USA v. Phu et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No. CR-24-146-R
)
MATTHEW ALAN STACY, 	)
)
Defendant. 	)
ORDER
Before the Court is the Government’s Motion to Declare Communications Subject
to the Crime Fraud Exception and Compel Production of a Privilege Log [Doc. No. 280]
and Defendant Stacy’s Motion to Suppress Unreasonably Executed Search Warrant [Doc.
No. 285]. Both motions are fully briefed [Doc. Nos. 284, 288, 291, 293, 294] and at issue.
The Court held a telephonic hearing on February 11, 2026 at which counsel for the
government and Mr. Stacy presented argument in support of their respective positions.
After careful consideration, the Court concludes that no evidentiary hearing is necessary
and that both motions should be denied.
Background
Mr. Stacy is charged in an Indictment with one count of conspiring to manufacture,
distribute, or possess with intent to distribute marijuana, in violation of 21 U.S.C. §
841(a)(1), and one count of maintaining a drug involved premises, in violation of 21 U.S.C.
21 U.S.C. § 845(a)(2). Broadly stated, the Indictment alleges that Mr. Stacy, an attorney,
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utilized a straw ownership scheme to help his clients evade state residency and licensing
requirements related to medical marijuana businesses.
On August 8, 2024, the United States sought and obtained a search warrant to
conduct a search of Mr. Stacy’s cell phone. See Doc. No. 280-1. The warrant included
Attachment B, which describes the items to be searched and seized as evidence of the
alleged criminal offenses. Id. Attachment B also includes the following provision:
The Prosecution Team expects that the SUBJECT PHONE may potentially
contain materials that are potentially attorney-client privileged or subject to
the work product doctrine (“protected materials”). A Filter Team of
government attorneys and support personnel has been established. The Filter
Team will have no future involvement in the investigation of this matter. The
Filter Team will review seized communications and segregate potentially
protected materials, i.e., communications that are to/from an attorney, or that
otherwise reference or reflect attorney advice. At no time will the Filter Team
advise the Prosecution Team of the substance of any of the potentially
protected materials. The Filter Team then will provide all communications
that are not potentially protected materials to the Prosecution Team and the
Prosecution Team may begin its review. If the Filter Team concludes that
any of the potentially protected materials are not protected (e.g., the
communication includes a third party or the crime-fraud exception applies),
the Filter Team must obtain either agreement from defense counsel/counsel
for the privilege holder or a court order before providing these potentially
protected materials to the Prosecution Team.
Id. Pursuant to the warrant, the government downloaded the contents of the phone.
In late August 2024, counsel for Mr. Stacy and the government exchanged emails
about the download of the phone and a privilege protocol. On October 11, 2024, Mr.
Stacy’s counsel memorialized in an email that he and the government’s filter attorney had
agreed to a privilege protocol. Specifically, that the filter attorney would review the
materials and, if the filter attorney determines that any item is not privileged, he will
provide defense counsel with an opportunity to review the item and seek judicial review
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before the item is provided to the prosecution team. See Doc. No. 288-1. In September
2025, the filter attorney indicated that he had identified categories of content, such as
calendar entries, device locations, and web history, that did not appear to be privileged but
had also identified communications that did appear to be privileged. See Doc. No. 288-2.
Defense counsel reiterated that they are asserting that communication and non-
communication content may be subject to various privileges, including the attorney-client
privilege. Id.
Now, approximately eighteen months after seizing and downloading the contents of
the phone, the government seeks an order finding that that the crime fraud exception to the
attorney-client privilege applies to any communications contained on the phone between
Mr. Stacy and “any marijuana client.” The government also requests that Mr. Stacy be
ordered to provide a privilege log identifying any client communications that he believes
are privileged. Mr. Stacy opposes this request and relatedly moves to suppress the entire
contents of the phone based on the government’s alleged failure to begin or complete its
review of the phone within a reasonable time.
