# Opposition Brief — Yusuf v. United States (No. 06-892)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

Supreme Court, LS.
Pre FILED

? | MAR 05 2007 |
—— k
No. 06-892 L_OFFICE OF THE CLERK |

In the Supreme Court of the Gnited States

FATHI YUSUF MOHAMMED YUSUF, AKA FATHI YUSUF,
ET AL., PETITIO) £RS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
EILEEN J. OCONNOR
Assistant Attorney General
ALAN HECHTKOPF
S. ROBERT LYONS
Attorneys
Department of Justice
Washington, D.C. 20520-0001
(202) 314-2216

QUESTION PRESENTED

Whether the warrants authorizing a search for
evidence of a complex money laundering scheme, tax
violations, and mail and wire fraud described peti-
tioners’ business records with sufficient particularity.

(1)

TABLE OF CONTENTS

Page
Oe DRO oa vcs x nn hen fecweusvedtoniscosesnsisee 1
SO iso ds kas tdck a eee ere nee 1
I os 6-0 ic Cvcdionen waedsdeccdisensketase teen 1
RUE, 6c 5 ci ceiindacisee dusky snakerentetserskrhetes 9
CRO svi icdoddendaddntnidanedentbasceiioneneurs 22
peer rrr eee PR re TE nna la
TABLE OF AUTHORITIES
Cases:
Andresen v. Maryland, 427 U.S. 4638
GEE cave cars banene tear niees 9,10, 11, 12, 15, 17
Circuit City Stores, Inc. v. Adams, 532 U.S. 105
CA aks vide cs caedadaneensneeiaadseeabeetonea 13
Franks v. Delaware, 438 U.S. 154 (1978) ............... 6
Groh v. Ramirez, 540 U.S. 551 (2004) .............-- 7, 16
Illinois v. Gates, 462 U.S. 213 (1983) ............... 13, 18

Lafayette Acad., Inc., In re, 610 F.2d 1 (ist Cir. 1979) ... 20
Marvin v. United States, 732 F.2d 669 (8th Cir. 1984) ... 14

Rickert v. Sweeney, 813 F.2d 907 (8th Cir. 1987) ..... 19, 20
United States v. Ables, 167 F.3d 1021 (6th Cir.), cert.
Gene: GF Ui. ST Lae voc aoa dees cn caseusi 12

United States v. Abrams, 615 F.2d 541 (1st Cir. 1980) ... 20

United States v. American Investors of Pitt., Inc.,
879 F.2d 1087 (3d Cir.), cert. denied, 493 U.S. 955

(1900) emt 456 UBS. BEE CAD < 6 ee delcecnecdwenewss~ Pe
United States v. Brien, 617 F.2d 299 (1st Cir.), cert.
Goubad., 465 Ute Bie Ce” ik wavs 6 4a 0 bos oes babes 14

IV

Cases—Continued: Page

United States v. Cardwell, 680 F.2d 75 (9th Cir.
DE Sou babussvcueeens bide tread ives (kas 19, 20

United States v. Ervasti, 201 F.3d 1029 (8th Cir. 2000) .. 18
United States v. Gendron, 18 F.3d 955 (1st Cir.), cert.

Gombe, GES U5. TOG) CIGOG) os von vcesewetesecsess 13
United States v. Kepner, 843 F.2d 755 (3d Cir. 1988) ..... 8
United States v. Lamport, 787 F.2d 474 (10th Cir.),

cert. denied, 479 U.S. 846 (1986) .............-20008- 18
United States v. Logan, 250 F.3d 350 (6th Cir.), cert.

denied, 534 U.S. 895 and 534 U.S. 997 (2001) ........ 14

United States v. Martinelli, 454 F.3d 1300 (11th Cir.
2006), petition for cert. pending, No. 06-1098 (filed
Ps NEE aor iekdiesUVeen peeventcsciaheoncheeus 14

United Siates v. Moser, 123 F.3d 813 (6th Cir. 1997),
cert. denied, 522 U.S. 1020 and 1035 (1997) and

ae EE ME of bo CEG uG RE ay dowd eee eeekas 16, 18
United States v. $92,422.57, 307 F.3d 137 (3d Cir.

i ho oe Sy we aes wa reaches Cache ec ena 13
United States v. Pindell, 336 F.3d 1049 (D.C Cir.

2003), cert. denied, 540 U.S. 1200 (2004) ............ 12
United States v. Riley, 906 F.2d 841 (2d Cir. 1990)...... 12
United States v. Rude, 88 F.3d 1538 (9th Cir. 1996),

cert. denied, 519 US. 1058 (1997) ... 2... cece cece’ 19
United States v. Sawyer, 799 F.2d 1494 (11th Cir.

1986), cert. denied, 479 U.S. 1069 (1987) ............ 18
United States v. Sells, 463 F.3d 1148 (10th Cir. 2006),

cert. denied, No. 06-8487 (Feb. 20, 2007) ............ 13

United States v. Smith, 424 F.3d 992 (9th Cir. 2005),
cert. denied, 126 S. Ct. 1477 and 1770 (2006) ......... 14

Cases— Continued: Page

United States v. Spilotro, 800 F.2d 959 (9th Cir.

BE rhe Sas eg eWEEK ELVES ETRE OR 20, 21
United States v. Travers, 233 F.3d 1327 (11th Cir.

2000), cert. denied, 534 U.S. 830 (2001) ............. 14
United States v. Ventresca, 380 U.S. 102 (1965) ..... 13, 18
United States v. Wuagneux, 683 F.2d 1343 (11th Cir.

