United States v. Jumaev

• Decision Date: 08 December 2021
• Docket Number: No. 18-1296,18-1296
• Citation: 20 F.4th 518
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Bakhtiyor JUMAEV, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

20 F.4th 518

UNITED STATES of America, Plaintiff - Appellee,

v.Bakhtiyor JUMAEV, Defendant - Appellant.

No. 18-1296

United States Court of Appeals, Tenth Circuit.

FILED December 8, 2021

Corrected December 10, 2021

Caleb Kruckenberg, Washington, D.C., for Defendant-Appellant.

James C. Murphy, Assistant United States Attorney, Denver, Colorado (John C. Demers, Assistant Attorney General, National Security Division, U.S. Department of Justice, Washington, D.C.; Joseph Palmer and Steven L. Lane, Attorneys, National Security Division, U.S. Department of Justice, Washington, D.C.; Jason R. Dunn, United States Attorney, Denver, Colorado, with him on the briefs), for Plaintiff-Appellee.

Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and EID, Circuit Judge.

EID, Circuit Judge.

Defendant-appellant Bakhtiyor Jumaev and his co-defendant Jamshid Muhtorov were convicted, after separate trials, of conspiring to provide material support or resources to a designated foreign terrorist organization, and knowingly providing or attempting to provide material support or resources to a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B.¹ Both appealed, and, with the parties’ consent, we procedurally consolidated the cases. In an opinion issued concurrently with this one, we reject Muhtorov's claims, including his Sixth Amendment speedy trial claim, and affirm his convictions. Muhtorov , 20 F.4th at 580-81, 633-61. In this decision, we address Jumaev's claims, of which there are three. First, like Muhtorov, Jumaev asserts that his Sixth Amendment speedy trial right was violated. Second, Jumaev maintains that the district court abused its discretion by declining to severely sanction the government for its discovery conduct. Third, Jumaev contends that the extraterritorial search warrants for his home, phone, and computer were issued in violation of Rule 41 of the Federal Rules of Criminal Procedure. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that each of Jumaev's claims fails, and we affirm.

I

A

Jumaev is a refugee from Uzbekistan. In 2009, he met Muhtorov, a fellow Uzbekistan refugee. The two lived far apart—Jumaev, in Philadelphia, Pennsylvania, and Muhtorov in Denver, Colorado. But Philadelphia, it turned out, was one of the few cities in the United States where a trucking class was offered in Russian, and Muhtorov, who struggled with English but spoke Russian, wished to obtain a commercial trucker's license. Muhtorov decided to take the class in Philadelphia, and a mutual friend arranged for Muhtorov to stay with Jumaev while Muhtorov was there.

Jumaev and Muhtorov became friendly during Muhtorov's visit. The two had similar backgrounds. Both had left Uzbekistan due to government brutality, and both were Muslim. They also shared a mutual interest in the Islamic Jihad Union ("IJU"), a State Department–designated foreign terrorist organization with ties to al-Qaeda. After Muhtorov returned to Colorado, the two men stayed in contact.

Unbeknownst to Jumaev and Muhtorov, the government was intercepting their communications. Through warrantless surveillance of a non–United States person living abroad conducted pursuant to section 702 of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 ("Section 702"), Pub. L. No. 110-261, 122 Stat. 2436 (codified at 50 U.S.C. § 1881a ), the government had become aware that Muhtorov was connected to the IJU. Once Muhtorov was on the government's radar, the government used communications intercepted via Section 702 to support applications to surveil Muhtorov under the Foreign Intelligence Surveillance Act of 1978 ("FISA" or "traditional FISA"), Pub. L. No. 95-511, 92 Stat. 1783. The government also obtained information via traditional FISA surveillance that was eventually used against Jumaev.

In the course of surveilling Jumaev and Muhtorov, the government discovered that the men wished to provide money to the IJU for the "wedding," a code word that referred to the Jihadist cause. Specifically, they contemplated that Jumaev would send $300 to Muhtorov as a "wedding gift," and that Muhtorov would then give the money to the IJU.

Bank records show that a $300 check dated on or about March 10, 2011 was made out to Muhtorov by a known associate of Jumaev, Ilkhom Sobirov. On January 21, 2012, Muhtorov was arrested at Chicago O'Hare International Airport. He had on him a one-way ticket to Turkey, nearly $3,000 in cash, two new iPhones, and a new iPad.

