United States v. Huang
| Decision Date | 22 April 2014 |
| Docket Number | Criminal No. 12–1246 WJ. |
| Citation | 15 F.Supp.3d 1131 |
| Parties | UNITED STATES of America, Plaintiff, v. Jianyu HUANG, Defendant. |
| Court | U.S. District Court — District of New Mexico |
OPINION TEXT STARTS HERE
Motion denied. Jonathon M. Gerson, Albuquerque, NM, for Plaintiff.
THIS MATTER comes before the Court upon Defendant's Amended Motion for Disclosure of FISA Applications and Certifications and to Suppress the Fruits of Interceptions Made Pursuant to the FISA Search Warrant, filed January 21, 2014 (Doc. 128). Having reviewed the parties' briefs and applicable law, the Court finds that Defendant's motion is not well-taken and, therefore, is denied.2
Under the FISA Amendments Act of 2008, three main requirements must be met for the FISC to approve the application. First, the Government must establish, and a judge must find, probable cause to believe that the “target” of the surveillance is a “foreign power” or an “agent of a foreign power,” and that the target is using, or is about to use, the “facility” that is the subject of the order. 50 U.S.C. § 1804(a)(3).3 Second, the application must include “minimization procedures” for the surveillance as defined by the statute. 50 U.S.C. § 1801(h)(3); § 1805(a)(3). Third, the Attorney General must approve the application and a high-ranking national security official must certify that the information being sought is foreign intelligence information; that obtaining foreign intelligence information is a “significant purpose” of the surveillance; and that the information cannot reasonably be obtained by normal investigative techniques.4
Once approved by the Attorney General, the application is submitted to the FISC and assigned to one of its judges. The FISC may approve the requested electronic surveillance, physical searches, or both, only upon finding, among other things, that:
(1) the application has been made by a “Federal officer” and has been approved by the Attorney General;
(2) there is probable cause to believe that (A) the target of the electronic surveillance and/or physical search is a foreign power or an agent of a foreign power, and that (B) the facilities or places at which the electronic surveillance is directed are being used, or are about to be used, by a foreign power or an agent of a foreign power (or that the premises or property to be searched is, or is about to be, owned, used, possessed by, or is in transit to or from, a foreign power or an agent of a foreign power);
(3) the proposed minimization procedures meet the statutory requirements set forth in 50 U.S.C. § 1801(h) (electronic surveillance) and 50 U.S.C. § 1821(4) (physical search);
(4) the application contains all of the statements and certifications required by Section 1804 or Section 1823; and (5) if the target is a United States person, that the certifications are not clearly erroneous.
50 U.S.C. §§ 1805(a)(1)-(4), 1824(a)(1)-(4). If the court approves the application, the court's order must specify where and how the surveillance will be carried out, must limit the duration of the surveillance, and must require compliance with FISA's minimization procedures. §§ 1805(c)(1)(B)-(E), (c)(2)(A), (e)(1).
II. Review by District Court
The purpose of judicial review is to ascertain whether the FISA information was lawfully acquired. In evaluating the legality of the FISA collection, the district court's review should determine: (1) whether the application established the probable cause required by FISA; (2) whether the certification submitted by the Executive Branch in support of a FISA application was properly made; and (3) whether the collection was properly minimized. See U.S. v. Abu–Jihaad, 630 F.3d 102, 130–31 (2d Cir.2010).
FISA envisions that initial review of a FISC Order is to be conducted in camera and ex parte. On the filing of the Attorney General's affidavit or declaration, the court “may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance [or physical search] only where such disclosure is necessary to make an accurate determination of the legality of the surveillance [or search].” 50 U.S.C. §§ 1806(f), 1825(g) (emphasis added). In this case, the Attorney General has filed the requisite affidavit (“Declaration and Claim of Privilege”) that triggers this process and has declared that disclosure or an adversary hearing would harm national security. See Ex. 1 (Doc. 207–1). The constitutionality of FISA's in camera, ex parte review provisions has been affirmed by every federal court that has considered the matter. See, e.g., El–Mezain, 664 F.3d at 567; Abu–Jihaad, 630 F.3d at 117; United States v. Damrah, 412 F.3d 618 (6th Cir.2005); U.S. v. Belfield, 692 F.2d 141 (D.C.Cir.1982) ().
