Case 1:12-cr-00033-JLK Document 1 Filed 01/19/12 USDC Colorado Page 1 of 18

AO 91 (Rev. 02/09) Criminal Complaint

UNITED STATES DISTRICT COURT
for the
District of Colorado

United States of America v.
Jamshid MUHTOROV, a/kJa Abumumin Turkistony
Defendant

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y : )
) Case No. j,Z-

O/(Jlj"' ~8S

)

)

CRIMINAL COMPLAINT

I, the complainant in this case, state that the following is true to the best of my knowledge and belief.

On or about the date of

03/22/2011

in the county of

Arapahoe

in the

----'-------

State and
------

District

of

___C_o_lo_ra_d_o_ _ , the defendant violated _ _~1~8_ _ _ U.S.C.§ _2_3_3_9_ 8 _ _ _ _ _ _ _ ___

, an offense described as follows:

See Attachment A attached hereto and herein incorporated by reference

This criminal complaint is based on these facts:
See Affidavit attached hereto and herein incorporated by reference
Iff' Continued on the attached sheet.

Sworn to before me and signed in my presence.

\'6\ Date:

\ \'~- 0.\ 'of:tO \~

~~\:) City and state:

Camp i ant's signature
~ ~::; -p!i!d an~ t It-t l
Printed name and title

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ATTACHMENT A Between and on or about March 8, 2011 through January 21,2012, inclusive, in the State and District of Colorado and elsewhere, the defendant, Jamshid MUHTOROV, a!k/a "Aburnurnin Turkistony", a!k/a "Abu Murnin", together with others both known and unknown, did knowingly provide and attempt to provide material support and resources, to wit: personnel (lor more individuals who may be or include oneself), to a foreign terrorist organization, specifically the Islamic Jihad Union ("IJU"), continuously designated since June 12,2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States. All in violation of Title 18, United States Code, Sections 2339B.

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AFFIDAVIT 1. I, Donald E. Hale, Special Agent (SA) assigned to the Federal Bureau of Investigation
(FBI), Department of Justice, being duly sworn, hereby state:
2. Your affiant is a Special Agent with the FBI, having been so for approximately 9 years. I have completed the FBI's Special Agent training course at Quantico, VA. Subsequently my duties have included assignments to investigate a variety of criminal violations to include federal terrorism offenses. Your affiant currently investigates violations of federal law associated with terrorism related offenses, including material support of foreign terrorist organizations, arson and explosives crimes, firearms offenses, and other associated violations. Your affiant is authorized to carry firearms, execute warrants, make arrests for offenses against the United States, and to perform other duties as authorized by law.
3. This affidavit is made in support of a criminal complaint against Jamshid MUHTOROV, aJk/a Abumumin Turkistony, aJk/a Abu Mumin, year of birth 1976, for a violation of Title 18, United States Code Section 2339B: Provision of Material Support to a Designa,ted Terrorist Organization, specifically provision and attempted provision of personnel to the Islamic Jihad Union ("IJU"). This affidavit is also in support of an application for the following search warrants: (1) for a residence located at 9901 E. Evans Avenue, Apt. 9D, Denver, Colorado; (2) for a Sony Vaio laptop computer; (3) for an Android Blackberry Cellular Phone; (4) for the horun30@gmail.com gmail account; and, (5) for the l11jal11s3476@gl11ail.com gmail account. The statements set forth in this
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affidavit are based upon my training and experience, consultation with other experienced investigators and agents, and investigative reports and other documents. This affidavit is intended to set forth probable cause in support of a criminal complaint and search warrants and does not purport to set forth all ofthe affiant's knowledge regarding the investigation.
BACKGROUND
4. The Islamic Jihad Union ("IJU", also known as al-Djihad al-Islami, Dzhamaat Modzhakhedov, and the Islamic Jihad Group of Uzbekistan) is an extremist organization that splintered from the Islamic Movement of Uzbekistan ("IMU") in the early 2000s. The IJU adheres to an anti-Western ideology, opposes secular rule in Uzbekistan, and seeks to replace the current regime with a government based on Islamic law.
5. The IJU first conducted attacks in April of 2004, targeting a popular bazaar and police at several roadway checkpoints. These attacks killed approximately 47 people, induding 33 terrorists, some suicide bombers. The IJU claimed responsibility for these attacks on multiple militant Islamic websites and denounced the leadership of Uzbekistan.
6. In July 2004 the IJU conducted simultaneous suicide bombings of the US and Israeli Embassies and the Uzbekistani Prosecutor General's Office in Tashkent, Uzbekistan. In claiming responsibility for these attacks, the IJU stated that their martyrdom operations would continue. The IJU also claimed the attacks were committed in support of their Palestinian, Iraqi and Afghan brothers in the global insurgency.
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7. In September 2007, German authorities arrested three DU operatives, disrupting a plot against unidentified US or Western facilities in Germany. The DU operatives had acquired about 700 kg of hydrogen peroxide and an explosives precursor, which was enough raw material to make the equivalent of about 1,200 pounds of TNT. The DU claimed responsibility for the foiled plot.
8. The DU has claimed responsibility for attacks targeting Coalition forces in Afghanistan in 2008, including a March 2008 suicide attack against a U.S. military post purportedly carried out by a German-born Turk.
9. In April 2009, Turkish authorities seized weapons and detained extremists with ties to the DU. The DU has also claimed responsibility for a May 2009 attack in Uzbekistan and numerous attacks in Afghanistan against Coalition forces. It is believed that members of both the DU and IMU have trained with and provided support to Al Qaida.
10. The website www.sodiqlar.comis an Uzbek language website that hosts operational claims and statements from the DU. The website administrator for www.sodiqlar.comis known by the alias "Abu Muhammad." Public reporting shows that www.sodiqlar.comis affiliated with the IJU and is suspected to be owned and operated by the DU.
11. The Islamic Jihad Union is a designated terrorist organization, designated by the Secretary of State, and continuously designated since June 12, 2005 (under the name Islamic Jihad Group). Notification of its designation appears at 70 F. Reg. 35332-01 3

