In re: Under Seal
Filing
63
SUPPLEMENTAL AUTHORITIES (FRAP 28(j)) response by Appellee US in 13-4626. [999275405]. [13-4625, 13-4626] Andrew Peterson
U.S. Department of Justice
United States Attorney’s Office
Eastern District of Virginia
Dana J. Boente
Acting United States Attorney
2100 Jamieson Avenue
Alexandria, VA 22314
(703) 299-3700
(703) 299-3892 (fax)
January 10, 2014
Patricia S. Connor, Clerk
United States Court of Appeals for the Fourth Circuit
1100 East Main Street, Suite 501
Richmond, VA 23219-3517
Re: 13-4625, In re: Under Seal
Dear Ms. Connor:
I write to bring to the Court’s attention two published opinions of this Court that have
been issued since briefing in the above-captioned matter concluded.
First, in their opening brief, Appellants argued that the warrant issued below was invalid
because the information sought was not “fruits, instrumentalities, or evidence” of any
crime. (Lavabit Opening Br. at 21-24.) In response, the government argued that the encryption
keys listed in the warrant were lawfully seized as property involved in crime. (Gov’t Br. at 3436.) On December 24, 2013, in United States v. Dargan, this Court upheld the seizure of a
purchase receipt from a suspect’s residence as relevant evidence in a bank robbery
investigation. Slip Op. at 9-11. This case provides additional support for the government’s
argument that the Fourth Amendment does not prohibit the seizure of items that alone are not
direct evidence of an element of a crime. Moreover, the Court’s reasoning that warrants should
be interpreted in a common sense matter to encourage the government to seek warrants when
intruding into constitutionally protected areas, Dargan, slip op. at 8, is equally applicable here.
Second, to succeed on their appeal, Appellants must identify error committed by the
District Court. (Gov’t Br. at 16-17.) On January 8, 2014, in United States v. Chinua Shepperson,
this Court held a district court is not required to raise, sua sponte, statutory claims of a criminal
Andrew Peterson P Assistant United States Attorney P (703) 299-3700 P andy.peterson@usdoj.gov
defendant, even when the defendant is charged with a death-eligible offense. (Slip Op. at 6-8.)
Here, Appellants seek to invalidate the Pen Register Order and Search Warrant based on issues
they failed to raise before the district court. As Shepperson indicates, the district court’s failure
to consider those issues was not error.
Sincerely,
Dana J. Boente
Acting United States Attorney
By:
/s/
Andrew Peterson
Assistant United States Attorney
Andrew Peterson P Assistant United States Attorney P (703) 299-3700 P andy.peterson@usdoj.gov
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