USA v. Basey

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
KALEB LEE BASEY,
Defendant.
Case No. 4:14-cr-00028-RRB
AMENDED
ORDER DENYING PETITION FOR
RELIEF PURSUANT TO § 2255
(Dockets 294, 295, 296)
Defendant filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct his sentence of 180 months in prison, with lifetime mandatory supervised release,
for transportation and distribution of child pornography.1 	The government has opposed
the motion,2 and Defendant has replied.3 This Court previously issued an Order Denying
Petition for Relief Pursuant to §2255 and Denying Pending Motions as Moot.4 	At
Defendant’s request,5 to which the Government did not respond, this Amended Order
1 Dockets 294, 295, 296.
2 Docket 316.
3 Docket 334-4.
4 Docket 357.
5 Docket 360.
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denying the § 2255 petition clarifies issues that Defendant felt were inadequately addressed
in the prior Order.6
I. 	BACKGROUND
A comprehensive summary of the facts of this case may be found in the
Magistrate Judge’s May 9, 2017, Final Report and Recommendation.7 Relevant points on
the timeline are as follows:
• 	January 	15, 	2014 	– 	The 	Alaska 	Bureau 	of 	Investigation 	began 	an
investigation into a Craigslist advertisement which appeared to be posted by
an adult male looking for sexual encounters with young girls.8
• 	January 17 & 18, 2014 – The Army Criminal Investigations Division
(“CID”) obtained a military search warrant and searched Defendant’s room,
seizing electronic devices.9
• 	February 2014 – A preservation letter was sent to Yahoo to preserve the
email 	account 	at 	issue 	pursuant 	to 	the 	Stored 	Communications 	Act,
specifically 18 U.S.C. § 2703(f).1011
• 	November 20, 2014 – The FBI obtained a federal search warrant for the
Yahoo email account.12
• 	December 16, 2014 – A Grand Jury indicted Defendant for Attempted
Enticement of a Minor and Receipt of Child Pornography.13
• 	March 17, 2016 – A Grand Jury returned a Superseding indictment which
added 	counts 	for 	Transportation 	of 	Child 	Pornography 	and 	Sexual
Exploitation of a Child – Distribution of Child Pornography in violation of
6 To the extent that Docket 357 dismissed the motions at Dockets 342, 343, 344, 349, 355, and
356, those issues will not be revisited here, and Docket 357 remains the final order on those motions.
7 Docket 160 at 7–26.
8 Docket 110 at 6.
9 Docket 110 at 11–12.
10 Docket 171 at 3.
11 The Stored Communications Act addresses the obligation of email service providers to preserve
electronic evidence at the request of a government entity. 18 U.S.C. 121 §§ 2701–2712.
12 Docket 171 at 3.
13 Docket 2.
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18 U.S.C. § 2252.14 	These counts related primarily to evidence recovered
from the Yahoo email account.
• 	May 19, 2016 – Appointed FPD counsel moved to withdraw.15 CJA counsel
was appointed a few days later.16
• 	October 4, 2016 – CJA counsel filed a Motion to Suppress “all evidence
secured by executing the military search warrant; all statements made by
Basey during the course of his custodial interrogation; and all evidence
secured by executing the federal search warrant.”17 This motion ultimately
was granted in part and denied in part on May 31, 2017, when this Court
suppressed a portion of Defendant’s statements, but denied the motion to
suppress the evidence obtained from the search of Defendant’s electronics.18
• 	June 28 and July 7, 2017 – Appointed CJA counsel moved to continue trial,
seeking permission to file a motion to suppress the Yahoo emails seized
pursuant to the federal warrant.19 	This motion was denied following a
hearing and further briefing.20 The Court found that “most, if not all, of the
issues that Defendant seeks to address by motion practice already have been
addressed and resolved by the Court, and all appear to be without merit on
their face.”21
• 	November 16, 2017 – Defendant filed a pro se motion to suppress, wherein
he invoked the Posse Comitatus Act and argued that his Yahoo emails should
have been suppressed.22 This motion also was denied.23
• 	Prior to trial, the government dismissed the original four counts and
proceeded solely on the two counts arising primarily from the search of the
Yahoo account.24 Defendant was convicted by a jury.25
14 Docket 101.
15 Docket 114. 	See also Docket 295, alleging that counsel stated her strong belief that such a
motion lacked merit and would be unsuccessful.
