Petition for Writ of Certiorari — Moises Orlando Zelaya-Veliz, Jose Eliezar Molina-Veliz, Luis Alberto Gonzales, Gilberto Morales, and Jonathan Rafael Zelaya-Veliz, Petitioners v. United States

Supreme Court briefJul 12, 2024

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No. 24In the

Supreme Court of the United States

MOISES ORLANDO ZELAYA-VELIZ, JOSE ELIEZAR MOLINA-VELIZ,

LUIS ALBERTO GONZALES, GILBERTO MORALES, AND

JONATHAN RAFAEL ZELAYA-VELIZ,

Petitioners,

v.

UNITED STATES,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Donna L. Biderman

Law Office of Donna Biderman

4015 Chain Bridge Road, Suite 38

Fairfax, VA 22030

Counsel for Petitioner

Mr. Gilberto Morales

Jeffrey Zimmerman

Jeffrey Zimmerman, PLLC

108 North Alfred Street

Alexandria, VA 22314

Counsel for Petitioner

Mr. Luis Alberto Gonzalez

Donald E. Harris

Harris Law Firm

2800 Eisenhower Avenue, Suite 220

Alexandria, VA 22314

Counsel for Petitioner

Mr. Jose Eliezar Molina-Veliz

330446

Joseph D. King

Counsel of Record

King, Campbell, Poretz

& Mitchell PLLC

118 North Alfred Street

Alexandria, VA 22314

(703) 683-7070

jking@kingcampbell.com

Counsel for Petitioner

Mr. Moises Zelaya-Veliz

Christopher A molsch

12005 Sunrise Valley Drive,

Suite 200

Reston, VA 20191

Counsel for Petitioner

Mr. Jonathan Rafael Zelaya-Veliz

A

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

1.

Does the Fourth Amendment prohibit the issuance of apparent “all-data”

warrants for Facebook accounts without any temporal limitation whatsoever,

where the warrants resulted in exposing potentially more than a decade of the

subject’s personal information and communications to government scrutiny?1

2.

Does the Fourth Amendment prohibit the issuance of apparent “all-data”

warrants for Facebook accounts for a period of 18 months or longer, where the

warrants demanded all conceivable contents of the accounts during that time

period, including the account owners’ GPS information for eight months prior

to the alleged crimes, even though the alleged incidents occurred over a less

than a two-month period?2

1 This question presented pertains to Petitioner Luis Alberto Gonzalez.

This question presented pertains to Petitioners Moises Zelaya-Veliz, Jonathan

Rafael Zelaya-Veliz, Gilberto Morales and Jose Eliezar Molina-Veliz.

2

STATEMENT OF RELATED CASES

•

United States v. Moises Zelaya-Veliz, 1:20-cr-196-AJT-1, U.S. District Court for

the Eastern District of Virginia. Judgement entered on November 10, 2022.

•

United States v. Jonathan Rafael Zelaya-Veliz, 1:20-cr-196-AJT-10, U.S. District

Court for the Eastern District of Virginia. Judgement entered on November 10,

2022.

•

United States v. Gilberto Morales, 1:20-cr-196-AJT-9, U.S. District Court for the

Eastern District of Virginia. Judgement entered on November 10, 2022.

•

United States v. Luis Alberto Gonzales, 1:20-cr-196-AJT-6, U.S. District Court for

the Eastern District of Virginia. Judgement entered on November 10, 2022.

•

United States v. Jose Eliezer Molina-Veliz, 1:20-cr-196-AJT-4, U.S. District Court

for the Eastern District of Virginia. Judgement entered on November 10, 2022.

•

United States v. Moises Zelaya-Veliz, No. 22-4656, U. S. Court of Appeals for the

Fourth Circuit. Judgment entered on February 16, 2024. Petition for rehearing

denied on March 15, 2024.

•

United States v. Jonathan Rafael Zelaya-Veliz, No. 22-4659, U. S. Court of

Appeals for the Fourth Circuit. Judgement entered on February 16, 2024.

Petition for rehearing denied on March 15, 2024.

•

United States v. Gilberto Morales, No. 22-4669, U. S. Court of Appeals for the

Fourth Circuit. Judgement entered on February 16, 2024. Petition for rehearing

denied on March 15, 2024.

ii

•

United States v. Luis Alberto Gonzales, No. 22-4670, U. S. Court of Appeals for

the Fourth Circuit. Judgement entered on February 16, 2024. Petition for

rehearing denied on March 15, 2024.

•

United States v. Jose Eliezer Molina-Veliz, No. 22-4684, U. S. Court of Appeals

for the Fourth Circuit. Judgement entered on February 16, 2024. Petition for

rehearing denied on March 15, 2024.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................................................................... i

STATEMENT OF RELATED CASES .......................................................................... ii

TABLE OF CONTENTS ............................................................................................... iv

TABLE OF APPENDICES ............................................................................................ v

TABLE OF CITED AUTHORITIES ............................................................................ vi

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ....................... 2

STATEMENT OF THE CASE ....................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................. 15

I.

THIS CASE PRESENTS IMPORTANT FEDERAL

QUESTIONS .......................................................................................... 16

II.

THE FOURTH CIRCUIT’S DECISION CONFLICTS WITH

OTHER CIRCUIT COURT, DISTRICT COURT, AND STATE

COURT DECISIONS ............................................................................. 20

A.

The Circuit Divide ....................................................................... 21

B.

The District Court Divide ............................................................ 28

C.

State Court Decisions .................................................................. 30

III.

THIS CASE IS AN APPROPRIATE VEHICLE FOR

DETERMINATION OF THE QUESTIONS PRESENTED.................. 33

IV.

THE WARRANTS IN THE INSTANT CASE WERE

UNCONSTITUTIONALLY OVERBROAD ........................................... 34

CONCLUSION............................................................................................................. 37

iv

TABLE OF APPENDICES

Page

OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, FILED FEBRUARY 16, 2024 ........................................ 1a

EXCERPT OF TRANSCRIPT OF THE UNITED STATES DISTRICT

COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA

DIVISION, DATED OCTOBER 27, 2021 ...................................................... 40a

EXCERPT OF TRANSCRIPT OF THE UNITED STATES DISTRICT

COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA

DIVISION, FILED JANUARY 9, 2023 .......................................................... 45a

DENIAL OF REHEARING OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT, FILED MARCH 15, 2024 ......... 59a

v

TABLE OF CITED AUTHORITIES

Page(s)

Cases:

Burns v. United States,

235 A.3d 758 (D.C. 2020) .................................................................................. 31

Commonwealth v. Holley,

87 N.E.3d 77 (Mass. 2017) ................................................................................ 32

Coolidge v. New Hampshire,

403 U.S. 443 (1971) ..................................................................................... 15, 36

Hedgepath v. Commonwealth,

441 S.W.3d 119 (Ky. 2014) ................................................................................ 32

Kentucky v. King,

563 U.S. 452 (2011) ........................................................................................... 15

Marron v. United States,

275 U.S. 192 (1927) ..................................................................................... 18, 27

Matter of Black iPhone 4,

27 F. Supp. 3d 74 (D.D.C. 2014) ....................................................................... 28

People v. Clarke,

156 N.Y.S.3d 830 (N.Y. Sup. Ct. 2021) ............................................................. 32

Richardson v. State,

481 Md. 423, 282 A.3d 98 (2022) ...................................................................... 31

Riley v. California,

134 S. Ct. 2473 (2014) ................................................................................. 14, 18

Riley v. California,

573 U.S. 373 (2014) ................................................................... 15, 16, 34, 35, 36

State v. Bock,

310 Or. App. 329, 485 P.3d 931 (2021) ............................................................. 32

State v. Castagnola,

46 N.E.3d 638 (Ohio 2015) ................................................................................ 32

State v. Henderson,

854 N.W.2d 616 (Neb. 2014) ....................................................................... 31, 32

State v. Keodara,

364 P.3d 777 (Wash. App. 2015) ....................................................................... 31

State v. Smith,

344 Conn. 229, 278 A.3d 481 (2022) ................................................................. 31

vi

Taylor v. State,

260 A.3d 602 (Del. 2021) ................................................................................... 31

United States v. Abboud,

438 F.3d 554 (6th Cir. 2006) .............................................................................. 24

United States v. Abrams,

615 F.2d 541 (1st Cir. 1980) ........................................................................ 22, 28

United States v. Bass,

785 F.3d 1043 (6th Cir. 2015) ............................................................................ 24

United States v. Bishop,

910 F.3d 335 (7th Cir. 2018) ........................................................................ 26, 31

United States v. Blake,

868 F.3d 960 (11th Cir. 2017) .......................................................... 17, 21, 22, 36

United States v. Burgess,

576 F.3d 1078 (10th Cir. 2009) .......................................................................... 27

United States v. Burkhow,

No. 19-CR-59, 2020 WL 589536

(N.D. Iowa Feb. 6, 2020) ................................................................................... 28

United States v. Chavez,

423 F. Supp. 3d 194 (W.D.N.C. 2019) .............................................................. 28

United States v. Cobb,

970 F.3d 319 (4th Cir. 2020) ....................................................................... 25, 31

United States v. Daprato,

2022 WL 1303110 (D.Me. 2022) ....................................................................... 29

United States v. Franklin,

2022 WL 3572498 (W.D. Mo. Aug. 18, 2022) ................................................... 29

United States v. Ford,

184 F.3d 566 (6th Cir. 1999) ........................................................................ 23, 24

United States v. Kamara,

2023 WL 8357946 (E.D. Va. Dec. 1, 2023) ....................................................... 31

United States v. Kow,

58 F.3d 423 (9th Cir. 1995) ................................................................................ 22

United States v. Lazar,

604 F.3d 230 (6th Cir. 2010) .............................................................................. 24

United States v. Leary,

846 F.2d 592 (10th Cir. 1988) ............................................................................ 26

vii

United States v. Leon,

468 U.S. 897 (1984) ........................................................................................... 14

United States v. Loera,

923 F.3d 907 (10th Cir. 2019) ...................................................................... 26, 27

United States v. Mann,

592 F.3d 779 (7th Cir. 2010) .............................................................................. 26

United States v. Mercery,

591 F. Supp. 3d 1369 (M.D. Ga. 2022) ............................................................. 28

United States v. Moises Zelaya-Veliz, et al.,

94 F.4th 321 (2024) ..................................................................... 1, 13, 18, 21, 34

United States v. Payton,

573 F.3d 859 (9th Cir. 2009) .............................................................................. 18

United States v. Rosa,

626 F.3d 56 (2nd Cir. 2010) ................................................................................ 23

United States v. Russian,

848 F.3d 1239 (10th Cir. 2017) .......................................................................... 26

United States v. Sharp,

2015 WL 4641537 (N.D. Ga. Aug. 5, 2015) ...................................................... 30

United States v. Shipp,

392 F. Supp. 3d 300, 308 (E.D.N.Y. 2019),

aff’d, 2d Cir. No. 21-1284-CR,

2022 WL 16543193 (2nd Cir. Oct. 31, 2022).......................................... 17, 18, 29

United States v. Skinner,

2021 WL 1725543 (E.D. Va. Apr. 29, 2021) ..................................................... 29

United States v. Stabile,

633 F.3d 219 (3rd Cir. 2011) .............................................................................. 25

United States v. Westley,

2018 WL 3448161 (D. Conn. July 17, 2018) ..................................................... 30

United States v. Williams,

592 F.3d 511 (4th Cir. 2010) .............................................................................. 25

United States v. Winn,

79 F. Supp. 3d 904 (S.D. Ill. 2015).................................................................... 28

United States v. Yusuf,

461 F.3d 374 (3rd Cir. 2006) .............................................................................. 25

Wheeler v. State,

135 A.3d 282 (Del. 2016) ............................................................................. 25, 31

viii

Statutes & Other Authorities:

U.S. CONST. amend. IV ...................................................................... 2, 9, 13, 16, 20, 21

18 U.S.C. § 1591(a) ........................................................................................................ 2

18 U.S.C. § 1591(b)(1) .................................................................................................... 2

18 U.S.C. § 1591(c) ......................................................................................................... 2

18 U.S.C. § 1594(c) ......................................................................................................... 2

18 U.S.C. § 1951(a) .................................................................................................... 2, 7

18 U.S.C. § 1951(b)(1) ................................................................................................ 2, 7

18 U.S.C. § 1951(c) ...................................................................................................... 2,7

18 U.S.C. § 1952 ............................................................................................................. 7

18 U.S.C. § 1959(a)(3) .................................................................................................... 7

18 U.S.C. § 2421 ............................................................................................................. 7

18 U.S.C. § 2422(a) ........................................................................................................ 7

18 U.S.C. § 2423(a) ..................................................................................................... 2,7

18 U.S.C. § 2423(e)......................................................................................................... 2

28 U.S.C. § 1254(a) ........................................................................................................ 2

Fed. R. Crim. P. 41(e)(2)(B) ......................................................................................... 13

U.S. Sup. Ct. R. 10(a) ................................................................................................... 20

U.S. Sup. Ct. R. 10(c) ................................................................................................... 20

About Mark Zuckerberg, Founder, Chairman and Chief Executive Officer of

Meta at https://about.meta.com/media-gallery/executives/markzuckerberg/ .......................................................................................................... 8

Pew Research Center, Americans’ Social Media Use

(https://www.pewresearch.org/internet/2024/01/31/americans-socialmedia-use/) ........................................................................................................ 16

Jack Nicas, What Data About You Can the Government Get From Big

Tech, New York Times (July 14, 2021).

https://www.nytimes.com/2021/06/14/technology/

personal-data-apple-google-facebook.html ....................................................... 16

ix

PETITION FOR A WRIT OF CERTIORARI

Petitioners Moises Zelaya-Veliz, Jonathan Rafael Zelaya-Veliz, Gilberto

Morales, Luis Alberto Gonzales, and Jose Eliezar Molina-Veliz (together

“Petitioners”) respectfully petition for a writ of certiorari to the United States Court

of Appeals for the Fourth Circuit to review the judgment against them in United

States v. Moises Zelaya-Veliz, et al., 94 F.4th 321 (2024).

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit

denying the Petitioners’ appeal is published at 94 F.4th 321 (4th 2024); it is

reproduced in the Appendix at 1a. The decision of the United States Court of Appeals

for the Fourth Circuit denying a petition for rehearing is unpublished; it is

reproduced in the Appendix at 59a. The United States District Court for the Eastern

District of Alexandria’s oral opinions denying the Petitioners’ motions to suppress

Facebook records are unpublished and reproduced in the Appendix at 40a and 45a.

JURISDICTION

The United States Court of Appeals for the Fourth Circuit issued its decision

denying Petitioners’ petition for rehearing on March 15, 2024, requiring the

Petitioners to file a petition for a writ of certiorari on or before June 13, 2024. On

June 6, 2024, the Petitioners filed an application to extend the time to file their

petition for a writ of certiorari until July 13, 2024. On June 11, 2024, the application

for an extension of time was granted. This petition for a writ of certiorari is timely

filed on July 12, 2024.

This Court has jurisdiction under 28 U.S.C. § 1254(a).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fourth Amendment to the United States Constitution provides that:

The 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. IV.

STATEMENT OF THE CASE

In October 2020, the Petitioners were charged in a multi-count indictment with

crimes alleging gang-related sexual exploitation of E.B., a minor, in the Eastern

District of Virginia and in Maryland. JA181-197.3 The offenses alleged in the

indictment occurred between August 27, 2018, and October 11, 2018, the time period

during which E.B. had absconded from a juvenile shelter care facility in Fairfax

County, Virginia. JA181-197. All allegations relevant to the alleged conduct in the

indictment occurred during this less than two month timeframe. JA187-194.

3 JA refers to the Joint Appendix filed in the United States Court of Appeals for the

Fourth Circuit. Specifically, Petitioners Moises Zelaya-Veliz, Jonathan Rafael

Zelaya-Veliz, Luis Alberto Gonzales, and Jose Eliezar Molina-Veliz, proceeded to trial

on three counts charging: (1) Conspiracy to Sex Traffic a Minor Under Age 14 and via

Force, Fraud and Coercion in violation of 18 USC §§ 1951(a), (b)(1) and (c) & 1594(c);

(2) Sex Trafficking a Minor Under Age 14 and via Force, Fraud, and Coercion in

violation of 18 USC §§ 1591(a), (b)(1), (c) & 2; and (3) Conspiracy to Transport a Minor

with Intent to Engage in Criminal Sexual Activity in violation of 18 USC §§ 2423(a)

& (e). Petitioner Gilberto Morales proceeded to trial on two counts charging

Conspiracy to Sex Traffic a Minor Under Age 14 and via Force, Fraud and Coercion

in violation of 18 USC §§ 1951(a), (b)(1) and (c) & 1594(c), and Sex Trafficking a Minor

Under Age 14 and via Force, Fraud, and Coercion in violation of 18 USC §§ 1591(a),

(b)(1), (c) & 2. JA181.

