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F I L E D Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 1 of 36 PageID #:1

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DISTRICT COURT RICT OF ILLINOIS

UNITED STATES OF AMERICA

EASTERN DIVISION

MAGISTRATE JUDGE KEYS

CRIMINAL COMPLAINT
v.

ADELDAOUD

723

I, the undersigned complainant, being duly sworn on oath, state that the following is true and
correct to the best of my knowledge and belief:
Count One- Attempting to Use a Weapon of Mass Destruction
On or about September 14, 2012, at Chicago, in the Northern District of Illinois, Eastern Division, and elsewhere, ADEL DAOUD, defendant herein, attempted, without lawful authority, to use a weapon of mass destruction against people and property within the United States in a manner that would have affected interstate and foreign commerce; in violation of Title 18, United States Code, Section 2332a(a)(2)(D); and

Count Two -Attempting to Destroy a Building By Means of an Explosive
On or about September 14, 2012, at Chicago, in the Northern District of Illinois, Eastern Division, and elsewhere, ADEL DAOUD, defendant herein, maliciously attempted to damage and destroy, by means of an explosive, a building used in an activity affecting interstate and foreign commerce; in violation of Title 18, United States Code, Section 844(i).

I further state that I am a Special Agent with the Federal Bureau of Investigation, and that this complaint is based on the facts contained in the Affidavit which is attached hereto and incorporated herein.

Sworn to before me and subscribed in my presence,

Signature of Barbara J. rner Special Agent, Federal Bureau of Investigation

;::S""ep.,_,t"'e""m'-"b'-"e"-r-"'1"'5,'-'2"-'0'-'1"'2------------at Chicago, Illinois

Date

City and State

ARLANDER KEYS, U.S. Magistrate Judge Name & Title of Judicial Officer

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 2 of 36 PageID #:2
UNITED STATES DISTRICT COURT ) ) ss
NORTHERN DISTRICT OF ILLINOIS ) AFFIDAVIT
Introduction and Agent Background I, Barbara J. Harner, being duly sworn, state as follows: 1. I am a Special Agent with the Federal Bureau of Investigation ("FBI"), assigned to the Chicago Field Division. I have been employed by the FBI for approximately four years. I am currently assigned to an FBI squad dedicated to investigating counter-terrorism related matters. As a result of my training and experience, I am familiar with the tactics, methods, and techniques of terrorist networks and their members. 2. This affidavit is submitted for the purpose of establishing probable cause that:
a. On or about September 14, 2012, at Chicago, m the Northern District of Illinois, and elsewhere, defendant Adel Daoud, attempted, without lawful authority, to use a weapon of mass destruction against people and property within the United States in a manner that would have affected interstate and foreign commerce, in violation of Title 18, United States Code, Section 2332a(a)(2)(D); and
b. On or about September 14, 2012, at Chicago, m the Northern District of Illinois, and elsewhere, defendant Adel Daoud
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maliciously attempted to damage and destroy, by means of an explosive, a building used in an activity affecting interstate and foreign commerce, in violation of Title 18, United States Code, Section 844(i) (collectively, the "Subject Offenses").
3. The information m this affidavit is based on my expenence, training, and personal knowledge; my review of records and other materials obtained during the course of this investigation, including communications and information that were obtained through (1) lawful court orders and (2) the consent of undercover FBI employees; and information provided to me by other government personnel with knowledge relating to this investigation. Since this affidavit is submitted for the limited purpose of establishing probable cause in support of a criminal complaint charging Adel Daoud with the Subject Offenses, it does not contain all of the facts known to me with regard to the investigation.
Background Information
AdelDaoud
4. According to records from the United States Department of State and the Illinois Secretary of State, Adel Daoud is an eighteen year-old United States citizen who resides in Hillside, Illinois.
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Al-Qaeda in the Arabian Peninsula and Anwar Al-Awlaki
5. Al-Qaeda in the Arabian Peninsula ("AQAP") is a Yemen-based terrorist group that has claimed responsibility for several terrorist acts against the United States. On or about December 14, 2009, the United States Secretary of State designated AQAP a foreign terrorist organization under Section 119 of the Immigration and Naturalization Act. On or about July 16, 2010, pursuant to an Executive Order, Anwar Al-Awlaki (also spelled "AlAulaqi") was designated by the United States a "Specially Designated Global Terrorist" because of his position as a leader of AQAP. On or about September 30, 2011, United States President Barack Obama announced that Awlaki had been killed in Yemen.
Summary of the Evidence Overview 6. As further described below, beginning in or about October 2011, Daoud used an email account ("Daoud Account 1"), among other accounts, to obtain and distribute material, some of which he purported to author, relating to violent jihad1 and the killing of Americans.2 Also beginning in the
1 "Jihad" is an Arabic term meaning "struggle," referring to one's struggle on behalf of Islam. In the context of these communications, and based on later communications, I understand Daoud to be referring to a violent form of jihad. 2 At various points in the Affidavit, I will offer my interpretations of certain communications in brackets and otherwise. My interpretations are based on my knowledge of the investigation to date and review of prior communications, the
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same time period, Daoud used Daoud Account 1 as part of his efforts to
encourage several other individuals to support violent jihad.
7. In or about May 2012, two FBI online undercover employees
("OCEl" and "OCE2") contacted Daoud in response to material Daoud posted
online and thereafter exchanged several electronic communications with Daoud. During these communications, Daoud expressed an interest in
engaging in violent jihad, either in the United States or overseas, referred to
his ongoing efforts to recruit other individuals to engage in violent jihad, and
mentioned that he had discussed plans for an attack with "trusted brothers."
8. As further described below, from late May to mid-June, 2012,
Daoud sought guidance regarding whether to carry out a terrorist attack in
the United States, relying principally on internet resources. Based on this
research, Daoud, as he told OCE2, confirmed his belief in the propriety of
killing Americans in a terrorist attack. Daoud then began seeking online
resources regarding how to carry out an attack.
contents and context of the communications, prior and subsequent communications, conversations with other officers and agents and my experience and familiarity with terrorist organizations generally. Some of these summaries do not include references to all the topics covered during the course of the communications. In addition, the summaries do not necessarily include references to all statements made by the speakers on the topics that are mentioned. Finally, quotations from written communications are as they appear in their original form, including any grammatical or spelling errors. While transcribers have attempted to transcribe the conversations accurately, to the extent that quotations from these communications are included, these are preliminary, not final transcriptions.
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9. In or about June 2012, OCE2 told Daoud about OCE2's purported cousin who resided in New York and was an operational terrorist. Daoud expressed an interest in meeting the cousin, who, unbeknownst to Daoud, was an FBI undercover agent ("UCE"). Between on or about July 17, 2012, and on or about September 14, 2012, Daoud met with the UCE on six occasions and the two exchanged several electronic communications. In the course of his dealings with the UCE, Daoud selected, researched, and surveilled a target for a terrorist attack to be carried out in the Chicago area with an explosive device supplied by the UCE. Daoud also attempted to recruit others to assist in the attack.
10. On or about September 13, 2012, Daoud met with the UCE and the UCE showed Daoud the purported explosive device, which was inside a green Jeep Cherokee located in a storage unit. Unbeknownst to Daoud, the explosive device was inert and constructed by FBI bomb technicians. On or about September 14, 2012, at approximately 7:12 p.m., Daoud met with the UCE and the two drove to downtown Chicago. As further described below, after arriving in Chicago, Daoud picked up the Jeep containing the purported explosive device and parked it directly outside of the target location he had previously selected- a bar in downtown Chicago. Daoud then exited the Jeep, walked approximately one block from the intended target, and attempted to
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detonate the explosive device. Mter doing so, Daoud was arrested by FBI
agents.
Evidence from Daoud Account 1 Bearing on Daoud's Intent to Engage in the Subject Offenses
11. Between in or about October 2011 and May 2012, Daoud used
Daoud Account 1,3 among other accounts, to obtain and distribute material,
some of which he purported to author, relating to violent jihad and the killing
of Americans. For example:
a. On or about October 9, 2011, Daoud, using Daoud Account
1, sent an email to himself (at Daoud Account 1) with "anwar al awlaki
articles" along with jihadi-related photographs and pictures (e.g., titled
"Jihad is our way," "Taliban," and "mujahideen").4
b. In or about December 2011, Daoud, using Daoud Account 1,
emailed several individuals a lengthy powerpoint presentation titled "The
3 I believe Adel Daoud is the user of Daoud Account 1 for the following reasons, among others: First, records from the company that provides Daoud Account 1 reflect that the account is subscribed to "Mr. Adel Daoud." Second, records also reflect that Daoud Account 1 has been accessed from IP addresses that, according to records from Comcast, were assigned to a Comcast subscriber at Daoud's residence. Third, the user of Daoud Account 1 directed the FBI undercover employees to communicate via an alternative communication service and, from that alternative communication service, provided a phone number as a point of contact. The subscriber for that phone number is Adel Daoud and the address is Daoud's residence. Moreover, as described in ,[20, the UCE used that phone number to coordinate and meet with Daoud, whose appearance matches his Illinois driver's license photograph. 4 These photographs and pictures generally depict individuals with weapons with slogans or insignia, which appears to relate to violent jihad.
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Osama Bin Laden I Know," which Daoud purportedly prepared for school. The presentation is a "book review" of Peter Bergen's book (of the same title) and defends Bin Laden's tactics. For example, Daoud writes, "Osama wasn't crazy for wanting to destroy America. This superpower killed millions of people."
c. On or about February 6, 2012, Daoud received an email to Daoud Account 1 regarding his registration to an online jihad-related internet forum. 5
d. On or about February 27, 2012, Daoud, usmg Daoud Account 1, sent an email in response to criticism of Israel, writing: "no. there is no difference between Israel and those countries who either help and support them or the countries that don't say anything the United States and UK do things just as bad. They mutilate children, they rape women, the nuke innocent people, and they did this to over a million people and their history is full of it too.... may the leaders and supporters of all these evil nations go to the deepest pit of the Hell fire or if they are ignorant may Allah cure them from it."
e. On or about March 14, 2012, Daoud, using Daoud Account 1, sent an email to Individual A, defending Anwar Al-Awlaki: "those people
5 In this forum members discuss violent jihad and distribute jihadist propaganda and related instructional materials.
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insulting awlaki can go kill themselves mashaAllah he is very knowledgable
w. a decent character. inshaAllah6 hes accepted as a shaheed.7 people r quick
to judge n insult including muslims. the truth is he was against america n
becuz america is the superpower he is always going to be seen as wrong no
matter wat he says or does."
f. On or about May 9, 2012, Daoud, using Daoud Account 1, sent himself (i.e., to Daoud Account 1) a link for Inspire magazines, issues one through nine.s
12. Between m or about October 2011 and May 2012, Daoud also
used Daoud Account 1 as part of his efforts to encourage others, including
Individuals A, B, C, D, E, and F, to support violent jihad. For example:
a. On or about October 13, 2011, Daoud, using Daoud Account
1, sent an email to Individual B recommending that Individual B read "The Book of Jihad,"9 a copy of which was attached in the email.
6 "Insha'Allah" is an Arabic phrase meaning "God willing." 7 "Shaheed" is an Arabic term that, in this context, I believe to mean martyr. 8 Based on my training and experience, I know that Inspire is an English language online magazine reported to be published by Al-Qaeda in the Arabian Peninsula ("AQAP"). Among other things, the magazine includes recruiting material for AQAP and provides information about how to carry out particular types of terrorist attacks. For example, one article titled "How to Make a Bomb in the Kitchen of Your Mom" describes how to construct a bomb using items found in a typical kitchen. As ofthe date of this affidavit, there have been nine issues of the magazine. 9 It is my understanding that the Book of Jihad, also known as Kitab al-Jihad, was written by a fourteenth century Islamic scholar and warrior, Ibn Nuhaas. Anwar al-
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b. On or about October 18, 2011, Daoud, using Daoud Account 1, received an email reflecting that Daoud had sent to Individual A, the video "The HereMter by Imam Anwar Al-Awlaki."lO
c. On or about April 25, 2012, Daoud, using Daoud Account 1 sent an email explaining that "modern sufis are against JIHAD (like REAL JIHAD i.e. FIGHTING) and that was a bad start; and i think they believe in the concept of Jihad ul Nafs which is based on a fabricated if not very weak hadith."
d. On or about May 17, 2012, Daoud, using Daoud Account 1, sent Individual C a video titled "Lessons Learned - By Mujahid Commander: Abu Mansoor al-Amriki."
e. On or about June 22, 2012, Daoud, using Daoud Account 1, sent an email to Individual D, writing: "this is aadel. Here you go buddy. your first book towards terrorism," attaching "The Book of Jihad."
f. On or about June 30, 2012, Daoud, using Daoud Account 1, sent an email to Individual E with a link to the nine issues of Inspire magazine with instructions that Individual E should not let anybody else see Individual E reading the magazine.
Awlaki used Nuhaas's book as a classical justification for the notion that jihad refers primarily to physical fighting. 10 This video appears to be a lecture by Anwar Awlaki that deals with the conditions that determine whether a person, upon death, will enter heaven or hell.
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g. On or about July 29, 2012, Daoud, using Daoud Account 1, sent an email to Individual D, attaching Awlaki's "44 Ways To Support Jihad" and writing that Individual D will "enjoy and benefit" from the document.
Daoud Begins Communicating with two FBI Online Undercover Employees
13. On or about May 17, 2012, an FBI online undercover employee ("OCE1") reached out to Daoud by sending a message to another account Daoud used to exchange electronic communications ("Daoud Account 2"). OCE1's message complimented Daoud on the material he had posted online, which was associated with Daoud Account 2. Daoud responded and the two exchanged dozens of communications until on or about August 19, 2012. In summary, OCE1 purported to be a Saudi Arabia-based person who had been invited to and was deciding whether to engage in violent jihad in Yemen or Syria. OCE1 and Daoud exchanged several communications relating to violent jihad and Daoud's intentions to engage in violent jihad. For example:
a. On or about May 29, 2012, Daoud wrote that "even my sheikh11 in my masjidl2 was talking to me about NOT talking about jihad." Daoud continued: "sometimes [my sheikh] even mentions verses of jihad
11 I understand "sheikh" in this context to be a reference to a religious leader at Daoud's mosque. 12 "Masjid" is an Arabic term referring to a mosque.
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(from the Quran) and i almost think he gomg to call for it then he has something general like be a good example or something. lol man I will be the opposite."
b. On or about June 3, 2012, OCE1 asked whether Daoud has "friends in America" who "support jihad too," to which Daoud responded: "i know a few brothers who support jihad and im trying to 'brainwash' more brothers into supporting it."
c. On or about June 4, 2012, OCE1 asked whether Daoud had "ever talked about plans," to which Daoud replied, "i did discuss some plans but with very trusted brothers." Daoud also stated, "encouraging muslims to go for jihad is dawah.13 inspire magazine was started cuz a verse of the Quran where Allah says to inspire the believers."
d. On or about June 7, 2012, Daoud, using Daoud Account 1, sent an email to OCE1 with documents attached, including "The Book of Jihad."
14. Another FBI undercover employee ("OCE2") sent a message to Daoud Account 1 on or about May 14, 2012, in response to a video Daoud had posted online, which listed the Daoud Account 1 as a point of contact. That same day, Daoud responded. The two then exchanged emails over the next few days, at which point Daoud directed OCE2 to communicate using Daoud 13 "Dawah" is an Arabic term meaning to share the message of Islam.
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Account 2, which continued until on or about September 12, 2012. In
summary, OCE2 purported to be a 17 year-old, Australia-based person with a
recently-developed interest in violent jihad. During their communications,
Daoud recommended that OCE2 read Inspire magazine and sent OCE2 a
website link to the publication, which OCE2 downloaded. Daoud
characterized the magazine as "amazing" and remarked that he may use
instructions from the magazine to carry out an attack. With respect to his
future plans, Daoud wrote:
i need people who are devoted. if i don't start my own group (where i am from) then i will go over seas. in each case i will let you know. im trying to invite people to go with me to the cause of Allah. but man is hard to tell people to be terrorists.
Daoud Seeks Guidance Regarding Whether and How to Carry Out an Attack in the United States
15. On or about May 31, 2012, Daoud posted a comment to a jihad-
related internet forum, 14 discussing his interest in carrying out an attack
within the United States, modeled on instructions from Inspire magazine:
I live in the United States of America/hypocrisy. I want to in the future insha'Allah go for jihad in the Cause of Allah but I wasn't sure where to go. I wanted to go to Yemen because of the hadith quoted by anwar al awlaki where the prophet (may Allah's peace and blessings be upon him) says that there will be 12,000 that were appear in Abyan [a region in Yemen] and they will be the best between me and them.
14 Daoud characterized the forum as "a terrorist website" and "a good jihad source with real mujahideen on the site" in communications with OCE2 on or about June 4 and 5, 2012.
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It's such a beautiful hadith and i hope to Allah that i could be among those 12,000.
I have also been reading the english Inspire maga1zme. Masha'Allah is the best magazine I have read ...
The point is in this magazine they encourage Muslims in the West especially in the USA to attack IN America. By all means this is something i would consider. But in know that if i started attacking in America i would probably not be able to go to Yemen or anywhere else for Jihad in the Cause of Allah.
Is there a way i could do both, or what's your opinion on that? i personally think it's easier and more rewarding to go to Yemen but at the same time i hate the oppression of the USA and i would love to do something that would hurt it from the inside.
16. In a subsequent posting to the same internet forum, on or about
June 2, 2012, Daoud wrote that he recognized "9/11" was "halal,"15 but
requested advice about other circumstances in which Americans may be
killed in accordance with the Quran.
17. Between on or about May 29, and on or about June 15, 2012, an
individual using a computer located within Daoud's residence16 viewed a
number of videos relating to violent jihad and the propriety of killing
Americans, including:
• "We are Terrorists (Sheik Abdullah Azzam)"
15 "Halal" is an Arabic term referring to that which is religiously acceptable according to Islamic law. 16 Based on the other online activity before and after these videos were viewed (e.g., the checking of accounts associated with Daoud), I believe the online activity described here and elsewhere in this Mfidavit was conducted by Daoud.
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• "Sheikh Al Albani on Martyrdom Operations"
• "Martyrdom Operations or Suicide Bombings! By Shk Anwar Al-
Awlaki"17
Likewise, during that same time period, an individual usmg a computer
within Daoud's residence performed a number of internet searches on the
same topics, such as:
• "is suicide bombing halal" • "44 ways to support jihad"18 • "kill the infidels sheikh anwar al awlaki" • "is it halal to blow up a train" • "are attacking planes and trains halal" • "killing americans in islam" • "what percentage of americans support the military"
18. Following the online research that took place at Daoud's
residence, Daoud sent several communications reflecting a heightened
interest in engaging in violent jihad. For example:
a. On or about June 28, 2012, Daoud sent a text message to
Individual F: "Wallah man i feel like my love for jihad and killing the kuffaar19 who have transgressed against Allah has been RENEWED AND
STENGTHENED i feel Amazing masha 'Allah he gave all the evidence and
17 In these videos, Sheikh Al Albani and Anwar Awlaki purport to explain why a martyrdom operation is not considered suicide in Islam but rather is an appropriate method of engaging in jihad 18 "44 Ways to Support Jihad" is a lecture by Anwar Awlaki describing the ways that Muslims may take part in jihad. 19 "Kuffar" (or kafir) is an Arabic term meaning unbeliever or disbeliever, referring to an individual who is not a Muslim.
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logic of it and said wat evry muslim ALREADY KNOW IS THE TRUTH subhanAllah!"
b. On or about June 28, 2012, Daoud, using Daoud Account 2, sent a response to OCE2's comment that OCE2 was "struggling with the issue of taking lives" in jihad. Daoud wrote:
yes, the issue on taking lives is an important issue. I have been studying this issue and i made some conclusions and i could fill you in on what they are based on the Quran and sunnah, and the evidences they give. Two days later, Daoud explained to OCE2 why he thought Americans were "legal targets" of an attack. According to Daoud, the United States is at war "with Islam and Muslims" and that most Americans give "their moral support" to the war. Moreover, Americans "pay their taxes which fund the government's war against Islam" and they ''VOTE for the leaders who kill us every day." Daoud said it was his "personal opinion" that "since you cannot kill ALL Americans," one should "only target good targets that will really hurt america as a whole (or the area where the target is) and kill those necessary to do so (while avoiding targeting women and children unless it's impossible or really difficult to do so)." 19. In or about early July 2012, an individual usmg a computer located in Daoud's residence visited several websites where that person performed searches about how to construct a bomb, for example:
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• "how to make tnt" • "how to make explosives" • "The Preparatory Manuel of Explosives" • "Illustrated Manual of Sniper Skills" • "Organic Chemistry of Explosives"20
OCE2 Introduces Daoud to an Undercover FBI Agent Whom Daoud Believes to be an Operational Terrorist
20. During OCE2's communications with Daoud, mentioned above in
'1[13, OCE2 told Daoud that OCE2 had a purported cousin, who, in essence,
wanted OCE2 to join the cousin in committing terrorist acts. On or about
July 10, 2012, OCE2 sent a message to Daoud Account 2, stating that OCE2's
cousin was interested in meeting Daoud. OCE2 explained that OCE2's cousin
is "half Mghan'' and that he "has some action history." Daoud, who previously
referred to the cousin as a "terrorist" in a communication with OCE2,
responded on the same day, writing, among other things, that he "would love
to meet him." In the communication, Daoud provided a phone number (***·
***-7754) and wrote that OCE2's cousin could contact Daoud via text
message.
Daoud Meets with the Undercover Agent on July 17, 2012
21. On or about July 15, 2012, an undercover FBI agent ("the UCE"),
posing as OCE2's cousin and an operational terrorist, sent a text message to
20 Moreover, in previous communications Daoud told OCE2 that he had obtained books for "military skills and guerilla warfare," writing that "unfortunately some are American or American published," but "at least im gnna use the info they publish against them."
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Daoud, using the phone number Daoud provided. The UCE identified himself by the name OCE2 provided to Daoud and asked if Daoud was available to meet on the afternoon of July 17. Daoud responded via text message, expressing an interest in meeting. The UCE and Daoud then exchanged several text messages regarding the logistics of their meeting.
22. The UCE met with Daoud on July 17, 2012, at around 6:30 p.m. The meeting took place at Prairie Path Park in Villa Park, Illinois, and lasted a little over two hours. During the meeting, which the UCE audio recorded, Daoud and the UCE discussed a number of topics, including the UCE's purported experiences fighting with "mujahideen brothers" in Mghanistan, Inspire magazine, Al-Qaeda and its allegiances, and the need for Muslims to engage in "jihad." Towards the end of their meeting, the UCE mentioned that one of the reasons he returned to the United States was that "the Americans were leaving" Mghanistan and he wanted to "make sure they leave ... with disgrace." The UCE said that he and his brothers were interested in attacking a major city, including perhaps Chicago. In response, Daoud said that he wanted to go overseas for violent jihad, 21 but that he wanted to "do something [an attack] here [in the United States] at the same time." Mter Daoud discussed some ideas for a terrorist attack, the UCE asked Daoud to
21 Note, according to records from the United States Department of State, in or about March 2012, Daoud applied for a new United States passport. In the application Daoud wrote that he intended to travel to Saudi Arabia.
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write down his ideas, which he could provide to the UCE at a subsequent meeting.
23. Following their meeting, on or about July 17, 2012, the UCE and Daoud exchanged several text messages. Among other things, the UCE wrote that he would let Daoud know the next time the UCE was in town. Daoud responded, asking whether the UCE could "stop by 2 or 3 days of iteekaf?22" The UCE wrote back that he would try to be back in town during that time period.
24. On or about July 31, 2012, Daoud, using Daoud Account 2, sent OCE2 a message, stating "your cousin [the UCE] is masha'Allah23 wise stay w him and take advice from him. he gnna help me too insha'Allah and i will help him insha'Allah GIVE CHARITY24 TO THOSE NEEDY OF US."
Daoud Meets with the UCE on August 6, 2012
25. On or about August 1, 2012, the UCE sent a text message to Daoud, informing him that the UCE would be in town on August 6. Daoud responded, expressing an interest in meeting, and the two planned to meet at
22 "Iteekaf' (or itikaf) is a form of worship during Ramadan that involves a person's seclusion in a mosque, usually during the last ten days of Ramadan. 23 "Masha'Allah," meaning "Allah has willed it," is an Arabic phrase used for expressing appreciation of something good. 24 Based on the context of this conversation and other communications in this affidavit, I understand Daoud to be using the term "charity" here and elsewhere in this affidavit as a code for a terrorist act.
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the same location at around 4:00 p.m. on August 6. The next day, Daoud sent the UCE a text message, writing: "I came up w sum ideas and wrote dem down. i will get more stuff written later insha'Allah."
26. On or about August 6, 2012, from around 4:00 p.m., Daoud met with the UCE at Prairie Path Park in Villa Park, Illinois, for about two hours and forty minutes. During this meeting, which the UCE audio recorded, Daoud and the UCE discussed many topics, including plans to carry out an attack in the Chicago area using a vehicle containing explosives. At the outset of the meeting, Daoud showed the UCE four handwritten pages from a notebook Daoud purportedly drafted listing approximately twenty·nine potential targets ancl/or addresses, which Daoud provided to the UCE. The targets included military recruiting centers, bars, malls, and other tourist attractions in and around the Chicago area.
27. Early in their conversation, Daoud emphasized that any attack they committed needed to be recognized as a "terrorist attack":
[T]hey have to know it's a terrorist attack. Because if the people just say oh, how like, like the thing that just happened, the, the, the Joker thing25 okay ... Oh, the person was crazy. Oh, that's so sad ... That's it, okay, they forget about it after a week ... You know what I mean? And, and if he could get away that's good. Because they'll think oh, terrorism ... it'll be like frantic.
25 Based on the context of this conversation, I understand this to be a reference to the mass shooting that occurred at a movie theatre in Aurora, Colorado on July 20, 2012.
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Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 21 of 36 PageID #:21
28. Daoud then discussed the repercussiOns of terrorist attacks, citing the example of "airports" and noting that before "you wouldn't even have to give your name or something like that" and "now look what we have to do." Daoud continued, "What if they did that for the theater? . . . And imagine if the same thing happened, not with just the theaters, but the malls and bars, and like everything like that. Look how scared they would be." Daoud told the UCE that he thought it would send the message that the United States should "stop abusing people overseas."
29. Daoud also informed the UCE of his justifications for killing civilians. Daoud said, "you can't really take these people as regular people. They're like, more like robots." Daoud continued, "even the decent, nice people, most people in this country," even those who "hate the president" and oppose "the two wars," they're still "for the war on terrorism."
30. During their conversation, Daoud and the UCE discussed the list of potential targets that Daoud prepared, including the following:
a. Daoud told the UCE that he had tried to look for the biggest mall and that is why he selected a certain large suburban mall for the list.
b. With respect to selecting a bar or nightclub as a target, Daoud said, "if we target a bar, like a populated bar, I think it's usually at night so that actually makes it easier because of the darkness." Daoud added
20

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 22 of 36 PageID #:22
that such an attack "won't kill any Muslims for sure ... [a]nd if you do it's their fault."
c. Daoud told the UCE he included "recruiting centers" on the list because "these are people who are about to kill us," so they could "[g]et them before they get us."
31. Later in their conversation, Daoud and the UCE returned to the topic of targets. Daoud said, among other things, that he was not opposed to targeting a recruiting center, but that he "want[ed] to feel like [he] accomplished something." Daoud said, "if it's a recruiting center I wouldn't mind that much," but ''if it's only like five, ten people, I'm not gonna feel that good." Daoud continued, "I wanted something that's . . . massive; I want something that's gonna make it in the news like tonight." When the UCE asked which location Daoud had in mind, Daoud said, "I want to get to like, for me I want to get the most evil place, but I want to get a more populated place."
32. Daoud told the UCE that they "probably [would] have to study the places first," which the UCE confirmed. Daoud said he would research the targets, focusing first "on population" and then on "technical" matters, "like where the doors are, or like uh, where if it's a bomb, where can we put it, you know." Daoud explained that he could use "Google Street" to begin that research.
21

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 23 of 36 PageID #:23
33. Finally, during their meeting, Daoud recommended to the UCE that they leave materials from another state in the vehicle containing the explosives to avoid being caught:
If we put a whole bunch of stuff in there that suggested the terrorists from Alabama ... You know, yeah, be smart. Put a whole bunch of stuff ... You know but you could put somethin' like in the glove compartment. Probably put something that's gonna last in the car [following the explosion].
Daoud Attempts to Recruit Others to Assist in the Attack and Communicates with the UCE About His Plans
34. On or about August 8, 2012, the UCE sent Daoud a text message, stating that they should probably wait a couple of weeks to meet because of "the recent stuff that happened," referring to the mass shooting that took place at a Sihk Temple in Oak Creek, Wisconsin, on August 5, 2012. Daoud responded, "Lol brother dat was to motivate u!" The next day, Daoud and the UCE exchanged text messages during which Daoud insisted that they communicate via another electronic communications method and provided the UCE his username.
35. On or about August 10, 2012, Daoud, using Daoud Account 2, sent a message to OCEl. Daoud wrote, among other things, "i am trying to do something [an attack] here [in the United States] insha'Allah. pray to Allah for my safety and that im successful in this life and the hereafter."
22

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 24 of 36 PageID #:24

36. On or about August 10, 2012, Daoud engaged in a senes of

electronic communications with the UCE. Daoud wrote, "after this

conversation we both need to delete our history ... you know how to do that

right?" The UCE promised that he would delete the history of his chat with

Daoud. Daoud then turned to the topic of targeting:

Daoud:

ok so i thought of some ideas on how to do this insha'Allah

Daoud: i think we should go to a night club

The UCE: Sounds good brother

Daoud: i have an idea on how to go in and out

Daoud:

but im going to perfect my plan and insha'Allah Allah helps me and us both

Daoud: my idea is to go after isha salaat26

37. On or about August 11, 2012, Daoud intermittently exchanged a series of electronic communications with the UCE. The two discussed, among other things, the following:
a. At the outset of their conversation, the UCE told Daoud that he had talked to his "sheikh," who purportedly said "First and most important ... we cannot give charity [commit an attack] during the month of

26 The term "Isha Salaat" refers to the nighttime daily prayer.
23

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 25 of 36 PageID #:25
Ramadan."27 Daoud disagreed, "no that's not right! the sahaba28 and many Mujahideen in the past fought in ramadan!" The UCE explained that they could fight in Ramadan if they were in Afghanistan or Iraq, but that they were not "in a threat while living in america." Daoud pushed back, writing that people in the United States are "making laws restricting Islam!" and that "they going to kill us!" Daoud further explained why it was appropriate to carry out an attack in the United States during Ramadan:
[They] killed our people now it's time we kill theres ... they all take part in this oppression against Muslims ... they vote for those who kill us and fund money to kill them ... and they ALL MORALLY SUPPORT THE WAR ON TERROR. ... [They] trying to change our religion! ... i can give a million reasons why they halal to kill!
b. Daoud also said he opposed waiting because he planned to travel to Saudi Arabia right after Ramadan. Daoud explained, "i do not want to have to go overseas to fight ... I want to do some here and some there." Eventually, Daoud relented and said he understood that the UCE had to obey his commander. Later in the conversation, however, Daoud told the UCE he "respect[ed]" that the UCE obeys his commander, "but if he starts saying that ... we cannot do attacks here [in the United States] ... den we really might
27 The UCE told Daoud that the UCE reported to a purported sheikh who would need to approve the operation. 28 "Sahaba" is an Arabic term meaning companions. In Islam, the term also refers to the people who lived with and witnessed the Prophet Muhammad.
24

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 26 of 36 PageID #:26
have a problem." Daoud asked the UCE to "keep trying to convince" his sheikh that they may attack during Ramadan.
c. In light of the need to wait until after Ramadan, Daoud told the UCE that they had two options. Daoud said he may be "forced to wait a year" before going to Medina, Saudi Arabia, so that they "can do the operation." Alternatively, Daoud proposed that he obtain the explosives from the UCE and carry out the attack alone, for he would not be subject to the commands of the UCE's sheikh. As Daoud stated, "the other option i had in mind is dat you give me the things i need for the operation for me to do. since i don't have a commander."
d. The UCE conveyed to Daoud that, apart from the timing of the attack, the UCE's sheikh was also concerned about Daoud's commitment to the operation. The UCE wrote:
My sheikh also wanted to make sure this is something that is in your heart. Jihad is not something that others can for on you or put pressure on you. He wants to make sure you have no doubt in your heart. Daoud responded, "you can tell him how i reacted when you said we cannot do it in Ramadan ... that is sufficient proof that this in my heart."
e. As for targets, Daoud thought the "night club is good for ramadan" since the attack would occur in the evening. Daoud told the UCE that they need a target for during the day if they would be unable to attack
25

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 27 of 36 PageID #:27
until after Ramadan. Daoud said that he would "try to come up [with] a 2nd plan."
38. On or about August 12, 2012, Daoud exchanged a senes of electronic communications with the UCE. During their conversation, Daoud informed the UCE that one of Daoud's "sahaba" (Individual C) had told Daoud about a popular night club they could target and asked whether the UCE's sheikh had changed his position on not conducting an attack during Ramadan. Daoud also mentioned that one of his "sahaba" came up with a "really good plan" to target a concert. Yet Daoud expressed concern that the concert would have to be before 8:00 p.m. He also added, "if u came up w a bomb inside the concert dat wud also be great." The two then discussed using vans containing bombs parked in the front and back of a concert.
39. On or about August 14, 2012, Daoud exchanged a senes of electronic communications with the UCE, discussing, among other topics, the following:
a. The UCE asked "how did the homework go with your sahaba," Daoud said "he found it very hard." According to Daoud, "he [Individual C] found a place but it had cameras and they didn't let bags in." Daoud said that he was "going to search for concerts" in an effort to "find a better one." The UCE wrote that they perhaps "shouldn't do the bag thing" because "it is too risky." Alternatively, if they decide to deliver explosives in a
26

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 28 of 36 PageID #:28
bag, the UCE insisted that he (the UCE) "should carry the bag" so that he "take[s] the risk." Daoud responded: "dude no way ... if we took something inside we wudn't let you take the risk." Daoud said that if they "got in trouble," Daoud and Individual C should "get [the UCE] out of it," meaning they would "take full responsibility," because Daoud would not "damage the cause to save myself some trouble."
b. Daoud told the UCE about "a new plan for a night club" and explained that his "friend lives near ... the night club."
c. Daoud said Individual C believed the UCE was "a spy." Daoud told the UCE that he would "kill" a person who is a spy and that he doesn't "take this ... lightly." The UCE agreed, remarking that "anybody who spies must be killed."
d. Near the end of their conversation, the UCE wrote that he planned to visit Daoud the following week, perform surveillance on the location, and "pick a date and time for charity [the attack]." Daoud agreed to meet with the UCE.
Daoud Is Confronted By a Religious Leader But Continues Planning an Attack 40. On or about August 18, 2012, Daoud exchanged a senes of electronic communications with the UCE. Daoud told the UCE the following: Daoud had been debating the topic of jihad with someone at his mosque.
27

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 29 of 36 PageID #:29
•
Someone overheard the conversation and reported it to his sheikh, who called Daoud and Individual C to a meeting and "yelled" at them. Daoud's father was informed of the incident too and told Daoud to stop talking about these topics. Finally, another sheikh became involved and tried to convince Daoud that engaging in violent jihad was wrong. Because of the arguments offered by this second sheikh, Daoud asked the UCE if the UCE's sheikh had a similar background and could issue "the real fatwah" justifying attacks on Americans.
41. The UCE eventually agreed to check with his purported sheikh. Daoud explained that, as a result of this intervention, Individual C no longer wanted to be involved in the attack because he had reservations about killing "random americans," as opposed to those involved with the United States military.
42. On or about August 22, 2012, Daoud and the UCE exchanged electronic communications in which, among other things: Daoud said he would come up with a new target before Daoud and the UCE met next and the UCE said that the "food" [bomb] was ready but he needed more time to put it in the car.
Daoud Meets with the UCE on August 23, 2012 43. On or about August 23, 2012, at around 4:30 p.m., Daoud met with the UCE at a parking lot in Villa Park, Illinois, for approximately two
28

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 30 of 36 PageID #:30

·and a half hours. Daoud arrived at the meeting to which he brought a piece of

paper with the name of a potential target, which is a bar in downtown

Chicago. The two discussed, among other topics, the following:

a. At the outset of the meeting, Daoud said that he "came up

with the perfect place" and told the UCE about the target he selected. Daoud

said he was viewing the place "through the street view of Google" and noticed

that "[t]here's another liquor store right next to it." After telling the UCE

about upcoming concerts at the location, Daoud said: "It's a bar, it's a liquor

store, it's a concert. All in one bundle." According to Daoud, the location

would be filled with "the evilest people ... all the kuffars are there."

b. The UCE brought up the topic of Daoud's request for

guidance from the UCE's sheikh and explained that he could not provide such

guidance because his sheikh was concerned about pressuring Daoud into

carrying out an attack:

The UCE:

... And he [the UCE's sheikh], he wants to make sure that he, the sheikh is not pressuring you, that I'm not pressuring you. 'Cuz you know in Islam you can't force anybody.

Daoud: Right.

The UCE: This has to be in your heart, especially jihad. You know it's in your heart. It's something you believe in. It's something you either believe in or you don't.

Daoud: Right.

29

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 31 of 36 PageID #:31
The UCE: Right. And my sheikh wanted to make, wanted to make sure that you were not pressured by anybody.
Daoud: Tell him that ... I'm convinced.

Daoud:

So I mean I'm, I'm totally fine with this. You tell him that the first time we wanted to do something [during Ramadan], you know how upset I was.

The UCE: ... So that's why since that happened he wants to make sure this is something you believe in, number one, that you're not doing it for somebody else.

Daoud: No.

The UCE: That I'm not pressuring you.

Daoud:

Who can, who else can I do it for? If everyone else is brainwashed, just me and some other brothers, I'm the top of the brainwashing crew. You know what I mean?

Daoud: c.

So I mean rest assured I was raising jihad before I knew you or your sheikh. You know what I mean?
Later in the conversation, the UCE and Daoud discussed

why Daoud wanted to carry out an attack in the United States:

The UCE: But you wanna fight for, you wanna fight jihad overseas and you wanna fight it here.

Daoud: Yeah.

The UCE: Okay:

Daoud:

Because it doesn't make sense. Like this is the ... if you look at all the countries in the world, who's

30

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 32 of 36 PageID #:32

killing Muslims the most? Who is leading this crusade against Muslims? It's America.

The UCE: Yes.

Daoud:

It doesn't make sense, now I'm living in America, and I have to go two thousand miles away to fight America. I'm already here.

The UCE: So why not fight here.

Daoud: Exactly. It's just like one plus one is two.

d. On the topic of timing, Daoud first said that they should

carry out the attack the following day. When the UCE explained that they

needed to perform surveillance and that the UCE needed approval from his

sheikh, Daoud relented and told the UCE that they should plan to carry out

the attack next Friday (August 31st).

Daoud:

And we can do it maybe next Friday. If you see the place today, I see the place on Saturday, you know. You get the approval of your sheikh. We take pictures, you know. Insha'Allah we can do it next Friday.

The UCE: Insha'Allah. Insha'Allah. I think that can happen. Yes.

Daoud: That's realistic.

Daoud Conducts Surveillance of the Downtown Bar He Selected

44. On or about August 25, 2012, at around 11:30 a.m., an FBI

surveillance team observed and videotaped Daoud driving in the vicinity of

the downtown bar Daoud had previously selected as a target. Surveillance

31

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 33 of 36 PageID #:33
observed Daoud appear to be taking photographs of the bar and its surrounding area.
Daoud Meets with the UCE on September 5, 2012 45. On or about September 5, 2012, at around 1:30 p.m., Daoud met with the UCE for approximately two hours at a parking lot in Villa Park, Illinois. Daoud arrived at the location and entered the UCE's vehicle. During their conversation, Daoud and the UCE talked about the following topics, among others:
a. Daoud and the UCE talked about where the vehicle bearing the purported explosive device would be parked in relation to the target, using the photographs Daoud had taken during the surveillance he performed. Daoud asked about the blast radius and the UCE explained that the bomb was large and would destroy the building and kill "hundreds" of people. The UCE also emphasized that "this is real." Daoud expressed excitement about the size of the bomb, remarking "that's nothing compared to the bombs they [the United States] throw at us." When asked about whether Daoud had qualms about the deaths it would cause, Daoud said, "that's the point." He later said it was his prayer that they would "get away with it," that they would "kill a lot of [Allah's] enemies," and that the attack would "makeO international news."
32

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 34 of 36 PageID #:34
b. Daoud brought up the question of how they could make sure the bombing would be known as "a Muslim terrorist attack." Daoud said they could either leave something in the vehicle that would make clear the source of the bombing or the UCE could request that the UCE's sheikh issue a statement. Daoud eventually decided that it would be best for the UCE's sheikh to announce on behalf of "Al-Qaeda," "we are responsible for this attack," and that if the United States "does not stop killing [Muslims] ... more attacks will come."
c. In terms of timing, Daoud said, "I want to do this as soon as possible," and asked if they could carry out the attack that day. When Daoud asked "what's the earliest we can do this," the UCE explained that the UCE would be available later the following week.
Daoud Views the Purported Explosive Device 46. On or about September 13, 2012, at approximately 5:15 p.m., Daoud met with the UCE for about one hour and fifteen minutes. The UCE drove Daoud to a storage unit in Bellwood, Illinois, to view the purported explosive device, which was contained in the back of a green Jeep Cherokee. Unbeknownst to Daoud, the explosive device was inert and constructed by FBI bomb technicians. Among other things, Daoud expressed excitement about the device and said he hoped that they would kill many people in the attack.
33

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 35 of 36 PageID #:35
Daoud's Attempt to Detonate the Explosive Device 47. On or about September 14, 2012, at approximately 7:12 p.m., Daoud and the UCE met pursuant to a prearranged plan at a location in Villa Park, Illinois. Daoud then entered the UCE's vehicle and the two drove to downtown Chicago. During the drive, among other things, Daoud led the UCE in a prayer that Daoud and the UCE succeed in their attack, kill many people, and cause destruction. 48. After arriving in Chicago, Daoud and the UCE first drove around the target location and then, at approximately 7:53 p.m., entered a parking lot where the Jeep containing the purported explosive device was located. After entering the parking lot, Daoud and the UCE entered the Jeep. Soon after, the UCE exited the Jeep and began walking towards the target location. Daoud drove the Jeep out of the parking lot and parked the Jeep in front of the target previously selected by Daoud - a bar in downtown Chicago. Daoud then exited the Jeep and walked to an alley approximately one block away. There, in the presence of the UCE, Daoud attempted to detonate the device by pressing the triggering mechanism, after which he was taken into custody by the FBI.
34

Case: 1:12-cr-00723 Document #: 1 Filed: 09/15/12 Page 36 of 36 PageID #:36 Conclusion
49. Based on the above information, I respectfully submit that there is probable cause that Adel Daoud committed the Subject Offenses.
FURTHER AFFIANT SAYETH NOT.
Special Agen Federal Bureau of Investigation Subscribed and sworn before me this 15th day of September, 2012
Honorable Arlander Keys United States Magistrate Judge
35

 
 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES OF AMERICA,
v. ADEL DAOUD,
Defendant.

)

)

)

)

No. 12 cr 723

)

)

Judge Sharon Johnson Coleman

)

)

)

MEMORANDUM OPINION AND ORDER

Defendant Adel Daoud is charged with attempting to use a weapon of mass destruction in

violation of 18 U.S.C. § 2332a(a)(2)(D) and attempting to destroy a building by means of

explosive in violation of 18 U.S.C. § 844(i). Daoud filed a motion for disclosure of Foreign

Intelligence Surveillance Act of 1978 (“FISA”) related material and to suppress the fruits or

derivatives of electronic surveillance and any other means of collection conducted pursuant to

FISA or other foreign intelligence gathering [51]. This Court heard oral argument on this, and other motions, on 1/3/2014.1 For the reasons discussed below, the motion is granted in part and

denied in part.

