United States v. Mohammad

• Decision Date: 11 September 2018
• Docket Number: Case No. 3:15-cr-358
• Citation: 339 F.Supp.3d 724
• Parties: UNITED STATES of America, Plaintiff v. Yahya Farooq MOHAMMAD, et al., Defendants
• Court: U.S. District Court — Northern District of Ohio

339 F.Supp.3d 724

UNITED STATES of America, Plaintiff

v.Yahya Farooq MOHAMMAD, et al., Defendants

Case No. 3:15-cr-358

United States District Court, N.D. Ohio, Western Division.

Filed September 11, 2018

Matthew W. Shepherd, Office of the U.S. Attorney - Cleveland Northern District of Ohio, Cleveland, OH, David C. Smith, District of Kansas, Kansas City, KS, Gregory R. Gonzalez, U.S. Department of Justice, Washington, DC, Michael J. Freeman, Office of the U.S. Attorney, Toledo, OH, for Plaintiff.

David Lee Klucas, Cherrefe A. Kadri, Toledo, OH, Linda G. Moreno, Tampa, FL, Christos N. Georgalis_AUSA, Northern District of Ohio, for Defendants.

UNCLASSIFIED MEMORANDUM OPINION

Jeffrey J. Helmick, United States District JudgeBefore me are several motions.¹ First, Defendants have requested the disclosure of Foreign Intelligence Surveillance Act ("FISA") material and the suppression of the evidence obtained or derived from electronic surveillance and physical searches conducted under FISA Titles I and III. (Doc, No. 148 at 1; Doc. No. 156 at 1.) These motions are denied.

Next, Defendants request the suppression of evidence obtained or derived from acquisitions made under FISA Section 702. (Doc. No. 146 at 1–2.) Defendants have also requested the disclosure of the FISA Section 702 materials relevant to this case. (Doc. No. 140 at 1.) These Section 702 motions are also denied.

And lastly, Defendants have requested an order directing the Government to provide notice and additional information about the surveillance it undertook in preparing this case, (Doc. No. 131 at 1.) This motion is denied as well.

I.

Defendants Yahya Farooq Mohammad, Ibrahim Zubair Mohammad, Sultane Roome Salim, and Asif Ahmed Salim were indicted on September 30, 2015, and charged with (Count 1) conspiracy to provide and conceal material support to terrorists, in violation of 18 U.S.C. § 2339A ; (Count 2) providing material support to terrorists, in violation of 18 U.S.C. § 2339A ; (Count 3) conspiracy to commit bank fraud, in violation of 18 U.S.C, § 1349 (brought against Farooq and Ibrahim only); and (Count 4) conspiracy to obstruct justice, in violation of 18 U.S.C. § 1512(k). (Doc. No. 1 at 12–72.)

The Government accuses Defendants of conspiring to provide, and actually providing, funds and other material support to Anwar al-Awlaki for the preparation and execution of terrorist attacks and killings. (See Doc. No. 1 at 12, 68.) The Government contends Defendants conspired to obstruct its investigation into their illicit fundraising by making false statements to the FBI and destroying or concealing records. (Id. at 65–67, 71–72.) And as to Farooq and Ibrahim, the Government additionally alleges that they conspired to raise money for al-Awlaki through various fraudulent credit card and PayPal transactions. (Id. at 68–71.)

Farooq has since pleaded guilty to the charges against him. (Doc. No. 284 at 1.) The other Defendants are scheduled to be tried on April 23, 2018. (Doc. No. 259 at 1.)

On December 21, 2015, the Government notified Defendants that it intends to offer into evidence, or otherwise use or disclose in any proceeding in this case, information obtained or derived from (i) electronic surveillance under FISA Title I (as to Sultane and Asif), (ii) physical searches under FISA Title III (as to Ibrahim, Sultane, and Asif), and (iii) acquisitions under FISA Section 702 (as to Ibrahim and Asif) under FISA. (See Doc. Nos. 28, 29, 30.)

In response to these notices, Defendants have filed several motions. In motions directed at FISA Titles I and III (Doc. Nos. 148, 156), Defendants have moved for (i) me to review the Government's applications for FISA surveillance and searches, (ii) the disclosure of the Government's applications for surveillance and searches, (iii) an evidentiary hearing pursuant to Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and (iv) the suppression of any evidence obtained or derived from illegally authorized or implemented surveillance or searches. (See Doc. No. 150 at 3; Doc. No. 156 at 1.)

In motions directed at FISA Section 702 (Doc. Nos. 140, 146), Defendants have requested (i) the disclosure of the Section 702 materials relevant to this case and (ii) the suppression of all evidence obtained or derived from acquisitions under Section 702. (Doc. No. 140 at 1; Doc. No. 146 at 1.)