Discussion
A. Timeliness of the Post-Seizure Review
Mr. Stacy contends that the government’s failure to begin or complete its post-
seizure review of the cell phone within a reasonable period of time violates the Fourth
Amendment and all evidence seized pursuant to the search warrant should therefore be
suppressed.
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“Even if a warrant is facially valid, suppression may be required when the warrant
is executed in an unreasonable manner.” United States v. Hall, No. 3:18-CR-0623-S, 2023
WL 2674855, at *8 (N.D. Tex. Mar. 29, 2023). In the context of a search warrant involving
a phone or computer, numerous courts have recognized that the post-seizure review of
electronic data can be more complex than a search of physical items and involve
significantly more time.1 United States v. Jarman, 847 F.3d 259, 266 (5th Cir. 2017); United
States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005); United States v. Gregoire, 638 F.3d
962, 967 (8th Cir. 2011); United States v. Ganias, 824 F.3d 199, 215 (2d Cir. 2016). “The
Fourth Amendment contains no requirements about when the search or seizure is to occur
or the duration.” Jarman, 847 F.3d 259, 266 (5th Cir. 2017) (quotation marks and brackets
omitted); see also United States v. Sims, 428 F.3d 945, 955 (10th Cir. 2005) (“The Fourth
Amendment does not specify that search warrants contain expiration dates.”). Whether a
post-seizure review of data has been executed in a timely manner is therefore governed by
the Fourth Amendment’s mandate of reasonableness. In assessing the reasonableness of a
delay, courts must “take account of the totality of the circumstances in each case.” United
States v. Christie, 717 F.3d 1156, 1162 (10th Cir. 2013).
Here, the duration of the post-seizure review is not unreasonable under the Fourth
Amendment. The search of Mr. Stacy’s phone is more complex than might normally be the
case given that he is an attorney and the charges are premised, at least in part, on legal
1 Federal Rule of Criminal Procedure 41 authorizes the off-site review of electronic stored
data and similarly contemplates that “[a] substantial amount of time can be involved in the
forensic imaging and review of information.” Fed. R. Civ. P. 41(e)(2)(B) advisory
committee’s note to 2009 amendment.
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services provided to certain clients. The phone likely contains a significant amount of
potentially privileged material which necessarily requires a careful, and thorough, review
process. See Jarman, 847 F.3d at 266 (explaining that “it is appropriate to screen privileged
information” and the filter process is “designed to protect [the defendant’s] clients’
privileged information”). Further, unlike the primary case relied on by Mr. Stacy, the
government promptly assigned a filter attorney, started the review process, and has not
disregarded any directions from the court in connection with the review. See United States
v. Metter, 860 F. Supp. 2d 205, 215 (E.D.N.Y. 2012) (“The government then failed to
commence the review, despite repeated requests from defense counsel and directions from
the Court to do so.”). Under these specific circumstances, the government’s delay in
completing the post-seizure review does not violate the Fourth Amendment.
Additionally, “[i]n addressing the timeliness of execution of a search warrant, the
focus is whether there is still probable cause to support a search.” United States v. Warner,
No. CR 19-4275 WJ, 2021 WL 1227618, at *5 (D.N.M. Mar. 31, 2021), aff'd, 131 F.4th
1137 (10th Cir. 2025). Here, there is no reason to think that the delay in the post-seizure
review of the phone has rendered the information in the warrant stale. See United States v.
Burgess, 576 F.3d 1078, 1097 (10th Cir. 2009) (“Probable cause to search was unaffected
by the delay and the reasons to search the computer and hard drives did not dissipate during
the month and a half the items sat in an evidence locker.”); Jarmon, 847 F.3d at 267
(“Moreover, Jarman has not argued that the delay caused the warrant to become stale.”).
The Motion to Suppress is therefore denied.
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B. The Crime-Fraud Exception
The government seeks an order declaring “any communications between Mr. Stacy
and a marijuana client that occurred from August 2019 through March 2023” as subject to
the crime-fraud exception to the attorney-client privilege. The government’s position is
that Mr. Stacy’s communications with his “marijuana clients” are co-extensive with his
criminal relationship to the client’s conduct and made in furtherance of ongoing criminal
activity. The government further asserts that the burden rests with Mr. Stacy to identify
any communications that fall outside the scope of the crime-fraud exception.