FISA Procedures

The Foreign Intelligence Surveillance Act of 1978, established detailed procedures

governing the Executive Branch’s ability to collect foreign intelligence information. To obtain

an order authorizing electronic surveillance or physical searches of an agent of a foreign power,

FISA requires the government to file under seal an ex parte application with the United States

Foreign Intelligence Surveillance Court (the “FISC”). 50 U.S.C. §§ 1804, 1823. The application

1 Unlike the Court’s recent denial of discovery [87], which did not seek the discovery of classified information, the instant motion seeks disclosure of classified documents that are ordinarily not subject to discovery.
1

must be approved by the Attorney General and must include certain specified information. See 50 U.S.C. §§ 1804(a), 1823(a).
After review of the application, a single judge of the FISC will enter an ex parte order granting the government’s application for electronic surveillance or a physical search of an agent of a foreign power, provided the judge makes certain specific findings. 50 U.S.C. §§ 1805(a), 1824(a). The FISA order must describe the target, the nature and location of the facilities or places to be searched, the information sought, and the means of acquiring such information. See 50 U.S.C. §§ 1805(c)(1), 1824(c)(1). The order must also set forth the period of time during which the electronic surveillance or physical searches are approved, which is generally ninety days or until the objective of the electronic surveillance or physical search has been achieved. See 50 U.S.C. §§ 1805(e)(1), 1824(d)(1). Applications for a renewal of the order must generally be made upon the same basis as the original application and require the same findings by the FISC. 50 U.S.C. §§ 1805(e)(2), 1824(d)(2).
The current version of FISA requires that “a significant purpose” of the surveillance or search is to obtain foreign intelligence information. 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B) (2006). However, FISA allows the use of evidence derived from FISA surveillance and searches in criminal prosecutions. 50 U.S.C. §§ 1806(a), 1825(a). Here, the government provided notice, as required by FISA, of its intent to use evidence obtained and derived from electronic surveillance and physical searches pursuant to FISA orders.
FISA authorizes an “aggrieved person” to seek suppression of any evidence derived from FISA surveillance or searches either because (1) the evidence was unlawfully acquired, or (2) the electronic surveillance or physical search was not conducted in conformity with the order of authorization or approval. 50 U.S.C. §§ 1806(e), 1825(f). An “aggrieved person” for purposes of
2

electronic surveillance is “a person who is the target of an electronic surveillance.” 50 U.S.C. § 1801(k). For physical searches, FISA defines “aggrieved person” as “a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.” 50 U.S.C. § 1821. Discussion
Daoud moves for disclosure of the FISA application and materials and also moves to suppress the fruits of electronic surveillance pursuant to FISA or any other foreign intelligence information gathering. Daoud requests that this Court review all applications for electronic surveillance of the defendant pursuant to FISA; to order the disclosure of the applications for the FISA warrants to defendants’ counsel pursuant to an appropriate protective order; conduct an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978); suppress all FISA intercepts and seizures, and fruits thereof, derived from illegally authorized or implemented FISA electronic surveillance; and consider the constitutionality of FISA both facially and as applied to defendant under the First and Fourth Amendment of the United States Constitution. For the reasons stated below, the motion is granted in part and denied in part.
Attorney General Eric H. Holder, Jr., filed an affidavit stating under oath that disclosure of such materials would harm national security. See 50 U.S.C. §§ 1806(f), 1825(g). Attorney General Holder’s claim of privilege is supported by a classified declaration from an FBI official. Pursuant to FISA, the filing of an Attorney General affidavit triggers an in camera, ex parte procedure to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. 50 U.S.C. §§ 1806(f), 1825(g).
Once the in camera, ex parte procedure is triggered, the reviewing court may disclose such materials “only where such disclosure is necessary to make an accurate determination of the
3

legality of the surveillance.” 50 U.S.C. § 1806(f); see also 50 U.S.C. § 1825(g). The Seventh Circuit has previously reviewed de novo the probable cause determination of the FISC, United States v. Dumeisi, 424 F.3d 526, 578 (7th Cir. 2005), and therefore this Court rejects the government’s request for deferential review. The factual averments and certifications used to support the government’s FISA warrant application are reviewed for clear error. United States v. Rosen, 447 F.Supp.2d 538, 546 (D.Va. 2006).
Here, counsel for defendant Daoud has stated on the record that he has top secret SCI (sensitive compartmented information) clearance. Assuming that counsel’s clearances are still valid and have not expired, top secret SCI clearance would allow him to examine the classified FISA application material, if he were in the position of the Court or the prosecution. Furthermore, the government had no meaningful response to the argument by defense counsel that the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances. The government’s only response at oral argument was that it has never been done. That response is unpersuasive where it is the government’s claim of privilege to preserve national security that triggered this proceeding. Without a more adequate response to the question of how disclosure of materials to cleared defense counsel pursuant to protective order jeopardizes national security, this Court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel. Upon a showing by counsel, that his clearance is still valid, this Court will allow disclosure of the FISA application materials subject to a protective order consistent with procedures already in place to review classified materials by the court and cleared government counsel.
4

While this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds that the disclosure may be necessary. This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment. Anders v. California, 386 U.S. 738, 743 (1967). Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. “The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 (1984).
In sum, this Court grants disclosure to cleared defense counsel of the FISA application materials and such disclosure will be made under an appropriate protective order. By this Order, this Court does not express any opinion with respect to the constitutionality of FISA or its procedures. Nor has this Court lost sight of the potential Classified Information Procedures Act (“CIPA”) issues that may be implicated by this disclosure, and resolution of those issues may result in the redaction of certain portions of the material. Lastly, this Court denies Daoud’s request to suppress all fruits of FISA surveillance without prejudice. Counsel for Daoud must present to the Court documentation of current valid security clearances at or before the next status hearing on February 6, 2014. IT IS SO ORDERED. Date: January 29, 2014
Entered: __________________________ United States District Judge
5

 
 Case: 1:12-cr-00723 Document #: 115 Filed: 03/20/14 Page 1 of 2 PageID #:841

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinleyDirksm United States Courthouse Rom2722 - 219 S. Deubom Skeet Chicago, Illinois 50504

W

Mardr 18,20'1.4

ORDER

Before RICHARD A. POSNER, Circuit ludge

UNITED STATES OF AMERICA, Plaintiff - Appellant

Office of the Clerk Phone: (312) 435-5850 m-caT.uscourts.gov
FILED
MAn z 0 2014y'
".#3ffi3ffiI33,*,

No.:14-L284

v.

ADEL DAOUD, Defendant - Appellee

District Court No: 1 :12-cr-00723-1, Northem District of lllinois, Eastern Division District Judge Sharon Johnson Coleman
Upon consideration of the DEFENDANT-APPELLEE'S UNoppoSED MoTIoN To
RETURN SEALED DOCUMENT NOS. 61,,82AND 93 TO THE DISTRICT
couRT, filed on March 12,2014, by counsel for Appellee Adel Daoud,
IT IS ORDERED that the motion is GRANTED only to the extent that the clerk of this court shall retum sealed envelopes no. 51 and 82 to the district court to be maintained under seal in that court.
The parties shall file a supplement to appellee's motion by April '1,201,4, explaining why document no. 93 is not relevant to the issues on appeal. If, upon further review,
the parties determine that document 93 is relevant, they should also explain whether

Case: 1:12-cr-00723 Document #: 115 Filed: 03/20/14 Page 2 of 2 PageID #:842

No. L4-1284

Page2

it should remain sealed in this court and provide support for any request to seal. The
parties shall also move to maintain documentsTT and102 under seal or inform the court that they can be placed in the public record.

form name: c7_Order_3!( form ID 177)

 
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In the
United States Court of Appeals

For the Seventh Circuit
____________________

No. 14-1284

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

ADEL DAOUD,

Defendant-Appellee. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 12 CR 723 — Sharon Johnson Coleman, Judge.
____________________

ARGUED JUNE 4 & JUNE 9, 2014* — DECIDED JUNE 16, 2014

* The fact that we heard oral argument twice before issuing our decision is unusual and requires explanation. By inadvertence the device that makes a sound recording of the oral arguments of our cases was not turned on for the public argument in this case on June 4. (That argument was followed by a classified argument, which was recorded stenographically by a court reporter who has the necessary security clearance. Our present opinion pertains only to the public argument.) Recording, whether aural or stenographic, of oral arguments is not required by law; and the recordings are not required to be made public. Until our recording equipment was installed some years ago, no record was made by the court of the oral arguments. And initially the recordings were available only to the judges. Eventually the court decided to make them available to the public as well. Although under no legal obligation to conduct a second oral argument in this case, we decided to do so because the acci-

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____________________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The defendant, Adel Daoud, was indicted first in September 2012 for attempting to use a weapon of mass destruction and attempting to damage and destroy a building by means of an explosive, in violation of 18 U.S.C. §§ 2332a(a)(2)(D) and 844(i), and next in August 2013 for having, in addition, later solicited a crime of violence, murder for hire, and witness tampering, in violation of 18 U.S.C. §§ 373(a), 1958(a), and 1512(a)(1)(A), respectively.
The first indictment arose out of an investigation that began in May 2012 when Daoud, an 18-year-old American citizen and resident of Hillside, Illinois, a suburb of Chicago, joined an email conversation with two undercover FBI employees posing as terrorists who had responded to messages that he had posted online. The ensuing investigation, based in part on a series of surveillance warrants, yielded evidence that Daoud planned “violent jihad”—terrorist attacks in the name of Islam—and had discussed his plans with “trusted brothers.” He expressed interest in committing such attacks in the United States, utilizing bombmaking instructions that he had read both in Inspire magazine, an organ of Al Qaeda that is published in English, and through internet searches.
One of his FBI correspondents put him in touch with an undercover agent (a “cousin”) whom the correspondent represented to be a fellow terrorist. After meeting six times with

dental failure to record the argument occurred in a high-profile case involving serious criminal charges.

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the “cousin,” Daoud selected a bar in downtown Chicago to be the target of a bomb that the agent would supply him with. The agent told him the bomb would destroy the building containing the bar, and warned him that it would kill “hundreds” of people. Daoud replied: “that’s the point.”
On September 14, 2012, Daoud parked a Jeep containing the bomb in front of the bar. In a nearby alley, in the presence of the agent, he tried to detonate the bomb. Nothing happened, of course, because the bomb was a fake. Daoud was immediately arrested. It was while in jail a month later that, according to the second indictment, he tried to solicit someone to murder the undercover agent with whom he had dealt.
The government notified the defendant, pursuant to 50 U.S.C. §§ 1806(c) and 1825(d)—sections of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801 et seq.— that it intended to present evidence at his trial derived from electronic surveillance that had been conducted under the authority of the Act. Daoud responded through counsel with a motion seeking access to the classified materials submitted in support of the government’s FISA warrant applications. Counsel hoped to show that the “evidence obtained or derived from such electronic surveillance” had been based on “information [that] was unlawfully acquired” or that “the surveillance was not made in conformity with an order of authorization or approval,” 50 U.S.C. § 1806(e), both being grounds for suppression.
The government filed two responses: a heavily redacted, unclassified response, accessible to Daoud and his lawyers, and a classified version, accessible only to the district court, accompanied by an unclassified statement by the Attorney

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General that disclosure of the classified material, or an adversarial hearing with respect to it, “would harm the national security of the United States”; the harm was detailed in a classified affidavit signed by the FBI’s Acting Assistant Director for Counterterrorism.
The district judge studied the classified materials to determine whether they should be shown to the defendant’s lawyers, who have security clearances at the level at which these materials are classified. The judge noted that counsel was seeking “disclosure of classified documents that are ordinarily not subject to discovery,” that “no court has ever allowed disclosure of FISA materials to the defense,” and that a court may order such disclosure only where “necessary” for “an accurate determination of the legality of the surveillance,” 50 U.S.C. § 1806(f), or of the “physical search” if that was how the FISA materials were obtained. § 1825(g). Nevertheless, remarking that “the adversarial process is integral to safeguarding the rights of all citizens,” that the Sixth Amendment presupposes “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing,” and that “the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances,” the judge ruled that “the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel.” And so she ordered the materials sought by defense counsel turned over to them. The order, though interlocutory, was appealable immediately, and the government appealed. 50 U.S.C. § 1806(h); 18 U.S.C. App. III § 7.

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She acknowledged that the Attorney General’s submission—stating that disclosure of the classified material, or an adversarial hearing with respect to it, “would harm national security”—had “trigger[ed] an in camera, ex parte procedure [in the district court] to determine whether the surveillance of the aggrieved person [Daoud] was lawfully authorized and conducted.” FISA is explicit about this. It provides that “if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, [the court shall] review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” 50 U.S.C. § 1806(f) (emphasis added).
So first the district judge must, in a non-public (“in camera”), nonadversarial (“ex parte”) proceeding, attempt to determine whether the surveillance was proper. If in attempting to determine this the judge discovers that disclosure to the defendant of portions of the FISA materials is “necessary,” the judge may order disclosure, provided there is adequate security. The defendant’s brief tries to delete the statutory requirement of sequential ex parte in camera district court analysis by a cropped quotation from the statute: “the court must review the FISA application, order, and related materials ex parte and in camera, unless ‘disclosure [to the defendant] is necessary to make an accurate determination of

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the legality of the surveillance.’” The defendant’s misreading of the statute would permit the district judge to avoid conducting an ex parte review if the defendant’s lawyers believed disclosure necessary, since if the judge does not conduct the ex parte review she will have no basis for doubting the lawyers’ claim of necessity. The statute requires the judge to review the FISA materials ex parte in camera in every case, and on the basis of that review decide whether any of those materials must be disclosed to defense counsel. The judge did not do that. She did not find that disclosure was necessary, only that it “may be necessary.” Although she read the FISA materials and concluded that she was “capable of making such a determination [an ‘accurate’ determination, as is apparent from a previous sentence in her order] of the legality of the surveillance,” she refused to make the determination, which if she was right in thinking she could make an accurate determination would have obviated the necessity for—and therefore the lawfulness of—disclosure of the classified materials to defense counsel.
The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact. That is an incomplete description of the American judicial system in general and the federal judicial system in particular. There are ex parte or in camera hearings in the federal courts as well as hearings that are neither or both. And there are federal judicial proceedings that though entirely public are nonadversarial, either partly or entirely. For example, a federal district judge presiding over a class action is required to determine the fairness of a settlement agreed to by the parties even if no member of the class objects to it. Eubank v. Pella Corp., 2014 WL 2444388, at *2 (7th Cir. June 2, 2014). And when in a criminal case the prosecutor and the defend-

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ant agree on the sentence to recommend, the judge must make an independent determination whether the sentence is appropriate. If, though it is within the range fixed by Congress, he thinks the agreed-upon sentence too harsh or too lenient, he is empowered (indeed required) to reject the agreed-upon sentence and impose a different one within the statutory range. United States v. Siegel, 2014 WL 2210762, at *5 (7th Cir. May 29, 2014). Another familiar example of nonadversarial federal procedure involves the “Anders brief”—a brief in which a criminal defendant’s lawyer states that the appeal is frivolous and therefore moves to be allowed to withdraw from representing the defendant. See Anders v. California, 386 U.S. 738 (1967). If the appellate court agrees, his motion is granted and the appeal dismissed. Unless the defendant expresses disagreement with the position taken by his lawyer in the Anders brief (the court always invites the defendant to respond to the brief but defendants often do not), there is no adversary process. Yet the court proceeds to make its own determination whether an appeal would be frivolous. If the court disagrees, it denies the lawyer’s motion to withdraw and so retains the appeal.
Not only is federal judicial procedure not always adversarial; it is not always fully public. Child witnesses, especially in sexual abuse cases, are often allowed to testify behind a screen. Criminal defendants typically are allowed to conceal from the jury most or even all of their criminal history. (Notice that in such a case, and in many other cases, secrecy inures to the defendant’s benefit.) Objections to questions to witnesses when sustained keep from the jury evidence that jurors might be very interested in. Documents placed in evidence may be redacted to conceal embarrassing material. Trade secrets—and classified materials are a form of “trade

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secret”—are routinely concealed in judicial proceedings. And of course judicial deliberations, though critical to the outcome of a case, are secret.
The propriety of government confidentiality is not limited to judicial proceedings. Though the Freedom of Information Act provides broad access to information collected by or generated within government, it has many exceptions. 5 U.S.C. § 552(b). The government’s records of people’s finances, collected by the Internal Revenue Service and other agencies, are secret. So are medical records of persons enrolled in Medicaid, Medicare, and the Veterans Administration’s hospital system. Employment files for the millions of federal employees are secret, as are public school teachers’ evaluations of children, government social workers’ judgments about their clients, and deliberations of a wide range of government officials, not limited to judges—for example, the doctrine of executive privilege shields many of the internal communications of executive-branch officials. The methods used by police to audit and investigate, to decide where to set up roadblocks and hide plainclothes officers, are secret, as are their communications with and the names of their confidential informants unless the informants testify.
Everyone recognizes that privacy is a legally protectable interest, and it is not an interest of private individuals alone. The Foreign Intelligence Surveillance Act is an attempt to strike a balance between the interest in full openness of legal proceedings and the interest in national security, which requires a degree of secrecy concerning the government’s efforts to protect the nation. Terrorism is not a chimera. With luck Daoud might have achieved his goal of indiscriminately killing hundreds of Americans—whom he targeted because,

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as he explained in an email, civilians both “pay their taxes which fund the government’s war on Islam” and “vote for the leaders who kill us everyday.”
Conventional adversary procedure thus has to be compromised in recognition of valid social interests that compete with the social interest in openness. And “compromise” is the word in this case. Daoud was first indicted almost two years ago. Defense counsel have been conducting discovery and have submitted extensive factual allegations to the district court. Those allegations—made in an extensive proffer by the defendant—were before the district judge when she was considering whether to disclose any of the classified FISA materials to defense counsel, along with the factual allegations made by the government as the result of its investigation. It was her obligation to evaluate the parties’ allegations in light of the FISA materials to determine whether she could assess the legality of those materials herself, without disclosure of them to Daoud’s lawyers.
The defendant’s lawyers place great weight on the difficulty of conducting a Franks hearing to determine the legality of a warrant to conduct FISA surveillance. Franks v. Delaware, 438 U.S. 154 (1978), held that a defendant can challenge a search or arrest warrant on the ground that it was procured by a knowing or reckless falsehood by the officer who applied for the warrant. Id. at 155–56. Defense counsel would like to mount such a challenge in this case. But that’s hard to do without access to the classified materials on which the government relied in obtaining a warrant to obtain access to Daoud’s communications. The drafters of the Foreign Intelligence Surveillance Act devised a solution: the judge makes the additional determination, based on full ac-

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cess to all classified materials and the defense’s proffer of its version of events, of whether it’s possible to determine the validity of the Franks challenge without disclosure of any of the classified materials to the defense. The judge in this case failed to do that.
She seems to have thought that any concerns about disclosure were dissolved by defense counsel’s security clearances. She said that “the government had no meaningful response to the argument by defense counsel that the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances”—as if disclosing state secrets to cleared lawyers could not harm national security. Not true. Though it is certainly highly unlikely that Daoud’s lawyers would, Snowden-like, publicize classified information in violation of federal law, they might in their zeal to defend their client, to whom they owe a duty of candid communication, or misremembering what is classified and what not, inadvertently say things that would provide clues to classified material. Unless and until a district judge performs his or her statutory duty of attempting to determine the legality of the surveillance without revealing any of the fruits of the surveillance to defense counsel, there is no basis for concluding that disclosure is necessary in order to avert an erroneous conviction.
It’s also a mistake to think that simple possession of a security clearance automatically entitles its possessor to access to classified information that he is cleared to see. (The levels of classification differ; someone cleared for Secret information is not entitled to access to Top Secret information.) There are too many leaks of classified information—too much carelessness and irresponsibility in the handling of

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such information—to allow automatic access to holders of the applicable security clearances. More than a million and a half Americans have security clearances at the Top Secret level, which is the relevant level in this case. Office of Management and Budget, “Suitability and Security Processes Review: Report to the President,” Feb. 2014, p. 3, www.whitehouse.gov/sites/default/files/omb/reports/suitabi lity-and-security-process-review-report.pdf (visited June 14, 2014). Like the Fifth Circuit in United States v. El-Mezain, 664 F.3d 467, 568 (5th Cir. 2011), “we are unpersuaded by the defendants’ argument that the Government’s interest [in confidentiality] is diminished because defense counsel possess security clearance to review classified material.”
So in addition to having the requisite clearance the seeker must convince the holder of the information of the seeker’s need to know it. If the district judge’s threshold inquiry into whether Daoud’s lawyers needed any of the surveillance materials revealed that they didn’t, their security clearances would not entitle them to any of those materials. The statute says that disclosure of such materials to them must be “necessary”; even without that word (the vagueness of which in legal contexts is legendary, as lucidly explained in Cellular Telecommunications & Internet Ass’n v. FCC, 330 F.3d 502, 509–12 (D.C. Cir. 2003)), the judge in this case would have had to determine the lawyers’ need for the materials—more precisely, her need for them to have access to the materials so that she could make an accurate determination of the legality of the challenged surveillance. Rather than asserting such a need, she affirmed her capability of making an accurate determination without disclosing any classified materials to defense counsel. Because she was “capable” of making the determination, disclosure was not “necessary” under any

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definition of that word. We conclude regretfully that the judge thus disobeyed the statute.
Our own study of the classified materials has convinced us that there are indeed compelling reasons of national security for their being classified—that the government was being truthful in advising the district judge that their being made public “would harm the national security of the United States”—and that their disclosure to the defendant’s lawyers is (in the language of section 1806(f)) not “necessary” for “an accurate determination of the legality of the surveillance.” So clear is it that the materials were properly withheld from defense counsel that there is no need for a remand to enable the district judge to come to the same conclusion, because she would have to do so.
Not only do we agree with the district judge that it is possible to determine the legality of the government’s investigation of Daoud without disclosure of classified materials to his lawyers; our study of the materials convinces us that the investigation did not violate FISA. We shall issue a classified opinion explaining (as we are forbidden to do in a public document) these conclusions, and why therefore a remand to the district court is neither necessary nor appropriate.
One issue remains to be discussed. After the first oral argument, we held a brief in camera hearing at which questions were put by the panel to the Justice Department’s lead lawyer on the case concerning the classified materials. Only cleared court and government personnel were permitted at that hearing. The defendant’s lawyers, before leaving the courtroom as ordered, objected to our holding such a hearing and followed up their oral objection with a written mo-

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tion. Their objecting to the classified hearing was ironic. The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant.
Defense counsel’s written motion cites no authority for forbidding classified hearings, including classified oral arguments in courts of appeals, when classified materials are to be discussed. We don’t think there’s any authority it could cite. The propriety of such hearings was confirmed in United States v. Sedaghaty, 728 F.3d 885, 891 and n. 2 (9th Cir. 2013); cf. American Civil Liberties Union v. Department of Justice, 681 F.3d 61, 66, 70 (2d Cir. 2012). But we are granting the request of the defendant’s lawyers for a redacted transcript of our classified hearing.
Finally, for future reference we suggest that when a district judge is minded to disclose classified FISA materials to defense counsel—a decision bound to precipitate an appeal by the government—the judge issue a classified statement of reasons, as it probably will be impossible to explain in an unclassified opinion all the considerations motivating her decision. In this case, however, our review of the materials persuades us both that there was no basis for disclosure and that a remand would be of no value.
The order appealed from is
REVERSED.

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ROVNER, Circuit Judge. concurring. I join the court’s opinion in full. I write separately to address the difficulty of reconciling Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978), with a proceeding in which the defense has no access to the FISA application that resulted in court-authorized surveillance of the defendant. As the court has recognized, ante at 9, this is one of the principal arguments that Daoud made in support of his request for disclosure of the FISA application.
Franks holds that a search warrant must be voided and the fruits of the search excluded from evidence when (1) a defendant proves by a preponderance of the evidence that the affidavit on which the search warrant was based contained false statements that were either deliberately or recklessly made, and (2) the court determines that the remainder of the affidavit was insufficient by itself to establish probable cause. Id. at 155-56, 98 S. Ct. at 2676. The Franks framework applies to misleading omissions in the warrant affidavit (so long as they were deliberately or recklessly made) as well as to false statements. E.g., United States v. McMurtrey, 704 F.3d 502, 50809 (7th Cir. 2013) (collecting cases).
Daoud asserted that the government’s FISA application might contain material misstatements or omissions; but, of course, because the application is classified and his counsel has not seen it, he could present this only as a possibility. He therefore made a pro forma request for a Franks hearing, but argued principally that, without access to the FISA application, he could not make the preliminary showing that is ordinarily required before the court will conduct such a hearing. R. 52 at 18-19.
In making a blind request for a hearing and relief under Franks, Daoud is presented with the same conundrum that

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every defendant charged on the basis of FISA-acquired evidence encounters. A Franks motion is premised on material misrepresentations and omissions in the warrant affidavit; but without access to that affidavit, a defendant cannot identify such misrepresentations or omissions, let alone establish that they were intentionally or recklessly made. As a practical matter, the secrecy shrouding the FISA process renders it impossible for a defendant to meaningfully obtain relief under Franks absent a patent inconsistency in the FISA application itself or a sua sponte disclosure by the government that the FISA application contained a material misstatement or omission. To date, courts have either overlooked the problem or acknowledged it without being able to identify a satisfactory work-around.
I believe it is time to recognize that Franks cannot operate in the FISA context as it does in the ordinary criminal case. To pretend otherwise does a disservice to the defendant and to the integrity of the judiciary. We must recognize both that the defendant cannot make a viable Franks motion without access to the FISA application, and that the court, which does have access to the application, cannot, for the most part, independently evaluate the accuracy of that application on its own without the defendant’s knowledge of the underlying facts. Yet, Franks serves as an indispensable check on potential abuses of the warrant process, and means must be found to keep Franks from becoming a dead letter in the FISA context. The responsibility for identifying a solution lies with all three branches of government, but as the branch charged with applying Franks, the duty falls to the judiciary to acknowledge the problem, make such accommodations as it can, and call upon the other branches to make reforms that are beyond our power to implement.

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Toward that end, I think it useful to devote some attention to the holding and rationale of Franks, what it requires of the defendant in the ordinary criminal case, what courts have said about Franks in the FISA context, how ex parte, in camera proceedings hobble the Franks inquiry, and possible solutions to the problem.
1.
It was in Franks that the Supreme Court first acknowledged the right of a criminal defendant to attack the veracity of the affidavit underlying a search warrant and to have the fruits of the search suppressed if the warrant would not have issued but for misrepresentations made in the affidavit. Prior to that holding, although a majority of courts had come to the conclusion that such challenges should be permitted, there remained a division of authority on this point at both the federal and state levels. See id. at 159-60 nn.3-4 & App. B, 98 S. Ct. at 2678 nn.3-4 & App. B; (collecting conflicting rulings). In Franks itself, the Delaware Supreme Court had altogether foreclosed impeachment of the warrant affidavit, reasoning in part that it was “the function of the issuing magistrate to determine the reliability of information and credibility of affiants in deciding whether the requirement of probable cause has been met” and that “[t]here has been no need demonstrated for interfering with this function.” Franks v. State, 373 A.2d 578, 580 (Del. 1977), rev’d, 438 U.S. 154, 98 S. Ct. 2674. The United States Supreme Court resolved the conflict in favor of permitting impeachment, holding that where a defendant can establish that the warrant affiant made intentional or reckless material misstatements to the issuing judge, the results of the search must be suppressed if the remainder of the warrant would

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have been insufficient to establish probable cause. Id. at 155-56, 98 S. Ct. at 2676.
The Franks Court rested its holding on the Warrant Clause of the Fourth Amendment:
In deciding today that, in certain circumstances, a challenge to a warrant’s veracity must be permitted, we derive our ground from language of the Warrant Clause itself, which surely takes the affiant’s good faith as its premise: “[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation … .” Judge Frankel … put the matter simply: “[W]hen the Fourth Amendment demands a factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing” (emphasis in original). This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true. It is established law that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter. … Because it is the magistrate who must determine

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independently whether there is probable cause, it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or reckless[ly] false statement, were to stand beyond impeachment.
438 U.S. at 164-65, 98 S. Ct. at 2681 (citations omitted). Later in its opinion, in the course of addressing Delaware’s objections to any after-the-fact inquiry into the veracity of the warrant affidavit, the Court explained further why it rejected a rule that would foreclose any attempt to challenge the accuracy of the affidavit:
[A] flat ban on impeachment of veracity could denude the probable-cause requirement of all real meaning. The requirement that a warrant not issue “but upon probable cause, supported by Oath or affirmation,” would be reduced to a nullity if a police officer was able to use deliberately falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was able to remain confident that the ploy was worthwhile. It is this specter of intentional falsification that, we think, has evoked such widespread opposition to the flat nonimpeachment rule from the commentators, from the American Law Institute in its Model Code of PreArraignment Procedure, from the federal courts of appeals, and from state courts.
438 U.S. at 168, 98 S. Ct. at 2682-83 (citations & footnote omitted).
2.

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Although Franks allows a defendant to challenge the truthfulness of a warrant affidavit, he must surmount a significant threshold before the court is obliged to conduct an evidentiary hearing and to decide whether the search warrant was the product of an intentionally or recklessly false or misleading affidavit. In his Franks motion, the defendant must make a “substantial preliminary showing” that he is entitled to relief. Id. at 155, 98 S. Ct. at 2676. This requires him to do much more than point out inaccuracies in the warrant affidavit.
There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of a deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains suffi-

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cient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.
Id. at 171-72, 98 S. Ct. at 2684-85 (footnote omitted).
The “substantial preliminary showing” that Franks requires of the defendant is thus an onerous one. See, e.g., McMurtrey, 704 F.3d at 509; United States v. Johnson, 580 F.3d 666, 670 (7th Cir. 2009); United States v. Swanson, 210 F.3d 788, 790 (7th Cir. 2000). Consequently, although Franks motions are standard fare in criminal cases, evidentiary hearings are granted infrequently. Nonetheless, hearings do occur with a modicum of regularity. See, e.g., United States v. Spears, 673 F.3d 598, 602-3 (7th Cir.), cert. denied, 133 S. Ct. 232 (2012); United States v. Clark, 668 F.3d 934, 938-39 (7th Cir. 2012); United States v. Wilburn, 581 F.3d 618, 621-22 (7th Cir. 2009); United States v. Merritt, 361 F.3d 1005, 1010-11 (7th Cir. 2004), cert. granted & judgment vacated on other grounds, 543 U.S. 1099, 125 S. Ct. 1024 (2005); United States v. Whitley, 249 F.3d 614, 617-19 (7th Cir. 2001). Cases in which a motion to suppress is ultimately granted after such a hearing are even more uncommon, but they too occur. See, e.g., United States v. Brown, 631 F.3d 638, 649-50 (3d Cir. 2011) (affirming suppression); United States v. Foote, 413 F.3d 1240, 1244 (10th Cir. 2005) (noting but not ruling on partial suppression ordered by district court); United States v. Wells, 223 F.3d 835, 839-40 (8th Cir. 2000) (affirming suppression); United States v. Hall, 113 F.3d 157, 159-61 (9th Cir. 1997) (affirming suppression).

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Despite the high bar to relief that Franks imposes, it has proven to be more than a lofty statement of principle that is often recited but in practice never results in relief. My experience as both a trial and appellate judge has convinced me that it is a vital part of the criminal process that subjects warrant affidavits to useful adversarial testing, and occasionally, if not often, results in the suppression of evidence seized as a result of the false or misleading warrant application, as Franks itself envisioned. 438 U.S. at 156, 98 S. Ct. at 2676. (Whether the same or a different form of relief would be appropriate in a case involving alleged terrorism is an issue that must be reserved for a case that presents it: To the best of my knowledge, no defendant has yet succeeded in getting to a Franks hearing in a criminal prosecution resulting from FISA surveillance.) And, no doubt, the prospect of a Franks hearing and the possibility of suppression serves as a meaningful deterrent to an overzealous law enforcement official who might be tempted to present a misleading account of the facts to the judge from whom he seeks a warrant.
3.
This court’s opinion in United States v. Ning Wen, 477 F.3d 896, 897-98 (7th Cir. 2007), makes clear that a FISA order qualifies as a warrant for purposes of the Fourth Amendment even if it authorizes only the interception of electronic communications as opposed to a physical search; and it has been widely assumed, if not affirmatively stated, in the decisions of other courts that Franks applies to FISA applications. See, e.g., United States v. El-Mezain, 664 F.3d 467, 570 (5th Cir. 2011), cert. denied, 133 S. Ct. 525 (2012); United States v. Abu-Jihaad, 630 F.3d 102, 130-31 (2d Cir. 2010); United States v. Damrah, 412 F.3d 618, 624-25 (6th Cir. 2005); United States v. Duggan, 743 F.2d 59, 77

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n.6 (2d Cir. 1984), superseded on other grounds by statute as recognized in Abu-Jihaad, 630 F.3d at 119-20; United States v. Hussein, 2014 WL 1682845, at *2 (S.D. Cal Apr. 29, 2014); United States v. Huang, ___ F. Supp. 2d ___, 2014 WL 1599463, at *8 (D. N.M. Apr. 22, 2014); United States v. Omar, 2012 WL 2357734, at *3 & n.1 (D. Minn. June 20, 2012); United States v. Mehanna, 2011 WL 3652524, at *2 (D. Mass. Aug. 19, 2011); United States v. Kashmiri, 2010 WL 4705159, at *5-*6 (N.D. Ill. Nov. 10, 2010); United States v. Gowadia, 2009 WL 1649714, at *3 (D. Hi. June 8, 2009); United States v. Mubayyid, 521 F. Supp. 2d 125, 130-31 (D. Mass. 2007); United States v. Hassoun, 2007 WL 1068127, at *3-*4 (S.D. Fla. Apr. 4, 2007). In this case, the government likewise assumes that Franks applies to the FISA context; it certainly does not argue to the contrary. See R. 73 at 43-47 (contending to district court that Daoud had not made a sufficient showing to trigger a Franks hearing, but making no argument that Franks does not apply in the FISA context).
4.
However, notwithstanding the presumed applicability of Franks to the FISA framework, defendants in FISA cases face an obvious and virtually insurmountable obstacle in the requirement that they make a substantial preliminary showing of deliberate or reckless material falsehoods or omissions in the FISA application without having access to the application itself. Franks, as I have discussed, requires such a showing before the court is obliged to convene an evidentiary hearing. And the necessary first step in that showing is to identify specific portions of the warrant affidavit that the defendant believes are false or misleading. Franks, 438 U.S. at 171, 98 S. Ct. at 2684.
In the typical criminal case, the defendant has access to the warrant affidavit. Coupled with his own knowledge of what he

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or his accomplices said and did, the defendant can at least show that the government’s affiant misstated or omitted facts pertinent to the probable cause determination—although he is, of course, required to go further and give the court reason to believe that the misstatement or omission was deliberate or reckless, see id. But without access to the FISA application, the defendant has no idea how the government represented the facts to the Foreign Intelligence Surveillance Court (“FISC”), let alone whether and how the government may have misstated the facts in some way. Practically speaking, the defense can only make a blind suggestion that there is a possibility that the FISA application may contain false statements or omissions and that a Franks hearing may be necessary, and cite this possibility as a reason for ordering disclosure. That is essentially what Daoud did here.
Some courts have acknowledged the inherent difficulty that defendants face without access to the FISA application; but those courts have insisted nonetheless that defendants must somehow make the same preliminary showing—that the government presented a distorted set of facts to the judge issuing the warrant—that Franks would require in the usual criminal case. The court’s remarks in Kashmiri represent a thoughtful example:
The Court recognizes the frustrating position from which Defendant must argue for a Franks hearing. Franks provides an important Fourth Amendment safeguard to scrutinize the underlying basis for probable cause in a search warrant. The requirements to obtain a hearing, however, are seemingly unattainable by Defendant. He does not have access to any of the materials

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concerning the FISA application or surveillance; all he has is notice that the government plans to use this evidence against him.
Nevertheless, to challenge the veracity of the FISA application, Defendant must offer substantial proof that the FISC relied on an intentional or reckless misrepresentation by the government to grant the FISA order. The quest to satisfy the Franks requirements might feel like a wild-goose chase, as Defendant lacks access to the materials that would provide this proof. This perceived practical impossibility to obtain a hearing, however, does not constitute a legal impossibility. If Defendant obtains substantial proof that the FISC relied upon an intentional or recklessly false statement to approve the FISA order, he could obtain a hearing. …
2010 WL 4705159, at *6. See also United States v. Alwan, 2012 WL 399154, at *9-*10 (W.D. Ky. Feb. 7, 2012) (quoting Kashmiri); Mehanna, 2011 WL 3652524, at *2 (“The Court recognizes the defendant's difficulty in making such a preliminary showing where the defendant has no access to the confidential FISA-related documents here.”); United States v. Abu-Jihaad, 531 F. Supp. 2d 299, 311 (D. Conn. 2008) (“Since defense counsel has not had access to the Government's submissions they—quite understandably—can only speculate about their contents.”), j. aff’d, 630 F.3d 102; Mubayyid, 521 F. Supp. 2d at 131 (see quoted passage below); Hassoun, 2007 WL 1068127, at *4 (“Defendants admit that their allegations are purely speculative, in that they have not been given the opportunity to review the classified applications.”).

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I note that in Mubayyid, the court expressly rejected this difficulty as a ground sufficient to warrant disclosure of the FISA application to the defense:
The Court obviously recognizes the difficulty of defendants' position: because they do not know what statements were made by the affidavit in the FISA applications, they cannot make any kind of a showing that those statements were false. See Belfield, 692 F.2d at 148. Nonetheless, it does not follow that defendants are entitled automatically to disclosure of the statements. The balance struck under FISA—which is intended to permit the gathering of foreign intelligence under conditions of strict secrecy, while providing for judicial review and other appropriate safeguards—would be substantially undermined if criminal defendants were granted a right of disclosure simply to ensure against the possibility of a Franks violation.
521 F. Supp. 2d at 131 (citing United States v. Belfield, 692 F.2d 141, 148 (D.C. Cir. 1982) (expressing sympathy for similar difficulty defendant would have in attempting to show case was so complex that disclosure of FISA materials is warranted)). The Mubayyid court went on to note that Congress was aware of the difficulties posed to the defense by a presumption against disclosure of FISA materials, but nonetheless “‘chose to resolve them through means other than mandatory disclosure.’” Id. (quoting Belfield, 692 F.2d at 148).
One tactic that some defendants have attempted in order to trigger either a Franks hearing, or disclosure of the FISA materials so that the defense can make a proper preliminary

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showing under Franks, is to cite reports which take note of various misrepresentations that have been made to the FISC over the years and which have been confessed by the government after the fact. These disclosures, defendants reason, demonstrate that the possibility of a material misrepresentation or omission in the FISA application is more than a theoretical one. Most relevant in this regard is In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp.2d 611, 620 (Foreign Int. Surv. Ct. 2002), abrogated by In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct. Rev. 2002), in which the court recounted the government’s revelation that 75 prior FISA applications related to major terrorist attacks directed against the United States contained misstatements and omissions of material facts (concerning such topics as whether the target of FISA surveillance was under criminal investigation, whether overlapping criminal and intelligence investigations were being appropriately compartmentalized in terms of information-sharing, and the prior relationship between the FBI and the FISA target). That disclosure led the FISC to bar one FBI agent from ever appearing before the court again as a FISA affiant. 218 F. Supp. 2d at 621. Daoud has relied on this opinion and others to demonstrate why disclosure of the FISA application to the defense is warranted for purposes of assessing the truthfulness of the application and, if discrepancies are found, to make the substantial preliminary showing that Franks requires. See R. 52 at 24-26.
Pointing to prior instances of falsehoods may be useful as a means of demonstrating a need for a Franks procedure or an equivalent in the FISA context, but it is of little use in satisfying the Franks standard, as it sheds no light on the truth or falsity of the particular FISA application under review. See, e.g., Hassoun, 2007 WL 1068127, at *4. Nor does it substantiate the

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necessity of disclosure of a FISA application in a particular case, unless there is reason to think that the FISA affiant is one who has been found to have made misleading applications before. See id. (noting the government’s representation that the affiant was not the one who had been barred from appearing before the FISC).
A potential alternative was addressed by both the government and the members of the court at the oral arguments in this case. Although a defendant may not know what specific allegations were made in the FISA application, he necessarily does know what he has done and said. A savvy defense attorney might be able to surmise from the materials produced in discovery roughly when FISA surveillance began and what general types of information the government likely relied on in its warrant application. Counsel could in turn ascertain from his client which of his actions and statements—and those of his accomplices—the government might have known about and relied on to establish probable cause before the FISC. In theory, the defense could present that information to the court and the court could compare the defense information with the representations in the FISA application and see if there are any important differences that might implicate the FISC’s probable cause determination. Any such discrepancies might be grounds for disclosure of the FISA application to the defense so that it might attempt to make a proper Franks showing.
However, there are multiple problems posed by this scenario. To begin, rather than being able to rebut specific representations in the application, the defendant would have

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to supply the court with a narrative of his own conduct.1 In doing so, the defendant would run the risk that he might disclose inculpatory facts about himself or an accomplice of which the government was not previously aware.2
Second, it will often be difficult for a defendant to recall and reconstruct all of the many communications and statements that the FISA application may have relied on to establish probable cause. Where it seems obvious that a discrete and recent event triggered a FISA application (something like the 2013 bombing at the Boston marathon, for example), recollecting and documenting a defendant’s acts and statements before and after that event may present a straightforward task. But in the modern era, people have at their disposal an almost unlimited means of communicating (phone, text, email, and all manner of social media), and young people like Daoud are often parties to many dozens of such communications per day. See, e.g., Amanda Lenhart, Pew Research Center, Teens, Smartphones & Texting (Mar. 19, 2012) (“The median number of texts … sent on a typical day by teens [was] 60 in 2011.”), available at http://pewinternet.org/Reports/2012/Teens-andsmartphones.aspx (last visited June 12, 2014). Recalling everything that one might or might not have said in the vast universe of his electronic chatter—and likewise what his accomplices have said—would pose a daunting task for anyone not gifted with total recall.
1 I am assuming that, as with a defendant’s testimony in support of a motion to suppress, the defendant’s narrative could not be introduced against him at trial on the issue of guilt over his objection. See Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 976 (1968).
2 Permitting the defendant to submit his narrative ex parte for review by the court in camera presumably would resolve that problem.

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Third, a narrative-based approach allows for manipulation of the court, by giving the defense an incentive to present the most exculpatory (and incomplete) version of his actions and statements in order to maximize the chances that the court will order disclosure of the FISA application. If the defendant’s threshold burden is to convince the court simply that the application may not have accurately described the defendant’s actions, then his best shot at carrying that burden is to present the most self-serving version of events that he can without outright lying to the court. Balance and candor would work against him, because the more inculpatory things he acknowledges, the more likely it is that the court will conclude there is no material factual dispute justifying disclosure of the FISA application—that the gist of the FISA application is consistent with the gist of the defendant’s factual narrative.
Setting that point aside, let us suppose that a defendant in good faith presents a counter-narrative of the facts that convinces the court that disclosure of the FISA application is appropriate so that defense counsel may further pursue a Franks claim. It should be noted that producing the application to security-cleared defense counsel would pose the same risk of inadvertent disclosure to the defendant, and possible injury to national security, that the government has cited in challenging the disclosure that was ordered in this case.
More to the point, putting a copy of the FISA application in the defense counsel’s hand would not necessarily enable a truly adversarial and robust Franks process. The defendant’s attorney would not be authorized to disclose any classified material to his or her client; so the attorney would not be able to examine each material statement in the FISA application and discuss with the client whether it is accurate from the client’s

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perspective. Even by asking the client generic, non-leading questions, counsel might inadvertently tip off the client to the classified evidence or sources the government may have relied on in the FISA application. And yet it would be difficult, if not impossible, for counsel to test the accuracy of the FISA application without disclosing the classified material to the client. In the end, the defense might be just as hamstrung in pursuing a Franks motion with disclosure of the FISA application to defense counsel as it would be without such disclosure.
Finally, even if it were possible for a defendant to make a preliminary Franks showing despite these obstacles, in cases involving sensitive information (which is most FISA cases, I would think), one wonders whether there could realistically be the sort of full-fledged, adversarial Franks hearing that takes place in a more typical criminal case, cf. United States v. Whitley, supra, 249 F.3d at 617-19 (recounting the extensive testimony bearing on defendant’s Franks motion), even if the hearing were conducted in secrecy. Such a hearing would potentially expose the government’s sources and methods of investigation to scrutiny that might jeopardize national security.
5.
Without access to the FISA application, it is doubtful that a defendant could ever make a preliminary showing sufficient to trigger a Franks hearing. The court in Kashmiri said that “[t]his perceived practical impossibility to obtain a hearing … does not constitute a legal impossibility,” 2010 WL 4705159, at *6, but it is not clear to me why this is so. It seems to me that only if the government itself somehow disclosed to the court or to the defense a material misrepresentation or omission in the FISA application, the court itself noticed a patent inconsistency in the application and pursued it, or a court reviewing many

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such applications noticed a suspicious pattern, could that showing be made. Those instances will be rare indeed, and they will occur wholly independently of the adversarial process that Franks envisions.
What courts sometimes say is that they have conducted their own careful review of the FISA materials and discovered no material misrepresentations or omissions in the FISA application. Thus, the Kashmiri court, after noting the difficulty the defendant would have in making the threshold showing that Franks requires, noted that it had “already undertaken a process akin to a Franks hearing through its ex parte, in camera review of the FISA materials” and detected no basis for further inquiry under Franks. 2010 WL 4705159, at *6 (citing 50 U.S.C. § 1806(f)). See also Gowadia, 2009 WL 1649714, at *3; Abu-Jihaad, 531 F. Supp. 2d at 311-12.
Yet, although a court may be able to discover inconsistencies in the FISA materials, its ability to discover false statements and omissions is necessarily limited, as it has only the government’s version of the facts. Franks itself recognizes that an ex parte inquiry into the veracity of the warrant affidavit is necessarily “less vigorous” than an adversarial hearing, as the judge “has no acquaintance with the information that may contradict the good faith and reasonable basis of the affiant’s allegations.” 438 U.S. at 169, 98 S. Ct. at 2683. The defendant is in the best position to know whether the government’s version of events is inaccurate, as the defendant knows what he said and did, when, where, and to whom, and the defendant will often know the same about what his accomplices said and did.
If disclosure of the FISA application is to be the exception rather than the rule, then we must look for a means of ensuring that FISA affiants act in good faith and that the Fourth Amend-

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ment’s probable-cause requirement is not “denude[d] … of all real meaning.” Franks, 438 U.S. at 168, 98 S. Ct. at 2682.
6.
I indicated earlier that I view it as mistaken to believe that a judge will be able on his or her own to ferret out any potential misrepresentations or omissions in the FISA application, given that the judge lacks a defendant’s knowledge as to the facts underlying the application and has only the government’s version of the facts as a reference point. There may be a subset of FISA cases, however, in which a judge could make a meaningful effort to confirm the accuracy of the application and thus serve the same interest in ensuring truth and candor in the warrant process that a Franks motion serves. These would be cases in which the FISA application is based in part on a defendant’s documented statements. If, for example, the defendant has communicated his terrorist sympathies or plans in an email or a text to someone who turns a copy over to the government, or has posted such thoughts online, as the criminal complaint in this case notes that Daoud did (see R. 1 at 5 ¶ 7), and those statements are cited in the FISA application, the court could ask the government to produce complete copies of those statements for review in camera. Having those statements in hand would enable the court to verify that they were fairly recounted in the FISA application—both in the sense that the defendant was not misquoted and in the sense that the government did not omit portions of a statement that were critical for context. Taking that step would permit the court to conduct something akin to a Franks inquiry albeit without defense input—perhaps something very much like the district court in Kashmiri referenced. 2010 WL 4705159, at *6.