1982), cert. denied, 464 U.S. 814 (1983) ............. 13
United States v. Young, 745 F.2d 733 (2d Cir. 1984),

cert. denied, 470 U.S. 1084 (1985) ...............05. 12
VonderAhe v. Howland, 508 F.2d 364 (9th Cir. 1975) .... 20
Voss v. Bersgaard, 774 F.2d 402 (10th Cir. 1985) ....... 19

Washington State Dep't of Soc. & Health Servs. v.
Guardianship Estate of Keffeler, 537 U.S. 371
BRERA te pare e Bae rnd rrr mre Ty ee ee 13

Constitution and statutes:

U.S. Const.:

PE ois cole vee nce cae cu ob ewes aeee here 20

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Be NE as 65 bd hake aCe aaa Ks eee Rees 20
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Bee eh, SED 6 5 60 3 be ce eee eka et een aeEe A 17
ns ek ee Ed a ele a tak 17

18 U.S.C. 3731 (2000 & Supp. IV 2004) ................. 2

In the Supreme Court of the Anited States

No. 06-892

FATHI YUSUF MOHAMMED YUSUF, AKA FATHI YUSUF,
ET AL., PETITIONERS

Vv.
UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-46)
is reported at 461 F.3d 374. The memorandum opinion
of the district court for the District of the Virgin Islands
(Pet. App. 47-78) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on
August 24, 2006. A petition for rehearing was denied on
October 5, 2006 (Pet. App. 79-80). The petition for a writ
of certiorari was filed on December 28, 2006. The juris-
diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners, a corporation based in the U.S. Virgin
Islands and several of its owners and operators, were

(1)

2

charged in a 78-count indictment with money launder-
ing, currency structuring, various tax violations, mail
fraud, obstruction of justice, and conspiracy. Pet. App.
3. The district court granted a motion to suppress evi-
dence based on a facial challenge to several search war-
rants. Id. at 47-78. On interlocutory appeal under 18
U.S.C. 3731 (2000 & Supp. IV 2004), the court of appeals
reversed and remanded the case for further proceed-
ings. Pet. App. 1-46.

1. Ina series of seven transactions from April 16-19,
2001, United Corporation, a family-owned chain of su-
permarkets in the U.S. Virgin Islands, deposited
$1,940,000 into its account with the Bank of Nova Scotia,
entirely in denominations of $50 or $100. The bank
found the activity suspicious and forwarded a report to
the St. Thomas office of the FBI on July 20, 2001. Fed-
eral investigators immediately launched an investiga-
tion. Pet. App. 5.

On October 19, 2001, the FBI sought search warrants
for three supermarkets, three residences, three individ-
uals, and two safe deposit boxes in the Virgin Islands.
Pet. App. 6-7 n.2. The warrant application included a
sworn affidavit, signed by an FBI agent, describing the
government’s investigation in detail. Some information
in the affidavit had been supplied by the Virgin Islands
Bureau of Internal Revenue (VIBIR). /d. at 3.

The warrant application also contained two exhibits
describing the items to be searched for and seized.
Each warrant, in the space provided to describe the
“property,” contained the words: “See Exhibit ‘B’
marked ‘Evidence’ attached.” See C.A. App. 380. Ex-
hibit B, which was attached to each of the warrants and
was not sealed, Pet. App. 39, contained the following
description:

3

Any and all records, whether typed or handwritten,
or stored on paper, magnetic or electronic medium
(including information stored on computer systems)
of money laundering and illegal business activities,
including Money Laundering and Conspiracy to
Commit Money Laundering, Failure to Report Ex-
porting of Monetary Instruments, Mail Fraud, Wire
Fraud, Alien Smuggling, Food Stamp Fraud, and
Conspiracy to commit the same from 1990 to the
present

pertaining to United Corporation d/b/a Plaza Ex-
tra, Plessen Enterprises, Inc., Hamdan Diamond
Corp., Sixteen Plus Corp. and any affiliated compa-
nies, as well as their principals, officers, managers,
and employees, including but not limited to Fathi
Yusuf, Maher Yusuf, Waleed “Wally” Hamed, and
Waheed “Willy” Hamed; including

1. Audit reports and financial statements of the
above-listed companies and persons;

2. All financial records, including monthly state-
ments, cancelled checks, deposit slips, certificates
of deposit, of any and all banks and financial insti-
tutions where the above-listed companies and
persons have accounts;

3. Any and all securities held or owned by the
above-listed companies and persons and related
records;

4. Any and ali financial instruments, promissory
notes, and letters of credit held or owned by the
above-listed companies and persons and related
records;

4

5. Documents, including corporate documents,
identifying the names, addresses, dates of birth,
telephone numbers, and social security numbers
of all employees, officers, directors, and associ-
ates of the above-listed corporations and compa-
nies;

6. Any and all contracts, agreements, and corre-
spondence;

7. Original contracts, promissory notes, subscrip-
tion forms, purchases’s [sic] receipts, compliance
verification forms, W-9 forms, and correspon-
dences executed or exchanged between United
Corporation d/b/a Plaza Extra and all of its cus-
tomers and associated companies;

8. Copies of all Internal Revenue Service and VI
Bureau of Internal Revenue tax returns or other
reporting forms and supporting schedules and
documentation;

9. Telephone records, Rolodex records, telephone
answering machine tapes;

10. Video tapes, disks or records;

11. Photos, whether recorded on paper, tape, or
disk;

12. Documents and records pertaining to commu-
nication by facsimile (fax) transmissions;

13. Any other records of money laundering and
illegal activities, including but not limited to:

5

books, records, receipts, accounts, notes, logs,
ledgers, journals, worksheets, invoices, pass
books, money drafts, money orders, bank drafts,
cashier checks, bank checks, safety deposit box
keys, and money wrappers, airline tickets, and
addresses and telephone numbers in books or on
paper or stored in electronic form by computer
systems, or word processing equipment.

App., infra, la-38a. Exhibit B also defined the terms
“records,” “information,” and “{cJomputer systems,” and
called for the seizure of large quantities of cash or valu-
ables “collected in a manner designed to facilitate conve-
nient transport.” Jd. at 3a-4a.

