United States v. Ho
| Decision Date | 02 November 2018 |
| Docket Number | 17 Cr. 779 (LAP) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CHI PING PATRICK HO, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Defendant Chi Ping Patrick Ho ("Ho") moves the Court to suppress all evidence obtained or derived under the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et seq., ("FISA information") and disclose to the defense the FISA application(s), order(s), and related materials (collectively, "FISA materials"). As discussed, infra, after conducting a careful and thorough in camera and ex parte review of the FISA materials at issue, the Court denies Ho's Motion to Suppress and for Disclosure of FISA Materials (the "Motion"), dated Apr. 16, 2018 [dkt. no. 66], concludes that there is no need for a hearing on this issue and orders that the FISA materials and the Government's classified submissions be maintained under seal by the United States. Although "the Court is 'necessarily circumspect in [its] discussion'" given the classified nature of the materials, United States v. Medunjanin, No. 10-CR-19 1 (RJD), 2012 WL 526428, at *1 (E.D.N.Y. Feb. 16, 2012) (quoting United States v. Abu-Jihaad, 630 F.3d 102, 130 (2d Cir. 2010)), the rationale for this ruling is set forth in further detail below.
On December 18, 2017, Ho was charged with one count of Conspiracy to Violate the Foreign Corrupt Practices Act, in violation of 18 U.S.C. § 371, four violations of the Foreign Corrupt Practices Act, in violation of 15 U.S.C. §§ 78dd-2 and/or 78dd-3, and 18 U.S.C. § 2, one count of Conspiracy to Commit Money Laundering, in violation of 18 U.S.C. § 1956(h), and two counts of Money Laundering, in violation of 18 U.S.C. §§ 1956(a)(2)(A) and 2. (See Indictment, dated Dec. 18, 2017 [dkt. no. 24].)
On February 8, 2018, pursuant to 50 U.S.C. §§ 1806(c) and 1825(d), the Government notified Ho and the Court of its intent to introduce into evidence at trial information obtained pursuant to FISA. (See Notice of Intent to Use Foreign Intelligence Surveillance Act Information (the "Notice"), dated Feb. 8, 2018 [dkt. no. 45], 1.)
Ho's Motion followed on April 16, 2018. Ho asked the Court to review the FISA materials in camera and ex parte, andsuppress all FISA information that it determines was unlawfully obtained or derived from the FISA electronic surveillance and physical searches conducted by the Government. (See Defendant's Memorandum of Law in Support of His Motion to Suppress and for Disclosure of FISA Materials ("Def. Mem."), dated Apr. 16, 2018 [dkt. no. 67], 2.) Should the Court encounter questions in the FISA materials as to the lawfulness of the FISA activity or otherwise finds that the FISA activity warrants defense counsel's perspective or an adversarial proceeding during its review, Ho asked that the Court disclose to the defense, under the appropriate security procedures and protective orders, portions of the FISA materials to the extent necessary to facilitate an accurate determination of the legality of the electronic surveillance and physical searches. (Id.) Ho reserved the right to move for disclosure if "due process [so] require[d]" it under 50 U.S.C. §§ 1806(g), 1825(h) once the defense "had an opportunity to review the Government's anticipated production of classified discovery." (Id. at 6 n.3.)
In response, on July 13, 2018, the Government submitted a detailed unclassified memorandum in opposition to the Motion as well as a comprehensive classified response and Sealed Appendix. (See The Government's Unclassified Memorandum of Law in Opposition to the Defendant's Motion to Suppress and forDisclosure of FISA Materials ("Govt. Opp."), dated July 13, 2018 [dkt. no. 106].) The Government included with its opposition a Declaration and Claim of Privilege of the Attorney General of the United States ("Decl. of Attorney Gen."), dated July 13, 2018 [dkt. no. 106-1], in which the Attorney General asserted under oath that disclosure of the Government's classified FISA materials or an adversary hearing would harm the national security of the United States. (Id. at ¶ 3.) In its opposition, the Government refuted Ho's arguments regarding the lawfulness of the electronic surveillance and physical search as well as Ho's arguments in support of suppression and disclosure, arguing instead that the FISA materials should be maintained by the United States under seal. (See Govt. Opp. at 32-33.)