2

During the government’s investigation into the sex trafficking allegations, FBI

Special Agent Jeremy Obie applied for and obtained a series of search warrants that

sought a laundry list of different types of data from the Petitioners’ Facebook

accounts for broad time frames. JA1353, JA1380, JA1428, JA1481. The first search

warrant was obtained on March 14, 2019, for five Facebook accounts, without any

temporal limitation, for evidence related to sex trafficking of E.B. between August 27,

2018, and October 11, 2018. JA1353. The warrant set forth nine different categories

of information to be disclosed by Facebook, including all communications related to

the account and a host of other data types (e.g., pokes, likes, gifts, tags, and “other

items”). JA1357. On June 5, 2019, Special Agent Obie obtained a second search

warrant for eight additional Facebook accounts, to include accounts linked to

Petitioner Luis Alberto Gonzales, also without any temporal limitation. JA1380. The

agent utilized the same template that had been used in the March 14, 2019 warrant,

requesting that Facebook provide data in categories that were identical to the

categories requested in the March 14, 2019 warrant. JA1357, JA1382.

On July 12, 2019, Special Agent Obie obtained a third search warrant for ten

more Facebook accounts, including data from the Facebook account of Petitioner

Moises Zelaya-Veliz. JA1428. This warrant was based on a different and more

comprehensive template, which requested a broader array of Facebook records than

the two previous warrants issued in the case. While the warrant contained a temporal

limitation limiting the disclosure of Facebook account information from January 1,

2018 (almost nine months before the offense conduct) to the date of the warrant, it

3

commanded that Facebook disclose 18 different categories of data to include “all

check-ins and location information,” which would include GPS location data4 related

to the accounts for the entire 18-plus month period. JA1475-1480. On February 20,

2020, Agent Obie obtained a fourth search warrant for 22 additional Facebook

accounts, including the accounts of the remaining Petitioners, from January 1, 2018,

to the date of the warrant. This warrant sought disclosure from Facebook for the same

18 data categories of information as the July 12, 2019, warrant. JA1481-1489.

The following table summarizes the warrants:

FACEBOOK ACCOUNT WARRANTS FOR OFFENSE CONDUCT

OCCURRING BETWEEN AUGUST 27, 2018 and OCTOBER 11, 2018

Date of Issuance

Number of

Accounts

Limitation on

Data Type Sought

Temporal

Limitation

March 14, 2019

(JA1353)

5

Laundry list of

data set forth in

the warrant

None

June 5, 2019

(JA1380)

8 (including

Same

Facebook accounts

linked to

Petitioner Luis

Gonzales)

None

4 When a person logs into a Facebook account, Facebook creates a GPS record noting

from where the account was accessed.

4

FACEBOOK ACCOUNT WARRANTS FOR OFFENSE CONDUCT

OCCURRING BETWEEN AUGUST 27, 2018 and OCTOBER 11, 2018

July 12, 2019

(JA1428)

10 (including

Facebook account

of Petitioner

Moises ZelayaVeliz)

Augmented

laundry list of

data set forth in

the warrant

February 20, 2020

(JA1481)

22 (including

Same

Facebook accounts

of Petitioners Jose

Eliezar MolinaVeliz, Luis Alberto

Gonzales,

Jonathan Rafael

Zelaya-Veliz, and

Gilberto Morales)

January 1,

2018 to July

12, 2019

January 1,

2018 to

February 20,

2020

The massive breadth of information sought is demonstrated by the particular

categories of information requested in the warrants. The categories of information

required to be disclosed by Facebook in the July 12, 2019, and February 20, 2020,

warrants were:

(a) All contact and personal identifying information including full

name, user identification number, birth date, gender, contact e-mail

addresses, Facebook passwords, Facebook security questions, and

answers, physical address (including city state and zip code), telephone

numbers, screen names, websites, device identifiers, and other personal

identifiers;

(b) All activity logs for the account and all other documents

showing the users posts and other-Facebook activities;

(c) All photos uploaded by that username or account and all

photos uploaded by any user that have that user tagged in them to

5

include metadata;

(d) All profile information; advertisement identification tied to the

specific user and user's device; News Feed information; status updates;

links to videos, photographs, articles, and other items; Notes; Wall

postings; friend lists, including the friends Facebook user identification

numbers; groups and networks of which the user is a member including

the groups’ Facebook group identification numbers; future and past

event postings; rejected Friend requests; comments; gifts; pokes; tags;

and information about the user’s access and use of Facebook

applications;

(e) All other records of communications and messages made or

received by the user, including all private messages, chat history, video

calling history, and pending Friend requests;

(f) All check ins and other location information;

(g) All IP logs including all records of the IP addresses that logged

into the account; all device identifier logs, including all records of the

device identifiers that logged into the account;

(h) All records of the account's usage of the Like feature, including

all Facebook posts and all non-Facebook webpages and content that the

user has “liked”;

(i)

All information about the Facebook pages that the account

is or was a “fan” of;

(j) All past and present lists of friends created by the account;

(k) All records of Facebook searches performed by the account;

(l) All information about the user’s access and use of Facebook

Marketplace;

(m) The types of service utilized by the user;

(n) The length of service (including start date) and the means and

source of any payments associated with the service (including any credit

card or bank account number);

(o) All privacy settings and other account settings, including

privacy settings for individual Facebook posts and activities, and all

6

records showing which Facebook users have been blocked by the

account;

(p) All records pertaining to communications between Facebook

and any person regarding the user or the user’s Facebook account,

including contacts with support services and records of actions taken;

(q) Any records associated with photos posted to the user’s

Facebook account; any records associated with Instagram photos posted

to other Facebook accounts that the user commented on or liked; and

(r) All other accounts which are forensically linked to the account

identified in Attachment A through cookies, e-mail addresses, phone

numbers, or other account information.

JA 1428 & 1481.

While the above information was required to be disclosed to government

scrutiny, all warrants purported to seize only information that “constitutes fruits,

evidence and instrumentalities” of the delineated crimes,5 including such things as

“[p]hotographs of women or girls in provocative poses, lingerie or naked women or

girls.” JA1487. In reality, based on a review of the discovery provided by the

government, the government seized what it demanded to be disclosed – the entire6

contents of the Facebook accounts, including available GPS information, photos of

the account holders’ children, private messages, birthday greetings, and a vast array

of innocent messages and private information for extended time periods in the July

2019 and February 2020 warrants and without temporal limitation for the March and

5 That is, for the warrants issued on July 12, 2019, and February 20, 2019, violations

of 18 USC §§ 1951(a), (b)(1) and (c), 18 USC § 2421, 18 USC § 2422(a), 18 USC

§ 2423(a), 18 USC § 1952, and 18 USC § 1959(a)(3). The warrants issued on June 5

and June 12, 2019 sought evidence for similar allegations.

6 The government provided to defense counsel during discovery the entire contents of

all Facebook accounts obtained by the warrants in this case.

7

June 2019 warrants.

The affidavits in support of these sweeping seizures alleged offense conduct

related to the Petitioners that occurred from August 27, 2018 to October 11, 2018.

JA1402-1403. There are no allegations in any of the affidavits to the search warrants

that the Petitioners were involved in a conspiracy or suspected in child trafficking

crimes prior to the offending conduct. Thus there is no justification for the

government requesting and obtaining Petitioners’ GPS location data and other

Facebook information from January 1, 2018, until the issuance of the warrants,

where the offending conduct was not alleged to have begun until August 2018. As to

Petitioner Luis Gonzalez, there are no allegations in the June 5, 2019 warrant

affidavit indicating that he was involved in any other criminal conduct outside the

dates of the indictment to justify the complete disclosure of his Facebook accounts

without any temporal limitation that could disclose personal communications and

information for the past 15 years or since he was a juvenile.7 JA1380-1411.

Further, the affidavits supporting warrants for the Facebook accounts of Luis

Gonzales and Moises Zelaya-Veliz do not even claim these Petitioners utilized their

Facebook accounts in furtherance of the alleged crimes under investigation,

documented the alleged crimes, or discussed the alleged crimes through Facebook

7 Facebook, now part of Meta, was launched in 2004. See e.g. About Mark Zuckerberg

Founder,

Chairman

and

Chief

Executive

Officer

of

Meta

at

https://about.meta.com/media-gallery/executives/mark-zuckerberg/. Petitioner Luis

Gonzalez was born in 1989 and would have been 15 years old in 2004. United States

v. Luis Alberto Gonzales, 1:20-cr-196-AJT-6, U.S. District Court for the Eastern

District of Virginia. ECF 419 at 3 (Pre-sentence Report of Luis Alberto Gonzales).

8

communications. In all the warrant affidavits, the affiant makes general claims,

based on his training and experience, regarding how “gang related prostitution

rings/enterprises” operate, stating that “gang members regularly photograph their

prostitutes and often use these photographs to advertise the prostitutes in print

media or on-line.” JA1400. The affidavits simply state that “it is known that

individuals engaged in prostitution will use electronic means to communicate with

clients and prostitutes,” including using “cellular telephones and other computerbased systems; various social networking websites (i.e. Facebook, Instagram, and

Twitter, e-mail services and instant messaging services).” JA1401. The agent also

made general claims regarding MS-13 gang members and their use of cellular phones

and messaging applications in furtherance of their crimes, provides general

background on MS-13, and claims that it is “known” that gang members use social

media platforms to communicate with each other and share photographs and videos.

JA1401.

In pretrial ligation, all Petitioners challenged the search warrants for their

Facebook accounts on Fourth Amendment grounds, arguing the warrants were

impermissibly over-broad in violation of the Warrant Clause’s particularity

requirement. JA64-130, JA146-147.

The district court, in denying the motions to suppress Facebook evidence,

erroneously found that the “magistrate judges [who issued the warrants] in each

instance did have a substantial basis for concluding, as to each of the Petitioners, a

9

sufficient nexus existed between the Facebook accounts to be searched and the crimes

under investigation.” JA114-115. The district court went on to conclude:

With respect to particularity and overbreadth, there’s no doubt that

these warrants were broad, but the issue with respect to the

particularity requirement is whether the warrant sufficiently identifies

the items to be seized and not leave to the discretion of the executing

officer whether an item is within the scope of the warrant.

JA117.

The district court reasoned that “a warrant that describes items to be seized

broadly may be valid if the description is as specific as the circumstances and the

nature of the activity under investigation allows.” JA117. The district court further

erroneously found there was sufficient probable cause set forth in the warrant

affidavits for apparently every category of data possessed by Facebook and sought by

law enforcement. JA117-119. As to the timeframe of data sought by the warrants, the

district court justified the timeframe as investigation into a “broader criminal

enterprise” and incorrectly reasoned that the successive Facebook warrants narrowed

the timeframe of records sought.8 JA117-119. The district court lastly found that even

8 The Facebook warrants reveal that the agent switched warrant templates during

the investigation, which broadened the warrant in several important respects. The

warrants issued on March 14, 2019, and June 5, 2019, using an apparently older

Facebook warrant template, had no temporal limitations and called for the disclosure

of nine categories of information, which appear to be intended to be all encompassing.

JA1356-1358, JA1381-1384. The information requested in the warrants are identical

and appear to be designed to capture the entirety of any Facebook account. The later

warrants issued on July 12, 2019, and February 20, 2020, used an updated template

that had at least some temporal limitation, but demanded even more data than the

prior warrants. JA1475, JA1492. The updated templates sought an even greater

laundry list of data (18 different categories), to include GPS location information for

the entire timeframe of the warrant – Facebook’s collection of location data from

where the user logs on, which Facebook collects for every user every time they log on.

10

if the warrants lacked probable cause or were overbroad, the good faith exception to

the Fourth Amendment’s exclusionary rule would apply. JA121-122.

On June 1, 2022, the Petitioners proceeded to trial. JA41. During trial, the

government introduced dozens of Facebook communications through its summary

witness, Special Agent Jeremy Obie, which communications the Petitioners had

objected to pretrial as having been obtained in violation of the Fourth Amendment.

JA690-788,

JA790-993,

JA1109-1122.

The

Facebook

communications

were

devastating evidence against all Petitioners as the communications consisted of realtime statements by the Petitioners demonstrating their participation in the charged

offense conduct in addition to prejudicial communications indicating the Petitioners’

involvement in or support of the MS-13 gang. JA1242-1257. The government’s

opening statement and closing arguments were replete with references to the

numerous exhibits of Facebook communications from the Petitioners’ Facebook

accounts. The government argued that the Facebook communications were conclusive

evidence of all Petitioners’ guilt. See JA207-208 (opening statement), JA1129-1153

(closing argument).

In its opening statement, the government previewed to the jury: “You are going

to see extensive messages from Facebook because it was on Facebook where the

JA1476-1480, JA1494-1498. The new laundry list also required Facebook to disclose

any accounts “forensically linked” to the Petitioners’ accounts through cookies, e-mail

addresses, phone numbers, or other account information. JA1478, JA1496. That is,

the FBI was trying with these later warrants to request everything “under the sun”

as to regards to the Facebook accounts. Even though the warrants were more limited

in time, the later warrants requested a larger universe of data and information.

11

petitioners discussed at length their plans.” JA207. During the trial, the government

introduced

into

evidence

the

Facebook

profiles

and

numerous

Facebook

communications between the Petitioners. JA1242-1257. This amounted to over one

hundred twenty-five (125) separate exhibits that formed the heart of the prosecution’s

case, reflecting much of the evidence at trial. JA1242-1257. In closing, the

government told the jury that “when you look at the Facebook evidence that we have

presented in this case, you will start to see what was really going on behind the scenes

and what they were actually doing.” JA1129. The government spent a significant

amount of its closing emphasizing the numerous Facebook exhibits, see JA1129-1153,

stating that they show “what was going on behind the scenes” and “who is involved

with the sexual exploitation” alleged. JA1134. According to the government, the

Facebook messages “paint[ed] the story” the prosecution was trying to tell. JA1146.

On June 23, 2022, the jury returned verdicts of guilty on all counts for all

Petitioners. JA1280. On November 10, 2022, the Petitioners were sentenced to

lengthy terms of imprisonment.9

Petitioners timely appealed their convictions to the Fourth Circuit arguing,

among other claims, that the warrants issued for their Facebook accounts were

impermissibly overbroad. In a published opinion, the Fourth Circuit upheld the

Moises Zelaya-Veliz was sentenced to 264 months of incarceration (JA1295),

Jonathan Rafael Zelaya-Veliz to 180 months (JA1303), Gilberto Morales to 180

months (JA1311), Luis Alberto Gonzales to 300 months (JA1319), and Jose Eliezar

Molina-Veliz to 180 months (JA1237).

9

12

district court’s rulings denying the Petitioners’ motions to suppress the evidence

obtained by the government through the warrants served on Facebook. 1a & 59a.

The Fourth Circuit agreed that all the “warrants compelled Facebook to turn

over a wide swath of personal information attached to the accounts, including all

private communications, most user activity, and, in the case of the later two warrants,

all location information.” United States v. Zelaya-Veliz, 94 F.4th at 337.

Notwithstanding the broadness of the warrants, as to Petitioners Moises ZelayaVeliz, Jonathan Zelaya-Veliz, Gilberto Morales, and Jose Molina-Veliz, the Fourth

Circuit found the warrants sufficiently particularized where the warrants had a twostep process requiring disclosure of “a large amount of account data [but] then seize[]

only the fruits, evidence, or instrumentalities of enumerated crimes,” which the court

found “crucial to the validity of social media warrants.” The court analogized the

search of Facebook accounts as to the search of a house: “As in a search of a house,

the officers searching the Facebook account data at issue necessarily encountered a

host of irrelevant materials. But, just like in a house search, the officers were

authorized to seize only the fruits, evidence, or instrumentalities of the crimes for

which they had established probable cause.” Id. at 338.10

10 The Fourth Circuit noted “[t]he validity of this two-step process is acknowledged

by Federal Rule of Criminal Procedure 41(e)(2)(B).” United States v. Zelaya-Veliz, 94

F.4th 321, 338 (4th Cir. 2024). And dispensed with Petitioners contention that the

government seized what it had demanded, the entire contents of their Facebook and

kept them, citing that the Rule 41 has a remedy where “[t]he district court retained

the authority to determine that prolonged retention of non-responsive data by the

government violated the Fourth Amendment.” Id. However, to this date, the

Petitioners’ non-responsive data has not been deleted or returned, to the knowledge

of the Petitioners.

13

As to the warrant for Luis Gonzalez’s Facebook accounts, the Fourth Circuit

acknowledged the “total lack of a time period in a social media warrant raises a

problem.” Adding, “[a]s our society moves further into the digital age, Facebook and

other social media accounts are beginning to contain decades of personal information

and communications, often going back to an account holder’s early teenage years.

These social media accounts, much like cell phones, frequently contain ‘a broad array

of private information never found’ during a traditional search of a home.” Id. at 340

(citing Riley v. California, 572 U.S. 373, 397 (2014))(other internal citations omitted).

The court noted that the imposition of a timeframe on a warrant is simple to

administrate and the court found that Facebook can “filter data by time frame before

disclosing it to the government” if it is so requested. Id.

Notwithstanding the obvious overbreadth of the Luis Gonzalez warrant, the

panel (apparently assuming the warrant was illegal) framed the issue as a “novel

question[] posed by digital technology” and found “Luis’s motion to suppress was

properly denied because the good faith exception to the exclusionary rule applies.” Id.

at 340. The panel stated “[g]iven the unsettled nature of whether a temporal

limitation is required on a warrant authorizing the search and seizure of Facebook

account data, we cannot say that ‘a reasonably well-trained officer would have known

that the search was illegal despite the magistrate's authorization.’” Id. at 34041(citing United States v. Leon, 468 U.S. 897, 922-24 (1984)).