16 Docket 123.
17 Docket 130.
18 Docket 165.
19 Dockets 166, 171.
20 Dockets 170, 171, 172, 173.
21 Docket 173.
22 Docket 194.
23 Docket 200.
24 See Docket 207.
25 Docket 214.
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After his conviction, which was upheld on appeal,26 Defendant filed a
67-page memorandum in support of his pro se § 2255 Petition.27 	He alleges that both
appointed trial counsel were ineffective under Strickland v. Washington,28 because they
failed to move to suppress his Yahoo emails, and that he was prejudiced by their failure to
do so because the emails formed the sole basis of his conviction.29
On September 30, 2020, the Court provisionally appointed the Federal Public
Defender to assist Defendant with his § 2255 Petition, and appointed counsel entered an
appearance 	shortly 	thereafter.30 	Despite 	being 	represented 	by 	counsel, 	Defendant
continued to file pro se motions,31 and his counsel was permitted to withdraw in light of
Defendant’s expressed desire to proceed pro se.32 Accordingly, the Court considered the
§ 2255 Petition as originally filed.33
II. 	DISCUSSION
Defendant alleges that his attorneys “were ineffective because they
failed to file a motion to suppress his Yahoo emails,” suggesting that his counsel
“lacked a tactical basis” for failing to do so, and that their grounds for such failure
were “unreasonable.” Defendant himself filed a pro se motion to suppress the same
emails prior to trial,34 which was denied first on the record, and then in writing
26 Docket 267.
27 Docket 296.
28 466 U.S. 668 (1984).
29 Id.
30 Dockets 319, 320.
31 See Docket 327 (Motion for Injunction); Docket 329 (Motion to file pro se Reply).
32 Dockets 331, 334, 335, 336.
33 Dockets 294, 295, 296.
34 See Docket 194 at 14–19.
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following 	a 	Motion 	for 	Reconsideration.35 He 	now 	spends 	a 	dozen 	pages
expounding on his reasoning that “Yahoo’s [terms of service] did not destroy
Basey’s 	expectation 	of 	privacy 	in 	his 	emails,”36 that 	his 	first 	trial 	counsel
“abandoned her duty to research the law and make a good faith argument to extend,
modify, or reverse existing law,”37 and that his second trial counsel was negligent
for failing to file a timely motion to suppress.38 But as this Court has previously
explained39:
In order to prevail [under Strickland], the defendant must
show both that counsel’s representation fell below an
objective standard of reasonableness, . . . and that there
exists a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. . . . Where defense counsel’s failure
to litigate a Fourth Amendment claim competently is the
principal allegation of ineffectiveness, 	the defendant
must also prove that his Fourth Amendment claim is
meritorious and that there is a reasonable probability
that the verdict would have been different absent the
excludable evidence in order to demonstrate actual
prejudice.40
Defendant’s § 2255 Petition, therefore, hinges on the validity of his argument that had he
persuaded either of his attorneys to file a motion to suppress his emails, such a motion
35 Dockets 198, 199, 200. Defendant argued there that the emails were fruits of the poisonous tree,
regardless of any privacy interest he had in them.
36 Docket 296 at 4–10.
37 Id. at 10–13.
38 Id. at 13–16.
39 Docket 306.
40 Kimmelman v. Morrison, 477 U.S. 365, 374–75 (1986) (emphasis added), citing Strickland v.
Washington, 466 U.S. 668, 688 (1984).
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would have been successful. 	Only if such a motion would have been granted could the
Court grant Defendant’s various discovery motions, or find his lawyers were ineffective
under Strickland for failing/refusing to file such a motion. 	Defendant does not allege
ineffective assistance of counsel on any other grounds. Despite Defendant’s voluminous
briefing, Defendant’s arguments fail.
This Court was aware of the issue of suppression of Defendant’s emails prior
to trial and, after holding a hearing on the matter, declined to entertain more briefing.41 At
that time, Defendant’s CJA attorney raised one of the arguments that Defendant asserts
here.42 Defendant complains that he did not have a “‘full and fair’ opportunity to litigate
the reasonable probability of the suppression motion’s success” at that juncture.43 While
the Court’s decision not to allow further briefing on the email issue may preclude collateral
estoppel, the briefing currently before the Court is adequate to evaluate the issue.
