Are sealed search warrant affidavits a 4th Amendment violation?
By Edward Snook
Editor Ron Lee Contributing
During the early morning of March 22, 2016 a dozen armed soldiers took over an airplane hangar. An “onlooker” might have thought they were there to capture terrorists, stop a drug smuggling ring, or perhaps save a hostage from being whisked away on one of the many jet airplanes present. A half dozen airline pilots, a secretary, a custodian, were all held at gun point for questioning. There were no drugs. No terrorists. No hostages. Unless you considered the employees of the Jet Leasing company to be hostages in that moment. This was simply an armed raid by the government of the United States of America, and the Internal Revenue Service, to seize paper belonging to Justin Smith. They seized hundreds of pounds of paper. Boxes of paper. And, they seized cell phones, electronics, and check books. And, they questioned everyone on the premises. The literal ton of materials were then boxed up and labeled and sent off to the IRS building.
The “onlooker” generally believes that this use of force by his government must be justified. There must be a reason behind it. At least that is how most people think – if there is smoke, there must be fire, right? (Wrong) All the while, the “onlooker” gets to fill in the “fire” with his/her imagination. Speculation runs wild, as does the gossip, and pretty soon the general public believes everyone in that hangar must have been guilty of something. The government thrives on this wild misinformation, most of which they themselves promote in the mainstream media through the releases of their one-sided information. In fact, you could say they rely on it in order to prosecute.
As the US~Observer, our duty is to be more than just an “onlooker” – to, as our name implies, observe and determine the truth through serious research and analysis of the facts. It is a duty, quite frankly, we exceed in, as is evidenced by the thousands of charges we’ve defeated over the last 26-plus years fighting for the vindication of our clients. We counter the government’s false information that they intentionally distribute to the jury pool when they file false charges, thus allowing the jury pool to obtain the truth and facts, substantiated with conclusive evidence.
History of the Search Warrant
In 1789 when the Fourth Amendment was added to the Constitution of the United States, it had been written by our forefathers to address a serious human rights concern. The British were accustomed to “General” Search Warrants issued by their magistrates, the subjects of the King. These general warrants (certainly a slight improvement over a horde of soldiers simply grabbing people and property without a reason at all) allowed the King’s soldiers to go into a home and take out whatever they desired, in the name of the King. They continued this “rule of King” in the colonies, who really didn’t like it.
After Independence and adoption of the United States Constitution the concept of the Fourth Amendment was an evolutionary change in the pendulum of law in favor of the citizen, and against the rule of a King. It created the Specific Warrant. In order to get this piece of paper that allowed the ruler to use military force to grab things, the ruler had to get someone to swear to a good reason for it. If a crime had been committed, or was about to be committed, you’d have to put that into an oath on a piece of paper, and then tell a neutral magistrate what it was that the Ruler wanted to seize, and why. The effect on America was inspiring, and modifying. The Sheriff, or police, or military couldn’t go into your home without a warrant, and they couldn’t get one without having someone swear an oath as to what was to be seized and why, and without convincing a magistrate to give it to them.
The populace also abided by the Constitutional presumption of innocence. So the early “onlookers” would first presume that the government was pursuing someone, with probable cause, who was most probably innocent, but possibly not, and then would look to the “Observers” (the media of the time), who had sleuthed-out the facts, to disclose the truth.
Today, much of the mainstream media reports offer no observing at all, but simply parrot as “news” the press releases of the government. For the last twenty years, this has been particularly true with the reporting of Criminal Tax cases, where the media often won’t even interview the defense, let alone look into their claims of innocence. The media just totes the government line.
Since 2007, when the US~Observer became involved in the Moran case and subsequent trial and began “Observing” criminal tax trials, the US~Observer has noticed something very troubling. Every single original warrant that was accompanied with an oath or affirmation, as required by the fourth amendment, relating to tax cases, has been sealed. The public does not get to read the oath attached.
There is no constitutional reason for the oath to be “sealed.”