And in a motion aimed broadly at all of the Government's surveillance and evidence-gathering methods (Doc. No. 131), Defendants request an order directing the Government to provide notice of "(1) each surveillance technique it used to obtain information about Defendant's communications or activities in its investigation; (2) the timing or duration of that surveillance; (3) the legal authority relied upon; and (4) the evidence obtained or derived from that surveillance." (Doc. No. 131 at 1.)

The Government opposes Defendants motions and has responded by filing classified and unclassified memoranda in opposition. The Government has also filed an affidavit signed by the Attorney General in which she declared under oath that "it would harm the national security of the United States to disclose or hold an adversary hearing with respect to the FISA Materials" in this matter. (Doc. No. 190 ¶ 3.) The filing of this affidavit triggers a statutory mandate directing me to "review in camera and ex parte the application, order, and such other materials relating to the [FISA] surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." 50 U.S.C. § 1806(f) ; see also id. § 1881e(a).

I have conducted the required in camera, ex parte review of the FISA materials and now address Defendants' motions. I first consider the motions for disclosure and suppression under FISA Titles I and III (Doc. Nos. 148, 156).

II.

Enacted in 1978, the Foreign Intelligence Surveillance Act, establishes a statutory framework under which executive branch agencies may collect foreign intelligence information. See United States v. Aziz , 228 F.Supp.3d 363, 366 (M.D. Pa. 2017) ; see 50 U.S.C. § 1801, et seq. As part of this framework, Congress created two specialized courts: the Foreign Intelligence Surveillance Court ("FISC") and the Foreign Intelligence Surveillance Court of Review ("FISCR"). 50 U.S.C. § 1803. FISA authorizes the Chief Justice of the United States to designate eleven United States District Judges to sit as judges of the FISC. Id. § 1803(a)(1). FISC judges consider ex parte applications submitted by the executive branch for electronic surveillance and physical searches. See id. The FISCR, which is composed of three United States District or Circuit Judges designated by the Chief Justice, reviews denials by the FISC of applications for FISA intelligence collection. Id. § 1803(b).

FISA, as amended in 2001 under the USA PATRIOT Act ("Patriot Act") and as amended again in 2008 under the FISA Amendments Act ("FAA"), consists of eight titles. As relevant here, Title I (codified at 50 U.S.C. §§ 1801 to 1813 ) deals with electronic surveillance, Title III (codified at 50 U.S.C. §§ 1821 – 1829 ) deals with physical searches, and Section 702 (part of Title VII and codified at 50 U.S.C. § 1881a ) deals with the acquisition of foreign intelligence information from electronic communication service providers. Unlike surveillance under Titles I and III, Section 702 surveillance targets non-United States persons located abroad. See 50 U.S.C. § 1881a(b).

A. FISA Titles I and III

Titles I and III of FISA provide detailed procedures for the authorization and execution of electronic surveillance and physical searches.

1. Emergency Authorization and Standard FISA Application

The Government typically must apply for and obtain an order from the FISC before conducting electronic surveillance under Title I or engaging in physical searches under Title III. See United States v. Huang , 15 F.Supp.3d 1131, 1136 (D.N.M. 2014). An exception to this general rule is when the Attorney General authorizes emergency surveillance or an emergency physical search. An emergency authorization is proper if the Attorney General

(A) reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance [or a physical search] to obtain foreign intelligence information before an order authorizing such surveillance [or physical search] can with due diligence be obtained;

(B) reasonably determines that the factual basis for the issuance of an order ... to approve such electronic surveillance [or physical search] exists;

(C) informs, either personally or through a designee, a judge having jurisdiction ... at the time of such authorization that the decision has been made to employ emergency electronic surveillance [or an emergency physical search]; and

(D) makes an application ... to a judge having jurisdiction ... as soon as practicable, but not later than 7 days after the Attorney General authorizes such surveillance [or physical search].

50 U.S.C. § 1805(e)(1) ; see id. § 1824(e)(1).

In all other circumstances, the Government must apply for and obtain an order from the FISC before engaging in electronic surveillance under Title I or a physical search under Title III. The application to conduct electronic surveillance or a physical search must include

(1) the identity of the [f]ederal officer making the application;

(2) the identity, if known, or a description of the specific target of the electronic surveillance [or physical search, and, in the case of a physical search, a description of the information, material, or property to be seized, reproduced, or altered];

(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that—

(A) the target of the electronic surveillance [or physical search] is a foreign power or an agent of a foreign power[, and, in the case of a physical search, the premises or property to be searched contains foreign intelligence information];

(B)

...