Section II of Defendant’s § 2255 petition, entitled “A motion to
suppress Basey’s emails would have been meritorious,” presents four theories,
containing a total of 13 sub-sections, seeking to satisfy the threshold question.
Defendant argued that his Yahoo emails should have been suppressed because:
(1) 	“The FBI’s decision to seek the warrant for Basey’s emails and
the magistrate’s decision to issue the warrant were tainted by the prior
illegalities of the ASD and CID” as fruit of the poisonous tree;44
41 Docket 173.
42 Docket 171 at 3, arguing that that the nine-month delay from the date of the preservation letter
to Yahoo until the warrant was issued was an “unreasonable amount of time to interfere with Basey’s
possessory right to his [email] account.”
43 Docket 334-4 at 34.
44 Docket 296 at 18–33 (containing two subsections).
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(2) 	“The warrant for Basey’s emails lacked particularity and was
overbroad;”45
(3) 	“The execution of the Yahoo warrant was overbroad;”46
(4) 	“The 9-month warrantless seizure of Basey’s emails under a
2703(f) letter was unreasonable.”47
A. 	Fruit of the Poisonous Tree
Defendant argues that the seizure of his electronic devices during the
search of his barracks room was unlawful, and that therefore the November 2014
warrant to search his Yahoo emails was tainted as fruit of the poisonous tree because
the Yahoo warrant was based on information gained from the “illegal search of his
barracks room and devices.”48 Defendant is wrong. As the Magistrate and this Court
previously and repeatedly have explained, although this Court held that the search
of Defendant’s room lacked probable cause, it specifically found that the federal
search warrant to search the seized electronic devices was lawful.49 The legal search
of those devices led law enforcement to seek a warrant for Defendant’s email.
45 Id. at 33–42 (containing six subsections).
46 Id. at 42–44.
47 Id. at 44–66 (containing five subsections and four sub-subsections).
48 Id. at 18–33.
49 	See Docket 110 at 23, 44–49, 63–64. 	The Magistrate Judge and this Court each made this
determination twice. The Magistrate Judge issued a Final Report and Recommendation Regarding Motion
to Suppress Evidence and Statements, recommending in part that “the continued retention of the electronic
devices seized from Basey’s room on January 18, 2014 was lawful, and the evidence resulting from the
search under the federal warrant issued on November 3, 2014 should not be suppressed.” Docket 110
at 44 (emphasis added). This Court adopted the Report and Recommendation. Docket 113. Defendant
then renewed his Motion to Suppress, Docket 130, which the Magistrate interpreted as a Motion for
Reconsideration. 	Docket 149. 	Upon reconsideration, the Magistrate again recommended that
Defendant’s motion to suppress the evidence obtained from the search of his electronics be denied.
Docket 160. This Court again followed the recommendation of the Magistrate Judge. Docket 165.
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Accordingly, the issuance of the warrant for Defendant’s email was not “tainted by
the prior illegalities.” Defendant’s argument fails.
B. 	Particularity and Overbreadth/Search of Email Account
Defendant’s next two arguments suggest that the warrant for his Yahoo
emails “lacked particularity” and that both the warrant and its execution were
“overbroad.”50 He complains that although “the government had down-to-the-
minute information as to when certain emails were sent to Basey’s email account,”
and that it “could have used that information to target specific emails,” the
government instead sought copies of Defendant’s Yahoo emails in bulk for a six
month period.51
Defendant relies heavily upon an earlier published opinion which found
that a search warrant application for the entire content of multiple targeted email
accounts was overbroad when a more specific date range was available.52 But the
limitations in the search warrant here were specifically tailored to target the relevant
time period and subject matter. 	The affiant here sought emails from Defendant’s
email address from “the date of the first advertisement through one week after the
last email that was sent through the Craigslist servers.”53 Further, the affidavit
50 Docket 296 at 33–44.
51 Id. at 40.
52 In re Search of Google Email Accounts identified in Attachment A, 92 F. Supp. 3d 944, 951 (D.
Alaska 2015). (Finding an application for the entirety of email accounts from Gmail overbroad, when a
more specific date range was available).