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(June 17,2005), amended to include name "Islamic Jihad Union" on April 29, 2008, published in the 73 F. Reg 30443-01 (May 27,2008).
FACTS OF THE CASE
12. The FBI has been investigating Jamshid MUHTOROV based on his communications with www.sodiglar.col11 website administrator and Islamic Jihad Union ("IJU") facilitator "Muhammad." "Muhammad" is known as "Abu Muhammad." (Hereafter referred to as Muhammad in this "Facts ofthe Case" section) MUHTOROV communicated with Muhammad using at least two email addresses through the IJU-affiliated email address sodiqlar@gmail.com. MUHTOROV's two email addresses are horun30@gmail.com and mjams3476@gmaiLcom. Pursuant to court authorization, the FBI obtained the email communications for both of these accounts. Additionally, pursuant to court authorization, the FBI obtained communications originating from MUHTOROV's phone lines. FBI lawful search and surveillance has shown that the email address horun30@gmaiLcom is associated with and used by Jamshid Muhtorov. The FBI lawfully discovered that these email accounts are regularly accessed through a Sony Vaio laptop computer with a Toshiba hard drive, serial number 600YT5PKT. Additionally, through legally authorized methods, the FBI learned that the mobile phone used by MUHTOROV is an Android Blackberry with the telephone number (720) 775-8484.
13. On February 5,2011, using the new email addressofmjams3476@gmail.com. MUHTOROV emailed Muhammad. FBI lawful search and surveillance has shown that the email addressmjams3476@gmail.comis associated with and used by Jamshid Muhtorov.
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14. On March 8, 2011, MUHTOROV received a phone call from a known associate. MUHTOROV told the associate that the "wedding house" sends greetings. MUHTOROV then read the associate parts of a message from the 00, calling them "our guys over there." MUHTOROV told the associate that the DU said they need material support. MUHTOROV asked the associate if the associate remembered Juma Namangani (a founder of the IMU who was killed in 2001 in Afghanistan by a U.S. airstrike). The associate said he remembered Namangani very well. The associate then warned MUHTOROV to be careful talking about Namangani and other sensitive information while on the phone. The associate warned MUHTOROV about surveillance. Both MUHTOROV and the associate then cursed whoever might be listening in on their conversations and called upon Allah to punish those who do so.
15. On March 22-23,2011, MUHTOROV updated Muhammad by email on his efforts and intentions. MUHTOROV committed himself to Bay'ah - an allegiance to the DU. MUHTOROV told Muhammad the he [MUHTOROV] was "ready for any task, even with the risk of dying." [Muhammad later acknowledges that the Bay'ah has been passed on to the group leadership.]
16. On April 2, 2011, MUHTOROV emailed Muhammad and explained that an associate sent money for a ''wedding gift." Muhammad told MUHTOROV to wait, and promised to find out how the IJU wanted the money to be sent. MUHTOROV asked to be invited to the wedding, expressing his willingness to help with "the wedding" and to hear from the "master of ceremonies" about plans for "the wedding."
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17. Muhammad responded to MUHTOROV's email on April 4, 2011 explaining that the "master of ceremonies" was busy and unable to communicate with MUHTOROV directly. On May 4,2011, MUHTOROV wrote Muhammad saying that he was disappointed that he was not "invited to the wedding." MUHTOROV wrote to Muhammad that even though he [MUHTOROV] was not invited to "the wedding," he [MUHTOROV] will still travel to Istanbul before the "hot season," and that he [MUHTOROV] will bring a "wedding gift."
18. Based upon training and experience, your affiant knows that the term ''wedding'' is used as code for a terrorist event or attack. Further, your affiant knows that the practice of Bay' ah is an allegiance to a particular group or person in Islamic tradition.
19. MUHTOROV began searching online for flights from Denver to Istanbul, Turkey on
May 3,2011. Using a number of different web sites, MUHTOROV looked at a number
of one-way flights departing between June 15-17, 2011. However, he did not purchase a ticket. 20. During the months of June, July and August of 2011, MUHTOROV significantly increased the amount of hours he was working for the vehicle transport company, delivering vehicles to a number of far ranging locations including Vermont, lllinois, and Arizona.
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21. On July 8,2011, MUHTOROV told his wife Nargiza by phone that Arizona looks just like Jizzak, and that they should move there. MUHTOROV's wife laughed and said "Didn't you want to go to Turkey?"
22. On July 20,2011, MUHTOROV's wife Nargiza called MUHTOROV and explained that she had tickets for her and their children to fly to Bishkek, Kyrgyzstan. She explained that the flight was on July 25th at 3:20 from Denver-Chicago-Istanbul-Bishkek, and asked MUHTOROV ifhe would be home before they left. MUHTOROV told her that he might be home, and said "Why don't you buy one more ticket to Istanbul for me?" Nargiza told him that it was too late, they already purchased their tickets. She complained "I told you we're going to buy tickets, why didn't you tell me you want to fly out too, I would've planned accordingly." MUHTOROV insisted that it was still possible for her to get a ticket for him as well. Nargiza reminded MUHTOROV that she has no money. She also commented that MUHTOROV always changes his mind. Nargiza then searched the internet for another plane ticket on the same flight she had booked with the option to get off in Istanbul. She told MUHTOROV that there was one ticket for $988 but it was a different flight. MUHTOROV said he will not take a different flight.
23. On July 22,2011, MUHTOROV and his wife fight during a phone call. MUHTOROV tells Nargiza Muhtorov to "choose - me [MUHTOROV] or your mother." Nargiza retorts "How about you? Didn't you want to leave us for Turkey?"
24. In a phone conversation on July 25,2011, MUHTOROV told his young daughter that he would never see her again; but, if she was a good Muslim girl, he will see her in heaven.
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25. On August 1,2011, MUHTOROV told his father that he'll leave for his "studies" in September after his family returns.
26. MUHTOROV received an email from Muhammad on August 19,2011 telling MUHTOROV that it was good that MUHTOROV told Muhammad about a person named "Sahwii". Muhammad asked MUHTOROV let him know ifMUHTOROV had any more detailed information about "Sahwii." Muhammad also asked MUHTOROV to provide details about a person named "Talib". Muhammad told MUHTOROV that if "Talib" is bad mouthing Mujaheddin, they will have to find a way to frighten him. MUHTOROV responded by email on August 26, 2011 explaining that he hasn't seen "Talib" for a long time. MUHTOROV wrote that he scolded "Talib" really hard; and, that since then "Talib" had been keeping away. MUHTOROV also wrote that the clever answers posted on your site [sodiqlar] quieted him ["Talib"] down a lot.
27. On September 1, 2011 Muhammad sent MUHTOROV an email comparing "Sahviy" and "Talib" to viruses that erode the Islamic community from the inside while enemies attack from the outside. Muhammed continued, telling MUHTOROV that "to get rid of them, we need an antivirus." Muhammed explained that there "are two ways antivirus cleans files -- fixes or quarantines the corrupted files, or wipes the viruses out completely." Muhammed wrote that they will try to fix "Sahviy" and "Talib", otherwise they will do jihad against them as prescribed by Allah. Muhammad told MUHTOROV that Allah permits jihad against hypocrites and ignorant people the same way the jihad against the infidels is being done. On September 4, 2011 MUHTOROV replied to Muhammad that
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"As for the antivirus, we have the most powerful antivirus -- the book of Allah and teachings of our Prophet, Peace be upon Him."
28. On January 3,2012 MUHTOROV called his wife Nargiza and told her that he was leaving the United States for Istanbul, Turkey on January 15,2012. Subsequently, MUHTOROV has continued to have conversations with Nargiza planning his impending travel. On January 6,2012 MUHTOROV asked her to find his passport and other documents necessary for travel.
29. On or about January 7,2012, MUHTOROV told an associate he was leaving the United States on January 17, 2012. MUHTOROV informed the associate that his last day at the trucking job would be January 15, 2012 and that he would return home to Colorado on that day, find his passport and then return to Chicago and fly to Istanbul, Turkey on January 17,2012.
30. MUHOTORV resigned from his job driving trucks on or about January 1, 2012. He provided his employer with two weeks notice, indicating his last day on the job would be January 15,2012.
31. On January 3,2012 MUHTOROV used his phone to browse the internet for flights to Istanbul, Turkey. MUHTOROV, using the web site CheapTickets.com, focused on Turkish Airlines flight 6 leaving O'Hare Airport in Chicago, Illinois on January 18, 2012.
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32. On January 16, 2012, MUHTOROV went online and purchased a ticket through CheapTickets.com on LOT Polish Airlines from Chicago, Illinois to Istanbul, Turkey. This flight is scheduled to depart on January 21,2012 at 5:25 pm CST. The flight connects through Warsaw, Poland via Polish Airlines flight number 2, arriving in Istanbul, Turkey on Polish Airlines flight number 135.
SEARCHING COMPUTERS 33. As described above and in Attachment B for the search warrants, this affidavit is in