This petition follows.

14

REASONS FOR GRANTING THE WRIT

The chief evil that originally prompted the adoption of the Fourth Amendment

was the indiscriminate and “exploratory rummaging in a person’s belongings”

conducted by the British and “abhorred by the colonists” under the authority of

“general warrants.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). A crucial

purpose of the Fourth Amendment is, and since the founding of the country has

always been, to issue warrants only where probable cause is properly established and

the scope of the authorized search is set out with particularity. See Kentucky v.

King, 563 U.S. 452, 459 (2011).

To this end, ten years ago, this Court required police to obtain warrants to

search cell phones. Riley v. California, 573 U.S. 373, 403 (2014)(“The fact that

technology now allows an individual to carry such information in his hand does not

make the information any less worthy of the protection for which the Founders

fought. Our answer to the question of what police must do before searching a cell

phone seized incident to an arrest is accordingly simple – get a warrant.”). In Riley,

the Court found that a person’s privacy interest is even greater for a phone than a

home, due to the immense storage capacity of information on a phone. Id. at 396-97

(“Indeed, a cell phone search would typically expose to the government far more than

the most exhaustive search of a house: A phone not only contains in digital form many

sensitive records previously found in the home; it also contains a broad array of

private information never found in a home in any form – unless the phone is.”)

General warrants authorizing a search of social media data are no less intrusive than

15

general warrants for the search of a cell phone. Indeed, many of the items this Court

noted were contained on cell phones, making searches of them impermissible

intrusions on privacy, are likewise found on Facebook. See id. at 394 (Noting that

searches of cell phones are particularly insidious since they may contain

“photographs, picture messages, text messages, Internet browsing history, a

calendar, a thousand-entry phone book…;” all of this data may also be contained on

Facebook.). Yet the Court has not yet considered whether an all-data social media

warrant without temporal limitations, or with insufficient limitations, would violate

the particularity requirement of the Fourth Amendment. Today, about 70% of U.S.

adults use Facebook.11 Considering increasing social media usage, digitization, and

an ever-expanding number of products capable of storing electronic information, this

case presents important questions for this Court to resolve.

I.

THIS CASE PRESENTS IMPORTANT FEDERAL QUESTIONS

Tens of thousands of federal warrants are issued for Facebook data each year12

and this case presents important questions: whether broad warrants for “all data”

and warrants without time limitations for Facebook accounts violate the Fourth

Amendment’s particularly requirement. The Petitioners challenge three warrants, all

11 Pew Research Center, Americans’ Social Media Use

(https://www.pewresearch.org/internet/2024/01/31/americans-social-media-use/).

12 For example, for the first half of 2020, Facebook received 61,500 requests for data

from United States authorities, covering 106,100 accounts. See Jack Nicas, What

Data About You Can the Government Get From Big Tech, NEW YORK TIMES (July 14,

2021). https://www.nytimes.com/2021/06/14/technology/personal-data-apple-googlefacebook.html

16

for Facebook accounts, and all of which are overbroad. One warrant at issue, for

Petitioner Luis Gonzalez’s Facebook accounts, had no temporal limitation

whatsoever, such that it demanded the potential disclosure of fifteen (15) years of

Petitioner Gonzalez’s personal data and communications.13 Two warrants for the

Facebook accounts for the other four Petitioners demanded every conceivable type of

account data held by Facebook, including GPS location data (“all-data warrants”),

well before and after the timeframe of the alleged offense conduct. The Fourth Circuit

in its opinion below found the warrant without any temporal limitation to be a

“problem,” but applied the good faith exception to the exclusionary rule despite such

over-broad warrants being previously criticized by other courts since at least 2017.14

The Fourth Circuit further found the other Petitioner’s all-data warrants to be

sufficiently particularized notwithstanding the vast breadth of the warrants.

Facebook can store an immense amount of personal data—including chats and

messaging, photos, GPS location data-–much like a modern smartphone, if not more

so, because Facebook is an online platform that “provides a single window through

which almost every detail of person’s life is visible.” United States v. Shipp, 392 F.

Supp. 3d 300, 308 (E.D.N.Y. 2019)(Stating “threat” of overbroad warrant “is further

elevated in a search of Facebook data because, perhaps more than any other location

13 Facebook was launched in 2004 and the warrant for Gonzalez’s Facebook accounts

was issued in 2019.

14 See United States v. Blake, 868 F.3d 960, 974 (11th Cir. 2017)(Criticizing Facebook

warrants essentially identical to the warrants at issue here, holding that the

warrants “unnecessarily” required the disclosure of “every kind of data that could be

found in a social media account.”).

17

– including a residence, a computer hard drive, or a car – Facebook provides a single

window through which almost every detail of a person’s life is visible.”); see also Riley

v. California, 134 S. Ct. 2473, 2491 (2014)(Noting the immense privacy interests

inherent in a cellphone search and finding that such searches would “typically expose

to the government far more than the most exhaustive search of a house: A phone not

only contains in digital form many sensitive records previously found in the home; it

also contains a broad array of private information never found in a home in any

form.”)(emphasis added); United States v. Payton, 573 F.3d 859, 861-62 (9th Cir.

2009)(“Searches of computers therefore often involve a degree of intrusiveness much

greater in quantity, if not different in kind, from searches of other containers.”). The

core purpose of the Fourth Amendment’s particularity requirement is to prohibit

broad and general searches. “As to what is to be taken, nothing is left to the discretion

of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196

(1927).

It is well-known that Facebook, now Meta, is the world’s largest social media

company that owns other major social media and communication platforms, such as

Instagram and WhatsApp. The Eastern District of New York commented on the

dangers that information from non-Facebook applications could also become part of

a Facebook account:

Particularly troubling, information stored in non-Facebook applications

may come to constitute part of a user’s ‘Facebook account’ – and thus be

subject to broad searches – by virtue of corporate decisions, such as

mergers and integrations, without the act or awareness of any particular

user. It is thus hard to imagine many searches more invasive than a

search of all the data associated with a Facebook account.

18

United States v. Shipp, 392 F. Supp. 3d 300, 308 (E.D.N.Y. 2019)(citations omitted),

aff’d, 2d Cir. No. 21-1284-CR, 2022 WL 16543193 (2nd Cir. Oct. 31, 2022)(citations

omitted). Thus the information gleaned from Facebook accounts goes far beyond the

actual Facebook account for which the warrant is issued, making overbroad warrants

even more malicious.15

Today, if any place or thing is especially vulnerable to worrisome exploratory

rummaging by the government, it is social media accounts. This Court has not yet

addressed the difficulties of applying the tangled requirements of particularity to the

unique situation of social media data. As courts have observed, advances in

technology and the centrality of social media in the lives of average people have

rendered searches of social media as more invasive than an expansive search of a

residence in terms of the scope and quantity of private information it may

contain. See e.g. United States v. Zelaya-Veliz, 94 F.4th at 340 (“Facebook and other

social media accounts are beginning to contain decades of personal information and

communications, often going back to an account holder’s early teenage years. These

social media accounts, much like cell phones, frequently contain ‘a broad array of

private information never found’ during a traditional search of a home.”); United

States v. Shipp, 392 F. Supp. 3d at 308 (E.D.N.Y. 2019)(Facebook is an online

15 In this case, the warrants for the Facebook accounts of Petitioners Moises Zelaya-

Veliz, Jonathan Rafael Zelaya-Veliz, Gilberto Morales, and Jose Eliezar Molina-Veliz

also requested: “All other accounts which are forensically linked to the account

identified in Attachment A through cookies, e-mail addresses, phone numbers, or

other account information.” JA 1428 & 1481.

19

platform that “provides a single window through which almost every detail of person’s

life is visible.”). Therefore, where social media warrants are at stake, the particularity

requirement assumes great importance. Although personal computers have existed

for more than 40 years, technology continues to develop at a rapid pace, and

standards for social media warrants continue to remain an unsettled area of the law.

This presents “an important question of federal law that has not been, but

should be, settled by this Court….” U.S. Supreme Court Rule 10(c). The question

whether broad warrants, one of which was not limited temporally, for immense

swaths of data from Facebook violates the particularity requirement of the Fourth

Amendment’s Warrant Clause is vitally important in today’s world of pervasive social

media, and a question likely to occur time and again until resolved by this Court.

II. THE FOURTH CIRCUIT’S DECISION CONFLICTS WITH

OTHER CIRCUIT COURT, DISTRICT COURT, AND STATE

COURT DECISIONS

Courts at all levels have struggled with how to apply the Fourth Amendment’s

particularity requirement to social media and smart phone warrants. This has led to

a myriad of decisions and a split between courts at all levels. That is, the Fourth

Circuit’s decision below is “in conflict with the decision[s] of [other] United States

court[s] of appeals on the same important matter [and] has decided [this] important

federal question in a way that conflicts with … decision[s] by … state court[s] of last

resort.” U.S. Supreme Court Rule 10(a). This Court must develop a consistent policy

on how the Fourth Amendment’s particularity requirement applies to social media

warrants, or courts will continue to interpret the Fourth Amendment variously.

20

A.

The Circuit Divide

The Circuit Courts are divided as to whether all-data warrants for social media

accounts and smart phones violate the Fourth Amendment’s particularity

requirement and have issued inconsistent rulings. Overall, the First, Second, Third,

Sixth, Ninth, and Tenth Circuits emphasize the importance of temporal limitations

to prevent digital warrants from being constitutionally overbroad. The Eleventh

Circuit prefers temporal limitations for digital warrants, but has applied the good

faith exception. The Second, Fourth, Sixth, and Seventh Circuits have held that

searches for any and all phone data is justified due to the nature of criminal activity,

permitting social media warrants without categorical or temporal limitations.16 The

Tenth Circuit instituted its own test to particularize social media warrants, limiting

searches to the most obvious places.

In 2017, the Eleventh Circuit criticized Facebook warrants essentially

identical to the warrants at issue here, holding that the warrants “unnecessarily”

required the disclosure of “every kind of data that could be found in a social media

account.” United States v. Blake, 868 F.3d 960, 974 (11th Cir. 2017). The Blake court

faulted the lack of timeframe in the warrants and noted that the warrants should

have been circumscribed to the time of the offense conduct. Id. (“[T]he warrants

should have requested data only from the period of time during which Moore was

suspected of taking part in the prostitution conspiracy.”). Notably, Blake was also a

16 Albeit the Fourth Circuit in its opinion below in this case found the warrant for

Gonzalez’s Facebook account that had no temporal limitation to be a “problem.”

United States v. Zelaya-Veliz, 94 F.4th at 340.

21

sex trafficking case which involved multiple defendants and victims. Id. (Ultimately

applying the good-faith exception because this was a question of first impression in

2017).

The Ninth Circuit has limited warrants to the time period when the suspected

criminal activity took place, and also required the information sought to be seized be

relevant to the investigation. See United States v. Kow, 58 F.3d 423, 427 (9th Cir.

1995)(Finding warrant for computers and computer files “wholly deficient” where

“[t]he warrant should have been [but was not] limited by time, location, and

relationship to specifically described suspected criminal conduct.” “The government

did not limit the scope of the seizure to a time frame within which the suspected

criminal activity took place” and the “widespread seizure” “of essentially every

business record” was unconstitutionally broad.).

In the First Circuit, a warrant for business records failed to meet the

requirement of particularity since there was no description of the specific records to

be seized and no temporal limitation. United States v. Abrams, 615 F.2d 541, 543 (1st

Cir. 1980)(“The warrant at issue fails to meet the requirement of particularity. The

officers’ discretion was unfettered, there is no limitation as to time and there is no

description as to what specific records are to be seized…. It seems clear that the

executing officers could not or made no attempt to distinguish bona fide records from

fraudulent ones so they seized all of them in order that a detailed examination could

be made later. This is exactly the kind of investigatory dragnet that the fourth

amendment was designed to prevent.”).

22

The Second Circuit held that a warrant to search computer equipment and

electronic digital storage media lacked particularity since the warrant did not link

the items to be searched and seized to the criminal behavior being investigated, and

failed to place any temporal limit on the property to be seized. United States v. Rosa,

626 F.3d 56, 62-64 (2nd Cir. 2010)(“[T]he search warrant in this case lacked the

requisite specificity to allow for a tailored search of [defendant’s] electronic media.

The warrant was defective in failing to link the items to be searched and seized to the

suspected criminal activity … and thereby lacked meaningful parameters on an

otherwise limitless search of [defendant’s] electronic media.”).17

The Sixth Circuit has held that, generally, warrants lacking available

temporal requirements and particularity are constitutionally overbroad, but has

applied the standard inconsistently. In United States v. Ford, the court overturned a

conviction where a warrant for financial documents, unlimited in time, authorized “a

broader search than was reasonable given the facts in the affidavit supporting the

warrant.” United States v. Ford, 184 F.3d 566 (6th Cir. 1999)(“Failure to limit broad

descriptive terms by relevant dates, when such dates are available to the police, will

render a warrant overbroad.”). The court dismissed the government’s argument that

a broad warrant was necessary to establish which proceeds were legal and which were

illegal, holding that “[t]his argument would allow virtually unlimited seizure of a

lifetime’s worth of documentation, which is extremely intrusive… [and] would allow

The First, Second, and Third Circuits have all recognized that the lack of

particularity and/or known temporal limitations may render a warrant overbroad if

there are not other sufficient restrictions.

17

23

an extreme intrusion for evidence of very little probative value.” Id. The court noted

that “[t]he government at trial used the documents for an entirely difference purpose

than” they argued. Finally, the court disapproved of the warrant because it required

production of documents from a time period at least four months before the alleged

criminal actions. Id.

Importantly, in United States v. Abboud, the Sixth Circuit held that, since,

similarly to here, “law enforcement knew that the evidence in support of probable

cause in the affidavit revolved only around a three-month period in 1999; the

authorization to search for evidence irrelevant to that time frame could well be

described as ‘rummaging.’” United States v. Abboud, 438 F.3d 554, 576 (6th Cir. 2006).

In a health care fraud case, the Sixth Circuit likewise found that that the seizure of

all non-patient files without any limitation as to the specific patients, transactions,

or time frame was unconstitutionally broad. United States v. Lazar, 604 F.3d 230,

238 (6th Cir. 2010). However, in United States v. Bass, the court dismissed the

particularity requirement altogether, upholding a broad warrant to search “for any

records of communication indicia of use, ownership, or possession” of a cell phone

because criminals may “hide, mislabel, or manipulate files to conceal criminal

activity….” United States v. Bass, 785 F.3d 1043 (6th Cir. 2015)(“Federal courts,

however, have ‘rejected most particularity challenges to warrants authorizing the

seizure and search of entire personal or business computers….”)

The Third Circuit has held that the seizure of six entire computers was proper

where “a broad seizure was required because evidence of financial crimes could have

24

been found in any location on any of the six hard drives, and this evidence very likely

would have been disguised or concealed somewhere on the hard drive.” United States

v. Stabile, 633 F.3d 219, 237 (3rd Cir. 2011); see also United States v. Yusuf, 461 F.3d

374, 395 (3rd Cir. 2006)(Approving warrants where they “were drafted with sufficient

particularity because they explicitly incorporated an affidavit detailing the items that

the government intended to search and seize. The government further limited the

scope of the warrants by focusing on enumerated white collar federal offenses and by

limiting the nature of documents sought to specific corporate records at the … stores

over a ten-year time period.”).

While the Fourth Circuit, until the opinion below, and Seventh Circuit have

apparently not directly addressed the question of temporal limitations for digital

warrants, they have both upheld warrants authorizing searches of all electronic

media belonging to a suspect. Both circuits have indicated that no limitations on the

scope of an electronic search are permissible since law enforcement will need to view

each file to see if it falls within the scope of the search. The Fourth Circuit appears

to diminish the particularity requirement, upholding all-data warrants for computers

without any restrictions other than listing the alleged offense. See United States v.

Williams, 592 F.3d 511, 515-16 (4th Cir. 2010); see also United States v. Cobb, 970

F.3d 319, 330 (4th Cir. 2020)(Upholding warrant to search a computer where “a

warrant may satisfy the particularity requirement either by identifying the items to

be seized by reference to a suspected criminal offense or by describing them in a

25

manner that allows an executing officer to know precisely what he has been

authorized to search for and seize.”).

The Seventh Circuit has adopted a similarly broad understanding of

particularity in the context of electronic searches, upholding an otherwise

unrestricted warrant authorizing the search of digital media and computers. United

States v. Mann, 592 F.3d 779, 780-81 (7th Cir. 2010); see also United States v. Bishop,

910 F.3d 335, 337 (7th Cir. 2018)(Upholding warrant for entire contents of cell phone

where “[i]t is enough . . .if the warrant cabins the things being looked for by stating

what crime is under investigation.”).

The Tenth Circuit has struck down warrants lacking sufficient limitations

when restrictions did not provide enough guidance for law enforcement. United States

v. Leary, 846 F.2d 592, 604 (10th Cir. 1988)(Warrant facially overboard where it

authorized a general search without any meaningful limitation); United States v.

