United States v. Muhtorov, Criminal Case No. 12–cr–00033–JLK

• Decision Date: 19 November 2015
• Docket Number: Criminal Case No. 12–cr–00033–JLK
• Citation: 187 F.Supp.3d 1240
• Parties: United States of America, Plaintiff, v. 1. Jamshid Muhtorov, 2. Bakhtiyor Jumaev, Defendants.
• Court: U.S. District Court — District of Colorado

187 F.Supp.3d 1240

United States of America, Plaintiff,

v.1. Jamshid Muhtorov, 2. Bakhtiyor Jumaev, Defendants.

Criminal Case No. 12–cr–00033–JLK

United States District Court, D. Colorado.

Signed November 19, 2015

Gregory Allen Holloway, David Alan Tonini, U.S. Attorney's Office, Denver, CO, Erin Martha Creegan, Kiersten Jennifer Korczynski, U.S. Department of Justice, Washington, DC, for Plaintiff.

Kathryn J. Stimson, Brian Rowland Leedy, Stimson Glover Stancil Leedy, LLC, David Barry Savitz, Law Office of David B. Savitz, Mitchell Baker, Mitch Baker, Attorney at Law, Warren Richard Williamson, Office of the Federal Public Defender, Denver, CO, Patrick C. Toomey, American Civil Liberties Union, New York, NY, for Defendants.

ORDER DENYING MOTION TO SUPPRESS EVIDENCE OBTAINED OR DERIVED UNDER FISA AMENDMENTS ACT OR FOR DISCOVERY (Doc. 520)

Kane, Judge.

Jamshid Muhtorov, together with his co-defendant Bakhtiyor Jumaev, is charged with providing material support to a designated terrorist organization, and attempt and conspiracy to do the same. His arrest on a one-way flight to Turkey was originally believed to be solely the result of warrantless surveillance and physical searches authorized under Title I and III of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801 –1811, 1821 –1829. Mr. Muhtorov moved to suppress that FISA–acquired evidence earlier in these proceedings, which motion I denied based on a determination, after an extensive in camera review of the classified materials submitted to the FISA Court, that there was probable cause to believe the target was an agent as described and therefore lawfully subject to those searches.

The matter is before me on a renewed Motion to Suppress, precipitated by the government's supplemental disclosure, nearly two years after Mr. Muhtorov's arrest, that some of the FISA–acquired evidence it intends to use against him in this case was derived from surveillance conducted under § 702 of the FISA Amendments Act of 2008 ("FAA").¹ Section 702, codified at 50 U.S.C. § 1881a, establishes procedures for the warrantless surveillance of targeted persons overseas "to acquire foreign intelligence information." Because communications to and from a target under § 702 are swept up without reference to who is sending them and without any determination of probable cause, the FAA results in the "incidental" interception, collection, and retention of communications from unconsenting U.S. persons including, in this case, Mr. Muhtorov.

Judicial review of § 702 authorizations is narrow, and until the Snowden leaks in 2013, the American public was led to believe that the government did not query or use FAA–acquired surveillance against non-targeted U.S. persons. See Clapper v. Amnesty Int'l, USA , ––– U.S ––––, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). The belated notice in this case was part of the Snowden fallout and the revelation, post–Clapper , that the Executive Branch does, in fact, use FAA–acquired information to investigate U.S. persons for suspected criminal activity, and that it intends to use it against Mr. Muhtorov here.

In his renewed Motion, Mr. Muhtorov moves to suppress all of the FAA–acquired evidence in this case and the "fruits thereof" on grounds that § 702's authorization and implementation procedures permit the government to collect and retain the communications of U.S. persons without a warrant and without probable cause in violation of the Fourth Amendment. Alternatively, as an "aggrieved person" entitled to challenge the lawfulness of the acquisitions directly under § 702, he argues the statute was unlawfully applied to him and seeks discovery into the means and methods of the government's FAA surveillance in this case to substantiate that claim. With the entry of the ACLU as co-counsel for the defense, briefing has emphasized the former, with Mr. Muhtorov serving as the Clapper –qualified² successor to the plaintiffs in that case, who were deemed insufficiently "harmed" by § 702's surveillance procedures to have standing to pursue a Fourth Amendment challenge. I find the Clapper argument attenuated by Mr. Muhtorov's status as a criminal defendant—rather than an incidental interceptee generally—and that his privacy-related Clapper claim is transformed by that fact. As a U.S. person and a criminal defendant, Mr. Muhtorov is entitled to the full panoply of statutory and constitutional protections afforded under § 702 and the U.S. Constitution. As a criminal defendant whose communications were captured pursuant to FISA Title I and III surveillance targeting an agent of a foreign power, however, these protections are counteracted to a significant extent by FISA and prerogatives long recognized in U.S. law regarding the Executive's primacy in the arena of foreign affairs and national security.