support of an application seeking permission to search and seize records, computers, and electronic storage media (including cellular phones or other personal media devices) that might be found at Jamshid MUHTOROV's residence, located at 9901 E. Evans Avenue, Apt. 9D, Denver, Colorado or within Jamshid MUHTOROV's possession. Some ofthese electronic records might take the form of files, documents, and other data that is usergenerated. Some of these electronic records, as explained below, might take a form that becomes meaningful only upon forensic analysis.
34. For example, based on knowledge, training, and experience, your affiant knows that a powered-on computer maintains volatile data. Volatile data can be defined as active information temporarily reflecting a computer's current state including registers, caches, physical and virtual memory, network connections, network shares, running processes, disks, floppy, tape and/or CD-ROM and printing activity. Collected volatile data may contain such information as opened files, connections to other computers, passwords used for encryption, the presence of anti-forensic tools, or the presence of programs loaded in
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memory that would otherwise go unnoticed. Volatile data and its corresponding evidentiary value is lost when a computer is powered-off and unplugged.
35. Based on knowledge, training, and experience, your affiant knows that computer files or remnants of such files can be recovered months or even years after they have been downloaded onto a storage medium, deleted, or viewed via the Internet. Electronic files downloaded to a storage medium can be stored for years at little or no cost. Even when files have been deleted, they can be recovered months or years later using forensic tools. This is so because when a person "deletes" a file on a computer, the data contained in the file does not actually disappear; rather, that data remains 011 the storage medium until it is overwritten by new data. Therefore, deleted files, or remnants of deleted files, may reside in free space or slack space-that is, in space on the storage medium that is not currently being used by an active file-for long periods oftime before they are overwritten. In addition, a computer's operating system may also keep a record of deleted data in a "swap" or "recovery" file.
36. Also, again based on training and experience, wholly apart from user-generated files, computer storage media-in particular, computers' internal hard drives-contain electronic evidence of how a computer has been used, what it has been used for, and who has used it. This evidence can take the form of operating system configurations, artifacts from operating system or application operation, file system data structures, and virtual memory "swap" or paging files. Computer users typically do not erase or delete this evidence, because special software is typically required for that task. However, it is technically possible to delete this information. Data on the storage medium not currently associated
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with any file can provide evidence of a file that was once on the storage medium but has since been deleted or edited, or of a deleted portion of a file (such as a paragraph that has been deleted from a word processing file). Web browsers, e-mail programs, and chat programs store configuration information on the storage medium that can reveal information such as online nicknames and passwords. Operating systems can record additional information, such as the attachment of peripherals, the attachment of USB flash storage devices or other external storage media, and the times the computer was in use. Computer file systems can record information about the dates files were created and the sequence in which they were created.
37. As further described in Attachment B for the search warrants, this application seeks permission to locate not only computer files that might serve as direct evidence ofthe crimes described on the warrant, but also for evidence that establishes how computers were used, the purpose of their use, who used them, and when.
38. Similarly, files that have been viewed via the Internet are sometimes automatically downloaded into a temporary Internet directory or "cache." The browser often maintains a fixed amount of hard drive space devoted to these files, and the files are only overwritten as they are replaced with more recently viewed Internet pages or if a user takes steps to delete them.
39. "User attribution" evidence can also be found on a computer and is analogous to the search for "indicia of occupancy" while executing a search warrant at a residence. For example, registry information, configuration files, user profiles, e-mail, e-mail address
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books, "chat," instant messaging logs, photographs, and correspondence (and the data associated with the foregoing, such as file creation and last accessed dates) may be evidence of who used or controlled the computer or storage medium at a relevant time.
40. Searching computers for the evidence described in the attachment may require a range of data analysis techniques. For example, information regarding user attribution or Internet
use is located in v.,a'rious operating system log files that are not easily located or reviewed.
Or, a person engaged in criminal activity will attempt to conceal evidence of the activity by "hiding" files or giving them deceptive names. As explained above, because the warrant calls for records of how a computer has been used, what it has been used for, and who has used it, it is exceedingly likely that it will be necessary to thoroughly search storage media to obtain evidence, including evidence that is not neatly organized into files or documents. Just as a ~earch of a premises for physical objects requires searching the entire premises for those objects that are described by a warrant, a search of this premises for the things described in this warrant will likely require a search among the data stored in storage media for the things (including electronic data) called for by this warrant. Additionally, it is possible that files have been deleted or edited, but that remnants of older versions are in unallocated space or slack space. This, too, makes it exceedingly likely that in this case it will be necessary to use more thorough techniques.
41. Based upon knowledge, training and experience, your affiant knows that a thorough search for information stored in storage media often requires agents to seize most or all storage media to be searched later in a controlled environment. This is often necessary to ensure the accuracy and completeness of data recorded on the storage media, and to
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prevent the loss of the data either from accidental or intentional destruction. Additionally, to properly examine the storage media in a controlled environment, it is often necessary that some computer equipment, peripherals, instructions, and software be seized and examined in the controlled environment. This is true because of the following:
a. The nature of evidence. As noted above, not all evidence takes the form of documents and files that can be easily viewed on site. Analyzing evidence of how a computer has been used, what it has been used for, and who has used it requires considerable time, and taking that much time on premises could be unreasonable.
b. The volume of evidence. Storage media can store the equivalent of millions of pages of information. Additionally, a suspect may try to conceal criminal evidence; he or she might store it in random order with deceptive file names. This may require searching authorities to peruse all the stored data to determine which particular files are evidence or instrumentalities of crime. This sorting process can take weeks or months, depending on the volume of data stored, and it would be impractical and invasive to attempt this kind of data search on-site.
c. Technical requirements. Computers can be configured in several different ways, featuring a variety of different operating systems, application software, and configurations. Therefore, searching them sometimes requires tools or knowledge that might not be present on the search site. The vast array of computer hardware
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and software available makes it difficult to know before a search what t()ols or knowledge will be required to analyze the system and its data on-site. However, taking the storage media off-site and reviewing it in a controlled environment will allow its examination with the proper tools and knowledge.
d. Variety of forms of electronic media. Records sought under this warrant could be stored in a variety of storage media formats that may require off-site reviewing with specialized forensic tools.
42. Based on training and experience, your affiant further states that if evidence located on a computer as described on Attachment B for the search warrants appears to relate to criminal acts other than those outlined in this affidavit, those items will not be further examined unless and until a search warrant is applied for and issued for evidence of any such separate criminal acts.
43. Based upon the foregoing, your affiant believes there is probable cause to arrest MUHTOROV for Provision of Material Support to a Designated Terrorist Organization, specifically provision and attempted provision of personnel to the Islamic Jihad Union ("IJU"), in violation of Title 18, United States Code, Section 2339B. Furthermore, there is probable cause to issue search warrants: (1) for a residence located at 9901 E. Evans Avenue, Apt. 9D, Denver, Colorado; (2) for a Sony Vaio laptop computer; (3) for an Android Blackberry Cellular Phone; (4) for the horun30@gmail.com gmail account; and, (5) for the mjams3476w 'gmail.com gmail account.
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I, Donald E. Hale, being duly sworn according to law, depose and say that the facts stated in the foregoing affidavit are true and correct to the best of my knowledge, information and belief.

