(1) A recent decision of the Second Circuit Court of Appeals, the Microsoft case, which limits the Government's power to obtain electronic information, that a domestic company stores overseas.
(2) An unsigned "police report," covering Zarrab's Turkish corruption case, was used to create an affidavit, without containing any additional information regarding the fact that some media considered its version of the facts to be discredited. The Affidavit was used to obtain a search warrant from a Federal Magistrate Judge.
The US Attorney's Office responded, also in the form of a letter, with both substantive, and procedural, objections to the defense request:
(A) The Microsoft decision was published four days before the deadline date on motions. Defense counsel, if it wanted to argue that case to the Court, should have requested a delay or adjournment, but they failed to do so.
(B) All motions were to be filed by July 15, 2015, and no good cause was shown for the delay. In any event, the motion is without legal merit.
(C) The affidavit which resulted in the search warrant was filed on May 27, 2016, and defense counsel are just now asserting that there should have been full disclosure of all the facts available.
(D) many of the events cited by the defense occurred after the execution of the affidavit. law enforcement officers acted in good faith reliance on the Magistrate Judge's judgment that the form of the warrant was technically sufficient.
A reply, written by Viet Dinh, on behalf of defense counsel, responded to the Government's statements:
(1) The filing deadline imposed by the Court, was on the motion to dismiss, not all motions, and the hearing transcript bears this out.
(2) The Microsoft decision [829 F.3d 197 (2nd Cir.2016)] is dispositive of the issue.
(3) Changes in governing law can provide good cause for an otherwise belated filing, on this set of facts, (citing Second Circuit decisions).
(4) There was information available that cast doubt on the accuracy of the online police report, including a front-page New York Times article, dated February 24, 2016, that accused Turkish prosecutors of fabricating evidence in the past, the same prosecutors who were responsible for the filing of corruption charges against Reza Zarrab. When seeking the search warrant, the US Attorney failed to provide these critical facts to the Magistrate.
(5) The Government will not suffer any prejudice by the granting of permission to file the motion to suppress.
The arguments made, on both sides, were well presented, with citations to legal authorities, where appropriate, and the issues now appear to have been fully briefed for the Court's ruling.