United States v. Nassif Sami Daher D-2, Case No. 18-20559

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: Honorable Nancy G. Edmunds
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. NASSIF SAMI DAHER D-2 Defendant.
• Docket Number: Case No. 18-20559
• Decision Date: 24 December 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
NASSIF SAMI DAHER D-2 Defendant.

Case No. 18-20559

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

December 24, 2020

Honorable Nancy G. Edmunds

ORDER ON DEFENDANT'S MOTION TO DISCOVER AND MOTION TO DISMISS[28] [43]

In this criminal case, Defendant is charged with four counts of wire fraud in violation of 18 U.S.C. §§ 1343, 2. The charges relate to allegations of food stamp fraud. On September 12, 2018, the Government provided notice to Defendant and the Court that it intends to offer into evidence, or otherwise use or disclose information that was obtained or derived from electronic surveillance conducted under the Foreign Intelligence Surveillance Act ("FISA"). (ECF No. 21.)

After receiving this notice, Defendant filed two related motions that are currently pending before the Court: Defendant's motion for discovery of evidence (ECF No. 28) and Defendant's motion to dismiss his indictment (ECF No. 43). Defendant argues the Government's use of FISA materials in this case is improper, and he seeks discovery and suppression of the materials, and ultimately dismissal of the charges against him. The Government opposes the motions. As discussed below, the Court conducted an ex parte and in camera review of the FISA materials as required by 50 U.S.C. § 1806(f). Having completed its review and having considered the entire record in this matter as well as the

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relevant statutory and legal authorities, the Court finds that Defendant's motions should be DENIED.

I. BACKGROUND

On August 14, 2018, a grand jury in the Eastern District of Michigan returned an indictment charging Defendant and a co-defendant with multiple counts of wire fraud in violation of 18 U.S.C. §§ 1343, 2. The indictment accuses Defendant and his co-defendant of engaging in a scheme to obtain Supplemental Nutrition Assistance Program funds by fraudulent means. The indictment identifies fourteen allegedly fraudulent wire transfers related to this scheme, and Defendant is alleged to have been involved with at least four of those transfers.¹

On September 12, 2018, the Government provided notice pursuant to 50 U.S.C. § 1806(c) of its intent to offer into evidence or otherwise use information obtained or derived from electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA" or "the Act"). Thereafter, Defendant filed the instant motion seeking, among other things, disclosure and then suppression of the FISA materials.²

Defendant was born in Michigan and is an American citizen. He is of Lebanese descent, meaning his ethnic heritage is Lebanese. He claims he is not an agent of a foreign power. And as he points out, he has not been charged with a crime related to national security or terrorism. To this end, Defendant contends the use of FISA materials is improper in the criminal prosecution of an American citizen for an entirely "domestic" criminal prosecution. He also claims that the FISA warrants at issue here were improper

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because in his view, the primary purpose of the warrants and subsequent surveillance was for a domestic criminal prosecution.

II. DISCUSSION

A. Overview of FISA and the Role of the Court

The Foreign Intelligence Surveillance Act of 1978 (as previously defined, "FISA" or "the Act") prescribes the methods whereby the Government may conduct electronic surveillance and physical searches of a "foreign power" or "agent of a foreign power" after a high-ranking official certifies that a "significant purpose" of the search is to collect "foreign intelligence information."³ If authorized by the United States Attorney General, information derived from FISA surveillance and searches may be used in subsequent criminal prosecutions. 50 U.S.C. §§ 1806(b) and 1825(c). The statute does not expressly limit the types of criminal prosecutions in which such information can be used. However, before the FISA materials may be introduced, the Government must provide notice to the court and to the party against whom the evidence will be introduced. 50 U.S.C. §§ 1806(c) and 1825(d).

After receiving notice that the Government intends to use FISA materials, the "aggrieved party"—the party against whom the surveillance or search was conducted—may move to discover and/or to suppress the evidence based on the grounds that: (1) the information was unlawfully acquired; or (2) the electronic surveillance or physical search did not conform to the order authorizing the action. 50 U.S.C. §§ 1806(e) and 1825(f).

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The motion must be made to the district court in which the matter is pending, and the district court has the jurisdiction to determine whether the surveillance or search was illegal or not in conformity with the order of the FISC. 50 U.S.C. §§ 1806(f) and 1825(g).

Once the district court receives a motion to discover or suppress FISA materials, the court may address the motion as it would in any other criminal case unless the Attorney General files an affidavit declaring that disclosure of the evidence or an adversarial hearing on the motion would harm the national security of the United States. 50 U.S.C. §§ 1806(f) and 1825(g).

If, as in the present case, the Attorney General files such an affidavit, the district court must "review in camera and ex parte the application, order, and such other materials relating to the surveillance [or physical search] as may be necessary to determine whether the surveillance [or physical search] of the aggrieved person was lawfully authorized and conducted." 50 U.S.C. §§ 1806(f) and 1825(g). When reviewing the FISA materials in camera and ex parte, the district court may disclose the applications, orders, or other materials related to the surveillance or search to the aggrieved person "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance [or search]." 50 U.S.C. §§ 1806(f) and 1825(g).

Accordingly, when a motion to suppress by the defendant is followed by the affidavit of the Attorney General, in camera and ex parte review of the FISA materials is the rule, and disclosure of any such evidence to the criminal defendant is the exception. See United States v. Belfield, 692 F.2d 141, 147 (D.C.Cir. 1982) ( "The language [of the FISA statutes] clearly anticipates that an ex parte, in camera determination is to be the rule. Disclosure and an adversary hearing are the exception, occurring only when

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necessary.") Disclosure should only take place where the court is unable to make an accurate determination as to the legality of the evidence. See United States v. Daoud, 755 F.3d 479, 482 (7th Cir.), supplemented, 761 F.3d 678 (7th Cir. 2014) (discussing 50 U.S.C. 1806(f)). If the court can make an accurate determination without disclosure to the...