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Even such a modest step may strike some as a departure from the judge’s usual detached role, and indeed it does require a judge to act as something more than a passive umpire. But it strikes me as a reasonable measure that respects both the national security interest as well as the practical obstacles that the defense faces in pursuing a Franks motion without access to those materials. As Judge Posner has pointed out today, there are any number of proceedings which are not wholly adversarial and which call on the court to exercise its judgment independently of the arguments presented to it. Ante at 6-7. To my mind, a Franks motion filed in a case involving FISA surveillance presents just such a situation, given that the defense cannot litigate that motion in the usual way. The court, which has unrestricted access to the FISA application, can make limited and reasonable efforts to do what the defense cannot: determine if the face of the FISA application is consistent with whatever documented statements of the defendant (or his accomplices) that the government might have in its possession.
There may be other steps that the judge can take to try and confirm the accuracy of the FISA application, but my essential point is this: courts cannot continue to assume that defendants are capable of carrying the burden that Franks imposes when they lack access to the warrant application that is the starting point for any Franks inquiry. Courts must do what they can to compensate for a defendant’s ignorance as to what the FISA application contains. Otherwise, Franks will persist in name only in the FISA setting.
Beyond this, it remains for Congress and the Executive Branch to consider reforms that might address some of the concerns I have raised here. If, as a pragmatic matter, Franks

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cannot function as a check on potential abuses of the warrant process in FISA cases, then there may be other institutional means of addressing the Fourth Amendment and due process rights that Franks is meant to protect in the standard criminal setting. Privacy concerns, for example, have resulted in multiple proposals before Congress calling for the creation of a “Special Advocate,” with appropriate security clearance, whose job it would be to serve as a privacy advocate and to oppose the government in certain FISC proceedings.3 The practical obstacles to impeaching the veracity of FISA applications warrant exploration of comparable measures that respect the spirit, if not the letter, of Franks.
7.
Imagining ways to make Franks workable in a classified setting is difficult, as the foregoing discussion demonstrates and as the government’s counsel candidly acknowledged at oral argument. My purpose in engaging in this discussion has been to acknowledge a problem that thus far has not been addressed as deeply as it should be by the judiciary. Thirty-six years after the enactment of FISA, it is well past time to

3 See, e.g., Steve Vladeck, Judge Bates and a FISA “Special Advocate,” LAWFARE (Feb. 4, 2014), http://www.lawfareblog.com/2014/02/judge-batesand-a-fisa-special-advocate/ (last visited June 12, 2014); The Constitution Project, The Case for a FISA “Special Advocate,” (May 29, 2014), available at http://www.constitutionproject.org/wp-content/uploads/2014/05/The-Casefor-a-FISA-Special-Advocate_FINAL.pdf. (last visited June 12, 2014). The continuity of such a position might allow the Special Advocate to recognize patterns of suspect behavior that would otherwise go unnoticed, and bring them to the court’s attention before they reach the extent noted in In re All Matters Submitted to the Foreign Intelligence Surveillance Court, supra, 218 F.Supp.2d at 620-21, which came to light only because the government itself informed the court after the fact.

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recognize that it is virtually impossible for a FISA defendant to make the showing that Franks requires in order to convene an evidentiary hearing, and that a court cannot conduct more than a limited Franks review on its own. Possibly there is no realistic means of reconciling Franks with the FISA process. But all three branches of government have an obligation to explore that question thoroughly before we rest with that conclusion.

 
 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

June 16, 2014

FINAL JUDGMENT

Before:

RICHARD A. POSNER, Circuit Judge MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge

UNITED STATES OF AMERICA, Plaintiff - Appellant

No.: 14-1284

v.

ADEL DAOUD, Defendant - Appellee
Originating Case Information:
District Court No: 1:12-cr-00723-1 Northern District of Illinois, Eastern Division District Judge Sharon Johnson Coleman

The order appealed from is REVERSED in accordance with the decision of this court entered on this date.

form name: c7_FinalJudgment(form ID: 132)

 
 Case: 1:12-cr-00723 Document #: 42 Filed: 05/22/13 Page 1 of 5 PageID #:123

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

ADEL DAOUD,

)

)

Defendant.

)

No. 12 CR 723 Judge Sharon Johnson Coleman

DEFENDANT’S MOTION FOR NOTICE OF FISA AMENDMENTS ACT EVIDENCE PURSUANT TO 50 U.S.C. §§ 1881e(a), 1806(c)

Defendant, ADEL DAOUD, by and through his attorneys, THOMAS ANTHONY

DURKIN, JANIS D. ROBERTS, and JOSHUA G. HERMAN, pursuant to 50 U.S.C. §§

1881e(a) and 1806(c), and the Search and Seizure, Due Process, and Effective Assistance of

Counsel provisions of the Fourth, Fifth, and Sixth Amendments to the Constitution of the United

States, respectfully requests that this Court enter its order requiring the government to give

formal notice of the following specifics pertaining to its September 18, 2012, Notice of Intent to

Use Foreign Intelligence Surveillance Act Information (“FISA Notice”) (Dkt. # 9), a copy of

which is attached hereto as Exhibit A. These specifics, at a minimum, are: (1) whether the

electronic surveillance described in its FISA Notice was conducted pursuant to the pre-2008

provisions of the Foreign Intelligence Surveillance Act (“FISA”) or, instead, the FISA

Amendments Act (“FAA”); and, (2) whether the affidavit and other evidence offered in support

of any FISA order relied on information obtained or derived from an FAA surveillance order.

In support of this motion, Defendant, through counsel, shows to the Court the following:

Case: 1:12-cr-00723 Document #: 42 Filed: 05/22/13 Page 2 of 5 PageID #:124
1. On July 10, 2008, the FAA was signed into law and codified at 50 U.S.C. § 1881a.1 The Supreme Court recently discussed that while the FAA left much of FISA intact, it “established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1444 (2013) (internal quotation marks omitted).2 Specifically, 50 U.S.C. § 1881a “supplements pre-existing FISA authority by creating a new framework under which the Government may seek the [Foreign Intelligence Surveillance Court’s] authorization of certain foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad.” Clapper, 133 S. Ct. at 1444. The controversial FAA provides the government with much broader surveillance powers compared to traditional FISA surveillance, as the FAA 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 it 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.” Id.
2. On September 18, 2012, the government filed its FISA Notice in this case, by which the government filed a written notice stating in pertinent part that it intended to “offer into evidence, or otherwise use or disclose in any proceedings in this matter, information obtained and derived from electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829.” The government stated that this notice was pursuant to 50 U.S.C. §§ 1806(c) and 1825(d), the
1 The FAA was reauthorized by President Obama on December 30, 2012 for five years, until December 31, 2017. 2 The plaintiffs in the Clapper case were various attorneys and human rights, labor, legal, and media organizations who brought an action for a declaration that § 1881a was unconstitutional and sought an injunction against § 1881aauthorized surveillance. The Supreme Court ultimately dismissed the plaintiff’s lawsuit for lack of Article III standing.
2

Case: 1:12-cr-00723 Document #: 42 Filed: 05/22/13 Page 3 of 5 PageID #:125
sections that set forth FISA’s notice requirements for electronic surveillance and physical searches, respectfully.
3. The FISA Notice does not, however, indicate whether the government intends to use evidence obtained, or derived from, surveillance authorized by the FAA or pre-FAA FISA surveillance standards. As a result, it is not possible for counsel to determine whether the information subject to the FISA Notice was intercepted pursuant to the FAA. By statute, and as a matter of Due Process, counsel submit that Defendant is entitled to notice of the government’s intent to use FAA evidence against him. See 50 U.S.C. §§ 1881e(a), 1806(c); Clapper, 133 S. Ct. at 1142.
4. While the FISA Notice does not state whether the government intends to use evidence obtained or derived from FAA surveillance, Senate floor comments by Senator Diane Feinstein (D-CA) indicate that the government in fact used the FAA in this case. Specifically, on December 27, 2012, Senator Feinstein urged the Senate to reauthorize the FAA and in doing so made direct reference to this case being one of the nine specific cases in which the FAA had been used. A copy of the relevant portion of Senator Feinstein’s remarks is attached as Exhibit B, with emphasis added. Senator Feinstein’s reference to a “plot to bomb a downtown Chicago bar” unmistakably refers to this case.
5. For the above-stated reasons, as well as those set forth in the accompanying Memorandum of Law, which is incorporated herein, counsel request that the Court grant this motion.
3

Case: 1:12-cr-00723 Document #: 42 Filed: 05/22/13 Page 4 of 5 PageID #:126

DURKIN & ROBERTS 2446 North Clark St. Chicago, Illinois 60614 (312) 913-9300 tdurkin@durkinroberts.com jherman@durkinroberts.com

Respectfully submitted,
/s/Thomas Anthony Durkin THOMAS ANTHONY DURKIN,
/s/Joshua G. Herman JOSHUA G. HERMAN, Attorneys for Defendant Adel Daoud.

4

Case: 1:12-cr-00723 Document #: 42 Filed: 05/22/13 Page 5 of 5 PageID #:127 CERTIFICATE OF SERVICE
Joshua G. Herman, Attorney at Law, hereby certifies that the foregoing Defendant’s Motion for Notice of FISA Amendments Act Evidence Pursuant to 50 U.S.C. §§ 1881e(a), 1806(c), was served on May 22, 2013, in accordance with Fed.R.Crim.P.49, Fed.R.Civ.P.5, LR 5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district court’s system as to ECF filers.
/s/ Joshua G. Herman JOSHUA G. HERMAN, Attorney at Law. DURKIN & ROBERTS 2446 N. Clark Street Chicago, IL 60614 (312) 913-9300
5

 
 Case: 1:12-cr-00723 Document #: 51 Filed: 08/09/13 Page 1 of 6 PageID #:213

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

ADEL DAOUD,

)

)

Defendant.

)

No. 12 CR 723 Judge Sharon Johnson Coleman

DEFENDANT’S MOTION FOR DISCLOSURE OF FISA-RELATED MATERIAL AND TO SUPPRESS THE FRUITS OR DERIVATIVES OF ELECTRONIC
SURVEILLANCE AND ANY OTHER MEANS OF COLLECTION CONDUCTED PURSUANT TO FISA OR OTHER FOREIGN INTELLIGENCE GATHERING Defendant, ADEL DAOUD, by and through his attorneys, THOMAS ANTHONY
DURKIN, JANIS D. ROBERTS, and JOSHUA G. HERMAN, pursuant to the Free Exercise, Free Speech, Search and Seizure, and Due Process clauses of the First, Fourth, and Fifth Amendments to the Constitution of the United States, as well as the relevant provisions of the Foreign Intelligence Surveillance Act (“FISA”), specifically 50 U.S.C. §1806(f) and (g), hereby moves for disclosure of FISA-related materials, and to suppress any fruits or derivatives of electronic surveillance and any other means of collection conducted pursuant to FISA or any other foreign intelligence gathering or any intelligence agencies of the United States.
In support of this motion, Defendant, through counsel, shows to the Court the following: 1. On September 18, 2012, the government filed its “Notice of Intent to Use Foreign Intelligence Surveillance Act Information” (“FISA Notice”) (Dkt. #9). 2. On May 22, 2013, counsel for Defendant moved for notice of disclosure of FISA Amendments Act (“FAA”)evidence pursuant to 50 U.S.C. §§ 1881e(a) and 1806(c). Counsel specifically requested notice of: (1) whether the electronic surveillance described in its FISA

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Notice was conducted pursuant to the pre-2008 provisions of the FISA or, instead, the FAA; and, (2) whether the affidavit and other evidence offered in support of any FISA order relied on information obtained or derived from an FAA surveillance order. (Dkt. # 42). That motion is presently pending.1
3. In addition to the relief requested in Defendant’s FAA motion, Defendant now moves to suppress the fruits of any FISA surveillance and for disclosure of FISA-related materials that may be necessary to litigate motions for discovery and a suppression motion.
4. As set forth in the accompanying Memorandum of Law filed herewith, there are numerous grounds for suppression of the fruits or derivatives of FISA surveillance of Defendant. Most notably, there is no indication that the prerequisites for a FISA warrant were present in this case. To the contrary, and based on a review of the voluminous discovery produced thusfar by the government, the government’s investigation was ostensibly triggered by Defendant’s online activity on popular websites—such as Yahoo, Google, and YouTube—visited by millions of Americans daily. That online activity included the expression of viewpoints, discussions with other online users in public and private chats, and posting and commenting on videos and other materials. Significantly, discovery produced by the government also includes Defendant’s online activity even before he reached the age of eighteen. To the extent that the FISA investigation was based on Defendant’s protected First Amendment activity, counsel submit it was improperly authorized under FISA, and any evidence gathered from it should be suppressed. See § 1805(a)(2)(A) (providing that “no United States person may be considered a foreign power solely upon the basis of activities protected by the first amendment.”)
1 Late in the day on August 8, 2013, the government filed a pleading entitled, “Government’s Sur-Reply to Defendant’s Motion for Notice of FISA Amendments Act Evidence Pursuant to §§ 1881(e)(a) and 1806(c).” (Dkt. #49.) To say that this pleading is contorted and obfuscating would be putting it mildly. It will necessarily require a responsive pleading.
2

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5. Additional grounds for suppression, which are discussed in greater detail in the
accompanying Memorandum of Law, are as follows:
a) the FISA applications for electronic surveillance of Defendant’s email accounts may fail to establish probable cause that Defendant, a high school student from suburban Chicago and United States citizen was “an agent of a foreign power;”
b) those FISA applications may contain intentional or reckless material falsehoods or omissions, and therefore may violate the Fourth Amendment principles identified in Franks v. Delaware, 438 U.S. 154 (1978);
c) the primary purpose of the electronic surveillance was to obtain evidence of domestic criminal activity and not foreign intelligence information—or, conversely, capturing foreign intelligence information was not a “significant” purpose of the FISA surveillance;
d) the FISA surveillance may have been based impermissibly on activity protected by the First Amendment;
e) the government may not have made the required certifications in the FISA applications, or may have failed to obtain necessary extensions of prior FISA orders, or continued the FISA surveillance after any basis for such initial surveillance was no longer valid;
f) the government may not have established or abided by the appropriate minimization procedures required by FISA; and
g) the government may have violated other provisions of FISA and/or the First and/or Fourth Amendments in manners unknown to Defendant.
6. Thus, simply based on the discovery tendered by the government, counsel submit
they have a sufficient grounds to move for the suppression of any and all fruits or derivatives of
electronic surveillance collected pursuant to FISA or the FAA. Even absent the utilization of
FAA surveillance—which, based on Senator Diane Feinstein’s public comments was used in this
case—this case appears to present a question of first impression regarding the now widely
publicized unlawful government electronic surveillance of an American citizen’s domestic
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communications.2
7. However, for Defendant have an opportunity to present these arguments as
completely as possible so that the Court may make a fully informed decision, the Court should
also order the disclosure of FISA-related material necessary for the litigation of this Motion—
particularly the FISA applications and warrants. This material should set forth the basic
information that Defendant requires in order to make his suppression motion as well as potential
discovery motions, including for Brady material. It is also the type of information that
Defendant would be routinely entitled to in any other criminal case that does not involve the
national security concerns that FISA statutorily triggers.
8. Accordingly, counsel specifically request that the Court:
a) review all applications for electronic surveillance of the defendant conducted pursuant to FISA;
b) order the disclosure of the applications for the FISA warrants to Defendant’s counsel pursuant to an appropriate protective order;
c) conduct an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978); and,
d) as a result, suppress all FISA intercepts and seizures, and fruits thereof, derived from illegally authorized or implemented FISA electronic surveillance.
9. Finally, the Court should also consider the constitutionality of FISA, both facially
and as applied in this case under the First and Fourth Amendments, given that purpose of the
FISA surveillance here does not appear to have any connection, much less a “significant
2 See, e.g., James Bamford, They Know Much More Than You Think, Aug. 8, 2013, N.Y. REV. OF BOOKS, Shiffman, John; Kristina Cooke, Exclusive: U.S. directs agents to cover up program used to investigate Americans, Aug. 5, 2013, Reuters (available at http://www.reuters.com/article/2013/08/05/us-dea-sodidUSBRE97409R20130805); Charlie Savage, N.S.A Said to Search Content of Messages to and From U.S., Aug. 8, 2013, N.Y. Times, (available at http://www.nytimes.com/2013/08/08/us/broader-sifting-ofdata-abroad-is-seen-by-nsa.html?hp&_r=0&pagewanted=all); Glen Grenwald and James Ball, The Top Secret Rules that Allow NSA to use US data without a warrant, June 20, 2013, THE GUARDIAN (available at http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-without-warrant).
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purpose” for foreign intelligence of a foreign power or agent of a foreign power.3 This is particularly significant given the numerous recent disclosures regarding the vast surveillance of domestic communications involving American citizens, which, by all appearances, is precisely what occurred here. To the extent that the Court finds FISA unconstitutional, either facially or as applied, any and all fruits of FISA surveillance should be suppressed.
Respectfully submitted,
/s/ Thomas Anthony Durkin THOMAS ANTHONY DURKIN,
/s/ Janis D. Roberts JANIS D. ROBERTS,
/s/ Joshua G. Herman JOSHUA G. HERMAN, Attorneys for Defendant Adel Daoud.
DURKIN & ROBERTS 2446 N. Clark Street Chicago, Illinois 60614 (312) 913-9300 tdurkin@durkinroberts.com jdroberts@durkinroberts.com jherman@durkinroberts.com
3 Counsel reserve the right to raise any constitutional challenges to the FAA.
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CERTIFICATE OF SERVICE
Thomas Anthony Durkin, Attorney at Law, hereby certifies that Defendant’s Motion for Disclosure of FISA-Related Material and to Suppress the Fruits or Derivatives of Electronic Surveillance and Any Other Means of Collection Conducted Pursuant to FISA or Other Foreign Intelligence Gathering was served on August 9, 2013, in accordance with Fed.R.Crim.P.49, Fed.R.Civ.P.5, LR 5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district court’s system as to ECF filers.
/s/ Thomas Anthony Durkin THOMAS ANTHONY DURKIN 2446 N. Clark Street Chicago, IL 60614 (312) 913-9300 tdurkin@durkinroberts.com

 
 Case: 1:12-cr-00723 Document #: 63 Filed: 08/26/13 Page 1 of 26 PageID #:385

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA )

)

v.

)

)

ADEL DAOUD

)

No. 12 CR 723 Hon. Sharon Johnson Coleman

GOVERNMENT’S CONSOLIDATED RESPONSE TO DEFENDANT’S PRETRIAL MOTIONS

The UNITED STATES OF AMERICA, by GARY S. SHAPIRO, United

States Attorney for the Northern District of Illinois, respectfully submits its

consolidated response to defendant Adel Daoud’s pretrial motions (Doc. #54

through #59).1

Background

On the evening of September 14, 2012, defendant was arrested after

attempting to detonate what he believed to be car bomb in front of a bar in

downtown Chicago, the culmination of a lengthy FBI investigation. Doc. #1 at

5-6. As a result, defendant has been charged with attempting to use a weapon

of mass destruction, in violation of Title 18, United States Code, Section

2332a(a)(2)(D), and attempting to destroy a building used in interstate

commerce, in violation of Title 18, United States Code, Section 844(i).

Doc. #16.

1 The government will separately respond to defendant’s motion for disclosure of FISA-related material and to suppress FISA-derived evidence. Doc. #52.

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Argument I. Defendant’s Motion for Additional Discovery Regarding the
Government’s Surveillance and Investigation Should Be Denied [Doc. #54] Defendant’s discovery motion requests a wide range of material relating to the government’s surveillance and investigation. Before delving into the details, however, the government should emphasize that it has provided, and will continue to provide, defendant with pretrial discovery consistent with governing discovery rules. The government has embraced a broad view of its obligations and furnished the defense with extensive discovery, including e-mails, text messages, internet activity, audio recordings, video recordings, computer evidence, recorded telephone calls, and FBI reports. Some of defendant’s requests involve material which, if it exists at all, would be classified for reasons of national security. To the extent defendant’s motion deals with classified information, those matters would be addressed by the government in separate pleadings filed pursuant to CIPA (see Doc. #39). As such, the responses to defendant’s specific requests set forth below should be taken only to refer to non-classified materials in the possession of the government.
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A. Governing Law The government’s obligations regarding what materials it must produce in discovery and when such production must occur are established by statute, the Federal and Local Rules of Criminal Procedure, and case law. See, e.g., 18 U.S.C. §§ 3500, 3505(b); Fed. R. Crim. P. 12, 12.1, 12.2, 12.3, 16, 26.2, and 46(j); Local Crim. R. 16.1; Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972). Under Brady, prosecutors have a duty to disclose any information in the possession of the prosecution team that is favorable to the defense and material either to guilt or punishment. 373 U.S. at 88. Information favorable to the defense includes evidence which “would tend to exculpate [the defendant] or reduce the penalty,” id. at 87, and evidence regarding the reliability or credibility of a witness. See Giglio, 405 U.S. at 154–55. Prosecutors also have an obligation to search for and disclose any relevant written or recorded statements of the defendant within the government’s possession, custody, or control, upon the defendant’s request, see Fed. R. Crim. P. 16, and any written or recorded statement of a witness called by the government to testify at a criminal proceeding, which relates to the subject matter as to which the witness has testified. See Jencks Act, 18 U.S.C. § 3500; Fed. R. Crim. P. 26.2. A defendant is further entitled to
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documents, objects, and reports of examination that are material to preparing the defense. Fed. R. Crim. P. 16(a)(1)(E)(i) and (1)(F)(iii).
Witness statements, however, are not subject to immediate production. Rule 16(a)(2) exempts from pretrial discovery “statements made by prospective government witnesses except as provided in [the Jencks Act].” Fed. R. Crim. P. 16(a)(2). The Jencks Act, in turn, bars the compelled disclosure of witness statements, including grand jury testimony, until after direct examination of the witness in question. See 18 U.S.C. § 3500(a) (no “statement or report” which “was made by a Government witness or prospective Government witness (other than the defendant)” shall be the subject of subpoena, discovery, or inspection “until said witness has testified on direct examination” at trial); United States v. Williams, 536 F.2d 1202, 1204 (7th Cir. 1976) (by “the express terms of 18 U.S.C. § 3500, the government could not have been required to deliver any 3500 materials to defense counsel until the witness to whom the material pertained had completed his testimony on direct examination”). One of the reasons for the Jencks Act is to protect “government files against unwarranted intrusions.” United States v. Isgro, 974 F.2d 1091, 1095 (9th Cir. 1992).
Where defendants request wide-ranging discovery without establishing the relevance and materiality of the information sought, courts have consistently held that the government need not engage in a fishing expedition
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on behalf of a defendant. See United States v. Nixon, 418 U.S. 683, 700 (1974). The government is “not require[d] . . . to divulge every possible shred of evidence that could conceivably benefit the defendant.” United State v. Hamilton, 107 F.3d 499, 509 (7th Cir. 1997) (citations omitted). Under Rule 16, the government must make available to the defendant any requested items that are “material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E)(i). For the defendant to show materiality under this rule, “[t]here must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant to significantly alter the quantum of proof in his favor.” United States v. Ross, 511 F.2d 757, 763 (5th Cir. 1975). That is, “evidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993).
B. Discovery Previously Tendered Consistent with its discovery obligations, the government has produced 114 discs containing dozens of audio and video recordings and over 100,000 pages of documents, including hundreds of e-mail and other electronic communications, nearly ten thousand items relating to online activity collected from defendant’s internet service providers, and over one hundred FBI reports. To facilitate the defense’s review, the government provided a
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detailed log cataloguing this discovery and has converted many of these documents to a load-file format, to give defense counsel the option of loading the files into a text-searchable database. Finally, the government has also returned or made available all material recovered from the search warrant executed on defendant’s residence, including all computers or other electronic media seized pursuant to that warrant.
In a letter accompanying the government’s October 17, 2012, production, the government agreed to preserve all written notes of government agents in existence at that time. The government also represented that, two weeks prior to trial, it would notify defendants of evidence that the government intends to offer pursuant to Federal Rule of Evidence 404(b), and would file a proffer pursuant to United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), if applicable (see pg. 20 below). The government further represented that one week prior to trial, it would provide materials required by the Jencks Act (§ 3500) and Giglio v. United States. And, the government represented that, to the extent that it obtained any additional evidence that must be disclosed per Brady v. Maryland, the government would disclose such evidence promptly. Finally, the government requested reciprocal discovery under Rule 16.
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C. Defendant’s Specific Requests 1. All Statements of Defendant, Including Recorded Face-to-Face Conversations, Telephone Calls, Text Messages, Email Correspondence, Notes, or Other Accounts of Recorded Verbal or Written Interactions
Defendant asserts he needs all of his written or recorded statements, but Rule 16(a)(1)(B), the governing provision, only entitles him to all “relevant, recorded statements of the defendant in the possession of the government.” Fed. R. Crim. P. 16(a)(1)(B) (emphasis added). That said, the government has interpreted relevance broadly and taken account of the anticipated entrapment defense in providing defendant’s statements. As a result, many of defendant’s e-mails, phone calls, text messages, and other internet activity in the discovery have little or no relevance to this case. The government also has produced all recorded face-to-face conversations with defendant in the government’s possession, returned all computers seized pursuant to the search warrant, and made available to the defense any forensic copies of those computers.
If the government identifies and obtains any additional relevant statements of defendant, as contemplated by Rule 16, it will produce them consistent with its discovery obligations, or will address them promptly with the Court. As such, the defendant’s request should be denied as moot. See, e.g., United States v. Edmond, No. 11 CR 378, 2011 WL 6010261, at *1 (N.D.
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Ill. Nov. 30, 2011) (Manning, J.) (“Given the government’s assurances that it will comply with its obligations under Brady and Giglio, [the defendant’s] request must be denied as moot”) (citing United States v. Silesia Flavorings, Inc., No. 03 CR 851, 2004 WL 419904, at *6 (N.D. Ill. Mar. 1, 2004) (Pallmeyer, J.)); United States v. Carman, No. 02 CR 464, 2004 WL 1638232, at *1 (N.D. Ill. July 16, 2004) (Guzman, J.) (defense motion for discovery mooted by government’s response acknowledging its disclosure obligations).
2. All Materials Related to Government Monitoring of Statements, Electronic or Otherwise, by Defendant as Well as his Computer Activity
The government has applied the same discovery standards to defendant’s electronic statements and computer activity as it has to any other evidence collected in this case. Indeed, the government has furnished to the defense nearly ten thousand separate documents relating to internet activity at defendant’s residence. Moreover, it has returned all computer media seized from defendant’s residence and made available to the defense forensic copies of any such computer media. In short, all discoverable information collected through electronic monitoring has either been disclosed to the defense or has been or will be brought to the attention of the Court.
To the extent defendant’s demand for “all materials related to government monitoring” encompasses material not discoverable under Rule 16, Brady, Giglio, or the Jencks Act, his request is overbroad. The prospect of
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an entrapment defense does not override the discovery rules, entitling a defendant to limitless “open file” discovery. See generally United States v. Reyes, 270 F.3d 1158, 1166 (7th Cir. 2001) (“Brady does not require a prosecutor to divulge every scintilla of evidence that might conceivably inure to a defendant’s benefit.”). The government will adhere to its obligations and provide defendant with materials under Rule 16, Brady, and Giglio.
3. All Materials Related to Any Contact OCE1, OCE2, and UC Had With Defendant, as well as Their Identities and Biographical Information
As part of the investigation, defendant communicated electronically with two online undercover FBI employees (referred to as “OCEl” and “OCE2” in the complaint affidavit and in defendant’s motion). Defendant also communicated electronically and in-person with an undercover FBI Special Agent (referred to as the “UCE”). All electronic communications and inperson recordings defendant had with these individuals have been given to the defense.
Defendant demands further information related to any persons who have had contact with defendant, including: true or correct name, government agency affiliation, resume, curriculum vitae, any criminal record, and contact information. Doc. #54 at 6. But the rules of discovery do not call for the production of this information, especially based on a defendant’s mere assertion that he needs it to “evaluat[e]” the entrapment defense. Id. Of
9

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course, if any of these persons is called as witnesses at trial, the government will provide to the defense or present to the Court any Giglio material.
4. All Materials Relative to the Background, Training, or Experience of Any Government Agent Who Contact Defendant, Including OCE1, OCE2, and UCE
As in any criminal case involving law enforcement, this information is not discoverable under Rule 16(a)(2) and defendant has made no specific showing why he should see this material.
If the undercover FBI employees (OCE1 and OCE2), the undercover agent (UCE), or any other person working on behalf of the government testifies at trial, the government will honor its discovery obligations regarding witnesses. Specifically, the government would provide Jencks and Giglio information; and if these witnesses were called upon to offer an expert opinion, the government would provide any materials relevant to such a request, including the witness’s background and experience.
5. All Agency Documents, Notes, Memos, and Forms Related to the Implementation of the Attorney General’s Guidelines on FBI Undercover Operations
Citing the Attorney General’s Guidelines on FBI Undercover Operations, defendant seeks disclosure of various internal reports and memoranda relating to the approval and implementation of the undercover investigation. Doc. #54 at 8-9. For example, defendant requests the application for approval of the undercover investigation; any letter from the
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federal prosecutor concurring with the investigation; the written approval of the undercover investigation; the expense associated with the investigation; notes of meetings about the investigation; any directives regarding entrapment; memoranda regarding a review of the conduct of undercover employees; and memoranda regarding the legal sufficiency of the evidence. Doc. #54 at 8-9. Defendant claims these internal documents will be helpful in “deconstructing” why the FBI purportedly “manipulate[d]” the defendant instead of “discouraging him from engaging in the offense.” Doc. #54 at 10.
Each item from defendant’s list, to the extent it exists, involves internal memoranda or notes maintained by the United States Attorney’s Office or the FBI. Apart from the reports already disclosed (many of which are responsive to defendant’s laundry-list of requests) and any Jencks material that the government will disclose before trial, there exists no authority for compelling the disclosure of this type of information, though the government recognizes that if any contains Brady it must either disclose or present to the Court such information.
An internal assessment of the case or directives from supervisors at the FBI or the United States Attorney’s Office have no bearing on the defendant’s entrapment defense. It is the jury that must decide whether the government induced the crime and whether defendant lacked predisposition to engage in the conduct. United States v. Orr, 622 F.3d 864, 868 (7th Cir. 2010). The
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jury’s decision will not and cannot be based on the internal deliberations of the FBI or United State Attorney’s Office. What matters are the defendant’s interactions with the government agents in the investigation – all of which has been provided to defendant. The government’s internal protocols and deliberations are irrelevant and defendant cannot meet the materiality requirement under Rule 16(a)(1)(E).
Indeed, some of the material requested would fall under the work product privilege, protected by Federal Rule of Criminal Procedure 16(a)(2). That rules states that Rule 16 “does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigation or prosecuting the case.”2
Congress designed Rule 16(a)(2)’s protection of investigative materials to extend beyond the work product privilege embodied in Federal Rule of Civil Procedure Rule 26(b)(3).3 United States v. Armstrong, 517 U.S. 456, 463
2 Rule 16(a)(2) begins with the general statement, “Except as Rule 16(a)(1) provides otherwise,” suggesting that all materials meeting the parameters of Rule 16(a)(1)(E) must be produced. But, as thoroughly explained in United States v. Rudolph, 224 F.R.D. 503 (N.D. Ala. 2004), that phrase is a “scrivener’s error” and was not intended by the Advisory Committee or by Congress. Id. at 507. See also United States v. Fort, 472 F.3d 1106, 1115 (9th Cir. 2007); 2 Wright & Miller: Federal Prac. & Proc. § 254, Discovery by the Defendant-Documents and Tangible Objects (4th ed. 2013). 3 The work product privilege in the context of civil litigation was recognized in Hickman v. Taylor, 329 U.S. 495 (1947). Hickman provides the foundation for the protection of an attorney’s documents and other tangible items under Federal Rule
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(1996) (noting, “under Rule 16(a)(2), [a defendant] may not examine Government work product in connection with his case”); United States v. Fort, 472 F.3d 1106, 1115 (9th Cir. 2007) (noting that “[a]lthough the Advisory Committee used the term ‘work product’ to describe the materials discoverable under Rule 16(a)(2), it purposefully defined the Rule’s scope differently than that of Rule 26”); United States v. Taylor, 608 F.Supp.2d 1263, 1269 (D.N.M. 2009) (finding information “protected by the deliberative process and work product privileges as well as Rule 16(a)(2)” (emphasis added)).
Rule 16(a)(2) protects not only the mental impressions, conclusions, opinions, or legal theories of the attorney for the government or other government agents, but includes all “reports, memoranda, or other internal government documents.” Fort, 472 F.3d at 115; see also United States v. Robinson, 439 F.3d 777, 779-80 (8th Cir. 2006) (concluding that “reports, memoranda, or other internal government documents created by a government agent in connection with the investigation or prosecution of the case are immune from discovery”); United States v. LiCausi, 167 F.3d 36, 5051 (1st Cir. 1999) (agent’s anticipated testimony about his investigation of phone records to which defense also had access); United States v. Amlani, 111
of Civil Procedure Rule 26(b)(3), which states: “[T]he court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”
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F.3d 705, 713 (9th Cir. 1997) (internal FBI logs of items seized from defendant’s business); United States v. Koskerides, 877 F.2d 1129, 1133-34 (2d Cir. 1989) (IRS agent’s report containing computations of defendant’s tax liability).
Requiring disclosure of law enforcement internal reports and memoranda would not only contravene Rule 16(a)(2), it would have a chilling effect on the ability of law enforcement to do its job. Such disclosure would undermine the government’s ability candidly to discuss and evaluate the legal and strategic options available in an investigation without the belief that the material would ultimately be disclosed. See, e.g., United States v. Fernandez, 231 F.3d 1240 (9th Cir. 2000) (government’s predecisional death penalty evaluation form and memorandum were protected by the deliberative process privilege because the court reasoned that “[d]iscovery of the deliberative materials would have a chilling effect on the thorough evaluation of these issues and hinder the just, frank, and fair review of the decision for every individual defendant who faces the prospect of receiving Notice of Intent to Seek the Death Penalty”) (quoting United States v. Frank, 8 F. Supp. 2d 253, 284 (S.D.N.Y. 1998)); see generally United States v. Noble, 422 U.S. 225, 238 (1975) (describing as “vital” the role of the work product doctrine in “assuring the proper functioning of the criminal justice system”).
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The government will continue to review any material in its possession—including work product—to ensure that it is complying with its discovery obligations under Rule 16, Brady, Giglio, and the Jencks Act. That approach enables the government to discharge its discovery obligations while protecting work product.
6. All Audio, Video, or Other Recordings of the Undercover Agents Before, During, and After Meetings with Defendant
The government has tendered the entire audio and video recordings of the undercover agent’s meetings with the defendant in this case, including any recording that took place before and after the undercover agent met with the defendant.
7. All Notes, Minutes, and Debriefing Summaries, Etc., Prepared by OCE1, OCE2, and UCE, Including Any Supervising Personnel in Relating to Defendant
The undercover FBI employees in this case prepared reports that reflect the substance of their communications with the defendant. Likewise, the undercover agent documented the fact of the agent’s meetings with the defendant and any evidence generated therefrom. All of those reports have been produced to the defense. To the extent any notes or summaries of any testifying witness constitutes Jencks materials, prosecutors will disclose any such notes or summaries before trial.
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Apart from those obligations, the notes and summaries of these individuals are not subject to disclosure for the reasons discussed under request number five.
8. All Materials Related to Internal Agency Communications and Internal Agency Directives Given to OCE1, OCE2, and UCE, From Supervising Personnel, Including Materials Pertaining to Tactical and Strategic Decisions Made By Government Agents Throughout Their Contact with Defendant
Defendant requests all “internal agency communications . . . pertaining to tactical and strategic decisions made by government agents” and any “material related to government determinations or concerns that investigative activity by defendant was protected by the First Amendment or did not constitute a completed crime.” Doc. #54 at 11-12.
There exists no legal authority to compel disclosure of these materials. First, internal directives and strategic decisions have no bearing on the crime or an entrapment defense. Entrapment involves questions about a defendant’s predisposition and any government inducement. To assess government inducement, a jury would evaluate not the internal deliberations of the FBI and the United States Attorney’s Office, but the substance of defendant’s interactions with the government agents as part of the charged crime, all of which has been disclosed. Second, for reasons discussed above,
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this material, if it exists, would fall within the definition of work product, protected by Federal Rule of Criminal Procedure 16(a)(2).
Regarding the “First Amendment” materials, it remains unclear what the defense is seeking. The First Amendment of the United States Constitution does not alter the rules of evidence in criminal cases (specifically Fed. R. Evid. 401 and Fed. R. Evid. 403). In this case (as in many criminal cases), there exists relevant evidence that would qualify as protected First Amendment activity; specifically, much of the propaganda in support of violent jihad that defendant downloaded and reviewed. This activity became relevant evidence of defendant’s predisposition when he attempted to detonate a bomb for ideological reasons, many of which are set forth in the materials he reviewed. Insofar as defendant seeks “governmental determinations or concerns” in the form of internal communications or memoranda, no rule of discovery compels their disclosure, to the extent they exists. To the contrary, they would be protected work product under Rule 16(a)(2).
In short, to the extent any materials responsive to this request may qualify as Rule 16, Brady, Giglio, or Jencks material, the government will disclose to the defense or present that to the Court. That is the extent of the government’s obligations for any items responsive to this request.
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9. All Materials Related to the Surveillance of Defendant and his Family From Undercover Agents and Informants
As the defense is aware, the government has disclosed surveillance reports and has made available to the defense video surveillance footage of defendant. Occasionally that surveillance includes observations of other individual’s associated with the defendant, as reflected in the reports and in the surveillance footage. Defendant’s general request for “any information relating to defendant and his family” hinges on a misapprehension of the Brady standard. Contrary to the assertion in defendant’s motion, information about the defendant’s (or his family’s) attendance at a mosque or defendant’s “appropriate religious activity” is not Brady.
Defendant also cites an affidavit from an unrelated case regarding FBI informants and the purported “methods of infiltrating mosques.” Doc. #54 at 14. That affidavit has nothing to do with defendant’s case. The government’s discovery obligations regarding any informants remain the same as in any other criminal case, and the government has honored those obligations here.
Finally, defendant claims that “any discussions or interviews conducted with third parties at the mosque that had information about defendant, his family, or friends should . . . be produced.” Rule 16 does not contemplate that the government must disclose statements a defendant made to nongovernmental third persons, who then later relayed defendant’s words to a
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government agent. This demand amounts to a request for Jencks material under the guise of Rule 16: defendant wants to know what other people— potential government witnesses—have told the government about what the defendant or his family said or did. A defendant is not entitled to pretrial discovery of the statements of government witnesses, unless those statements contain Brady, even if they incorporate statements made by defendant to the government witness (unless defendant made the statement to a person defendant knew was a government agent and the requirements of Rule 16(a)(1)(A) are met). See United States v. Callahan, 534 F.2d 763, 765 (7th Cir. 1976); see also United States v. Lakin, 2007 WL 2479331 (S.D. Ill. 2007) (unreported).
To the extent that the government obtains additional statements that must be disclosed under Rule 16 or constitutional law, it will do so. The government is expressly allowed, by statute (18 U.S.C. § 3500) to withhold from discovery statements of government witnesses, or prospective government witnesses, until later in the proceedings.
10. All Materials Related to Government Activities Conducted Pursuant to Warrants, Court Orders, Subpoenas, or any Other Authorizations in Connection with this Case
The government has provided defendant with the results of the search warrant executed at his residence on September 14, 2012, as well as copies of
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the search warrants and accompanying affidavits. The government has also provided defendant with the records it has received pursuant to subpoenas.
Regarding defendant’s request relating to materials obtained pursuant to FISA, the government has provided defendant with a substantial amount of material obtained through court-authorized FISA surveillance. Other matters related to FISA surveillance that involve classified information would be handled through a CIPA filing or a response to defendant’s motion for disclosure of FISA-related material and to suppress FISA-derived evidence (Doc. #52), which the government anticipates filing.
Finally, defendant requests disclosure of any information collected pursuant to the FISA Amendments Act, an issue that has already been the subject of pretrial motions in this case. Doc. ##42, 46, 47, and 49. The government rests on the representations in its sur-reply to defendant’s motion for notice of FISA Amendments Act evidence. See Doc. #49. II. Defendant’s Motion Regarding Production of 404(b) Material
Should Be Denied [Doc. #55] Defendant requests that the government be ordered to “disclose immediately” material pursuant to Fed. R. Evid. 404(b). Doc. #55, ¶1. Later in the motion, defendant requests notice of Rule 404(b) evidence forty-five days before trial. Id. ¶6.
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Rule 404(b) requires the government to “provide reasonable notice in advance of trial . . . of the general nature of any such evidence it intends to introduce at trial.” The government acknowledges its obligation to give reasonable notice, and in a letter dated on October 17, 2012, the government agreed to provide the defendant with identification and notification of evidence it intends to introduce pursuant to Rule 404(b) two weeks prior to trial. In light of defendant’s request, the government is willing to provide notice thirty days before trial.
Thirty days’ notice readily complies with the rule’s “reasonable notice” requirement. See United States v. Blount, 502 F.3d 674 (7th Cir. 2007) (oneweek notice sufficient; noting other courts finding 48 hours to several days sufficient); United States v. Dean, No. 09 CR 446, 2010 WL 706038, at *1 (N.D. Ill. Feb. 24, 2010) (denying defendants’ motion for 404(b) disclosure where government acknowledged its disclosure obligation and represented that disclosure would occur two weeks before trial); United States v. Burns, No. 07 CR 56, 2008 WL 4542990, at *2 (N.D. Ill. Apr. 29, 2008) (rejecting request for 404(b) evidence to be provided 45 days prior to trial; two weeks deemed sufficient); United States v. Myrick, No. 97-197, 1997 WL 564673, at *2 (N.D. Ill. Sept. 3, 1997) (two-week notice sufficient); United States v. Gary, No. 06 CR 631, 2007 WL 257639, at *5 (N.D. Ill. Jan. 25, 2007) (same).
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Apart from the timing of the disclosure, this Court should reject defendant’s efforts to require extensive disclosure of Rule 404(b) evidence. According to defendant, he is entitled to information regarding the dates, times, places, and persons involved in any other acts, the statements of each person involved, the documents involved, and the issues to which the government believes such acts to be relevant. Doc. #55, ¶1. Defendant’s requests are contrary to the language of Rule 404(b), which merely requires notice of “the general nature of any such evidence,” and should therefore be denied. See e.g., United States v. Stoekcer, 920 F. Supp. 876, 882-83 (N.D. Ill. 1996); United States v. Alex, 791 F. Supp. 723, 728 (N.D. Ill. 1992).
Even an indictment requires no such detail to put a defendant on notice of the offenses charged, see United States v. Kendall, 665 F.2d 126, 135 (7th Cir. 1981), and, by analogy, greater disclosure should be unnecessary with respect to evidence of acts that do not form the basis of the charges against the defendant. Moreover, use of the phrase “general nature of any such evidence” in Rule 404(b) was not accidental. The Senate Judiciary Committee, which formulated the 1991 amendments to Rule 404(b), “considered and rejected a requirement that the notice satisfy the particularity requirements normally required of language used in a charging instrument .... Instead, the Committee opted for a generalized notice provision ....” Note of Advisory Committee, reprinted in Federal Criminal
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Code and Rules. As a result, the defendants’ “degree of specificity is clearly beyond the scope of disclosure required by Rule 404(b).” United States v. Rusin, 889 F. Supp. 1035, 1036 (N.D. Ill. 1995).
Defendant also seeks notice from the government of “other acts” evidence it intends to use during cross-examination of the defendant. This request is governed by Rule 608(b) of the Federal Rules of Evidence, not Rule 404(b). Rule 608(b), unlike Rule 404(b), does not require pretrial disclosure of the government’s intention to use such evidence at trial. As a result, courts in the Seventh Circuit have ruled that “Rule 608(b) evidence need not be disclosed in advance of trial.” See, e.g., Stoecker, 920 F. Supp. at 883 (denying defendant’s motion for disclosure of other acts evidence that government intended to use in cross-examination); United States v. Hartmann, 958 F .2d 774, 789 n. 5 (7th Cir. 1992) (“[Defendant] apparently forgets that defendants are not entitled access to Rule 608(b) materials which are not discoverable under Fed. R. Crim. P. 16.”); but see United States v. McGee, 408 F.3d 966, 984 (7th Cir. 2005) (requiring disclosure of Rule 608(b) pretrial). Therefore, defendant’s request for any other acts evidence the government expects to use during cross examination should be denied.
In light of the government’s willingness to provide notice thirty days before trial, the 404(b) motion should be denied.
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III. Defendant’s Motion Regarding the Filing of a Santiago Proffer Should Be Denied [Doc. #56] Defendant asserts that two weeks is not enough time before trial for
this Court to resolve issues pertaining to the government’s Santiago proffer, should one be filed. The government proposed the two-week period not to delay the provision of information, but to permit the most efficient consideration of the issues. As the case nears trial, the government will be able to identify with greater certainty who its witnesses will be and whether any co-conspirator statements will be elicited. Moreover, the substance of any co-conspirator statements the government would use have already been disclosed to the defense.
Nevertheless, to accommodate the concerns identified in the defendant’s motion, the government is willing to file its Santiago proffer (should one be necessary) thirty days before trial. As such, the Court should deny defendant’s motion. IV. Defendant’s Motion for Disclosure of Expert Testimony Sixty
Days Before Trial Should Be Denied [Doc. #57] Defendant seeks disclosure of expert testimony sixty days before trial. The government is willing to make such disclosures in this case, to the extent experts will be used, at least thirty days in advance of trial. Additionally, as required by the rule, the government will describe the expert witnesses’ opinions, the bases and the reasons therefor, and the witnesses’
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qualifications. The government hereby makes reciprocal discovery requests for disclosure of defense evidence pursuant to Fed. R. Crim. P. 16(b). Given the government’s willingness to provide its disclosures thirty days before trial, the Court should deny defendant’s motion. V. Defendant’s Motion for Early Return of Trial Subpoenas Should
Be Granted [Doc. #58] Defendant has moved for this Court to allow the early return of trial subpoenas. The government does not object to defendant’s motion, provided that the government enjoys the same right, and further provided that the parties timely produce any documents obtained through trial subpoenas to the other side. VI. Defendant’s Motion for Leave to File Additional Pretrial Motions Should Be Granted [Doc. #59] The government does not oppose this motion. The government reserves the right, however, to challenge future motions filed by defendant as untimely or waived, as appropriate.
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Conclusion For these reasons, the United States respectfully requests that this Court deny those motions it opposes.
Respectfully submitted, GARY S. SHAPIRO United States Attorney By: /s/ William E. Ridgway WILLIAM E. RIDGWAY BARRY JONAS BOLLING HAXALL Assistant United States Attorney 219 S. Dearborn Street, 5th Floor Chicago, Illinois 60604 Tel: (312) 353-5000 Dated: August 26, 2013
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In the
UNITED STATES COURT OF APPEALS
for the Seventh Circuit
No. 14-1284

UNITED STATES OF AMERICA, v. ADEL DAOUD,

Plaintiff-Appellant, Defendant-Appellee.

On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12-CR-723 — Sharon Johnson Coleman, Judge.

