U.S. v. Sherifi, 5:09–CR–216–FL.

• Decision Date: 22 June 2011
• Docket Number: No. 5:09–CR–216–FL.,5:09–CR–216–FL.
• Citation: 793 F.Supp.2d 751
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of Americav.Hysen SHERIFI; Anes Subasic; Dylan Boyd, a/k/a “Mohammed;”, Mohammad Omar Aly Hassan; and Ziyad Yaghi, Defendants.

793 F.Supp.2d 751

UNITED STATES of America

v.Hysen SHERIFI; Anes Subasic; Dylan Boyd, a/k/a “Mohammed;”, Mohammad Omar Aly Hassan; and Ziyad Yaghi, Defendants.

No. 5:09–CR–216–FL.

United States District Court, E.D. North Carolina,Western Division.

June 22, 2011.

Barbara D. Kocher, John Bowler, Stephen A. West, Jason Harris Cowley, U.S. Attorney's Office, Raleigh, NC, Jason M. Kellhofer, U.S. Department of Justice, Washington, DC, for Plaintiff.Debra C. Graves, Rosemary Godwin, Federal Public Defender, Paul K. Sun, Jr., Ellis & Winters, Joseph E. Zeszotarski, Jr., Poyner & Spruill, R. Daniel Boyce, Nexsen Pruet, PLLC, Raleigh, NC, Robert J. McAfee, McAfee Law, P.A., James M. Ayers, II, Ayers & Haidt, P.A., New Bern, NC, Myron T. Hill, Jr., Browning & Hill, Greenville, NC, for Defendants.Anes Subasic, Raleigh, NC, pro se.

ORDER

LOUISE W. FLANAGAN, Chief Judge.

This matter comes before the court on defendants' motions to suppress evidence obtained pursuant to the Foreign Intelligence Surveillance Act (“FISA”) and to disclose FISA applications and orders (DE # 680, 805, 816, 818, 812, 810, 813, 841, 843).¹ On May 23, 2011, the government filed public notice on the docket, at entry 1003, of a classified, ex parte, omnibus response to the foregoing motions. On June 5, 2011, the government filed its unclassified response on the public docket, lodged at entry 1073. In this posture, the issues raised are ripe for review. For the foregoing reasons, the court denies defendants' motions.

STATEMENT OF THE CASE

Defendants are charged in a thirteen (13) count second superseding indictment returned November 24, 2010. Counts one and two allege that beginning no later than November 9, 2006, and continuing through at least July 2009, the eight named co-defendants conspired with each other to provide material support to terrorists in violation of 18 U.S.C. § 2339A, and commit outside of the United States an act that would constitute murder, kidnaping, maiming, and injuring persons in violation of 18 U.S.C. § 956(a). “Violent jihad” and actions taken in furtherance thereof are alleged as overt acts in the conspiracies.

The second superseding indictment charges Daniel Boyd with receiving a firearm through interstate commerce in violation of 18 U.S.C. § 924(b); two counts of possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c); two counts of knowing sale of a firearm to a convicted felon in violation of 18 U.S.C. § 922(d)(1); two counts of making a false statement in violation of 18 U.S.C. § 1001(a)(2); knowing provision of ammunition to a convicted felon in violation of 18 U.S.C. § 922(d)(1); and conspiracy to kill a federal officer or employee in violation of 18 U.S.C. § 1117. Zakariya Boyd also is charged with two counts of possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c).²

In addition to the conspiracy charges, Sherifi is charged with two counts of possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) and conspiracy to kill a federal officer or employee in violation of 18 U.S.C. § 1117. Dylan Boyd is charged with knowing sale of a firearm to a convicted felon in violation of 18 U.S.C. § 922(d)(1). Counts twelve and thirteen charge that on or about December 2, 2003, Subasic knowingly made false statements while procuring and attempting to procure naturalization, and on his formal application for naturalization, in violation of 18 U.S.C. § 1425(a).³

On July 27, 2009, the government filed seven notices of intent to use FISA information against defendants, lodged on the docket at entries 34 through 40. In their motions, defendants contend that aside from providing this notice, the government has not confirmed any details about what evidence derived from FISA searches and surveillance will be used in the prosecution of the case. Nor has the government provided any affidavits, orders, or other papers which would illustrate for defendants what information was relied upon for the Foreign Intelligence Surveillance Court (“FISC”) to issue orders authorizing any searches or surveillance. Defendants seek various relief, including suppression of all FISA derived evidence, disclosure of FISA derived evidence, and disclosure of FISA applications and orders.