Russian, 848 F.3d 1239, 1245 (10th Cir. 2017)(Holding warrant invalid due to lack of

particularity because it did not “specify what material (e.g., text messages, photos, or

call logs) law enforcement was authorized to seize.”). The Tenth Circuit thus affirmed

that particularized warrants must include at least temporal limitations and specific

categories of content information to be seized.

The Tenth Circuit has also distinguished physical searches as critically

different from electronic searches. United States v. Loera, 923 F.3d 907 (10th Cir.

2019)(Noting that there are “fundamental differences between electronic searches

and physical searches, including the fact that electronic search warrants are less

26

likely prospectively to restrict the scope of the search….”). In that case, the court

clarified that investigators executing a search warrant can look anywhere that the

evidence described in the warrant may conceivably be found. Id. at 196. The court

noted that such limitations work well in the physical-search context to ensure that

searches pursuant to warrants remain narrowly tailored, but are less effective in the

electronic-search context where searches confront the needle-in-a-haystack problem.

Id.

To promote particularized warrants that are not overbroad, the Tenth Circuit

proposed a test for particularity of social media warrants. The Tenth Circuit focused

on how the agents carried out the search. A warrant should reasonably direct an

officer at uncovering the specified evidence. United States v. Burgess, 576 F.3d 1078,

1094 (10th Cir. 2009). Importantly, warrants should include narrowly tailored search

methods by directing officers to look in the most obvious places, then direct the search

to specific files or keywords. In that case, a computer warrant for a drug conspiracy

first directed an officer to access photos on a hard drive pertaining to narcotics or coconspirators. The court found that the warrant was not overbroad since it did not

encompass a preview of all files. Id. This case is in direct conflict with the district

court’s decision here, where the district court stated that “the issue with respect to

the particularity requirement is whether the warrant sufficiently identifies the items

to be seized and not leave to the discretion of the executing officer whether an item is

within the scope of the warrant.” JA117; see also Marron v. United States, 275 U.S.

192, 196 (1927)(As to what is to be seized, nothing is meant to be left to the discretion

27

of the officer executing the warrant.); United States v. Abrams, 615 F.2d 541, 543 (1st

Cir. 1980)(Warrant failed where the officers’ discretion was “unfettered.”).

Overall, there is clearly a circuit split, with a well-developed disagreement

ready for this Court’s intervention.

B. The District Court Divide

The U.S. District Courts have interpreted the particularity requirement

differently. On one side are the courts which favor restricting overbroad warrants

lacking categorical or temporal restrictions as unconstitutional, including district

courts in Illinois, the District of Columbia, Georgia, and New York. See, e.g., United

States v. Winn, 79 F. Supp. 3d 904 (S.D. Ill. 2015)(Police executed a phone warrant

for public indecency charge but were not allowed to search all files since they did not

have probable cause to believe that everything on the phone was evidence of the crime

of public indecency.); Matter of Black iPhone 4, 27 F. Supp. 3d 74 (D.D.C. 2014)(Where

a warrant was for the entire contents of phones without a particularized description

of the information relevant to the government’s investigation, the warrant was

impermissibly overbroad); United States v. Mercery, 591 F. Supp. 3d 1369 (M.D. Ga.

2022)(For an overbroad Instagram warrant lacking any categorical or temporal

restrictions, the court did not apply the good faith exception); United States v.

Burkhow, No. 19-CR-59, 2020 WL 589536, at *10 (N.D. Iowa Feb. 6, 2020)(“Some

reasonable attempt could have been made to narrow the scope of this search,

particularly by setting date limitations if not restrictions to specific account activities

or interactions with particular persons.”); United States v. Chavez, 423 F. Supp. 3d

28

194, 207 (W.D.N.C. 2019)(“[T]he Government compelled Facebook to disclose sixteen

broad categories of evidence, without limiting disclosure to the purported members

or purported dates.”); United States v. Shipp, 392 F. Supp. 3d 300, 310-312 (E.D.N.Y.

2019)(A temporal limitation “could have mitigated the court's concerns about the

breadth of this warrant,” but applying good faith exception and collecting cases

regarding the same.).

The Eastern District of New York in United States v. Shipp went so far as to

state that Facebook warrants are of more concern than any other location:

This court has serious concerns regarding the breadth of Facebook

warrants…. This threat is further elevated in a search of Facebook data

because, perhaps more than any other location – including a residence,

a computer hard drive, or a car – Facebook provides a single window

through which almost every detail of a person’s life is visible. Indeed,

Facebook is designed to replicate, record, and facilitate personal,

familial, social, professional, and financial activity and networks. Users

not only voluntarily entrust information concerning just about every

aspect of their lives to the service, but Facebook also proactively collects

and aggregates information about its users and non-users in ways that

we are only just beginning to understand.

Shipp, 392 F. Supp. 3d 300, 308 (E.D.N.Y 2019)(emphasis in original).

On the other side, some district court have found that all-data warrants do not

violate the Fourth Amendment’s particular requirements. United States v. Daprato,

2022 WL 1303110 (D.Me. 2022)(Upholding Facebook warrant seeking five months of

Facebook data from 17 categories of information); United States v. Skinner, 2021 WL

1725543 at *11 (E.D.Va. Apr. 29, 2021)(Upholding search warrant for cell phones

where “[t]he Cell Phones Warrant adequately “confine[d] the executing [officers']

discretion by allowing them to seize only evidence of [] particular crime[s].”); United

29

States v. Franklin, 2022 WL 3572498, at *1 (W.D. Mo. Aug. 18, 2022)(“[T]he warrant,

which sought the entirety of Defendant's Instagram account, was not deficient as a

general warrant.”); United States v. Westley, 2018 WL 3448161, at *16 (D. Conn. July

17, 2018)(Even if the absence of a date restriction made the warrants [Facebook

records] overbroad,” the good faith exception applies). United States v. Sharp, 2015

WL 4641537, at *15 (N.D. Ga. Aug. 5, 2015)(Rejecting Facebook overbreadth

arguments where Facebook disclosed the “entire cache of information” without limits

based on time and stating “[t]he fact that [a] warrant call[s] for seizure of a broad

array of items does not, in and of itself, prove that the warrant fails to meet this

requirement of particularity.”).

Thus, the federal courts have repeatedly addressed the question of whether a

warrant authorizing a broad search of a suspect’s entire store of digital media is

sufficiently particular and/or whether the good faith exception should be applied.

Without this Court’s intervention, as more and more information is stored in digital

format, and as more devices become capable of digital storage, the number of cases

raising this issue will continue to increase. That is, there is a well-developed

disagreement ready for this Court’s intervention.

C.

State Court Decisions

An increasing number of the highest state courts across the country have

condemned “all-data” warrants for cell phones, which hold vast amounts of data

similar to social media accounts, which appears in direct tension with federal courts

that have justified broad warrants for smart phones because the warrants list and/or

30

seize evidence of the crimes under investigation.18 Burns v. United States, 235 A.3d

758 (D.C. 2020) (Allowing searches of “any evidence on a phone” is a general warrant,

and thus, a warrant needs to specify the narrow items of evidence for which probable

cause exists); Wheeler v. State, 135 A.3d 282 (Del. 2016) (A warrant lacking known

temporal requirements is constitutionally overbroad.); Taylor v. State, 260 A.3d 602,

615–16 (Del. 2021)(Search warrant that authorized “a top-to-bottom search” of “[a]ny

and all store[d] data” of the digital contents of smart phones held to be overbroad.);

State v. Henderson, 854 N.W.2d 616 (Neb. 2014) (Any and all cell phone contents

search lacked particularity.); State v. Keodara, 364 P.3d 777(Wash. App. 2015)(Where

there was no limit on the topics of information for which the police could search for

on cell phone, nor did the warrant limit the search to information generated close in

time to incidents for which the police had probable cause, the warrant was

impermissibly broad.); State v. Smith, 344 Conn. 229, 252, 278 A.3d 481, 497 (2022)

(Search warrant did not comply with the particularity requirement because it did not

sufficiently limit the search of the contents of the cell phone by description of the

areas within the cell phone to be searched, or by a time frame reasonably related to

the crimes.); Richardson v. State, 481 Md. 423, 282 A.3d 98 (2022)(Search warrant

See e.g. United States v. Bishop, 910 F.3d 335, 337 (7th Cir. 2018)(Upholding

warrant for entire contents of cell phone where “[i]t is enough . . .if the warrant cabins

the things being looked for by stating what crime is under investigation.”); See e.g.

United States v. Kamara, 2023 WL 8357946, at *8 (E.D. Va. Dec. 1, 2023)(“The Court

thus finds that it was enough that the iPhone Search Warrant “confine[d] the

executing [officers'] discretion by allowing them to seize only evidence of ... particular

crime[s].”)(citing See e.g. United States v. Cobb, 970 F.3d 319, 330 (4th Cir. 2020)).

18

31

authorizing officers to search and seize “all information” and “any other data stored

or maintained inside of” cell phone violated Fourth Amendment’s particularity

requirement, because warrant and affidavit contained impermissibly broad “catchall”

language, and detective did not include any temporal restrictions or any other

limitations, such as restrictions relating to application or other communication

applications, call logs, or navigation/location data for evidence relating to robbery.);

State v. Bock, 310 Or. App. 329, 334–36, 485 P.3d 931, 935–36 (2021) (Search warrant

that authorized seizure of any item on a cell phone that might later serve as

circumstantial evidence of the device owner or user was tantamount to a general

warrant and thus overbroad.); People v. Clarke, 156 N.Y.S.3d 830 (N.Y. Sup. Ct.

2021)(Warrant was overbroad and failed to satisfy the particularity requirement

where it authorized a search of nearly all files and data on the petitioner’s cell phone

and failed to specify any date restriction of the files and data to be searched);

Commonwealth v. Holley, 87 N.E.3d 77 (Mass. 2017)(Warrant for all electronic

communications and location data was deemed overbroad and lacking particularity.);

State v. Henderson, 854 N.W.2d 616 (Neb. 2014)(Any and all cell phone contents

search lacked particularity.); State v. Castagnola, 46 N.E.3d 638 (Ohio 2015)(Warrant

of computer invalid where it did not describe specific records/documents to be

searched.); but see Hedgepath v. Commonwealth, 441 S.W.3d 119 (Ky. 2014)(Warrant

that encompassed all cell phone content was sufficiently particular and not overbroad

as the police were expected to pick out only information relevant to the crime when

executing warrant).

32

III. THIS CASE IS AN

APPROPRIATE VEHICLE

DETERMINATION OF THE QUESTIONS PRESENTED

FOR

This case, with its clear and complete trial record, is an excellent vehicle to

resolve the questions presented. First, the language in the warrants provided for a

laundry list of excessive categories of Facebook content, including past and present

Facebook profile information, private messages, photos, videos, user activity,

personal identification, privacy settings, chat history, video calling history, contacts,

activity logs, ad content, status updates, articles, notes, friend lists, search history,

marketplace transactions, payments, blocked accounts, posts (liked and tagged),

news feed information, and for all Petitioners except Luis Gonzalez, GPS location

data for broad time periods. Second, the warrant for Petitioner Luis Gonzalez’s

Facebook account lacked a temporal limitation and the temporal limitations for the

other Petitioners’ Facebook accounts were so broad that the warrants allowed the

Government to scrutinize enormous amounts of data, including GPS location

information, from almost nine months before the offense conduct. In the case of

Gonzalez, the data demanded to be disclosed could have reached back 15 years

before the offending. Third, while the warrants for Petitioners Moises Zelaya-Veliz,

Jonathan Zelaya-Veliz, Gilberto Morales and Jose Eliezar Molina-Veliz contained

overbroad temporal limitations, those warrants also expanded the laundry list of data

sought as compared the warrant for Gonzales’s Facebook (which Petitioners contend

was meant to be all inclusive). Importantly, the offense conduct clearly occurred only

over a less than two-month period, from August 27, 2018, to October 11, 2018.

33

There are also no harmless error issues because during trial, the government

introduced exhaustive amounts of Facebook evidence, including 125 exhibits from the

Petitioners’ Facebook accounts, ranging from profile information to extensive

amounts of private messages. While a warrant for the Petitioners’ Facebook photos,

communications, and perhaps other Facebook data from the August to October 2018

timeframe may have represented a sufficiently particularized search, not so a

warrant for so many additional categories of social media data without temporal

limitation or overly broad temporal constraints.

Petitioners challenge the overbroad Facebook warrants lacking sufficient

temporal or categorial limitations. The social media data warrants clearly violate the

Fourth Amendment’s particularity requirement. The all-data social media warrants

led to evidence that was critical to the prosecution and the conviction of the

Petitioners. Thus, the Court should take the opportunity to address the important

questions presented.

IV. THE

WARRANTS

IN

THE

INSTANT

UNCONSTITUTIONALLY OVERBROAD

CASE

WERE

The Fourth Circuit acknowledged that the warrant for Petitioner Luis

Gonzalez’s Facebook that had no temporal limitation was a “problem” where social

media accounts “frequently contain ‘a broad array of private information never found’

during a traditional search of a home.” Zelaya-Veliz, 94 F.4th at 340 (citing Riley v.

California, 573 U.S. 373, 397 (2014))(other internal citations omitted). The court

acknowledged that including a timeframe was simple where Facebook can “filter data

by time frame before disclosing it to the government” if it is so requested. Id.

34

Nonetheless, the court applied the good faith exception to a warrant issued five years

after Riley reasoning that imposing a temporal limitation was not settled law because

it was “novel question[] posed by digital technology.” Id. Digital technology is no

longer novel and this Court should definitively state that the good faith exception is

inapplicable to untethered warrants for social media accounts like the one for

Petitioner Gonzalez's Facebook accounts.

Regarding the other Petitioners, as argued in the Fourth Circuit in their

opening brief:

The warrants issued on July 12, 2019, and February 20, 2020,19 used a

different, updated template that had at least some temporal limitation

– seeking Facebook records from January 1, 2018 (almost 9 months prior

to the offense conduct) to the date of the warrants’ issuance such that

the successive warrant with the new template grabbed more data than

the prior warrant. JA1475, JA1492. The updated templates sought an

even greater laundry list of data (18 different categories) to include GPS

location information for the entire timeframe of the warrant—every

time a person logs on to Facebook, Facebook records the location from

which the persons logs on. JA1476-1480, JA1494-1498. The new laundry

list also required Facebook to disclose any accounts “forensically linked”

(whatever that means) to the petitioners’ accounts through cookies, email addresses, phone numbers, or other account information. JA1478,

JA1496. That is, the FBI was trying request with both warrants

everything “under the sun” as to regards to all Facebook accounts.

Appellant’s Opening Brief at 4, n. 2.20

19 The warrant issued on July 12, 2019 ordered Facebook to disclose Moises Zelaya-

Veliz’s Facebook account and the warrant issued on February 2020 ordered Facebook

to disclose the accounts of Jose Eliezar Molina-Veliz, Gilberto Morales, and Jonathan

Rafael Zelaya-Veliz.

20 United States v. Moises Zelaya-Veliz, No. 22-4656, U. S. Court of Appeals for the

Fourth Circuit. ECF 31.

35

In Petitioners’ view, the disclosure of GPS data for more than eight months

before they were suspects in the crimes at issue and a host of other categories of

information was particularly egregious. Further, Facebook was ordered to provide

the government GPS location of the Petitioners for a total time period of from 18 to

26 months for offense conduct that spanned from August 27, 2018, and October 11,

2018. In short, all the “Facebook warrants were the internet-era version of a ‘general

warrant.’” See United States v. Blake, 868 F.3d 960, 974 (11th Cir. 2017)(citing

Coolidge v. New Hampshire, 403 U.S. 443, 476 (1971); cf. Riley v. California, 573 U.S.

373, 394 (2014)(“The sum of an individual’s private life can be reconstructed through

a thousand photographs labeled with dates, locations, and descriptions….”).

In sum, these cases no longer warrant applying the good-faith exception or a

loose application of the particularity requirement. Further, this Court should

reconcile the tests for particularity to create a consistent rule in preventing social

media warrants from being overbroad, and this case is an appropriate case for the

Court to consider.

36

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be

granted.

Respectfully submitted this 12th day of July, 2024.

/s/ Joseph King

Joseph D. King

Counsel of Record

King, Campbell, Poretz & Mitchell PLLC

118 N. Alfred Street

Alexandria, Virginia 22314

(703) 683-7070

jking@kingcampbell.com

Counsel for Mr. Moises Zelaya-Veliz

Christopher Amolsch

12005 Sunrise Valley Drive, Suite 200

Reston, Virginia 20191

Counsel for Mr. Jonathan Rafael Zelaya-Veliz

Donna L. Biderman

Law Office of Donna Biderman

4015 Chain Bridge Road, Suite 38

Fairfax, Virginia 22030

Counsel for Mr. Gilberto Morales

Jeffrey Zimmerman

Jeffrey Zimmerman, PLLC

108 N. Alfred Street

Alexandria, VA 22314

Counsel for Mr. Luis Alberto Gonzalez

Donald E. Harris

Harris Law Firm

2800 Eisenhower Ave. Ste. 220

Counsel for Mr. Jose Eliezar Molina-Veliz

37

APPENDIX

i

TABLE OF CONTENTS

Page

OPINION OF THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT, FILED FEBRUARY 16, 2024 . . . . . . . . . . 1a

EXCERPT OF TRA NSCRIPT OF THE UNITED STATES

DISTRICT COURT EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION, DATED OCTOBER 27, 2021 . . . . . . . . .40a

EXCERPT OF TRA NSCRIPT OF THE UNITED STATES

DISTRICT COURT EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION, FILED JANUARY 9, 2023 . . . . . . . . . . 45a

DENI A L OF REHEA RING OF T HE U NIT ED STAT ES

COURT OF A PPEA LS FOR THE FOURTH CIRCUIT,

FILED MARCH 15, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59a

Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 1 of 39 PageID# 8910

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4656

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MOISES ORLANDO ZELAYA-VELIZ, a/k/a Moises Zelaya-Beliz, Moizes Zelaya

Bonilla, a/k/a Zelaya Hernandez,

Defendant – Appellant.