BRIEF OF THE UNITED STATES AND SHORT APPENDIX

JOHN P. CARLIN Acting Assistant Attorney General
for National Security
GEORGE Z. TOSCAS J. BRADFORD WIEGMANN TASHINA GAUHAR Deputy Assistant Attorneys General
STEVEN M. DUNNE Chief, Appellate Unit
JEFFREY M. SMITH Attorney National Security Division

ZACHARY T. FARDON United States Attorney
for the Northern District of Illinois 219 South Dearborn Street Chicago, Illinois 60604 (312) 353-5300
MARK E. SCHNEIDER Assistant United States Attorney Chief of Appeals, Criminal Division
WILLIAM E. RIDGWAY Assistant United States Attorney

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................ ii
JURISDICTIONAL STATEMENT ..................................................................... 1
ISSUE PRESENTED FOR REVIEW ................................................................. 4
STATEMENT OF THE CASE ............................................................................ 4
SUMMARY OF ARGUMENT ........................................................................... 12
ARGUMENT ...................................................................................................... 14
I. The District Court Erred in Ordering the Disclosure of Classified FISA Materials to Defense Counsel........................................................ 14
A. Standard of Review............................................................................. 14 B. Analysis ............................................................................................... 14
1. Overview of FISA .................................................................. 14 2. The District Court Misapplied FISA’s Rules Governing
the Disclosure of FISA Materials........................................ 17 3. The Legality of the FISA Collection May Be Accurately
Assessed Ex Parte and In Camera ...................................... 30 a. The FISA Applications Established Probable
Cause .......................................................................... 31
b. The Certifications Complied With FISA .................. 32 c. The FISA Information Was Appropriately
Minimized................................................................... 32
CONCLUSION................................................................................................... 34

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TABLE OF AUTHORITIES CASES
Abelesz v. OTP Bank, 692 F.3d 638 (7th Cir. 2012) ............................................3 Baldrawi v. Department of Homeland Security,
596 F. Supp. 2d 389 (D. Conn. 2009) ............................................................ 28 Chicago & S. Airlines, Inc. v. Waterman S.S. Corp.,
333 U.S. 103 (1948)........................................................................................ 26 CIA v. Sims, 471 U.S. 159 (1985) ...................................................................... 27 Dep’t of the Navy v. Egan, 484 U.S. 518 (1988) ...................................................4 Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983) ........................................... 28 Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268 (4th Cir. 1980)................. 28 Giordano v. United States, 394 U.S. 310 (1969)............................................... 25 Halkin v. Helms, 598 F.2d 1 (D.C. Cir. 1978)................................................... 29 In re Grand Jury Proceedings of Special April 2012 Grand Jury,
347 F.3d 197 (7th Cir. 2003).............................................................. 19, 20, 21 In re U.S., 878 F.2d 153 (5th Cir. 1989) ..............................................................3 In re U.S., 985 F.2d 510 (11th Cir. 1993) ............................................................3 Kaley v. United States,
134 S. Ct. 1090 (2014).................................................................................... 25 Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009)...............................2 Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005) ................................................ 29 Taglianetti v. United States, 394 U.S. 316 (1969)............................................ 25 United States v. Abu Ali, 528 F.3d 210 (4th Cir. 2008) ................................... 24
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United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010)............ 18, 20, 21, 30 United States v. Badia, 827 F.2d 1458 (11th Cir. 1987).................................. 18 United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) ..........................passim United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000) ................. 28 United States v. Cronic, 466 U.S. 648 (1984) ................................................... 11 United States v. Damrah, 412 F.3d 618 (6th Cir. 2005) ............................ 18, 24 United States v. Duggan, 743 F.2d 59 (2d Cir. 1984) .......................... 14, 18, 21 United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011)........................passim United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982)........................... 25 United States v. Hamide, 914 F.2d 1147 (9th Cir. 1990)....................................2 United States v. Isa, 923 F.2d 1300 (8th Cir. 1991) ............................. 19, 24, 25 United States v. Leon, 468 U.S. 897 (1984) ...................................................... 31 United States v. Libby, F. Supp. 2d 18 (D.D.C. 2006)...................................... 28 United States v. Megahey, 553 F. Supp. 1180 (E.D.N.Y. 1982) ....................... 31 United States v. Ning Wen, 477 F.3d 896 (7th Cir. 2007)................................ 31 United States v. Ott, 827 F.2d 473 (9th Cir. 1987)..................................... 24, 28 United States v. Rosen, 447 F. Supp. 2d 538 (E.D. Va. 2006) ................... 19, 20 United States v. Sedaghaty, 728 F.3d 885 (9th Cir. 2013) .............................. 28 United States v. Simon, 727 F.3d 682 (7th Cir. 2013) ..................................... 14 United States v. Squillacote, 221 F.3d 542 (4th Cir. 2000) ............................. 18 United States v. Stewart, 590 F.3d 93 (2d Cir. 2009) ...................................... 19
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United States v. Warsame, 547 F. Supp. 2d 982 (D. Minn. 2008) ................... 30
United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989) .................................... 27
STATUTES 50 U.S.C. § 1801..........................................................................................passim
50 U.S.C. § 1804 ........................................................................................... 15, 16
50 U.S.C. § 1805 ........................................................................................... 15, 16
50 U.S.C. § 1806..........................................................................................passim
50 U.S.C. § 1821 ........................................................................................... 15, 17
50 U.S.C. § 1823 ........................................................................................... 15, 16
50 U.S.C. § 1824 ........................................................................................... 15, 16
50 U.S.C. § 1825 ........................................................................................... 11, 17
OTHER
Classified Information Procedures Act, 18 U.S.C. app. III § 7(a) ....................................................................................2
Executive Order 13526 § 4.1(a) ......................................................................... 28
H.R. Rep. No. 95-1283, 95th Cong., 2d Sess. 94 (1978) ............................... 2, 22
H.R. Conf. Rep. No. 95-1720, reprinted in 1978 U.S. Code Cong. & Admin News 4048 ........................ 2, 22
S. Rep. No. 95-701, 95th Cong., 2d Sess. 64 (1978).............................. 22, 23, 31
2 David S. Kris & J. Douglas Wilson, National Security Investigations & Prosecutions, §33:2 (2d ed. 2012) ......................................................................................2, 19

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JURISDICTIONAL STATEMENT Defendant-Appellee Adel Daoud was charged with violations of 18
U.S.C. § 2332a(a)(2)(D), and 18 U.S.C. § 844(i). R. 16; App. 4-5.1 The district
court had jurisdiction pursuant to 18 U.S.C. § 3231.
On January 29, 2014, the district court entered an order requiring the
United States to disclose to defense counsel classified applications and
related materials filed with the Foreign Intelligence Surveillance Court
pursuant to the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §
1801 et seq., in connection with defendant’s motion to suppress evidence
obtained from FISA collection. R. 92; SA 1-5. On February 10, 2014, the
United States timely filed a notice of appeal from this order. R. 97.
This Court has jurisdiction over the appeal under 28 U.S.C. § 1291
because, pursuant to FISA, the district court’s ruling constitutes a final order
subject to immediate appeal. The district court ordered disclosure of classified
FISA application materials based on Section 106 of FISA, 50 U.S.C. § 1806.
That section provides that “decisions under [50 U.S.C. § 1806] . . . granting
disclosure of applications, orders, or other materials relating to a surveillance
1 Citations to the Original Electronic Record and Supplemental Record on appeal are designated as “R.” followed by the district court document number. The government’s Short Appendix and Appendix are cited as “SA” and “App.” followed by the page number. The relevant Classified Record consists of the government’s classified brief in response to the motion to suppress (cited as “G.Br.”) and the “Sealed Appendix” to that brief, comprising an index and several exhibits. Citations to the exhibits from the Sealed Appendix are designated “Ex.” followed by the pertinent exhibit number and relevant page number.
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shall be final orders.” 50 U.S.C. § 1806(h).2 As a final order, the district court’s ruling is appealable under 28 U.S.C. § 1291, which provides that courts of appeals “shall have jurisdiction of appeals from all final decisions of the district courts.” Cf. Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (noting that § 1291 “encompasses not only judgments that terminate an action, but also a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final’”).
Alternatively, the district court’s order is also appealable as an interlocutory appeal pursuant to the Classified Information Procedures Act, 18 U.S.C. app. III § 7(a), which provides that the government may take an interlocutory appeal “from a decision or order of a district court in a criminal case authorizing the disclosure of classified information.”3

2 The House of Representatives Report that accompanied FISA confirms that the term “final orders” in 50 U.S.C. § 1806 is meant to authorize “immediate appeal.” H.R. Rep. No. 95-1283, Pt. I, 95th Cong., 2d Sess. 94 (1978) (“House Report”) (discussing H.R. 7308 Section 106(i), which ultimately was enacted (with changes not material here) as 50 U.S.C. 1806(h)); see also 2 David S. Kris & J. Douglas Wilson, National Security Investigations & Prosecutions § 33:2 (2d ed. 2012) (“FISA allows an immediate appeal of an order granting discovery of FISA applications and orders.”); United States v. Hamide, 914 F.2d 1147, 1150-51 (9th Cir. 1990). Although the House version of the bill would have made any FISA determination final and appealable immediately, the Conference agreement narrowed this approach and provided: “All orders regarding legality and disclosure shall be final and binding only where the rulings are against the Government.” H.R. Conf. Rep. No. 95-1720, 32, reprinted in 1978 U.S. Code Cong. & Admin. News 4048, 4061.
3 An appeal filed pursuant to this section must be filed within 14 days, as the United States has done here, and shall be expedited. Id. § 7(b).
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If these two statutory bases for appellate jurisdiction were not available, this Court would still have jurisdiction to issue a writ of mandamus to reverse the district court’s order pursuant to 28 U.S.C. § 1651. This Court may issue a writ of mandamus so long as the following conditions are met: “First, the party seeking the writ must demonstrate that the challenged order is not effectively reviewable at the end of the case, that is, without the writ the party will suffer irreparable harm. Second, the party seeking the writ must demonstrate a clear right to the writ. Last, the issuing court must be satisfied that issuing the writ is otherwise appropriate.” Abelesz v. OTP Bank, 692 F.3d 638, 652 (7th Cir. 2012).
Each of those conditions exists here. First, the district court’s order compels the United States to disclose to defense counsel highly sensitive classified information, which would harm the national security of the United States, as explained below. Once this information is disclosed, the harm from disclosure cannot be undone, and thus the order is not effectively reviewable at the end of the trial. Cf. In re U.S., 878 F.2d 153, 158-59 (5th Cir. 1989) (reviewing pretrial discovery order in part because the government had “no other means of redress” and the challenged order was “entirely unprecedented”); In re U.S., 985 F.2d 510, 513 (11th Cir. 1993). Second, as demonstrated below, there exists a clear right to relief. Third, if the Court were to find that it lacked appellate jurisdiction under the statutory
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provisions discussed above, granting a writ of mandamus would be “otherwise appropriate” given the important national security interests at stake. See, e.g., Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988).
ISSUE PRESENTED FOR REVIEW Whether the district court abused its discretion by ordering the United States to disclose classified FISA applications and orders to defense counsel, despite failing to find that disclosure is “necessary” to determine the legality of the challenged FISA collection, as required by FISA.
STATEMENT OF THE CASE [CLASSIFIED MATERIAL REDACTED]4 The FBI’s Undercover Investigation In mid-May 2012, the FBI’s undercover investigation began with two FBI employees who work online. R. 1 at 11-12; App. 16-17. They separately emailed Daoud in response to material he posted online, posing as individuals who had an interest in violent jihad. Id. Daoud eventually confided in them that he planned to engage in violent jihad, either in the United States or overseas, and mentioned that he had discussed plans for a terrorist attack with “trusted brothers.” Id. Daoud sent one of the FBI covert employees jihadist propaganda, including links to Inspire magazine, and mentioned that

4 As a result of the redactions, the pagination and footnote numbering of the classified brief and the unclassified brief are different.
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he may use the magazine’s bomb-making instructions to carry out an attack.
Id. at 13; App. 18.
From late May to mid-June 2012, Daoud sought guidance regarding
whether to carry out a terrorist attack in the United States or overseas,
relying principally on internet resources. Id. at 13-15; App. 18-20. For
example, operating under a pseudonym, Daoud posted a question to a
members-only extremist internet forum, which Daoud had characterized as a
“terrorist website” (Id. at 13-14; App. 18-19):
. . . I have also been reading the english Inspire magazine. Masha’Allah is the best magazine I have read ...
The point is in this magazine they encourage Muslims in the West especially in the USA to attack IN America. By all means this is something i would consider. But in know that if i started attacking in America i would probably not be able to go to Yemen or anywhere else for Jihad in the Cause of Allah.
Is there a way i could do both, or what’s your opinion on that? i personally think it’s easier and more rewarding to go to Yemen but at the same time i hate the oppression of the USA and i would love to do something that would hurt it from the inside.
In a follow-up posting to the same forum, on June 2, 2012, Daoud wrote
that he recognized “9/11” was “halal,” meaning acceptable under Islamic law,
but requested advice about other circumstances in which Americans may be
killed in accordance with the Quran. Id. at 14; App. 19. Meanwhile, Daoud
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viewed a number of related videos, such as one by Anwar Al-Awlaki5 explaining why a martyrdom operation is not considered suicide in Islam but rather is an appropriate method of waging jihad. Id. at 15; App. 20. That topic was also the subject of Daoud’s internet searches, which included “is it halal to blow up a train,” “are attacking planes and trains halal,” and “killing americans in islam.” Id.
Based on this research, Daoud, as he reported to one of the covert FBI employees, confirmed that it was appropriate to kill Americans in a terrorist attack, citing his belief that Americans “pay their taxes which fund the government’s war on Islam” and “vote for the leaders who kill us everyday.” Id. at 16; App. 21. Daoud then began seeking online resources regarding how to carry out an attack, performing searches such as “how to make TNT,” “how to make explosives,” “The Preparatory Manual of Explosives,” and “Organic Chemistry of Explosives.” Id. at 16-17; App. 21-22.
In June 2012, one of the covert FBI employees told Daoud about a “cousin” who had access to resources for a terrorist attack. Daoud said he wanted to meet the cousin, who, unbeknownst to Daoud, was an FBI

5 On July 16, 2010, pursuant to an Executive Order, Anwar Al­Awlaki was designated by the United States a “Specially Designated Global Terrorist” because of his position as a leader of AQAP, a Yemen-based terrorist group that has claimed responsibility for several terrorist acts against the United States. R. 1 at 4; App. 9. On September 30, 2011, President Barack Obama announced that Awlaki had been killed in Yemen. Id.
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undercover agent. Id. at 17; App. 22. Between July 2012 and September 2012, Daoud met with the undercover six times, during the course of which Daoud selected, researched, and surveilled a target for a terrorist attack to be carried out in Chicago with a bomb supplied by the undercover. Id. at 17-35; App. 22-40.
As part of his plans, Daoud attempted to recruit two like-minded friends to assist in the terrorist attack, though they eventually opted out after a confrontation with religious leaders at their mosque, who tried to convince them that violent jihad was wrong. Id. at 28-29: App. 33-34. According to Daoud, following this intervention, his friends harbored reservations about killing “random americans,” rather than those involved with the United States military. Id. at 29; App. 34.
Daoud, however, continued on with his plans. Id. at 29-30; App. 34-35. As his target, Daoud decided on a particular bar in downtown Chicago, asserting that it would be filled with “the evilest people . . . all the kuffars.”6 Id. at 30; App. 35. When Daoud asked the undercover about the blast radius, the undercover stressed that it would destroy the building and kill “hundreds” of people, to which Daoud remarked that killing people was “the point” of the operation. Id. at 33; App. 38. He told the undercover that he

6 “Kuffar” is an Arabic term meaning unbeliever, referring to an individual who is not a Muslim. R. 1 at 15 n.19; SA 20.
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would pray that they would “get away with it,” that they would “kill a lot of enemies,” and that the attack would “make[] international news.” Id.
On September 13, 2012, Daoud met with the undercover to look at the purported explosive, which was inside a Jeep Cherokee. Id. at 34; App. 39. The next day, at around 7:00 pm, Daoud and the undercover met and the two drove to downtown Chicago. Id. at 35; App. 40. During the drive, Daoud led the undercover in a prayer that they succeed in their attack and kill many people. Id.
After arriving downtown, Daoud and the undercover first drove around their target and then headed to a nearby parking lot where the Jeep was located. Id. Daoud drove the Jeep and parked it in front of the target. Id. He then walked to an alley about one block away, where, in the presence of the undercover, he attempted to detonate the device by pressing the triggering mechanism, after which he was taken into custody by the FBI. Id. Daoud was charged with attempting to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2)(D), and attempting to damage and destroy a building by means of an explosive, in violation of 18 U.S.C. § 844(i). R. 16; App. 4-5.
About one month after Daoud’s arrest, while in custody, Daoud solicited the murder of the FBI undercover agent in retaliation for his involvement in the investigation and to prevent him from testifying against Daoud, resulting in additional charges for soliciting a crime of violence, in violation of 18
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U.S.C. § 373(a), murder-for-hire, in violation of 18 U.S.C. § 1958(a), and obstruction of justice, in violation of 18 U.S.C. § 1512(a)(1)(A). R. 79, Ex. A. That indictment has since been consolidated with Daoud’s original case. R. 81.
The FISA Collection [CLASSIFIED MATERIAL REDACTED] On September 18, 2012, as required by FISA, 50 U.S.C. §§ 1806(c) and 1825(d), the United States provided notice to Daoud that it “intends to offer into evidence, or otherwise use or disclose in any proceedings,” information obtained or derived from surveillance conducted pursuant to FISA, citing the electronic surveillance and physical search provisions of that statute. R. 9. On August 9, 2013, Daoud filed a motion and corresponding brief, seeking discovery of certain “FISA-related materials” and suppression of all evidence obtained or derived from “electronic surveillance [or] any other means of collection conducted pursuant to FISA or any other foreign intelligence gathering of any intelligence agencies of the United States.” R. 51, 52. On October 25, 2013, the United States filed a response to Daoud’s motion, consisting of a classified brief and Sealed Appendix, which was submitted ex parte to the district court through the designated Classified

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Information Security Officer.7 R. 73. The United States also filed electronically and served on the defense a redacted, unclassified version of its brief. Id. As part of its filing, the United States submitted an unclassified declaration from Attorney General Eric H. Holder, Jr. stating that the FISA applications “contain sensitive and classified information concerning United States intelligence sources and methods and other information related to efforts of the United States to conduct counterterrorism investigations.” Id. Att. 1 at 3; App. 1-3. As a result, Attorney General Holder certified that “the unauthorized disclosure of that information” or “hold[ing] an adversarial hearing with respect to the FISA materials” “could harm the national security interests of the United States.” Id. at 2-3; App. 2-3. Those harms were detailed in a classified declaration of the FBI’s Acting Assistant Director for Counterterrorism. Id. Att. 1 at 2; App. 2.
On January 3, 2014, the court heard oral argument regarding the unclassified aspects of Daoud’s FISA motion, among other pretrial motions. R. 86; SA 6-43.
The District Court’s Order On January 29, 2014, the district court granted Daoud’s request for disclosure to cleared defense counsel of the “classified FISA application materials,” provided defense counsel possessed or obtained the appropriate
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security clearances. R. 92; SA 1-5. The district court noted that Daoud’s motion “seeks disclosure of classified documents that are not ordinarily subject to discovery” and recognized that “no court has ever allowed disclosure of FISA materials to the defense.” Id. at 1 n.1, 5; SA 1, 5.
The district court noted that the Attorney General’s declaration “triggers an in camera, ex parte procedure to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” Id. at 3; SA 3. The district court also noted that a reviewing court may order disclosure of FISA materials “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” Id. at 3-4; SA 3-4 (citing 50 U.S.C. §§ 1806(f), 1825(g)).
Based on the district court’s “thorough and careful review of the FISA application and related materials,” the court affirmed it was “capable of making . . . a determination” of the legality of the surveillance. Id. at 5; SA 5. Nevertheless, the district court found that the disclosure of FISA materials to defense counsel “may be necessary” because “an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding.” Id. The court emphasized that “the adversarial process is integral to safeguarding the rights of all citizens” and quoted the Supreme Court’s statement in United States v. Cronic, 466 U.S. 648, 656 (1984), that the Sixth Amendment “right to the effective assistance of counsel
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is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” Id.
In the district court’s view, defense counsel’s security clearances “would allow him to examine the classified FISA application material.” The court asserted that the “government had no meaningful response to the argument by defense counsel that the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances” and concluded that “the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel.” Id. at 4; SA 4.
SUMMARY OF ARGUMENT The district court committed legal error, and thereby abused its discretion, in ordering the United States to disclose classified FISA applications and orders to defense counsel in order to adjudicate the suppression motion. Its ruling disregarded the high threshold of necessity required to justify the disclosure of FISA applications and orders, and provided no case-specific basis for compelling disclosure for the first time since FISA was enacted. The district court’s stated reason for its order—that an adversarial process is “best”—defies Congress’s judgment, embodied in the statutory text, that, if the Attorney General files a claim of privilege as was done in this case, courts are to evaluate FISA applications and orders ex parte and in
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camera. A court may deviate from that procedure and compel disclosure to defense counsel only when necessary to determine accurately the legality of the surveillance. That high standard, which this Court has recognized, may be met only in unusual circumstances. The district court’s disregard of that standard contravenes a practice that has been uniformly followed and successfully implemented by courts for decades.
The district court also misjudged the damage to national security that could result from disclosing the FISA applications and orders, even to cleared defense counsel under a protective order, as substantiated by declarations from the Attorney General of the United States and the Acting Assistant Director of the FBI for Counterterrorism. A “need-to-know” must exist before classified information may be disclosed, even to those who possess a security clearance, and that essential prerequisite is present only where disclosure to defense counsel is “necessary” for a court to adjudicate the legality of the FISA collection.
When viewed under the correct “necessity” standard, nothing about the challenged FISA collection justifies the district court’s outlier decision. As the classified record makes clear, the ex parte process that the statute provides readily permits an accurate determination that the FISA collection was lawful, and the defendant’s allegations to the contrary are unfounded. A court reviewing the applications would have no difficulty determining that they
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established probable cause to believe that the target was an agent of a foreign power and that a significant purpose of the collection was to obtain foreign intelligence information. As such, the legality of the FISA activity may be accurately determined without the need to compel disclosure of the FISA materials to defense counsel. The district court’s order should therefore be reversed.
ARGUMENT I. The District Court Erred in Ordering the Disclosure of
Classified FISA Materials to Defense Counsel A. Standard of Review
Courts review for abuse of discretion a district court’s decision whether to order disclosure of FISA materials. United States v. El-Mezain, 664 F.3d 467, 567 (5th Cir. 2011); United States v. Duggan, 743 F.2d 59, 78 (2d Cir. 1984). Under this standard, a “decision that rests on an error of law is always an abuse of discretion.” United States v. Simon, 727 F.3d 682, 696 (7th Cir. 2013).
B. Analysis 1. Overview of FISA Congress enacted FISA in 1978 to regulate certain government
surveillance conducted for foreign intelligence purposes. The statute created the Foreign Intelligence Surveillance Court (“FISC”) and empowered it to grant or deny government applications for surveillance or searches targeting
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a foreign power or an agent of a foreign power for the purpose of obtaining foreign-intelligence information. See 50 U.S.C. § 1801 et seq.
To obtain such an order, the government must establish, inter alia, probable cause to believe that the target of the electronic surveillance or physical search is a foreign power or an agent thereof and that “each of the facilities or places” at which the surveillance or search is directed is being used or is about to be used by the target. 50 U.S.C. §§ 1804(a)(3), 1823(a)(3).8 The government must also establish that the “minimization procedures” that it will employ are reasonably designed to minimize the acquisition and retention, and prohibit the dissemination, of nonpublic information concerning “United States persons,” consistent with the government’s need to obtain, produce and disseminate foreign-intelligence information. 50 U.S.C. §§ 1801(h), 1805(c)(2)(A), 1824(c)(2)(A), 1821(4).9

8 The provisions of FISA that address electronic surveillance are found at 50 U.S.C. §§ 1801-1812; those that address physical searches are found at 50 U.S.C. §§ 18211829. These regimes are in most relevant respects parallel and almost identical; thus this brief cites to the provisions in parallel, with the first referring to the electronic surveillance provision and the second referring to the physical search provision.
9 FISA also provides that the Attorney General, or the Assistant Attorney General for National Security as a designee, 50 U.S.C. §1801(g), may authorize emergency FISA collection if the Attorney General “reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance [or physical search] to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained” and makes a full application “as soon as practicable, but not later than seven days after” the emergency authorization. 50 U.S.C. §§ 1805(e)(1), 1824(e)(1).
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FISA requires that the government include in its application a written certification from a high-ranking executive branch official regarding the nature of the information sought by the order. 50 U.S.C. §§ 1804(a)(6), 1823(a)(6). That certification must state that the electronic surveillance or physical search seeks “foreign intelligence information,” that a “significant purpose” of the surveillance or search is to obtain foreign intelligence information,” and that the information cannot be reasonably obtained by normal investigative techniques. Id.
If satisfied that a FISA application has met the statutory requirements, and if the reviewing FISC judge makes the necessary findings, the judge may issue an order authorizing the surveillance or search. 50 U.S.C. §§ 1805(a), 1824(a). The order identifies the target of the search, the location of the facility at which the surveillance will be directed or the nature and location of each of the premises or property to be searched, the type of information, material or property to be sought, the means or manner of conducting the surveillance or search, the duration of the surveillance operations, the time period during which the surveillance or searches are approved, and the applicable minimization procedures.10 Id. §§ 1805(c), 1824(c).

10 When the target of collection is a United States person, the United States must minimize the acquisition and retention of non-publicly available information and prohibit its dissemination, consistent with the need to obtain, produce, and disseminate foreign intelligence information. 50 U.S.C. §§ 1801(h), 1805(c)(2)(A).
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FISA permits the government to use in a criminal prosecution
information obtained or derived from a FISA order, provided that advance
authorization is obtained from the Attorney General, 50 U.S.C. §§ 1806(b),
1825(c), and that notice is given to the court and to each “aggrieved person”11
against whom the information is to be used. 50 U.S.C. §§ 1806(c)-(d), 1825(d)-
(e). The aggrieved person, upon receiving notice, may seek discovery of the
‘‘applications or orders or other materials relating to” the electronic
surveillance or physical search and may also seek to suppress evidence
obtained from the surveillance or search if ‘‘the information was unlawfully
acquired’’ or if the surveillance or search “was not made in conformity with
an order of authorization or approval.’’ Id. §§ 1806(e), 1825(f).
2. The District Court Misapplied FISA’s Rules Governing the Disclosure of FISA Materials
When a defendant moves to suppress FISA information or for
disclosure of the FISA applications and orders that produced the information,
the government may respond by filing a declaration from the Attorney
General stating that “disclosure or an adversary hearing would harm the
national security of the United States.” 50 U.S.C. §§ 1806(f), 1825(g). If the
11 For purposes of electronic surveillance, “aggrieved person” is defined as “a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.” 50 U.S.C. § 1801(k). For purposes of physical search, “aggrieved person” is defined as “a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.” 50 U.S.C. § 1821(2).
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Attorney General files such a declaration, as he did here, the district court must review the FISA materials ex parte and in camera and may order disclosure of “portions” of the FISA materials “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance [or search].” Id. (emphasis added).
By its terms, FISA thus requires the court to examine the applications, orders, and related materials ex parte and in camera to determine the lawfulness of the FISA collection. Id. If the court is able to assess the legality of the FISA collection, it must deny a request for disclosure to the defense. See, e.g., United States v. El-Mezain, 664 F.3d 467, 565 (5th Cir. 2011); United States v. Abu-Jihaad, 630 F.3d 102, 129 (2d Cir. 2010); United States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005); United States v. Squillacote, 221 F.3d 542 (4th Cir. 2000); United States v. Badia, 827 F.2d 1458, 1464 (11th Cir. 1987); United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982). A court may order disclosure of portions of the FISA materials to the defense only if it finds that it is incapable of accurately resolving the lawfulness of the FISA activity without such disclosure. El-Mezain, 664 F.3d at 567; AbuJihaad, 630 F.3d at 129.
In light of these procedures, “[d]isclosure of FISA materials is the exception and ex parte, in camera determination is the rule.” El-Mezain, 664 F.3d at 567 (citing Abu-Jihaad, 630 F.3d at 129); Duggan, 743 F.2d at 78
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(same); United States v. Rosen, 447 F. Supp. 2d 538, 546 (E.D. Va. 2006); see also Belfield, 692 F.2d at 147 (“The language of section 1806(f) 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 necessary.”); United States v. Isa, 923 F.2d 1300, 1306 (8th Cir. 1991). As this Court observed, a case in which “disclosure is necessary” is “one-in-a-million.” In re Grand Jury Proceedings of Special April 2002 Grand Jury, 347 F.3d 197, 203 (7th Cir. 2003) (affirming district court’s decision not to disclose FISA applications and orders based on the court’s own review of the record); see also Kris & Wilson, National Security Investigations § 29:3 n.1 (2d ed. 2012) (“Necessary means ‘essential’ or ‘required,’ and therefore the plain language of that provision makes clear that a court may not disclose . . . unless it cannot determine whether the surveillance was unlawful without the assistance of defense counsel and an adversary hearing.”).
Indeed, apart from the district court in this case, every court to have addressed a motion to disclose FISA applications and orders or to suppress FISA information has been able to reach a conclusion about the legality of the challenged FISA collection based on its own in camera, ex parte review. See, e.g., El-Mezain, 664 F.3d at 566 (quoting district court’s statement that no court has ever held an adversarial hearing to assist the court); United States. v. Stewart, 590 F.3d 93 (2d Cir. 2009); In re Grand Jury Proceedings, 347
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F.3d at 203 (noting that, at that time, “every FISA wiretap review had been conducted in camera and ex parte”). Even where defendants have alleged specific errors or misrepresentations in the FISA applications, based on their analysis of the evidence in the case, courts have deemed disclosure unnecessary because they were able to rule on the legality of the surveillance, even in light of the alleged errors, through in camera, ex parte review. See, e.g., Abu-Jihaad, 630 F.3d at 130; Rosen, 447 F. Supp. 2d at 552 (denying disclosure despite minimization errors that were inadvertent, disclosed to the FISC, and promptly rectified).
The district court, however, disregarded the heavy burden imposed by FISA to justify disclosure. It offered no case-specific reason to support its decision and made no finding that disclosure was “necessary” to determine accurately the lawfulness of the surveillance. Instead, the district court acknowledged, after having made a “thorough and careful review of the FISA application and related materials,” that it was “capable” of making “an accurate determination of the legality of the surveillance.” R. 92 at 5; SA 5. That finding alone precludes disclosure under FISA.
Rather than address the specific facts of this case, the district court ordered disclosure because it believed that resolving the legality of the FISA collection is “best made in this case as part of an adversarial proceeding.” Id. at 5; SA 5. The court noted that “the adversarial process is integral to
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safeguarding the rights of all citizens” and quoted the Supreme Court’s language that the Sixth Amendment “right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” Id.
But a court’s preference for the adversarial process—a circumstance that exists in all litigation—cannot serve as a basis for declaring that disclosure of FISA materials is “necessary to make an accurate determination of the legality of the surveillance” under the statute. Congress envisioned that FISA litigation be handled ex parte, in camera, with disclosure the rare exception. E.g., In re Grand Jury Proceedings, 347 F.3d at 203; El-Mezain, 664 F.3d at 567; Abu-Jihaad, 630 F.3d at 129; Duggan, 743 F.2d at 78. Yet the district court’s reasoning would turn that regime on its head. A court could always say that an adversarial proceeding would be the “best” way to determine the legality of the FISA collection. To compel disclosure on that basis would trivialize FISA’s necessity standard and work a sea change in FISA litigation.
For FISA and its procedures to have meaning, the need for disclosure must stem from unique, case-specific facts, and not a general preference that would apply to all FISA litigation. After all, the statute mandates that courts review the FISA applications and orders in camera and ex parte before even contemplating disclosure. Thus, a court cannot order disclosure of FISA
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materials unless it concludes, based on facts specific to the FISA applications in that case, that it cannot accurately resolve the legality of the collection without such disclosure.
The legislative history of FISA reinforces the conclusion that disclosure cannot be “necessary” absent a case-specific reason that would justify a departure from the default ex parte process. Among the factors bearing on the possibility of disclosure include “indications of possible misrepresentation of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of nonforeign intelligence information.” S. Rep. No. 95-701, 95th Cong., 2d Sess. 64 (1978) (“Senate Report”); see also Belfield, 692 F.2d at 147; House Report at 47 (discussing the term “necessary” as used in the definition of “foreign intelligence information” and emphasizing that it meant “important and required” and not simply “useful and convenient”).12 Nothing in FISA’s legislative history lends credence to the district court’s disregard for FISA’s “necessary” language.

12 A prior version of the bill that became FISA would have allowed disclosure of the applications and orders “if there is a reasonable question as [to] the legality of the surveillance and if disclosure would likely promote a more accurate determination of such legality or if such disclosure would not harm the national security.” House Report at 10. That version, however, was not enacted by Congress. See H.R. Conf. Rep. No. 95-1720, 31-32. Congress’s decision to reject this standard, opting instead for a stricter one, supports the inference that the “necessary” requirement sets a high bar.
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The district court’s order also runs counter to the policy judgment Congress made in devising FISA’s suppression procedures. The advantages of the adversary process were well known to Congress, but those benefits were weighed against the exceptional costs of revealing “sensitive foreign intelligence information.” Senate Report at 57; see also Belfield, 692 F.2d at 148 (noting that Congress was “aware” of the difficulties of ex parte procedures, but that Congress made a “thoroughly reasonable attempt to balance the competing concerns of individual privacy and foreign intelligence.”). The district court’s gloss on the statute, if embraced by other courts, would make disclosure the norm, circumventing Congress’s intentions and upsetting decades of case law. See Belfield, 692 F.2d at 146-48 (noting that Congress “was adamant” that the “carefully drawn procedures” of § 1806(f) were not to be “bypassed by the inventive litigant using a new . . . judicial construction”) (citing Senate Report at 63).
An attempt to compel disclosure on similar grounds was roundly rejected by the D.C. Circuit in Belfield. 692 F.2d at 146-47. There the defendants asserted that “[q]uestions as to the legality of surveillance conducted under FISA are far too complex to be determined without disclosure and adversary proceedings.” Id. at 147. The Belfield court recognized that this theory proved too much—that “in every case ‘such disclosure is necessary to make an accurate determination of the legality of
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the surveillance.’” Id. (emphasis in original). That view, the court declared, “cannot be correct” “as a matter of statutory interpretation” because “[t]he language of section 1806(f) 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 necessary.” Id. (emphasis in original). Belfield’s conclusion applies with equal force to the district court’s invocation of the adversarial process, for that too stands at odds with the language and structure of FISA.
To the extent the district court thought its ruling found support in cases applying the Sixth Amendment right to effective assistance of counsel (see R. 92 at 5), that too was wrong. There is no Sixth Amendment right to have counsel present for a classified, pretrial determination. See United States v. Abu Ali, 528 F.3d 210, 254 (4th Cir. 2008). And FISA’s ex parte review procedure has withstood numerous constitutional challenges. See, e.g., El-Mezain, 664 F.3d at 567-69; Damrah, 412 F.3d at 624-25; Isa, 923 F.2d at 1306-07; United States v. Ott, 827 F.2d 473, 476-77 (9th Cir. 1987); Belfield, 692 F.2d at 148.
The claim that the Sixth Amendment requires an adversary hearing also founders on the large body of non-FISA law allowing courts to hold ex parte, in camera hearings when needed to protect an informant’s safety, the integrity of an ongoing investigation, or some other legitimate governmental
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interest. See Isa, 923 F.2d at 1307; United States v. Falvey, 540 F. Supp. 1306, 1315 (E.D.N.Y. 1982). Indeed, even before FISA came into existence, the Supreme Court authorized the adjudication of electronic surveillance issues ex parte and in camera. See Taglianetti v. United States, 394 U.S. 316, 317 (1969) (per curiam) (“Nothing [in the Supreme Court previous decisions] requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance”); Giordano v. United States, 394 U.S. 310, 314 (1969) (“Of course, a finding by the District Court that surveillance was lawful would make disclosure and further proceedings unnecessary.”). In accordance with those principles, the government’s compelling interest in protecting ongoing national security investigations and intelligence sources and methods, coupled with the protections found in other parts of FISA, justifies limiting the defendant’s right to review the FISA applications and orders, especially given the relatively straightforward task of assessing probable cause, which district courts do on a regular basis when approving or evaluating criminal search warrants. Isa, 923 F.2d at 1307; see generally Kaley v. United States, 134 S. Ct. 1090, 1103 (2014) (“This Court has repeatedly declined to require the use of adversarial procedures to make probable cause determinations.”).
Not only did the district court misapprehend FISA’s necessity standard, the court appeared to replace it altogether with a novel balancing test. The
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court stated that the government “has no meaningful response to the argument by defense counsel that the supposed national security interest at stake is not implicated where defense counsel has the necessary clearances” and that, without some greater showing of national security harm, “this Court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel.” R. 52 at 4.13
Such a balancing test has no moorings in the statute. FISA does not call for district courts to estimate the “potential danger of disclosure,” scrutinizing the executive branch’s judgment that disclosure to the defense would harm national security. Those judgments, appropriately entrusted to the executive branch, “are decisions for which the judiciary has neither aptitude, facilities, nor responsibility.” Chicago & S. Airlines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). A district court judge has “little or no background in the delicate business of intelligence gathering,” and should thus give appropriate deference to the executive branch’s assessments about the significance of disclosing sensitive information and the

13 The district court stated that the “government’s only response at oral argument was that [ordering disclosure of FISA materials to defense counsel] has never been done.” R. 92 at 4; SA 4. The government provided classified briefing to the district court regarding the damage that could be expected to occur from such an order (see G.Br. and Ex. 2), but was not able to discuss that information in open court due to its classification.
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repercussions for intelligence gathering and United States foreign policy. CIA v. Sims, 471 U.S. 159, 176 (1985); see also id. at 180 (“It is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency’s intelligence-gathering process”); United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) (“Things that did not make sense to the District Judge would make all too much sense to a foreign counter-intelligence specialist who could learn much about this nation’s intelligence-gathering capabilities from what these documents revealed about sources and methods.”). In light of these concerns, FISA envisions an inquiry more limited and suitable for a nonspecialist court: an ex parte, in camera review to determine whether the applications for FISA collection established probable cause, as well as compliance with the other statutory requirements.
The problems with the balancing test fashioned by the district court are exemplified by its application here, for the court misjudged the real risks of disclosure. The court incorrectly assumed that defense counsel’s security clearance14 would simply “allow him to examine the classified FISA

14 According to the Classified Information Security Officer, defense counsel currently holds a Secret level security clearance granted in connection with an unrelated matter and his background investigations would make him eligible for a
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application material.” R. 52 at 4; SA 4. Possession of a security clearance alone does not entitle counsel to see documents with that classification; a “need-to-know” must exist before classified information may be disclosed. See Executive Order 13526, § 4.1(a); El–Mezain, 664 F.3d at 568 (approving denial of discovery to cleared defense counsel because of the government’s substantial interest in maintaining secrecy); United States v. Sedaghaty, 728 F.3d 885, 909 (9th Cir. 2013); United States v. Libby, 429 F. Supp. 2d 18, 24 & n.8 (D.D.C. 2006) (security clearance alone does not justify disclosure because access to classified information is permitted only upon a showing that there is a “need to know”); United States v. Bin Laden, 126 F. Supp. 2d 264, 287 n. 27 (S.D.N.Y 2000); Baldrawi v. Department of Homeland Security, 596 F. Supp. 2d 389, 400 (D. Conn. 2009); see generally Ott, 827 F.2d at 477 (“Congress has a legitimate interest in authorizing the Attorney General to invoke procedures designed to ensure that sensitive security information is not unnecessarily disseminated to anyone not involved in the surveillance operation in question.”) (emphasis added).15

Top Secret clearance and access to sensitive compartmented information (“SCI”). R. 102.
15 Disclosure to defense counsel raises particular issues because the obligation to safeguard national security information stands in tension with counsel’s duty to zealously represent his or her client. As such, a defense counsel’s “sense of obligation to his client is likely to strain his fidelity to his pledge of secrecy.” Ellsberg v. Mitchell, 709 F.2d 51, 61 (D.C. Cir. 1983); see also Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980) (en banc) (holding that counsel’s
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The “need-to-know” prerequisite matters all the more here because, as persuasively articulated in the sworn declarations from the Attorney General of the United States and the FBI’s Acting Assistant Director for Counterterrorism, these FISA applications deal with exceptionally sensitive issues with profound national security implications.
[CLASSIFIED MATERIAL REDACTED] The district court’s order ignored these declarations and brushed aside the considered judgment of two senior executive branch officials who carefully concluded—based on the particular facts of this case—that disclosure may lead to an unacceptable risk of compromising the intelligencegathering process and undercut the FBI’s ongoing ability to pursue national security investigations. If permitted to stand, the district court’s order would impose upon the government a lose-lose dilemma: disclose sensitive classified information to defense counsel—an option unlikely to be sanctioned by the owners of that information—or forfeit all FISA-derived evidence against the defendant, which in many cases may be critical evidence for the government.

duty of undivided loyalty to his client gives him “every incentive to probe as close to the core secrets as the trial judge would permit”). Absent a finding that disclosure to defense counsel is necessary for the court to determine the legality of the challenged surveillance, the government should “not [be] required to play with fire and chance further disclosure – inadvertent, mistaken, or even intentional.” Sterling v. Tenet, 416 F.3d 338, 344 (4th Cir. 2005); Halkin v. Helms, 598 F.2d 1, 7 (D.C. Cir. 1978) (“It is not to slight judges, lawyers, or anyone else to suggest that any disclosure [of classified information] carries with it serious risk that highly sensitive information may be compromised.”).
29

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A ruling that bears such significant consequences should not proceed from a misreading of the law.
This case amply illustrates why Congress created FISA’s procedures. Classified information is too sensitive to be shared with individuals who lack a “need-to-know,” regardless of their possession of a security clearance, thus FISA directs courts to assess the legality of the collection ex parte and in camera. A court may deviate from this procedure only in the rare case in which the legality of the FISA collection cannot be adjudicated without disclosing portions of the FISA materials to the defense. This is not that case. The district court found that it was “capable” of assessing the legality of the FISA collection ex parte and in camera, and that is what the court should have done.
3. The Legality of the FISA Collection May Be Accurately Assessed Ex Parte and In Camera
As the classified exhibits in the Sealed Appendix demonstrate, a court should have no trouble finding FISA’s requirements met in this case. That is, a court is fully capable of determining here that the applications established probable cause, the executive branch certifications were proper, and the collection was appropriately minimized. See Abu-Jihaad, 630 F.3d at 130-31; Belfield, 692 F.2d at 147 (“[t]he determination of legality in this case is not complex”); United States v. Warsame, 547 F. Supp. 2d 982, 987 (D. Minn.
30

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2008) (“issues presented by the FISA applications are straightforward and uncontroversial”).
The FISA applications further refute the host of legal and factual challenges the defendant presented to the district court.16 These allegations may be considered, and rejected, based on an examination of the classified record. The applications present none of the issues that may warrant disclosure, such as “indications of possible misrepresentation of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of nonforeign intelligence information.” Belfield, 692 F.2d at 147 (quoting Senate Report at 64).
[CLASSIFIED MATERIAL REDACTED] a. The FISA Applications Established Probable Cause
[CLASSIFIED MATERIAL REDACTED]17

16 That the defendant managed to present over fifty pages of briefing in support of suppression (see R. 52, 74) without having seen the FISA applications aptly illustrates how FISA’s ex parte regime does not prevent a defendant from articulating challenges to the surveillance. See United States v. Megahey, 553 F. Supp. 1180, 1193-94 (E.D.N.Y 1982).
17 Even if the FISA collection were not lawfully authorized, the “good faith” rule of United States v. Leon, 468 U.S. 897, 914-15 (1984) would prevent exclusion of the evidence unless the affidavit supporting the warrant was false or misleading, or probable cause was so transparently missing that “no reasonably well trained officer [would] rely on the warrant.” See United States v. Ning Wen, 477 F.3d 896, 897 (7th Cir. 2007) (applying Leon to FISA warrant). There is no basis to find that any of the applications at issue contained false or misleading statements or that probable cause was lacking.
31

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b. The Certifications Complied With FISA [CLASSIFIED MATERIAL REDACTED]
c. The FISA Information Was Appropriately Minimized [CLASSIFIED MATERIAL REDACTED]
* * * In sum, the FISA applications presented the FISC with probable cause; they included a proper executive branch certification; and the resulting collection was properly minimized. The applications, orders, and related materials present nothing extraordinary that would justify this case becoming the first in which FISA applications are ordered disclosed. The district court, as it acknowledged, was fully capable of deciding these issues ex parte and in camera, as confirmed by the classified record. Against this backdrop, the district court legally erred (and thus abused its discretion) in ordering the disclosure of FISA applications and orders, despite the sworn declarations from executive branch officials that doing so would harm national security. The reason for the court’s order—that an adversarial process is “best”—falls well short of the high threshold of necessity required to justify disclosure under FISA. Were it otherwise, ex parte and in camera adjudication of FISA collection would no longer be “the rule”—contrary to the balance struck by Congress and decades of case law— and the government in national security cases would be forced either to
32

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disclose highly-sensitive information or forgo valuable evidence, the very predicament FISA was designed to avert.
Relying on the correct “necessity” standard, no grounds for disclosure may be found in the classified record. A reviewing court may readily make an accurate determination of the legality of the FISA collection, based on an ex parte and in camera review of the classified record in this case, and decide that the FISA collection was lawful. The district court’s order should therefore be reversed.

33

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CONCLUSION For the reasons discussed above, the United States respectfully asks this Court to reverse the district court’s order compelling disclosure to defense counsel of classified FISA applications, orders, and related materials.

Respectfully submitted.
ZACHARY T. FARDON United States Attorney
MARK E. SCHNEIDER Assistant United States Attorney Chief of Appeals, Criminal Division
/s/ William E. Ridgway WILLIAM E. RIDGWAY Assistant United States Attorney
JEFFREY M. SMITH Attorney National Security Division

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CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 30(d) Pursuant to Circuit Rule 30(d), I, William E. Ridgway, counsel for
Plaintiff-Appellant, UNITED STATES OF AMERICA, state that the appendix included with this brief on appeal incorporates the materials required under Circuit Rule 30(a) and (b).

