United States v. Mohamud

• Decision Date: 24 June 2014
• Docket Number: Criminal Case No. 3:10-CR-00475-KI-1
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MOHAMED OSMAN MOHAMUD, Defendant.
• Court: U.S. District Court — District of Oregon

UNITED STATES OF AMERICA, Plaintiff, v. MOHAMED OSMAN MOHAMUD, Defendant.

Criminal Case No. 3:10-CR-00475-KI-1

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

Dated: June 24, 2014

OPINION AND ORDER

S. Amanda Marshall

United States Attorney

District of Oregon

Ethan D. Knight

Pamala R. Holsinger

United States Attorney's Office

John P. Carlin

George Z. Toscas

J. Bradford Wiegmann

Tashina Gauhar

Jolie F. Zimmerman

National Security Division

United States Department of Justice

Attorneys for Plaintiff

Steven T. Wax

Federal Public Defender

Stephen R. Sady

Lisa Hay

Office of the Federal Public Defender

Attorneys for Defendant

KING, Judge:

The Foreign Intelligence Surveillance Court of Review ("FISA Court of Review") has explained the difficult exercise which I now undertake:

Our government is tasked with protecting an interest of utmost significance to the nation-the safety and security of its people. But the Constitution is the cornerstone of our freedoms, and government cannot unilaterally sacrifice constitutional rights on the altar of national security. Thus, in carrying out its national security mission, the government must simultaneously fulfill its constitutional responsibility to provide reasonable protections for the privacy of United States persons. The judiciary's duty is to hold that delicate balance steady and true.

In re Directives [Redacted] Pursuant to Section 105B of FISA, 551 F.3d 1004, 1016 (FISA Ct. Rev. 2008).

Title I and Title III of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. §§ 1801-1812, 1821-1829, allow electronic surveillance and physical search after obtaining a FISA warrant from the Foreign Intelligence Surveillance Court ("FISC"). The government provided a FISA notification to defendant at his first appearance, advising him it intended to use evidenceobtained under Title I and Title III. Defendant unsuccessfully relied on an entrapment defense. A jury convicted him in January 2013 of attempting to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2)(A).

Section 702 of the FISA Amendments Act of 2008 ("FAA"), 50 U.S.C. § 1881a (part of Title VII of FISA, which is codified at §§ 1881a-1881g), permits, subject to statutory requirements, the targeting of non-United States persons reasonably believed to be located outside the United States in order to acquire foreign intelligence information.

Unlike traditional FISA surveillance, § 1881a does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power. And, unlike traditional FISA, § 1881a does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur.

. . . .

Section 1881a mandates that the Government obtain the Foreign Intelligence Surveillance Court's approval of "targeting" procedures, "minimization" procedures, and a governmental certification regarding proposed surveillance.

Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1144-45 (2013) (internal citations omitted).

On November 19, 2013, the government filed a Supplemental FISA Notification:

This supplemental notice is being filed as a result of the government's determination that information obtained or derived from Title I FISA collection may, in particular cases, also be "derived from" prior Title VII FISA collection. Based upon that determination and a recent review of the proceedings in this case, the United States hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. §§ 1806(c) and 1881e(a), that the government has offered into evidence or otherwise used or disclosed in proceedings, including at trial, in the above-captioned matter information derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. § 1881a.

Defendant intended to challenge the constitutionality of Title VII and claimed he needed broad discovery to provide the court with the full factual context surrounding the legal issues relevant to the newly-noticed surveillance. On March 19, 2014, I denied defendant's motion seeking this discovery. Now before the court are defendant's Motion for Vacation of Conviction and Alternative Remedies of Dismissal of the Indictment, Suppression of Evidence, and New Trial for the Government's Violation of the Pretrial Notice Statute [500], defendant's Alternative Motion for Suppression of Evidence and a New Trial Based on the Government's Introduction of Evidence at Trial and Other Uses of Information Derived from Unlawful Electronic Surveillance [502], and defendant's Second Motion for a New Trial [504]. Generally speaking, defendant seeks suppression of evidence obtained or derived through § 702 or fruits of that evidence, as well as other related or alternative relief. I deny the motions for the reasons I explain below. I am also filing an accompanying classified opinion to explain some of my reasoning.