A sealed oath means that no one gets to see it without a further court order. It means that the public has to just accept these encounters with the police without the ability to question the truth of the oath, or even know specifically the reason something was to be seized. It converts the Specific Warrant into something more like the original General Warrant, and it defies the Constitutional protections of the fourth amendment. Throughout the United States these raids now happen on a daily basis.
Modern “Onlookers”, now conditioned to believe presumed guilt, are just assuming that something really bad has happened, by someone who is really bad, and the government is “protecting” us. In reality it is the poorly regulated use of Police State powers, often against harmless, law abiding citizens. This was clear in the article about the Mattesons that this reporter covered in 2015 with the raid against Herb Friske, and the Moran trial in 2007 (these two cases and many more ended up in total vindication for the innocents that were attacked), and now in the Justin Smith Case in 2016 and 2017. Intelligent “Onlookers” see beyond rhetoric and know that the government does not always tell the truth and rarely protects them. People can connect the publishing of the truth regarding innocence with acquittals and vindication when they read such in the US~Observer newspaper.
Why the hangar was breached
Commercial Airlines have a mixed duty with regard to excise taxes on fuel. If the airline rents out a plane, but the customer gets his gasoline from another company and his pilot from a third, the Airline has no duty to collect the excise tax. If the airline rents it all out, from one company, then that company has to collect and pay the excise tax. But what if three companies are involved? What if the plane is owned by one corporation, the gasoline sold by a second, and the pilot works for a third? The law is not settled if one person owns stock in all three companies. Can it ever be a crime if the law is not even settled, if the subject of an investigation may not even owe a tax at all?
With different partners and at differing levels, Justin Smith has some ownership in all three companies. As a result, he is now under criminal investigation for not paying the tax. Frankly, the investigation first needs to determine if a crime has even been committed, and second, if the unsettled law has even been violated! Intent or knowledge is one of the hallmarks of a crime; did he even know he was violating the law? The question an observer must ask is: “Can you be a criminal if you aren’t trying to break the law, if in fact you are trying to follow the law?”
The Honorable Magistrate Judge Dena Palermo received an oath or affirmation attached to a request for a search warrant, and signed that warrant authorizing the Federal Government to seize papers at the airport Hangar where Justin Smith kept his Jet Planes for his lease service.
Renowned Criminal Tax Defense Lawyer, Ashley Arnett, of Minns & Arnett, was asked to go to the scene where the military raid was being conducted. Going into a battle ground is not for the weak of heart. Fortunately, Ashley is as tough as nails. After arriving there, and meeting with the government officials on hand, and watching the action, which was nearly over before the firm had even been called, it took Arnett about ten minutes to figure out who the two “informants” were.
An informant is someone who is on the inside of a business, who has some internal knowledge, and is cooperating with the government to help themselves out… but not necessarily being honest about it. An informant is usually one tiny step more ethical (but not always) than the jail house snitch who is being “paid” with money or time off from a sentence, to testify the way the government wants them to testify about someone the government if after. Sometimes the informant is a disgruntled employee or even an employee who wants to compete with the boss, and whose new enterprise would be helped by the boss going to jail.
On April 12, 2016, about three weeks after the “raid”, Smith filed a motion with Judge Palermo to read the oath filed with her, which lead her to grant the warrant that resulted in the raid. Smith did this so he could know what was said and by whom.
At this time, Smith’s counsel was in direct contact with the Assistant US attorney in charge, Justin Martin, and had assured him that any further warrants were not necessary, that Smith would turn over any papers that the law required to be turned over.
Smith’s counsel was concerned that the government had previously seized attorney/client privileged documents in the hangar raid. One of the boxes the government seized was actually labeled by the government as “Attorney/Client information”, so it defies reason to pretend the government was not in possession of materials they had no legal right to possess. The government likely perused the confidential information concerning the civil fight over taxes with Smith and the Civil arm of the government, that they had not been allowed to see previously. It bears mentioning that in the Moran case the government had also seized confidential records created by lawyers. This appears to be habitual conduct on tax cases.