On October 19, 2001, a magistrate judge of the
United States District Court for the District of the Vir-
gin Islands issued the warrants. C.A. App. 380. On Oc-
tober 23, 2001, federal agents executed the warrants at
each of the locations described. Based on the evidence
they discovered, a grand jury returned a 78-count indict-
ment charging United Corporation and its owners and
operators with various criminal offenses, including
money laundering, currency structuring, tax violations,
mail fraud, obstruction of justice, and conspiracy. Pet.
App. 3, 12.

2. Some of the information contained in two para-
graphs of the affidavit supporting the search warrant
turned out to be inaccurate. The information, which had
originated in documents provided to the FBI by VIBIR,
overstated the amount of the discrepancy between the
gross receipts reported on United Corporation’s Virgin
Islands tax filings and the gross receipts reported on its
IRS tax filings for 1998, 1999, and 2000. Petitioners
moved to suppress the evidence recovered during the

6

searches, arguing that the warrant was defective be-
cause of the false statements. Pet. App. 16-17.

Following a hearing pursuant to Franks v. Delaware,
438 U.S. 154 (1978), the district court found that certain
statements in the affidavit were made with reckless dis-
regard for the truth. The court therefore excised those
statements and held that the reconstituted affidavit
failed to establish probable cause. Accordingly, the dis-
trict court suppressed all of the evidence seized during
the execution of the search warrants. Pet. App. 3. That
ruling “effectively dismiss[ed] the Government’s case.”
Ibid.

3. The court of appeals reversed. Pet. App. 1-46. It
determined that the FBI agent did not act recklessly in
reporting the tax information provided by VIBIR be-
cause the agent did not have an “obvious reason to doubt
the truth” of the documents provided. /d. at 4. To the
contrary, the court of appeals concluded, the federal
investigators acted with reasonable diligence in verify-
ing the information, and their belief that United had
underreported its gross receipts returns was “eminently
plausible * * * at that point in the investigation.” /d.
at 23-24.

Moreover, the court of appeals held, even if the two
challenged paragraphs of the affidavit were excised, the
reconstituted affidavit “clearly establishes probable
cause.” Pet. App. 25. The affidavit described a series of
bank deposits “made solely in $50 and $100 denomina-
tions,” and the court of appeals found it “utterly incom-
prehensible that a retail supermarket chain receives and
deposits cash only in such large denominations.” /d. at
32. It found the district court’s decision to invalidate the
entire warrant for lack of probable cause “disconcert-
ing.” /d. at 25.

7

The court of appeals also considered, and rejected,
petitioners’ alternative argument that blanket suppres-
sion was required because the warrants were unconsti-
tutional “general warrants” that violated the Fourth
Amendment.’ Pet. App. 36-38. Specifically, the court of
appeals considered three claims: (1) that the warrants
failed to describe the property to be searched and seized
with particularity because they did not incorporate the
affidavit, citing Groh v. Ramirez, 540 U.S. 551 (2004),
Pet. App: 36, 38; (2) that the warrants referred to the
crimes committed by name, rather than “by reference to
the statutory elements in the United States Code,” id. at
36; and (3) that the catch-all provision in paragraph 13
of Exhibit B, which allowed the agents to search for re-
cords of “money laundering and illegal activities,” App.,
infra, 2a, gave agents unfettered discretion to conduct
a general search. Pet. App. 36.

First, the court of appeals rejected petitioners’ reli-
ance on Groh. In that case, the warrant failed to incor-
porate the portion of the affidavit describing the items
to be seized, and as a result the warrant “failed to iden-
tify any of the items that [the agent] intended to seize.”
Pet. App. 39 (quoting Groh, 540 U.S. at 554 (emphasis
and alteration in the decision of the court of appeals)).
Here, by contrast, the warrants expressly incorporated
the attached Exhibit B, which described at length the
items to be seized. /bid. Thus, the court of appeals

' Because it found no constitutional defect in the warrants, the court
of appeals did not need to consider the government’s alternative argu-
ments that some of the evidence was admissible under the inevitable
discovery doctrine, and that petitioners lacked a legitimate expectation
of privacy in certain areas of the grocery stores that were searched.
See Gov't C.A. Br. 50, 53; Govt. C.A. Reply Br. 22, 25.

8

held, “the problem which existed in Groh is simply not
implicated in this case.” Ibid.

Second, the court of appeals held that the warrants
described the property to be searched and seized with
sufficient particularity, notwithstanding their references
to several federal crimes by name, rather than by refer-
ence to relevant provisions of the criminal code. Citing
its decisions in United States v. American Investors of
Pittsburgh, Inc., 879 F.2d 1087 (3d Cir.), cert. denied,
493 U.S. 955 (1989) and 493 U.S. 1021 (1990), and United
States v. Kepner, 843 F.2d 755 (3d Cir. 1988), the court
noted that “the breadth of items to be searched depends
upon the particular factual context of each case and also
the information available to the investigating agent that
could limit the search at the time the warrant applica-
tion is given to the magistrate.” Pet. App. 40-42. In this
case, the court noted, Exhibit B contained several ex-
press limitations, restricting agents to evidence of enu-
merated federal crimes, narrowing the scope of the
search to evidence from 1990 to the date of the search in
2001, and limiting the search to records “pertaining to”
specific corporations and individuals. /d. at 42. Al-
though the warrants authorized a broad search, the
court of appeals emphasized that “the government was
conducting an investigation into money laundering and
other complex white collar crimes,” and that investiga-
tors must have “more flexibility regarding the items to
be searched when the criminal activity deals with com-
plex financial transactions.” /d. at 43. Indeed, the court
found, “it is difficult to conclude how the Government
could have more narrowly tailored the warrant in this
money laundering investigation.” /bid.