DISCUSSION

A. The Foreign Intelligence Surveillance Act

FISA, enacted in 1978, was Congress's response to judicial confusion over the existence, nature and scope of a foreign intelligence exception to the Fourth Amendment's warrant requirement in the wake of the Supreme Court's 1972 decision in United States v. U.S. District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). See United States v. Rosen, 447 F.Supp.2d 538, 542–543 (E.D.Va.2006). In addition, FISA was also a response to the Congressional concern over perceived executive branch abuses of such an exception, and the need to provide the executive branch with appropriate means to investigate and counter foreign intelligence threats. Id. FISA establishes a detailed process the executive branch must follow to obtain orders allowing it to collect foreign intelligence information “without violating the rights of citizens of the United States.” United States v. Hammoud, 381 F.3d 316, 332 (4th Cir.2004) (en banc), vacated on other grounds, 543 U.S. 1097, 125 S.Ct. 1051, 160 L.Ed.2d 997 (2005), reinstated in pertinent part, 405 F.3d 1034 (2005). Although originally limited to electronic surveillance, FISA's coverage has been expanded to include physical searches as well. See Rosen, 447 F.Supp.2d at 542–43; 50 U.S.C. § 1822.

1. FISA Application

FISA includes a detailed procedure for obtaining orders authorizing electronic surveillance or physical searches of a “foreign power or an agent of a foreign power.” See 50 U.S.C. § 1801. The process begins with the government's filing of an ex parte, under seal application with the FISC. The application must be approved by the Attorney General and must include certain specified information. See Id. §§ 1804(a), 1823(a). A FISC judge considering the application may also require the submission of additional information necessary to make the requisite findings. See id. §§ 1805(a), 1824(a).

The applications for electronic surveillance or physical searches must include the following: (1) the identity, if known, or a description of the target of electronic surveillance or physical search; (2) a statement of the facts and circumstances relied upon by the applicant to justify the belief that the target is a foreign power or agent of a foreign power and that each of the facilities or places where electronic surveillance is directed or used, or the premises or property subject to physical search are used or are about to be used by a foreign power or agent of a foreign power; (3) a statement of the proposed minimization procedures; (4) a detailed description of the nature of the information sought and type of surveillance or manner of physical search to be conducted; (5) a certification by an executive branch official; (6) for electronic surveillance, a statement of the means by which the surveillance will be effected, and whether physical entry is required to effect the surveillance; (7) a statement of the facts concerning previous applications and action taken on previous applications; (8) for electronic surveillance, a statement of the period of time for which the surveillance is required to be maintained and if the surveillance should not automatically terminate, a description of facts supporting the belief that additional information will be obtained; and (9) for electronic surveillance, whenever more than one surveillance device is to be used, the coverage of the devices involved and what minimization procedures apply. See id. §§ 1804(a), 1823(a).

2. Certification

Each FISA application must include a certification by an executive officer that includes the following: (1) that the certifying official deems the information sought to be foreign intelligence information; ⁴ (2) that a significant purpose of the surveillance or search is to obtain foreign intelligence information; (3) that such information cannot reasonably be obtained by normal investigative techniques; (4) that the type of foreign intelligence information being sought corresponds to the categories describes in section 1801(e) of this title; and (5) includes a statement of the basis for the certification that the information sought is the type of foreign intelligence information designated, and such information cannot reasonably be obtained by normal investigative techniques. See id. §§ 1804(a)(7), 1823(a)(7).

3. Minimization

FISA applications must include a statement of the proposed minimization procedures. Minimization procedures are “designed to protect, as far as reasonable, against the acquisition, retention, and dissemination of nonpublic information which is not foreign intelligence information.” In re Sealed Case, 310 F.3d 717, 731 (FISCR 2002). FISA minimization procedures include:

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such persons's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow for...