A request was made by Smith’s attorney on that same day for the government not to attempt to seize Smith’s cell phone, and for the judge to prevent them from doing so, because he had daily communications with his civil attorney via text message. In fact, even during the raid, Mr. Smith was communicating on his phone with his civil lawyer… it was that same lawyer who retained Minns & Arnett to look into the case. The government was also asked not to review the box of attorney/client information, voluntarily, and to return it. The government had not responded to these civil requests.
That same day, before an entirely different Magistrate, Judge Frances Stacy, a request for two more warrants was filed, one for Justin Smith’s warehouse, and one for his home. Were Judge Stacy and Judge Palermo told about the warrant requests in each other’s court rooms? Was Judge Stacy told that a request to keep records confidential was on file in Judge Palermo’s court room? What was on the three oaths? Were they consistent? Were they truthful? Was there a legitimate reason to keep all three sealed?
With guns drawn, a military force arrived at the home of Justin Smith and his house was searched from top to bottom. Smith voluntarily escorted the soldiers to his guns and weapons to avoid a problem. Special Agent of the IRS, Cory L’Heureux, asked Smith to speak with him, but by this time and for obvious reasons, he had no credibility with Smith. Smith asked if he was under arrest. He was not. So, he wisely and politely excused himself and walked away, no doubt infuriating the agent in charge.
On April 15th, the law firm of Minns and Arnett filed a motion to consolidate the three search warrants into one single court room, so that one Judge would have access to everything represented separately to each Judge, to determine if they had been told separate stories, or conflicting facts. Minns also asked that all three oaths be unsealed. The motion acknowledged that if there was anything that still wasn’t known about the raids themselves (which seems unlikely) or future raids (which seemed unlikely until the Special Agent in charge began interviewing Smith’s elderly mother), such as a confidential information (which is also unlikely since it is clear who voluntarily met with the government during the raids) that those names could be blacked out, to avoid interfering with the ongoing “investigation” whatever it was. No facts have been disputed. The excise taxes have not been collected because Smith believes he is not only not required to collect them, but not allowed to do so,… and he may or may not be right, that has not been litigated… the purpose of the three invasions (unless they were to collect confidential attorney/client information) is still not clear. There are no records the government did not have access to, through Smith, or through bank records, or both. So why spend a fortune in federal funds on three raids? What was sworn to and who swore to it? How could it be unreasonable for a citizen to learn the answer to these facts?
Judge Palermo granted the motion to consolidate on April 20, 2016.
On May 20th, Judge Palermo ordered the government to submit to her, under seal, versions of the three search warrant affidavits and a brief explaining what they wanted to release to Smith and what they wanted to keep hidden, and why, by May 27th.
The government responded by saying, on May 26th, essentially “No” to the court, and that they would file their objections at some time in the future and they requested a stay until that happened.
On June 1st Judge Palermo denied their motion and ordered them to file the brief “without further delay.”
The government instead filed a Motion for Reconsideration and asked for more time. They also argued that the information would be “useless” to Smith. Who knows? Maybe it would be. But just in case, shouldn’t Smith be the Judge of that? Shouldn’t the truth behind three forcible entries and seizures of a law abiding citizen be available to that citizen, and to the public paying for these raids?
On June 6th Judge Palermo again denied the Government’s motion and ordered them to file by June 10th.
On June 9th, they filed their confidential brief, and on July 15th Judge Palermo ruled against them again. She found their redactions of the oath to be excessive. She agreed that they could black out names and initials that would identify witnesses and confidential sources of information… but nothing more. No one knows what the government’s specific arguments with the judge were, or their full legal reasoning, but the court again found their request to be excessive and denied it.
On June 29th, the Government appealed that ruling to the district court. Smith opposed that appeal.