Third, the court of appeals found no constitutional
defect in the catch-all provision in paragraph 13 of Ex-

9

hibit B, which authorized the seizure of records of
“money laundering and illegal activities.” Pet. App. 44.
Relying on this Court’s decision in Andresen v. Mary-
land, 427 U.S. 463, 479-482 (1976), the court of appeals
construed the phrase “illegal activities” to refer to the
list of “illegal business activities” set forth in the open-
ing paragraph of Exhibit B, and not to all illegal activi-
ties of any kind. Pet. App. 44. The court therefore
found it “clear” that “paragraph 13 does not transform
the warrants into general warrants.” Jd. at 45.

ARGUMENT

Petitioners contend (Pet. 9-11) that the search war-
rants in this case permitted unconstitutional general
searches. They construe the warrants as permitting the
seizure of all records of “illegal activities,” and argue .
that the manner in which the warrants referred to spe-
cific criminal offenses rendered them impermissibly
overbroad. The court of appeals correctly rejected both
arguments based on a careful reading of Exhibit B and
a determination that, under the circumstances, no more
particularized description of the items to be seized was
possible. Pet. App. 36-45. Its factbound conclusion does
not conflict with the decisions of this Court or other
courts of appeals. Further review is unwarranted.

1. Petitioners’ principal argument (Pet. 13-14) is that
paragraph 13 of Exhibit B authorized a general search
for evidence of “illegal activities.” This Court rejected
a Virtually identical claim in Andresen v. Maryland, 427
U.S. 463 (1976).

The Fourth Amendment provides that “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.”

10

U.S. Const. Amend. IV. In Andresen, 427 U.S. at 465,
police had probable cause to believe that an attorney
had defrauded the purchaser of a particular lot in a sub-
division of Montgomery County, Maryland. Police ob-
tained several warrants authorizing the search of the
attorney’s office and the seizure of specific documents
relevant to that transaction “together with other fruits,
instrumentalities and evidence of crime at this [time]
unknown.” /d. at 480-481 n.10 (internal quotation marks
omitted).” The attorney challenged the warrants based
on the Fourth Amendment’s particularity requirement,

* The description of the items to be searched for and seized stated in
full:

[T]he following items pertaining to sale, purchase, settlement and

conveyance of lot 13, block T, Potomac Woods subdivision, Montgom-

ery County, Maryland:

title notes, title abstracts, title rundowns; contracts of sale and/or
assignments from Raffaele Antonelli and Rocco Caniglia to Mount
Vernon Development Corporation and/or others; lien payoff corre-
spondence and lien pay-off memoranda to and from lienholders and
noteholders; correspondence and memoranda to and from trustees
of deeds of trust; lenders instructions for a construction loan or
construction and permanent loan; disbursement sheets and dis-
bursement memoranda; checks, check stubs and ledger sheets
indicating disbursement upon settlement; correspondence and
memoranda concerning disbursements upon settlement; settlement
state ments and settlement memoranda; fully or partially prepared
deed of trust releases, whether or not executed and whether or not
recorded; books, records, documents, papers, memoranda and
correspondence, showing or tending to show a fraudulent intent,
and/or knowledge as elements of the crime of false pretenses, in
violation of Article 27, Section 140, of the Annotated Code of Mary-
land, 1957 Edition, as amended and revised, together with other
fruits, instrumentalities and evidence of crime at this [time] un-
known.

Andresen, 427 U.S. at 480-481 n.10 (internal quotation marks omitted).

11

calling the terms of the warrants “so broad as to make
them impermissible ‘general’ warrants.” /d. at 478.

This Court disagreed, noting that “the warrants for
the most part were models of particularity” and reject-
ing the argument “that they were rendered fatally ‘gen-
eral’ by the addition, in each warrant, to the exhaustive
list of particularly described documents, of the phrase
‘together with other fruits, instrumentalities and evi-
dence of crime at this [time] unknown.’” Andresen, 427
U.S. at 479. That phrase, the Court emphasized, did not
form part of “a separate sentence” but instead “ap-
pear[ed] in each warrant at the end of a sentence con-
taining a lengthy list of specified and particular items to
be seized.” Jd. at 480. Because each of the items in that
list “follow[ed| the colon after the word ‘Maryland,’”
each “clause|| in the series [was] limited by what pre-
cedes that colon, namely, ‘items pertaining to . . . lot
13, block T.’” Jd. at 481. The Court therefore found it
“clear from the context that the term ‘crime’ in the war-
rants refers only to the crime of false pretenses with
respect to the sale of Lot 13T.” Jd. at 480-481.

The Court recognized the dangers “inherent in exe-
cuting a warrant authorizing a search and seizure of a
person’s papers.” -Andresen, 427 U.S. at 482 n.11. In
such a search, the Court observed, “it is certain that
some innocuous documents will be examined, at least
cursorily, in order to determine whether they are, in
fact, among those papers authorized to be seized.” /bid.
Nonetheless, the Court found no constitutionai defect in
the warrant language. Because the police were investi-
gating a “complex real estate scheme whose existence
could be proved only by piecing together many bits of
evidence,” the warrant had to sweep broadly to reach
each piece of the “jigsaw puzzle.” /d. at 481 n.10. The

12

Court admonished that “[t]he complexity of an illegal
scheme may not be used as a shield to avoid detection.”
Ibid.

