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In re Search of 14416 Coral Gables Way

United States District Court, D. Maryland

April 5, 2011

IN THE MATTER OF THE SEARCH OF 14416 CORAL GABLES WAY, NORTH POTOMAC, MARYLAND

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[Copyrighted Material Omitted]

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For USA, Plaintiff: Christine Manuelian, Office of the United States Attorney, Baltimore, MD.

OPINION

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MEMORANDUM OPINION[1]

Susan K. Gauvey, United States Magistrate Judge.

The Office of the U.S. Attorney submitted an application for search and seizure warrants and a motion to seal the search warrants and the supporting affidavit to the Honorable Beth P. Gesner in November of last year in the above case. The Court granted the motion and the search of the home at 14416 Coral Gables Way occurred shortly thereafter on November 30, 2011. Upon executing the search, the government provided Mr. Gurpreet Kohli with a receipt for the property taken by government agents, and a copy of the warrant and three unredacted attachments: Attachment A describing the residence to be searched; Attachment B outlining the property to be seized in support of the alleged violations of law; and Attachment D describing the methods to be used for searching computer-related items. (ECF No. 10, 1). The government did not furnish a copy of the application for the search warrants, the affidavit in support of the search warrants, or the motion to seal.

Attachment B stated that " the items to be seized...constitute evidence, fruits and instrumentalities of: false statement in violation of 18 U.S.C. § 1001; obstructing an agency proceeding in violation of 18 U.S.C. § 1505; and attempted brokering of defense articles without a license in violation of 18 U.S.C. § 2278. The items to be seized included, inter alia, records

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relating to transactions with the government of India, or its officials, foreign nationals, entities/businesses doing business with India..." (ECF No. 3, 30 ¶ 1 and ¶ 4); and consulting or other professional relationships involving the Government of India or its officials, entities/businesses doing business in or with India, or foreign nationals doing business in or with India" (Id. at ¶ 5). The items to be seized also included documents relating to the business activities, inter alia, of NAVTEC and NAVTEC India and documents proprietary to Northrop Grumman and pertaining to Bharat Electronics, ECIL, DLRL and DRDO or any other Indian government or private entities. [2]

On February 11, 2011, Gurpreet Kohli, Navpreet Kohli and NAVTEC, LLC filed a motion to unseal affidavit in support of search warrant. (ECF No. 7). [3] The movants argued their entitlement to the contents of the search warrant affidavit unless the government's demonstrated that: (1) a compelling interest that the materials to be kept under seal and (2) there is no less restrictive means, such as redaction, available. (ECF No. 7, 2-4). Of particular concern was Mr. Gurpreet Kohli's employment at Northrop Grumman Corporation (" Northrop Grumman" ). The motion asserted that he had been told by his employer " that he will lose his job because he cannot offer them any explanation to what this investigation relates, and why his security clearance was recently suspended." (ECF No. 7, 1-2). The government responded that the right under the Fourth Amendment to pre-indictment access to a search warrant is not absolute and may be weighed against the government's interest in non-disclosure. (ECF No. 10, 4). The government also stated that Mr. Gurpreet Kohli had not provided any supporting factual basis for his assertion that his security clearance was suspended due to the government's execution of the search warrant, and that despite the suspension of his clearance, Mr. Kohli's employment at Northrop Grumman continued. (ECF No. 10, 2-3). In an ex parte letter dated March 4, 2011, the government informed the Court that, according to Northrop Grumman counsel, no adverse employment actions had been taken against Mr. Gurpreet Kohli at that time, but that Northrop Grumman had decided to restrict Mr. Kohli's foreign travel for the immediate future in order to avoid any potential issues for the company. (ECF No. 14, 1).

In support of its request for continued sealing of the entire search warrant affidavit and the warrants, the government submitted ex parte materials, including declarations by the special agent in charge of the investigation. At the request of the Court, an ex parte hearing was held on Friday, March 25, 2011 to further explore the government's bases for the continued sealing, with two special agents in attendance who provided additional testimony. Thereafter, at the Court's request, the government submitted additional ex parte materials. The Court was informed on March 25, 2011 that Mr. Kohli was suspended from his employment at Northrop Grumman, which suspension he believes is related to the government's investigation. (ECF No. 19).

For the reasons set forth below, the Court grants in part and denies in part the

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motion to unseal. The Court believes that the government has failed to demonstrate a compelling interest in the continued sealing of the affidavit, except as to the minimal redactions set out in the affidavit attached as Appendix A, which redactions shield certain information that might interfere markedly with the completion of the investigation if known to the movants. The government has indicated its inclination to appeal this decision if any parts of the affidavit are released beyond what the government now has conceded can be released, namely, paragraphs 1-7 and 39-44 (with the exception of certain limited information in paragraphs 2 and 42-44). The government's redacted affidavit attached as Appendix B. (ECF No. 16, 11). Accordingly, the Court orders the government to release the affidavit attached as Appendix A on April 5, 2011, unless an appeal is taken by that date.