The Government also reserved the right to respond to a future argument by Ho that due process requires disclosure under 50 U.S.C. §§ 1806(g), 1825(h), (see id. at 15 n.15.), which Ho ultimately made in his October 3, 2018 reply. (See Defendant's Reply Memorandum of Law in Further Support of His Motion to Suppress and for Disclosure of FISA Materials ("Def. Reply"), dated Oct. 3, 2018 [dkt. no. 133], 2.) Thereafter, on October 30, 2018, the Government submitted a sur-reply on this issue. (See The Government's Sur-Reply in Response to the Defendant's Reply Memorandum of Law in Further Support of His Motion toSuppress and for Disclosure of FISA Materials ("Govt. Sur-Reply"), dated Oct. 30, 2018 [dkt. no. 154].)
Enacted in 1978, and subsequently amended, FISA establishes a statutory framework under which the executive branch may conduct electronic surveillance and physical searches and collect "foreign intelligence information," as defined at sections 1801(e) and 1821(1) of the statute, within the United States. See 50 U.S.C. § 1801 et seq. In passing FISA, Congress intended to settle the unresolved question of the applicability of the Fourth Amendment warrant requirement to electronic surveillance for foreign intelligence purposes and to state unequivocally that such surveillance, when carried out through the proper procedural channels, is lawful. Medunjanin, 2012 WL 526428, at *1 (citing United States v. Stewart, 590 F.3d 93, 126 (2d Cir. 2009)). "Accordingly, courts within the Second Circuit repeatedly have upheld the legality of FISA's provisions in light of the requirements imposed on the Government in conducting surveillance to acquire foreign intelligence information in particular cases." Medunjanin, 2012 WL 526428, at *1 (citing United States v. Abu-Jihaad, 531 F. Supp. 2d 299 (D. Conn. 2008), aff'd, 630 F.3d 102 (2d Cir. 2010); UnitedStates v. Sattar, No. 02-CR-395 (JGK), 2003 WL 22137012 (S.D.N.Y. Sept. 15, 2003), aff'd sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009); United States v. Rahman, 861 F. Supp. 247 (S.D.N.Y. 1994), aff'd, 189 F.3d 88 (2d Cir. 1999)). As originally enacted, FISA covered only electronic surveillance; however, it was amended in 1994 to cover physical searches as well. See In re Sealed Case, 310 F.3d 717, 722 (FISA Ct. Rev. 2002). As such, FISA's provisions regarding physical searches largely mirror those regarding electronic surveillance. See id.
FISA authorizes the Chief Justice of the United States to designate 11 district court judges to sit as judges on the Foreign Intelligence Surveillance Court ("FISC"). 50 U.S.C. § 1803(a)(1). The statute creates a procedure by which the executive branch may apply for a judicial order from the FISC, authorizing the use of electronic surveillance, physical searches, or both within the United States, where a significant purpose is the collection of foreign intelligence information. Id. §§ 1804(a)(6)(B), 1823(a)(6)(B).
The FISA application process begins with the Government's filing of an ex parte, under seal, application with the FISC. The application must be reviewed and approved by the Attorney General and must include certain specified information. Seeid. §§ 1804(a), 1823(a). FISA applications to conduct electronic surveillance pursuant to FISA must contain, among other things: (1) the identity of the federal officer making the application; (2) the identity, if known, or a description of the specific target of the electronic surveillance; (3) a statement of the facts and circumstances supporting probable cause to believe that the target is a "foreign power," as defined at 50 U.S.C. §§ 1801(a), 1821(1), or an "agent of a foreign power," as defined at 50 U.S.C. §§ 1801(b), 1821(1), and that each facility or place at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power; (4) a statement of the proposed minimization procedures to be followed; (5) a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance; (6) a certification, discussed below, of a high-ranking official; (7) a summary of the manner or means by which the electronic surveillance will be effected and a statement whether physical entry is required to effect the electronic surveillance; (8) the facts concerning and the action taken on all previous FISA applications involving any of the persons, facilities, or places specified in the application; and (9) the proposed duration of the electronic surveillance. See id. §§ 1804(a)(1)-(9).
An application to conduct a physical search pursuant to FISA must contain information similar to an application to conduct electronic surveillance except that an application to conduct a physical search must also contain a statement of the facts and circumstances that justify an applicant's belief that "the premises or property to be searched contains foreign intelligence information" and that each "premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from" the target. Id. §§ 1823(a)(1)-(8), (a)(3)(B)-(C).
Each FISA application must include a certification by the Attorney General or another high-ranking executive branch official with national security or defense responsibilities that includes the following: (1) that the certifying official deems the information...
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