Based on Andresen, courts of appeals routinely inter-
pret the “catch-all phrase” in a warrant “in light of the
items that precede it.” United States v. Pindell, 336
F.3d 1049, 1053 (D.C. Cir. 2003), cert. denied, 540 U.S.
1200 (2004). See United States v. Riley, 906 F.2d 841,
844 (2d Cir. 1990) (“In upholding broadly worded cate-
gories of items available for seizure, we have noted that
the language of a warrant is to be construed in light of
an illustrative list of seizable items.”).? That interpre-
tive approach follows from the “established interpretive
canon|s|” noscitur a sociis and ejusdem generis,
Pindell, 336 F.3d at 1053, which counsel that “[w]here

* See, eg., Pindell, 336 F.3d at 1058 (rejecting a particularity
challenge to warrants that authorized the seizure of “any other evidence
of a violation of Title 18 U.S.C. § 242” because that language appeared
“in the same sentence as, and at the conclusion of, a quite specific list of
items to be seized,” making it “reasonably clear that the warrants did
not authorize the seizure of evidence of just any violation of § 242”);
United States v. Ables, 167 F.3d 1021, 1033-1034 (6th Cir.) (construing
search warrants as describing the items to be seized with particularity,
notwithstanding a phrase authorizing the seizure of “other items
evidencing” certain financial transactions, because the warrants con-
tained an “illustrative list of items” that “supplied sufficient examples
of the items that the IRS was authorized to seize—bank statements,
money drafts, letters of credit, money orders, cashier’s checks, pass
books, bank checks, automatic teller machine receipts, Western Union
receipts, etc.” to prevent “general exploratory rummaging” by the
police), cert. denied, 527 U.S. 1027 (1999); United States v. Young, 745
F.2d 733, 758-759 (2d Cir. 1984) (finding no constitutional defect in a
warrant containing “boilerplate language” that authorized the seizure
of “other evidence” of a drug conspiracy because that language “fol-
lowed a list of more specific items to be seized, and could be construed
only in conjunction with that list”), cert. denied, 470 U.S. 1084 (1985).

13

general words follow specific words * * * the general
words are construed to embrace only objects similar in
nature to those objects enumerated by the preceding
specific words,” Washington State Dep't of Soc. &
Health Servs. v. Guardianship Estate of Keffeler, 537
U.S. 371, 384 (2003) (quoting Circuit City Stores, Ince. v.
Adams, 532 U.S. 105, 114-115 (2001)). It also accords
with the general rule that courts should interpret war-
rants and supporting affidavits in a “commonsense,”
rather than “hypertechnical,” manner. /llinois v. Gates,
462 U.S. 213, 236 (1983) (citation omitted); United States
v. Sells, 463 F.3d 1148, 1156 (10th Cir. 2006), cert. de-
nied, No. 06-8487 (Feb. 20, 2007); United States v.
Gendron, 18 F.3d 955, 966 (1st Cir.) (Breyer, C.J.), cert.
denied, 513 U.S. 1051 (1994). See United States v.
Ventresca, 380 U.S. 102, 108 (1965) (“Technical require-
ments * * * have no proper place in this area.”).
Courts of appeals also “universally recognize[ |” that
the Fourth Amendment’s particularity requirement
“must be applied with a practical margin of flexibility,
depending on the type of property to be seized, and
that a description of property will be acceptable if it is
as specific as the circumstances and nature of activity
under investigation permit.” United States v. Wuag-
neux, 683 F.2d 1343, 1349 (11th Cir. 1982) (collecting
cases), cert. denied, 464 U.S. 814 (1983). Accordingly,
when interpreting search warrants in cases “involving
complex financial transactions and widespread allega-
tions of various types of fraud,” courts recognize that an
extensive search of business records may be necessary.
Ibid.* Several courts of appeals have upheld warrants

* See,e.g., United States v. $92,422.57, 307 F.3d 137, 149-150 (3d Cir.
2002) (Alito, J.) (finding that a warrant authorizing the seizure of “|rle-

14

calling for the seizure of all business records of an enter-
prise based on probable cause to believe that the enter-
prise was engaged in a “pervasive scheme to defraud.”
United States v. Martinelli, 454 F.3d 1300, 1307 (11th
Cir. 2006) (citation omitted), petition for cert. pending,
No. 06-1098 (filed Feb. 5, 2007); United States v. Smith,
424 F.3d 992, 1004-1006 (9th Cir. 2005), cert. denied, 126
S. Ct. 1477 and 1770 (2006); Marvin v. United States,
732 F.2d 669, 674 (8th Cir. 1984); United States v. Brien,
617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 919
(1980).

In this case, paragraph 13 of Exhibit B authorized a
search for “|a|ny other records of money laundering and
illegal activities.” App., infra, 2a. Contrary to petition-
ers’ claim that paragraph 13 granted the FBI unlimited
discretion to search for evidence of illegal activities, that
clause must be construed in light of the preceding list of
records and other limitations on the scope of the search.
Pet. App. 44-45. Like the clause challenged in Andre-
sen, paragraph 13 is a “catch-all” that appears at the

ceipts, invoices, lists of business associates, delivery schedules, ledgers,
financial statements, cash receipts, disbursement, and sales jour-
nals,and correspondence” was “indubitably broad, but * * * not
‘reneral’” in light of the purpose of the investigation and the suspected
underlying criminal activity); United States v. Logan, 250 F.3d 350, 365
(6th Cir.) (noting that “{a] description contained in a warrant is
sufficiently particular if it is as specific as the circumstances and the
nature of the alleged crime permit,” and upholding warrant language
based on the complexity and nature of the suspected fraud), cert.
denied, 534 U.S. 895 and 997 (2001); United States v. Travers, 233 F.3d
1327, 1330 (11th Cir. 2000) (recognizing, in a case where the charges
included “mail fraud, bankruptcy fraud, equity skimming, and money
laundering,” that “cases involving ‘complex financial fraud . . . justify
a more flexible reading of the fourth amendment particularity require-
ment’”) (citation omitted), cert. denied, 534 U.S. 830 (2001).

15

end of a long sentence listing specific records subject to
search and seizure. 427 U.S. at 479. Indeed, because it
extends only to “other records of money laundering and
illegal activities,” App., infra, 2a (emphasis added),
paragraph 13 cannot be understood except by reference
to the kind of records of money laundering and illegal
activities described earlier in Exhibit B. Similarly, the
phrase “money laundering and illegal activities” in para-
graph 13 plainly echoes the introductory description of
the crimes for which the FBI had probable cause:
“money laundering and illegal business activities, in-
cluding Money Laundering and Conspiracy to Commit
Money Laundering, Failure to Report Exporting of
Monetary Instruments, Mail Fraud, Wire Fraud, Alien
Smuggling, Food Stamp Fraud, and Conspiracy to com-
mit the same.” /d. at la (emphasis added). Read “with{]
reference to the rest of the long sentence at the end of
which it appears,” Andresen, 427 U.S. at 479, paragraph
13 operates merely to include additional types of busi-
ness records not described in paragraphs 1-12 but re-
lated to the same alleged criminal activities.