Respectfully submitted,
By: /s/ William E. Ridgway WILLIAM E. RIDGWAY Assistant United States Attorney 219 S. Dearborn Street, 5th Floor Chicago, Illinois 60604 (312) 469-6233

Case: 14-1284 Document: 20

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RULE 32 CERTIFICATION I hereby certify that:
1. This redacted brief complies with the type volume limitation of Federal Rules of Appellate Procedure 32(a)(7)(B) because it contains 7,992 words.
2. This redacted brief complies with the typeface and type-style requirements of Federal Rules of Appellate Procedure 32(a)(5), 32(a)(6), and Circuit Rule 32(b), because it has been prepared using the Microsoft Office Word proportionally-spaced typeface of Century Schoolbook with 13-point font in the text and 12-point font in the footnotes.

Respectfully submitted.

ZACHARY T. FARDON United States Attorney

By:

/s/ William E. Ridgway

WILLIAM E. RIDGAY

Assistant United States Attorney

219 South Dearborn Street, 5th Floor

Chicago, Illinois

(312) 469-6233

Case: 14-1284 Document: 20

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CERTIFICATE OF SERVICE I hereby certify that on March 31, 2014, I electronically filed the foregoing Brief and Short Appendix of the United States with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Respectfully submitted.

By:

/s/ William E. Ridgway

WILLIAM E. RIDGWAY

Assistant United States Attorney

219 South Dearborn Street, 5th Floor

Chicago, Illinois

(312) 469-6233

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SHORT APPENDIX

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SHORT APPENDIX TABLE OF CONTENTS

Memorandum Opinion and Order .............................................................1 Transcript of proceedings, January 3, 2014 ..............................................6

Case: 1:12-cr-00723 Document #: 92 Filed: 01/29/14 Page 1 of 5 PageID #:668

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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

UNITED STATES OF AMERICA,
v. ADEL DAOUD,
Defendant.

)

)

)

)

No. 12 cr 723

)

)

Judge Sharon Johnson Coleman

)

)

)

MEMORANDUM OPINION AND ORDER

Defendant Adel Daoud is charged with attempting to use a weapon of mass destruction in

violation of 18 U.S.C. § 2332a(a)(2)(D) and attempting to destroy a building by means of

explosive in violation of 18 U.S.C. § 844(i). Daoud filed a motion for disclosure of Foreign

Intelligence Surveillance Act of 1978 (“FISA”) related material and to suppress the fruits or

derivatives of electronic surveillance and any other means of collection conducted pursuant to

FISA or other foreign intelligence gathering [51]. This Court heard oral argument on this, and other motions, on 1/3/2014.1 For the reasons discussed below, the motion is granted in part and

denied in part.

FISA Procedures

The Foreign Intelligence Surveillance Act of 1978, established detailed procedures

governing the Executive Branch’s ability to collect foreign intelligence information. To obtain

an order authorizing electronic surveillance or physical searches of an agent of a foreign power,

FISA requires the government to file under seal an ex parte application with the United States

Foreign Intelligence Surveillance Court (the “FISC”). 50 U.S.C. §§ 1804, 1823. The application

1 Unlike the Court’s recent denial of discovery [87], which did not seek the discovery of classified information, the instant motion seeks disclosure of classified documents that are ordinarily not subject to discovery.

S.A.

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must be approved by the Attorney General and must include certain specified information. See 50 U.S.C. §§ 1804(a), 1823(a).
After review of the application, a single judge of the FISC will enter an ex parte order granting the government’s application for electronic surveillance or a physical search of an agent of a foreign power, provided the judge makes certain specific findings. 50 U.S.C. §§ 1805(a), 1824(a). The FISA order must describe the target, the nature and location of the facilities or places to be searched, the information sought, and the means of acquiring such information. See 50 U.S.C. §§ 1805(c)(1), 1824(c)(1). The order must also set forth the period of time during which the electronic surveillance or physical searches are approved, which is generally ninety days or until the objective of the electronic surveillance or physical search has been achieved. See 50 U.S.C. §§ 1805(e)(1), 1824(d)(1). Applications for a renewal of the order must generally be made upon the same basis as the original application and require the same findings by the FISC. 50 U.S.C. §§ 1805(e)(2), 1824(d)(2).
The current version of FISA requires that “a significant purpose” of the surveillance or search is to obtain foreign intelligence information. 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B) (2006). However, FISA allows the use of evidence derived from FISA surveillance and searches in criminal prosecutions. 50 U.S.C. §§ 1806(a), 1825(a). Here, the government provided notice, as required by FISA, of its intent to use evidence obtained and derived from electronic surveillance and physical searches pursuant to FISA orders.
FISA authorizes an “aggrieved person” to seek suppression of any evidence derived from FISA surveillance or searches either because (1) the evidence was unlawfully acquired, or (2) the electronic surveillance or physical search was not conducted in conformity with the order of authorization or approval. 50 U.S.C. §§ 1806(e), 1825(f). An “aggrieved person” for purposes of

S.A.

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electronic surveillance is “a person who is the target of an electronic surveillance.” 50 U.S.C. § 1801(k). For physical searches, FISA defines “aggrieved person” as “a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.” 50 U.S.C. § 1821. Discussion
Daoud moves for disclosure of the FISA application and materials and also moves to suppress the fruits of electronic surveillance pursuant to FISA or any other foreign intelligence information gathering. Daoud requests that this Court review all applications for electronic surveillance of the defendant pursuant to FISA; to order the disclosure of the applications for the FISA warrants to defendants’ counsel pursuant to an appropriate protective order; conduct an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978); suppress all FISA intercepts and seizures, and fruits thereof, derived from illegally authorized or implemented FISA electronic surveillance; and consider the constitutionality of FISA both facially and as applied to defendant under the First and Fourth Amendment of the United States Constitution. For the reasons stated below, the motion is granted in part and denied in part.
Attorney General Eric H. Holder, Jr., filed an affidavit stating under oath that disclosure of such materials would harm national security. See 50 U.S.C. §§ 1806(f), 1825(g). Attorney General Holder’s claim of privilege is supported by a classified declaration from an FBI official. Pursuant to FISA, the filing of an Attorney General affidavit triggers an in camera, ex parte procedure to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. 50 U.S.C. §§ 1806(f), 1825(g).
Once the in camera, ex parte procedure is triggered, the reviewing court may disclose such materials “only where such disclosure is necessary to make an accurate determination of the

S.A.

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legality of the surveillance.” 50 U.S.C. § 1806(f); see also 50 U.S.C. § 1825(g). The Seventh Circuit has previously reviewed de novo the probable cause determination of the FISC, United States v. Dumeisi, 424 F.3d 526, 578 (7th Cir. 2005), and therefore this Court rejects the government’s request for deferential review. The factual averments and certifications used to support the government’s FISA warrant application are reviewed for clear error. United States v. Rosen, 447 F.Supp.2d 538, 546 (D.Va. 2006).
Here, counsel for defendant Daoud has stated on the record that he has top secret SCI (sensitive compartmented information) clearance. Assuming that counsel’s clearances are still valid and have not expired, top secret SCI clearance would allow him to examine the classified FISA application material, if he were in the position of the Court or the prosecution. Furthermore, the government had no meaningful response to the argument by defense counsel that the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances. The government’s only response at oral argument was that it has never been done. That response is unpersuasive where it is the government’s claim of privilege to preserve national security that triggered this proceeding. Without a more adequate response to the question of how disclosure of materials to cleared defense counsel pursuant to protective order jeopardizes national security, this Court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel. Upon a showing by counsel, that his clearance is still valid, this Court will allow disclosure of the FISA application materials subject to a protective order consistent with procedures already in place to review classified materials by the court and cleared government counsel.

S.A.

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While this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds that the disclosure may be necessary. This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment. Anders v. California, 386 U.S. 738, 743 (1967). Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. “The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 (1984).
In sum, this Court grants disclosure to cleared defense counsel of the FISA application materials and such disclosure will be made under an appropriate protective order. By this Order, this Court does not express any opinion with respect to the constitutionality of FISA or its procedures. Nor has this Court lost sight of the potential Classified Information Procedures Act (“CIPA”) issues that may be implicated by this disclosure, and resolution of those issues may result in the redaction of certain portions of the material. Lastly, this Court denies Daoud’s request to suppress all fruits of FISA surveillance without prejudice. Counsel for Daoud must present to the Court documentation of current valid security clearances at or before the next status hearing on February 6, 2014. IT IS SO ORDERED. Date: January 29, 2014
Entered: __________________________ United States District Judge

S.A.

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1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

2

EASTERN DIVISION

3 UNITED STATES OF AMERICA,
4 Plaintiff,
5 v.
6 ADEL DAOUD,
7 Defendant.
8

) No. 12 CR 723-1 ) ) ) ) Chicago, Illinois ) January 3, 2014 ) 1:35 p.m. ) ) Motion Hearing

9

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE SHARON JOHNSON COLEMAN

10

11 APPEARANCES:

12 For the Government: 13 14 15 16

HON. ZACHARY T. FARDON United States Attorney, by MR. WILLIAM RIDGWAY MR. BOLLING W. HAXALL, Assistant United States Attorneys 219 South Dearborn Street Suite 500 Chicago, Illinois 60604

17 For the Defendant: 18 19

DURKIN & ROBERTS 2446 North Clark Street Chicago, Illinois 60614 BY: MR. THOMAS A. DURKIN
MR. JOSHUA G. HERMAN

20

21

22

23

TRACEY DANA McCULLOUGH, CSR, RPR

Official Court Reporter

24

219 South Dearborn Street

Room 1426

25

Chicago, Illinois 60604

(312) 435-5570

S.A.

6

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1

THE CLERK: 12 CR 723, USA versus Adel Daoud.

2

THE COURT: Good morning, Mr. Daoud. How are you.

3

DEFENDANT DAOUD: I'm all right. How are you?

4

THE COURT: Well, actually we're afternoon now. All

5 right.

6

MR. RIDGWAY: Good afternoon, Your Honor. William

7 Ridgway and Bolling Haxall on behalf of the United States.

8

MR. DURKIN: Good afternoon, Judge. Tom Durkin and

9 Joshua Herman on behalf of the defendant, who's obviously

10 present and in custody.

11

THE COURT: Yes, and in custody. And we've spoken.

12

MR. DURKIN: Last I checked.

13

THE COURT: Okay. A couple of things today. First

14 of all, the Court did get your most recent submission of an

15 article, is that correct?

16

MR. DURKIN: Yes.

17

THE COURT: And your position?

18

MR. RIDGWAY: We received it as well, Your Honor.

19 And we have no, I guess no objection to it being part of the

20 record.

21

THE COURT: All right. For whatever it's worth. The

22 Court can always use some additional reading. Not in this

23 case, but I'll take it.

24

MR. DURKIN: I wanted to mention it today, and I

25 didn't want to mention it without having given everybody a copy

S.A.

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1 of it.

2

THE COURT: All right.

3

MR. DURKIN: That's all.

4

THE COURT: The Court does acknowledge that the Court

5 has a copy. The Court also would like to point out before we

6 get started on the motions that are germane to the proceedings

7 today, that there were some CIPA motions pending. And unless

8 this Court somehow has overlooked it, the Court didn't receive

9 a response. There was going to be an ex parte presentation

10 from the defense.

11

MR. HERMAN: That's correct. We had asked -- there

12 had been a deadline for the filing of a defense --

13

THE COURT: There was a September deadline.

14

MR. HERMAN: A defense, a defense position paper I

15 guess you would say as to what our defenses would be for the

16 Court to consider. That was -- we never noticed that up.

17

THE COURT: You filed a motion for I think a

18 three-week extension and --

19

MR. HERMAN: A second extension, and I think that was

20 when motions were flying back and forth and there was the issue

21 of the consolidation of the cases, which obviously had some

22 bearing on what positions we would set forth in --

23

THE COURT: And so, in other words, there hasn't been

24 one filed yet.

25

MR. HERMAN: There hasn't been one.

S.A.

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1

THE COURT: And you still would like to reserve the

2 right to file something.

3

MR. HERMAN: I think so.

4

THE COURT: Just to make clear, we're not dealing

5 with CIPA today.

6

MR. DURKIN: No.

7

THE COURT: All right.

8

MR. DURKIN: Other than the portion of our motion

9 that seeks permission to attend the ex parte proceeding.

10

MR. HERMAN: Correct.

11

MR. DURKIN: That portion we can argue in public I

12 believe.

13

THE COURT: Well, the Court isn't going to hear any

14 argument on that at all today. We'll deal with the motions --

15 the only motions the Court's going to deal with are 51, 54, and

16 70. Those are the ones that deal with the FISA related

17 materials and surveillance materials. Those are the ones the

18 Court's going to deal with today.

19

MR. RIDGWAY: That was our understanding as well,

20 Your Honor.

21

MR. DURKIN: Right.

22

THE COURT: All right. And we can set another date,

23 a future date soon after for your response or your written

24 response on the CIPA materials. And if there's something else

25 you wish to file, to have some sort of hearing, which I don't

S.A.

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1 think you'll be able to have. But you can do some filing on

2 that. That's separate from the proceedings today.

3

MR. RIDGWAY: And just --

4

MR. DURKIN: The argument that I had intended to

5 discuss, which I think is part of the first motion is for us to

6 be part of the FISA proceeding, which our argument is you can

7 extrapolate the CIPA provisions which permit counsel to be

8 there even though it never happens, to be part of the FISA

9 proceeding regarding the other surveillance. That's I believe

10 part of what we're -- at least that's what I prepared to argue

11 today.

12

MR. RIDGWAY: Your Honor, I understood that we would

13 be arguing about whether they would be present for any FISA

14 suppression related hearings.

15

MR. DURKIN: Yes.

16

MR. RIDGWAY: And that's fine. I didn't understand

17 there to be anything about the CIPA at this hearing.

18

THE COURT: All right.

19

MR. DURKIN: And I'm the one that misspoke. That's

20 correct.

21

THE COURT: It's FISA.

22

MR. DURKIN: FISA, yes.

23

THE COURT: Not CIPA. All right. As long as we're

24 all on the same page with that.

25

MR. DURKIN: Yes.

S.A.

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1

MR. RIDGWAY: And if I could inject one point on the

2 CIPA. I do -- defense counsel has been very generous with us

3 in terms of getting us extensions and so, but I will say the

4 CIPA filing's been on file for -- since March of last year. It

5 is something that we would like to have dealt with. And so in

6 particular because we don't want to have any reason to delay

7 the trial date in this case. I just ask that we can

8 expeditiously handle that.

9

MR. DURKIN: We can do that.

10

THE COURT: The Court agrees. That was one of the

11 reasons I brought it up today. Just to make sure it's on the

12 radar, but not being dealt with.

13

MR. DURKIN: I appreciate that. I assume you can

14 understand, though, that our submission will be different now

15 that the cases are consolidated.

16

THE COURT: And I'm not going to presume what you

17 will be submitting, but --

18

MR. DURKIN: Oh, no, but I mean I -- we didn't

19 intentionally delay because we were not interested. It was --

20 we just thought it would be difficult to present in one

21 pleading if we still didn't know what was happening with the

22 consolidation.

23

THE COURT: If the Court hadn't thought that you were

24 still interested, the Court would have ruled as the Court had

25 stated in its motion that I would rule without your

S.A.

11

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1 submissions.

2

MR. DURKIN: I kind of figured that.

3

THE COURT: So the Court understands that you still

4 have a desire to --

5

MR. DURKIN: Thank you.

6

THE COURT: -- make a presentation, and we'll set a

7 time period at the close of this proceeding today.

8

MR. DURKIN: That's fine. Thank you.

9

THE COURT: All right. And so since it's your

10 motion, if defense wants to either stand to the side or

11 whichever. You can be seated. However you want to do it.

12

MR. DURKIN: What I was hoping to do is I'd like to

13 argue -- Mr. Herman would like to argue the discovery related

14 motion.

15

MR. HERMAN: Right. The non-FISA discovery motion

16 that fits into the surveillance and investigation. And as I

17 think you'll see that there will be overlap. That is just a

18 natural outcome of the way the arguments and the issues are

19 framed. And Mr. Durkin will argue the FISA and the FAA related

20 motions.

21

THE COURT: All right. All right. That will be

22 fine. What the Court will suggest is that why doesn't

23 everybody including Mr. Daoud have a seat at the table. And

24 that way we can be a little bit more organized in how we go

25 about this.

S.A.

12

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1

MR. DURKIN: That's fine.

2

THE COURT: And defense may proceed when they're

3 ready, and then the government may respond. Understanding by

4 all that this Court has reviewed all of the submissions, and

5 this Court will also note that although, and that you have

6 presented an article and there may be some references to other

7 proceedings, that this Court is focused on what's going on in

8 this case and what's relevant to this case and not an overall

9 view of the surveillance system and all the news that surrounds

10 it that may have nothing whatsoever to do with this case.

11 Keeping that in mind in your arguments, proceed.

12

MR. DURKIN: Well, thank you, Judge. And thanks,

13 first of all, for giving us the opportunity to argue, because I

14 think this is a significant motion at a significant time in our

15 history involving this growth of the national security state.

16 And I understand that things may or may not be relevant to the

17 bigger picture from the Snowden matter, but that goes to the

18 heart of the problem. We don't know that. And that's one of

19 the biggest problems here.

20

I would respectfully submit that the opinions of --

21 and I'm assuming you were talking when you just mentioned other

22 cases, the two opinions that have been widely publicized by

23 both -- regarding the 215 issue by Judge Leon in Washington and

24 Judge Pauley in New York. Those opinions I think are germane

25 to the bigger picture that I think is at stake here. I think

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1 what is at stake here is a genuine issue of transparency and

2 the effectiveness of the adversary system, which is at the

3 heart of this, and I think going to our fundamental premise.

4 And I don't think I'm to a point where I can jump and argue the

5 unconstitutionality as Judge Leon has set out, or conversely

6 the lawfulness of the 215 regarding -- that Judge Pauley found.

7

But nevertheless I think that issue is there, and I

8 think it could be relevant in this case depending on what we

9 discover and depending on what is presented to you in the FISA

10 proceedings. And that's why I think that this is the case, if

11 there was ever a case where the adversary system should be

12 permitted to have access to the FISA proceeding. We've set it

13 out -- I mean, I think our reply brief is probably the most

14 comprehensive response that I could make to the entire issue.

15 But we set our argument out there.

16

We are both cleared counsel. I believe, you know,

17 and if it's not part of the record, I'd make it part of the

18 record. If you need a submission, I would do it, but I was

19 part of the Military Commissions in Guantanamo Bay. I was

20 counsel originally in the 911 conspiracy case. And in the

21 course of that proceeding and the Military Commissions I was

22 granted a top secret SCI clearance, which I believe is the

23 highest clearance you can possibly get. I was privy to all

24 kinds of classified, confidential evidence in that case. I

25 think there is no question that there's adequate protection

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1 involved simply under the procedures and the protective orders.

2

And I think where we're at is that I believe that

3 there are questions about the viability of the adversarial

4 system in this country at least insofar as terrorism related

5 cases are concerned. And with all due respect, I think you can

6 kind of take your side of where you want to come out in history

7 on this, because I don't think I'm overstating it to say we are

8 at a crossroads here. The Snowden leaks have created an

9 enormous controversy in this country over what's going on, and

10 the consequences of a nontransparent intelligence agency

11 operating in the dark.

12

And I'm not going to get into whether The New York

13 Times is right in praising Snowden or calling for whatever.

14 But the fact remains is that there is a tremendously serious

15 debate going on in this country over I believe what happened in

16 this case. I believe that that program was used in some

17 fashion in this case. I can't prove it. I don't have any

18 access to be able to prove it, but -- and Mr. Herman will

19 address it in more detail with respect to the discovery side of

20 it, but the timing all fits as well. And he, he will address

21 that later.

22

THE COURT: All right. Can you -- now that the Court

23 has given you a lot of latitude in your prefacing remarks, can

24 you be more specific to the case here as to what you are asking

25 for in this case here.

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1

MR. DURKIN: What I'm asking for right now and what I

2 want to argue about right now is simply the ability to

3 participate in the FISA hearing. I'm asking very seriously for

4 you to consider permitting cleared counsel to be part of this

5 process, because I think the lack of transparency and the

6 suspicion surrounding this program and the controversy that's

7 going on demands it. And in this case -- and that's the reason

8 I gave you the Mearsheimer article. And I'm not trying to

9 belabor it. But the reason I found that article interesting is

10 that that's an article that's written by a political scientist

11 of significant repute. It is -- and he is not a flaming

12 liberal by any stretch of the imagination. And some --

13

THE COURT: Whatever that means.

14

MR. DURKIN: Well, people accuse me of that at times.

15 He is a very serious political scientist. And I think that

16 some of the comments he makes here are relevant to what we're

17 talking about today. He's talking about, you know, core

18 principles of a liberal society trampling on the rule of law.

19 And he's talking about secrecy. He's talking about, you know,

20 the exaggerated fear of foreign threats that permeates the

21 American national security establishment. It is unsurprising

22 that Presidents Bush and Obama have pursued policies that

23 endanger liberal democracy at home.

24

Now, I'm not trying to be dramatic. But this -- I

25 genuinely believe that he's right. And I genuinely believe

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1 what we've put in our pleading here is accurate. I don't

2 believe that the U.S. Attorney's office gets the straight

3 information from the intelligence agencies. I simply don't

4 believe it because I know how other cases operate. I know what

5 happens in the normal give and take with prosecutors. It

6 doesn't happen in these types of cases. We don't get the kinds

7 of responses that we get in this case in any other type of

8 cases.

9

And I said in our pleading I think it really calls

10 out for an independent judiciary to get involved. Judge

11 Pauley, with all due respect to him, starts out his opinion --

12

THE COURT: And the Court really doesn't want to get

13 into discussion, Mr. Durkin, on the recent decisions on either

14 side of what the judges say.

15

MR. DURKIN: But here's -- what I'm getting at is

16 what Mearsheimer is talking about, what Pauley talks about,

17 what everybody is talking about, which is the use of fear to

18 quiet any criticism of what's going on. And the use of fear to

19 back off the judiciary. And that I think is what's going on.

20 I understand that you have to follow precedent. I understand

21 that the law is a certain way. But I don't believe that you

22 can rely simply on the representations of the U.S. Attorney's

23 office. Not because they're hiding anything, but because

24 things are being hidden from them.

25

I do not understand, for example, why we can't get a

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1 simple answer of what happened here. Is that because it's too

2 secret to know? What possibly could have happened here in this

3 case that would be too secret for us to know about? And if it

4 is, why can't we then be told in secret as part of the -- as

5 cleared counsel and as part of the protective order? There's

6 no reason not to be. And that's what's at stake here. And I

7 understand you don't want -- I won't -- some other time I'll

8 give you my argument on Pauley versus Leon. But what we're

9 talking about is this case and what happened.

10

And I'll defer to Mr. Herman to give you more of the

11 timeline as to why we suspect that there is something there.

12 But what I'm saying bluntly is if it's there and we're right,

13 then we should get to challenge the constitutionality of the

14 FAA, because he is a criminal defendant entitled to that. And

15 we shouldn't have to play semantics about whether the evidence

16 was used or derived from or whatever way they want to parse it.

17 It's a simple proposition. Was something used or not? We

18 believe it was.

19

THE COURT: All right. Thank you, Mr. Durkin. I'm

20 going to allow -- before you step up, Mr. Herman, I'm going to

21 allow the government if they wish to respond at this point to

22 the request to participate in the FISA hearing.

23

MR. RIDGWAY: Thank you, Judge. Respectfully

24 regarding some of the information that we've seen and the

25 responses, much of that I believe is not really applicable to

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1 the facts of this case. And so I want to focus on the facts in

2 this case here.

3

This is an individual we provided notice to that

4 information was collected through a traditional FISA. That

5 means that a federal judge made a decision that there was

6 probable cause the defendant was acting as an agent of a

7 foreign power. Now, I understand the defense has moved to

8 suppress that FISA, and that's, and that's its right. But it's

9 important to keep in mind, though, that Your Honor is going

10 have the opportunity to assess whether the judge was correct in

11 making that assessment in terms of probable cause.

12

And Your Honor will also have the opportunity to

13 assess the allegations that we've heard surrounding this case

14 from the defense. And there's a procedure for that review

15 that's critical here, and that procedure is laid out in the

16 statute. If the Attorney General submits a declaration saying

17 that permitting the defense access to the hearing would harm

18 national security, as Attorney General Holder has done here, if

19 that's the case, then the default is that the proceedings are

20 held in camera and ex parte. And that is the default that has

21 been followed for over 35 years now in FISA litigation.

22

And, Your Honor, I don't believe that the filings we

23 received from the defense that -- what the defense has offered

24 you has given you a reason to deviate from what really is

25 decades of precedent. There are articles related to

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1 disclosures obviously. And, of course, there is a lot of media

2 associated generally with surveillance and the NSA and things

3 like that.

4

THE COURT: Well, it's not just the media, is it, Mr.

5 Ridgway? I mean, hasn't there have been some facts that have

6 come out to --

7

MR. RIDGWAY: There certainly have, Your Honor, and

8 I'm certainly not an expert in that area, and I won't be able

9 to weigh in on that. But I -- so there has been a great deal

10 of information.

11

THE COURT: Some things have changed since the last

12 30 years. That's what the Court is saying. I'm sure that

13 that's what Mr. Durkin is also saying.

14

MR. RIDGWAY: Yes, Your Honor. But it's important to

15 keep in mind that those reports don't, they don't change the

16 case law. The case law still is what it is. And more

17 importantly, it relates to information that's really not at

18 issue here. So to be specific, FISA Amendments Act, we've

19 heard a lot about that. That's part of the statute that's

20 related to many of these disclosures. And the government has

21 represented in its previous filing, and I can do so again, that

22 if in this case the government was intending to use any

23 information obtained or derived from the FISA Amendments Act in

24 the case against Adel Daoud in which he is aggrieved party,

25 then we would provide notice. And no notice has been provided

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1 in this case because those aren't the facts -- that's not the

2 facts of this case. And so --

3

THE COURT: And is it correct that you have on at

4 least two occasions before this Court stated on the record that

5 this is traditional FISA material, not FAA related, is that

6 correct?

7

MR. RIDGWAY: That's correct, Your Honor, that we

8 provided notice for a traditional FISA, not for FAA related

9 acquisition. So the information that has been -- that has --

10 that the defense has talked about really doesn't have bearing

11 on the issues in this case. And so I don't think it gives

12 reason for you to deviate from the precedents that we laid out

13 in our filing. Case after case of judges finding that it was

14 appropriate to review a FISA, review its legality ex parte and

15 in camera.

16

THE COURT: Thank you very much. Mr. Durkin, very

17 brief reply if there is one or no.

18

MR. DURKIN: Well, I think --

19

THE COURT: Not a new speech. Just a brief reply.

20

MR. DURKIN: I think we addressed it in our reply.

21 The government's history of ex parte proceedings has not shown

22 to be very reliable based on the opinions that have come out of

23 the FISA court. So I think that knocks that argument down

24 completely, and I'll defer to what we wrote in the reply.

25

THE COURT: Great. Thank you, Mr. Durkin. All

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1 right. Mr. Herman.

2

MR. HERMAN: Judge, I want to thank you as well. And

3 as we said before, I'm going to focus on document No. 54 which

4 was filed, which was our motion for additional discovery

5 regarding the government's surveillance and investigation of

6 Adel Daoud. There will be some overlap because, as I said

7 before, I think the overlap's natural.

8

One of the things that you had said before Mr. Durkin

9 got up and possibly as a preemptive strike is that you had read

10 everything. Well, the fact of the matter is is that we

11 haven't.

12

THE COURT: Well, let me say this: Read everything

13 that you have submitted to me.

14

MR. HERMAN: Well, we haven't read everything that's

15 out there. One of the government's most substantial pleadings

16 was the response to one of the motions that Mr. Durkin

17 addressed, which was our motion to participate in the FISA

18 hearing. That document, as you know, and as the public knows

19 and as we are limited to knowing is substantially redacted. We

20 can only guess what's in there, in that document. And that

21 arrives at one of the themes to our motion for discovery, which

22 is targeted at non-FISA related information but information

23 that is very significant to the case and some defenses that we

24 anticipate raising, specifically that of entrapment, which is

25 the issue of transparency.

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1

And we think that there's some spill over and bleed

2 over from this intelligence agency mentality of secrecy and in

3 the investigation of Adel Daoud into what is more of a

4 traditional discovery request here into material that is both

5 relevant and we believe material to this case, specifically as

6 to issues of entrapment and Mr. Daoud's predisposition or lack

7 thereof, and the steps, the extraordinary steps that the

8 government took in inducing Mr. Daoud.

9

As Mr. Durkin said, there's some facts here. And I

10 want to -- as high as he was, I want to get down into the weeds

11 just a little bit to frame the importance of our discovery

12 requests here. In the indictment -- excuse me, in the criminal

13 complaint that was filed in this case one of the first dates we

14 see is October 2011, which is significantly just after Mr.

15 Daoud turned 18. In the discovery, and the government may say

16 they've turned over voluminous discovery, and that's absolutely

17 correct. And I will say that the government has been -- the

18 prosecutors here have been very cooperative in working out

19 disputes and issues so we wouldn't have to bring them to the

20 Court. So I'd like to commend them for that.

21

But at the same time to echo a theme that Mr. Durkin

22 said, we just don't know that they know everything. In fact,

23 we believe that they don't know everything that's out there,

24 and certain materials have been held up in the declassification

25 channel. So just not -- simply not provided. So we're making

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1 these --

2

THE COURT: And what again are you basing that on?

3

MR. HERMAN: We're basing it on --

4

THE COURT: Your not knowing what they might not know

5 that you think they know but you don't know.

6

MR. HERMAN: It's common sense based on everything

7 that Mr. Durkin said in the terms of the lack of candor that

8 the intelligence agencies had even before the FISC, the Foreign

9 Intelligence Surveillance Court. How many times they've

10 been -- the intelligence agencies and the government have been

11 chided for not being honest. How many times they've had to

12 come and correct themselves. Judge Bates' opinion, Judge

13 Walton's opinion. Judge Bates' opinion, and this will -- I

14 want to segue back into this timeline here -- is significant we

15 believe. And I'm not trying to go afield into the FAA

16 arguments, but like I said, there is an overlap.

17

That opinion was dated I believe October 3rd, 2011.

18 Again, it's significant. And this is just not tin foil hat

19 paranoia here. We believe that there's a basis. October 2011

20 is also significant because it's a date where Mr. Daoud and his

21 family traveled to Saudi Arabia for a Hajj, for a traditional

22 Muslim pilgrimage. Around that time we're also seeing

23 communications and e-mail traffic regarding the downloading of

24 certain speeches from Anwar al-Awlaki, who was droned and

25 killed by the government in September of 2011. Judge Bates'

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1 opinion discussed what I believe what's known as the upstream

2 collection of data, which was the snaring of international

3 communications through undersea cables.

4

We believe based on that, and that's where we assert

5 our good faith basis for the strong possibility which we

6 believe is true that Mr. Daoud's communications were not simply

7 as the document that we submitted. And I believe our final

8 pleading under seal we report this was not an investigation

9 that simply happened to be opened from an unsolicited source

10 providing information to the FBI in May of 2012. The complaint

11 talks about communications in October of 2011. We have in

12 discovery communications and e-mails long before then. Perhaps

13 the government knows how that information was then collected

14 through various databases of Google or YouTube because it's

15 very strangely organized in a manner that we who have been

16 practicing and receiving discovery in a lot of cases are not

17 used to seeing the way that has been organized.

18

There is also a significant concern of -- and this

19 ties directly into materiality and relevance because of this

20 entrapment defense. We think it's very telling if the

21 government is watching and monitoring Mr. Daoud for several

22 months in order to, in order to make a determination of whether

23 he is, for lack of a better word or phrase, a fitting candidate

24 for yet another government sting operation. We know, and I

25 know you don't want to hear about other cases, but young Muslim

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1 males are often prime candidates for government sting

2 operations.

3

Probably the most similar case is the case of -- in

4 Portland of -- against Mohamed Osman Mohamud, who was known

5 as the Christmas tree bomber. What's the analogy and the fact

6 that I want to impress about that case is the defendant also in

7 that case represented by Steve Wade -- Steve Sady and Steve Wax

8 I believe, who are very experienced attorneys, I believe one is

9 the Federal Defender from the district if I'm not mistaken,

10 made requests to the government for the surveillance

11 authorities that were used.

12

The case went to trial. There was nothing about

13 Section 215 or the FAA disclosed. In fact, there was just a

14 traditional FISA notice. And I'm responding to something that

15 Mr. Ridgway said about providing the notice and to your

16 question about them not knowing -- we not knowing what they

17 don't know or et cetera, et cetera. After conviction after a

18 jury trial Mr. Mohamud was provided notice that I believe it

19 was Section 215 was, in fact, used in that case. And we

20 spelled this out in our briefs.

21

In the case in Colorado that's pending right now,

22 Muratov, again there was a traditional FISA notice. Mr.

23 Muratov and his counsel were just -- were recently provided

24 with information that the FAA was, in fact, used. And the link

25 to Mr. Daoud's case is that both Mr. Daoud and Mr. Muratov were

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1 mentioned by Senator Feinstein on December 27th, 2012 in her

2 Senate floor speech. And I'm bringing that up because I don't

3 want docket No. 70 to not go mentioned, which is when we posed

4 the question that Senate legal counsel Frankel essentially said

5 all the information they're receiving is from the Executive

6 Branch.

7

We're quite frankly being whipsawed here. And we

8 think that our -- just all of our discovery requests, both FISA

9 and our traditional FISA -- or traditional discovery requests,

10 and I'm calling it traditional, but it's a little -- even

11 though within the confines of Rule 16 and Brady we believe it's

12 not what you see every day. We're being forced to make these

13 requests, and we believe transparency compels the answering to

14 them.

15

I want to make one final point about the specific

16 request we made regarding Exhibit A to our docket 54, which is

17 the 2002 FBI manual regarding the operation of undercover

18 guidelines, which I found on Google just looking around for

19 some stuff. And so it's out there. It's not a secret. The

20 government does not deny that it's not applicable authority in

21 this case. This is an incredibly important document to look

22 over closely with respect to the issues of entrapment, which

23 are spelled out on pages 16 and 17.

24

On page 17 there's an issue -- there's a sentence

25 when an undercover employee learns that persons under

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1 investigation intend to commit a violent crime, he or she shall

2 try to discourage the violence. In this case, Your Honor, we

3 had two online undercover employees, and this is spelled out in

4 the complaint, who in mid-May 2012 reached out to Adel Daoud

5 online and started conversations, purporting to be totally

6 independent of each other, but essentially creating an echo

7 chamber of extremism that Adel Daoud began to -- Mr. Daoud

8 began to engage them in conversations. They're working for the

9 FBI. They're operating --

10

THE COURT: You said they started it, but then you

11 just said that --

12

MR. HERMAN: They were communicating --

13

THE COURT: -- that he engaged them in conversation.

14

MR. HERMAN: They were communicating with each other.

15 Mr. Daoud didn't send an e-mail to one of these fellas, whoever

16 they were. If they were actually two people or if it was just

17 one person posing as two people. They contacted him. And I

18 believe that's again spelled out in the complaint. One of

19 these OCEs then invited -- said, hey, I have a flesh and blood

20 person that you can meet, a real terrorist.

21

What's interesting here and we -- Mr. Durkin said

22 this on I believe day one when we were on the case that if you

23 look in the indictment -- or at the complaint, excuse me, pages

24 40 -- paragraphs 41 through 43, there's an incredibly important

25 moment in the case when Mr. Daoud is confronted by his sheikh

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1 during Itikaf, which is a period of prayer and contemplation

2 during the Ramadan period. After this confrontation, another

3 individual said he wasn't interested in participating in any

4 type of activity. Mr. Daoud spoke with the UCE, the flesh and

5 blood agent, who said he was going to get the real fatwa. This

6 was in mid-August 2012.

7

The next meeting that the -- that Mr. Daoud had with

8 the UCE was on August 23rd, 2012, when the UCE assured Mr.

9 Daoud that this jihad had to be in his heart after Mr. Daoud

10 was expressing doubts. On August 22nd, 2012, one day before

11 this meeting, we understand from discovery that the FBI

12 constructed the fake bomb that Mr. Daoud subsequently tried to

13 detonate. That is hardly compliance with the FBI guidelines.

14 It's directly material to the issue of predisposition, to the

15 issue of inducement.

16

And before I take up any more time, we pose questions

17 on page 4 of our reply and also -- on docket No. 69, and also

18 on docket No. 70 at the bottom of page 4 to page 5, which is

19 the question in response to Senate legal counsel Frankel. We

20 submit that answering those questions go a long way in

21 resolving these discovery issues. And submitting documents for

22 in camera review or to cleared counsel may also be solutions

23 that could balance the interests in this case.

24

THE COURT: Thank you, Mr. Herman. Response by the

25 government. Mr. Ridgway.

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1

MR. RIDGWAY: Thank you, Judge. I just have a few

2 points I wanted to address. First, comments about the e-mails

3 that were collected and provided to the defense in this case

4 and the date range regarding those e-mails. Those were

5 collected via a traditional FISA. And I've said that before,

6 but that's worth saying again. And in terms of -- and this is

7 not even limited to FISA context or search warrant context.

8 When someone does a court order to collect information from an

9 account, information that is stored in the e-mail account will

10 also be retrieved pursuant to that search warrant.

11

So associating the timing of a particular e-mail that

12 was collected and provided to the defense, it doesn't

13 necessarily have any correlation with, for example, when the

14 investigation actually commenced, if that makes sense. When

15 there's stored -- when someone has e-mails stored in their

16 account and there's a search warrant executed, the stored

17 e-mail communications are also provided pursuant to that search

18 warrant.

19

With regard -- there is some discussion in terms of

20 classified materials. And, Your Honor, we had briefed the CIPA

21 issue, and so I don't want to go too much into that except to

22 say that there is a vehicle for handling classified

23 information. There is classified information in this case, and

24 we have used the CIPA in order to apprise Your Honor of that

25 information. And so I think that's the appropriate vehicle for

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1 handling any classified information in this case. That's the

2 same, the same procedure that's used in any case involving

3 classified information.

4

Finally, with respect to the communications with the

5 online undercover employees and the communications with the

6 undercover agent, obviously the defense has a different

7 interpretation of how those communications transpired. If I

8 could cite some points at which I would submit that the

9 government was trying to discourage Mr. Daoud from carrying out

10 the attack, I'm sure there would be -- there's going to be

11 argument about that. The important point, though, is for

12 discovery. They have all of those communications.

13

The online undercover employees preserved, and we

14 disclosed all of those communications. They have all the

15 electronic communications with the undercover agent. They have

16 recordings of all the meetings with the undercover agent. And

17 I'm certain that they're going to have very -- have arguments

18 associated with that information. But for purposes of

19 discovery it's important to keep in mind that they have those

20 materials for them to review and to make argument. If you have

21 no further questions, I'll just rest on my filing.

22

THE COURT: And furthermore, maybe you did already

23 address it, but if you can address it again where they're

24 speaking of the procedures. You want to save that for the

25 CIPA, or do you want to at least make a few more comments.

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1

MR. RIDGWAY: You mean in terms of the ex parte in

2 camera?

3

THE COURT: Right.

4

MR. RIDGWAY: Well, they certainly will be very

5 similar to the ones, my remarks regarding the FISA in the sense

6 that there is a statutory regime that provides for ex parte

7 submissions. And in this case as in any other circumstance

8 those are what we have requested and that we have submitted

9 information justifying that in this particular case. Apart

10 from that in terms of the particular cases, I think those are

11 outlined in our brief. And I believe they've actually already

12 responded to that aspect of the CIPA issue.

13

THE COURT: Thank you.

14

MR. HERMAN: Just one brief point. Mr. Ridgway said

15 we have all the e-mails. We have all the information. That

16 may be true as to the communications. And we don't know if it

17 is, but we'll take his word for it I guess. But what we're

18 asking for in our discovery motion is -- and particularly as it

19 pertains to these guidelines, is what information led the UCE

20 in the meeting to say -- to talk about the sheikh. You know,

21 to use the religious card, the iman card. How that plays into

22 issues of predisposition.

23

And the government in their brief raised the Rule 16

24 (a) 2 issue in terms of nondisclosure of investigatory memos

25 and reports and what not. I think we've addressed that in our

S.A.

32

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1 reply, but it goes without saying that Brady trumps Rule 16 (a)

2 2, Brady's constitutional provisions. And Brady is also

3 important for the issue of impeachment. And if a government

4 witness will testify as to an individual, Mr. Daoud's

5 predisposition, it would be material to the cross-examination

6 of that witness as to the government's calculated efforts to

7 get around the issue of predisposition vis-a-vis ratcheting up

8 the inducement, and in this specific factual instance playing

9 the religious card. Thanks.

10

THE COURT: Thank you. Mr. Ridgway, does anyone want

11 to -- you want to respond to the last argument --

12

MR. RIDGWAY: Sure, Your Honor.

13

THE COURT: -- versus Brady trumping --

14

MR. RIDGWAY: So long as I'm -- I think I understand

15 it. And to the extent, you know, materials related to I guess

16 playing the religious card and things --

17

THE COURT: The predisposition issue for purposes of

18 their entrapment defense.

19

MR. RIDGWAY: And so I guess what I don't understand

20 its discoverability under any rule in terms of -- what matters

21 is what -- the ultimate issue is whether law enforcement

22 persuaded or induced the defendant in this case. And what's

23 relevant to that is what they did and said to the defendant,

24 and that's all been disclosed.

25

To the extent there is Giglio information about any

S.A.

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1 of the individuals who will be testifying, we haven't yet

2 provided all those materials. And to the extent those exist,

3 and we obviously will do so before trial as we do in any of our

4 cases. So if there -- if particular impeaching material, we

5 would either bring it to Your Honor or disclose it. But

6 there's nothing that I can think of at this point that would be

7 responsive to that.

8

THE COURT: Well, the slight difference as you said

9 as you do in any of the cases is that this wouldn't be just

10 possibly any old Giglio material. This is material that might

11 have another door closed because his last name isn't Smith.

12

MR. RIDGWAY: Well, certainly it is different in the

13 sense that there are classified materials in this case. And

14 because of that there could be different procedures and maybe

15 something that has to be filed via CIPA. That said, the

16 underlying rules still all apply in terms of Brady, Giglio,

17 Rule 16. Our obligations are the same. The procedures for,

18 for those -- for carrying out those obligations are a little

19 bit different in a case involving classified material. But the

20 underlying rights are the same for a defendant.

21

THE COURT: Thank you.

22

MR. RIDGWAY: Thank you.

23

THE COURT: Anything further? Have we covered all

24 the motions that the Court is going to address? I believe I've

25 heard argument that I need. Mr. Durkin, you want to wind up.

S.A.

34

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1

MR. DURKIN: Well, only in the sense that I don't

2 understand what would be so terrible to let us participate in

3 this. And just that little discussion right there would solve

4 so many problems if we knew that. And that's what's wrong

5 here. Okay. Typically I trust what a guy like Ridgway tells

6 me. We have conversations lawyer to lawyer. And I say what

7 really went on here. This goes on every day in every kind of

8 case that's in front of you here. For the 40 years I've been

9 practicing law I've relied on the integrity of the U.S.

10 Attorney's office to tell me what really happened. And if I'm

11 satisfied, I shut up. Sometimes I don't shut up.

12

But that usually -- that normal give and take doesn't

13 exist anymore. And I can't make that point any stronger to

14 you. It doesn't exist because I don't think they're getting

15 the full story. It's not because they're lying to us. But

16 what kind of answer is it to say if we decide we're going to

17 use something, we're going to give notice? Does that mean

18 implicit in that then that they did -- they obviously must have

19 gotten something, but they're just not going to use it?

20

THE COURT: Well, also the other side is just because

21 you're not satisfied, does that mean that there's something

22 there?

23

MR. DURKIN: No, but vice versa why can't they tell

24 us that then? What's the problem with telling us that? If

25 they can't tell it to us lawyer to lawyer, then why can't

S.A.

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31
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1 cleared counsel be permitted to know that?

2

THE COURT: Well, isn't it true, Counsel, you just

3 said, we've told you everything. We told you what we have and

4 what is going to be FA -- what isn't FAA and what is FISA

5 traditional. We've given them what we have, but you say but

6 you know what, I might believe him, but he doesn't know

7 everything. And, therefore, we can't believe him.

8

MR. DURKIN: But I don't hear them saying that. What

9 I hear them saying is we're not going to use it. And if we use

10 it, we'll let them know. That's what I hear them saying.

11 They're not saying it was never used. They're not saying 215

12 never came into play here or FAA never came into play. Senator

13 Feinstein says it does. And then her counsel says, well, if

14 she said that, she didn't mean to say it. Or maybe she meant

15 to say something else.

16

THE COURT: And the Court's going to put Senator

17 Feinstein's comments on the other side over here.

18

MR. DURKIN: But that's -- I understand. But my

19 point is is that I don't hear them saying it wasn't used. If

20 it wasn't used, we could all go home. There's nothing else to

21 talk about other than the typical stuff. But that's what's

22 happening, because we aren't part of the process. I don't know

23 what they've told you. I don't know why cleared counsel can't

24 see what they tell you. I don't know why we have to have a

25 different system for the prosecution of terrorism cases in this

S.A.

36

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1 country. And that's what's happening.

2

And if it continues, if they just get to say the

3 rules are the rules and there's nothing extraordinary about

4 this case, if there's nothing extraordinary about this case,

5 then there won't be anything extraordinary about very many

6 other cases. And we can just go by the rules, the rules that

7 the intelligence agencies have created, which keeps the

8 adversarial process out of it.

9

And I don't mean to belabor it. But how could it be

10 said that any harm could come if we were permitted to do that?

11 And that's what I'm asking you to do. Because it would -- I'll

12 tell you what it would do an enormously good thing for. It

13 would give some faith to people who are losing faith in the

14 ability of the judiciary to even control their own courtrooms

15 in criminal prosecutions. And I don't think you want to end up

16 with two different kinds of prosecutions going on. We're going

17 to have secret courts and then we're going have the regular

18 courts. And I guess we'll have everything -- everything will

19 be fair in a mail fraud case or a bank robbery case or, you

20 know, a postal theft case. But when it comes to terrorism,

21 that's just too frightening.