53 Docket 172-1 at 30, ¶ 27 (Affidavit of Special Agent Goeden in support of Search Warrant).
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specifically limited the request to “electronic or wire communications with a minor
or any person purporting to be a minor, or claiming to have access to a minor, or that
otherwise involve the enticement of a minor to engage in sexual activity for which
any person can be charged with a criminal offense.”54 Defendant has provided no
authority that indicates that the parameters of the search warrant application here
were 	overbroad 	or 	lacked 	particularity 	such 	that 	they 	violated 	the 	Fourth
Amendment. 	Nor is there any evidence that the search warrant was not consulted
during its execution, or that Defendant was prejudiced in any event.
Next, Defendant complains that the terms of the search warrant
affidavit did not specifically seek emails between himself and a particular “me.com”
email address, and that it was “ultimately the emails that the affidavit didn’t seek
that were used to convict Basey.”55 Having concluded that the warrant was valid,
the Court takes judicial notice that the emails Defendant referenced here involved
Defendant telling the recipient about his proclivity toward sexual acts involving “5
to 15-year-old[s].”56 Such emails were precisely the type of emails requested in the
warrant. 	Defendant’s argument that the warrant for his emails was overbroad and
lacked particularity, as well as his complaint that the warrant’s execution was
overbroad, are without merit.
54 Docket 172-1.
55 Docket 296 at 36.
56 See Docket 261 at 139 (trial transcript of government’s closing statement).
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C. 	Seizure under 18 U.S.C. §2307(f) Preservation Letter
The 	Stored 	Communications 	Act 	generally 	prohibits 	“‘providers’ 	of
communication services from divulging private communications to certain entities and/or
individuals.”57 	Section 2703 addresses the obligation of email service providers to
preserve electronic evidence at the request of a government entity. 	It reads, in relevant
part:
(f) Requirement To Preserve Evidence.—
(1) In general.—
A 	provider 	of 	wire 	or 	electronic 	communication
services or a remote computing service, upon the request of a
governmental entity, shall take all necessary steps to preserve
records and other evidence in its possession pending the
issuance of a court order or other process.
(2) Period of retention.—
Records referred to in paragraph (1) shall be retained for
a period of 90 days, which shall be extended for an additional
90-day period upon a renewed request by the governmental
entity.58
Defendant argues at length about § 2703.59
1. 	Yahoo was not a “government agent”
Defendant complains that although the intent of § 2703(f) is to temporarily
preserve electronic files while law enforcement can obtain a warrant, entities such as
Yahoo routinely preserve information for much longer periods of time, beyond the 180
days contemplated by the statute, because they have a “monetary incentive” to preserve
57 Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev'd on other
grounds.
58 18 U.S.C. § 2703(f).
59 At Docket 360, Defendant complains that this Court’s prior order focused primarily on
Defendant’s §2703(f) argument. However, this section of Defendant’s § 2255 Petition comprised a full
third of Defendant’s argument.
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emails under § 2706 	which reimburses ISPs for their compliance with the Stored
Communications Act “regardless of when legal process arrives.”60
However, 	Defendant 	does not 	argue 	that 	§ 2703 is 	unconstitutional.61
Rather, Defendant argues that by preserving the emails, Yahoo became a government
agent, and by exceeding the 180 day requirement Yahoo, as a government agent, engaged
in an unreasonable search and seizure in violation of the Fourth Amendment.62 	Despite
Defendant’s extensive briefing, this premise is unsupported by the caselaw, as explained
in the government’s briefing.63
2. 	Initial seizure of emails was reasonable
Defendant also argues that “the government did not have probable
cause to initially search and seize [his] Yahoo account and emails under the 2703(f)
letter.”64 A preservation request pursuant to § 2703(f) notifies the online provider
to “take all necessary steps to preserve records” of an account. The request does not
interfere with the use of the account or entitle the Government to obtain information
without further legal process. 	Moreover, in the absence of a warrant, the Fourth
Amendment permits the seizure of property, pending issuance of a warrant to
60 Docket 334-4 at 38. Section 2706 reads in relevant part: “a governmental entity obtaining the
contents of communications, records, or other information under section 2702, 2703, or 2704 of this title
shall pay to the person or entity assembling or providing such information a fee for reimbursement for such
costs as are reasonably necessary and which have been directly incurred in searching for, assembling,
reproducing, or otherwise providing such information.”