Under the circumstances, the warrants could not
have contained a more particularized description of the
items to be seized. The court of appeals held, and peti-
tioners no longer challenge, that the FBI had probable
cause to believe that United Corporation and its princi-
pals had engaged in money laundering, mail and wire
fraud, and reporting violations. Pet. App. 32-36. The
affidavit accompanying the warrants also described the
FBI’s suspicions of alien smuggling and food stamp
fraud. Jd. at 61-64. Because the investigation involved
a “massive white collar scheme” and allegations of per-
vasive fraud, 7d. at 43, the search warrants reasonably
called for an extensive search of business records per-

16

taining to United Corporation and its affiliates and prin-
cipals. Based on an assessment of the affidavit and
search warrants, the court of appeals found it “difficult
to conclude how the Government could have more nar-
rowly tailored the warrant in this money laundering in-
vestigation.” /bid. That factbound determination, like
the court’s resolution of the dispute over the proper con-
struction of Exhibit B, does not warrant further review
by this Court.’

2. Petitioners also argue (Pet. 16-18) that the refer-
ences to criminal offenses in Exhibit B violated the
Fourth Amendment’s particularity requirement in two
ways. First, they note (Pet. 16) that money laundering,
mail fraud, and wire fraud are “generic offenses deriva-
tive of other * * * criminal conduct.” Second, they
object (Pet. 17) that Exhibit B refers to criminal of-

» Petitioners’ reliance (Pet. 11-13) on Groh v. Ramirez, 540 U.S. 551
(2004), is misplaced. Groh held that a warrant application that “ade-
quately describe[s] the ‘things to be seized’” cannot “save the warrant
from its facial invalidity,” but expressly held open the possibility that
“a court may construe a warrant with reference to a supporting applica-
tion or affidavit if the warrant uses appropriate words of incorporation,
and if the supporting document accompanies the warrant.” Jd. at 557-
558. In this case, the government makes no claim that the affidavit
itself operates to constrain the scope of the search. Instead, the gov-
ernment relies on the language of Exhibit B, which was expressly incor-
porated into and attached to each warrant. See C.A. App. 380 (“Exhibit
‘B’ marked ‘Evidence’ attached.”); United States v. Moser, 123 F.3d
813, 823 n.7 (6th Cir. 1997) (finding attachment of the affidavit irrele-
vant because “exhibit B (not the affidavit) was the document that
limited the agents’ discretion by describing with sufficient particularity
the types of items to be seized, and exhibit B was attached to (and
expressly referenced by) the search warrant”), cert. denied, 522 U.S.
1020 and 1035 (1997) and 522 U.S. 1092 (1998). Thus, as the court of
appeals recognized, “the problem which existed in Groh is simply not
implicated in this case.” Pet. App. 39.

17

fenses by name, rather than describing their elements
or citing particular section numbers within the United
States Code. Because no court of appeals has accepted
those arguments, further review by this Court is unwar-
ranted.

As the court of appeals emphasized, the warrants in
this case constrained the scope of the search in three
ways: (1) “they specified that agents were searching for
evidence of several specifically enumerated federal
crimes”; (2) they restricted investigators “to evidence
from 1990 to the date of the search in October 2001”;
and (3) they restricted the search to records “pertaining
to” United Corporation and its affiliated companies,
principals, and employees. Pet. App. 42. Because those
restrictions appear before the semicolon that introduces
the numbered paragraphs, the records described in each
“clause[] in the series” must satisfy those offense, time,
and subject-matter requirements. See Andresen, 427
U.S. at 481. Under the circumstances, the warrants de-
scribe the items to be seized with reasonable particular-
ity. Pet. App. 42-43.

Petitioners note that three of the criminal offenses
named in Exhibit B, mail fraud (see 18 U.S.C. 1341),
wire fraud (see 18-U.S.C. 1343), and money laundering
(see 18 U.S.C. 1956 and 1957), depend on other underly-
ing criminal concuct: “specified unlawful activity” in the
case of money laundering, 18 U.S.C. 1956(a)(1), or a
“scheme or artifice to defraud” in the case of mail or
wire fraud, 18 U.S.C. 1341, 13843. They argue that nam-
ing those offenses, which are derivative of other of-
fenses, violates the Fourth Amendment’s particularity
requirement by sweeping in a wide range of other crimi-
nal conduct.

18

No court of appeals has embraced such a rule, and
several have rejected it, at least implicitly. The inclu-
sion of money laundering, mail fraud, and wire fraud in
the list can be reasonably construed to refer only to the
unique elements of those offenses, as distinct from the
underlying specified unlawful activity or scheme to de-
fraud. See Gates, 462 U.S. at 236 (1983) (adopting a
“commonsense” rather than “hypertechnical” construc-
tion of the affidavit accompanying a warrant) (quoting
Ventresca, 380 U.S. at 109). Under the circumstances of
this case, no more particularized description of the sus-
pected criminal offenses was possible. The structured
deposits, detected by petitioners’ bank and reported to