The attorney-client privilege protects confidential communication between an
attorney and a client made in connection with legal representation. See United States v.
Zolin, 491 U.S. 554, 562 (1989). Although the privilege is important, is it not inviolate:
“The attorney-client relationship is no shield for either the attorney or the client if the
purpose of the communication is to further a crime or an intended crime.” In re Sept. 1975
Grand Jury Term, 532 F.2d 734, 737 (10th Cir. 1976). The crime-fraud exception “assure[s]
the seal of secrecy between lawyer and client does not extend to communications made for
the purpose of getting advice for the commission of a fraud or crime.” Zolin, 491 U.S. at
563 (internal quotation marks and citations omitted). The exception can be applied “to both
the attorney-client privilege and the work-product doctrine.” In re Grand Jury Subpoenas,
144 F.3d 653, 660 (10th Cir. 1998).
“To invoke the crime-fraud exception, the party opposing the privilege must present
prima facie evidence that the allegation of attorney participation in the crime or fraud has
some foundation in fact.” Id. This requires showing that “the client was engaged in or was
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planning the criminal or fraudulent conduct when it sought the assistance of counsel and
that the assistance was obtained in furtherance of the conduct or was closely related to it.”
Id. In determining whether the crime-fraud exception applies, the court should “define the
scope of the crime-fraud exception narrowly enough so that information outside of the
exception will not be elicited[.]” Id. at 661.
Applying these standards, the Court finds that the government’s request is overly
broad. The Indictment and the Court’s prior findings certainly present some evidence that
certain clients communicated with Mr. Stacy in furtherance of criminal or fraudulent
conduct. However, “no case stands for the proposition that, when a prima facie showing is
made that a client has consulted with his attorney for the purpose of furthering a crime or
fraud, the privilege entirely disappears, subjecting everything in connection with that
client’s representation with that attorney to disclosure.” In re Grand Jury Subpoena, 419
F.3d 329, 344 (5th Cir. 2005). Rather, the exception is “limited to those communications
made and documents produced in furtherance of the ongoing or future crime or fraud, no
longer protected by the privileges.” Id.
As Mr. Stacy notes in his brief, it is hardly unreasonable to believe that he may have
communicated with his “marijuana clients” about a variety of legitimate legal matters that
have nothing to do with the drug conspiracy charged in this case. Such communications
would not be “in furtherance of” or “closely related” to alleged criminal conduct and would
therefore fall outside the scope of the crime-fraud exception. Further, the government’s
suggestion that any legal consultations about marijuana businesses are subject to the crime
fraud exception because marijuana is illegal under federal law is a nonstarter and only
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serves to underscore the unreasonable breadth of their request. The government has not
identified any specific clients or a specific subset of communications that fall within the
scope of the exception and the Court will not simply assume that any and all clients that
communicated with Mr. Stacy about state marijuana laws or marijuana businesses did so
in furtherance of criminal or fraudulent conduct.
The Court is equally unpersuaded by the government’s request to foist the burden
of searching the phone onto Mr. Stacy. While Mr. Stacy bears the burden of supporting a
claim of privilege, the terms of the search warrant specifically provide that the government
will review the seized communications, segregate the potentially privileged material, and
either obtain agreement from defense counsel or the Court before releasing the information
to the prosecution team. Put simply, the government, not Mr. Stacy, is charged with
executing the search warrant.
Conclusion
For the reasons stated above, the Government’s Motion to Declare Communications
Subject to the Crime Fraud Exception and Compel Production of a Privilege Log [Doc.
No. 280] is DENIED and Defendant Stacy’s Motion to Suppress Unreasonably Executed
Search Warrant [Doc. No. 285] is DENIED.
IT IS SO ORDERED this 24th day of February, 2026.
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