61 Docket 334-4 at 36.
62 Id. at 36–45.
63 Docket 316 at 22–27.
64 Docket 359 at 2, citing Docket 296 at 52–54.
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examine its contents, if probable cause exists and “if the exigencies of the
circumstances demand it . . . .”65 Defendant argues that there was neither probable
cause nor exigent circumstance.66
Defendant’s reasoning is difficult to follow, but he seems to argue that
because he did not admit that his emails contained child pornography, there was no
probable cause to seize his emails.67 But a defendant’s admission is not required to
show probable cause. 	Probable cause is a “totality of the circumstances” test and
means “‘fair probability,’ not certainty or even a preponderance of the evidence.”68
Defendant’s admission that “the initial preservation was at most supported by
reasonable suspicion,”69 while not a relevant standard, does not weigh in his favor.
Moreover, Defendant’s argument again relies on his position that the
search of his devices was “illegal,” which, as discussed above, was not the case.
Additionally, the Magistrate already has performed this analysis in the Report and
Recommendation at Docket 160, wherein he concluded that even in the absence of
the tainted statements, there was probable cause to search Defendant’s electronic
65 United States v. Place, 462 U.S. 696, 701 (1983).
66 Docket 296 at 53–54.
67 Defendant argued that “the government did not have probable cause to initially search and seize
Basey’s Yahoo account and emails under the 2703(f) letter. The only reason the CID preserved Basey’s
account was because they thought Basey had used the account ‘to view/distribute child [pornography].’
But Basey never said he used the email account for that purpose.” Docket 296 at 53. He then admits that
although the topic of child pornography “came up,” during his interrogation, his statement was later
suppressed by the Court. Id.
68 United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006)
69 Docket 296 at 61.
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devices.70 The same analysis applies to establish probable cause for the preservation
letter.
Defendant also argues that there was no exigency. However, the very
nature of emails, which easily can be deleted by a user, is one reason § 2703(f) letters
remain in use. Despite criticism of § 2703(f), the use of § 2703(f) letters remains a
law enforcement standard.71
3. 	Continued preservation was reasonable
The Court is unpersuaded by Defendant’s argument that the period of delay
between the § 2703(f) preservation letter and the warrant was “astronomical,”72 or that the
investigators failed 	to 	exercise “diligence 	in obtaining the warrant.”73 	Under the
circumstances, the Court cannot find this delay sufficiently long to defeat the warrant or to
otherwise infringe on any constitutional right.
Finally, with respect to Defendant’s argument regarding the unfairness of the
common practice of retaining materials beyond 180 days in order to get reimbursed by the
government, the Stored Communications Act does not provide an exclusion remedy for
nonconstitutional violations. Section 2708 states specifically that § 2707’s civil cause of
70 Docket 160 at 42–43.
71 See Armin Tadayon, PRESERVATION REQUESTS AND THE FOURTH AMENDMENT, 44 SEAULR
105 (Fall, 2020).
72 Docket 296 at 57–58.
73 Id. at 60–61.
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action and § 2701(b)’s criminal penalties “are the only judicial remedies and sanctions for
nonconstitutional violations of this chapter.”74
III. 	CONCLUSION
Defendant alleges ineffective assistance of counsel because counsel declined
(or in the case of CJA counsel, delayed) filing a motion to suppress the emails that formed
the basis of the charges against him. Even with the additional arguments articulated in the
§ 2255 briefing, the Court would not have granted a motion to suppress the emails, which
was the only grounds upon which Defendant asserted ineffective assistance of counsel.
The Order at Docket 357 is VACATED IN PART with respect to the § 2255
Petition, as addressed herein. Having concluded that Defendant would not have prevailed
on a suppression motion, the various discovery motions75 therefore must be denied as
addressed at Docket 357, which remains final as to those motions, and the Petition for relief
under § 2255 is DENIED.
IV. 	CERTIFICATE OF APPEALABILITY
Finally, because Defendant has failed to make a substantial showing of the
denial of a constitutional right, and reasonable jurists could not find otherwise, the Court
declines to grant a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c).
74 18 U.S.C. § 2708; See United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998) (finding that
if a searched voicemail message is subject to the Wiretap Act then suppression is an available remedy for
any violation, but “[i]f the voicemail message at issue is subject to the strictures of the Stored
Communications Act, then suppression is not an available remedy.”).
75 Dockets 342, 343, 344, 349, 355, 356.
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IT IS SO ORDERED this 13th day of April, 2021, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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