Discussion

The Fourth Circuit has held that the subject of a search warrant does have a pre-indictment right to examine the search warrant affidavit. United States v. Oliver, 208 F.3d 211, 2000 WL 263954, at *2 [published in full-text format at (4th Cir. Mar. 9, 2000) (stating that " a defendant is entitled under the Fourth Amendment to examine the affidavit that supports a warrant after the search has been conducted" ); see also In re Search Warrants Issued on Apr. 26, 2004, 353 F.Supp.2d 584, 591 (D. Md. 2004) (" Accordingly, this Court affirms Magistrate Judge Gauvey's recognition of a search subject's pre-indictment Fourth Amendment right to inspect the probable cause affidavit." ); In re Search of 8420 Ocean Gateway Easton, Md., 353 F.Supp.2d 577, 579 (D. Md. 2004) (" The Court finds that there is a Fourth Amendment constitutional right to examine the search warrant affidavit." ). This right is not absolute, however, and may be overridden " where the Government demonstrates '(1) that a compelling governmental interest requires the materials to be kept under seal and (2) there is no less restrictive means, such as redaction, available." Oliver, 2000 WL 263954, at *2 (quoting In re Search Warrants Issued Aug. 29, 1994, 889 F.Supp. 296, 299 (S.D. Ohio 1995)); see also In re Search Warrants Issued on Apr. 26, 2004, 353 F.Supp.2d at 591 (" Moreover, this Court recognizes that this right is limited, and adopts the test articulated by the Fourth Circuit in the unpublished Oliver opinion." ); Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424, 429 (4th Cir. 2005) (stating that access may be denied if sealing " is essential to preserve higher values and narrowly tailored to serve that interest" ). The ultimate decision of whether to " seal or grant access to 'warrant papers is committed to the sound discretion of the judicial officer who issued the warrant.'" Media, 417 F.3d at 429 (quoting Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989)).

A showing of a compelling interest sufficient to override the subject's Fourth Amendment right of access may, for example, be satisfied by an ongoing criminal investigation, a court-ordered wiretap that has yet to be terminated, information that could reveal the identity of confidential informants whose lives would be endangered, or matters occurring before the grand jury. Media, 417 F.3d at 430-31 (finding that a compelling interest was shown when, in preliminary stage of the investigation, there would be a potential negative impact if unproven criminal allegations were made public, possible negative impact on broader investigations in other districts, and presence of privacy interests in personal tax information of person being searched); In re Application of N.Y. Times Co. for Access to Certain Sealed Court Records, 585 F.Supp.2d 83, 91

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(D.D.C. 2008) (explaining that although promoting effective law enforcement by keeping the identity of informants secret is a compelling interest, that interest can be accomplished by redacting the identity and personal identifiers of the informant rather than sealing the entire affidavit); Search Warrants Issued Aug. 29, 1994, 889 F.Supp. at 299 (stating that a compelling interest was not shown when investigation was three years long, not part of some broader investigation involving other participants in other districts, did not contain wiretaps, and no informant's lives were endangered). However, the requirement of a compelling interest requires " [m]ore than a conclusory allegation of an ongoing investigation." In re Up North Plastics, Inc., 940 F.Supp. 229, 233 (D. Minn. 1996). Instead, the government is required to " make a specific factual showing of how its investigation will be compromised by the release of the affidavit to the person whose property was seized." Id.; see also In re Search and Seizures, No. 08-SW-0361 DAD, 2008 WL 5411772, at *4 (E.D. Cal. Dec. 19, 2008) (finding that a specific factual basis was shown, but rejecting assertions that unsealing the affidavit would obstruct the investigation by revealing the government's theory of the case and direction of the investigation as nothing more than conclusory statements). In any event, the subject's Fourth Amendment right must only yield to the government's compelling interest for a reasonable period of time. In re Search and Seizures, 2008 WL 5411772, at *5; Up North, 940 F.Supp. at 233.

As is typical, the affidavit here laid out a summary of the investigation and its findings, in an effort to persuade the reviewing judge that there is probable cause that three specific criminal statutes have been violated, and that the sought-for items will provide evidence of those crimes. Notably, much -indeed most - of the affidavit concerns events and transactions prior to 2010. Here, the government identified false statement (18 U.S.C. § 1001), obstructing an agency proceeding (18 U.S.C. § 1505), and attempted brokering of defense articles without a license (18 U.S.C. § 2278). Originally, the government sought to seal the entire affidavit. At the Court's request, the government re-reviewed the subject affidavit. (ECF No. 9; ECF No. 15). The ...


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