United States v. Wright, No. 18-1039

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBARRON, Circuit Judge.
Citation937 F.3d 8
Parties UNITED STATES of America, Appellee, v. David WRIGHT, Defendant, Appellant.
Decision Date28 August 2019
Docket NumberNo. 18-1039

937 F.3d 8

UNITED STATES of America, Appellee,
v.
David WRIGHT, Defendant, Appellant.

No. 18-1039

United States Court of Appeals, First Circuit.

August 28, 2019


Michael Tumposky, with whom Jessica Hedges, James Haynes, Boston, MA, Forest O'Neill-Greenberg, and Hedges & Tumposky, LLP were on brief, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, and Pamela Gaulin, Harvard Law School, were on brief, for appellee.

Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

BARRON, Circuit Judge.

937 F.3d 13

Beginning sometime in 2014, David Wright, Nicholas Rovinski, and Usaamah Rahim -- Wright's uncle -- engaged in discussions about the Islamic State of Iraq and Syria ("ISIS"), which the United States has designated as a Foreign Terrorist Organization under § 219 of the Immigration and Nationality Act. See 8 U.S.C. § 1189 ; 80 Fed. Reg. 58,804, 58,804 (Sept. 30, 2015).1 The discussions allegedly involved a "high-profile" ISIS spokesperson and concerned a plot to fulfill a fatwa (ISIS decree) issued by "ISIS leaders" to behead Pamela Geller - - an American citizen living in this country -- for insulting the Prophet Mohammed. The discussions also concerned plans to kill police officers in the United States and to establish a "martyrdom" cell in this country.

Federal Bureau of Investigation ("FBI") agents electronically monitored the three men's communications, including through surveillance conducted pursuant to the Foreign Intelligence Surveillance Act ("FISA"). See 50 U.S.C. § 1801. On June 2, 2015, after FBI agents intercepted a call between Rahim and Wright, they confronted Rahim at a bus stop. Rahim then drew a thirteen-inch knife, which led the agents to shoot him when he refused to drop it. He died from his injuries.

Less than a month later, Wright was indicted for conspiracy to provide material support to ISIS, in violation of 18 U.S.C. §§ 2339B(a)(1)-(2) ("Count One"); conspiracy to obstruct justice, in violation of 18 U.S.C. § 371 ("Count Two"); and obstruction of justice, in violation of 18 U.S.C. §§ 1519 and 2 ("Count Three"). An April 2016 superseding indictment added a count for conspiracy to commit acts of terrorism transcending national boundaries, in violation of 18 U.S.C. §§ 2332b(a)(2) and (c) ("Count Four"); and another February 2017 superseding indictment added a count of obstruction of justice, in violation of 18 U.S.C. § 1519 ("Count Five").

Following a fourteen-day trial, the jury convicted Wright on all counts. The District Court sentenced Wright in December 2017 to twenty-eight years' imprisonment and lifetime supervised release. The District Court sentenced Wright to a total of twenty years' imprisonment on Counts One, Three, and Five, to be served concurrently with a sentence of five years' imprisonment on Count Two. The District Court sentenced Wright to eight years' imprisonment on Count Four to be served consecutively with the twenty-year prison sentence for Counts One, Two, Three, and Five.

Wright now appeals his convictions. We affirm Wright's convictions on Counts Two through Five. We vacate his conviction on Count One.

I.

We begin by considering Wright's challenges to the District Court's order that denied various pretrial motions to suppress evidence. Wright does not make a clear argument as to how his challenge to the District Court's denial of each of these motions to suppress relates to each of his convictions. Nevertheless, we proceed on the understanding that the evidence implicated in each motion would, if suppressed, affect his convictions on all counts.

937 F.3d 14

"In reviewing a challenge to the district court's denial of a motion to suppress, we view the facts in the light most favorable to the district court's ruling, and review the district court's findings of fact and credibility determinations for clear error." United States v. Peake, 804 F.3d 81, 86 (1st Cir. 2015) (internal quotation marks omitted). We review legal issues, including preserved constitutional claims and a district court's determination of whether the government exceeded the scope of a warrant, de novo. See id.; United States v. Brown, 669 F.3d 10, 19 (1st Cir. 2012) ; United States v. Volungus, 595 F.3d 1, 4 (1st Cir. 2010).

A.

We first address Wright's challenge to the District Court's denial of his motion to suppress the fruits or derivatives of any electronic surveillance that the FBI conducted pursuant to FISA. On appeal, Wright argues only that the District Court "should have suppressed the evidence obtained under FISA's emergency provision" (the "Emergency Provision") -- insofar as any evidence was so obtained -- "because that portion of the statute is unconstitutional or, in the alternative, must be construed narrowly."

1.

FISA is a federal statute. It establishes, as relevant here, a mechanism by which federal law enforcement officers may obtain a judicial order that authorizes the use of electronic surveillance within the United States when a "significant purpose" of the surveillance is the collection of "foreign intelligence information." 50 U.S.C. § 1804(a)(6)(B).

Typically, the process is initiated by the submission of an application, which must be approved by the Attorney General of the United States (the "Attorney General"), to the Foreign Intelligence Surveillance Court ("FISC") for review by one of its judges. Id. § 1804(a). In response to such an application, FISC judges may issue an ex parte order that authorizes electronic surveillance after making, among other things, a finding of probable cause that the target of the surveillance is a foreign power or agent of a foreign power. Id. § 1805(a)(2).