22-4659

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JONATHAN RAFAEL ZELAYA-VELIZ, a/k/a Rafael Zelaya, a/k/a Jonathan

Zelaya,

Defendant – Appellant.

1a

Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 2 of 39 PageID# 8911

22-4669

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

GILBERTO MORALES, a/k/a Chapin, a/k/a Chucha,

Defendant – Appellant.

22-4670

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LUIS ALBERTO GONZALES, a/k/a Luis Figo, a/k/a China, a/k/a Chinita,

Defendant – Appellant.

22-4684

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

2

2a

Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 3 of 39 PageID# 8912

JOSE ELIEZAR MOLINA-VELIZ, a/k/a Jose Eliezar Hernandez,

Defendant – Appellant.

22-4685

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

SANTOS ERNESTO GUTIERREZ CASTRO, a/k/a Gutierrez Hernestho,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern District of Virginia, at

Alexandria. Anthony John Trenga, Senior District Judge. (1:20-cr-00196-AJT-1; 1:20-cr00196-AJT-10; 1:20-cr-00196-AJT-9; 1:20-cr-00196-AJT-6; 1:20-cr-00196-AJR-4; 1:20cr-00196-AJT-5)

Argued: December 8, 2023

Decided: February 16, 2024

Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Wynn

and Judge Richardson joined.

ARGUED: Joseph Douglas King, KING CAMPBELL PORETZ & THOMAS, PLLC,

Alexandria, Virginia, for Appellants. Maureen Catherine Cain, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:

Christopher B. Amolsch, Reston, Virginia, for Appellant Jonathan Rafael Zelaya-Veliz.

3

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Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 4 of 39 PageID# 8913

Donna L. Biderman, LAW OFFICE OF DONNA L. BIDERMAN, Fairfax, Virginia, for

Appellant Gilberto Morales. Donald E. Harris, HARRIS LAW FIRM, Alexandria,

Virginia, for Appellant Jose Eliezar Molina-Veliz. Dwight E. Crawley, LAW OFFICE OF

DWIGHT CRAWLEY, Washington, D.C., for Appellant Ernesto Santos Gutierrez Castro.

Jeffrey D. Zimmerman, JEFFREY ZIMMERMAN, PLLC, Alexandria, Virginia, for

Appellant Luis Alberto Gonzales. Jessica D. Aber, United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

4

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Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 5 of 39 PageID# 8914

WILKINSON, Circuit Judge:

After a seven-day trial, six men affiliated with the transnational criminal

organization MS-13 were convicted of sex trafficking a thirteen-year-old girl by force,

fraud, or coercion, and conspiracy to do the same. Five of the men appeal the district court’s

denial of their motions to suppress evidence obtained from Facebook warrants, contending

the warrants failed the probable cause and particularity requirements of the Fourth

Amendment. The sixth man appeals the district court’s denial of his motion for acquittal,

contending that the evidence presented at trial was insufficient to sustain his conviction.

For the following reasons, we reject these claims and affirm each of the convictions.

I.

A.

The six appellants are members and associates of the transnational criminal street

gang Mara Salvatrucha (MS-13). In 2018, they worked together to sexually exploit and

physically abuse a thirteen-year-old girl—referred to in this opinion as Minor-2—and other

underage victims in Northern Virginia and Southern Maryland.

On August 27, 2018, Minor-2 ran away from a youth shelter in Fairfax County,

Virginia in search of a better living situation. Minor-2 had been in the shelter for just over

two months before leaving. While at the shelter, she met sixteen year old Minor-3, who

told Minor-2 that she could use her connections with MS-13 to have the gang protect them

if they ran away.

The girls proceeded to meet up with MS-13 members. Minor-3 introduced Minor-2

to them, and the members asked Minor-2 her age. She told them she was thirteen years old.

5

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Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 6 of 39 PageID# 8915

Nevertheless, they decided to enlist her in the gang, promising that they would protect her

and her family. The gang members proceeded to initiate Minor-2 into MS-13 by beating

her with a metal baseball bat. The first hit was so painful that Minor-2 begged them to stop,

but the gang members said that if they stopped they would have to kill her and her family.

She was struck a total of twenty-six times. The pain was so excruciating that Minor-2 later

reported that she thought she was going to die. After the beating finished, Minor-2 wanted

to run but couldn’t muster the strength to move her battered legs.

At least four MS-13 members participated in the beating. They struck Minor-2 with

the metal bat in front of at least five witnesses including Minor-3 and Minor-1, a fourteenyear-old who was also a victim of MS-13’s child sex trafficking. A detective testified at

trial that Minor-2’s treatment was representative of how MS-13 initiates females into the

gang: by beating them in multiples of thirteen and sexually exploiting them.

After Minor-2 was beaten, she was taken to an apartment in Woodbridge, Virginia

where appellants Moises Zelaya-Veliz and Jose Eliezar Molina-Veliz harbored her.

Moises, who was a full-fledged member of MS-13, was aware Minor-2 had been beaten by

his gang. The two men kept Minor-2 confined in their house out of fear that she would

report them or their gang to the police.

Moises and Jose both engaged in sexual intercourse with Minor-2 in the apartment.

They also sold her for sex to friends and acquaintances. On one occasion, at least five men

engaged in sexual intercourse with Minor-2 outside the apartment complex as Moises

watched from his porch. Minor-2 repeatedly pleaded for them to let her go home, but they

refused. To dissuade her from running away, MS-13 members threatened that they would

6

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Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 7 of 39 PageID# 8916

kill her family if she left. Later, when an MS-13 member found Minor-2 using another

gang member’s phone, she was taken back to the site of her first beating and beaten an

additional twenty-six times with the same metal bat as punishment.

Appellant Santos Ernesto Gutierrez Castro met Minor-2 at Moises and Jose’s

apartment. Santos subsequently took Minor-2 to his house and gave her marijuana. He

wanted to sell Minor-2 for sex, and so he began making calls to potential customers,

offering them the opportunity to have sex with Minor-2 for $100 an hour. The first day,

Santos sold Minor-2 for sex to more than ten men. He kept Minor-2 at his house for at least

three more days, during which time he had sex with her himself and continued to sell her

for sex with others. When he was finished, he took Minor-2 to a co-conspirator’s house in

Maryland.

Upon her arrival in Maryland, Minor-2 was still limping and bruised from the two

beatings. But the gang was undeterred. Appellant Luis Alberto Gonzales, who was a

member of MS-13, took over the trafficking. He shuffled Minor-2 between several

different Maryland residences where he sold her for sex in exchange for cash and cocaine.

Appellant Gilberto Morales met Minor-2 at one of those Maryland residences. He

gave Luis several grams of cocaine so that he could have sex with Minor-2. After the

transaction, Gilberto stayed in contact with Minor-2. They communicated with each other

over the phone and on Facebook more than 130 times during October 2018.

Gilberto was not the only one who tried to establish a more “personal” connection

with Minor-2. Luis worked to convince Minor-2 that he was her friend and boyfriend. But

all the while he continued to sell her for sex to other men and to have sex with her himself.

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Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 8 of 39 PageID# 8917

Eventually, Luis took Minor-2 to an apartment complex in Mount Rainier,

Maryland, where appellant Jonathan Zelaya-Veliz and other co-conspirators resided.

Minor-2 was confined there for about two weeks by Luis and Jonathan. During Minor-2’s

trafficking, Jonathan had sex with her and was involved, along with Luis, Moises, and

Santos, in coordinating her transportation to various locations in Virginia and Maryland

where she was sold for sex. On the first night in Mount Rainier, at least five men came to

the apartment and forced Minor-2 to have sex with them. She cried the entire time, but the

men kept going. Their abuse caused such excruciating pain that she later reported she

wanted to die to end the suffering.

Over the following two weeks, Luis and a co-conspirator set up prostitution dates

for Minor-2 with nearby customers. They sold her for sex up to seven hours a day. Luis

would sedate Minor-2 with alcohol and drugs, including marijuana and cocaine, before

driving her to customers’ homes and making her have sex with them. One of these men

sent Luis a video of him sexually penetrating Minor-2.

Minor-2 longed to escape, but feared that doing so would jeopardize her and her

family’s safety. Luis kept threatening her, telling her that there were many gang members

around the apartment complex that would find her if she tried to run away. She was also

told that Luis could see anyone she talked to on the phone he gave her.

Nevertheless, Minor-2 managed to escape. On October 11, 2018, she was recovered

by law enforcement outside the Mount Rainier apartment complex.

***

8

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Through physical violence and under the threat of her and her family’s death,

Minor-2 was forced by the appellants and other MS-13 associates to have sex with dozens

of adult men. They confined her to their residences, trafficked her across state lines, and

used her body at will. Over the more than six weeks she spent at the mercy of her

traffickers, Minor-2 was beaten viciously, infected with sexually transmitted diseases, and

subjected to unconscionable psychological trauma.

B.

In meetings with local law enforcement officers after her escape, Minor-2 was

unable to identify the full names of her abusers. She also had difficulty identifying the

locations where she was trafficked. She was, however, able to identify numerous

perpetrators based on photos of men that law enforcement suspected of being involved in

her trafficking. Minor-2 also relayed that Minor-1 was being sexually exploited by MS-13

and provided information to help identify her. This led to law enforcement locating and

recovering Minor-1 from a known MS-13 location, where she was found with an MS-13

member.

As the scope of MS-13’s sex trafficking conspiracy became apparent, the matter

escalated into a federal investigation led by FBI Special Agent Jeremy Obie of the Bureau’s

Child Exploitation and Human Trafficking Task Force in Washington, D.C. Based on

information that local law enforcement had earlier gathered, Special Agent Obie

determined that the suspects were likely using Facebook to sex traffic Minor-1, Minor-2,

and other victims. Thus, over the course of the multi-month investigation, Special Agent

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Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 10 of 39 PageID# 8919

Obie obtained four so-called Facebook warrants, which compelled Facebook to turn over

data on specified social media accounts.

The following paragraphs describe the four Facebook warrants, as their

constitutionality is central to the appellants’ appeal.

The First Warrant

The first Facebook warrant was approved on March 14, 2019 by U.S. Magistrate

Judge John F. Anderson in the Eastern District of Virginia. The warrant ordered Facebook

to give the government nine categories of information on five different Facebook accounts,

including all private communications made or received by the accounts. Four of the

accounts were operated by MS-13 member Sioni Alexander Bonilla Gonzalez, who pled

guilty before trial for his involvement in the sex trafficking conspiracy and is not a party

to this appeal. The fifth account was operated by a person who was known to have

communicated over Facebook with Minor-1 but who is also not a party to this appeal. The

warrant contained no time limitations, and thus impliedly authorized the government to

search all account data disclosed by Facebook from the time since the accounts’ respective

dates of creation until the time that the warrant was sworn out.

The warrant followed a standard two-step search and seizure process. It first

authorized the government to search the entirety of the data disclosed by Facebook. It then

authorized the seizure of specific categories of information revealed during that search;

namely, information that constituted fruits, evidence, or instrumentalities of violations of

four federal criminal statutes—18 U.S.C. § 1591 (sex trafficking of a minor by force, fraud,

or coercion); 18 U.S.C. § 1952 (travel or use of the mail or facility of interstate commerce

10

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Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 11 of 39 PageID# 8920

in aid of prostitution or other racketeering enterprises); 18 U.S.C. § 2422(a) (coercion or

enticement of a person to travel across state lines for prostitution or illegal sexual activity);

and 18 U.S.C. § 2423(a) (interstate transportation of a minor for purposes of prostitution

or illegal sexual activity)—and attempts and conspiracies to violate these statutes.

The affidavit supporting the warrant provided an overview of the four federal crimes

under investigation. It discussed the mechanics of Facebook and the types of data created

and stored on the platform. It further explained how Special Agent Obie had learned

through training and experience that violent gangs like MS-13 engage in human sex

trafficking as a source of revenue. Additionally, the affidavit relayed that individuals

engaged in sex trafficking will often use Facebook to facilitate such criminal activity, and

that MS-13 members were generally known to use Facebook to coordinate and arrange

prostitution and other crimes.

The affidavit went on to provide case-specific information to establish probable

cause for the search and seizure of data from the five Facebook accounts. It explained that

adult men, including Sioni, had discussed commercial sex activities with Minor-2 on

Facebook. It also established that Sioni had engaged in sexual activity with Minor-1.

The Second Warrant

Special Agent Obie obtained a second warrant in the Eastern District of Virginia,

signed by U.S. Magistrate Judge Ivan D. Davis, on June 5, 2019. This warrant ordered

Facebook to give the government the same nine categories of information as in the first

warrant, but this time on eight new Facebook accounts. Five of these accounts belonged to

appellant Luis Gonzales, and the other three belonged to co-conspirators who are not

11

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Case 1:20-cr-00196-AJT Document 564 Filed 02/16/24 Page 12 of 39 PageID# 8921

parties to this appeal. Just like the first warrant, this one authorized the search of all account

data going back to the accounts’ respective dates of creation, and it permitted the seizure

of information that constituted fruits, evidence, or instrumentalities of the same four federal

offenses.

The affidavit supporting this warrant provided the same information as did the first

warrant regarding the statutory offenses, the mechanics of Facebook, and MS-13’s

operation of prostitution enterprises. It also provided twenty pages of investigative

findings, photos, and screenshots of communications which detailed MS-13’s exploitation

of Minor-2. Some of this evidence was derived from the previous warrant-backed seizure

of Facebook account data.

The affidavit discussed photographs of Luis Gonzales that had been posted by five

different Facebook accounts. Each of the accounts was named “Luis Figo.” Minor-2

identified these photographs to be pictures of “Luis,” whom she said was an MS-13

member integral to her physical abuse and sex trafficking. The affidavit described how

Luis had sold Minor-2 to customers, forced her to have sex, and sedated her with drugs and

alcohol before prostitution dates. It further described how the investigation had unearthed

that a credit card in Luis’s name was used to pay for the phone bill of the cell phone that

Minor-2 possessed when she was recovered by law enforcement. The affidavit also

revealed that Luis had spent significant time at the apartment complex where Minor-2 was

recovered.

The Third Warrant

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The next Facebook warrant obtained by Special Agent Obie was signed by Judge

Anderson on July 12, 2019. It ordered Facebook to disclose information associated with

ten accounts. One of the accounts belonged to appellant Moises Zelaya-Veliz. Four of the

accounts belonged to MS-13 affiliates who were unindicted co-conspirators. The

remaining five accounts belonged to Minor-1, Minor-2, and Minor-3.

While the first two warrants contained no temporal limitation on what data could be

searched, this warrant ordered Facebook to disclose information from January 1, 2018 to

the date the warrant was sworn out. The warrant also broadened the scope of the

information that Facebook was required to turn over. It mandated disclosure of eighteen

different categories of data from Facebook, including a broader set of user activity, IP

addresses, device identifier logs, and all location information associated with the accounts.

Just like the first two warrants, this warrant only permitted the government to seize

information that constituted fruits, evidence, or instrumentalities of the four previously

enumerated offenses plus one additional offense: 18 U.S.C. § 1959 (violent crimes in aid

of racketeering).

Special Agent Obie’s affidavit provided general information on the statutory

offenses at issue, the mechanics of Facebook, and MS-13’s operation of prostitution

enterprises. It also provided a glossary of terminology frequently used by MS-13.

The affidavit went on to offer thirty pages of case-specific information, including

screenshots and transcripts of conversations about the sex trafficking of Minor-2. It

explained that Minor-2 told law enforcement that she had been taken to the home of Moises

Zelaya-Veliz after her initial beating. It described how investigating officers knew Moises

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operated the Facebook account targeted by the search warrant, which used the name

“Moizes Zelaya Bonilla,” because his Facebook profile picture matched pictures in a law

enforcement database. The affidavit additionally relayed that the warrant-backed search of

Sioni Gonzalez’s Facebook account had revealed that Moises had used Facebook to send

photos of firearms, illegal drugs, and MS-13 gang signs.

The Fourth Warrant

The fourth and final Facebook warrant was signed by then U.S. Magistrate Judge

Michael S. Nachmanoff on February 20, 2020. This warrant authorized the search of

information from twenty-two Facebook accounts, including accounts belonging to four

appellants—Jose Molina-Veliz, Santos Gutierrez Castro, Jonathan Rafael Zelaya-Veliz,

and Gilberto Morales—as well as multiple accounts of unindicted co-conspirators.

