September 8, 2007
Rep. Jefferson Files a Flurry of Motions
Louisiana Representative William Jefferson filed a number of motions challenging the corruption charges filed against him in the Eastern District of Virginia in June 2007. The fifteen motions include requests to dismiss the counts, to suppress evidence, to change the venue in the case to Washington D.C., discovery requests, and to strike surplusage from the indictment. The venue motion, available below, seeks to dismiss certain counts, including the RICO charge, because venue is improper in Virginia, and to change venue for the remaining counts to the District of Columbia on equal protection grounds because of the racial makeup of the Eastern District. The motion states: "The government’s purposeful actions in creating and seeking venue in Virginia raise equal protection concerns similar to those addressed by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986). Just as prosecutors may not employ their peremptory challenges to exclude members of the defendant’s race from the jury, they should not be permitted to exercise their discretion to select the forum to accomplish the same result." Representative Jefferson has also requested discovery on the government's venue decision and an evidentiary hearing on the issue. Discovery of the government's decision-making process is difficult to obtain, and the claim of an equal protection violation in the selection of the venue may well be one of first impression.
The investigation of Representative Jefferson involved search warrants, which are uncommon but certainly not unknown in white collar cases, particularly public corruption cases lately involving federal elected officials, such as a Representative from California and Senator from Alaska. The claim regarding the search of the home in Louisiana presents an interesting issue: Can the government make digital photographs of documents that it finds in the search but cannot seize because they are outside the scope of the warrant? (Motion available below) A warrant that allows the seizure of documents would authorize a review of the contents of records found at the location identified, but once the document is determined to fall outside the warrant it's not clear whether the government can make a record of its contents and use that in its investigation. The items were not illegally seized, at least in a physical sense, because the agents could examine them at the house, and plain view allows at least a cursory review. But photographing them in a way that effectively allows the government to gain the benefit of obtaining a copy of the contents even if the piece of paper remains at the house certainly sounds like a seizure. New technology again confronts the limits of the Fourth Amendment's protections. The Fourth Amendment challenge does not inlcude the search of Representative Jefferson's Virginia home, where $90,000 was found in a freezer -- perhaps the key physical evidence in the case.
A third motion, also available below, concerns suppression of statements Representative Jefferson made to FBI agents during the search of his Louisiana home. While Miranda rarely comes up in white collar cases, questioning during the execution of a search warrant can trigger an issue about whether it was a custodial interrogation or a voluntary interview. The questioning took place in his home, which makes it less likely he was in custody, but Representative Jefferson alleges that he did not feel free to leave the presence of the agents, and they accompanied him to the bathroom at one point, requiring him to leave the door open. Whether the facts are sufficient to constitute "custody" to trigger the right to receive Miranda warnings remains to be seen. (ph)
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