Orders may approve surveillance that targets United States persons for up to ninety days. Id. § 1805(d)(1). Orders that approve surveillance that targets non-United States persons may do so for up to 120 days. Id.

The statute also includes an emergency authorization provision. See id. § 1805(e). The Emergency Provision permits the Attorney General to authorize electronic surveillance without prior judicial approval if the Attorney General "reasonably determines that an emergency situation exists with respect to the employment of surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained" and there is a factual basis supporting issuance of an order. Id. § 1805(e)(1)(A)-(B). The Emergency Provision requires that the Attorney General inform the FISC of its decision to employ emergency surveillance and submit an application for a judicially approved order, from the FISC, pursuant to the regular procedure "as soon as practicable," but no later than seven days after the Attorney General grants the emergency authorization. Id. § 1805(e)(1)(D).

Information collected through surveillance that has been authorized by the Attorney General pursuant to the Emergency Provision can be used in certain "proceeding[s]." Id. § 1805(e)(5). However, "[i]n the event’’ that the government’s after-the-fact application to the FISC "is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance,’’ such information can be so used only

937 F.3d 15

"with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person." Id.

2.

On June 12, 2015, the government filed a notice of intent "to offer into evidence, or otherwise use or disclose," as relevant here, "information obtained or derived from electronic surveillance ... conducted pursuant to [FISA]." The notice of intent made no reference to the Emergency Provision.

Wright thereafter filed a motion to compel discovery of evidence obtained pursuant to FISA. The District Court denied the motion. The District Court did so after concluding that FISA "seems to contemplate the filing of ... an ‘ill-informed motion to suppress.’ "

Wright then filed a motion to disclose or suppress such evidence, in which he "renew[ed] and incorporate[d] by reference his motion to compel discovery." In that motion, Wright identified a number of independent and alternative bases for suppression.

In support of his motion, Wright argued that FISA's general requirement that the acquisition of foreign intelligence information need only be a "significant purpose" of the search or surveillance -- and thus need not be the "primary purpose" -- renders searches and surveillance under that statute violative of the First, Fourth, Fifth, and Sixth Amendments to the United States Constitution. See 50 U.S.C. § 1804(a)(6)(B).

The government filed a memorandum in opposition to Wright's motion to suppress. The memorandum provided an overview of the FISA surveillance process, which included a reference to the Emergency Provision. The memorandum did not, however, indicate that the government had relied on the Emergency Provision. Rather, the memorandum argued, in response to Wright's suppression motion, simply that the government had...

To continue reading

Request your trial
11 practice notes
  • United States v. McLellan, No. 18-2032
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 20, 2020
    ...if "it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." United States v. Wright, 937 F.3d 8, 30 (1st Cir. 2019) (internal quotation marks omitted). "An erroneous instruction on an element of the offense can be harmless beyond a reas......
  • People v. Glukhoy, C084169
    • United States
    • California Court of Appeals
    • April 18, 2022
    ...courts, not cited in Aledamat , have applied the Skilling II overwhelming evidence approach. (See e.g., United States v. Wright (2019) 937 F.3d 8, 30, citing Neder , supra , 527 U.S. at p. 17, 119 S.Ct. 1827 ["we are required to affirm the conviction if the evidence for either [valid] theor......
  • United States v. Velazquez-Fontanez, s. 18-1188
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 27, 2021
    ...against Cotto-Andino was strong, but not overwhelming given its heavy dependence on cooperating witnesses. See United States v. Wright, 937 F.3d 8, 31 (1st Cir. 2019) (observing, in the constitutional-error context, that cooperating-witness evidence "is rarely deemed 6 F.4th 223 to be overw......
  • United States v. de Leon-De La Rosa, 19-2046
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 2, 2021
    ...would constitute harmless error as to one or more of the counts of conviction that De Leon challenges. See United States v. Wright, 937 F.3d 8, 30 (1st Cir. 2019) (explaining that "we may deem any harmless error argument not briefed by the government as waived").7 Johnson's challenge to the......
  • Request a trial to view additional results
11 cases
  • United States v. McLellan, No. 18-2032
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 20, 2020
    ...if "it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." United States v. Wright, 937 F.3d 8, 30 (1st Cir. 2019) (internal quotation marks omitted). "An erroneous instruction on an element of the offense can be harmless beyond a reas......
  • United States v. Velazquez-Fontanez, s. 18-1188
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 27, 2021
    ...against Cotto-Andino was strong, but not overwhelming given its heavy dependence on cooperating witnesses. See United States v. Wright, 937 F.3d 8, 31 (1st Cir. 2019) (observing, in the constitutional-error context, that cooperating-witness evidence "is rarely deemed 6 F.4th 223 to be overw......
  • United States v. de Leon-De La Rosa, 19-2046
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 2, 2021
    ...would constitute harmless error as to one or more of the counts of conviction that De Leon challenges. See United States v. Wright, 937 F.3d 8, 30 (1st Cir. 2019) (explaining that "we may deem any harmless error argument not briefed by the government as waived").7 Johnson's challenge to the......
  • People v. Glukhoy, C084169
    • United States
    • California Court of Appeals
    • April 18, 2022
    ...courts, not cited in Aledamat , have applied the Skilling II overwhelming evidence approach. (See e.g., United States v. Wright (2019) 937 F.3d 8, 30, citing Neder , supra , 527 U.S. at p. 17, 119 S.Ct. 1827 ["we are required to affirm the conviction if the evidence for either [valid] theor......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT