United States v. Muhtorov
Decision Date | 08 December 2021 |
Docket Number | No. 18-1366,18-1366 |
Citation | United States v. Muhtorov, 20 F.4th 558 (10th Cir. 2021) |
Parties | UNITED STATES of America, Plaintiff - Appellee, v. Jamshid MUHTOROV, Defendant - Appellant. Peter Fenn ; Loch Johnson; David Medine; Sharon Bradford Franklin; Brennan Center for Justice at NYU School of Law; National Association of Criminal Defense Lawyers, Amici Curiae. |
Court | U.S. Court of Appeals — Tenth Circuit |
Patrick Toomey, American Civil Liberties Union Foundation, New York, New York (Ashley Gorski, American Civil Liberties Union Foundation, New York, New York, Virginia L. Grady, Federal Public Defender, Denver, Colorado, John C. Arceci, Assistant Federal Public Defender, Denver, Colorado, with him on the briefs), for Defendant-Appellant.
Joseph Palmer, National Security Division, U.S. Department of Justice, Washington, D.C. (Steven L. Lane, National Security Division, U.S. Department of Justice, Washington, D.C., Jason R. Dunn, former United States Attorney, Denver, Colorado, Matthew R. Kirsch, United States Attorney, Denver, Colorado, James C. Murphy, Assistant United States Attorney, District of Colorado, Denver, Colorado, John C. Demers, Assistant Attorney General, Denver, Colorado, with him on the briefs), for Plaintiff-Appellee.
Andrew Crocker and Aaron Mackey, Electronic Frontier Foundation, San Francisco, California, filed an amicus brief on behalf of Church Committee Staff in support of Defendant-Appellant.
Andrew C. Lillie, Jessica Black Livingston, Nathaniel H. Nesbitt, and Mark D. Gibson of Hogan Lovells US LLP, Denver, Colorado filed an amicus brief on behalf of David Medine and Sharon Bradford Franklin in support of Defendant-Appellant.
Elizabeth Goitein, of The Brennan Center for Justice at NYU School of Law, Washington, D.C., filed amicus brief in support of Defendant-Appellant.
Norman R. Mueller of Haddon, Morgan and Foreman, P.C., Denver, Colorado, and John D. Cline, Law Office of John D. Cline, San Francisco, California, filed an amicus brief on behalf of National Association of Criminal Defense Lawyers in support of Defendant-Appellant.
Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and EID, Circuit Judge.
i. Step One – Development of procedures...587
ii.Step Two – Submission for FISC review...588
iii.Step Three – Section 702 surveillance...588
iv.Step Four – Database storage...589
a) Title III case law...595
b) Applying the Kahn and Donovan dicta to the Fourth Amendment...595
c) Applying the Kahn and Donovan dicta to foreign intelligence surveillance – FISCR, Second Circuit, and NinthCircuit...596
1) Plain view and incidental collection without a warrant...598
2) Foreign intelligence surveillance context – Section 702's statutory requirements...599
3) Incidental overhear...600
4) Mr. Muhtorov's objections...600
i. Government's interest...603
ii.Mr. Muhtorov's privacy interest...603
iii.Privacy safeguards...603
iv.Totality of the circumstances...603
i. FISC does not trench upon executive prerogatives...615
ii.FISC performs appropriate judicial functions...615
iii.Additional considerations...616
1) Deference to Congress...616
2) Section 702 furthers privacy interests...617
1) Caused by defendant...640
2) Caused by the prosecution...640
3) Caused by neither the defendant nor the prosecution...640
4) Overall considerations...640
a) Mr. Muhtorov's discovery requests...644
b) CIPA...644
c) Translation issues...645
d) Government's discovery conduct...646
i. Presumption of prejudice...653
ii.Specific evidence of prejudice – three types...653
1) Oppressive pretrial incarceration...654
2) Anxiety and concern...654
3) Impairment to the defense...654
c) Steps to preserve evidence...655
i. Presumptive prejudice...655
ii.Specific prejudice...655
1) Oppressive pretrial incarceration...655
2) Anxiety and concern...656
3) Impairment of the defense...657
Acronym | Title |
AG | Attorney General |
AUMF | Authorization for the Use of Military Force |
CIA | Central Intelligence Agency |
CIPA | Classified Information Procedures Act |
DNI | Director of National Intelligence |
FAA | FISA AmendmentsAct of 2008 |
FBI | Federal Bureau of Investigation |
FISA | Foreign Intelligence Surveillance Act of 1978 |
FISC | Foreign Intelligence Surveillance Court |
FISCR | Foreign Intelligence Surveillance Court of Review |
FOIA | Freedom of Information Act |
IJU | Islamic Jihad Union |
ISP | Internet Service Provider |
NSA | National Security Agency |
PAA | Protect America Act of 2007 |
Section 702 | Section 702 of the Foreign Intelligence Surveillance AmendmentsAct of 2008 |
STA | Speedy Trial Act of 1974 |
TSA | Transportation Security Administration |
TSP | Terrorist Surveillance Program |
A jury convicted Jamshid Muhtorov on three counts of conspiring and providing material support to the Islamic Jihad Union ("IJU"), a State Department-designated foreign terrorist organization with ties to al-Qaeda, in violation of 18 U.S.C. § 2339B.On appeal, he argues the foreign intelligence surveillance methods the government used to collect his communications were unconstitutional.He also questions the district court's refusal to disclose the classified materials the government used to secure approvals for the surveillance, the types of surveillance techniques used, and the evidence derived therefrom.Finally, Mr. Muhtorov claims his Sixth Amendment speedy trial right was violated.Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
The following provides an overview of (A) Mr. Muhtorov's criminal conduct and the government's investigation, (B) the procedural history between arrest and trial, and (C) the issues Mr. Muhtorov raises on appeal.We provide additional background during our discussion of each issue.
Mr. Muhtorov arrived in the United States in 2007 as a political refugee from Uzbekistan and became a legal permanent resident.In 2009, he met Bakhtiyor Jumaev, a fellow Uzbekistan refugee with a similar background.The two became friends and developed a shared interest in the IJU.
The government first became aware of Mr. Muhtorov's connection to the IJU through warrantless surveillance conducted under Section 702 of the Foreign Intelligence...
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