My concern as a trial court judge is with the individual criminal defendants before me and their rights to due process and a fair trial. The constitutional question at issue is one the Executive and courts have wrestled with since the Supreme Court's acknowledgment in the 1972 Keith³ case of the dilemma invited when warrantless national security intelligence surveillance uncovers evidence of crime. The question here is where—on the continuum between the largely unfettered authority the government enjoys in national security matters and foreign intelligence surveillance on the one hand, and its constitutionally limited authority to investigate its citizens for crimes—stands Mr. Muhtorov.⁴ It is a particularized inquiry of the most solemn kind. While I am convinced the FAA is susceptible to unconstitutional application as an end-run around the Wiretap Act and the Fourth Amendment's prohibition against warrantless or unreasonable searches, I am equally convinced that it was not unconstitutionally applied to Mr. Muhtorov. Based on my in camera review of the classified and unclassified documents made available to me, the FAA surveillance at issue was narrowly tailored to the government's foreign intelligence-gathering prerogatives. Because I find Section 702 to have been constitutionally applied in this case, the facial challenge to the FAA must be denied. I will address Mr. Muhtorov's request for specific, additional discovery and declassification in a separate order, after conducting one or more prefatory CIPA § 4 hearings on the subject.⁵

I.

BACKGROUND AND PROCEDURAL HISTORY.

Jamshid Muhtorov was born in Jizzak, Uzbekistan, when that country was still under communist rule. He is the oldest of five children. After graduating from a technical university, Mr. Muhtorov was offered a position with the Ezgulik Human Rights Society in Uzbekistan, becoming the head of the Jizzak branch in 2003.

During the course of his work with Human Rights Watch, foreign embassies and NGOs, Muhtorov came under the increasing scrutiny of Islam Karimov, the last president of Soviet Uzbekistan who became and remains the first president of independent Uzbekistan. This scrutiny intensified in May 2005, and in 2006, according to Human Rights Watch, Mr. Muhtorov was himself threatened and beaten. With the help of other activists, Mr. Muhtorov fled to Kyrgystan, and then, with his wife and children to the United States.

Mr. Muhtorov and his family were admitted to the United States as political refugees in February 2007. They settled in Colorado. Mr. Muhtorov has no criminal record and, until his arrest in January of 2012, had never been arrested. He is a legal permanent resident of the United States.⁶

The operative Second Superseding Indictment (Doc. 59) charges Mr. Muhtorov with two counts of providing and attempting to provide material support and resources to the Islamic Jihad Union (IJU), and Muhtorov and Jumaev with one count of conspiring to commit that offense, in violation of 18 U.S.C. § 2339B. If convicted, each faces a maximum term of imprisonment of 15 years.

The allegations in the indictment were initially attributed to information gleaned in investigations of Mr. Muhtorov's computer, email accounts, private residence, and personal effects. See Criminal Compl. (Doc. 1)(and attached Affid. of FBI Special Agent Hale). When the government formally notified Mr. Muhtorov that it intended to use FISA–acquired information against him in the proceedings (Doc. 12), Mr. Muhtorov exercised his right as an "aggrieved person" under the statute and moved to suppress. (Docs. 14, 125). I denied that Motion in a written Order issued September 24, 2012 (Doc. 196), applying the standards set forth at 50 U.S.C. § 1806(e) & (f) and finding the surveillance and physical searches at issue were lawfully authorized and conducted. I specifically concluded that the attested facts submitted to the FISA Court supported a finding of probable cause to believe the target was an "agent[ ] of a foreign power," and concluded that the FISA application and related materials should not, in the interest of national security, be disclosed. Id. p. 3. I denied Mr. Jumaev's related Motion on the same basis.

On October 25, 2013, the government filed a Second Notice of Intent to Use FISA–acquired Information (Doc. 457), formally notifying Mr. Muhtorov of its intent to use information obtained or derived from the acquisition of foreign intelligence information under the Foreign Intelligence Surveillance Act of 1978, "as amended," and citing 50 U.S.C. § 1881a. Given its timing in the Snowden–Clapper aftermath, the Notice was clearly intended to notify Mr. Muhtorov that he was a member of the previously undisclosed class of U.S. persons whose international communications had been monitored and acquired incidently to surveillance conducted under § 702 of the FAA. Viewing the affidavit informing the publicly available Complaint in this case in that light, it is clear that FAA surveillance overseas resulted in the acquisition of communications later traced to Muhtorov. See Affid. of FBI Agent Hale (attached as Ex. A to Complaint (Doc. 1)). What...