® See United States v. Ervasti, 201 F.3d 1029, 1039 & n.7 (8th Cir.
2000) (finding no constitutional defect in a warrant that authorized the
seizure of a host of business records “all of which are evidence of vio-
lations of Title 18, [U.S.C.], Sections 1341 and 1343 [mail and wire
fraud], and Title 26, | U.S.C. ], Section 7212(a) [interference with admini-
stration of tax laws], for the period of 1991 to present”); Moser, 123
F.3d at 823 (finding no violation of the particularity requirement where
the warrant authorized the seizure of “property designated and in-
tended for use and which is and has been used as a means of committing
an offense concerning a violation of Title 18, United States Code, Sec-
tion 1341,” which criminalizes mail fraud); United States v. Sawyer, 799
F.2d 1494, 1508-1509 & n.15 (11th Cir. 1986) (finding no violation of the
particularity requirement where the warrant authorized the search and
seizure of a wide range of documents and records “which are evidence
and fruits of, and the means of commission of violations of Title 18, U.S.
Code, Sections 1341, 1343, 371 and violations of the Commodity Ex-
change Act, Title 7, U.S. Code, Section 6(b) 60(1)”), cert. denied, 479
U.S. 1069 (1987); United States v. Lamport, 787 F.2d 474, 476 (10th
Cir.) (upholding a warrant that called for a search of various specific
items along with “any other property that constitutes evidence of the
commission of the criminal offense, Title 18, United States Code, Sec-
tion 1341 (Mail Fraud),” based on the circumstances of the investiga-
tion), cert. denied, 479 U.S. 846 (1986).

19

the FBI, strongly suggested an effort to transfer almost
$2 million in a manner that would avoid detection.
Based on those deposits and other evidence obtained by
the FBI before applying for the warrants, investigators
had probable cause to believe that petitioners had en-
gaged in money laundering or mail or wire fraud, but
could not be certain as to the original source of the
funds. Pet. App. 32-35.

Petitioners also fault the affidavit for referring to
each criminal offense “by its generic name” rather than
describing its elements or specifying a “location within
the United States Code.” Pet. 17; see Pet. 6. Again, no
court has embraced that argument, and at least one
court of appeals has rejeeted it. See United States v.
Rude, 88 F.3d 1538, 1551 (9th Cir. 1996) (finding no con-
stitutional defect in a warrant that authorized the sei-
zure of a host of business records and other items
“traceable to fraud and money laundering,” and specifi-
cally rejecting the argument that the warrant “failed to
state with particularity any guidelines for the agents to
determine objectively whether a document to be seized
related to wire fraud or money laundering”), cert. de-
nied, 519 U.S. 1058 (1997).

The cases on which petitioners rely (Pet. 17-18)
are readily distinguishable. Three decisions, Rickert
v. Sweeney, 813 F.2d 907, 909 (8th Cir. 1987), Voss v.
Bergsgaard, 774 F.2d 402, 405 (10th Cir. 1985), and
Jnited States v. Cardwell, 680 F.2d 75, 77 (9th Cir.
1982), hold only that a bare reference to the general con-
spiracy or tax evasion statutes places no effective limit
on the scope of a warrant. In Rickert, the court held
that “probable cause existed only to search for evidence
of tax evasion in connection with one particular project,”
and invalidated a warrant that authorized the seizure of

20

records related to all projects. 813 F.2d at 909. Simi-
larly, in Voss, the court held that probable cause existed
only as to the existence of “a substantial tax fraud
scheme,” and could not justify the seizure of all of an

organization’s records, including those related to lawful
- political advocacy protected by the First Amendment.
774 F.2d at 406. In Cardwell, the defect was particu-
larly clear because IRS agents were “already focused
* * * on certain portions of the appellants’ business
record”: “the government knew exactly what it needed
and wanted and where the records were located,” but
nonetheless obtained a warrant authorizing a “massive
re-examination” of the defendant’s records. 680 F.2d at
78 (quoting VonderAhe v. Howland, 508 F.2d 364, 370
(9th Cir. 1975)).'

‘ The other decisions cited by petitioners are factually inapposite for
the same reason. In United States v. Abrams, 615 F.2d 541, 542-543
(1st Cir. 1980), investigators suspected that three doctors had submit-
ted false Medicare and Medicaid claims, but because of the broad de-
scription in the search warrant, officers seized all patient records, in-
cluding the “records of non-Medicare-Medicaid patients.” In /n re
Lafayette Academy, Inc.,610 F.2d 1,3 (1st Cir. 1979), investigators had
probable cause to believe that a school had engaged in fraud in connec-
tion with the Federal Insured Student Loan Program (FISLP), but
obtained a warrant that authorized the seizure of four truckloads of the
school’s business and student records, including records having no
possible connection to FISLP. Both cases involve warrants that swept
more broadly than the showing of probable cause.

Petitioners’ reliance on U/nited States v. Spilotro, 800 F.2d 959 (9th
Cir. 1986) (Kennedy, J.), is also misguided. The warrants in that case
called for the seizure of “notebooks, notes, documents, address books,
and other records; safe deposit box keys, cash, and other assets; photo-
graphs, equipment including electronic scanning devices, and other
items and paraphernalia, which are evidence of violations of 18 U.S.C.
1084, 1952, 892-894, 371, 1503, 1511, 2314, 2315, 1962-1963." Jd. at 962.
The court held that the warrants lacked particularity because “the

21

In this case, by contrast, the court of appeals found
it “difficult to conclude how the Government could have
more narrowly tailored the warrant” in light of the size,
complexity, and pervasiveness of petitioners’ suspected
money laundering, tax violations, and fraud. Pet. App.
43. Petitioners make no effort to compare the evidence
described in the warrant application with the scope of
the search authorized in Exhibit B, and instead seize
upon individual phrases which, in isolation, could sug-
gest an impermissibly broad authority to search. The
court of appeals, on the other hand, painstakingly com-
pared the supporting affidavit with the scope of the war-
rant, noting that “the government needed to search for
a broad array of corporate documents to piece together
United’s unexplained large-scale currency deposits” and
concluding that the “financial records, sales records, tax
records, and purchase records” described in Exhibit B
“are all probative of the cash flow” and “could establish
the massive white collar scheme the Government has
alleged in this case.” /bid. Based on the nature of the
investigation and the warrant’s express limitations, the
court of appeals held that “the warrant here was drafted

government could have narrowed most of the descriptions in the
warrants either by describing in greater detail the items one commonly
expects to find on premises used for the criminal activities in question,
or, at the very least, by describing the criminal activities themselves
rather than simply referring to the statute believed to have been
violated.” /d. at 964. Here, the government followed both of those
instructions. Exhibit B includes 12 paragraphs describing, at length,
the types of records that typically contain information relevant to the
criminal activities listed, along with a “catch-all” provision in paragraph
12. See App., infra, la-2a. It also listed specific criminal offenses by
name, rather than merely citing section numbers of the United States
Code. Id. at la.

