On April 5th, the US Attorney Office and Zarrab’s defense wrote letters to the Court, fighting over whether to suppress Zarrab emails. For original letters, please scroll down.
Reza Zarrab is seeking to suppress his e-mails, which were obtained from Microsoft [Zarrab used Hotmail] pursuant to a warrant issued by a US Magistrate Judge in New York City. The warrant was based on an affidavit submitted on September 23, 2014, by FBI Special Agent Jennifer McReynolds. Attached to the affidavit was a 299 page document, ostensibly a Turkish police report dated December 18, 2013, that had been posted online on the website of journalist Can Dündar. Although this report was not authenticated, an FBI agent in İstanbul stated that it appeared genuine, also US Attorney Bharara’s writings said claims in the police report corroborated by the US authorities’ own investigations and findings. The warrant application affidavit stated that the FBI had been able to confirm some details of the report.
What Zarrab objects in the recent letter?
Zarrab objects that the warrant application did not disclose that by the time the warrant was obtained, there had been many news stories discrediting the supposed police report, claiming that it was politically motivated, blaming it on members of the Gülen movement embedded in the police and judiciary, who had previously brought criminal charges based on manufactured evidence. Zarrab argues that Agent McReynolds must have been aware of this additional information that cast doubt on the truth of the police report, and had a duty to disclose it in her warrant application.
The Constitution requires a warrant for most searches, and the warrant must be supported by an affidavit (a statement under oath). Normally, a criminal defendant is not entitled to challenge a warrant that was properly issued. But the Supreme Court made an exception in Franks v. Delaware, 438 U.S. 134 (1978), in cases where the officer seeking the warrant knowingly or recklessly misstated a fact that was “material,” i.e., would have made a difference to the judge issuing the warrant. But the defendant can’t just say the officer lied and call him or her to testify. In order to be entitled to a “Franks hearing” on the question of knowing or reckless misrepresentation in the warrant application, the defendant must make a preliminary showing:
“There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Id. at 171.
The government contends that this threshold showing has not been met, or if it has been met with respect to the police report, there was enough other information in the application to justify issuing the warrant. But in case Judge Berman believes Zarrab has shown he is entitled to a hearing, the government’s April 5 letter asks the court to enter an order defining which statements in the warrant application are claimed to be false, or what information is claimed to have been improperly omitted, and limit the extent to which Zarrab’s lawyers can probe into the FBI investigation.
It should be also added that, in the motion challenging the warrant, Zarrab’s lawyers unwisely cited articles in Sabah discrediting the police report. The government responded, “Sabah, a Turkish-language newspaper, and its foreign-language counterpart Daily Sabah, have a history of unsupported speculation. A May 19, 2016, article from Daily Sabah, for example, asserted the existence of ties between the Gulen movement and both the U.S. Attorney’s Office and this Court.” Govt. Memorandum of Law in Opposition to Defendant Reza Zarrab’s Motion to Suppress Emails, note 7 at 14.
What seems to be going on is that the government obtained a warrant to search Zarrab’s e-mail account based on the original Turkish corruption investigaton. Zarrab is claiming that the information given the judge who granted the warrant omitted later rulings invalidating Zarrab’s prosecution in Turkey.
According to the US Supreme Court in Franks v. Delaware, if a defendant can show that a warrant was obtained using statements that the law enforcement officer knew to be false, or knowingly or recklessly omitted contrary information, the warrant will be held invalid, and evidence acquired by means of the warrant will be suppressed. Before the court will inquire into the basis for the warrant, however, the defendant has to make a preliminary showing, some evidence showing that a material statement made in the warrant application was false. The government is saying Zarrab hasn’t made that preliminary showing, and so no hearing is warranted.