22

And that's what's happening. Maybe that's too big a

23 picture and maybe I'm Chicken Little, the sky is falling, but I

24 don't think so.

25

THE COURT: Well, I think the terminology you used

S.A.

37

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1 earlier, fear can work both ways. When you talk about the fear

2 of the courts, it can work both ways. It can work from your

3 end saying that the sky is falling, or it can work from the

4 other end.

5

MR. DURKIN: I understand that. But what I'm saying

6 is is that if people lose faith in an independent judiciary to

7 be able to provide transparency to the proceedings, then we've

8 lost everything. And that's what's happening. Maybe it's not

9 just this case. But it's the snowball of this case and that

10 case. And now we're saying -- now, it's 35 years of these

11 rules working well. Working well for the intelligence agencies

12 maybe, but not necessarily working well for the Portland

13 bomber.

14

And why should we permit that? That's all I'm

15 asking. I'm not asking you to rule anything unconstitutional.

16 I'm simply saying step up and simply say the time has come.

17 This case, it would be appropriate for the adversarial process

18 to be permitted and for cleared counsel to have access to this.

19 That might solve everything. It might not. But it would go a

20 long way to restoring a lot of lost faith in this country.

21 Thank you.

22

THE COURT: Well, this Court doesn't know if its

23 ruling will be that grandiose, Mr. Durkin, but the Court keeps

24 in mind your argument. Thank you.

25

MR. DURKIN: I'm suggesting it is.

S.A.

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1

THE COURT: The Court will take a look at it and see

2 first in the context of this particular defendant and his

3 rights. All right. Thank you.

4

The Court -- before we conclude here, there is in

5 addition to the -- setting a date for the CIPA motions or

6 response from the defendant, on docket No. 70, which has been

7 addressed here somewhat, the government never filed a response

8 to defendant's motion. Do you want to stand on your -- unless

9 I'm mistaken.

10

MR. RIDGWAY: Your Honor, I believe that's in

11 reference to the FAA if I'm correct.

12

THE COURT: Yes.

13

MR. RIDGWAY: In which case we would ask to rest on

14 our -- the surreply we've submitted. I think we've submitted

15 enough on the FAA.

16

THE COURT: The Court thought so. But since I wanted

17 to make sure the record was clear. And do you wish to stand on

18 that as being your response, is that correct?

19

MR. RIDGWAY: Correct.

20

THE COURT: All right. And as to CIPA, how long did

21 you want to respond? Two weeks, three weeks.

22

MR. DURKIN: I'm sorry?

23

THE COURT: How long do you want to respond?

24

MR. DURKIN: I heard numbers --

25

THE COURT: Two weeks, three weeks.

S.A.

39

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1

MR. DURKIN: Could I beg you for four only because

2 Mr. Herman and I are starting a trial in that NATO 3 case on

3 Monday in the state court. And as you know --

4

THE COURT: Sure. I can give you four. I'm just

5 looking at also our time on the other end.

6

MR. DURKIN: Will that screw things up if we took

7 four?

8

MR. RIDGWAY: I don't believe so. I don't know that

9 a reply would be necessary. So I think with that we would be

10 able to -- and I guess we could -- I'll look at the response

11 before I think a reply is necessary. But I'd like to try to

12 expedite that.

13

THE COURT: Well, since we're not -- since we aren't

14 sure whether or not you'll need a reply and the arguments are

15 pretty well known here, why don't we do the four weeks that you

16 need.

17

MR. DURKIN: Thank you.

18

THE COURT: But then we'll have -- just put in a

19 built-in seven days for the reply.

20

MR. DURKIN: And the other problem, are you aware

21 that Miss Roberts broke her hip and --

22

THE COURT: Yes. And how is she?

23

MR. DURKIN: She's okay. She had blood clots in her

24 lungs which have been --

25

THE COURT: That's what you were dealing with?

S.A.

40

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1

MR. DURKIN: -- naturally complicated. Yes, so

2 we're -- our three man firm is somewhat handicapped.

3

THE COURT: I was going to say I trust you're playing

4 appropriate nurse maid.

5

MR. DURKIN: You know, believe it or not I'm better

6 than I thought.

7

THE COURT: Yes. All right. Well, good.

8

MR. DURKIN: But I don't like it, I'll tell you that.

9

THE COURT: I'm sure she doesn't either.

10

MR. DURKIN: Thank you.

11

THE COURT: All right. Thank you very much. And we

12 will set -- do we have a status date set, Mrs. Hunt?

13

MR. RIDGWAY: I don't believe we do, Your Honor.

14

THE COURT: We do not.

15

MR. RIDGWAY: It may make sense to have one.

16

THE COURT: All right. So we have four weeks from

17 today will be the date for the response to the CIPA motions.

18

MR. DURKIN: Right.

19

THE CLERK: That's January 31st.

20

THE COURT: Seven days thereafter for the reply.

21

THE CLERK: February 11th.

22

THE COURT: And so --

23

MR. RIDGWAY: And just so I'm clear, actually just --

24 sorry. In terms of the CIPA I understand that their responses,

25 in fact, will be ex parte. So I don't think there will be a

S.A.

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1 need for a reply.

2

THE COURT: There won't be a reply.

3

MR. RIDGWAY: There will not be a reply.

4

THE COURT: Right.

5

MR. RIDGWAY: It will just be --

6

THE COURT: So why don't we just do this, I'm looking

7 at -- I'll be on trial. How about Thursday, February 6th

8 status date.

9

MR. DURKIN: That should be fine.

10

MR. RIDGWAY: That's fine, Your Honor.

11

THE COURT: Or we can set it on -- how is

12 February 5th? That's our normal --

13

MR. DURKIN: Either one works, Judge.

14

THE COURT: That's our normal status date. Mrs.

15 Hunt, does that look fine?

16

THE CLERK: Yes.

17

MR. DURKIN: Judge.

18

THE COURT: Yes.

19

MR. DURKIN: The 6th would be better only because of

20 this, it's possible I could be on trial in Indiana in the

21 Northern District, but I don't think so. But Mr. Herman has a

22 problem on the 5th. He could be here on the 6th if I can't.

23

THE COURT: All right. Then we'll do 9:45 on the 6th

24 for status.

25

MR. DURKIN: Thank you, Judge.

S.A.

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1

THE COURT: All right. Is there anything else,

2 government, that I need to address today that you can think of?

3

MR. RIDGWAY: I don't believe so, Your Honor.

4

THE COURT: All right. And what about you, Mr.

5 Durkin, for Mr. Daoud? All right. Everything okay, Mr. Daoud?

6

MR. DURKIN: He says he's okay.

7

THE COURT: All right. Good. All right. Thank you

8 very much for your submissions, Counsel.

9

MR. DURKIN: Thanks, Judge.

10

MR. RIDGWAY: Thank you, Judge.

11

CERTIFICATE

12

I HEREBY CERTIFY that the foregoing is a true,

13 correct and complete transcript of the proceedings had at the

14 hearing of the aforementioned cause on the day and date hereof.

15

16 /s/TRACEY D. McCULLOUGH

February 10, 2014

17 Official Court Reporter United States District Court
18 Northern District of Illinois Eastern Division
19

Date

20

21

22

23

24

25

S.A.

43

 
 Case: 1:12-cr-00723 Document #: 49 Filed: 08/08/13 Page 1 of 6 PageID #:206

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA )

)

v.

)

)

ADEL DAOUD

)

No. 12 CR 723 Hon. Sharon Johnson Coleman

GOVERNMENT’S SUR-REPLY TO DEFENDANT’S MOTION FOR NOTICE OF FISA AMENDMENTS ACT EVIDENCE PURSUANT TO §§ 1881(e)(a) and 1806(c)

The UNITED STATES OF AMERICA, by GARY S. SHAPIRO, United

States Attorney for the Northern District of Illinois, respectfully submits this

sur-reply to defendant Adel Daoud’s Motion for Notice of FISA Amendments

Act Evidence Pursuant to §§ 1881(e)(a), 1806(c) (Doc. #42). The government

seeks leave to file this sur-reply to clarify the record regarding the issues

raised by the defendant’s motion (Doc. #42) and reply (Doc. #47). For the

reasons stated herein and in the government’s prior response (Doc. #46), the

Court should deny the defendant’s motion.

As required by 50 U.S.C. §§ 1806(c) and 1825(d), the government has

notified the defense and this Court that it intends to use against the

defendant in this case evidence obtained or derived from electronic

surveillance under Title I of the Foreign Intelligence Surveillance Act (FISA),

50 U.S.C. §§ 1801-1812 (Doc. #9 and Doc. #46). The government would

likewise provide notice to the defense and this Court if the government

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intended to use in this case any information obtained or derived from surveillance authorized under Title VII of FISA (the FISA Amendments Act or FAA) (i.e., a Section 702 Order), 50 U.S.C. § 1881a et seq., as to which the defendant is an aggrieved person. No such notice has been provided. Nor should such notice be provided in this case because the government does not intend to use any such evidence obtained or derived from FAA-authorized surveillance in the course of this prosecution.
The government’s notice obligations regarding its use of FISA information under §§ 1806, 1825, and 1881e apply only if the government (1) “intends to enter into evidence or otherwise use or disclose” (2) “against an aggrieved person” (3) in a “trial, hearing or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States” (4) any “information obtained or derived from” (5) an “electronic surveillance [or physical search] of that aggrieved person.” 50 U.S.C. § 1806(c); see 50 U.S.C. § 1825(d). Where all five criteria are met, the government will notify the defense and the Court (or other authority) in which the information is to be disclosed or used that the government intends to use or disclose such information.
Congress enacted the foregoing criteria in 50 U.S.C. §§ 1806(c) and 1825(d) to define the extent of the government’s notice obligations. No notice
2

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would be necessary in a criminal case, for example, if the government has acquired information obtained or derived from FISA surveillance but does not intend to “enter into evidence or otherwise use or disclose” such information in the prosecution. Likewise, even if the government intends to use or disclose information obtained or derived from FISA surveillance in a criminal case, the law would not require notice if the defendant is not an “aggrieved person” with respect to that FISA surveillance – that is, “the target of [the] electronic surveillance,” a “person whose communications or activities were subject to [that] electronic surveillance,” 50 U.S.C. § 1801(k), a “person whose premises, property, information, or material [was] the target of [the] physical search,” or a “person whose premises, property, information, or material was subject to [the] physical search,” 50 U.S.C. § 1821(2). By the same token, a defendant’s status as an aggrieved person with respect to FISA surveillance is insufficient to trigger notice unless the information the Government intends to use or disclose was “obtained or derived from” FISA-authorized surveillance.1 In short, unless all five of the criteria specified in 50 U.S.C. §§
1 In determining whether information is “obtained or derived from” FISAauthorized surveillance, the appropriate standards and analyses are similar to those appropriate in the context of surveillance conducted pursuant to Title III (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522). Accordingly, under certain circumstances, information obtained from traditional FISA surveillance can be derived from prior FISA surveillance (including FAA surveillance under Title VII).
3

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1806(c) and 1825(d) are present, FISA does not require notice of FISAauthorized surveillance.2
What the defendant seeks is very different from, and much broader than, providing him notice about whether information obtained or derived from the FAA, as to which he is aggrieved, will be used against him at trial. Instead, the defendant demands that the government disclose “whether the affidavit and other evidence offered in support of any FISA order relied on information obtained under or derived from an FAA surveillance order.” (Doc. #43 at 15). That request exceeds the notice required under sections 1806(c) and 1825(d). It is not limited, for instance, to circumstances in which the government intends to use information against a defendant who is an “aggrieved person” with respect to any resulting surveillance. Nor does the defendant’s focus on a FISA “affidavit” that “relie[s] on” previously obtained FISA information appear to be restricted to circumstances in which the government intends to use “information . . . derived from” FISA surveillance. To the extent the defendant seeks disclosure not only of the fact of FISA surveillance but the actual contents of FISA applications, such information
2 The examples above simply illustrate some of the circumstances under which the government would not be required to provide notice under 18 U.S.C. §§ 1806(c) or 1825(d). They are not intended to suggest that such circumstances are or are not present in this particular case.
4

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would itself be classified and its disclosure would reveal information to which the defendant plainly is not entitled under FISA’s notice provisions.
In sum, the defense was given timely, accurate, and adequate notice of the government’s intention to use FISA-obtained or FISA-derived information against the defendant. If the defendant were a person aggrieved by FAAauthorized surveillance, and the government intended to use information obtained or derived from that FAA-authorized surveillance against the defendant in this proceeding, the government would notify the defense and this Court. No such notice is applicable to this defendant, thus no further relief is required or appropriate. Instead, to the extent the defendant seeks to suppress evidence obtained or derived from a FISA order in this case, such a motion should be adjudicated in the ordinary course under the framework outlined in 50 U.S.C. § 1806(f).
5

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Conclusion For the reasons discussed above, the defendant’s motion should be denied.
Respectfully submitted, GARY S. SHAPIRO United States Attorney By: s/William E. Ridgway WILLIAM E. RIDGWAY BARRY JONAS BOLLING HAXALL Assistant U.S. Attorneys 219 South Dearborn Street, Fifth Floor Chicago, Illinois 60604 (312) 469-6233
6

 
 Case: 1:12-cr-00723 Document #: 70 Filed: 09/18/13 Page 1 of 7 PageID #:441

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

ADEL DAOUD,

)

)

Defendant.

)

No. 12 CR 723 Judge Sharon Johnson Coleman

MOTION FOR DISCOVERY IN SUPPORT OF DEFENDANT’S PREVIOUSLY FILED MOTION FOR NOTICE OF FISA AMENDMENTS ACT EVIDENCE PURSUANT TO 50 U.S.C. §§ 1881e(a), 1806(c) (Dkt. #42)

Defendant, ADEL DAOUD, by and through his attorneys, THOMAS ANTHONY

DURKIN, JANIS D. ROBERTS, and JOSHUA G. HERMAN, pursuant to 50 U.S.C. §§

1881e(a) and 1806(c), Rule 16(a)(1)(E)(i) & (ii), the Search and Seizure, Due Process, and

Effective Assistance of Counsel provisions of the Fourth, Fifth, and Sixth Amendments to the

Constitution of the United States, as well as the principles enunciated in Brady v. Maryland, 373

U.S. 83 (1963), respectfully moves this Court to order the government to disclose any and all

information supplied by Executive Branch law enforcement or intelligence agencies to the

United States Senate Select Committee on Intelligence (“SSCI”) regarding the use or results of

any and all electronic surveillance, eavesdropping, recording, storage, or other means of

gathering or collecting Defendant’s oral, written, or electronic communications.

In support of this motion, Defendant, through counsel, shows to the Court the following:

1. On May 22, 2013, counsel filed a pleading captioned, “Defendant’s Motion for

Notice of FISA Amendments Act Evidence Pursuant to 50 U.S.C. §§ 1881e(a), 1806(c).” (Dkt.

#42). The motion requested that the government provide notice of: “(1) whether the electronic

surveillance described in its FISA Notice was conducted pursuant to the pre-2008 provisions of

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the Foreign Intelligence Surveillance Act (“FISA”) or, instead, the FISA Amendments Act (“FAA”); and, (2) whether the affidavit and other evidence offered in support of any FISA order relied on information obtained or derived from an FAA surveillance order.” The motion was premised in part on Senate floor comments by Senator Diane Feinstein (D-CA) on December 27, 2012, which specifically referenced this case and suggested that the FAA was instrumental in foiling the alleged terrorist plot. (Dkt. #42, ¶4).
2. In its August 8, 2013, Sur-Reply to Defendant’s Motion, the prosecutors acknowledged that they would have to provide notice to the defense and the Court if, as they wrote, they “intended to use in this case any information obtained or derived from surveillance authorized under [the FAA] as to which the defendant is an aggrieved person.” (Dkt. #49, pp. 12). The prosecutors further asserted that no notice was provided in this case because the government “does not intend to use any such evidence obtained or derived from FAA-authorized surveillance in the course of this prosecution.” (Id., p. 2).
3. In light of the obvious tension between Senator Feinstein’s public comments regarding the use of the FAA and the prosecutors’ position in their pleading that no notice of the use of the FAA was required, undersigned counsel wrote a letter to Eric Losick and Jack Livingston, Counsel for the SSCI, Majority and Minority, respectively, on August 20, 2013, and requested “any and all ‘assessments, reports, and other information obtained by the Intelligence Committee’ to which Senator Feinstein referred in sharing her comments with the Senate, insofar as these documents pertain to the implementation of the FAA surveillance with respect to Mr. Daoud’s case.” A copy of this letter is attached hereto as Exhibit A.
4. On September 16, 2013, Morgan J. Frankel, Counsel for the Office of Senate Legal Counsel, responded on behalf of the SSCI to counsel’s letter. A copy of Senate Legal
2

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Counsel’s letter is attached hereto as Exhibit B. In this letter, Senate Legal Counsel declines to comply with counsel’s request for production based primarily on the invocation of the legislative privilege under the Speech or Debate Clause, Article I, section 6, clause 1, of the United States Constitution.1
5. After invoking this legislative privilege, Senate Legal Counsel proceeds to state, nevertheless, that: “[w]ithout waiving Senator Feinstein’s or the Intelligence Committee’s legislative privilege, [he] would like to provide some clarification that may help explain a misunderstanding of the Chairman’s remarks on which your documentary request is predicated.” (Ex. B, p. 2) Senate Legal Counsel then goes on to relate—curiously one might add—that “[n]otwithstanding that she was speaking in support of reauthorization of Title VII of the Foreign Intelligence Surveillance Act, Senator Feinstein did not state, and did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including Mr. Daoud’s case, in which terrorist plots had been stopped.” (Id.) (emphasis added).
6. Rather, Senate Legal Counsel adds, “the nine cases the Chairman summarized were drawn from a list of 100 arrests arising out of foiled terrorism plots in the United States between 2009 and 2012 compiled by committee staff from FBI press releases and other public sources.” (Ex. B, p. 2). Senate Legal Counsel identifies the list compiled by the Committee staff was entitled, “Terrorist Arrests and Plots Stopped in the United States 2009-2012,” and indicates that a slightly earlier version of this document is available on the SSCI’s website. (Id., pp. 2-3,
1 The filing of this motion for discovery, as counsel for the SSCI suggests, is done out of courtesy and respect for the SSCI, and should not be construed as a concession or agreement with its counsel’s legislative privilege analysis, and undersigned counsel would expressly reserve the right to challenge the SSCI’s position, if necessary. Indeed, and notwithstanding the SSCI’s disclaimer regarding the preservation of Senator Feinstein or the Committee’s privileges, counsel’s gratuitous attempts at explaining or clarifying the Chairman’s remarks in question, could very well be construed as a waiver of the privilege should it later become necessary to litigate a subpoena for documents and/or testimony.
3

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footnote 1) (emphasis in original). Senate Legal Counsel further notes that, in contrast to this
public source information, “any information that the Committee may have received about use of
FAA authorities would be classified and would have been provided to the Committee by the
Executive Branch, from which it can be sought directly.” (Id., p. 3, footnote 3).
7. Remarkably, Senate Legal Counsel then goes on to make further representations
on Senator Feinstein’s behalf in an ostensible attempt to summarize. Only a complete quote will
do justice to the purported summary or explanation:
To summarize, nothing in Senator Feinstein’s remarks was intended to convey any view that FAA authorities were used or were not used in Mr. Daoud’s case or in any of the other cases specifically named. Rather, her purpose in reviewing several recent terrorism arrests was to refute the “view by some that this country no longer needs to fear attack.” Id. Thus, because Senator Feinstein was neither relying on, nor attempting to convey, any information about the use or non-use of FAA authorities in any of the nine cases, there are no “assessments, reports, and other information” in the Committee’s possession to which Senator Feinstein referred in her comments, pertaining to FAA surveillance with respect to Mr. Daoud’s case. Id.2 (emphasis added).
8. Senate Legal Counsel concludes the letter by asserting that the SSCI is “not
prepared to initiate a general search of its oversight files to ascertain whether or not any
documents exist in its files that may shed light on the type of surveillance authorized in Mr.
Daoud’s case.” (Id., p. 4). Instead, Senate Legal Counsel suggests that Mr. Daoud should seek
production from the Executive Branch. This too is worth quoting in full: “Any such evidence
that may be within the possession of the Committee would derive entirely from information
2 This representation is rather remarkable on several levels. First, it is hard to believe that Chairman Feinstein, one of the most experienced and respected Senators in Congress, would advocate for the reauthorization of the FAA without actually “relying on” or “attempting to convey” information about the use or non-use of the FAA itself which was then under consideration. Equally remarkable, if Mr. Frankel is correct on this point, is that the mere use of nine random “ripped from the headlines” (or more precisely, “ripped from FBI press releases”) terrorism arrests to justify the reauthorization of a statute that Edward Snowden’s disclosures have revealed to the world as massive, overreaching, and often abused surveillance programs is a poignant illustration of the use politics of fear.
4

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supplied by the Executive Branch, from which Mr. Daoud can directly seek production to the extent provided by federal law and the rules of criminal procedure.” (Ex. B, p. 4).
9. Counsel for Mr. Daoud, therefore, do just that. Rather than engage the Court at this time in the complex legislative privilege issues raised by Senate Legal Counsel, undersigned counsel would formally request that the prosecutors seek authorization from whomever they must to obtain approval from the Executive Branch and its intelligence agencies to produce the materials that Senate Legal Counsel states are in its possession. Counsel defer to the Court to fashion a means by which the prosecutors can produce these materials should some or all of the materials be classified. In that undersigned counsel all possess security clearances, this should not be a significant hurdle in light of the constitutional issues involved.
10. As counsel have previously noted, these materials “are essential to a full and fair exposition and resolution of the significant statutory and constitutional issues of first impression presented by this motion.” (Dkt. #65, ¶ 4). (Motion to Vacate The Denial of His Motion for Notice of FISA Amendments Act (FAA) Evidence Pursuant to 50 U.S.C. §§1881e(a), 1806(c); and For Leave to File a Response to the Government’s Sur-Reply to Defendant’s Motion for Notice of FAA Evidence). As such, it is likewise submitted that these documents are discoverable under Rule 16(a)(1)(E)(i) & (ii), as well as Brady, supra.3
11. At the risk of stating the obvious, had the FAA not been used whatsoever in the investigation of Defendant, one would think that the Office of Senate Legal Counsel, the SSCI, Senator Feinstein, the NSA, the FBI, the Justice Department, or the U.S. Attorney’s Office could just simply say so. That “clarification” would have been far more helpful than any provided by Senate Legal Counsel or the opaque responses by the prosecutors to date. Again, undersigned
3 In addition to providing a basis for suppression of the fruits of the poisonous tree, the existence of FAA surveillance and its fruits most certainly could lead to the discovery of potentially exculpatory material.
5

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counsel would suggest that the semantic and procedural battle being waged here only further demonstrates the lengths by which the Executive Branch, or more correctly its intelligence agencies, wish to avoid constitutional review of the FAA.
Respectfully submitted, /s/Thomas Anthony Durkin THOMAS ANTHONY DURKIN, /s/Janis D. Roberts JANIS D. ROBERTS, /s/Joshua G. Herman JOSHUA G. HERMAN, Attorneys for Defendant Adel Daoud. DURKIN & ROBERTS 2446 North Clark St. Chicago, Illinois 60614 (312) 913-9300 tdurkin@durkinroberts.com jdroberts@durkinroberts.com jherman@durkinroberts.com
6

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CERTIFICATE OF SERVICE
Thomas Anthony Durkin, Attorney at Law, hereby certifies that the foregoing Motion for Discovery in Support of Defendant’s Previously Filed Motion for Notice of FISA Amendments Act Evidence Pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) (Dkt. #42), was served on September 18, 2013, in accordance with Fed.R.Crim.P.49, Fed.R.Civ.P.5, LR 5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district court’s system as to ECF filers.

DURKIN & ROBERTS 2446 N. Clark Street Chicago, IL 60614 (312) 913-9300

/s/ Thomas Anthony Durkin THOMAS ANTHONY DURKIN, Attorney at Law.

7

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EXHIBIT A

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EXHIBIT B

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 Case: 1:12-cr-00723 Document #: 155 Filed: 03/19/15 Page 1 of 3 PageID #:1186

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. ADEL DAOUD,
Defendant.

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Case No. 12-cr-723

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Judge Sharon Johnson Coleman

)

ORDER Four motions are before the Court for consideration. The Court either ruled or indicated that it would be ruling on the following motions at the status hearing on March 18, 2015. Defendant’s Motion for Discovery Regarding the Surveillance pursuant to Executive Order 12333 [126], is denied. Defendant’s Motion for an Evidentiary Hearing pursuant to Franks v. Delaware [124], is denied. Government’s Motion for a Protective Order Pertaining to the Testimony of the Undercover Employee at Trial [123], is granted in part and denied in part. Defendant’s Motion for Protected Disclosure to Cleared Counsel of the Identity of the FBI UCE, for Production of Essential Background Information, and for the Opportunity to Observe the UCE and Conduct a Pre-trial Interview [145], is denied.
Statement 1. Defendant’s Motion for Discovery Regarding the Surveillance pursuant to Executive Order
12333 [126]:

Executive Order 12333 authorizes the “Intelligence Community” to “conduct intelligence activities necessary for the conduct of foreign relations and the protection of the national security of the

Case: 1:12-cr-00723 Document #: 155 Filed: 03/19/15 Page 2 of 3 PageID #:1187
United States” through “[c]ollection of information concerning… international terrorist organizations… and other hostile activities direct against the United States by foreign powers.” (Quote taken as excerpted in defendant’s brief). Defendant’s motion is based on “recent disclosures” and a whistleblower piece in the Washington Post. There is no indication however that either source refers to this case. This Court cannot speculate that because this EO appears to have very sweeping powers, including collecting information from U.S. citizens, that information was gathered in this case pursuant to that Executive Order. The motion is therefore respectfully denied. 2. Defendant’s Motion for an Evidentiary Hearing Pursuant to Franks v. Delaware [124]: Defendant’s renewed request for a Franks hearing is based on defense counsel’s “serious questions concerning what counsel presume were the serial misrepresentations or omissions in the application made to the FISC in order to obtain the warrant(s) pursuant to the Foreign Intelligence Surveillance Act (FISA).” Defendant asserts that the Seventh Circuit left the Franks issue open. Defendant asserts that, based on what he has been able to discover in this case, that US and Polish intelligence agencies must be engaged in a “parallel construction” (re-creation of investigations in order to conceal the existence of earlier illegal surveillance).
While the Court is not unsympathetic to defense counsel’s frustration, counsel’s arguments are not new, the Seventh Circuit stated rather explicitly in its Public Opinion that probable cause existed for the FISA warrants. Indeed, the majority opinion states “our study of the materials convinces us that the investigation did not violate FISA… therefore a remand to the district court is neither necessary nor appropriate.” United States v. Daoud, 755 F.3d 479, 485 (7th Cir. 2014). This Court has closely scrutinized all of the material submitted, including all the classified material, and finds that probable cause existed for the FISA warrants. Thus, the Court is not inclined to contradict the Seventh Circuit’s mandate on this issue. Defendant’s motion is denied.

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3. Government’s Motion for a Protective Order Pertaining to the Testimony of the Undercover Employee at Trial [123] and Defendant’s Motion for Protected Disclosure to Cleared Counsel of the Identity of the FBI UCE, for Production of Essential Background Information, and for the Opportunity to Observe the UCE and Conduct a Pre-trial Interview [145] are interrelated.
Despite the lack of any indication of the government’s failure to comply, this Court has admonished the government several times of their ongoing duty under Brady and Giglio to turn over unclassified material evidence that is favorable to the defendant. Defendant has identified no compelling reason why it is necessary to disclose the true identity of the UCE to the jury or to defense counsel. Defendant has dozens of recorded conversations, emails, text messages between the UCE and defendant Daoud. The government has provided the training record and curriculum vitae for the UCE (with identifying information redacted) – in other words, defense counsel has ample information to conduct a meaningful cross-examination. This Court therefore grants the Government’s motion [123] as set forth on the record and denies defendant’s motion [145]. IT IS SO ORDERED. Date: March 19, 2015
Entered: __________________________________ SHARON JOHNSON COLEMAN United States District Court

 
 Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 1 of 31
APPEAL,KEYS,PROTO,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.3.3 (Chicago)
CRIMINAL DOCKET FOR CASE #: 1:12−cr−00723−1

Case title: USA v. Daoud
Assigned to: Honorable Sharon Johnson Coleman Referred to: Honorable Arlander Keys Appeals court case numbers: 14−1284 Seventh Circuit, 19−2186 USCA
Defendant (1) Adel Daoud TERMINATED: 05/20/2019

Date Filed: 09/20/2012 Date Terminated: 05/20/2019
represented by MiAngel C. Cody The Decarceration Collective 1325 S. Wabash Suite 305 Chicago, IL 60605 312−858−8330 Email: miangelcody@decarcerationcollective.org TERMINATED: 09/17/2012 LEAD ATTORNEY Designation: Public Defender or Community Defender Appointment
Thomas Anthony Durkin Durkin & Roberts 515 W. Arlington Pl. Chicago, IL 60614 312−913−9300 Email: tdurkin@durkinroberts.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment
Andrea D. Lyon Attorney at Law 53 W. Jackson Blvd. Suite 1650 Chicago, IL 60604 (312) 622−0736 Email: andrea@andrealyon.com ATTORNEY TO BE NOTICED Designation: Retained
Janis D. Roberts Durkin & Roberts 2446 N. Clark Street Chicago, IL 60614 (312)914−8980 Email: jdroberts@durkinroberts.com ATTORNEY TO BE NOTICED Designation: Retained
Joshua G. Herman Law Office of Joshua G. Herman 53 West Jackson Blvd.

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 2 of 31

Suite 457 Chicago, IL 60604 312−909−0434 Email: jherman@joshhermanlaw.com ATTORNEY TO BE NOTICED Designation: CJA Appointment
Robin Valentina Waters Durkin & Roberts 2446 N. Clark Street Chicago, IL 60614 312−913−9300 Email: rwaters@durkinroberts.com TERMINATED: 01/29/2019 Designation: Retained
Ronald Cecil Jones , II Durkin & Roberts 2446 N Clark Chicago, IL 60614 (312) 913−9300 Email: rjones@durkinroberts.com ATTORNEY TO BE NOTICED Designation: Retained

Pending Counts
USE OF CERTAIN WEAPONS OF MASS DESTRUCTION (1)
PENALTIES − IF DEATH RESULTS (2)

Disposition
The Defendant pleaded guilty to count(s) 1 (one) and 2 (two) of the Indictment. The Defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 192 months as to count 1 and 192 months as to count 2 of the Indictment. Terms to run concurrent to each other and concurrent to the terms imposed in case 13cr703−1 and 15cr487−1. Criminal Monetary Penalties. Schedule of Payments.
The Defendant pleaded guilty to count(s) 1 (one) and 2 (two) of the Indictment. The Defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 192 months as to count 1 and 192 months as to count 2 of the Indictment. Terms to run concurrent to each other and concurrent to the terms imposed in case 13cr703−1 and 15cr487−1. Criminal Monetary Penalties. Schedule of Payments.

Highest Offense Level (Opening)
Felony

Terminated Counts None

Disposition

Highest Offense Level (Terminated)
None

Complaints
18:2332AA.F Use of Certain Weapons of Mass Destruction

Disposition

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 3 of 31 and 18:844(i)

Plaintiff USA

represented by AUSA − Chicago United States Attorney's Office (NDIL − Chicago) 219 South Dearborn Street Chicago, IL 60604 Email: USAILN.ECFAUSA@usdoj.gov ATTORNEY TO BE NOTICED
Pretrial Services . (312) 435−5793 Email: ilnptdb_Court_Action_Notice@ilnpt.uscourts.gov ATTORNEY TO BE NOTICED
Probation Department . 408−5197 Email: Intake_Docket_ILNP@ilnp.uscourts.gov ATTORNEY TO BE NOTICED Designation: Probation Department
Barry Jonas United States Attorneys Office 219 S. Dearborn Chicago, IL 60604 312 886 8027 Email: barry.jonas@usdoj.gov ATTORNEY TO BE NOTICED Designation: Assistant US Attorney
Bolling W Haxall United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 (312) 353−5300 Email: bolling.haxall@usdoj.gov TERMINATED: 03/25/2019 Designation: Assistant US Attorney
Richard Matthew Hiller United States Attorney's Office (NDIL − Chicago) 219 South Dearborn Street Chicago, IL 60604 (312) 697−4088 Email: matt.hiller@usdoj.gov ATTORNEY TO BE NOTICED Designation: Assistant US Attorney
Tiffany Ardam United States Attorney''s Office 219 South Dearborn St Room 500 Chicago, IL 60604 (312) 353−0951 Email: tiffany.ardam@usdoj.gov ATTORNEY TO BE NOTICED Designation: Assistant US Attorney

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 4 of 31

William Ridgway United States Attorney's Office Northern District of Illinoi 219 S. Dearborn St. Chicago, IL 60604 312−469−6233 Email: william.ridgway@usdoj.gov TERMINATED: 01/31/2017 Designation: Assistant US Attorney

Date Filed 09/14/2012 09/15/2012 09/15/2012
09/15/2012 09/15/2012 09/15/2012 09/17/2012
09/18/2012 09/18/2012 09/18/2012 09/18/2012 09/18/2012 09/20/2012 09/20/2012 09/20/2012 09/20/2012 09/20/2012

# Docket Text
ARREST of defendant Adel Daoud. (td, ) (Entered: 09/18/2012)
1 COMPLAINT signed by Honorable Arlander Keys as to defendant Adel Daoud. (td, ) (Entered: 09/18/2012)
2 MINUTE entry before the Honorable Arlander Keys as to Adel Daoud: Initial appearance proceedings held. Defendant appears in response to arrest on 9/14/2012. The defendant is informed of his rights. Enter order appointing MiAngel Cody as counsel for defendant. Preliminary Examination and Detention hearing set for 9/17/2012 at 3:00 p.m. The defendant is ordered detained until further order of court. Mailed notice (td, ) (Entered: 09/18/2012)
3 ORDER Appointing Counsel Signed by the Honorable Arlander Keys on 9/15/2012. (td, ) (Entered: 09/18/2012)
4 ATTORNEY Appearance for defendant Adel Daoud by MiAngel C. Cody. (td, ) (Entered: 09/18/2012)
5 FINANCIAL Affidavit filed by Adel Daoud (SEALED). (td, ) (Entered: 09/18/2012)
15 MINUTE entry before the Honorable Arlander Keys as to Adel Daoud: Case called for Preliminary Examination and Detention hearing. MiAngel Cody is granted leave to withdraw her appearance as counsel for defendant and Thomas Durkin, Joshua G. Herman and Janis D. Roberts are granted leave to file their appearance as counsel for defendant. Pursuant to the request of defendant's counsel, Preliminary Examination and Detention hearing reset to 9/19/2012 at 3:00 p.m. The defendant is ordered detained until further order of court. Mailed notice (td, ) (Entered: 09/21/2012)
6 ATTORNEY Designation for USA of Bolling W Haxall (Haxall, Bolling) (Entered: 09/18/2012)
7 ATTORNEY Appearance for USA byBarry Jonas (Jonas, Barry) (Entered: 09/18/2012)
8 ATTORNEY Appearance for USA byWilliam Ridgway (Ridgway, William) (Entered: 09/18/2012)
9 NOTICE of Intent To Use FISA Information by USA as to Adel Daoud (Ridgway, William) (Entered: 09/18/2012)
10 PRETRIAL Bail Report as to Adel Daoud (SEALED) (ct, ) (Entered: 09/18/2012)
Judge update in case as to Adel Daoud. Judge Honorable Arlander Keys no longer assigned to case. (cft, ) (Entered: 09/20/2012)
11 ATTORNEY Appearance for defendant Adel Daoud by Thomas Anthony Durkin (Durkin, Thomas) (Entered: 09/20/2012)
12 ATTORNEY Appearance for defendant Adel Daoud by Joshua G. Herman (Herman, Joshua) (Entered: 09/20/2012)
13 ATTORNEY Appearance for defendant Adel Daoud by Janis D. Roberts (Roberts, Janis) (Entered: 09/20/2012)
14 EXECUTIVE COMMITTEE ORDER: Case as to Adel Daoud referred to Magistrate Judge Honorable Arlander Keys for bail/detention hearing(s). Mailed notice (td, ) (Entered: 09/20/2012)

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09/20/2012 09/20/2012 09/20/2012 09/20/2012 09/20/2012 09/24/2012 09/25/2012 10/10/2012 10/10/2012 10/10/2012 10/11/2012
10/17/2012
10/19/2012 10/19/2012 11/16/2012 12/04/2012
12/06/2012 12/06/2012 12/11/2012

Judge update in case as to Adel Daoud case assigned to the Honorable Sharon Johnson Coleman. Designated as Magistrate Judge the Honorable Arlander Keys. (td, ) (Entered: 09/24/2012)
16 INDICTMENT as to Adel Daoud (1) count(s) 1, 2. (td, ) (Entered: 09/24/2012)
18 DESIGNATION Sheet: FELONY (Category 3). (td, ) (Entered: 09/24/2012)
19 MINUTE entry before the Honorable Maria Valdez as to Adel Daoud: No bond set. Detained by Magistrate Judge. (td, ) (Entered: 09/24/2012)
20 MINUTE entry before the Honorable Arlander Keys as to Adel Daoud: Detention hearing held. The defendant is ordered detained for the reasons stated on the record. Mailed notice (td, ) (Entered: 09/24/2012)
21 NOTICE of Arraignment as to Adel Daoud before Honorable Sharon Johnson Coleman on 10/24/2012 at 10:30 AM in courtroom 1425. (td, ) (Entered: 09/24/2012)
22 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Arraignment set for 10/24/2012 is reset by the court to 10/11/2012 at 01:30 PM. Mailed notice (rth, ) (Entered: 09/25/2012)
23 MOTION by USAGovernment's Motion for Pretrial Conference Pursuant to the Classified Information Procedures Act and Memorandum of Law in Support Thereof as to Adel Daoud (Ridgway, William) (Entered: 10/10/2012)
24 MOTION by USAGovernment's Motion to Designate the Case Complex and Exclude Time Under the Speedy Trial Act as to Adel Daoud (Ridgway, William) (Entered: 10/10/2012)
25 RESPONSE by Adel Daoud regarding MOTION by USAGovernment's Motion to Designate the Case Complex and Exclude Time Under the Speedy Trial Act as to Adel Daoud 24 (Herman, Joshua) (Entered: 10/10/2012)
26 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud, Arraignment held. Defendant waives formal reading and enters plea of not guilty to counts 1 and 2 of the indictment. Government's motion for pretrial conference pursuant to CIPA 23 is granted. CIPA hearing set to 10/17/2012 at 10:30 a.m. Government's motion to designate the case complex and exclude time under the Speedy Trial Act 24 is granted. Time excluded to 10/17/2012 pursuant to 18:3161 (h)(7)(B)(ii). Mailed notice (emd, ) (Entered: 10/15/2012)
27 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud, CIPA hearing held. Status hearing held and continued to 12/5/2012 at 10:00 a.m. Time excluded to 12/5/2012 pursuant to 18:3161 (h)(7)(B)(ii). Mailed notice (emd, ) (Entered: 10/19/2012)
28 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud; Enter Protective Order. Mailed notice (rth, ) (Entered: 10/24/2012)
29 PROTECTIVE Order as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 10/19/2012.Mailed notice (rth, ) (Entered: 10/24/2012)
30 MOTION by USA to amend/correct as to Adel Daoud AGREED MOTION TO AMEND THE PROTECTIVE ORDER (Ridgway, William) (Entered: 11/16/2012)
31 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set for 12/5/2012 is stricken and reset to 12/11/2012 at 09:45 AM. Time excluded to 12/11/2012 pursuant to 18:3161 (h)(7)(B)(i). Mailed notice (rth, ) (Entered: 12/04/2012)
32 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud (1); Government's agreed motion to amend protective order 30 is granted. Enter Agreed Amended Order. Mailed notice (rth, ) (Entered: 12/06/2012)
33 AGREED AMENDED ORDER as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 12/6/2012.Mailed notice (rth, ) (Entered: 12/06/2012)
34 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 12/11/2012. Status hearing set for

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 6 of 31

01/15/2013 02/15/2013 03/05/2013 03/05/2013 03/12/2013 03/13/2013
04/17/2013 05/22/2013 05/22/2013 05/22/2013
06/12/2013 06/12/2013 06/21/2013

1/15/2013 at 09:45 AM. Time excluded to 1/15/2013 pursuant to 18:3161 (h)(7)(B)(i). Mailed notice (rth, ) (Entered: 12/16/2012)
35 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 1/15/2013. Status hearing set for 2/15/2013 at 09:45 AM. Time excluded to 2/15/2013 pursuant to 18:3161 (h)(7)(B)(i). Mailed notice (rth, ) (Entered: 01/16/2013)
36 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 2/15/2013. Status hearing set for 3/13/2013 at 09:45 AM. Time excluded to 3/13/2013 pursuant to 18:3161 (h)(7)(B)(i). Mailed notice (rth, ) (Entered: 02/19/2013)
37 PETITION filed by Adel Daoud for Court Appointed Counsel (Unopposed) (Herman, Joshua) (Entered: 03/05/2013)
38 NOTICE of Motion by Joshua G. Herman for presentment of before Honorable Sharon Johnson Coleman on 3/13/2013 at 09:45 AM. (Herman, Joshua) (Entered: 03/05/2013)
39 Government's Ex Parte, In Camera Motion For Protective Order Pursuant to CIPA Section 4 and Fed. R. Crim. P. 16(d)(1) by USA as to Adel Daoud (Ridgway, William) (Entered: 03/12/2013)
40 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 3/13/2013. Defendant's unopposed petition for court appointed counsel 37 is granted. The court appoints Thomas Durkin and Joshua Herman as counsel for defendant. Status hearing set for 4/17/2013 at 10:30 AM. Time excluded to 4/17/2013 pursuant to 18:3161 (h)(7)(B)(i). Mailed notice (rth, ) (Entered: 03/18/2013)
41 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 4/17/2013. Status hearing set for 5/22/2013 at 10:00 AM. Time excluded to 5/22/2013 pursuant to 18:3161 (h)(7)(B)(i). Mailed notice (rth, ) (Entered: 04/18/2013)
42 MOTION by Adel Daoud for Notice of FISA Amendments Act Evidence Pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Durkin, Thomas) (Entered: 05/22/2013)
43 Brief by Adel Daoud regarding motion for miscellaneous relief 42 Memorandum of Law in Support of Motion for Notice of FAA Evidence Pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) (Attachments: # 1 Exhibit A)(Durkin, Thomas) (Entered: 05/22/2013)
44 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 5/22/2013. Status hearing set for 8/27/2013 at 09:45 AM. Defendant's motion for Notice of FISA Amendments Act Evidence Pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) to be filed by 5/22/2013. On said motion 42 , response due by 6/12/2013. Reply due by 6/21/2013. Once fully briefed, the court will rule or set date for oral argument. Pretrial motions to be filed by 8/9/2013. Responses due by 8/20/2013. Replies due by 8/29/2013. On government's CIPA motion 39 , response due by 6/12/2013. Reply due by 6/21/2013. If no response, the court will rule. Jury Trial set for 2/3/2014 at 10:00 AM. Additional dates to be set at the next hearing. Time excluded to 2/3/2014 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 05/24/2013)
45 MEMORANDUM by Adel Daoud in Opposition to miscellaneous other 39 Governments Ex Parte, In Camera Motion for Protective Order Pursuant to CIPA Section 4 and Fed. R. Crim. P. 16(d)(1) (Durkin, Thomas) (Entered: 06/12/2013)
46 RESPONSE by USA as to Adel Daoud regarding MOTION by Adel Daoud for Notice of FISA Amendments Act Evidence Pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) 42 (Ridgway, William) (Entered: 06/12/2013)
47 REPLY by Adel Daoud to MOTION by Adel Daoud for Notice of FISA Amendments Act Evidence Pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) 42 (Attachments: # 1 Exhibit A)(Durkin, Thomas) (Entered: 06/21/2013)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 7 of 31

06/21/2013 08/08/2013 08/08/2013 08/09/2013
08/09/2013
08/09/2013 08/09/2013 08/09/2013 08/09/2013 08/09/2013 08/09/2013 08/09/2013 08/15/2013
08/15/2013 08/20/2013 08/26/2013
08/27/2013

48 REPLY by USA to miscellaneous other 39 , memorandum in opposition 45 Government's Reply in Support of Motion for a Protective Order Pursuant to CIPA Section 4 and Fed. R. Crim. P. 16(d)(1) (Ridgway, William) (Entered: 06/21/2013)
49 SUR−REPLY by Plaintiff USA to motion for miscellaneous relief 42 (Ridgway, William) (Entered: 08/08/2013)
50 MOTION by USA for leave as to Adel Daoud to File Sur−Reply (Ridgway, William) (Entered: 08/08/2013)
51 MOTION by Adel Daoud for disclosure of FISA−Related Material and to Suppress the Fruits or Derivatives of Electronic Surveillance and Any Other Means of Collection Conducted Pursuant to FISA or Other Foreign Intelligence Gathering (Durkin, Thomas) (Entered: 08/09/2013)
52 Brief by Adel Daoud regarding motion for disclosure, 51 Memorandum of Law in Support of Motion for Disclosure of FISA−Related Material and to Suppress the Fruits or Derivatives of Electronic Surveillance and Any Other Means of Collection Conducted Pursuant to FISA or Other Foreign Intelligence Gathering (Durkin, Thomas) (Entered: 08/09/2013)
53 MOTION by Adel Daoud for leave to file brief in excess of fifteen pages (Durkin, Thomas) (Entered: 08/09/2013)
54 MOTION by Adel Daoud for discovery Regarding the Surveillance and Investigation of Defendant (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Durkin, Thomas) (Entered: 08/09/2013)
55 MOTION by Adel Daoud to produce Rule 404(b) Material (Durkin, Thomas) (Entered: 08/09/2013)
56 MOTION by Adel Daoud for disclosure of Any Written Santiago Proffer Sixty (60) Days Prior to Trial (Durkin, Thomas) (Entered: 08/09/2013)
57 MOTION by Adel Daoud for disclosure of Expert Testimony Sixty (60) Days Prior to Trial (Durkin, Thomas) (Entered: 08/09/2013)
58 MOTION by Adel Daoud Motion For Early Return of Trial Subpoenas (Durkin, Thomas) (Entered: 08/09/2013)
59 MOTION by Adel Daoud for extension of time Within Which to File Additional Pretrial Motions (Durkin, Thomas) (Entered: 08/09/2013)
60 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud (1); Government's motion for leave to file sur−reply 50 is granted. Defendant's motion for leave to file brief in excess of 15 pages 53 is granted. Mailed notice (rth, ) (Entered: 08/15/2013)
61 ORDER as to Adel Daoud. (nf, ) (Entered: 08/16/2013)
62 MOTION by USA for extension of time as to Adel Daoud Government's Unopposed Motion for an Extension to Respond to Defendant's Pretrial Motions (Ridgway, William) (Entered: 08/20/2013)
63 RESPONSE by USA as to Adel Daoud regarding MOTION by Adel Daoud for extension of time Within Which to File Additional Pretrial Motions 59 , MOTION by Adel Daoud for disclosure of Expert Testimony Sixty (60) Days Prior to Trial 57 , MOTION by Adel Daoud to produce Rule 404(b) Material 55 , MOTION by Adel Daoud for discovery Regarding the Surveillance and Investigation of Defendant 54 , MOTION by Adel Daoud for disclosure of Any Written Santiago Proffer Sixty (60) Days Prior to Trial 56 , MOTION by Adel Daoud Motion For Early Return of Trial Subpoenas 58 (Ridgway, William) (Entered: 08/26/2013)
64 ORDER as to Adel Daoud: Status hearing held. Defendant's unopposed Motion for leave to file a brief in excess of 15 pages in support of the motion for disclosure of FISA−related material 53 was previously granted. Government's motion for leave to file a sur−reply to defendant's motion for notice of FISA Amendments Act evidence pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) 50 was previously granted. Government's unopposed motion for extension of time to respond to defendant's pretrial motions 62