DISCUSSION

I. Motion for Vacation of Conviction and Alternative Remedies of Dismissal of the Indictment, Suppression of Evidence, and New Trial for the Government's Violation of the Pretrial Notice Statute

Under 50 U.S.C. § 1881e(a), information acquired under § 702 is deemed information acquired from an electronic surveillance and is subject to the notice requirement in 50 U.S.C. § 1806(c). Defendant argues the government violated the notice statute by failing to provide notice of § 702 surveillance in the original pretrial FISA notification. As a remedy, defendant seeks dismissal of the indictment or a new trial after suppression of evidence.

Defendant first objects to what he contends are contradictory statements in the government's briefing for the discovery motion I just denied. Defendant sees a contradiction between: (1) the government's statement that it had not previously considered if evidence obtained through electronic surveillance under Title I/III could also be considered as a matter of law to be derived from a prior collection under Title VII and; (2) the government's statement that the prosecutors acted in accordance with the then-current standard practice.

The government explains it provided the Supplemental Notification after deciding evidence obtained under Title I/III could also be considered to be derived from prior collection under Title VII as a matter of law. A changed legal opinion is a different issue from following the standard practice up to that point. I do not see the contradiction troubling defendant.

Next, defendant claims he has established a prima facie case regarding the circumstances surrounding the statutory violation, relying on speculation and public disclosures about Clapper. He argues that to rebut this prima facie case, the government must file affidavits to support its explanation concerning the reason it filed the Supplemental Notification. This is not a situation, however, where the law supports presumptions based on a prima facie case.¹

I now turn to the legal arguments defendant brings forward, the first of which is based on cases in effect when Congress enacted FISA. Because the FISA notice provision requires notice to both the aggrieved person and the court, defendant argues dismissal of the indictment or a new trial provide the only mechanisms to vindicate the separation of powers doctrine and to effectuate the choice the Supreme Court has imposed on the government. Defendant relies on a trilogy of SupremeCourt cases requiring the government to choose between disclosure and dismissal of the indictment: Jencks v. United States, 353 U.S. 657, 672, 77 S. Ct. 1007 (1957) (defendant was entitled to reports of government witnesses testifying at trial; the criminal action must be dismissed if the government, on the ground of privilege, elects not to comply with an order to produce), Roviaro v. United States, 353 U.S. 53, 61, 77 S. Ct. 623 (1957) (if an informer's identity is relevant and helpful to the defense or is essential to a fair trial, the government must disclose the identity or dismiss the indictment), and Alderman v. United States, 394 U.S. 165, 184, 89 S. Ct. 961 (1969) (in the context of electronic surveillance with no statutory notice requirement, government must disclose surveillance records needed to determine the legality of the surveillance or dismiss the indictment). Defendant contends these cases provide a framework for protection of the separation of powers because they enforce legislative and judicial constraints on executive over-reaching in prosecution.

The government's response is based on FISA's provision under 50 U.S.C. § 1806(e) which allows defendant to move to suppress evidence unlawfully acquired. Because this remedy would put defendant in a similar position to the government having provided the Supplemental Notification before trial, the government argues dismissal of the indictment is unnecessary. The government contends defendant's trilogy of Supreme Court cases do not apply to his situation because, here, the government did not affirmatively withhold disclosure of the use of the Title VII-derived evidence in defiance of a court order.

Congress was aware of Jencks, Roviaro, and Alderman when it enacted FISA, yet it chose to provide the single remedy of suppression, not dismissal of the indictment, when the government unlawfully acquired evidence under the statute. Defendant has argued no persuasive reason to limit the term "unlawfully acquired . . . under the statute" to exclude a failure to provide the statutorynotice. In addition, as the government notes, FISA even anticipates a suppression motion may be filed after trial: "Such a motion shall be made before the trial . . . unless . . . the person was not aware of the grounds of the motion." 50 U.S.C. § 1806(c). If Congress wished to provide a harsher penalty for a notification violation, it could...