Like the third warrant, the final warrant required Facebook to provide account

information from January 1, 2018 to the date the warrant was sworn out. The warrant used

the same list of eighteen types of information for Facebook to disclose as in the third

warrant. And, just like the previous warrant, it limited the government’s seizure to include

only information discovered during the search that constituted fruits, evidence, or

instrumentalities of the five enumerated offenses.

Special Agent Obie’s affidavit, as in his previous warrant applications, described

the statutory offenses at issue, the mechanics of Facebook, and MS-13’s operation of

prostitution enterprises. By the time of the affidavit’s filing, over ten months after the initial

Facebook warrant, the government had compiled a substantial investigative record into

MS-13’s sex trafficking of Minor-1, Minor-2, and Minor-3. The affidavit thus provided

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over fifty pages of case-specific information, which included descriptions, images, and

transcripts of the illicit activities of the appellants and their co-conspirators. The affidavit’s

detailed account revealed how each of the four appellants targeted by this warrant had

participated in the sex trafficking of Minor-2.

With respect to Jose Eliezar Molina-Veliz, whose Facebook account used the name

“Jose Eliezar Hernandez,” the affidavit used returns from previous Facebook warrants to

describe how he had engaged in sexually explicit communications over Facebook with

Minor-2 and Minor-3 during the period that the two girls were being exploited by MS-13.

It also recounted how he had used Facebook to coordinate Minor-2’s transportation for sex.

With respect to Santos Gutierrez Castro, who went by “Gutierrez Hernestho” on

Facebook, the affidavit explained that Minor-2 had taken a photo of Minor-3 and Santos

the day after Minor-2 had initially been beaten in the garage, and subsequently posted that

photo on her Facebook. The affidavit further relayed that Santos had used Facebook to

solicit sexually explicit photos and in-person sexual acts from Minor-2 in exchange for

money and illegal drugs. It shared evidence that Santos was using Facebook to coordinate

sending multiple prostitution customers to Minor-2 so that they could sexually exploit her.

And it discussed how a phone number known to be used by Santos was linked to the

targeted Facebook account.

With respect to Jonathan Rafael Zelaya-Veliz—who operated four Facebook

accounts under the names “Jonathan Zelaya” and “Rafael Zelaya”—the affidavit explained

that Minor-2 knew Jonathan as Moises Zelaya-Veliz’s brother. It identified Jonathan as

living at the apartment complex where Minor-2 had been held during the final two weeks

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of her exploitation. And it explained that Jonathan had used Facebook to communicate

with Moises about having sex with Minor-2.

With respect to Gilberto Morales, the affidavit discussed how Minor-2 had

identified him as one of the men who sexually abused her. It explained that Gilberto had

been in regular contact with Minor-2 during her abuse. And it shared a transcript of a

conversation in which Gilberto admitted to being business partners with Luis Gonzales in

the sex trafficking of Minor-2 and sought out an additional partner for the operation.

Summary of Facebook Warrants

The following table summarizes the four Facebook warrants executed by the

government. See Appellants’ Brief at 9–10.

Date of

issuance

Mar. 14,

2019

Jun. 5,

2019

Jul. 12,

2019

Feb. 20,

2020

No. of

Appellants’ accounts

accounts searched

searched

5

None

Data

disclosed

Temporal

limitation

Short list 1

None

8

Luis Gonzales

Short list

None

10

Moises Zelaya-Veliz

Long list 2

22

Jose Eliezar Molina-Veliz,

Santos Ernesto Gutierrez

Castro, Gilberto Morales, and

Jonathan Rafael Zelaya-Veliz

Long list

January 1, 2018

to date of warrant

execution

January 1, 2018

to date of warrant

execution

Nine categories of information, including all communications sent to and from the

accounts.

1

Eighteen categories of information, including all of the accounts’ communications

and location information.

2

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C.

On August 27, 2020, a grand jury in the Eastern District of Virginia returned a multicount indictment against the six appellants and five additional defendants, charging them

with child sexual exploitation-related offenses in violation of 18 U.S.C. §§ 1591, 1594, and

2423, and assault with a dangerous weapon in aid of racketeering activity in violation of

18 U.S.C. § 1959. A superseding indictment issued on April 19, 2022.

Before trial, Moises Zelaya-Veliz, Jose Molina-Veliz, Luis Gonzales, Gilberto

Morales, and Jonathan Zelaya-Veliz moved to suppress the evidence obtained from the

Facebook warrants. They argued the warrants lacked probable cause and were

insufficiently particularized.

The district court denied the motions to suppress in a ruling from the bench. It found

that the Facebook warrants were supported by probable cause, stating that “the magistrate

judges [who issued the warrants] in each instance did have a substantial basis for

concluding, as to each of the defendants, a sufficient nexus existed between the Facebook

accounts to be searched and the crimes under investigation.” J.A. 114–15. The court next

found that the warrants were sufficiently particular in timeframe and scope. The timeframe

of the warrants was reasonable, according to the court, because the searches supported an

investigation beyond Minor-2’s abuse into an “extensive ongoing interstate criminal

enterprise of uncertain beginnings,” and because the government narrowed the timeframe

of the information sought as the investigation progressed. J.A. 115. And the court found

that the scope of the information sought was reasonable because, based on the information

submitted to the magistrates, there was a substantial basis to believe that all of the

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categories of information sought were relevant to establishing the identities of perpetrators

and revealing their criminal activities.

The six appellants proceeded to a jury trial on June 1, 2022. During the course of

the seven-day trial, the government extensively employed information that it had obtained

from the Facebook warrants. It admitted dozens of exhibits of Facebook-warrant-derived

evidence and discussed this evidence at length in its opening and closing statements.

The jury deliberated for three days before returning convictions for each appellant.

Santos Gutierrez Castro, Luis Gonzales, Jose Molina-Veliz, Jonathan Zelaya-Veliz, and

Moises Zelaya-Veliz were each convicted of sex trafficking a minor under the age of

fourteen, conspiracy to do the same, and conspiracy to transport a minor across state lines

for purposes of prostitution or other illegal sexual activity. Gilbert Morales was convicted

of sex trafficking of a minor under the age of fourteen and conspiracy to do the same.

After trial, all appellants made oral motions for judgment of acquittal under Federal

Rule of Criminal Procedure 29. The court denied those motions on October 7, 2022.

The district court sentenced the appellants on November 10, 2022. Their respective

terms of imprisonment were 300 months for Luis Gonzales, 264 months for Moises ZelayaVeliz, and 180 months each for Santos Gutierrez Castro, Jose Molina-Veliz, Gilberto

Morales, and Jonathan Zelaya-Veliz.

The appellants timely appealed. The five appellants who had moved to suppress

evidence derived from the Facebook warrants challenge the district court’s denial of their

motions to suppress, claiming that the warrants lacked probable cause and were

insufficiently particularized. The sixth appellant, Santos Gutierrez Castro, challenges the

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district court’s denial of his motion for acquittal, claiming that insufficient evidence was

presented at trial to sustain his convictions.

II.

We start with the appellants’ contention that the district court erred in denying their

motions to suppress evidence from the Facebook warrants. Before analyzing their specific

claims, we first determine which warrants the appellants have Fourth Amendment standing

to challenge. We next address the appellants’ claims that the warrants lacked probable

cause and were insufficiently particularized, taking each issue in turn.

A.

As an initial matter, we note that a defendant can only challenge a warrant that

authorizes the search or seizure of items in which he had a protected Fourth Amendment

interest. It is insufficient for the defendant to show that a third party had a protected interest

in the information searched because “it is proper to permit only defendants whose Fourth

Amendment rights have been violated to benefit from the rule’s protections.” Rakas v.

Illinois, 439 US 128, 134 (1978). Thus, to prevail in a motion to suppress evidence obtained

from a search, a defendant has the burden of showing that the government implicated a

protected interest of his in conducting that search. See id. at 130 n.1 (1978). Courts often

refer to the requirement that a defendant show that a search implicated his protected interest

as “Fourth Amendment standing,” although it “should not be confused with Article III

standing” because it is “not a jurisdictional question and hence need not be addressed

before addressing other aspects of the merits of a Fourth Amendment claim.” Byrd v.

United States, 584 U.S. 395, 410–11 (2018).

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As the defense conceded at oral argument, none of the appellants has Fourth

Amendment standing to challenge the first Facebook warrant. That warrant only targeted

accounts belonging to two co-conspirators who are not parties in this appeal. Because no

protected interest of the appellants was implicated by the first warrant, we need not assess

its constitutionality.

In contrast, each of the subsequent Facebook warrants targeted accounts that

belonged to at least one appellant. The second warrant targeted Luis Gonzales’s accounts.

The third warrant targeted Moises Zelaya-Veliz’s account. And the fourth warrant targeted

accounts belonging to Jose Molina-Veliz, Santos Gutierrez Castro, Jonathan Zelaya-Veliz,

and Gilberto Morales. Given this, the government and defense both accepted that the

appellants had Fourth Amendment standing to challenge these warrants.

In adopting the litigants’ assumption that Fourth Amendment standing exists here,

we note that each of the warrants at issue required the disclosure of the appellants’ private

communications. Most federal courts to rule on the issue have agreed that Facebook and

other social media users have a reasonable expectation of privacy in content that they

exclude from public access, such as private messages. See United States v. Bledsoe, 630 F.

Supp. 3d 1, 18 (D.D.C. 2022) (finding the “weight of persuasive authority hold[s] that nonpublic content held on social media accounts is protected under the Fourth Amendment”

and citing cases); United States v. Chavez, 423 F. Supp. 3d 194, 201–205 (W.D.N.C. 2019);

United States v. Irving, 347 F. Supp. 3d 615, 623 (D. Kan. 2018).

Such an approach reflects the consensus of federal courts that private electronic

communications are generally protected by the Fourth Amendment, even when transmitted

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over third-party platforms. See, e.g., United States v. Wilson, 13 F.4th 961, 980 (9th Cir.

2021) (holding examination of defendant’s email attachments without a warrant violated

his Fourth Amendment right to be free from unreasonable searches); United States v.

Hasbajrami, 945 F.3d 641, 666 (2d Cir. 2019) (assuming for the purposes of the appeal

that “a United States person ordinarily has a reasonable expectation in the privacy of his emails”); United States v. Warshak, 631 F.3d 266, 284–88 (6th Cir. 2010) (holding the

Fourth Amendment protects private email communications); United States v. Richardson,

607 F.3d 357, 363–64 (4th Cir. 2010) (suggesting that before a government agent searches

emails, “probable cause and a warrant [a]re required”); see also Katz v. United States, 389

U.S. 347, 352–53 (1967) (finding persons have a protected Fourth Amendment interest in

the content of their phone conversations, despite the ability of an operator to listen in); Ex

parte Jackson, 96 U.S. 727, 733 (1877) (holding that the contents of postal letters are

entitled to Fourth Amendment protection, despite the fact that letters are entrusted to

intermediaries).

It cannot be the rule that the government can access someone’s personal

conversations and communications without meeting the warrant requirement or one of the

Supreme Court’s delineated exceptions to it. The judiciary would not allow such a trespass

upon privacy at its core.

B.

We thus turn to the appellants’ claims that the second, third, and fourth warrants

were constitutionally deficient. Their first contention is that the district court erred in

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denying their motions to suppress because the Facebook warrants were issued without

probable cause. We disagree.

1.

The Fourth Amendment requires that warrants be supported by probable cause. U.S.

Const. amend. IV. There is probable cause when, “given all the circumstances set forth in

the affidavit . . . , there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Probable cause is

a “fluid concept—turning on the assessment of probabilities in particular factual contexts—

not readily, or even usefully, reduced to a neat set of legal rules.” Id. at 232. Courts thus

must not invalidate a warrant based on “a hypertechnical, rather than a commonsense,”

interpretation of the warrant affidavit, id. at 236, but must instead take into account “‘the

factual and practical considerations of everyday life on which reasonable and prudent men,

not legal technicians, act.’” Ornelas v. United States, 517 U.S. 690, 695 (1996) (quoting

Gates, 462 U.S. at 231).

Reviewing courts must determine whether “the magistrate had a substantial basis

for concluding that a search would uncover evidence of wrongdoing.” Gates, 462 U.S. at

236 (internal quotations omitted); see also Massachusetts v. Upton, 466 U.S. 727, 732–33

(1984). In doing so, “[w]e afford initial probable cause determinations ‘great deference’

when, as here, a ‘neutral and detached magistrate’ finds probable cause to support a

warrant.” United States v. Orozco, 41 F.4th 403, 407 (4th Cir. 2022) (quoting Gates, 462

U.S. at 236, 240).

2.

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The magistrates who approved the three Facebook warrants at issue each had a

substantial basis for concluding that the searches would uncover evidence of wrongdoing.

They each reasonably determined, based on the information averred in the supporting

affidavits, that there was a fair probability that evidence of MS-13’s sex trafficking crimes

would be found on the appellants’ Facebook accounts.

The affidavits all explained how Special Agent Obie’s training and experience made

him aware that MS-13 uses social media platforms such as Facebook to conduct and

communicate about criminal activities, including commercial sex trafficking. The

magistrates were well within their discretion to rely on an officer’s “assertion of trainingand experience-based knowledge” to help substantiate the nexus between the sex

trafficking crimes listed by the warrants and the Facebook accounts to be searched. United

States v. Williams, 548 F.3d 311, 319–20 (4th Cir. 2008). This reliance is particularly

appropriate where, as here, the averred facts based on training and experience were

substantiated by examples in case law of MS-13 using social media to advance its criminal

activities. See, e.g., United States v. Ruiz, 623 F. App’x 535, 536 (11th Cir. 2015) (per

curiam); United States v. Juvenile Male, 269 F. Supp. 3d 29, 38 (E.D.N.Y. 2017); United

States v. Contreras, 2017 WL 6419136, at *1 (D. Md. Oct. 19, 2017).

The appellants contend that training and experience alone are insufficient to

establish a nexus between the location of the proposed search and the alleged criminal

activity, citing United States v. Schultz, 14 F.3d 1093, 1097–98 (6th Cir. 1994). But far

from relying merely on averments about the typical uses of social media by gang members,

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each affidavit provided copious details linking the appellants’ use of Facebook to the sex

trafficking enterprise under investigation.

Take first the affidavit supporting the second warrant. This affidavit identified Luis

Gonzales as the user behind the five targeted Facebook accounts bearing the name “Luis

Figo.” It stated that Minor-2 had, during an interview with law enforcement, identified a

photo posted by each of the Facebook accounts as depicting someone she called “Luis,”

whom she explained was an integral participant in her physical and sexual abuse. And it

discussed how Luis’s credit card had been used to pay for the phone bill of the cell phone

recovered on Minor-2’s person. Moreover, the affidavit showed Luis’s associates in MS13 using Facebook to discuss the first bat beating of Minor-2. This combination of evidence

established that (1) Luis was involved in the sex trafficking of Minor-2; (2) he was

operating multiple Facebook accounts under an assumed last name; and (3) his MS-13

associates used Facebook to facilitate Minor-2’s trafficking and physical abuse. The

affidavit thus provided ample support for the magistrate’s determination that there was a

sufficient nexus between the five accounts to be searched and the evidence of sex

trafficking to be seized.

Next, consider the third warrant. Here too a substantial basis existed for the

magistrate’s finding, in authorizing the warrant, that probable cause existed to search

Moises Zelaya-Veliz’s Facebook account. The affidavit provided a detailed description,

based on interviews with Minor-2, of how Moises was central to the sex trafficking

conspiracy. And, according to the affidavit, the warrant-backed search of Sioni Gonzalez’s

Facebook account had revealed that Moises used his Facebook account to advance MS24

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13’s other criminal endeavors. These endeavors involved the use of firearms, and were

depicted through the transmission of photographs of firearms, illegal drugs, and gang signs.

Finally, take the fourth warrant. The magistrate had a substantial basis for

concluding that probable cause existed to search the Facebook accounts of the four

appellants the warrant targeted. Submitted to the court on February 20, 2020—over ten

months into the investigation—the affidavit supporting this warrant provided voluminous

information on the sex trafficking conspiracy and directly tied the use of Facebook by each

of the four appellants to their criminal activities. In doing so, the affidavit made extensive

use of the Facebook records produced pursuant to the previous warrants.

For Santos Gutierrez Castro, the affidavit provided Facebook transcripts of his

conversations coordinating prostitution customers for Minor-2 and soliciting sexually

explicit photos and in-person sexual acts from Minor-2 in exchange for money and drugs.

For Jose Molina-Veliz, the affidavit transcribed Facebook conversations consisting of

sexual advances towards Minor-2 and Minor-3 during the period that the two girls were

being exploited by MS-13. For Jonathan Zelaya-Veliz, it shared evidence of his discussing

with his brother Moises the sex trafficking and exploitation of Minor-2. And for Gilberto

Morales, the affidavit disclosed that he partnered with Luis Gonzales in trafficking Minor2, that he sexually abused Minor-2, and that he sought regular contact with Minor-2 during

her confinement and exploitation.

Contributing further to the affidavits’ credibility and the establishment of probable

cause was the information that Minor-2 bravely relayed to law enforcement during her

post-recovery interviews. Her decision to share the details of her abuse with the authorities

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was an act of genuine courage. Providing information to law enforcement on gang-related

offenses can subject a victim to retribution and revenge, and multiple MS-13 members had

threatened Minor-2 with death for her and her family. The strength with which this thirteenyear-old victim shared the grim facts about her abuse is therefore firm evidence of her

credibility. Indeed, the circumstances under which Minor-2 talked to law enforcement

make the information she shared tantamount to statements against interest, which the

Federal Rules of Evidence regard as indicative of reliability. See Fed. R. Evid. 804(b)(3)

(stating that certain statements are so contrary to a declarant’s own interest that a reasonable

person would only make such statements if they believed them to be true).