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 8 of 31

08/29/2013 08/29/2013 09/01/2013
09/04/2013 09/06/2013 09/18/2013

is granted. The Government's response to defendant's motion for disclosure of FISA−related material to suppress the fruits or derivatives of electronic surveillance and any Other Means of Collection Conducted Pursuant to FISA or Other Foreign Intelligence Gathering 51 is due 10/26/2013 and defendant's reply is due 11/25/2013. Government filed responses to defendant's motions [ 54 , 55 , 56 , 57 , 58 , 59 ] on 8/26/2013. Defendant's replies in support of motions [ 54 , 55 , 56 , 57 , 58 ] are due 9/6/2013. Defendant's motion for an extension of time to file additional pretrial motions 59 is granted with no objection. This Court reserves setting a final date until the pending motions are resolved. With respect to the government's CIPA 4 Motion 39 , defendant is to submit an ex parte position statement for the Court to consider in conjunction with the government's motion by 9/26/2013. The Court will then take the matter under advisement. Defendant's motion for notice of FISA Amendments Act (FAA) evidence pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) 42 is denied based on the representations made in the government's sur−reply 49 . The trial is tentatively reset for 2/3/2014 to 4/7/2014 however the parties are to telephone Chambers to confirm the date. Time is excluded to 4/1/2014 pursuant to 18:3161(h)(7)(B)(I). Signed by the Honorable Sharon Johnson Coleman on 8/27/2013. Mailed notice (ph, ) (Entered: 08/28/2013)
65 MOTION by Adel Daoud Motion to Vacate The Denial of His Motion for Notice of FISA Amendments Act (FAA) Evidence Pursuant to 50 U.S.C. §§1881e(a), 1806(c); and For Leave to File a Response to the Governments Sur−Reply to Defendants Motion for Notice of FAA Evidence (Attachments: # 1 Exhibit A, # 2 Exhibit B−1, # 3 Exhibit B−2)(Durkin, Thomas) (Entered: 08/29/2013)
66 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for miscellaneous relief, 65 before Honorable Sharon Johnson Coleman on 9/5/2013 at 09:30 AM. (Durkin, Thomas) (Entered: 08/29/2013)
67 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); On 8/29/2013, Defendant Adel Daoud filed a motion to vacate this Court's denial of his motion for Notice under the FISA Amendments Act 65 . At the hearing on 8/27/2013, the parties presented eight motions, discussed briefing schedules and additional discovery, and rescheduled the trial date. During discussion on the motion for FAA Notice, the defendant responded to the Court's query that he was not seeking to respond to the government's written statement that it does not intend to use FAA obtained or derived evidence. Upon review of the the discussion of this particular issue, the Court understood defendant to agree that further argument on the motion for FAA Notice was not necessary based on the Government's unequivocal statement that it does not intend to use evidence obtained or derived from surveillance conducted under the FAA and if its position changes it would provide the Notice required by the statute. However, this Court finds no prejudice in allowing further examination of this issue. As stated at the hearing, this Court will give serious consideration to all submissions on contested motions. Defendant's motion to vacate the denial of his motion for Notice under the FAA 65 is granted. The Court is available to hear the parties further on this issue or if more scheduling is required, on 9/5/2013 or by agreement of the parties upon consultation with the court deputy. Mailed notice (rth, ) (Entered: 09/01/2013)
68 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Jury Trial set for 2/3/2014 is stricken and reset to 4/7/2014 at 10:00 AM. by agreement of the parties. Time excluded to 4/7/2014 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 09/04/2013)
69 REPLY by Adel Daoud to MOTION by Adel Daoud for disclosure of Expert Testimony Sixty (60) Days Prior to Trial 57 , MOTION by Adel Daoud to produce Rule 404(b) Material 55 , MOTION by Adel Daoud for discovery Regarding the Surveillance and Investigation of Defendant 54 , MOTION by Adel Daoud for disclosure of Any Written Santiago Proffer Sixty (60) Days Prior to Trial 56 (Durkin, Thomas) (Entered: 09/06/2013)
70 MOTION by Adel Daoud for discovery in Support of Defendants Previously Filed Motion for Notice of FISA Amendments Act Evidence Pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) (Dkt. #42) (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Durkin, Thomas) (Entered: 09/18/2013)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 9 of 31

09/25/2013 10/25/2013 10/25/2013
11/25/2013
11/25/2013 11/25/2013 11/26/2013 11/26/2013 12/08/2013 12/08/2013 12/11/2013 12/11/2013
12/11/2013 12/20/2013 12/20/2013 01/03/2014

71 MOTION by Adel Daoud for extension of time to File His Ex Parte Position Paper with Regard to the Governments CIPA §4 Motion (Unopposed) (Durkin, Thomas) (Entered: 09/25/2013)
72 MOTION by USA for leave to file brief in excess of fifteen pages as to Adel Daoud (Ridgway, William) (Entered: 10/25/2013)
73 RESPONSE by USA as to Adel Daoud regarding MOTION by Adel Daoud for disclosure of FISA−Related Material and to Suppress the Fruits or Derivatives of Electronic Surveillance and Any Other Means of Collection Conducted Pursuant to FISA or Other Foreign Intelligence Gathering 51 (Attachments: # 1 Declaration Attorney General's Claim of Privilege)(Ridgway, William) (Entered: 10/25/2013)
74 REPLY by Adel Daoud to MOTION by Adel Daoud for disclosure of FISA−Related Material and to Suppress the Fruits or Derivatives of Electronic Surveillance and Any Other Means of Collection Conducted Pursuant to FISA or Other Foreign Intelligence Gathering 51 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Durkin, Thomas) (Entered: 11/25/2013)
75 MOTION by Adel Daoud for leave to file brief in excess of fifteen pages Unopposed (Durkin, Thomas) (Entered: 11/25/2013)
76 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for leave to file excess pages 75 before Honorable Sharon Johnson Coleman on 12/4/2013 at 09:45 AM. (Durkin, Thomas) (Entered: 11/25/2013)
77 SEALED EXHIBIT by Adel Daoud (Durkin, Thomas) (Entered: 11/26/2013)
78 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud (1); Defendant's unopposed motion for leave to file brief in excess of 15 pages 75 is granted. No appearance required on 12/4/2013. Mailed notice (rth, ) (Entered: 11/26/2013)
79 MOTION by Adel Daoud to Reassign Case No. 13−cr−703 as Related to This Case (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Durkin, Thomas) (Entered: 12/08/2013)
80 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for miscellaneous relief 79 before Honorable Sharon Johnson Coleman on 12/11/2013 at 09:45 AM. (Durkin, Thomas) (Entered: 12/08/2013)
ORAL MOTION by Adel Daoud for interim payments. (ym, ) (Entered: 12/16/2013)
81 ORDER as to Adel Daoud: Status hearing held on 12/11/2013. Defendant's request for a psychiatric examination is granted. Enter Order under seal. Defendant's motion to reassign Case No. 13 CR 703 as related to this case 79 is granted. Oral argument set for 1/3/2014 at 01:30 PM. on defendant's motions for disclosure of FISA 51 , for discovery Regarding the Surveillance and Investigation of Defendant 54 and for discovery in Support of Defendants Previously Filed Motion for Notice of FISA Amendments Act Evidence Pursuant to 50 U.S.C. 1881e(a), 1806(c) 70 . Defendant's oral motion for interim payments is granted. Time continues to be excluded to 4/7/2014 pursuant to 18:3161 (h)(7)(B)(I). Signed by the Honorable Sharon Johnson Coleman on 12/11/2013. (ym, ) (Entered: 12/16/2013)
82 ORDER as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 12/11/2013(SEALED). (ym, ) (Entered: 12/16/2013)
83 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud (1); Defendant's motion to produce 55 is denied, motion for disclosure 56 is denied, motion for disclosure 57 is granted, and motion for early return of trial subpoenas 58 is granted. Enter Order. Mailed notice (rth, ) (Entered: 12/20/2013)
84 ORDER as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 12/20/2013.Mailed notice (rth, ) (Entered: 12/20/2013)
85 Submission of Additional Authority by Adel Daoud for Purposes of Oral Argument (Attachments: # 1 Supplement Additional Authority)(Durkin, Thomas) (Entered: 01/03/2014)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 10 of 31

01/03/2014
01/17/2014
01/27/2014 01/27/2014 01/28/2014 01/29/2014
01/29/2014 02/05/2014 02/05/2014 02/06/2014 02/10/2014 02/11/2014

86 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); In court hearing held on 1/3/2014. Defendant's motions for disclosure of FISA−Related Material and to Suppress the Fruits or Derivatives of Electronic Surveillance and Any Other Means of Collection Conducted Pursuant to FISA or Other Foreign Intelligence Gathering 51 , for discovery Regarding the Surveillance and Investigation of Defendant 54 , and for discovery in Support of Defendants Previously Filed Motion for Notice of FISA Amendments Act Evidence Pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) 70 are taken under advisement. On Government's CIPA motion, Defendant's response due by 1/31/2014. Status hearing set for 2/6/2014 at 09:45 AM. Mailed notice (rth, ) (Entered: 01/03/2014)
87 as to Adel Daoud (1); On 1/3/2014 this Court heard oral argument on defendant Adel Daoud's motion for additional discovery regarding the government's surveillance and investigation of defendant 54 . This Court denies the motion without prejudice and notwithstanding the government's ongoing duty to supplement discovery disclosures as dictated by the Federal Rules of Evidence, the Jencks Act, Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). This Court also heard oral argument on defendant's motion for discovery in support of defendant's previously filed motion for notice of FISA Amendments Act Evidence ("FAA") pursuant to 50 U.S.C. §§ 1881e(a), 1806(c) 70 . The defendant having failed to provide any basis for issuing such an Order, the Court denies the motion without prejudice. Signed by the Honorable Sharon Johnson Coleman on 1/17/2014.Mailed notice (rth, ) (Entered: 01/17/2014)
88 MOTION by Adel Daoud for extension of time to File His Ex Parte Position Paper with Regard to the Governments CIPA §4 Motion (UNOPPOSED) (Durkin, Thomas) (Entered: 01/27/2014)
89 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for extension of time 88 before Honorable Sharon Johnson Coleman on 1/30/2014 at 08:45 AM. (Durkin, Thomas) (Entered: 01/27/2014)
90 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud (1); Defendant's unopposed motion for extension of time to file his ex parte position paper with regard to the government's Classified Information Procedures Act ("CIPA") §4 Motion 88 is granted. No appearance required on 1/30/2014. Mailed notice (rth, ) (Entered: 01/28/2014)
91 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud (1); For the reasons discussed below, defendant's motion for disclosure of Foreign Intelligence Surveillance Act of 1978 ("FISA") related material and to suppress the fruits or derivatives of electronic surveillance and any other means of collection conducted pursuant to FISA or other foreign intelligence gathering 51 is granted in part and denied in part. Counsel for Daoud must present to the Court documentation of current valid security clearances at or before the next status hearing on February 6, 2014. Enter Memorandum Opinion and Order. Mailed notice (rth, ) (Entered: 01/29/2014)
92 as to Adel Daoud; MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 1/29/2014.Mailed notice (rth, ) (Entered: 01/29/2014)
94 MOTION by USA to stay as to Adel Daoud the Court's Order [Doc. #92] (Ridgway, William) (Entered: 02/05/2014)
95 NOTICE of Motion by William Ridgway for presentment of motion to stay 94 before Honorable Sharon Johnson Coleman on 2/11/2014 at 09:45 AM. (Ridgway, William) (Entered: 02/05/2014)
96 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set for 2/6/2014 is stricken and reset to 2/11/2014 at 09:45 AM. Mailed notice (rth, ) (Entered: 02/06/2014)
97 NOTICE OF APPEAL by USA as to Adel Daoud regarding memorandum opinion and order 92 (Ridgway, William) (Entered: 02/10/2014)
98 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 97 . (kj, ) (Entered: 02/11/2014)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 11 of 31

02/11/2014 02/11/2014
02/11/2014 02/11/2014 02/13/2014

99 Transmission of short record as to Adel Daoud to US Court of Appeals re notice of appeal 97 . (kj, ) (Entered: 02/11/2014)
100 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 2/11/2014. Status hearing set for 2/26/2014 at 09:30 AM. to address trial date and expert schedule. Time continues to be excluded to 4/7/2014 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 02/11/2014)
101 USCA case number 14−1284 for notice of appeal 97 as to Adel Daoud. (ym, ) (Entered: 02/12/2014)
102 LETTER as to Adel Daoud (SEALED). (ym, ) (Entered: 02/13/2014)
103 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 1/3/14, before the Honorable Sharon Johnson Coleman. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, Tracey_Mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

02/20/2014 02/24/2014 02/24/2014 02/26/2014 02/26/2014
02/27/2014 03/11/2014

Redaction Request due 3/6/2014. Redacted Transcript Deadline set for 3/17/2014. Release of Transcript Restriction set for 5/14/2014. (Mccullough, Tracey) (Entered: 02/13/2014)
104 DESIGNATION of record on appeal by USA as to Adel Daoud regarding notice of appeal 97 (Ridgway, William) (Entered: 02/20/2014)
105 CERTIFIED and transmitted the long record regarding notice of appeal 97 as to Adel Daoud to US Court of Appeals (USCA no. 14−1284). (kj, ) (Entered: 02/24/2014)
106 USCA RECEIVED on 2/24/2014 the long record as to Adel Daoud. (kj, ) (Entered: 02/25/2014)
107 TRANSCRIPT designation and order form by USA as to Adel Daoud for proceedings held on 12/11/2013; 1/3/2014 before Judge Sharon Coleman, (Ridgway, William) (Entered: 02/26/2014)
109 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 2/26/2014. Jury trial set to 4/7/2014 is stricken and reset to 11/10/2014 at 10:00 a.m. Final Pretrial Conference set to 10/28/2014 at 2:00 p.m. Final Pretrial Order and Motions in Limine due by 10/3/2014. Responses due by 10/10/2014. Status hearing set to 6/25/2014 at 9:45 a.m. Government's Unopposed Motion to Supplement the Record on Appeal with Sealed, Classified Documents 108 is granted. Time excluded to 11/10/2014 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 03/03/2014)
108 MOTION by USA to supplement as to Adel Daoud Government's Unopposed Motion to Supplement the Record on Appeal with Sealed, Classified Documents (Ridgway, William) (Entered: 02/27/2014)
110 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 2/11/14, before the Honorable Sharon Johnson Coleman. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, Tracey_Mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

Redaction Request due 4/1/2014. Redacted Transcript Deadline set for 4/11/2014. Release of Transcript Restriction set for 6/9/2014. (Mccullough, Tracey) (Entered:

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 12 of 31

03/11/2014

03/11/2014)
111 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 12/11/13, before the Honorable Sharon Johnson Coleman. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, Tracey_Mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

03/20/2014 03/20/2014 03/20/2014 03/20/2014 06/25/2014
06/25/2014 07/15/2014 09/03/2014
09/23/2014
10/03/2014 10/03/2014

Redaction Request due 4/1/2014. Redacted Transcript Deadline set for 4/11/2014. Release of Transcript Restriction set for 6/9/2014. (Mccullough, Tracey) (Entered: 03/11/2014)
112 TRANSMITTED supplemental record on appeal as to Adel Daoud regarding notice of appeal 97 . (nf, ) (Entered: 03/20/2014)
113 APPEAL record returned regarding notice of appeal 97 ; USCA case number 14−1284 as to Adel Daoud: Partial record returned consisting of sealed document nos. 61 and 82. (ym, ) (Entered: 03/21/2014)
114 APPEAL record regarding notice of appeal 97 ; USCA case number 14−1284 as to Adel Daoud: Partial record returned consisting of sealed documents nos. 61 and 82. (ym, ) (Entered: 03/24/2014)
115 ORDER of USCA as to Adel Daoud regarding notice of appeal 97 ; USCA case number 14−1284: IT IS ORDERED that the motion is GRANTED only to the extent that the clerk of this court shall return sealed envelopes no. 61 and 82 to the district court to be maintained under seal in the court. (ym, ) (Entered: 03/24/2014)
116 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 6/25/2014. Status hearing set for 7/15/2014 at 09:30 AM. Pursuant to the court's order dated 3/13/2013 (doc #40) appointing Thomas Durkin and Joshua Herman as counsel for defendant, Enter Order. Time continues to be excluded to 11/10/2014 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 06/25/2014)
117 ORDER as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 6/25/2014.Mailed notice (rth, ) (Entered: 06/25/2014)
118 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 7/15/2014. Status hearing set for 9/3/2014 at 01:00 PM. Time continues to be excluded to 11/10/2014 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 07/16/2014)
119 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 9/3/2014. Status hearing set for 9/23/2014 at 10:00 AM. Contrary to the Court's statement, based on other obligations to the court, it will be unable to rule on the CIPAA motion by the next status. The Court will apprise the parties at the next status. Time continues to be excluded to 11/10/2014 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 09/05/2014)
121 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 9/23/2014. The court expects to rule on the CIPAA motion by the pretrial conference. Time continues to be excluded to 11/10/2014 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 09/24/2014)
122 Government's Second ExParte in Camera Motion for a Protective Order Pursuant to CIPA Section 4 and Fed.R.Crim.P. 16(d)(1) by USA as to Adel Daoud (Ridgway, William) (Entered: 10/03/2014)
123 MOTION by USA for protective order as to Adel Daoud Government's Motion for a Protective Order Pertaining to the Testimony of the Undercover Employee at Trial (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Ridgway,

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 13 of 31

10/05/2014 10/05/2014 10/05/2014 10/05/2014 10/05/2014 10/05/2014 10/08/2014
10/10/2014
10/10/2014 10/10/2014 10/10/2014 10/10/2014 11/10/2014 11/10/2014

William) (Entered: 10/03/2014)
124 MOTION by Adel Daoud for hearing Defendants Motion for an Evidentiary Hearing Pursuant to Franks v. Delaware (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Durkin, Thomas) (Entered: 10/05/2014)
125 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for hearing 124 before Honorable Sharon Johnson Coleman on 10/8/2014 at 09:45 AM. (Durkin, Thomas) (Entered: 10/05/2014)
126 MOTION by Adel Daoud for discovery Regarding the Governments Surveillance Pursuant to Executive Order 12333 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Durkin, Thomas) (Entered: 10/05/2014)
127 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for discovery 126 before Honorable Sharon Johnson Coleman on 10/8/2014 at 09:45 AM. (Durkin, Thomas) (Entered: 10/05/2014)
128 MOTION by Adel Daoud to continue Trial Date (Durkin, Thomas) (Entered: 10/05/2014)
129 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion to continue 128 before Honorable Sharon Johnson Coleman on 10/8/2014 at 09:45 AM. (Durkin, Thomas) (Entered: 10/05/2014)
130 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Motion hearing held on 10/8/2014. Defendant's motion to continue trial 128 is granted. Jury Trial set for 11/10/2014 is stricken and reset to 7/27/2015 at 10:00 AM. Pretrial conference set to 10/28/2014 is stricken. All other trial dates and deadlines are stricken. Government's motion for protective order 123 is entered and continued. Defendant's motion for evidentiary hearing 124 is entered and continued. Defendant's motion for discovery 126 is entered and continued. Status hearing set for 11/10/2014 at 10:00 AM. Time excluded to 7/27/2015 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 10/09/2014)
131 ORDER of USCA (certified copy) regarding notice of appeal 97 ; USCA case no. 14−1284 as to Adel Daoud: On August 12, 2014, defendant−appellee filed a petition for rehearing en banc, and on September 2, 2014, plaintiff−appellant filed an answer to the petition. All the judges on the original panel have voted to deny the petition, and none of the judges in regular active service has requested a vote on the petition for rehearing en banc. The petition is therefore DENIED. (ym, ) (Entered: 10/14/2014)
132 APPEAL record returned regarding notice of appeal 97 ; USCA case no. 14−1284 as to Adel Daoud: Entire record returned consisting of 1 sealed envelope. (ym, ) (Entered: 10/14/2014)
133 MANDATE of USCA (certified copy) as to Adel Daoud: The order appealed from is REVERSED in accordance with the decision of this court entered on this date. (ym, ) (Entered: 10/14/2014)
134 OPINION from the USCA for the 7th Circuit; Argued 6/4 & 6/9/2014; Decided 6/16/2014 in USCA case no. 14−1284. (ym, ) (Entered: 10/14/2014)
135 SUPPLEMENTAL CLASSIFIED OPINION from the USCA (Redacted Version) Decided on July 14, 2014. (ym, ) (Entered: 10/14/2014)
136 as to Adel Daoud; UNCLASSIFIED PROTECTIVE ORDER PURSUANT TO THE CLASSIFIED INFORMATION PROCEDURES ACT §4 AND FEDERAL RULE OF CRIMINAL PROCEDURE 16(d)(1) Signed by the Honorable Sharon Johnson Coleman on 11/10/2014.Mailed notice (rth, ) (Entered: 11/10/2014)
137 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 11/10/2014. On Government's motion for protective order 123 , Defendant's motion for evidentiary hearing 124 , and Defendant's motion for discovery 126 , responses due by 12/15/2014, Replies due by 1/5/2015. Status hearing set for 1/30/2015 at 10:15 AM. Time continues to be excluded to 7/27/2015 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 11/10/2014)

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11/13/2014 12/15/2014
12/15/2014 12/15/2014 12/15/2014 12/15/2014 12/15/2014
12/15/2014 12/16/2014 12/16/2014 01/05/2015 01/05/2015
01/05/2015
01/30/2015 02/27/2015 03/03/2015 03/18/2015

138 APPEAL record returned regarding notice of appeal 97 ; USCA case number 14−1284 as to Adel Daoud: Entire record consisting of 1 sealed envelope. (ym, ) (Entered: 11/17/2014)
139 RESPONSE by USA as to Adel Daoud regarding MOTION by Adel Daoud for discovery Regarding the Governments Surveillance Pursuant to Executive Order 12333 126 , MOTION by Adel Daoud for hearing Defendants Motion for an Evidentiary Hearing Pursuant to Franks v. Delaware 124 (Ridgway, William) (Entered: 12/15/2014)
140 Classified Addendum to Government's Response to Defendant's Motion for Discovery and For an Evidentiary Hearing Pursuant to Franks v. Delaware by USA as to Adel Daoud (Ridgway, William) (Entered: 12/15/2014)
141 RESPONSE by Adel Daoud regarding MOTION by USA for protective order as to Adel Daoud Government's Motion for a Protective Order Pertaining to the Testimony of the Undercover Employee at Trial 123 (Durkin, Thomas) (Entered: 12/15/2014)
142 MOTION by Adel Daoud for leave to file brief in excess of fifteen pages (Durkin, Thomas) (Entered: 12/15/2014)
143 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for leave to file excess pages 142 before Honorable Sharon Johnson Coleman on 12/19/2014 at 09:30 AM. (Durkin, Thomas) (Entered: 12/15/2014)
144 MOTION by Adel Daoud for disclosure to Cleared Counsel of the Identity of the FBI UCE, for Production of Essential Background Information, and For the Opportunity to Observe the UCE and Conduct a Pre−Trial Interview (Durkin, Thomas) (Entered: 12/15/2014)
146 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for disclosure 144 before Honorable Sharon Johnson Coleman on 12/19/2014 at 09:30 AM. (Durkin, Thomas) (Entered: 12/15/2014)
147 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for disclosure 144 before Honorable Sharon Johnson Coleman on 1/6/2015 at 08:45 AM. (Durkin, Thomas) (Entered: 12/16/2014)
148 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for leave to file excess pages 142 before Honorable Sharon Johnson Coleman on 1/6/2015 at 08:45 AM. (Durkin, Thomas) (Entered: 12/16/2014)
149 REPLY by USA to MOTION by USA for protective order as to Adel Daoud Government's Motion for a Protective Order Pertaining to the Testimony of the Undercover Employee at Trial 123 (Ridgway, William) (Entered: 01/05/2015)
150 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud (1); Defendant's motion for leave to file excess pages 142 is granted. Defendant's motions for disclosure 144 145 are taken under advisement. No appearance required on 1/6/2015.Mailed notice (rth, ) (Entered: 01/05/2015)
151 REPLY by Adel Daoud to MOTION by Adel Daoud for discovery Regarding the Governments Surveillance Pursuant to Executive Order 12333 126 , MOTION by Adel Daoud for hearing Defendants Motion for an Evidentiary Hearing Pursuant to Franks v. Delaware 124 (Durkin, Thomas) (Entered: 01/05/2015)
152 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 1/30/2015. Status hearing set for 4/3/2015 at 09:30 AM. Mailed notice (rth, ) (Entered: 01/30/2015)
153 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set for 4/3/2015 is stricken and reset sua sponte to 3/18/2015 at 09:45 AM. Mailed notice (rth, ) (Entered: 02/27/2015)
154 NOTICE by Joshua G. Herman of Change of Address (Herman, Joshua) (Entered: 03/03/2015)
156 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424);. Status hearing held on 3/18/2015. Status hearing set for 4/3/2015

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 15 of 31

03/19/2015
04/02/2015 04/08/2015 04/14/2015 05/07/2015

at 09:30 AM. Time continues to be excluded to 7/27/2015 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 03/24/2015)
155 ORDER: as to Adel Daoud (1); Four motions are before the Court for consideration. The Court either ruled or indicated that it would be ruling on the following motions at the status hearing on March 18, 2015. Defendant's Motion for Discovery Regarding the Surveillance pursuant to Executive Order 12333 126 , is denied. Defendant's Motion for an Evidentiary Hearing pursuant to Franks v. Delaware 124 , is denied. Government's Motion for a Protective Order Pertaining to the Testimony of the Undercover Employee at Trial 123 , is granted in part and denied in part. Defendant's Motion for Protected Disclosure to Cleared Counsel of the Identity of the FBI UCE, for Production of Essential Background Information, and for the Opportunity to Observe the UCE and Conduct a Pre−trial Interview 145 , is denied. Enter Order. Signed by the Honorable Sharon Johnson Coleman on 3/19/15.Mailed notice (rth, ) (Entered: 03/20/2015)
157 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set for 4/3/2015 is stricken and reset to 4/15/2015 at 09:45 AM. Time continues to be excluded to 7/27/2015 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 04/02/2015)
158 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set for 4/15/2015 is stricken and reset to 4/14/2015 at 09:30 AM. Time continues to be excluded to 7/27/2015 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 04/08/2015)
159 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing Status hearing held on 4/14/2015. Status hearing set for 5/15/2015 at 09:00 AM. Parties may contact the court to cancel the status if they determine that it is not necessary. Pretrial conference set to 6/12/2015 at 11:00 a.m. Pretrial motions and motions in limine due by 6/3/2015. Responses due by 6/8/2015. Replies, if necessary, due by 6/10/2015. Time continues to be excluded to 7/27/2015 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 04/16/2015)
160 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 1/30/15, before the Honorable Sharon Johnson Coleman. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, Tracey_Mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

05/14/2015
06/03/2015 06/03/2015 06/03/2015 06/03/2015

Redaction Request due 5/28/2015. Redacted Transcript Deadline set for 6/8/2015. Release of Transcript Restriction set for 8/5/2015. (Mccullough, Tracey) (Entered: 05/07/2015)
161 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set to 5/15/2015 is stricken. Pretrial Conference set for 6/12/2015 is stricken and reset to 6/10/2015 at 11:15 AM. Time continues to be excluded to 7/27/2015 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 05/14/2015)
162 MOTION by Adel Daoud in limine (Herman, Joshua) (Entered: 06/03/2015)
163 PROPOSED Jury Instructions by USA as to Adel Daoud (Haxall, Bolling) (Entered: 06/03/2015)
164 MOTION by USA in limine as to Adel Daoud Governments Consolidated Motions In Limine (Haxall, Bolling) (Entered: 06/03/2015)
165 NOTICE of Notice of Filing by USA as to Adel Daoud regarding proposed jury instructions 163 , MOTION by USA in limine as to Adel Daoud Governments Consolidated Motions In Limine 164 (Haxall, Bolling) (Entered: 06/03/2015)

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06/08/2015 06/08/2015
06/09/2015 06/10/2015 06/23/2015
06/23/2015 06/23/2015 07/24/2015
07/29/2015
07/31/2015 08/13/2015 08/19/2015

166 RESPONSE by USA as to Adel Daoud regarding MOTION by Adel Daoud in limine 162 (Jonas, Barry) (Entered: 06/08/2015)
167 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 6/8/2015. By agreement of the parties, Pretrial Conference set for 6/10/2015 is rescheduled to 7/23/2015 at 11:00 AM. Pretrial order and motions in limine are due prior to the next date. Time continues to be excluded to 7/27/2015 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 06/09/2015)
168 MINUTE entry before the Honorable Sharon Johnson Coleman:as to Adel Daoud(#43222424); Minute entry #167 is amended in part as follows: By agreement of the parties, Pretrial Conference set for 6/10/2015 is rescheduled to 6/23/2015 at 11:00 AM. The remainder of the entry shall stand. Mailed notice (rth, ) (Entered: 06/09/2015)
169 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud; Defendant's oral motion to seal the transcript of the status hearing requested by the parties on 6/8/2015 is granted. Defendant's appearance at the status hearing was waived by counsel. Mailed notice (rth, ) (Entered: 06/10/2015)
170 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Pretrial conference stricken. Status hearing held on 6/23/2015. Defendant's oral request to continue trial is granted as set forth in open court. Jury Trial set for 7/27/2015 is stricken and reset to 9/30/2015 at 10:00 AM. Status hearing set for 8/5/2015 at 11:00 AM. Defense counsel's request for a psychiatric examination and testing is granted. Dr. Emily Keram and Dr. Stephen Xenakis may conduct said examination. Enter Order. Any documentation regarding defendant's mental health issues shall be filed under seal. Time excluded to 9/30/2015 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 06/24/2015)
171 ORDER as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 6/23/2015.Mailed notice (rth, ) (Entered: 06/24/2015)
172 ORDER as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 6/23/2015.Mailed notice (rth, ) (Entered: 06/24/2015)
173 MINUTE entry before the Honorable Sharon Johnson Coleman: The trial date of September 30, 2015 set at the June 23, 2015 status hearing has been continued by agreement of the Court and parties to October 5, 2015 to accommodate the conflicts in the Court's previously set trial schedules and counsel's trial commitments. Other pre−trial matters will be addressed at the next status hearing on August 5, 2015 at 11:00 a.m. Time has been excluded until the next status date. Mailed notice (rth, ) (Entered: 07/24/2015)
174 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Instanter status hearing held on 7/29/2015 at request of the parties, defendant's presence was waived. At defendant's request, a psychological examination is ordered and will be conducted by Isaac Rey Center. The evaluation and reports should be completed in September which may affect the current trial schedule. The trial date of October 5, 2015 will stand until further discussion at the next status hearing of September 16, 2015 at 9:30 a.m. The Court further approves defense expert, Dr. Xenakis, who will be compensated under CJA. Mailed notice (rth, ) (Entered: 07/30/2015)
175 ORDER as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 7/31/2015. Mailed notice(RESTRICTED). (ym, ) (Entered: 08/03/2015)
176 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set for 8/18/2015 at 09:30 AM. Mailed notice (rth, ) (Entered: 08/13/2015)
177 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 8/19/2015. Jury Trial set for 10/5/2015 is stricken and reset to 1/5/2016 at 10:00 AM. Status hearing set for 10/5/2015 at 10:00 AM. Time excluded to 1/5/2016 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 08/19/2015)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 17 of 31

10/05/2015
10/14/2015 10/19/2015 11/10/2015 12/01/2015
12/01/2015 12/01/2015 12/01/2015 12/02/2015 12/03/2015 12/07/2015 12/07/2015 12/07/2015 12/07/2015 12/08/2015 12/08/2015

178 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 10/5/2015. Trial date of 1/5/2016 shall stand. Pretrial Conference set for 12/10/2015 at 03:00 PM. Motions in limine due by 12/1/2015. Responses due by 12/7/2015. Modified pretrial order with list of witnesses and statement of the case due prior to the pretrial conference. Time continues to be excluded to 1/5/2016 pursuant to 18:3161 (h)(7)(B)(I). Mailed notice (rth, ) (Entered: 10/05/2015)
179 REQUEST For A Separate Jury Panel Pursuant to Local Rule 47.1(b) as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 10/14/2015. Mailed notice. (ym, ) (Entered: 10/20/2015)
180 ORDER Directing That A Separate Jury Panel Be Summoned as to Adel Daoud Signed by the Honorable Ruben Castillo on 10/19/2015. Mailed notice. (ym, ) (Entered: 10/20/2015)
182 ORDER as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 11/10/2015. Mailed notice (RESTRICTED). (ym, ) (Entered: 11/12/2015)
183 MOTION by Adel Daoud in limine to Preclude the Testimony of Government Witness William Braniff Under Federal Rules of Evidence 401 and 403 and 704(b); or, in the Alternative,, MOTION by Adel Daoud for hearing Daubert Hearing (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Durkin, Thomas) (Entered: 12/01/2015)
184 MOTION by Adel Daoud for leave to file brief in excess of fifteen pages (Durkin, Thomas) (Entered: 12/01/2015)
185 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for leave to file excess pages 184 before Honorable Sharon Johnson Coleman on 12/10/2015 at 03:00 PM. (Durkin, Thomas) (Entered: 12/01/2015)
186 MOTION by USA in limine as to Adel Daoud To Exclude the Opinions and Testimony of Dr. Stephen Xenakis (Attachments: # 1 Exhibit A)(Ridgway, William) (Entered: 12/01/2015)
187 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud (#43222424); Defendant's motion for leave to file excess pages 184 is granted. Mailed notice (rth, ) (Entered: 12/02/2015)
198 ORDER as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 12/3/2015. Mailed notice (RESTRICTED). (ym, ) (Entered: 12/11/2015)
188 MOTION by Adel Daoud for hearing Emergency Motion for Evidentiary Hearing to Determine Mental Competency of Defendant (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D−1, # 5 Exhibit D−2, # 6 Exhibit D−3, # 7 Exhibit E)(Durkin, Thomas) (Entered: 12/07/2015)
189 RESPONSE by Adel Daoud to MOTION by USA in limine as to Adel Daoud Governments Consolidated Motions In Limine 164 (Durkin, Thomas) (Entered: 12/07/2015)
190 RESPONSE by USA as to Adel Daoud regarding MOTION by Adel Daoud in limine to Preclude the Testimony of Government Witness William Braniff Under Federal Rules of Evidence 401 and 403 and 704(b); or, in the Alternative,MOTION by Adel Daoud for hearing Daubert Hearing 183 (Jonas, Barry) (Entered: 12/07/2015)
191 RESPONSE by Adel Daoud regarding MOTION by USA in limine as to Adel Daoud To Exclude the Opinions and Testimony of Dr. Stephen Xenakis 186 (Attachments: # 1 Exhibit A)(Herman, Joshua) (Entered: 12/07/2015)
192 MOTION by Adel Daoud Defendants Motion to Reassign Based Upon Relatedness (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Durkin, Thomas) (Entered: 12/08/2015)
193 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); On 12/8/2015, this Court held a scheduling conference. Defendant Adel Daoud's appearance was waived. Defendant to file his proposed motion instanter, to be addressed at the pretrial conference scheduled for 12/10/2015 at 3:00 p.m. The

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 18 of 31

12/10/2015 12/10/2015 12/10/2015 12/10/2015
12/18/2015 01/06/2016 01/20/2016 01/27/2016 02/03/2016 02/24/2016 02/24/2016 02/29/2016 04/20/2016

government to file its response prior to the pretrial conference. Appearance on behalf of defendant entered by Robin V. Waters. Mailed notice (rth, ) (Entered: 12/09/2015)
194 RESPONSE by USA as to Adel Daoud regarding MOTION by Adel Daoud Defendants Motion to Reassign Based Upon Relatedness 192 (Ridgway, William) (Entered: 12/10/2015)
195 RESPONSE by USA as to Adel Daoud regarding MOTION by Adel Daoud Defendants Motion to Reassign Based Upon Relatedness 192 (Ridgway, William) (Entered: 12/10/2015)
196 ATTORNEY Appearance for defendant Adel Daoud by Robin Valentina Waters (Waters, Robin) (Entered: 12/10/2015)
197 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 12/10/2015 as to Defendant Adel Daoud. The Court heard arguments on defendant's Emergency Motion for Evidentiary Hearing to Determine the Mental Competency of Defendant 188 and defendant's Motion to Reassign Based Upon Relatedness 192 . The defendant was present in Court. The government does not dispute that defendant has made an adequate showing to secure a competency evaluation under section 4241. The Court therefore grants the motion to determine competency. The Court also grants the Motion to Reassign, but only for the limited purpose of determining defendant's competency. The Court finds it is in the interest of judicial economy to address defendant's mental competency in this case as well as case No. 15 CR 487, currently assigned to Judge Samuel Der−Yeghiayan, in one proceeding rather than having the matter arise separately in each case. Case No. 15 CR 487 would then return to Judge Der−Yeghiayan for all remaining purposes. Status hearing set for 12/18/2015 at 10:30 a.m. Pretrial conference stricken. Jury trial set to 1/5/2016 is stricken due to this order. At the next status, future trial dates will be discussed. Time is excluded in the interest of justice to 12/18/2015 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 12/10/2015)
199 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 12/18/2015. Status hearing set for 2/4/2016 at 10:30 AM. Time is excluded in the interest of justice to 2/4/2016 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 12/18/2015)
200 LETTER from Adel Daoud. (ym, ) (Entered: 01/08/2016)
201 ORDER as to Adel Daoud; Enter Order for psychiatric or psychological evaluation. Signed by the Honorable Sharon Johnson Coleman on 1/20/2016.Mailed notice (rth, ) (Entered: 01/20/2016)
202 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); The time for the status hearing set to 2/4/2016 is reset from 10:30 a.m. to 10:00 a.m. Mailed notice (rth, ) (Entered: 01/27/2016)
203 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set for 2/4/2016 is stricken and reset to 2/24/2016 at 10:00 AM. Time is excluded in the interest of justice to 2/24/2016 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 02/03/2016)
205 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 2/24/2016. Status hearing set for 4/20/2016 at 09:45 AM. Time is excluded in the interest of justice to 4/20/2016 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 02/24/2016)
206 Submission to the Court by Adel Daoud (Attachments: # 1 Exhibit Exhibit A)(Durkin, Thomas) (Entered: 02/24/2016)
207 STATEMENT by Adel Daoud. (ym, ) (Entered: 03/02/2016)
208 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 4/20/2016. Status hearing set for 6/1/2016 at 08:45 AM. Time is excluded in the interest of justice to 6/1/2016 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 04/21/2016)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 19 of 31

06/01/2016
07/27/2016 08/15/2016 08/18/2016 08/19/2016 08/24/2016 08/25/2016 08/25/2016 08/25/2016 09/14/2016 09/20/2016
09/28/2016 10/03/2016

209 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 6/1/2016. Status hearing set to 7/27/2016 at 9:30 a.m. Competency hearing set for 8/18/2016 at 09:30 AM and 8/19/2016 at 09:30 AM. All reports are due at the next status hearing. Jury Trial set for 2/7/2017 at 10:00 AM. Time is excluded in the interest of justice to 2/7/2017 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 06/01/2016)
210 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 7/27/2016. By 8/15/2016 parties shall submit a list of possible witnesses and exhibits being used at the hearing on 8/18/2016. Mailed notice (rth, ) (Entered: 07/28/2016)
211 SEALED MOTION by Adel Daoud (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Herman, Joshua) (Entered: 08/15/2016)
212 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); In court hearing held on 8/18/2016. In Court hearing set for 8/19/2016 at 09:30 AM. Mailed notice (rth, ) (Entered: 08/18/2016)
213 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); In court hearing held on 8/19/2016. Ruling set for 8/25/2016 at 10:30 AM. Mailed notice (rth, ) (Entered: 08/19/2016)
214 Supplemental Submission Regarding Present Competency by Adel Daoud (Attachments: # 1 Exhibit A)(Durkin, Thomas) (Entered: 08/24/2016)
215 MINUTE entry before the Honorable Sharon Johnson Coleman: In court hearing held on 8/25/2016. Detailed Order to follow. Mailed notice (lxs, ) (Entered: 08/25/2016)
216 ORDER as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 8/25/2016. Mailed notice (lxs, ) (Entered: 08/25/2016)
217 MINUTE entry before the Honorable Sharon Johnson Coleman: Status hearing set for 9/14/2016 at 10:00 a.m. for counsel to inform the Court of the steps taken to comply with this Court's Order of 8/25/2016. The appearance of the defendant Adel Daoud may be waived.Mailed notice (lxs, ) (Entered: 08/25/2016)
218 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 9/14/2016. Status hearing set for 9/20/2016 at 09:30 AM. A representative from the MCC and the BOP to be present at the hearing to address the seriousness of this matter. Mailed notice (rth, ) (Entered: 09/15/2016)
219 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 9/20/2016. MCC counsel is to follow up with the U.S. Marshal's Service transport service and any medical personnel regarding the immediate transfer of Daoud to the FCS Springfield. If no written response is available, the court is requiring someone from FCS Springfield to be present to explain the situation. Status hearing set to 9/28/2016 at 9:30 a.m. Defendant shall be present unless treatment has begun. Mailed notice (rth, ) (Entered: 09/21/2016)
220 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 9/28/2016. Defendant's appearance waived. Status hearing set for 11/2/2016 at 09:30 AM. If still in treatment, defendant's appearance is waived at the next hearing. Mailed notice (rth, ) (Entered: 09/30/2016)
221 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 8/18/16, before the Honorable Sharon Johnson Coleman. EVIDENTIARY HEARING Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, Tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 20 of 31

10/03/2016

Redaction Request due 10/24/2016. Redacted Transcript Deadline set for 11/3/2016. Release of Transcript Restriction set for 1/2/2017. (Mccullough, Tracey) (Entered: 10/03/2016)
222 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 8/19/16, before the Honorable Sharon Johnson Coleman. EVIDENTIARY HEARING Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, Tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

10/03/2016

Redaction Request due 10/24/2016. Redacted Transcript Deadline set for 11/3/2016. Release of Transcript Restriction set for 1/2/2017. (Mccullough, Tracey) (Entered: 10/03/2016)
223 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 8/25/16, before the Honorable Sharon Johnson Coleman. EVIDENTIARY HEARING Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, Tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

11/02/2016 11/21/2016 01/31/2017
03/01/2017 03/29/2017

Redaction Request due 10/24/2016. Redacted Transcript Deadline set for 11/3/2016. Release of Transcript Restriction set for 1/2/2017. (Mccullough, Tracey) (Entered: 10/03/2016)
224 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 11/2/2016. Jury trial set to 2/7/2017 is stricken. Status hearing set for 2/7/2017 at 10:00 AM. Unless undergoing treatment, defendant is to be present at the next hearing. Time is excluded in the interest of justice to 2/7/2017 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 11/02/2016)
225 SEALED MOTION by Adel Daoud (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Herman, Joshua) (Entered: 11/21/2016)
226 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set to 2/7/2017 is stricken and reset to 3/2/2017 at 9:30 a.m. Oral request to withdraw the appearance of William Ridgway is granted. There being no objection, defendant's mental health treatment is hereby extended for an additional 120 days to 5/27/2017. The court approves expenses for attorneys Thomas Durkin and Joshua Herman to travel to Springfield facility to meet with their client. Parties are ordered to submit a motion and proposed order for Dr. Xenakis to continue to receive payment for professional services. Time is excluded in the interest of justice to 3/2/2017 pursuant to 18:3161(h)(7)(B)(I). Attorney William Ridgway terminated. Mailed notice (rth, ) (Entered: 01/31/2017)
227 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424);. Status hearing set for 3/2/2017 is stricken and reset to 3/29/2017 at 09:30 AM. Time is excluded in the interest of justice to 3/29/2017 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 03/01/2017)
228 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 3/29/2017. Status hearing set for 4/12/2017 at 09:30 AM. Time is excluded in the interest of justice to 4/12/2017 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 03/30/2017)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 21 of 31

04/05/2017 04/11/2017 06/06/2017
07/21/2017 08/08/2017 09/05/2017 09/06/2017 10/16/2017 10/19/2017 10/19/2017 11/15/2017
01/26/2018 01/26/2018
01/31/2018 03/05/2018