Over the July fourth weekend, agent L’Heureux sent out a myriad of e-mails that made some suspicious that he wasn’t even with the government… trying to contact all of Smith’s clients, and financial supporters. Minns sent him a letter suggesting that his tactics weren’t appropriate, reminding him what the fourth of July is actually all about…
On August 17, 2016, the District Court Judge, Honorable Gray Miller, ruled entirely on the government’s side saying, because, “…the Fifth Circuit has not addressed whether there is a common law right of access to a warrant affidavit while an investigation is ongoing…” he would not, “create such a right absent Fifth Circuit guidance” and he sustained the government’s efforts… and all of the affidavits remained sealed. Minns argued that the right to privacy, and the right to know the truth doesn’t have to be created, it already exists, and rather than destroy the right, Judge Miller should have allowed Judge Palermo’s ruling to stand, unless the Fifth Circuit decided to take it away again.
On December 2, 2016, Minns and Arnett filed their brief to the Fifth Circuit Court of Appeals and asked for an oral argument before a panel of appellate judges. It is difficult to get an audience with a circuit panel. Many lawyers never get one. Michael Minns has gotten oral argument granted before circuit panels in 90% of his requests. In the Smith case the government argued that oral argument should not be granted. The Fifth Circuit advises on its web page that they grant the right to be heard in oral argument only 12% of the time.
In May of 2017, the Fifth Circuit granted Minns’ request for oral argument setting the oral argument tentatively in New Orleans for the week of July 31st.
Arguing for your 4th Amendment Rights
While there are literally hundreds of published cases dealing with discovery of these ancient affidavits after an indictment has been filed, there are only two that deal with pre-indictment.
While not ruling specifically on the issue, the US Supreme Court has held that warrants are intended, in part, to inform the target of the reasons of the government’s invasion of his or her privacy.
The Ninth Circuit seems to agree with the District Court and favor the government. The Fourth Circuit, in a case filed by the Baltimore Sun, clearly favors public access to the oath that supports a search warrant.
It has now been over a year since the three search warrant executions.
During the course of this case, the government’s representatives, the Assistant United States Attorney (AUSA) and the IRS Special Agent, Cory L’Heureux, told Minns that Smith was on video tape “destroying records.” Because of this alleged fact, L’Heureux threatened to file Obstruction of Justice charges against Smith.
As it turned out, the “video tape” did not show the destruction of any records. The video tape simply showed Smith pushing records (which may or may not be the records the government is talking about) into a warehouse for safe guarding, on a cart. There is no evidence of “destroying records” because there can’t be. No records have been destroyed.
In its appeal response the government backs down a little and says that it has proof of “attempting to remove or destroy” records. They might as well say “attempting to rape, or to prevent a rape.” And it would mean just as much. Removing records are just as easily an effort to protect them as anything else, and in fact, the records they originally claimed were destroyed, were all “captured” in the raid of the warehouse, and are now all in the possession of the government. The records that the government has claimed it was entitled to, and apparently were described in the secret affidavits, included the cell phone of Smith, with confidential attorney client text messages back and forth to his lawyers, as well as a box identified by the government as “Attorney/Client materials” which the government continues to claim are not attorney/client materials, and were seized under the warrant that did not call for confidential attorney/client materials.
If the special agent swore to one judge, that he had a secret tape showing records were destroyed, and if he swore to another judge that he had a secret tape showing instead that they were “removed”, and if he is talking about the same records in a different sworn way to two different judges, that could be a reason why he is so concerned about these statements being made public. Of course he might not even be on the oath statements. It could be someone else. Or perhaps, everything in all three affidavits is verifiably true… which is of course why in a free country, with open court rooms, and transparency, this sort of cover up is not supposed to occur – the affidavits should be viewable.
The oral argument in front of the Fifth Circuit will be heard the week of July 31st, and the US~Observer will be there.
Editor’s Note: When Michael Minns takes on the IRS, more often than not, the IRS is left licking its wounds. Few Lawyers have accomplished the record of vindications that the US~Observer has – Lawyer Michael Minns and his “second to none” partner Ashley Arnett have a comparable win ratio, which is very rare. The US~Observer is proud to be associated with this powerhouse and we will continue to bring you news of their cases. Look for a follow-up article reporting on the oral arguments in this case and the resulting opinion of the Fifth Circuit.