22

with sufficient particularity.” /d. at 42-43. Further re-
view of that fact-intensive inquiry is unwarranted.

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
EILEEN J. O°CONNOR
Assistant Attorney General
ALAN HECHTKOPF
S. ROBERT LYONS
Attorneys

MARCH 2007

APPENDIX

Exhibit “B”
Evidence

a. Any and all records, whether typed or hand-
written, or stored on paper, magnetic or electronic
medium (including information stored on computer
systems) or money laundering and illegal business
activities, including Money Laundering and Conspiracy
to Commit Money Laundering, Failure to Report Ex-
porting of Monetary Instruments, Mail Fraud, Wire
Fraud, Alien Smuggling, Food Stamp Fraud, and
Conspiracy to commit the same from 1990 to the present

pertaining to United Corporation d/b/a Plaza Extra,
Plessen Enterprises, Inc., Hamdan Diamond Corp.,
Sixteen Plus Corp. and any affiliated companies, as well
as their principals, officers, managers, and employees,
including but not limited to Fathi Yusuf, Maher Yusuf,
Waleed “Wally” Hamed, and Waheed “Willy” Hamed;
including

1. Audit reports and financial statements of the
above-listed companies and persons;

2. All financial records, including monthly
statements, cancelled checks, deposit slips, certificates
of deposit, of any and all banks and financial institutions
where the above-listed companies and persons have
accounts;

3. Any and all securities held or owned by the
above-listed companies and persons and related records;

(la)

2a

4. Any and all financial instruments, promissory
notes, and letters of credit held or owned by the above-
listed companies and persons and related records;

5. Documents, including corporate documents,
identifying the names, addresses, dates of birth,
telephone numbers, and social security numbers of all
employees, officers, directors, and associates of the
above-listed corporations and companies;

6. Any and all contracts, agreements, and corres-
pondence; -

7. Original contracts, promissory notes, sub-
scription forms, purchases’s receipts, compliance verifi-
cation forms, W-9 forms, and correspondences executed
or exchanged between United Corporation d/b/a Plaza
Extra and all of its customers and associated companies;

8. Copies of all Internal Revenue Service and VI
Bureau of Internal Revenue tax returns or other report-
ing forms and supporting schedules and documentation;

9. Telephone records, Rolodex records, telephone
answering machine tapes;

10. Video tapes, disks or records;

11. Photos, whether recorded on paper, tape, or
disk;

12. Documents and records pertaining to com-
munication by facsimile (fax) transmissions;

13. Any other records of money laundering and
illegal activities, including but not limited to:

books, records, receipts, accounts, notes, logs, led-
gers, journals, worksheets, invoices, pass books, money
drafts, money orders, bank drafts, cashier checks, bank

3a

checks, safety deposit box keys, and money wrappers,
airline tickets, and addresses and telephone numbers in
beoks or on paper or stored in electronic form by
computer systems, or word processing equipment.

The terms “records” and “information” include:

all of the foregoing items of evidence in whatever
form and by whatever means they may have been
created or stored, including any electrical, electronic, or
magnetic form (such as any information on an electronic
or magnetic storage device, including floppy diskettes,
hard disks, ZIP disks, CD-ROMs, optical dises, backup
tapes, printer buffers, smart cards, memory calculators,
pagers, personal digital assistants such as Palm Pilot
computers, as well as printouts or readouts from any
magnetic storage device); any handmade form (such as
writing, drawing, painting); any mechanical form (such
as printing or typing); and any photographic form (such
as microfilm, microfiche, prints, slides, negatives, video-
tapes, motion pictures, photocopies).

Computer systems include:

computer hardware, meaning hard disks, floppy
disks, magnetic tape, central processing units, monitors,
keyboards, connecting wires, printers, modems, plot-
ters, encryptions, circuits boards, optical scanners, ex-
ternal hard drives, computer storage facilities, all elec-
tronic devices which are capable of analyzing, creating,
displaying converting, or transmitting electronic or
magnetic computer impulses or data, and other com-
puter related devices; and

computer software, meaning any and all instructions
or programs stored in the form of electronic or magnetic
media which are capable of being interpreted by a

4a

computer or related component, including operating sys-
tems, application software, utility programs, compilers,
interpreters, and other programs or software used to
communicate with computer hardware or peripherals,
either directly or indirectly, via telephone lines, radio, or
other means of transmissions, and computer instruction
manuals for the use of any computers and their acces-
sories found at the premises; and

recorded information pertaining to any e-mail stored
on computers, e-mail servers, mail gateways, logs and
other reads pertaining to e-mail, including all stored
files, e-mail messages, attached documents, and web
pages; all files and transactional logs associated with e-
mail, including all telephone numbers used to access e-
mail, dates, times, method of connecting, port, dial-up,
location, attached file names and sizes, and user names,
and all billing records, account history, and subscriber
information related to e-mail; and

b. any large accumulations or bundles of US cur-
rency, precious metals, precious stones and jewelry
stored or collected in a manner designed to facilitate
convenient transport, exclusive of cash or valuables that
are kept in a manner clearly consistent with the normal
operation of legitimate business or normal personal
affairs.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1951%3A2. Public record. Not legal advice.