The warrant affidavits in this case were well-sourced. They incorporated

information from a reliable witness, the experience of an agent well-versed in the workings

of MS-13, and—with each successive warrant—an increasingly incriminating chain of

messages that tethered successive Facebook accounts to the larger conspiracy. In light of

the thoroughness of the affidavits, the magistrates quite properly found probable cause.

C.

Next, the appellants contend the Facebook warrants were insufficiently

particularized in two ways. First, they claim the scope of the warrants should have included

fewer categories of data from the Facebook accounts. Second, they claim that the

timeframe of the warrants should have been limited to include only information during the

trafficking of Minor-2 instead of information from before and after that period.

1.

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The Fourth Amendment requires that warrants “particularly describ[e] the place to

be searched, and the person or things to be seized.” U.S. Const. amend. IV. This

requirement stems from our Founders’ disdain for “the reviled ‘general warrants’ and

‘writs of assistance’ of the colonial era, which allowed British officers to rummage through

homes in an unrestrained search for evidence of criminal activity.” Riley v. California, 573

U.S. 373, 403 (2014); see also Marron v. United States, 275 U.S. 192, 195–96 (1927). By

having to state with particularity the scope of the authorized search, a warrant prohibits the

government from having “unbridled discretion to rummage at will among a person’s

private effects.” Arizona v. Gant, 556 U.S. 332, 345 (2009); see also Andresen v. Maryland,

427 U.S. 463, 480 (1976); United States v. Blakeney, 949 F.3d 851, 861 (4th Cir. 2020).

At the same time, the particularity requirement is not a “constitutional straight

jacket,” United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010), and it should be not

read to create “a too-cramped understanding of the scope of a proper warrant.” United

States v. Jones, 952 F.3d 153, 158 (4th Cir. 2020). Because the particularity requirement

is “a pragmatic one,” “[t]he degree of specificity required when describing the goods to be

seized may necessarily vary according to the circumstances and type of items involved.”

United States v. Cobb, 970 F.3d 319, 327 (4th Cir. 2020) (quoting United States v. Jacob,

657 F.2d 49, 52 (4th Cir. 1981)).

2.

With this background in mind, we turn to the appellants’ argument that the warrants

were insufficiently particularized with respect to the scope of the information that they

required Facebook to disclose. The warrants compelled Facebook to turn over a wide swath

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of personal information attached to the accounts, including all private communications,

most user activity, and, in the case of the latter two warrants, all location information. But

each warrant “‘identif[ied] the items to be seized by reference to [the] suspected criminal

offense[s],’” namely, 18 U.S.C. §§ 1591, 1952, 2422(a), and, with respect to the latter two

warrants, also 18 U.S.C. § 2423(a). Cobb, 970 F.3d at 329 (quoting Blakeney, 949 F.3d at

863). So while the warrants authorized the government to search all of the information

disclosed by Facebook, they only permitted the subsequent seizure of the fruits, evidence,

or instrumentalities of violations of enumerated federal statutes. We have previously found

that a warrant’s particularity is bolstered where, as here, the scope of the seizure it

authorized was limited to evidence of enumerated offenses. See id. at 328–29; Blakeney,

949 F.3d at 863; United States v. Jones, 31 F.3d 1304, 1313 (4th Cir. 1994). The warrants

in this case thus appropriately “confined the executing officers’ discretion,” Cobb, 970

F.3d at 328, by restricting them from rummaging through the appellants’ social media data

in search of unrelated criminal activities.

This distinction between what may be searched and what can be seized counsels the

government to execute social media warrants through a two-step process. This process—

whereby the government first obtains a large amount of account data then seizes only the

fruits, evidence, or instrumentalities of enumerated crimes—is crucial to the validity of

social media warrants. As in a search of a house, the officers searching the Facebook

account data at issue necessarily encountered a host of irrelevant materials. But, just like

in a house search, the officers were authorized to seize only the fruits, evidence, or

instrumentalities of the crimes for which they had established probable cause.

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The validity of this two-step process is acknowledged by Federal Rule of Criminal

Procedure 41(e)(2)(B) and its commentary, which permit officers, in searching

electronically stored information pursuant to a warrant, to “seize or copy the entire storage

medium and review it later to determine what electronically stored information falls within

the scope of the warrant.” Fed. R. Crim. P. 41(e)(2)(B) Committee Notes on Rules—2009

Amendment. While “the Fourth Amendment generally leaves it ‘to the discretion of the

executing officers to determine the details of how best to proceed with the performance of

a search authorized by warrant,’” Cybernet, LLC v. David, 954 F.3d 162, 168 (4th Cir.

2020) (quoting Dalia v. United States, 441 U.S. 238, 257 (1979)), the two-step process, as

laid out in Rule 41, helps to mitigate particularity concerns in the social media warrant

context. See United States v. Mercery, 591 F. Supp. 3d 1369, 1382 (M.D. Ga. 2022) (noting

the “general practice for agents to comply with Rule 41 by creating a two-step process—

the ‘search’ wherein the warrant will compel the third party to produce a broad array of

electronic information, and the ‘seizure’ wherein the warrant will authorize the seizure of

[] specified information.”).

Contrary to the appellants’ claims, this two-step process is not toothless. Rule 41

and the terms of the warrants at issue ensured that the government executed the warrant in

a reasonable manner. The district court retained the authority to determine that prolonged

retention of non-responsive data by the government violated the Fourth Amendment. See

J.A. 120 (finding that “the Government was authorized and is authorized to proceed with

this two-step procedure, and that at this point it cannot be said that the time period to

complete that process has expired.”). This authority derives from the fact that, “[i]n the

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[warrant] execution context, as elsewhere, Fourth Amendment reasonableness kicks in.”

Cybernet, 954 F.3d at 168. Courts have applied this reasonableness standard to suppress

evidence when the government delayed unreasonably in sifting through social media

warrant returns for relevant evidence. See, e.g., United States v. Cawthorn, 2023 WL

5163359, at *5–7 (D. Md. July 13, 2023) (finding Fourth Amendment violated when

government waited two years after executing warrant to review social media account data

and did not justify delay). These safeguards help ensure that, despite the large scope of

information that the warrants here returned, the searches and seizures they authorized were

not insufficiently particularized.

The wide-ranging nature of the sex trafficking conspiracy under investigation

further mitigates any concern that the scope of the warrant was impermissibly broad. The

FBI was investigating the multi-month sex trafficking of at least three underage girls by

force and coercion. By the time the first warrant at issue was sought, that investigation had

produced evidence that a host of gang-affiliated suspects had helped sex traffic the minors,

and many more had engaged in illegal sexual activity with them. And these were not just

“ordinary” gang members. The suspects were members of or otherwise affiliated with MS13, a transnational criminal organization that “defined its primary mission as killing rivals”

and that committed numerous murders across the United States. See United States v. PerezVasquez, 6 F.4th 180, 187 (1st Cir. 2021). A reasonable inference from the evidence in the

warrant affidavits was that the sex trafficking conspiracy was ongoing, as at least some of

the suspects appeared willing to sex traffic minors under the threat of death as a matter of

course so that they could fund their lifestyles and MS-13’s operations.

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Moreover, the affidavit showed how the conspirators were using Facebook

extensively to communicate with co-conspirators, victims, and customers in furtherance of

the conspiracy. Under such circumstances, it did not violate the Fourth Amendment’s

particularity requirement for law enforcement to obtain detailed Facebook user activity

data on the sex trafficking suspects. See, e.g., United States v. Allen, 2018 WL 1726349, at

*2, *6 (D. Kan. Apr. 10, 2018) (holding Facebook warrant that produced 28,000 pages of

records was sufficiently particularized in the context of an investigation into a complex

criminal conspiracy to use a weapon of mass destruction); United States v. Daprato, 2022

WL 1303110, at *7 (D. Me. May 2, 2022) (rejecting particularity challenge to a warrant

that compelled disclosure of broad array of Facebook account data to help “reveal [a

defendant’s] additional connections with the codefendants or victims”). The sheer

magnitude of the sex trafficking conspiracy here justified a concomitant breadth in the

scope of the warrants, particularly as the seizures they authorized were limited to evidence

of the specified offenses for which probable cause existed.

3.

We next consider the appellants’ claim that the timeframe of the warrants was fatally

overbroad. The appellants contend that the second warrant was insufficiently particularized

because it had no temporal limitation, and that the third and fourth warrants were

insufficiently particularized because their temporal limitations far exceeded the two-month

period of time during which Minor-2 was sex trafficked. Other courts have found that a

temporal limitation can help particularize warrants that authorize the search and seizure of

Facebook account data. See, e.g., Chavez, 423 F. Supp. 3d at 207; see also United States v.

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McCall, 84 F.4th 1317, 1328 (11th Cir. 2023) (“By narrowing a search to the data created

or uploaded during a relevant time connected to the crime being investigated, officers can

particularize their searches to avoid general rummaging.”).

We start with the third and fourth warrants, both of which were timebound. They

limited the period of disclosure from January 2018 to their respective dates of service. This

timeframe was appropriately particularized as (1) the affidavits suggested that Minor-2 had

been sexually abused by affiliates of MS-13 starting during or before June 2018; (2) Minor2’s abuse was part of a broader sex trafficking conspiracy involving multiple minors,

including Minor-3, who was already in close contact with MS-13 members before she met

Minor-2 and who may have already been sex trafficked by them; (3) each affidavit

explained how gang members involved in a sex trafficking conspiracy often use social

media to discuss the conspiracy before, during, and after its execution; (4) multiple

appellants continued to use Facebook to message Minor-2 after she was recovered by law

enforcement in October 2018; and (5) it was appropriate for the magistrates to infer from

the affidavits that the targeted MS-13 members and affiliates were engaged in what the

district court called an “extensive ongoing interstate criminal enterprise of uncertain

beginnings.” J.A. 115. The extensive nature of the conspiracy being investigated in this

case meant that “less temporal specificity [wa]s required here than in other contexts where

evidence can more readily be confined to a particular time period.” United States v.

Manafort, 323 F. Supp. 3d 768, 782 (E.D. Va. 2018). As the Tenth Circuit has rightly

noted, “[w]arrants relating to more complex and far-reaching criminal schemes may be

deemed legally sufficient even though they are less particular than warrants pertaining to

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more straightforward criminal matters.” United States v. Cooper, 654 F.3d 1104, 1127

(10th Cir. 2011).

The second warrant that targeted Luis Gonzales’s Facebook accounts, on the other

hand, lacked a temporal limitation. This total lack of a time period in a social media warrant

raises a problem. As our society moves further into the digital age, Facebook and other

social media accounts are beginning to contain decades of personal information and

communications, often going back to an account holder’s early teenage years. These social

media accounts, much like cell phones, frequently contain “a broad array of private

information never found” during a traditional search of a home. Riley, 573 U.S. at 397; see

also United States v. Galpin, 720 F.3d 436, 447 (2d Cir. 2013) (“Where a warrant

authorizes the search of a residence, the physical dimensions of the evidence sought will

naturally impose limitations on where an officer may pry[.] . . . Such limitations are largely

absent in the digital realm[.]”). That is why one court has stated that Facebook warrants

pose “an especially potent threat to privacy” because they can “provide[] a single window

through which almost every detail of a person’s life is visible.” United States v. Shipp, 392

F. Supp. 3d 300, 307–08 (E.D.N.Y. 2019).

Moreover, the imposition of a temporal limitation on the information that Facebook

must disclose does not pose the administrability concerns that an analogous limitation

would pose in a traditional search of a home. That is because it is possible for Facebook to

filter data by time frame before disclosing it to the government, while an officer searching

a home often has no idea when each item was last used. See McCall, 84 F.4th at 1328.

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Thus, “a time-based limitation [is] both practical and protective of privacy interests” in the

context of social media warrants. Id.

We need not go so far as to mandate a temporal restriction in every compelled

disclosure of social media account data for the simple reason that we cannot anticipate all

future circumstances. Nor do we invalidate the warrant-backed search and seizure of Luis

Gonzales’s Facebook account information. Rather, in applying the Fourth Amendment to

novel questions posed by digital technology, we find it advisable to proceed with caution.

“The judiciary risks error by elaborating too fully on the Fourth Amendment implications

of emerging technology before its role in society has become clear.” City of Ontario, Cal.

v. Quon, 560 U.S. 746, 759 (2010). We therefore hold that Luis’s motion to suppress was

properly denied because the good faith exception to the exclusionary rule applies. See

United States v. Leon, 468 U.S. 897, 922–24 (1984).

Given the unsettled nature of whether a temporal limitation is required on a warrant

authorizing the search and seizure of Facebook account data, we cannot say that “a

reasonably well trained officer would have known that the search was illegal despite the

magistrate's authorization.” Id. at 922 n.23. Rather, law enforcement here acted pursuant

to a warrant that was not “so facially deficient . . . that the executing officers [could not]

reasonably presume it to be valid.” Id. at 922–23. It is axiomatic that “‘[c]ourts should not

punish law enforcement officers who are on the frontiers of new technology simply because

they are at the beginning of a learning curve and have not yet been apprised of the

preferences of courts on novel questions.’” Cawthorn, 2023 WL 5163359, at *4 (quoting

Chavez, 423 F. Supp. 3d at 208). As Special Agent Obie relied on his good faith belief in

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the warrant’s validity, we hold that the district court did not err in denying the appellants’

motions to suppress. We note, however, that future warrants enhance their claims to

particularity by “request[ing] data only from the period of time during which [the

defendant] was suspected of taking part in the [criminal] conspiracy.” United States v.

Blake, 868 F.3d 960, 974 (11th Cir. 2017).

Our ruling is a narrow one, and we do not greenlight all warrants for and searches

of social media data. 3 Because “the ultimate touchstone of the Fourth Amendment is

reasonableness,” Fernandez v. California, 571 U.S. 292, 298 (2014), the validity of any

warrant depends on an analysis of the circumstances at issue. This is no less true in the

social media context than in a search in the Founders’ day.

III.

Finally, Santos Gutierrez Castro claims the district court should have granted his

motion for acquittal because insufficient evidence was presented at trial to sustain his

convictions. See Fed. R. Crim. P. 29. We review the denial of such a motion de novo.

United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). If, viewing the evidence in

the light most favorable to the prosecution, the guilty verdict at trial was supported by

substantial evidence, we are required to sustain it. United States v. Burgos, 94 F.3d 849,

862 (4th Cir. 1996) (en banc).

We do not, for example, address the question of whether officers sifting through

Facebook account data for the fruits and instrumentalities of sex trafficking could lawfully

build a different case under a plain view discovery of a distinct offense.

3

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We reject Santos’s sufficiency challenge and affirm his convictions. Substantial

evidence supported the jury’s conclusion that Santos was guilty of (1) conspiracy to engage

in sex trafficking of a minor under fourteen or of a minor by force, fraud, or coercion in

violation of 18 U.S.C. §§ 1591(a)(1) and 1594(c); (2) sex trafficking of a minor under

fourteen or of a minor by force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a)(1)

and 1591(b)(1); and (3) conspiracy to transport a minor in interstate commerce with intent

for the minor to engage in prostitution or illegal sexual activity in violation of 18 U.S.C.

§ 2423(e). The jury heard evidence that Santos harbored Minor-2 in his house for multiple

days, had sex with her there despite knowing she was underage, and allowed multiple other

men to do the same in exchange for money. The jury also received Facebook records

showing that Santos coordinated with co-conspirators to sex traffic Minor-2, including by

circulating risqué photos of her and discussing where to transport her so that customers

could sexually exploit her.

Santos claims on appeal that “[n]ot one witness testified” that he received anything

of value in return for sexual acts by Minor-2. Appellants’ Brief at 40. Yet Minor-2 herself

testified that, while she was in Santos’s home, she heard him telling people over the phone

that if they were going to have sex with her, they had to pay $100 per hour. The same day

that she overheard this call, Minor-2 was forced to have sex with more than ten men in

Santos’s home. Santos disputes the validity of this testimony, noting that in Minor-2’s

initial interviews with law enforcement, she said she did not recall whether Santos received

money in exchange for her having sex. But, viewing the evidence in the light most

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favorable to the prosecution, it was well within the jury’s discretion to credit Minor-2’s

trial testimony.

Beyond Minor-2’s testimony, copious Facebook records and interview transcripts

support the jury’s verdict. Santos himself openly admitted in a Mirandized interview with

FBI agents that he had engaged in sex with Minor-2, whom he knew was underage, while

she was at his house. This admission is substantiated by multiple Facebook conversations

between Santos and Minor-2 in which he discussed meeting up with her to have sex. In

Facebook conversations between Santos and Jose Molina-Veliz, they talked about the

possibility that one of them had impregnated Minor-2. The two also discussed, around the

time of Minor-2’s second bat beating, meeting up so they could beat Minor-2 on the chest.