Federal Bureau of Investigation, Joint Terrorism Task Force

o~ a Sworn to and subscribed before me this,_----I\.C...t.;._.U _d,ay

O!).t>.,

,2012.
------

UNITED STATES MAGISTRATE JUDGE UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

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 Case 1:12-cr-00033-JLK Document 24 Filed 02/15/12 USDC Colorado Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case No. 12-cr-00033-CMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JAMSHID MUHTOROV,
Defendant.
ORDER OF DETENTION
Michael E. Hegarty, United States Magistrate Judge.
This matter was before the Court for a detention hearing on February 14, 2012. Assistant United States Attorney Greg Holloway represented the government, and Brian Leedy and Warren Williamson represented the Defendant. The Defendant contested detention.
The Court has concluded, by a preponderance of the evidence, that no condition or combination of conditions of release will reasonably assure the appearance of the Defendant at future Court proceedings, and by clear and convincing evidence, that no condition or combination of conditions of release will reasonably assure the safety of the community, based on the attached findings.
IT IS HEREBY ORDERED that the Defendant is committed to the custody of the Attorney General or his designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; and
IT IS FURTHER ORDERED that the Defendant is to be afforded reasonable opportunity to consult confidentially with defense counsel; and
IT IS FURTHER ORDERED that upon order of this Court or on request of an attorney for the United States of America, the person in charge of the corrections facility shall deliver Defendant to the United States Marshal for the purpose of an appearance in connection with this proceeding.

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DATED and ENTERED this 15th day of February, 2012, in Denver, Colorado. BY THE COURT: S/Michael E. Hegarty Michael E. Hegarty United States Magistrate Judge

