary to prepare for his defense since he cannot ascertain the means by which he is alleged to have corruptly persuaded the two individuals in the Indictment.
In charging an obstruction count an indictment is sufficient when it provides the charging statute, the elements of the offense, and sufficient detail to provide notice to the defendant of the charges against him. See Fassnacht, 332 F.3d at 444-447. In Fassnacht, the defendants were charged with, among other things, violating 18 U.S.C. § 1503 for obstructing the grand jury investigation of their alleged crime, tax evasion. See Id. at 444. Noting that a conviction under § 1503 requires a specific intent to impede the grand jury, the defendants argued that the indictment was deficient because it did not refer to an act or endeavor specifically aimed at the grand jury investigation. See Id. In the alternative, the defendants claimed that they were entitled to know the specific acts that the government believed they undertook in violation of § 1503. See Id. at 446-447. The Seventh Circuit rejected both of these arguments and held that no bill of particulars was necessary because the indictment provided the charging statute, the elements of the offense, and sufficient detail to put the defendants on notice. See Id. at 444-447. Here, unlike in Fassnacht, Linder has no knowledge of the specific acts that form the basis of the obstruction charges contained in Counts Two and Four because he has not received sufficient details to prepare for trial through the Indictment and discovery. The Indictment in the present case provides the charging statute and the elements of the offense. What the discovery and the Indictment do not provide is sufficient detail to put Linder on notice of how he committed the charges against him. See Id. For the foregoing reasons, Linder's Motion for a Bill of Particulars is granted. The government is ordered to furnish Linder with a bill of particulars pursuant to Federal Rule of Criminal Procedure 7(f) with respect to Counts Two and Four of the Indictment by providing him with the means by which he corruptly persuaded Individual HS and Individual SM on July 8, 2010 and June 2008 respectively.
Linder moves to suppress the information that was obtained by the government from a search of his Blackberry smart device and the electronic files contained on the government server. Linder claims that the search at issue was an illegal warrantless search in violation of the Fourth Amendment. Linder claims that he had a legitimate subjective expectation of privacy in his digital information and that this expectation of privacy is one that society is prepared to recognize as reasonable. As such, Linder requests that this Court suppress all of the evidence obtained by the government through its search of his Blackberry and computer files stored on the government server, as well as the poisonous fruits of this allegedly illegal search.
A. Facts Regarding the Searches
Linder is charged with, inter alia, two counts of violating 18 U.S.C. § 242 for using excessive force against a handcuffed civilian, once in 2010 and once in 2008. In the 2010 incident another officer confronted Linder immediately after the assault. According to the government, in an attempt to placate that officer Linder sent him a series of instant messages from his government-issued Blackberry smart phone. On July 16, 2010, the Office of Internal Investigation referred the incident to the Office of the Inspector General of the Department of Justice ("OIG"), and ten days later the OIG confirmed that it would handle the investigation into the matter. Special Agent Kevin Shirley of the OIG Chicago Field Office began to participate in the investigation of Linder. On September 27, 2010, following the initiation of the criminal investigation by the Department of Justice and the OIG, Linder was directed into his supervisor's office where he was ordered to turn over his government-issued Blackberry. Immediately thereafter Agent Shirley sent Linder's Blackberry to the OIG Dallas Field Office for forensic testing and analysis. The Dallas office received the Blackberry on September 30, 2010. Agent Shirley instructed the forensic examiner that the smart phone contained evidence of an assault committed by Linder on a civilian. The Blackberry was searched and imaged, and the Dallas office completed a forensic report that contained all of the information requested by Shirley. The evidence gathered from the government's search was attached to the forensic report prepared by the Dallas office. The information culled from the Blackberry by the Dallas office included Linder's personal pictures, emails, text messages, and contacts.
Also, on August 16, 2010, Agent Shirley of the OIG requested Linder's emails that were stored on the government server from July 1, 2010 through August 21, 2010. On March 21, 2011, the OIG renewed its request for copies of Linder's emails on the server from June 23, 2010 through that date because it appeared that some emails were missing. The OIG also received, without a specific request, a copy of documents and other computer files that Linder chose to place on the government server when it received a copy of Linder's emails.