B

On March 14, 2012, Jumaev was charged, via a criminal complaint filed in the District of Colorado, with conspiring to provide material support or resources to a designated foreign terrorist organization. That same day, a magistrate judge in the District of Colorado issued an arrest warrant for Jumaev and extraterritorial search-and-seizure warrants for Jumaev's home, cellular phone, and laptop computer in Philadelphia. Incriminating material was found on Jumaev's devices, and Jumaev was promptly arrested and detained pending trial. On March 20, 2012, a superseding indictment, charging both Jumaev and Muhtorov, added a second count as to Jumaev alleging that he knowingly provided or attempted to provide material support or resources to a designated foreign terrorist organization. On March 22, 2012, a second superseding indictment was returned, which deleted Jumaev's and Muhtorov's aliases from the indictment caption but was otherwise identical to the first superseding indictment. From the filing of the first superseding indictment onward, Jumaev's and Muhtorov's cases proceeded largely in tandem, with the two filing numerous joint motions and objections addressing discovery, scheduling, and other matters.

The pretrial proceedings over the next six years were complicated and protracted. Discovery, in particular, proved to be a bottleneck. Jumaev and Muhtorov together broadly requested (1) all statements they had made that were in the government's possession, by which they meant "not just the statements made or given to government investigators or agents, but also all recorded conversations or communications including e mails and other written communications that they [were] alleged to have authored, as well as any statements made to third parties in whatever form," App'x Vol. I at 463; (2) "any transcriptions or summaries of any such statements and translations into English thereof," id. ; (3) grand jury materials; and (4) exculpatory evidence under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The resulting discovery was voluminous, and, because many of the materials were classified, the government had to initiate numerous ex parte , in camera hearings pursuant to the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3, to determine whether otherwise discoverable classified material could be withheld from the defense. Additionally, the government had acquired a large number of recordings of Jumaev and Muhtorov speaking in Uzbek, Tajik, and Russian, and translating those materials was difficult because Uzbek and Tajik translators with security clearances were scarce.

On October 25, 2013, the government provided Muhtorov, but not Jumaev, notice that it would offer evidence at Muhtorov's trial that was obtained or derived from surveillance conducted pursuant to Section 702. On January 29, 2014, Muhtorov moved to suppress the evidence that was obtained or derived from Section 702 surveillance. Before Muhtorov filed his motion, the government informed Jumaev that he was not an "aggrieved person" as to the Section 702 acquisitions at issue—which was critical information, because by statute only an "aggrieved person" is permitted to "move to suppress ... evidence obtained or derived from ... electronic surveillance" conducted pursuant to FISA, including Section 702. 50 U.S.C. § 1806(e) ; see id. § 1881e(a)(1) (deeming Section 702 surveillance to be "electronic surveillance" that falls within the scope of 50 U.S.C. § 1806(e) ). Notwithstanding the fact that the government told him he had not been "aggrieved," Jumaev joined Muhtorov's motion.

The district court denied the joint motion on November 19, 2015, nearly two years after it was filed. With respect to Muhtorov, the district court resolved the motion on the merits in the government's favor. But with respect to Jumaev, the district court concluded, consistent with the representation the government had made to Jumaev before he joined Muhtorov's motion, that Jumaev was not an "aggrieved person" under 50 U.S.C. § 1806(e) and thus he could not seek suppression of Section 702 evidence nor bring an as-applied challenge to the constitutionality of the statute.²

On May 18, 2016, the government filed a third superseding indictment. The third superseding indictment added two new charges—counts 5 and 6—against Jumaev and Muhtorov for conspiring to provide personnel to a designated foreign terrorist organization knowing or intending that the personnel be used to prepare for or carry out a conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country. The government maintained that Jumaev and Muhtorov had attempted to help Jumaev's son study at a madrassa with ties to terrorism.

Eventually, the district court set a discovery deadline of September 1, 2016 and a trial date of March 13, 2017 for both Jumaev and Muhtorov. On the date of the discovery deadline, the government produced a hard drive containing approximately 39,000 files of recorded statements. This did not, however, prove to be the end of discovery. In fact, discovery productions continued well after the discovery deadline—though subsequent productions were much smaller than the one that occurred on September 1, 2016.

On October 17, 2016, Muhtorov filed a motion to sever his trial from Jumaev's. A little over a month later, the district court granted the...