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United States v. Jamshid Muhtorov Case No. 12-cr-00033-CMA
FINDINGS OF FACT, CONCLUSIONS OF LAW, and REASONS FOR ORDER OF DETENTION
In order to sustain a motion for detention, the government must establish that (a) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the defendant’s presence for court proceedings; or (b) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the safety of any other person or the community.
If there is probable cause to believe that the defendant committed an offense which carries a maximum term of imprisonment of over 10 years and is an offense prescribed by the Controlled Substances Act, or if the defendant is charged with a crime of violence, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.
The Bail Reform Act, 18 U.S.C. § 3142(g), directs the court to consider the following factors in determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community:
(1) [t]he nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including –
(A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
The Court has taken judicial notice of the court’s file, the pretrial services report, and the evidence produced and comments of counsel at the hearing. Weighing the statutory factors set forth
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in the Bail Reform Act, I find the following:
The Indictment issued in this case charges Defendant with a violation of 18 U.S.C. § 2339B, Material Support of a Designated Foreign Terrorist Organization and Attempt to Do the Same. The parties dispute whether a rebuttable presumption of detention applies here. Under 18 U.S.C. § 3142(e)(3)(C),1 “it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if [the Court] finds that there is probable cause to believe that the person committed . . . an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed.” Subsection (g)(5)(B)(i) lists within the definition of “Federal crimes of terrorism” a violation of 18 U.S.C. § 2339B, the charge in this case. That charge carries with it a maximum prison term of 15 years. The plain language of the detention statutes requires a presumption of detention here.
Concerning another preliminary procedural issue, the Defendant requested that I suppress the information obtained by the Government pursuant to the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801-1811, 18211-1829. Such information was used both in the Affidavit in support of the original Complaint in this case, and at the detention hearing. Defendant made a timely motion to suppress. I agree FISA requires that, in the event a Defendant who is an aggrieved person files a motion to suppress FISA information which the Government intends to use in any “hearing, or other proceeding,” the Court must engage in certain procedures, which includes viewing the material in camera in order to determine whether the “surveillance of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. § 1806(f). In apparent contradiction to this statute, 18 U.S.C. § 3142(f) states that the rules of admissibility do not apply to the consideration of evidence for purposes of pretrial detention. In United States v. Hightower, 203 F.3d 836 (Table), 2000 WL 136813 (10th Cir. Feb. 7, 2000) (unpublished), the Tenth Circuit acknowledged that information suppressed by the district court was also used in that court to detain the defendant. The order of suppression was under review by the Tenth Circuit and, if affirmed, would likely have resulted in the release of the defendant. The Tenth Circuit was content to allow the defendant to remain in custody on the basis of evidence that had been ordered suppressed, relying on the provision in Section 3142(f). I believe adherence to Hightower permits reliance on the FISA material even if ultimately determined to be inadmissible. I found no contrary case law requiring a suppression hearing prior to the detention decision and find the Government’s argument on this issue the more persuasive position.
I note that in light of the Indictment in this case, probable cause exists to sustain the charges brought against Defendant.
1At the hearing counsel for the United States mistakenly referenced Section 3142(e)(3)(B), which would not lead to a rebuttable presumption since 18 U.S.C. § 2339B is not “an offense under” Section 2332b but, rather, a defined “Federal act of terrorism” listed in Section 2332b.
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I find by a preponderance of the evidence that Defendant represents a risk of nonappearance. Defendant’s status in the United States is that of a refugee from Uzbekistan. Defendant was apprehended attempting to board an airplane on a one-way ticket to Turkey. He had resigned his only gainful employment immediately prior to this trip. Before this flight, he had told his minor daughter that he may not see her again on earth but, if she is good, would see her in heaven. In addition, Defendant had an earlier argument with his wife,2 specifically arguing that she must choose him or choose her mother (at a time when Defendant’s wife was planning an extended visit overseas to her family). At that time his wife accused him of wanting to leave the family “for Turkey.” I also find relevant Defendant’s prior experience with the incarceration, in Uzbekistan, of his sister, which he has worked tirelessly to remedy and which appears to have some connection with (or perhaps is the genesis of ) the “material support to terrorist organization” allegations raised by the Government here. The prospect of Defendant’s potential incarceration in this case, coupled with his apparent political beliefs and the situation with his sister, give me grave concerns, beyond the typical case, that the Defendant would flee to avoid prosecution. It is also apparent that he has the wherewithal to travel internationally, albeit, in this situation, it would have to be without his passport which has been surrendered to the Clerk of the Court. Finally, and not insignificantly, Immigration and Customs Enforcement has issued a detainer for Defendant and could, theoretically, remove the Defendant prior to his prosecution under the current Indictment.
Moreover, I find by clear and convincing evidence that Defendant represents a risk to other persons or the community. The testimony in this case reasonably leads to the conclusion that the Defendant is willing to sacrifice his own life for his Bay’ah - his oath of allegiance to the Islamic Jihad Union (IJU). Defendant was apprehended on his way to Turkey. The Government alleges in paragraph 9 of the Affidavit of FBI Special Agent Donald Hale that in April 2009, Turkish authorities seized weapons and detained extremists associated with the IJU. Defendant was leaving behind his wife and children and taking with him over $2800.00 (having purchased an airline ticket that cost in excess of $1000.00) despite his statement to authorities, upon his arrest, that he could barely support his family. The Government also proffered a discussion Defendant had with a witness, who related that Defendant’s understanding of Islam is of the more radical version, supporting “jihad” or holy war, and that Defendant’s “teachers” in his faith are Anwar al-Awlaki and Osama bin Laden. I have a grave concern that, rather than go to jail in the United States, Defendant is at risk of choosing an alternative that would present a risk to other persons or the community.
As a result, after considering all of these factors, I conclude there is a preponderance of the evidence that no condition or combination of conditions for release will reasonably assure the Defendant’s appearance for court proceedings, and there is clear and convincing evidence that the Defendant is a threat to the community, especially in light of the presumption of detention in this
2There was some discussion about whether I would rely upon intercepted conversations between Defendant and his wife. Defense counsel ultimately determined that Defendant would not object to my use of such conversations, primarily in reliance upon conversations that supported Defendant’s theories of risk of flight and risk to the community.
3

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 Case 1:12-cr-00033-JLK Document 88 Filed 04/12/12 USDC Colorado Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland
Case No. 12-cr-00033-JLK UNITED STATES OF AMERICA, Plaintiff, v. BAKHTIYOR JUMAEV, Defendant. ______________________________________________________________________________
ORDER OF DETENTION ______________________________________________________________________________
THIS MATTER came before me for a detention hearing on April 12, 2012. I have reviewed the Pretrial Services report and heard the arguments of counsel.
I find that the evidence establishes that the defendant poses a risk of flight based on the following:
In order to sustain a motion for detention, the government must establish that there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably assure (a) the appearance of the defendant as required or (b) the safety of any other person or the community. 18 U.S.C. § 3142(b). The former element must be established by a preponderance of the evidence, and the latter requires proof by clear and convincing evidence.
The Bail Reform Act establishes the following factors to be considered in determining whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of the community:

