By Joe Nelson, The Sun
Posted: 04/07/16 – 1:34 PM PDT |
PASADENA >> A defense attorney in San Bernardino County’s Colonies corruption case and an assistant U.S. attorney battled it out in federal court Thursday over whether the government should destroy documents seized during a search of defendant Jeff Burum’s home and office in 2011.
Although federal charges were never filed against Burum and three other defendants in the case, the FBI turned over what it seized — two computer discs and hard copy documents — to prosecutors from the San Bernardino County District Attorney’s Office and state Attorney General’s Office for use in the pending five-year criminal case. The two offices are jointly prosecuting the case.
Burum’s attorney, Stephen G. Larson, has been challenging the FBI’s handling of its September 2011 search of Burum’s Rancho Cucamonga home and office, arguing that the search warrants were “stale” and “overly broad,” in part because investigators were searching for evidence related to alleged crimes that occurred more than five years prior to the warrants being served.
In addition, investigators failed to conduct an appropriate review of the materials it seized to root out what evidence fell within the scope of the search warrants and what didn’t, according to Larson.
“This is the most stale search warrant I have ever encountered in my career,” Larson said Thursday, addressing a panel of three Ninth Circuit Court of Appeals judges: A. Wallace Tashima, Barry G. Silverman and Susan P. Graber.
The government, Larson argues, did not abide by a federal court order to destroy copies of any electronic or hard copy documents it seized during the search that were not relevant to the investigation including personal notes and birthday, Valentine’s Day and anniversary cards.
Assistant U.S. Attorney Joseph Widman told the panel of judges Thursday that the factual disputes in the matter did not rise to the level of an evidentiary hearing, even though judges Tashima and Silverman asked why electronic and hard copy documents seized during the search and were not relevant to the investigation were not deleted or destroyed, as previously ordered.
Widman said the government was still holding onto the electronic data and hard copy documents in case prosecutors in the state criminal case need them.
“They’re still potentially relevant to a pending state court case,” Widman said.
In a motion filed in response to Larson’s appeal to the Ninth Circuit, Widman said the government retained the evidence at the request of the San Bernardino County District Attorney’s Office. The government also heeded the DA’s request not to delete or destroy any of its evidence since San Bernardino Superior Court Judge Michael A. Smith, who is presiding over the criminal case, had yet to rule on the matter.
FBI Agent Jonathan Zeitlin, Larson said, turned everything over to prosecutors with the DA’s and state Attorney General’s offices, which are jointly prosecuting the criminal case.
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