The in camera, ex parte review of FISA applications and related materials is done in order to determine whether FISA information was lawfully acquired and whether the surveillance and searches were made in conformity with an order of authorization or approval. Disclosure may be ordered only if the district court cannot make an accurate determination of the legality of the surveillance or search. Such a need might arise:
if the judge's initial review revealed potential irregularities such as “possible misrepresentation of fact, vague identification of the persons to be surveilled or surveillance records which include [ ] a significant amount of nonforeign intelligence information, calling into question compliance with the minimization standards contained in the order.” Senate Report 95–604, at 58, reprinted in 1978 U.S.Code Cong. & Ad. News 3904, 3960. In general, however, “ex parte, in camera determination is to be the rule.”
United States v. Duggan, 743 F.2d 59, 78 (2d Cir.1984) (emphasis added); 50 U.S.C. § 1806(f) (). This means that the propriety of the disclosure of any FISA applications or orders to the defendant may not even be considered unless and until the district court has first concluded that it is unable to make an accurate determination of the legality of the acquired collection of information after reviewing the government's submissions (and any supplemental pleadings that the district court may request) in camera and ex parte. See El–Mezain, 664 F.3d at 565; United States v. Abu–Jihaad, 630 F.3d 102, 129 (2d Cir.2010). Further, if the district court is able to make an accurate determination of the legality of the electronic surveillance, physical searches, or both, based on its in camera, ex parte review of the materials submitted by the United States, then the court may not order disclosure of any of the FISA materials to the defense, unless otherwise required by due process. El–Mezain, 664 F.3d at 566; Duggan, 743 F.2d at 78.
The Tenth Circuit has not determined whether a de novo or deferential standard of review applies to FISC's probable cause determination. The government contends that the material under review here will satisfy either standard, but concedes that many courts have reviewed the FISC's probable cause determination from a de novo standard, and only a small group of other courts, including Abu–Jihaad in the Second Circuit, have afforded due deference to the findings of the FISC.5 Notwithstanding the government's urging to adopt a deferential standard and absent specific guidance from the Tenth Circuit on this legal issue, the Court decided in this particular case to conduct a de novo review of the FISC's probable cause determination.
III. Probable Cause
The probable cause standard applicable to a review of a FISA warrant is different from probable cause determinations for search warrants in other criminal cases. FISA requires findings of probable cause to believe that the target is a foreign power, or an agent of a foreign power, and that each facility or place at which the electronic surveillance is directed is being used, or is about to be used, or that the property or premises to be searched is, or is about to be, owned, used, possessed by, or is in transit to or from, a foreign power or an agent of a foreign power. See United States v. El–Mezain, 664 F.3d 467, 564 (5th Cir.2011) (); see also United States v. United States District Court [Keith, J.], 407 U.S. 297, 308, 321–22, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (); see also U.S. v. Duggan, 743 F.2d 59, 72 (C.A.N.Y., 1984) investigations differ substantially from those presented in traditional criminal investigations); see also Abu–Jihaad, 630 F.3d at 130–31; U.S. v. Cavanagh, 807 F.2d 787, 790 (9th Cir.1987) (citing United States v. United States District Court (Keith), 407 U.S. 297, 322, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). This “different, and arguably lower, probable cause standard ... reflects the purpose for which FISA search orders are issued.” U.S. v. Ahmed, No. 1:06–CR0147, 2009 U.S. Dist. Lexis 120007 at *21–22 (N.D.Ga. Mar. 19, 2009) () (citing ...
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