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(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person including–
(A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug and alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
18 U.S.C. § 3142(g).
Weighing the factors set out in the Bail Reform Act, I find the following:
The defendant has been charged under 18 U.S.C. § 2339B with material support of a
designated foreign terrorist organization and conspiracy and attempt to do the same.
I find based on the defendant’s history and personal characteristics that no condition or
combination of conditions will reasonably assure the appearance of the defendant as required.
A detainer has been lodged against the defendant by the Bureau of Immigration and Customs
Enforcement, and the defendant did not contest detention.
After considering all appropriate factors, I conclude that the preponderance of the
evidence establishes that no condition or combination of conditions of release will reasonably
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assure the appearance of the defendant as required. IT IS ORDERED: 1. The defendant is committed to the custody of the Attorney General or his
designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;
2. The defendant is to be afforded a reasonable opportunity to consult confidentially with defense counsel; and
3. On order of this Court or on request of an attorney for the United States, the person in charge of the corrections facility shall deliver defendant to the United States Marshal for the purpose of an appearance in connection with this proceeding.
Dated April 12, 2012. BY THE COURT: s/ Boyd N. Boland United States Magistrate Judge
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 Case 1:12-cr-00033-JLK Document 520 Filed 01/29/14 USDC Colorado Page 1 of 69
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
CASE NO. 12-cr-00033-JLK-1 UNITED STATES OF AMERICA,
Plaintiff, v. 1. JAMSHID MUHTOROV,
Defendant. ________________________________________________________________________
DEFENDANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED OR DERIVED FROM SURVEILLANCE
UNDER THE FISA AMENDMENTS ACT AND MOTION FOR DISCOVERY
________________________________________________________________________ The defendant, Jamshid Muhtorov, through the undersigned, appointed counsel of
record, and the American Civil Liberties Union Foundation, and the American Civil Liberties Union Foundation of Colorado, moves to suppress all evidence obtained or derived from surveillance conducted pursuant to the FISA Amendments Act of 2008 (“FAA”).
Related to this, Mr. Muhtorov moves for discovery of evidence concerning the manner in which the FAA was used in the government’s investigation of him.
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INTRODUCTION Jamshid Muhtorov is charged with his codefendant, Bakhtiyor Jumaev, in an indictment alleging the two men conspired and attempted to provide material support to a group identified as a terrorist organization. Doc. 50.1 More than two years after his arrest, Mr. Muhtorov was notified that the government intends to “offer into evidence or otherwise use or disclose” in these proceedings “information obtained or derived” from surveillance conducted under the FAA. Doc. 457.2 That statute purports to allow the government to collect the international communications of U.S. citizens and residents en masse, without probable cause. Publicly available documents make clear that the government has implemented the statute’s authority broadly. Mr. Muhtorov now moves to suppress the fruits of the FAA surveillance on the grounds that the government’s monitoring of his communications under the statute violated the Fourth Amendment to the U.S. Constitution as well as Article III. See 50 U.S.C. § 1806(g) (providing for suppression of evidence where surveillance was “not lawfully authorized or conducted”); United States v. U.S. Dist. Court for the E. Dist. of Mich., 407 U.S. 297 (1972) (hereafter “Keith”) (warrantless surveillance conducted for domestic security purposes violates Fourth Amendment); Berger v. New York, 388 U.S.
1 “Doc.” refers to the Clerk’s Docket. 2 The codefendant, Mr. Jumaev, was not provided similar notice. The issue of whether he should have been, and his standing to raise the same challenges Mr. Muhtorov does here are before the Court. See Docs. 458, 470, 499, 518. Should Mr. Jumaev choose to do so, Mr. Muhtorov welcomes his adoption of the arguments advanced in this brief. See D.C.Colo.LCr 12.1 (b).
2

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41 (1967) (requiring suppression of evidence obtained in reliance on unconstitutional eavesdropping statute).
In addition, Mr. Muhtorov moves for discovery of material that would be helpful and material to his defense, that would permit him to better understand the role that the FAA played in the government’s investigation of him, and that would enable him to challenge the specific manner in which the FAA was used in his case. As explained below, Mr. Muhtorov is entitled to such discovery under both the Foreign Intelligence Surveillance Act (“FISA”) and the due process clause of the Fifth Amendment.
FACTUAL AND STATUTORY BACKGROUND A. Jamshid Muhtorov Jamshid Muhtorov was born in Jizzak, Uzbekistan, when the country was still under communist rule. He is the oldest of five children. His father, Asror Muhtorov, is a doctor, and his mother, Robiya Muhtorova, was a school teacher. Both still live in Uzbekistan. A few years after graduating from a technical university, Mr. Muhtorov was offered a position with the Ezgulik Human Rights Society, a human rights organization in Uzbekistan. In 2003, he became the head of the Jizzak branch. During his time with Ezgulik, Mr. Muhtorov worked closely with Human Rights Watch, foreign embassies, and NGOs, as a result of which he came under increasing scrutiny from the repressive regime of Islam Karimov, who has been in power since the breakup of the Soviet Union. This scrutiny intensified after the Andijon Massacre in May
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2005, and, in 2006, according to Human Rights Watch reports, led to Mr. Muhtorov being threatened and beaten unconscious. With the help of other activists, Mr. Muhtorov escaped from Uzbekistan just ahead of agents of the Karimov regime who were pursuing him. His wife and children followed him shortly afterward, joining him in Kyrgystan.
In February 2007, Mr. Muhtorov and his family were admitted to the United States as political refugees. He, his wife, Nargiza Muhtorova, and the couple’s two children settled in Colorado. (The couple’s third child was born after they arrived here.) Mr. Muhtorov has no criminal record and, before his arrest on the instant charges two years ago, had never been arrested—except by the Uzbek security police. Today, he is a legal permanent resident of the United States.3
After arriving in Denver, Mr. Muhtorov worked mainly as a truck driver, supporting his family, and repaying the loan made to him by Lutheran Immigration and Refugee Services that enabled him and his family to resettle here. He became active with a local mosque, and continued to follow political developments in Uzbekistan. Until his arrest in January of 2012, he felt free: free to practice his faith; free to engage in political discourse; free to express his own views without fear of arrest, physical assault or repression.
3 See 50 U.S.C. § 1801(I) (defining “United States person” as, among other things, “a citizen of the United States” or “an alien lawfully admitted for permanent residence”); id.§ 1881(a). This brief will, on occasion, refer to “Americans.” Where appropriate, this term is meant to include “United States persons.”
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B. The government’s belated notice of FAA surveillance This case involves numerous intrusive searches of Mr. Muhtorov’s computer, email accounts, private residence, and personal effects. At the outset of the prosecution, the government represented that it had conducted these searches based on “court authorization[s].” Aff. of Donald E. Hale, Special Agent, FBI ¶ 12 (attached to Crim. Compl., Doc. 1). On February 7, 2012, the government notified Mr. Muhtorov that it intended to “offer into evidence or otherwise use or disclose” in these proceedings information “information obtained and derived” from surveillance conducted under FISA, 50 U.S.C. §§ 1801–1811, 1821–1829. Doc. 12. That notice, however, made no mention of surveillance under the FAA. Mr. Muhtorov did not learn that the government had intercepted his communications under the FAA until October 25, 2013, twenty months after the government’s initial FISA notice. See Doc. 457. This was because, until recently, the government had a policy of concealing from criminal defendants any connection between the FAA and their prosecutions. This policy violated both the FAA itself, 50 U.S.C. §§ 1881e(a), 1806(c), and the due process rights of criminal defendants like Mr. Muhtorov. The government’s policy of withholding notice of FAA surveillance came to light only after the Supreme Court decided Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), last winter. In that case, the government argued that human rights groups and other organizations lacked standing to challenge the FAA’s constitutionality because they could not show a sufficient likelihood that their communications would be monitored
5

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under it. In making that argument, the government assured the Court that dismissing the case would not forever insulate the statute from judicial review. In particular, the government stated that it would notify criminal defendants against whom it intended to introduce evidence obtained or derived from FAA surveillance, and that lower courts would have an opportunity to adjudicate the statute’s constitutionality when defendants filed motions to suppress. See Br. of Petitioners 8, Amnesty, 133 S. Ct. 1138 (No. 111025) (citing 50 U.S.C. §§ 1881e(a), 1806(c)); see also Tr. of Oral Argument at 4:12–17, Amnesty, 133 S. Ct. 1138 (No. 11-1025). Relying on the government’s representation, Amnesty, 133 S. Ct. at 1154, a divided Court dismissed the case, id. at 1155.
Though the Solicitor General did not know it at the time, his representation to the Court in Amnesty was untrue. In the five years between the FAA’s enactment and the Court’s consideration of Amnesty, no criminal defendant had received notice of FAA surveillance. In fact, the Justice Department had a practice of concealing from criminal defendants the role that the FAA had played in the government’s investigation of them.4 The Solicitor General apparently learned of the Justice Department’s policy only because the Chair of the Senate Select Committee on Intelligence, Senator Dianne Feinstein, made public statements about the government’s use of evidence acquired under the FAA in certain criminal prosecutions, including this one. Those statements led some criminal
4 On November 21, 2013, three members of the Senate Select Committee on Intelligence wrote to the Solicitor General requesting a “formal notification to the Supreme Court of the government’s misrepresentations” in Amnesty. See Letter from Sen. Mark Udall, Sen. Ron Wyden & Sen. Martin Heinrich to Donald Verrilli, Solicitor General (Nov. 20, 2013), http://1.usa.gov/1knrIRv.
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defendants to seek clarification from the government. When he learned of the Justice Department’s policy, the Solicitor General reportedly concluded that the policy “could not be justified legally.” See Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. Times, Oct. 16, 2013, http://nyti.ms/1bAe7QZ. After extended debate within the executive branch, the Justice Department ultimately changed its policy and publicly affirmed its notice obligation. See, e.g., Devlin Barrett, U.S. Spy Program Lifts Veil in Court, Wall St. J., July 31, 2013, http://on.wsj.com/19nu8KC.
In October of last year, Mr. Muhtorov became the first person charged as a defendant in a criminal prosecution to receive notice of FAA surveillance. See Devlin Barrett, U.S. Tells Suspect for First Time It Used NSA Surveillance Program in Criminal Case, Wall St. J., Oct. 25, 2013, http://on.wsj.com/16Bv4av. The notice he received states, in relevant part, that the government:
hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. § 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose in proceedings in the above-captioned matter information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §1881a. Doc. 457. C. The Foreign Intelligence Surveillance Act In 1975, Congress established a committee, chaired by Senator Frank Church, to investigate allegations of “substantial wrongdoing” by the intelligence agencies in their conduct of surveillance. Final Report of the S. Select Comm. to Study Governmental
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Operations with Respect to Intelligence Activities (Book II), S. Rep. No. 94-755, at v (1976) (“Church Report”). The committee discovered that, over the course of four decades, the intelligence agencies had “violated specific statutory prohibitions,” “infringed the constitutional rights of American citizens,” and “intentionally disregarded” legal limitations on surveillance in the name of “national security.” Id. at 137. Of particular concern to the committee was that the agencies had “pursued a ‘vacuum cleaner’ approach to intelligence collection,” in some cases intercepting Americans’ communications under the pretext of targeting foreigners. Id. at 165. To ensure proper judicial involvement in the protection of Americans’ communications, the committee recommended that all surveillance of communications “to, from, or about an American without his consent” be subject to a judicial warrant procedure. Id. at 309.
In 1978, largely in response to the Church Report, Congress enacted FISA to regulate 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 orders in certain foreign intelligence investigations. See 50 U.S.C. § 1803(a). In its current form, FISA regulates, among other things, “electronic surveillance,” which is defined to include:
the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. 50 U.S.C. § 1801(f)(2).
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Before passage of the FAA in 2008, FISA generally foreclosed the government from engaging in “electronic surveillance” without first obtaining an individualized and particularized order from the FISC. To obtain a traditional FISA order, the government is required to submit an application that identifies or describes the target of the surveillance; explains the government’s basis for believing that “the target of the electronic surveillance is a foreign power or an agent of a foreign power;” explains the government’s basis for believing that “each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;” and describes the nature of the foreign intelligence information sought and the type of communications that will be subject to surveillance. Id. § 1804(a).
The FISC may issue a traditional FISA order only if it finds that, among other things, there is “probable cause to believe that the target of the electronic surveillance [was] a foreign power or an agent of a foreign power,” id. § 1805(a)(2)(A), and “each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power,” id. § 1805(a)(2)(B).
D. The warrantless wiretapping program On October 4, 2001, President George W. Bush secretly authorized the NSA to engage in warrantless electronic surveillance inside the United States.5 After The New
5 See Public Declaration of James R. Clapper, Director of National Intelligence (“DNI”) ¶ 6, Jewel v. NSA, No. 08-cv-04373 (N.D. Cal. Dec. 20, 2013), Doc. 168 (“Clapper Jewel Decl.”).
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York Times exposed the program and a federal district court ruled that the program was unconstitutional, ACLU v. NSA, 438 F. Supp. 2d 754 (E.D. Mich. 2006), the government stated that the program would not be reauthorized in its then-existing form. The government ultimately sought legislative amendments to FISA that granted authorities beyond what FISA had allowed for three decades.6
E. The FISA Amendments Act The legislative amendments sought by the Bush administration were embodied in the FAA, which was signed into law on July 10, 2008.7 The FAA substantially revised the FISA regime and authorized the acquisition without individualized suspicion of a wide swath of communications, including U.S. persons’ international communications, from internet and telecommunications providers inside the United States. Like surveillance under FISA, FAA surveillance takes place on U.S. soil. But the authority granted by the FAA is altogether different from, and far more sweeping than, the authority that the government has traditionally exercised under FISA. The FAA’s implications for U.S. persons’ constitutional rights are correspondingly far-reaching. Because Mr. Muhtorov contests the lawfulness of the government’s surveillance of him under the FAA, it is necessary to describe the statute in some detail.
6 See id.; see also Strengthening FISA: Does the Protect America Act Protect Americans’ Civil Liberties and Enhance Security?: Hearing Before the H. Comm. on the Judiciary, 110th Cong. (2007) (statement of J. Michael McConnell, DNI), http://1.usa.gov/1kb6c26.
7 On August 5, 2007, Congress passed a predecessor statute, the Protect America Act, Pub. L. No. 110-55, 121 Stat. 552 (2007), whose authorities expired in February 2008.