What’s more, Facebook conversations with additional co-conspirators show Santos

coordinating the transportation of Minor-2 to different prostitution customers, including

one conversation in which he refers to Minor-2 as a female prisoner.

To summarize, the extensive Facebook records presented at trial, combined with

Minor-2’s testimony and Santos’s admissions to the FBI, provided substantial evidence on

which the jury was entitled to find him guilty of conspiracy to transport Minor-2 in

interstate commerce with the intent that she engage in illegal sexual activity; sex trafficking

of Minor-2 as a person under fourteen or by force, fraud, or coercion; and conspiracy to do

the same. His was not a close case, and the district court properly denied Santos’s motion

for acquittal.

IV.

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As the tragic facts of this case reveal, social media provides an all-too-easy avenue

for the coordination of sex trafficking conspiracies. Even more troubling, sex traffickers

are able to use social media to lure underage victims into their grasp. The reasonableness

standard that is so central to the Fourth Amendment necessitates that we permit the

government to thwart these emerging criminal tactics with novel investigatory tools of its

own. Warrants for social media data are one such tool, as they empower law enforcement

officers to reveal the activities of criminal conspirators, disrupt their illicit plots, and bring

them to justice. But while social media warrants can support invaluable police work, as

they did in this case, they also provide significant potential for abuse. We cannot read the

Fourth Amendment to allow the indiscriminate search of many years of intimate

communications. And because of the inherent interconnectedness of social media,

permitting unbridled rummaging through any one user’s account can reveal an

extraordinary amount of personal information about individuals uninvolved in any criminal

activity.

It is not only courts that are struggling to strike a balance between privacy and

security in the rapidly changing digital domain, but society as a whole. When criminal

offenders use social media to organize their enterprises and evade detection, it would seem

unreasonable to disable law enforcement from using those same media to apprehend and

prosecute them. To hold otherwise would arbitrarily tip the scales away from law and

justice for the benefit of increasingly sophisticated criminal schemes. But at the same time,

there comes a point when the Fourth Amendment must emphatically yell STOP, lest we

render obsolete the hallowed notion of a secure enclave for personal affairs.

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V.

For the foregoing reasons, the judgment of the district court is in all respects

affirmed.

AFFIRMED.

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

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UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

MOISES ORLANDO ZELAYA-VELIZ,)

et al.,

)

)

Defendants.

)

)

Case 1:20-cr-196

Alexandria, Virginia

October 27, 2021

11:24 a.m.

Pages 1 - 39

9

TRANSCRIPT OF MOTIONS

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BEFORE THE HONORABLE ANTHONY J. TRENGA

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UNITED STATES DISTRICT COURT JUDGE

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APPEARANCES :

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FOR THE PLAINTIFF:

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MAUREEN C. CAIN, ESQUIRE

CRISTINA C. STAM, ESQUIRE

OFFICE OF THE UNITED STATES ATTORNEY

2100 Jamieson Avenue

Alexandria, Virginia 22314

(703) 299-3700

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FOR MOISES ORLANDO ZELAYA-VELIZ:

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JOSEPH D. KING, ESQUIRE

KING, CAMPBELL, PORETZ & MITCHELL, PLLC

118 North Alfred Street

Alexandria, Virginia 22314

(703) 683-7070

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COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES

Rhonda

F.

Montgomery

OCR-USDC/EDVA

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JA139

(703)

299-4599

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APPEARANCES CONTINUED :

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FOR JOSE ELIEZAR MOLINA-VELIZ:

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DONALD E. HARRIS, ESQUIRE

HARRIS LAW FIRM, PLLC

2800 Eisenhower Avenue, Suite 220

Alexandria, Virginia 22314

(703) 224-8810

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FOR SANTOS ERNESTO GUTIERREZ CASTRO:

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DWIGHT E. CRAWLEY, ESQUIRE

LAW OFFICE OF DWIGHT CRAWLEY

1300 I Street, N.W., Suite 400

Washington, D.C. 20005

(703) 786-4004

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FOR LUIS ALBERTO GONZALES:

JEFFREY D. ZIMMERMAN, ESQUIRE

JEFFREY D. ZIMMERMAN, PLLC

108 North Alfred Street

Alexandria, Virginia 22314

(703) 548-8911

FOR REINA ELIZABETH HERNANDEZ:

J.E. YANCEY ELLIS, ESQUIRE

CARMICHAEL, ELLIS & BROCK, PLLC

108 North Alfred Street, 1st Floor

Alexandria, Virginia 22314

(703) 684-7908

FOR GILBERTO MORALES:

MICHAEL M. HADEED, JR., ESQUIRE

HADEED LAW GROUP, PC

510 King Street, Suite 400

Alexandria, Virginia 22314

(703) 962-7452

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Rhonda

F.

Montgomery

OCR-USDC/EDVA

41a

JA140

(703)

299-4599

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1

APPEARANCES CONTINUED :

2

FOR SIONI ALEXANDER BONILLA GONZALEZ:

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BRUCE M. COOPER, ESQUIRE

LAW OFFICE OF BRUCE M. COOPER

717 D Street, N.W., Suite 300

Washington, D.C. 20004

(202) 494-7600

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FOR JONATHAN RAFAEL ZELAYA-VELIZ:

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CHRISTOPHER B. AMOLSCH, ESQUIRE

LAW OFFICE OF CHRISTOPHER AMOLSCH

910 King Street

Alexandria, Virginia 22314

(703) 683-2020

FOR CARLOS JOSE TURICIOS VILLATORO:

ELIZABETH L. VAN PELT, ESQUIRE

LIBBEY VAN PELT LAW, PLLC

3033 Wilson Boulevard, Suite 700

Arlington, Virginia 22201

(571) 356-9066

FOR ORLANDO ALEXIS SALMERON FUNEZ:

ELITA C. AMATO, ESQUIRE

LAW OFFICE OF ELITA CETA AMATO

2111 Wilson Boulevard, 8th Floor

Arlington, Virginia 22201

(703) 522-5900

FOR NELSON EZEQUIEL CABALLERO PORTILLO:

LANA M. MANITTA, ESQUIRE

THE LAW OFFICE OF LANA MANITTA, PLLC

140B Purcellville Gateway Drive, #511

Purcellville, Virginia 20132

(703) 705-4428

THE DEFENDANTS, MOISES ORLANDO ZELAYA-VELIZ, JOSE

ELIEZAR MOLINA-VELIZ, SANTOS ERNESTO GUTIERREZ CASTRO,

LUIS ALBERTO GONZALES, REINA ELIZABETH HERNANDEZ,

GILBERTO MORALES, SIONI ALEXANDER BONILLA GONZALEZ,

JONATHAN RAFAEL ZELAYA-VELIZ, CARLOS JOSE TURICIOS

VILLATORO, NELSON EZEQUIEL CABALLERO PORTILLO, AND

ORLANDO ALEXIS SALMERON FUNEZ, IN PERSON

Rhonda

F.

Montgomery

OCR-USDC/EDVA

42a

JA141

(703)

299-4599

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1

The Court at this point concludes that the

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evidence would, in large part, be relevant to all of

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the charges and that there's a relationship between

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these charges and the other charges such that the case

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should proceed.

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The Court has also considered any possible

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prejudice to Defendant Villatoro and finds that there

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simply is not sufficient prejudice that would warrant

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severing him that would require essentially a

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duplication, in large part, of evidence in both cases.

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The Court, therefore, will deny that motion.

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Let me take up Defendant Gonzales' motion to

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suppress Facebook evidence, which is joined in by

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Defendant Villatoro.

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158.

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That would be Docket Nos. 143 and

Yes, Mr. Zimmerman.

Anything further you

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would like to say on this?

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it for the record for the most part.

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MR. ZIMMERMAN:

I understand you're doing

I am, Your Honor.

I was

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present during that extensive motions hearing.

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would adopt all of the arguments made on the record

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regarding the lack of probable cause and the

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overbreadth of all of the search warrants that did not

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meet the particularity requirement.

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faith exception would not apply and want to make a

Rhonda

F.

Montgomery

OCR-USDC/EDVA

43a

JA146

We

We assert the good

(703)

299-4599

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record that we object on that basis to the admission of

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all of the Facebook evidence.

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THE COURT:

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Ms. Van Pelt, anything further you want to

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All right.

Thank you.

say on this?

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MR. ZIMMERMAN:

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THE COURT:

Thank you.

Ms. Van Pelt, anything further

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you want to say on this?

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MS. VAN PELT:

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THE COURT:

No, Your Honor.

The Court has reviewed the motion

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to suppress Facebook evidence based on the motion of

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Defendant Gonzales joined in by Defendant Villatoro.

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For the reasons previously stated by the Court in

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denying the same motions that have been previously

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filed by the other defendants, that motion is denied.

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Let me take up Defendant Gonzales' motion to

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compel disclosure of statements made by codefendants

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which incriminate defendant, Docket No. 144, also

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joined in by Defendant Villatoro.

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MR. ZIMMERMAN:

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THE COURT:

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MR. ZIMMERMAN:

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Your Honor, this of course is a Bruton

Just briefly, Your Honor.

Yes.

You can come to the podium.

Sure, Judge.

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motion.

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codefendants who have made incriminating statements

Rhonda

The government has identified two of the

F.

Montgomery

OCR-USDC/EDVA

44a

JA147

(703)

299-4599

Case 1:20-cr-00196-AJT Document 513 Filed 01/09/23 Page 1 of 73 PageID# 8016

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

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UNITED STATES OF AMERICA,

Plaintiff

v.

MOISES ORLANDO ZELAYA-VELIZ,

SIONI ALEXANDER BONILLA GONZALEZ,

CARLOS JOSE TURICIOS VILLATORO,

JOSE ELIEZAR MOLINA-VELIZ,

SANTOS ERNESTO GUTIERREZ CASTRO,

LUIS ALBERTO GONZALES,

REINA ELIZABETH HERNANDEZ, NELSON

EZEQUIEL CABALLERO PORTILLO,

GILBERTO MORALES, JONATHAN RAFAEL

ZELAYA-VELIZ, ORLANDO ALEXIS

SALMERON FUNEZ,

Defendants

..............................

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Criminal Case

No. 20-CR-00196-AJT

August 27, 2021

11:00 a.m.

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TRANSCRIPT OF MOTIONS HEARING

BEFORE THE HONORABLE ANTHONY J. TRENGA

UNITED STATES DISTRICT JUDGE

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14

APPEARANCES:

15

FOR THE UNITED STATES:

MAUREEN CAIN

SETH SCHLESSINGER

U.S. ATTORNEY'S OFFICE

2100 Jamieson Avenue

Alexandria, VA 22314

703-299-3700

FOR DEFENDANT

MOISES ORLANDO ZELAYA-VELIZ:

JOSEPH DOUGLAS KING

KING CAMPBELL & PORETZ, PLLC

108 N. Alfred Street

Alexandria, VA 22314

703-683-7070

FOR DEFENDANT SIONI ALEXANDER

BONILLA GONZALEZ:

BRUCE MICHAEL COOPER

LAW OFFICE OF BRUCE M. COOPER

717 D Street, NW

Suite 300

Washington, DC 20004

202-628-8494

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(APPEARANCES CONTINUED ON

NEXT PAGE)

Rebecca Stonestreet, RPR, CRR, Official Court Reporter

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FOR DEFENDANT

CARLOS JOSE TURICIOS

VILLATORO:

MICHAEL S. ARIF, ESQ.

ARIF & ASSOCIATES, PC

3900 University Drive

Suite 100

Fairfax, VA 22030

703-323-1200

FOR DEFENDANT

JOSE ELIEZAR MOLINA-VELIZ:

DONALD EDWIN HARRIS, ESQ.

HARRIS LAW FIRM, PLLC

2800 Eisenhower Ave.

Suite 220

Alexandria, VA 22314

703-224-8810

FOR DEFENDANT

ERNESTO GUTIERREZ CASTRO:

DWIGHT EVERETTE CRAWLEY

LAW OFFICE OF DWIGHT CRAWLEY

1300 I Street, NW

Suite 400

Washington, DC 20005

703-786-4004

FOR DEFENDANT

LUIS ALBERTO GONZALES:

JEFFREY DANIEL ZIMMERMAN

JEFFREY ZIMMERMAN PLLC

108 North Alfred Street

Alexandria, VA 22314

703-548-8911

FOR DEFENDANT

ELIZABETH HERNANDEZ:

JOHN EDWARD YANCEY ELLIS

CARMICHAEL ELLIS & BROCK

108 N. Alfred Street

1st Floor

Alexandria, VA 22314

703-684-7908

FOR DEFENDANT NELSON EZEQUIEL

CABALLERO PORTILLO:

LANA MARIE MANITTA

THE LAW OFFICE OF

LANA MANITTA, PLLC

140B Purcellville Gateway Dr.

No. 511

Purcellville, VA 20132

703-705-4428

FOR DEFENDANT

GILBERTO MORALES:

MICHAEL MITRY HADEED, JR.

HADEED LAW GROUP PC

510 King Street

Suite 400

Alexandria, VA 22314

703-962-7452

(APPEARANCES CONTINUED ON

NEXT PAGE)

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FOR DEFENDANT

JONATHAN RAFAEL ZELAYA-VELIZ:

CHRISTOPHER BRYAN AMOLSCH

LAW OFFICE OF

CHRISTOPHER AMOLSCH

12005 Sunrise Valley Drive

Suite 200

Reston, VA 20191

703-969-2214

FOR DEFENDANT

ALEXIS SALMERON FUNEZ:

ELITA C. AMATO

ELITA CETA AMATO

ATTORNEY AT LAW

2111 Wilson Blvd.

8th Floor

Arlington, VA 22201

703-522-5900

OFFICIAL COURT REPORTER:

REBECCA STONESTREET, RPR, CRR

U.S. District Court, 9th Floor

401 Courthouse Square

Alexandria, Virginia 22314

(240) 426-7767

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( Pages 1 - 73)

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COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES

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Rebecca Stonestreet, RPR, CRR, Official Court Reporter

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THE COURT:

Ms. Amato, anything else you would like to

MS. AMATO:

Your Honor, I just wanted to correct.

say?

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I

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thought that the -- so Ms. Cain had mentioned in response that

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there was -- one of the individuals who spoke to -- communicated

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with Minor 2 saying that Mr. Salmeron asked for a video of her.

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But I believe it was -- according to the affidavit, that he had

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asked, supposedly, for a photo of the minor.

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So the fact that some video was taken after that has

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nothing do with the statement that supposedly Salmeron had asked

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for a photo.

I believe it was a photo, not a video.

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THE COURT:

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MR. AMOLSCH:

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THE COURT:

Mr. Hadeed, anything further?

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MR. HADEED:

No, Your Honor.

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THE COURT:

Let me deal first with this group of

All right.

Mr. Amolsch, anything else?

No, Your Honor.

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motions.

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particular the affidavits that were submitted to the magistrate

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judges in connection with each of the warrants, and have

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assessed the issues pertaining to each warrant based on the

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specific information that was applied to each of these

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defendants.

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I reviewed the extensive briefing in this case, and in

In that regard, the motions to suppress Facebook

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records are based on the following warrants:

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on March 14, 2019, with respect to Defendant Sioni Alexander

A warrant issued

Rebecca Stonestreet, RPR, CRR, Official Court Reporter

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Bonilla-Gonzalez, which is docket number 116; a warrant issued

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on June 5, 2019, with respect to the Facebook accounts

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associated with Reina Elizabeth Hernandez and

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Luis Alberto Gonzalez, which is Document Number 116-1; a warrant

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issued on July 12th, 2019, with respect to the Facebook accounts

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associated with Moises Orlando Zelaya-Veliz, which is

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Document Number 116-2; and a warrant issued on February 20,

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2020, with respect to the Facebook accounts associated with

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Defendants Orlando Alexis Salmeron Funez,

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Defendant Nelson Ezequiel Caballero Portillo,

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Defendant Jonathan Rafael Zelaya-Veliz,

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Defendant Jose Eliezar Molina Veliz, and

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Defendant Gilberto Morales, which is Document Number 116-3.

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All of these defendants have challenged their

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respective warrants based on lack of probable cause to have the

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warrants issued, lack of sufficient particularity with respect

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to the contents of the warrant, that the warrants are overbroad

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and are based on stale information, and some of the defendants

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have also alleged a Franks violation in connection with the

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issuance of those warrants.

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Let me take up those issues separately.

With respect

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to a probable cause requirement of the Fourth Amendment, it's

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settled that probable cause is a dynamic fluid concept turning

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on the assessment of probabilities in a particular factual

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context, and requires only that based on a practical common

Rebecca Stonestreet, RPR, CRR, Official Court Reporter

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sense assessment under all the circumstances, as set forth in

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the affidavits presented, there is a fair probability that

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contraband or evidence of a crime would be found in a particular

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place.

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And in that regard, a reviewing court does not review a

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magistrate judge's decision de novo, but rather must determine

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whether the magistrate judge had a substantial basis for

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concluding that the search would uncover evidence of wrongdoing,

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and the magistrate judge's determination of probable cause is to

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be given great deference by a reviewing court.

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The core issue here with respect to probable cause is

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whether the affidavits presented to the magistrate judges

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presented a sufficient nexus between the criminal conduct

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evidence in the affidavits, on the one hand, and the items to be

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seized and the place to be searched, name

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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