229 SEALED TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 1/31/17, before the Honorable Sharon Johnson Coleman. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, tracey_mccullough@ilnd.uscourts.gov. (Mccullough, Tracey) (Entered: 04/05/2017)
230 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set for 4/12/2017 is stricken and reset to 6/6/2017 at 09:30 AM. Time is excluded in the interest of justice to 6/6/2017 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 04/11/2017)
231 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 6/6/2017. Defendant's appearance waived. Status hearing set for 7/21/2017 at 09:30 AM. If the parties submit a written report to the court prior to the next date, the status may be stricken. Time is excluded in the interest of justice to 7/21/2017 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 06/08/2017)
232 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 7/21/2017. Status hearing set for 9/6/2017 at 01:30 PM. Time is excluded in the interest of justice to 9/6/2017 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth, ) (Entered: 07/21/2017)
233 ORDER; as to Adel Daoud Signed by the Honorable Sharon Johnson Coleman on 8/8/2017.Mailed notice (rth, ) (Entered: 08/11/2017)
234 ATTORNEY Appearance for defendant Adel Daoud by Ronald Cecil Jones, II (Jones, Ronald) (Entered: 09/05/2017)
235 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 9/6/2017. Status hearing set for 10/25/2017 at 01:30 PM. Time is excluded in the interest of justice to 10/25/2017 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth) (Entered: 09/08/2017)
237 CERTIFICATE Of Restoration of Competency to Stand Trial as to Adel Daoud (Poor Quality Original − Paper Document On File) (mma, ) (Entered: 10/19/2017)
236 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing set for 10/25/2017 is stricken and reset to 11/15/2017 at 10:00 AM. Time is excluded in the interest of justice to 11/15/2017 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth) (Entered: 10/19/2017)
238 PERSONAL Identifiers in Paper Filings as to Adel Daoud re notice 237 (mma, ) (Entered: 10/19/2017)
239 MINUTE entry before the Honorable Sharon Johnson Coleman: as to Adel Daoud(#43222424); Status hearing held on 11/15/2017. As set forth in open court, the report is due by 1/19/2018, and should include whatever is necessary to authorize funding. Parties are to determine what services defendant can receive at the facility that can be reinstated. Status hearing set for 1/26/2018 at 10:00 AM. A competency hearing, if necessary, will be set for 3/12/2018 and 3/13/2018. Time is excluded in the interest of justice to 1/26/2018 pursuant to 18:3161(h)(7)(B)(I). Mailed notice (rth) (Entered: 11/19/2017)
241 ATTORNEY Appearance for USA byRichard Matthew Hiller (Hiller, Richard) (Entered: 01/26/2018)
242 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 1/26/2018. Defendant's presence is waived. Competency hearing set for 3/12/2018 at 10:00 AM to stand. Parties are to file preliminary statements 3 days prior to the competency hearing. Time is excluded to 3/12/2018 pursuant to 18 USC 3161(h)(7)(B)(I). Mailed notice. (ym, ) (Entered: 01/26/2018)
243 ORDER as to Adel Daoud. Signed by the Honorable Sharon Johnson Coleman on 1/31/2018. Mailed notice (lf, ) (Entered: 02/01/2018)
244 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing set for 3/6/2018 at 03:00 PM. Mailed notice. (ym, ) (Entered: 03/05/2018)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 22 of 31

03/06/2018 03/12/2018
04/11/2018 05/30/2018 06/10/2018 06/10/2018 06/10/2018 06/12/2018
07/18/2018

245 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 3/6/2018. Defendant present in court with counsel. By agreement of the parties, the time for the competency hearing on 3/12/2018 is reset to 12:30 PM. Mailed notice. (ym, ) (Entered: 03/06/2018)
246 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Competency hearing held on 3/12/2018. Government moves that defendant is competent to stand trial. The Government presented a report from Dr. Gillespie Wadsworth, in which she found that Defendant's competency has been restored by consistent treatment with psychotropic medication. The Government also presented a Certificate of Restoration to Compentency. Defendant did not object to the report submitted by the Government and presented the testimony of Dr. Stephen N. Xenakis. Both experts agreed that Defendant's competence is dependent on the continuation of his medication. Defendant was put under oath for the Court to affirm that he understood the proceedings and did not wish to testify on his own behalf regarding the competency issue. This Court finds that the Government had met their burden by a preponderance of the evidence to show that Adel Daoud is competent to stand trial. Status hearing is set for 4/11/2018 at 1:00 PM. Time is excluded to 4/11/2018 pursuant to 18 U.S.C. 3161(h)(7)(B)(iv). Mailed notice. (ym, ) (Entered: 03/13/2018)
247 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 4/11/2018. Trial date is tentatively set for 11/26/2018 at 10:00 AM. Status hearing set for 5/30/2018 at 1:30 PM. Parties will submit a written status report prior to the next hearing. Time is excluded to 11/26/2018 pursuant to 18 U.S.C. 3161 (h)(7)(B)(i). Mailed notice. (ym, ) (Entered: 04/11/2018)
248 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 5/30/2018. Jury trial set for 11/26/2018 at 10:00 AM to stand. Defendant is in agreement, under oath, to taking a lower dose of his medications. Status hearing set for 7/18/2018 at 1:30 PM. Parties are to file a status report at least 24 hours before the status. Mailed notice. (ym, ) (Entered: 05/30/2018)
249 MOTION by Adel Daoud for release from custody Defendant's Emergency Motion to Modify Conditions of Pretrial Detention to Permit His Temporary Release in the Custody of the United States Marshal for Psychiatric Treatment (Durkin, Thomas) (Entered: 06/10/2018)
250 SEALED Document (Durkin, Thomas) (Entered: 06/10/2018)
251 NOTICE of Motion by Thomas Anthony Durkin for presentment of motion for release from custody, 249 before Honorable Sharon Johnson Coleman on 6/12/2018 at 01:30 PM. (Durkin, Thomas) (Entered: 06/10/2018)
252 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Motion hearing held on 6/12/2018. Defendant's emergency motion to modify conditions of pretrial detention to permit his temporary release into the custody of the United States Marshal for psychiatric treatment 249 is denied without prejudice. After hearing oral argument on the motion, this Court believes the best course of action in this case with a lengthy and complicated medical as well as legal history, is to permit a psychiatric evaluation of defendant's prescriptions and dosages by 6/26/2018. The Court rejects both defendant and government options for addressing the pressing issues of defendant's medications and counseling treatment. The Court's preference is for an in−person evaluation and neither the government nor the representative from the Bureau of Prisons presented evidence that such an evaluation would be overly burdensome. The Court recognizes that it cannot direct the Bureau of Prisons to comply with this Court's preference. However, the logistical and financial inconvenience for the BOP to transport a psychiatrist from one of its facilities that were mentioned in court to the MCC is much less onerous than the other options offered. This solution should give all parties confidence that this matter is addressed in the most prudent and expedient manner. The physician's report of the evaluation, must be presented by 7/17/2018. The status hearing previously set for 7/18/2018 at 1:30 PM to stand. Mailed notice. (ym, ) (Entered: 06/12/2018)
253 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 7/18/2018. Counsel reviewed the status report and medical review of Daoud's prescribed psychotropic medicine. The BOP pscychiatrist opined that the current dosage is needed but did not give opinion as to the effect of giving

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 23 of 31

07/24/2018
09/12/2018
09/13/2018 09/28/2018
09/28/2018
10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018 10/12/2018

Daoud a slightly lower dosage to reduce side effect of drowsiness. BOP psychiatrist to be available by phone on the next date to answer questions from counsel and the Court regarding effectiveness of the current medicine and the appropriateness of dosage. The Court encouraged counsel to draft a list of questions to ask the doctor so that issues remain narrow and the exchange is brief. Daoud's independent psychiatrist should be available to hear the questioning and answer follow up questions by phone or in person. If the parties resolve the issue or reach another solution, they are to inform the Court prior to the next status and provide any additional information regarding Daoud's medications. Status hearing set for 7/24/2018 at 2:00 PM. Mailed notice. (ym, ) (Entered: 07/19/2018)
254 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 7/24/2018. Dr. Cutillar from the FMC Butner and defense expert Dr. Xenakis were made available by phone to be questioned by court and counsel. Dr. Cutillar will prescribe a lower dose of Abilify to defendant so that his next dosage on or about August 18 will be a 200 mg injection instead of the previously prescribed 300 mg. Final pretrial order and motions in limine are due by 10/5/2018. Response to motions in limine are due by 10/12/2018. Pretrial conference is set for 10/25/2018 at 1:30 PM. Status hearing is set for 9/12/2018 at 1:30 PM to address some pretrial matters and assess defendant's medication status. Mailed notice. (ym, ) (Entered: 07/24/2018)
255 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 9/12/2018. Parties confirm that they are preparing for the November 26th trial. Counsel confirms that defendant medication has been adjusted and is still competent to stand trial. Court confirms the pretrial schedule and the next status. Status hearing set for 9/28/2018 at 9:45 AM. Pending pretrial motions are taken under advisement. Mailed notice. (ym, ) (Entered: 09/12/2018)
256 ATTORNEY Designation for USA of Tiffany Ardam (Ardam, Tiffany) (Entered: 09/13/2018)
257 MOTION by Adel Daoud for Ruling on the Previously Raised Challenge to the Constitutionality of the Foreign Intelligence Surveillance Act re brief, 52 , MOTION by Adel Daoud for disclosure of FISA−Related Material and to Suppress the Fruits or Derivatives of Electronic Surveillance and Any Other Means of Collection Conducted Pursuant to FISA or Other Foreign Intelligence Gathering 51 (Herman, Joshua) (Entered: 09/28/2018)
258 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 9/28/2018. Government is moving forward with trial. Exhibit list and witness list to be submitted at least one week before the trial set for 11/26/2018. The government stated that the previous motions in limine that were filed by them will be the motions in limine that the court should take into consideration. Pretrial conference set for 10/25/2018 at 1:30 PM to stand. Mailed notice. (ym, ) (Entered: 09/28/2018)
259 ATTORNEY Appearance as to Adel Daoud filed by Andrea D. Lyon. (Attachments: # 1 Notice of Filing)(Lyon, Andrea) Docket Text Modified by Clerk's Office on 10/15/2018 (jh, ). (Entered: 10/12/2018)
260 Defendants Proposed Jury Instructions and Response to the Governments June 3, 2015, Proposed Jury Instructions and Verdict Forms by Adel Daoud (Herman, Joshua) (Entered: 10/12/2018)
261 MOTION by Adel Daoud Motion for Attorney Participation in Voir Dire (Herman, Joshua) (Entered: 10/12/2018)
262 MOTION by Adel Daoud for Individual Sequestered Voir Dire (Herman, Joshua) (Entered: 10/12/2018)
263 PROPOSED Voir Dire by USA as to Adel Daoud (Haxall, Bolling) (Entered: 10/12/2018)
264 PROPOSED Jury Instructions by USA as to Adel Daoud (Haxall, Bolling) (Entered: 10/12/2018)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 24 of 31

10/12/2018 10/12/2018
10/12/2018 10/12/2018 10/18/2018
10/19/2018 10/20/2018
10/22/2018 10/23/2018
10/23/2018 10/24/2018 10/25/2018
10/25/2018

265 Proposed Statement of the Case by USA as to Adel Daoud (Haxall, Bolling) (Entered: 10/12/2018)
266 MOTION by USAMERGE INDICTMENTS AND RENUMBER COUNTS as to Adel Daoud GOVERNMENTS MOTION TO MERGE INDICTMENTS AND RENUMBER COUNTS TO SUBMIT TO THE JURY (Attachments: # 1 Exhibit Proposed Redacted Indictment)(Haxall, Bolling) (Entered: 10/12/2018)
267 MOTION by Adel Daoud for Modified Written Questionnaire (Herman, Joshua) (Entered: 10/12/2018)
268 MOTION by USA for protective order as to Adel Daoud Governments Supplemental Motion for a Protective Order Pertaining to the Testimony of the Online Covert Employees at Trial (Haxall, Bolling) (Entered: 10/12/2018)
269 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Based on the lengthy history of this matter and the number of times it has been set for trial, the Court directs the parties to file a joint status report indicating which pretrial motions, if any, are agreed, withdrawn, or moot based on circumstances The status report must be filed by 12:00 p.m. on Tuesday 10/23/2018. Mailed notice. (ym, ) (Entered: 10/18/2018)
270 MOTION by USA for protective order as to Adel Daoud (Jonas, Barry) (Entered: 10/19/2018)
271 MEMORANDUM by Adel Daoud in Opposition to MOTION by USA for protective order as to Adel Daoud Governments Supplemental Motion for a Protective Order Pertaining to the Testimony of the Online Covert Employees at Trial 268 (Herman, Joshua) (Entered: 10/20/2018)
272 STATUS REPORT (Joint) by Adel Daoud (Herman, Joshua) (Entered: 10/22/2018)
273 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: In light of the passage of time, the completion of discovery, and the proximity of trial this Court denies as moot the pretrial motions [54−58]. If there are any specific issues with regard to those motions, the parties may refile by 10/26/2018. Mailed notice. (ym, ) (Entered: 10/23/2018)
274 ORDER as to Adel Daoud: Motion in limine 162 is granted. Signed by the Honorable Sharon Johnson Coleman on 10/23/2018. Mailed notice. (ym, ) (Entered: 10/23/2018)
275 ORDER as to Adel Daoud. Signed by the Honorable Sharon Johnson Coleman on 10/24/2018. Mailed notice. (ym, ) (Entered: 10/24/2018)
276 MOTION by Adel Daoud in limine to Preclude the Testimony of Substitute Prosecution Witness Matthew Levitt Under Federal Rules of Evidence 401, 403, 702, and 704(b) (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Herman, Joshua) (Entered: 10/25/2018)
277 MINUTE entry before the Honorable Sharon Johnson Coleman: Pretrial conference held and continued to 11/14/2018 at 1:30 p,m. The conference should take no more than two hours. As stated on the record in open court, defendant's motion for attorney participation in voir dire 261 is denied; defendant's motion for individual sequestered voir dire 262 is granted with the Court's explanation of procedure to follow at the next pretrial conference; defendant's motion for modified written questionnaire 267 is granted to the extent that the Court will supplement its standard questionnaire with consideration to the parties' requested modifications. The government's supplemental motion for a protective order pertaining to the testimony of the online covert employees at trial 268 is entered and continued. Defendant's motion in limine to preclude the testimony of government witness William Braniff 183 is stricken as moot. Prior to the next pretrial conference, the Court expects the parties to have met and conferred informally to discuss jury instructions. The government is directed to investigate the restrictions placed on Daoud at the MCC relating to his ability to communicate with his family, access to the commissary, and religious practice. The Court expects a status report on those restrictions within 7 days. The parties are to submit and exchange their proposed witness lists by 11/7/2018. Security personnel including assigned U.S. Marshals and CSO to be present at the next pretrial conference. Mailed notice. (ym, ) (Entered: 10/25/2018)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 25 of 31

10/29/2018 10/29/2018 10/31/2018
10/31/2018 11/01/2018
11/01/2018 11/05/2018 11/05/2018 11/06/2018

278 MOTION by USA for protective order as to Adel Daoud to allow the review of classified information (Jonas, Barry) (Entered: 10/29/2018)
279 NOTICE of Motion by Barry Jonas for presentment of motion for protective order 278 before Honorable Sharon Johnson Coleman on 11/1/2018 at 09:45 AM. (Jonas, Barry) (Entered: 10/29/2018)
280 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Government's unopposed supplemental motion for a protective order to allow the review of classified information 278 is granted. Enter Protective Order. No appearance necessary on 11/1/2018. Mailed notice. (ym, ) (Entered: 10/31/2018)
281 PROTECTIVE Order for the Review of Classified Information as to Adel Daoud. Signed by the Honorable Sharon Johnson Coleman on 10/31/2018. Mailed notice. (ym, ) (Entered: 10/31/2018)
282 RESPONSE by USA as to Adel Daoud regarding MOTION by Adel Daoud in limine to Preclude the Testimony of Substitute Prosecution Witness Matthew Levitt Under Federal Rules of Evidence 401, 403, 702, and 704(b) 276 (Jonas, Barry) (Entered: 11/01/2018)
283 MEMORANDUM by USA in Opposition to MOTION by Adel Daoud for Modified Written Questionnaire 267 GOVERNMENTS OBJECTION TO PROPOSED VOIR DIRE (Haxall, Bolling) (Entered: 11/01/2018)
284 MOTION by USA in limine as to Adel Daoud Supplemental (Jonas, Barry) (Entered: 11/05/2018)
285 ATTORNEY Appearance for defendant Adel Daoud by Andrea D. Lyon (Lyon, Andrea) (Entered: 11/05/2018)
286 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 3/18/15, before the Honorable Sharon Johnson Coleman. Order Number: 32196. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

11/07/2018 11/07/2018 11/07/2018
11/07/2018 11/08/2018

Redaction Request due 11/27/2018. Redacted Transcript Deadline set for 12/7/2018. Release of Transcript Restriction set for 2/4/2019. (Mccullough, Tracey) (Entered: 11/06/2018)
287 WITNESS List by USA as to Adel Daoud (Jonas, Barry) (Entered: 11/07/2018)
288 REPLY by Adel Daoud to response to motion 282 Defendant's Reply in Support of His Motion In Limine to Preclude the Testimony of Substitute Government Witness Matthew Levitt Under Federal Rules of Evidence 401, 403, 702, and 704(b); and Request for Daubert Hearing (Durkin, Thomas) (Entered: 11/07/2018)
289 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: The defendant's request for a Daubert hearing as to prosecution witness Matthew Levitt 276 is granted. A Daubert hearing is set for 11/13/2018 at 1:00 PM. In light of this Court's schedule this is the only hearing date available. The Court reserves time on 11/9/2018 at 2:00 PM for a potential continuation of the pretrial conference in this case. The parties are to contact the Courtroom Deputy by 11/8/2018 to confirm that date should they believe that, in light of the pending motions, witness lists, and remaining matters to be resolved, a hearing this week would be beneficial. Mailed notice. (ym, ) (Entered: 11/07/2018)
290 WITNESS List by Adel Daoud (Herman, Joshua) (Entered: 11/07/2018)
291 ORDER as to Adel Daoud: Before the Court is the government's motion in limine to exclude the testimony and opinions of Dr. Stephen Xenakis 186 because the proffered

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 26 of 31

11/08/2018
11/11/2018 11/13/2018
11/14/2018 11/14/2018 11/15/2018
11/15/2018 11/16/2018
11/16/2018 11/20/2018 11/20/2018 11/26/2018

opinions and testimony do not meet the requirements of Federal Rule of Criminal Procedure 16(b)(1)(C) and Federal Rule of Evidence 702. For the reasons stated herein, the motion is granted in part and denied in part without prejudice. Signed by the Honorable Sharon Johnson Coleman on 11/8/2018. Mailed notice. (ym, ) (Entered: 11/08/2018)
292 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: The parties, having been given the opportunity to set an additional pretrial conference date in light of the issues being raised in close proximity to the trial date, have confirmed that they do not believe that an additional hearing date is necessary. Accordingly, no hearing in this matter will be held on 11/9/2018. In light of the availability of the government's witness, the Daubert hearing set for 11/13/2018 is stricken and reset for 11/14/2018 at 1:30 PM. The pretrial conference set for 11/14/2018 is stricken and reset for 11/13/2018 at 1:00 PM. Mailed notice. (ym, ) (Entered: 11/08/2018)
293 RESPONSE by Adel Daoud regarding MOTION by USA in limine as to Adel Daoud Supplemental 284 (Herman, Joshua) (Entered: 11/11/2018)
294 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Pretrial conference held on 11/13/2018 and continued to 11/16/2018 at 2:30 PM. Any motions argued during conference are taken under advisement. By agreement of the parties, the Daubert hearing set for 11/14/2018 is stricken. The defendant withdraws his request for a Daubert hearing as to Dr. Michael Levitt. In light of the trial date, any further motions by the parties are to be filed by 11/14/2018 at 6:00 PM. Any responses are due by 11/15/2018 at 12:00 PM. Mailed notice. (ym, ) (Entered: 11/13/2018)
295 MOTION by Adel Daoud Defendants Motion for Leave to Enter Guilty Pleas Pursuant to North Carolina v. Alford Following the Courts Order Reassigning Case No. 15 CR 487 as Related and Request for Same (Herman, Joshua) (Entered: 11/14/2018)
296 MINUTE entry before the Honorable Sharon Johnson Coleman: The hearing set for 11/16/2018 is reset from 2:30 PM to 1:30 PM. Mailed notice (air, ) (Entered: 11/14/2018)
297 MEMORANDUM by USA in Opposition to MOTION by Adel Daoud Defendants Motion for Leave to Enter Guilty Pleas Pursuant to North Carolina v. Alford Following the Courts Order Reassigning Case No. 15 CR 487 as Related and Request for Same 295 GOVERNMENTS MEMORANDUM IN OPPOSITION TO CASE CONSOLIDATION AND ACCEPTANCE OF ALFORD PLEA (Haxall, Bolling) (Entered: 11/15/2018)
298 REPLY by Adel Daoud to memorandum in opposition, 297 (Herman, Joshua) (Entered: 11/15/2018)
299 ORDER as to Adel Daoud: The defendant's request to reassign 15−CR−487 pursuant to Local Criminal Rule 50.1 is stricken as moot in light of the Executive Committee's prior decision to reassign that case on the basis of judicial expediency by agreement of the assigned judges. The defendant's motion for leave to enter guilty pleas pursuant to North Carolina v. Alford 295 is granted. Signed by the Honorable Sharon Johnson Coleman on 11/16/2018. Mailed notice. (ym, ) (Entered: 11/16/2018)
300 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Pretrial conference held on 11/16/2018. Trial set for 11/26/2018 is stricken. Change of Plea Hearing set for 11/16/2018 at 1:30 PM. A courtesy copy of the factual basis to be submitted by 11/26/2018 in the morning. Mailed notice. (ym, ) (Entered: 11/19/2018)
301 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Minute entry 300 is corrected as follows, the Change of plea hearing is set for 11/26/2018 at 1:30 PM. Mailed notice. (ym, ) (Entered: 11/20/2018)
302 Government's Factual Basis by USA as to Adel Daoud Governments Factual Basis for Defendants Plea of Guilty Pursuant to North Carolina v. Alford (Haxall, Bolling) (Entered: 11/20/2018)
303 ORDER as to Adel Daoud: Change of plea hearing held. As previously set forth, the defendant sought to withdraw his not guilty plea in cases 12−cr−723, 13−cr−703, and 15−cr−487, and to enter a plea of guilty while maintaining his innocence pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 27 of 31

01/25/2019 01/25/2019 01/28/2019 01/29/2019

Court, having conducted a lengthy colloquy informing the defendant of his rights, and confident in both the defendant's competence to enter a plea and his demonstrated understanding of the nature of the plea he seeks to enter, concludes that there is an adequate factual basis for the defendant's plea and that the interests of justice compel this Court to accept it. A judgment of guilty is accordingly entered against the defendant pursuant to Alford. Cases 12−cr−723, 13−cr−703, and 15−cr−487 are referred to the Probation Office for a presentence investigation report.The sentencing in this matter is set for 4/29/2019 at 10:30 A.M. The parties' sentencing memoranda and objections to the presentence investigation are to be filed by 4/8/2019. Any responses are due by 4/12/2019. A status hearing is set for 1/30/2019 at 11:00 A.M to inform the Court and counsel of the expected witnesses and evidence other than the PSI. If requested, both sides are granted access to the sentencing recommendations which will not be released to the public. The Court recommends that the Defendant remain at the Metropolitan Correctional Center in Chicago in light of the work to be done in advance of the sentencing. The Court further requests that the defendant be granted a visit with his family in advance of the next status date. Signed by the Honorable Sharon Johnson Coleman on 11/26/2018. Mailed notice. (ym, ) (Entered: 11/26/2018)
304 MOTION to withdraw as attorney as to Adel Daoud Robin Waters (Waters, Robin) (Entered: 01/25/2019)
305 NOTICE of Motion by Robin Valentina Waters for presentment of motion to withdraw as attorney 304 before Honorable Sharon Johnson Coleman on 1/30/2019 at 09:45 AM. (Waters, Robin) (Entered: 01/25/2019)
306 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Due to the inclement weather, the status hearing set for 1/30/2019 is stricken and reset to 2/5/2019 at 2:00 PM. Mailed notice. (ym, ) (Entered: 01/28/2019)
307 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 11/26/18, before the Honorable Sharon Johnson Coleman. GUILTY PLEA. Order Number: 32966. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

01/29/2019 02/05/2019
03/08/2019 03/19/2019

Redaction Request due 2/19/2019. Redacted Transcript Deadline set for 3/1/2019. Release of Transcript Restriction set for 4/29/2019. (Mccullough, Tracey) (Entered: 01/29/2019)
308 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Attorney Robin V. Waters' motion for leave to withdraw as counsel 304 is granted. Attorney Robin Valentina Waters terminated. No appearance necessary on 1/30/2019. Mailed notice. (ym, ) (Entered: 01/29/2019)
309 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 2/5/2019 regarding the sentencing hearing that is set for the week of April 29, 2019. Counsel are to meet and discuss their anticipated witnesses and the manner of their testimony prior to the next status hearing. The previously entered briefing schedule is to stand. Status hearing set for 3/26/2019 at 1:30 PM. Mailed notice. (ym, ) (Entered: 02/05/2019)
310 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing set for 3/26/2019 is stricken and reset to 4/3/2019 at 1:30 PM. Mailed notice. (ym, ) (Entered: 03/08/2019)
311 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing is set for 3/21/2019 at 1:30 PM. Mailed notice. (ym, ) (Entered: 03/19/2019)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 28 of 31

03/21/2019
03/22/2019 03/25/2019 03/25/2019
04/01/2019 04/03/2019
04/05/2019 04/10/2019
04/11/2019 04/12/2019 04/19/2019 04/24/2019

312 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 3/21/2019. Government has provided additional material to defendant. Counsel for defendant intends to file a motion regarding the new material, which is to be filed by 4/5/2019. Government's response to be filed by 4/19/2019. Reply to be filed by 4/26/2019. Status hearing set for 4/3/2019 is stricken and reset to 4/29/2019 at 10:30 AM. Defendant ordered to appear and be transported by U.S. Marshals Service. Mailed notice. (ym, ) (Entered: 03/21/2019)
313 PRESENTENCE Investigation Report as to Adel Daoud (SEALED) (Dawson, Sabrina) (Entered: 03/22/2019)
315 NOTICE of Attorney Withdrawal by USA as to Adel Daoud (Haxall, Bolling) (Entered: 03/25/2019)
316 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Emergency status hearing held on 3/25/2019 per Court order to schedule sentencing. Defendant's presence is waived. By agreement of the parties, the previously stricken sentencing set for 4/29/2019 is reset to 4/30/2019 at 10:00AM. Status hearing set for 4/3/2019 at 1:30 PM to stand. Defendant ordered to appear and be transported by U.S. Marshals Service: Sentencing set for 4/30/2019 at 10:00 AM. Status hearing set for 4/3/2019 at 1:30 PM. Mailed notice. (ym, ) (Entered: 03/25/2019)
317 NOTICE by Joshua G. Herman of Change of Address (Herman, Joshua) (Entered: 04/01/2019)
318 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 4/3/2019 in case number 12−cr−723. A status hearing in case number 13−cr−703 is set for 4/10/2019 at 3:00 PM. The defendant is to file his anticipated motion in connection with that case by 4/5/2019. The government's response is due by 4/9/2019. The previously set sentencing dates stand. Mailed notice. (ym, ) (Entered: 04/03/2019)
319 SEALED MOTION by Adel Daoud (Attachments: # 1 Exhibit A)(Herman, Joshua) (Entered: 04/05/2019)
320 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 4/10/2019. The defendant's motion 319 is taken under advisement consistent with the Court's rulings from the bench. The parties are to submit the referenced documents for in camera review by 4/12/2019. The Court clarifies that the sentencing in cases 12−cr−723, 13−cr−703, and 15−cr−487 will begin 4/29/2019 at 10:00 AM. The parties' sentencing memoranda are due by 4/26/2019 at 12:00 PM. Status hearing set for 4/12/2019 at 3:00 PM to address the issues raised regarding the defendant's confinement at the MCC. If those issues are satisfactorily resolved in advance of the hearing, the parties may contact the Courtroom Deputy to have that status date stricken. Mailed notice. (ym, ) (Entered: 04/10/2019)
321 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing set for 4/12/2019 is stricken. Mailed notice. (ym, ) (Entered: 04/11/2019)
322 SEALED Document (Attachments: # 1 Exhibit B−1, # 2 Exhibit B−2, # 3 Exhibit B−3, # 4 Exhibit B−4)(Herman, Joshua) (Entered: 04/12/2019)
323 PRESENTENCE Investigation Report (Supplemental) as to Adel Daoud (SEALED) (Dawson, Sabrina) (Entered: 04/19/2019)
324 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: After careful consideration of the materials submitted for in−camera review, the Court concludes that they do not warrant the expansive discovery that the defendant now seeks and that they were previously known, at least in part, to the defendant. See U.S. v. LeRoy, 687 F.2d 610, 618 (2nd Cir. 1982). The Court further notes that the materiality of the evidence in question is doubtful in light of the defendant's stated intention to proceed with sentencing notwithstanding the Court's ruling. The Court does not preclude the defendant from attempting to present portions of the in−camera evidence, or related evidence, to the extent that such evidence is material to the Court's determination at sentencing. Mailed notice. (ym, ) (Entered: 04/24/2019)

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 29 of 31

04/24/2019 04/26/2019 04/26/2019 04/26/2019 04/26/2019 04/29/2019
04/30/2019
05/01/2019
05/03/2019 05/03/2019 05/06/2019 05/20/2019
05/20/2019 05/21/2019 05/21/2019 06/10/2019

325 PRESENTENCE Investigation Report (Supplemental) as to Adel Daoud (SEALED) (Mosley, Crystal) (Entered: 04/24/2019)
326 PRESENTENCE Investigation Report (Supplemental) as to Adel Daoud (SEALED) (Mosley, Crystal) (Entered: 04/26/2019)
327 SENTENCING MEMORANDUM as to Adel Daoud (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Herman, Joshua) (Entered: 04/26/2019)
328 SEALED Document (Herman, Joshua) (Entered: 04/26/2019)
329 SENTENCING MEMORANDUM as to Adel Daoud (Attachments: # 1 Exhibit)(Jonas, Barry) (Entered: 04/26/2019)
330 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Sentencing held on 4/29/2019 and continued to 4/30/2019 at 9:45 AM. Defendant ordered to appear and be transported by U.S. Marshals Service. Mailed notice. (ym, ) (Entered: 04/29/2019)
331 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Sentencing hearing held on 4/30/2019 and continued to 5/1/2019 at 9:30 AM. Defendant ordered to appear and be transported by U.S. Marshals Service. Mailed notice. (ym, ) (Entered: 04/30/2019)
332 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Sentencing hearing held on 5/1/2019 and continued to 5/6/2019 at 2:00 PM for the court's ruling. Defendant ordered to appear and be transported by U.S. Marshals Service. Mailed notice. (ym, ) (Entered: 05/01/2019)
333 Supplemental Case Authority Regarding Unwarranted Sentencing Disparity by Adel Daoud (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2)(Durkin, Thomas) (Entered: 05/03/2019)
334 RESPONSE by USA to miscellaneous other 333 (Jonas, Barry) (Entered: 05/03/2019)
335 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Sentencing hearing held on 5/6/2019. Judgment order to follow. Mailed notice. (ym, ) (Entered: 05/06/2019)
336 JUDGMENT (Sentencing Order) as to Adel Daoud (1), Count(s) 1, The Defendant pleaded guilty to count(s) 1 (one) and 2 (two) of the Indictment. The Defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 192 months as to count 1 and 192 months as to count 2 of the Indictment. Terms to run concurrent to each other and concurrent to the terms imposed in case 13cr703−1 and 15cr487−1. Criminal Monetary Penalties. Schedule of Payments. Mailed certified copy to defendant Adel Daoud's counsel of record Thomas Anthony Durkin and Joshua G. Herman. (Terminated defendant Adel Daoud). Signed by the Honorable Sharon Johnson Coleman on 5/20/2019.Mailed notice (jh, ) (Entered: 05/21/2019)
337 STATEMENT of Reasons as to Adel Daoud. (SEALED) Mailed certified copy to defendant Adel Daoud's counsel of record Thomas Anthony Durkin and Joshua G. Herman. (jh, ) (Entered: 05/21/2019)
JUDGMENT and Commitment as to Adel Daoud issued to U.S. Marshal via e−mail in PDF format. (jh, ) (Entered: 05/21/2019)
FORWARDED certified copy of Judgment (Sentencing Order) with Statement of Reasons to the Docketing Department of the U.S. Attorney's Office and the U.S. District Court's Fiscal Department as to Adel Daoud. (jh, ) (Entered: 05/21/2019)
338 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 4/29/19, before the Honorable Sharon Johnson Coleman. SENTENCING HEARING − AM SESSION − VOLUME 1. Order Number: 34657. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 30 of 31

Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

06/10/2019

Redaction Request due 7/1/2019. Redacted Transcript Deadline set for 7/11/2019. Release of Transcript Restriction set for 9/9/2019. (Mccullough, Tracey) (Entered: 06/10/2019)
339 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 4/29/19, before the Honorable Sharon Johnson Coleman. SENTENCING HEARING − AM SESSION − VOLUME 1. Order Number: 34657. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

06/10/2019

Redaction Request due 7/1/2019. Redacted Transcript Deadline set for 7/11/2019. Release of Transcript Restriction set for 9/9/2019. (Mccullough, Tracey) (Entered: 06/10/2019)
340 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 4/30/19, before the Honorable Sharon Johnson Coleman. SENTENCING HEARING − VOLUME 2. Order Number: 34657. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

06/10/2019

Redaction Request due 7/1/2019. Redacted Transcript Deadline set for 7/11/2019. Release of Transcript Restriction set for 9/9/2019. (Mccullough, Tracey) (Entered: 06/10/2019)
341 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 5/1/19, before the Honorable Sharon Johnson Coleman. SENTENCING HEARING − VOLUME 3. Order Number: 34657. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

06/10/2019

Redaction Request due 7/1/2019. Redacted Transcript Deadline set for 7/11/2019. Release of Transcript Restriction set for 9/9/2019. (Mccullough, Tracey) (Entered: 06/10/2019)
342 TRANSCRIPT OF PROCEEDINGS as to Adel Daoud held on 5/6/19, before the Honorable Sharon Johnson Coleman. SENTENCING HEARING − VOLUME 4. Order Number: 34657. Court Reporter Contact Information: TRACEY D. McCULLOUGH, 312−435−5570, tracey_mccullough@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see

Case: 1:12-cr-723 As of: 06/16/2020 11:39 AM CDT 31 of 31

the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

06/19/2019 06/19/2019 06/20/2019 06/20/2019 06/21/2019 07/12/2019 08/07/2019
01/07/2020 01/07/2020 01/13/2020
01/21/2020 01/23/2020 01/23/2020 06/03/2020 06/03/2020

Redaction Request due 7/1/2019. Redacted Transcript Deadline set for 7/11/2019. Release of Transcript Restriction set for 9/9/2019. (Mccullough, Tracey) (Entered: 06/10/2019)
343 NOTICE OF APPEAL by USA as to Adel Daoud regarding judgment,,, terminated defendant,,, set/clear flags,, 336 Receipt number: y (Ardam, Tiffany) (Entered: 06/19/2019)
344 DOCKETING statement by USA as to Adel Daoud regarding notice of appeal 343 (Ardam, Tiffany) (Entered: 06/19/2019)
345 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 343 . (smm, ) (Entered: 06/20/2019)
346 Transmission of short record as to Adel Daoud to US Court of Appeals re notice of appeal 343 . (smm, ) (Entered: 06/20/2019)
347 NOTICE of docketing record on appeal from USCA as to Adel Daoud re notice of appeal 343 . USCA Case Number 19−2186. (ph, ) (Entered: 06/21/2019)
348 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing set for 8/7/2019 at 10:00 AM. Mailed notice. (ym, ) (Entered: 07/12/2019)
349 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Status hearing held on 8/7/2019. Mr. Daoud appeared by phone. The Court discussed with the parties Mr. Daoud's designation to US Penitentiary McCreary in McCreary County, Kentucky. The Court stated for the record that the designation decision is within the purview of the BOP, although the Court and defense counsel expressed concern regarding the mental health services available at and the visitation circumstances at McCreary. The Court appreciates that the BOP MCC made a representative available for the status hearing on short notice. Status hearing set for 4/16/2025 at 10:00 AM to discuss Mr. Daoud's transition, if appropriate. The Court requests that a written report or assessment from any psychological professionals be submitted to the Court prior to the status. Please see transcript for additional details. Mailed notice. (ym, ) (Entered: 08/07/2019)
350 MOTION by USA to supplement as to Adel Daoud original electronic record on appeal (unopposed) (Alexakis, Georgia) (Entered: 01/07/2020)
351 NOTICE of Motion by Georgia N. Alexakis for presentment of motion to supplement 350 before Honorable Sharon Johnson Coleman on 1/16/2020 at 01:30 PM. (Alexakis, Georgia) (Entered: 01/07/2020)
352 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Government's unopposed motion to supplement original electronic record on appeal 350 is granted. No appearance necessary on 1/16/2020. Mailed notice. (ym, ) (Entered: 01/13/2020)
353 DOCUMENT NOT IMAGED by USA as to Adel Daoud, Letter attached. (ph, ) (Entered: 01/23/2020)
354 TRANSMITTED supplemental record on appeal as to Adel Daoud regarding notice of appeal 343 . (ph, ) (Entered: 01/23/2020)
355 USCA RECEIVED on 1/23/2020 the supplemental record on appeal record regarding notice of appeal 343 as to Adel Daoud. (ph, ) (Entered: 01/23/2020)
356 MOTION by Adel Daoud to supplement original record on appeal (unopposed) (Herman, Joshua) (Entered: 06/03/2020)
357 MINUTE entry before the Honorable Sharon Johnson Coleman as to Adel Daoud: Defendant's unopposed motion to supplement original record on appeal 356 is granted. Mailed notice. (ym, ) (Entered: 06/03/2020)

 
 CISO ~~~~~=====--+Date _J...J...!.-l--4-!.;+.------
.
fj REDACTED I Ct.EARED FOR PUBLIC R.El.EASE nll.i

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3l!nit2h $tah~s OJnurt of App2crls
JJrur the ~cvcnth aiircuit

No. 14-1 284
UNITED STATES OF AMERICA,
v.
ADEL DAOUD,

Plaintiff Appellant, Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 12 CR 723 - Sharon Johnson Coleman, fudge.
ARGUED JUN E 4 & JUNE 9, 2014 - DECIDED JUNE 16, 2014 SurrLEMENTAL CLASSIFIED OPINION DECIDED JULy ~ 2014

Before POSNER, KANN E, and ROVN ER, Circuit Judges.
POSNER, Circuit judge. I n our June 16 opinion reversing the district judge's order to disclose classified materials to defense counsel, we also held that the government's investigation of the defendant did not violate the Foreign Intelligence Surveillance Act (FISA), SO U.S.C. §§ 1801 et seq. We promised to "issue a classified opinion explaining (as we are

2

No. 14-1284

forbidden to do in a public document) these conclusions, and why therefore a remand to the district court is neither necessary nor appropriate." This is that opinion.
I The FBI's investigation of the defendant was triggered

No. 14-1284

3

the FBI's Chicago office immediately began investigating the

defendant. Yahoo responded to a grand jury subpoena .

-

confirming that the account

belonged

to a "Mr. Adel Daoud."

.. .~

'.. ~
l.,; I I"• ' :

A few days later, an "online covert employee" of the FBI

exchanged emails with

and thereby

obtained his IP address; on -

Comcast, responding to

a grand-jury subpoena, confirmed that the IP address was

associated with a residential account at 2317 Westwood

Drive, Hillside, Illinois-the defendant's address, according

to the Illinois Secretary of State Division of Motor Vehicles

database.

4

No. 14-1284

No. 14-1284

5

The defendant argues that the evidence against him was "obtained or derived from electronic surveillance" that "was not lawfully authorized or conducted," 50 U.S.C. § 1806(g), and should therefore be suppressed. Lacking access to the warran t applications, he presents several conjectures about the warrants' possible illegality. We can res trict our analysis to the first FISA application,

6

."..,.;

.

,.

371 U.S. 471 (1963).

No. 14-1284 Cf. Wong Sun v. United States,

The FISA applications are free of any procedural defects. The applications were "made by a federal officer and approved by the Attorney General," 50 U.S.C. § 180S(a)(1), each of them listing the name and background of the special agent submitting the application and each of them containing the signatures of the FBI Director or Deputy Director and the Assistant Attorney General for National Security. The government also proposed and followed the required "minimization procedures" to ensure that no more information than necessary was colJected from the target of the electronic surveillance and that the information once obtained would not be shared with anyone lacking a "need to know" it. SO U.S.C. § 1805{a)(3); see also § 1801{h). The Foreign Intelligence Surveillance Court has already approved standing minimization procedures that are incorporated into each surveillance application.

And finally each of the applications ''contains all statements and certifications required by section 1804." § 180S(a){4); see also§ 1804{a)(l)-(9) ..
Like any search warrant, a FISA application must be supported by probable cause. But FISA doesn't require the government to show probable cause to believe that the target of the proposed surveillance may be engaged in criminal activity; rather, it requires only probable cause to believe that the target is an "agent of a foreign power." 50 U.S.C.

No. 14-1284

7

§§ 1801(b), 1805(a)(2). The term is somewhat misleading; an "agent of a foreign power" needn't be a KGB spy. Rather, anyone-even if a United States citizen-who "knowingly engages in ... international terrorism, or in activities that are in preparation therefor, for or on behalf of" a ''group engaged in international terrorism" qualifies. 50 U .S.C. §§ 180l(a)(4), (b)(2)(C); e.g., United States v. Aldawsari, 740 F.3d 1015, 1018--19 (5th Cir. 201 4) . And anyone who knowingly aids, abets, or conspires with an agent in furtherance of such activities is also deemed an agent of a foreign power. 50 U.S.C. § 1801(b)(2)(E).
The FISA applications contain ample evidence to support a finding of probable cause.

It would have been irresponsible of the FBI not to have launched its investigation of the defendant
The defendant suggests that the applications may contain intentional or reckless material falsehoods, see Franks v. Delaware, 438 U.S. 154 (1978), in violation of the Fourth Amendment. Franks however made clear that "the deliberate falsity or reckless disregard {for the truth] whose i~peach­ ment is permitted today is only that of the affiant, not of any

8

No. 14-1284

nongovernmental informant." Id. at 171. So even if the de-

fendant is right to say that the -

intelligence that trig-

gered the FBI's investigation may be based on "multiple-

level hearsay, rumor, surmise, and speculation," all that mat-

te rs is whether it was unreasonable-in fact reckless-for the

affiant to rely on it. It wasn't.

. -~

--

'Iit3•;;1, - '.,,

'

"11'1"·"
~~:c ~-··"

Next, the defendant suggests that the primary purpose of the surveillance may have been to obtain evidence of domestic criminal activity, which is not authorized by FISA. See United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982). The

• ..... <

•••

i;. _,_

•

tion.

disposes of this possible objec-

Finally the defendant suggests that in the spring of 2012 he had been conducting online research for a term paper on Osama bin Laden, and that this online research-which is protected by the First Amendment-may have triggered the government's investigation. If that's the case, then the electronic surveillance wouldn' t have been authorized, because "no United States person [such as the defendant] may be

No. 14-1284

9

consid ered ... an agent of a foreign power solely upon the basis of activities protected by the first amendment." SO U.S.C. § 1805(a)(2)(A). (Relatedly. the defendant suggests that the surveillance may be illegal for the additional reason that it would have taken place before the defendant had turned 18. This is a non sequitur; there's no age restriction in FISA.

~ .......

r'

••

•• The defendant suggests that at least some of the evidence against him may have been obtained as a result of surveil· lance conducted pursuant to the FISA Amendments Act of 2008 (FAA), Pub. L. 110-261, 122 Stat. 2436 (2008), and if so he's entitled to be notified of that fact. Unlike a traditional FIS A application for electronic surveillance, an application under the FAA "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," as long as the surveillance targets "non·U.S. persons located abroad.'' Clapper v. Amnesty International USA, 133 S. Ct. 1138, 1144 (2013). The FAA also "eliminated the requirement that the Government describe to the court each specific tar~ get and identify each facility at which its surveillance would be d irected, thus permitting surveillance on a programmatic, not necessarily individualized, basis." id. at 1156 (dissenting

10

No. 14-1284

opinion); see a lso 50 U.S.C. § 1881a(g). In short, it's easier for the government to conduct lawful electronic surveillance under the FAA than under the traditional FISA provisions.
Since as we said the government has met FISA's tougher standard,

The defendant's challenge relies primarily on a December 27, 2012 Senate floor speech by Senator Feinstein, who sa id : "There have been 16 individuals arrest[ed] just this year alone. Let me quickly just review what these plots were. And some of them come right from this program [meaning, the FAA}. The counter-terrorism come[s] - and the· information came right from this program. And again, if members want to see that, they can go and look in a classified manner.... Fourth, a plot to bomb a downtown Chicago bar ... ." www.c-span.org/video/?c4467868 (emphasis added) (visited July 11, 2014).
The referenced ''plot" is obviously the defendant's, and because the Senator used the examples to support the reauthorization of the FAA, the defendant not unreasonably interpreted her remarks to mean that the FAA had been used

No. 14-1284

11

in his case. But an equally reasonable interpretation of the Senator's remarks is that she was merely saying that the defe ndant was one of the 16 individuals who had been arrested in 201 2, some of whom had been arrested on the basis of such in fo rmation. The Senate's Legal Counsel confirmed in a letter to defense counsel that "Senator Feinstein did not state, and did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including [the defendant's] case, in which terrorist plots had been stopped. ... Rather, her purpose in reviewing several recent terrorism arrests was to refute the 'view by some that this country no longer needs to fear attack.'"
We asked the government after the classified oral argumen t to tell us whether "any FAA information play[ed] any role, no matter how minimal, in the investigation of {the defenda nt] or the decision to pursue an investigation of [the defendant},

We close with a word on disclosure of the FISA material to defense counsel, which the Attorney General swore in an affidavit would "harm the national security of the United

12

No. 14-1284

Sta tes." As we pointed out in our June 16 opinion, counsel's obligation to zealously represent the defendant comes with a real risk of inadvertent or mistaken disclosure; the risk is particularly worrisome in a case involving sensitive information

......... '

the secrecy of which is unquestionably important to maintain.

No. 14-1284

13

To summarize, the FISA applications in this case are supported by probable cause to believe that the defendant was an "agent of a foreign power," as FISA defines that term, and the information collected from the resulting surveillance should therefore not be suppressed.