Agents did not inspect each and every document, but instead used the alleged victim's last name as a search term to find relevant documents. That search brought up a document entitled "debacle." Upon initial inspection, the file, which was not password-protected, appeared to be Linder's own first-hand account of the events that form that basis of Counts One and Two of the Indictment. In an abundance of caution, the government agents stopped reading the document and sent it to a taint team for review. To this day the prosecution team, comprising the Assistant United States Attorney from the Department of Justice as well as those members of the trial team acting under his direction, state that it has not read an un-redacted copy of the "debacle" file. During the investigation the government did not inspect Linder's government-issued computer, and therefore never recovered any data that was saved exclusively on his hard drive. The only computer files searched were retrieved from the government servers.
B. Private Use of the Government-Issued Electronic Equipment
As for the computer equipment issued to Linder, the Department of Justice ("DOJ") issued policies notifying all employees that they have no expectation of privacy when they access the DOJ's computer information system. Specifically, the first sentence of the DOJ computer usage policy states: "This Order states the Department's policy on the use of departmental computers and computer systems, the lack of expectation of privacy with respect to such use, and authorized monitoring or access to information on departmental computers and computer systems." (Doc. 31; Exhibit 3) (emphasis supplies). The U.S. Marshals Service ("USMS") has also implemented policies that also state that there is no expectation of privacy in the use of USMS-provided computer information systems. The USMS Internet Usage Policies and Monitoring states, in part, that "[e]mployees should be aware of lack of expectation of privacy with respect to such use and on the authorized monitoring or access to information on departmental computers and computer systems." (Doc. 31; Exhibit 4) (emphasis supplied). That policy also states in relevant part:
Employees are reminded that there is no expectation of privacy in the use of government computers or computer systems. The Department may access e-mail messages or other documents on government computer systems whenever it has a legitimate governmental purpose for doing so. To the extent that employees wish that their private activities remain private, they should avoid using departmental computer systems for such activities. (Id.) (emphasis supplied). A USMS Policy Directive further provides that "[t]he use of a USMS computer or telecommunications system, including a personal computer connected to the USMS or DOJ network, constitutes consent to monitoring." (Doc. 31; Exhibit 5) (emphasis supplied).
An employee is reminded of these policies via banner each time he logs on to use his government-issued computer or Blackberry. The computer banner states, in part:
Warning: You are accessing a U.S. Government information system, which includes: (1) this computer; (2) this computer network; (3) all computers connected to this network; and (4) all devices and storage media attached to this network or to a computer on this network. This information system is provided for U.S. Government-authorized use only. . .By using this information system, you understand and consent to the following: You have no reasonable expectation of privacy regarding any communication transmitted through or data stored on this information system. At any time, the government may monitor, intercept, search and/or seize data transmitting or stored on this information system. (Doc. 31; Exhibit 6) (emphasis supplied). The log-on banner for the Blackberry states, in relevant part: "WARNING[:] This is US Government Property. Use is subject to monitoring."
(Doc. 31; Exhibit 7) (emphasis supplied).
Each year, Linder was required to undergo Computer Security Awareness Training. In 2009, for example, the training program reminded attendees that they had no expectation of privacy "as to any communication on or information stored within the system" and that this applied to all emails. (Doc. 31; Exhibit 8). The training also detailed the General Rules of Behavior, which include, in relevant part, "[u]se DOJ information systems for lawful, official use and authorized purposes in accordance with current guidelines. . .Read and understand the DOJ standard network security warning banner prior to logging on to the network." (Id.). As part of the Computer Security Awareness Training, Linder was required to click a button that stated, in relevant part, "I acknowledge receipt of those ROB and understand my responsibilities as identified in the October 1, 2008, General Rules of Behavior for DOJ systems." (Id.). Linder certified that he took the Computer Security Awareness Training on April 21, 2009. (Doc. 31; Exhibit 9). He recertified that he took subsequent Trainings on April 22, 2010 and April 8, 2011. (Id.). The facts that the DOJ and the USMS issued policies that Linder was aware of, that banners and warnings were displayed on Linder's government-issued devices, and that Linder was required to attend Computer Security Awareness Trainings are not contested by Linder.
C. Legal Standard - Privacy Interest
Linder's Motion to Suppress is governed by the warrant requirement contained in the Fourth Amendment's Warrant Clause, and the exclusionary rule that applies to illegal warrantless searches in pending criminal matters. See Weeks v. United States, 232 U.S. 383 (1914) (the exclusion of evidence obtained in violation of the Fourth Amendment is the appropriate remedy in federal criminal prosecutions); Mapp v. Ohio, 367 U.S. 643 (1961) (applying the exclusionary rule for violations of the Fourth Amendment to state proceedings). The Fourth Amendment to the Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend ...