USA v. Cariani

ORDER DENYING ECF Nos. 30, 36 Motions to Suppress, as to Peter James Cariani (1). Signed by Judge Larry R. Hicks on 10/10/2019. (Copies have been distributed pursuant to the NEF - DRM)

District of Nevada, nvd-3:2017-cr-00062-124499

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6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA * * * UNITED STATES OF AMERICA, Case No. 3:17-cr-00062-LRH-CBC Plaintiff, ORDER PETER JAMES CARIANI, Defendant. Defendant Peter James Cariani has filed a motion to suppress the fruits of four search warrants executed on his email addresses, the email addresses of his girlfriend and brother, and his home residence. (ECF No. 30). Approximately a month after Cariani filed his motion, he filed an additional motion, this time seeking to suppress statements he made during an FBI interview and evidence recovered stemming from that interview. (ECF No. 36). The government filed a consolidated response to Cariani's motions. (ECF No. 40). For the reasons stated below, the Court will deny Cariani's motions to suppress. 1. Factual Background The following facts and allegations are gathered from the various pleadings and exhibits on the docket. Cariani is an engineer by trade who worked for Sierra Nevada Corporation ("SNC"), a defense contractor headquartered in Sparks, Nevada, from 2012 to April 2015. Among other products, SNC designs and develops a specialized aircraft radar system known as REVS. REVS provides pilots with digital images of the ground, which allows them to safely land aircraft in low visibility situations. While REVS was originally designed for use on military helicopters during 6 the War on Terror in Afghanistan, SNC saw a potential market for selling REVS for use on commercial fixed-wing aircraft. SNC believed that REVS would be useful for large cargo planes and corporate jets attempting to land in bad weather conditions at smaller airports lacking the sophisticated landing technology of their larger counterparts. SNC has devoted substantial resources into developing a commercial REVS product and considers it to be a trade secret and proprietary information not known to the general public. Cariani was hired by SNC in 2012 as a Principal Systems Engineer to work in the fixed- wing division of its commercial REVS program. During his employment at SNC, Cariani held a "Secret" level security clearance. Cariani eventually submitted his resignation letter to SNC on April 7, 2015, which contained several complaints about SNC and its leadership. Cariani alleges that he resigned following disputes with SNC management about the direction of his REVS division, but the government alleges that Cariani's dissatisfaction with SNC stems from him being disciplined for unprofessional behavior. Following Cariani's resignation, on April 16, SNC corporate security discovered that approximately 12,000 REVS-related files had been copied from Cariani's SNC-issued laptop to two USB flash drives not approved by SNC. A little over a week later on April 24, Cariani participated in a telephonic exit interview with SNC after refusing an in- person interview. When asked by SNC personnel whether he had transferred any files from his SNC laptop to unapproved external storage devices, Cariani stated that he could not recall if he had done so prior to SNC prohibiting the practice. Further questioning from SNC personnel about the file transfers prompted Cariani to abruptly hang up the phone. A. First Motion to Suppress - Search Warrants The government subsequently initiated a criminal investigation into Cariani to determine if he had stolen any of SNC's trade secrets related to the REVS program. Investigation revealed that in March 2015, Cariani and his girlfriend, Alisa Bindel, had booked a flight to Italy scheduled to depart in late May 2015. While Bindel had traveled to Europe several times before, Cariani had not. Cariani used an email account from Apple ( to book the flight. On May 26, 2015, FBI Special Agent Sean Jolley applied for a search warrant from this Court to search Cariani's "carianip" email account for various terms related to Cariani and the REVS program, 6 Bindel, the two people the government knew at the time were traveling to Italy. (Id.) These terms clearly satisfy the particularity requirement. See U.S. v. Mann, 389 F.3d 869, 877 (9th Cir. 2004) ("While a search warrant must describe items to be seized with particularity sufficient to prevent a general, exploratory rummaging in a person's belongings, it need only be reasonably specific, rather than elaborately detailed."). 3. Stale Information Cariani's final argument relates to information the FBI learned following the issuance of the search warrant on May 26, 2015. He argues that the FBI agents should have provided Judge Cobb with an update of their investigation after three of Cariani's former coworkers told investigators that he had told them that he planned to travel to Italy on a family vacation. (ECF No. 30 at 16). He continues on to say rather than correct or supplement the affidavit, the affiant waited for the results of the search warrant to arrive and let the stale inference linger that the purpose of [Cariani's] trip might be illicit." (Id.) A defendant may succeed in challenging the validity of a warrant if he can show that a false statement was knowingly and intentionally, or with a reckless disregard for the truth, included in an affidavit in support of probable cause and the falsified information was necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155–56 (1978). "[The defendant] 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. Allegations of negligence or innocent mistake are insufficient." Id. at 171. Here, Cariani has alleged that rather than a false statement being included in Agent Jolley's affidavit, Agent Jolley withheld information from Judge Cobb. The framework is the same - Cariani must make a "substantial preliminary showing" that the affidavit contained a misleading omission and that the omission resulted from a deliberate or reckless disregard from the truth. U.S. v. Kyllo, 37 F.3d 526, 529 (9th Cir. 1994). He must also show that if not for the omission, the affidavit would have been insufficient to establish probable cause. Id. |6. Cariani's argument lacks merit. He asserts that the reason for the trip was a "pre-planned vacation with family and friends," but the interviews he points to contain no such information. (ECF No. 30 at 15). In one interview conducted on June 24, 2015, one of Cariani's former coworkers stated that Cariani had talked about traveling to Europe after he left the company. (ECF No. 40-5 at 3). Another former coworker, in a June 19, 2015 interview, mentioned Cariani wanting to go "jeeping" in Utah and then travel to Italy. (Id. at 5). In a June 12, 2015 interview, a third coworker stated that Cariani had talked about taking a trip to Italy. (Id. at 7). None of the witnesses mentioned that the purpose for the trip was a family vacation, and Cariani fails to cite to any evidence in the record to support his assertion. Additionally, the interviews were conducted following the execution of the first search warrant Cariani contests. It is unclear to the Court how Agent Jolley could have hidden information from Judge Cobb "as the search warrant results were pending?»3 when he conducted the interviews several weeks after the search warrant was executed. These two facts alone defeat Cariani's Franks argument. Moreover, Cariani has not demonstrated how including the purported reason behind his trip to Italy would strip Agent Jolley's warrant of probable cause. He merely states in conclusory fashion that the failure to include such information was a material omission, which is insufficient to meet the omission standard the Ninth Circuit offered in Kyllo. (ECF No. 30 at 16). The argument that three of Cariani's former coworkers told Agent Jolley that the purpose of the Italy trip was a family vacation (which, according to his FD-302s, they did not do), does not "prove" the purpose of the trip, as Cariani insinuates. Instead, these statements are only evidence that Cariani told them why he was going on the trip. An individual who wishes to engage in the illegal sale of trade secrets hardly would want his soon to be ex-coworkers to know of his plan. Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009). ("Rarely will a suspect fail to proffer an innocent explanation for his suspicious behavior."). In any event, an alternative explanation for Cariani's trip to Italy does not obviate the suspicious facts within Agent Jolley's affidavit. See id. ("innocent explanations for...odd behavior cannot eliminate the suspicious facts from the probable cause calculus."). 3 (ECF No. 30 at 16). 6 B. Second Motion to Suppress (ECF No. 36) Cariani's second motion to suppress seeks to suppress several pieces of evidence: (1) statements he made to Agents Stallings and Cook during the October 21, 2015 interview; (2) the flash drives recovered from the interview; (3) the voicemails he left Agent Jolley the night of the interview, and (4) the iPad and laptop recovered the morning after the interview. (ECF No. 36 at 4). Cariani's main argument is that he was subjected to a custodial interrogation when he was interviewed by Agents Stallings and Cook, so any statements he made or evidence he produced during the interrogation must be suppressed because he was never read the Miranda warning. (Id. at 4-5). He further argues that the voicemails and other electronic devices must be suppressed because their production stemmed from unlawful law enforcement conduct, namely the custodial interrogation without an advisement of his rights. (Id. at 6). To determine whether a suspect is in "custody," a court must examine all the circumstances surrounding the interrogation, "but the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). Thus, the court must (1) examine the circumstances surrounding the interrogation, and (2) determine whether a reasonable person would have felt that he was not permitted to leave. Yarborough v. Alvarado, 541 U.S. 652, 662–63 (2004). Relevant factors include the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restrains during the questioning, and the release of the interviewee at the end of the questioning. Howes v. Fields, 565 U.S. 499, 509 (2012) (collecting Supreme Court cases). The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views of either the police officer or suspect. Stansbury, 511 U.S. at 323. Stated 4 Cariani also requests that the Court suppress statements he made during two separate interviews he conducted with the FBI on November 3 and November 23, 2015. (ECF No. 36 at 7). These interviews were conducted well-after the October 21 interview he had at Logan International. During the Court's evidentiary hearing, Cariani never testified about the nature and circumstances of these two interviews. In fact, defense counsel objected when government's counsel asked Cariani about these interviews on cross examination. Because Cariani failed to adduce any evidence about these interviews during his opportunity to do so, and his briefing on this issue is largely unsupported by citations to evidence, the Court will deem this argument waived. 13 6 differently, a "policeman's unarticulated plan has no bearing on the question whether a suspect was in custody at a particular time...the only relevant inquiry is how a reasonable man in the suspect's position would have understood the situation." Id. at 323–24 (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). An individual who is a suspect in a crime is not