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The FAA allows the government to conduct dragnet surveillance of international communications entering or leaving the United States, including communications sent or received by U.S. persons. It does this by permitting the government to intercept communications when at least one party to a phone call or email is a foreigner located abroad. In particular, the FAA permits the Attorney General and DNI to “authorize jointly, for a period of up to 1 year . . . the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. §1881a(a).
No court ever approves the target of this surveillance. Rather, the FISC approves only the general procedures the government proposes to use in carrying out its surveillance and, on the basis of those procedures alone, the FISC issues a so-called “mass-acquisition order.” See id. § 1881a. Before obtaining such an order, the Attorney General and DNI must provide to the FISC a written certification attesting that the FISC has approved, or that the government has submitted to the FISC for approval, both “targeting procedures” and “minimization procedures.” Id. § 1881a(d)–(g). The targeting procedures must be “reasonably designed” to ensure the acquisition is “limited to targeting persons reasonably believed to be located outside the United States” and to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” Id. § 1881a(g)(2)(A)(I). The minimization procedures must meet the requirements of section 1801(h), 1821(4). Id. § 1881a(g)(2)(A)(ii).
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Finally, the certification and supporting affidavit must attest that the Attorney General has adopted “guidelines” to prevent the targeting of U.S. persons in certain contexts, id. § 1881a(b); that the targeting procedures, minimization procedures, and guidelines are consistent with the Fourth Amendment; and that “a significant purpose” of the acquisition is “to obtain foreign intelligence information.” Id. § 1881a(g)(2)(A)(iii)–(vii). The phrase “foreign intelligence information” is defined broadly to include, among other things, information concerning terrorism, national defense, and foreign affairs. Id. § 1801(e).
A crucial difference between the FAA and traditional FISA is that the FAA authorizes surveillance not predicated on probable cause or individualized suspicion. When the government makes an FAA application to the FISC, it simply asks the court to approve the overall targeting and minimization procedures that will guide the government’s surveillance for the following year. The government need not demonstrate to the FISC that its surveillance targets are agents of foreign powers, engaged in criminal activity, or connected even remotely with terrorism. Rather, the FAA permits the government to target any foreigner located outside the United States. See David S. Kris & J. Douglas Wilson, 1 National Security Investigations and Prosecutions § 17.3, 602 (2d ed. 2012) (“For non–U.S. person targets, there is no probable cause requirement; the only thing that matters is []the government’s reasonable belief about[] the target’s location.”).
As noted, the FAA does not require the government to identify its surveillance targets to the FISC at all, or even to identify the specific “facilities, places, premises, or
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property at which” its surveillance will be directed. 50 U.S.C. § 1881a(g)(4). This means that the government can “direct surveillance . . . at various facilities without obtaining a separate authorization for each one.” Kris & Wilson § 17.3, 602. The government may even direct its surveillance at “gateway” switches, through which flow the communications of millions of people, rather than at individual telephone lines or email addresses. Id. § 16.12, 577. The FISC reported that in 2011—the year in which much of the government’s surveillance of Mr. Muhtorov apparently took place—the NSA relied on the FAA to collect more than 250 million internet communications. See [Redacted], 2011 WL 10945618, at *10 (FISC Oct. 3, 2011).
By dispensing with FISA’s principal limitations, the FAA exposes every international communication—that is, every communication between an individual in the United States and a non-American abroad—to potential surveillance. Indeed, this was the statute’s purpose. In advocating changes to FISA, intelligence officials made clear that their aim was to enable broader surveillance of communications between individuals inside the United States and non-Americans abroad. See FISA for the 21st Century: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 9 (2006), http://1.usa.gov/1kbgHm3 (statement of NSA Director Michael Hayden) (“Hayden SJC Statement”) (stating, with respect to the FAA’s predecessor statute, that certain communications “with one end . . . in the United States” are the ones “that are most important to us”). As a result, the government can once again conduct the kind of vacuum-cleaner–style surveillance that the Church Committee found so troubling. And,
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as discussed further below, the NSA is using the statute to do precisely this. To the extent the statute attempts to provide safeguards for U.S. residents’
constitutional rights, the safeguards take the form of “minimization procedures,” which must be “reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.” 50 U.S.C. §§ 1801(h)(1), 1821(4)(A). The statute’s minimization requirement is supposed to protect against the collection, retention, and dissemination of communications that have been collected “incidentally” or “inadvertently.” However, the statute does not prescribe specific minimization procedures and it does not give the FISC the authority to monitor compliance with minimization procedures. Most significantly, it includes an exception that specifically allows the government to retain and disseminate communications—including those of U.S. persons—if the government concludes that they contain “foreign intelligence information,” a term that is (as noted above) defined very broadly. Id. § 1881a(e). In other words, the statute is designed to allow the government not just to collect but to retain U.S. persons’ international communications.
The FISC’s oversight role in authorizing and supervising FAA surveillance is “narrowly circumscribed.” In re Proceedings Required by § 702(I) of the FISA Amendments Act of 2008, No. Misc. 08-01, 2008 WL 9487946, at *2 (FISC Aug. 27, 2008) (quotation marks omitted). Unlike the judiciary’s traditional Fourth Amendment role—as a gatekeeper for particular acts of surveillance—the FISC simply approves vague parameters under which the government is free to conduct surveillance for up to
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one year. The FISC does not consider individualized and particularized surveillance
applications, does not make individualized probable cause determinations, and does not
supervise the implementation of the government’s targeting or minimization procedures.
The role that the FISC plays under the FAA bears no resemblance to the role that it
traditionally played under FISA.
F. The government’s implementation of the FISA Amendments Act
Nothing in the government’s implementation of the statute cures or even mitigates
the statute’s significant defects. To the contrary, publicly available versions of the
government’s targeting and minimization procedures only confirm that the rules that
supposedly protect privacy are weak and riddled with exceptions.8 Even when the
government abides by the rules, the government collects thousands, possibly millions, of
U.S. residents’ communications without probable cause or individualized suspicion.9 And
8 While the government has officially disclosed a version of the minimization procedures it uses to implement the FAA, see Minimization Procedures Used by National Security Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as Amended (Oct. 31, 2011), http://1.usa.gov/1e2JsAv (“2011 Minimization Procedures”), it has not officially disclosed its targeting procedures. It has, however, made several disclosures that reveal its targeting procedures in broad outlines. See generally [Redacted], 2011 WL 10945618. Moreover, in June 2013, The Guardian revealed a copy of the FAA targeting procedures approved by the FISC in 2009. See Procedures Used by the National Security Agency for Targeting Non–United States Persons Reasonably Believed to Be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, As Amended (July 28, 2009), https://s3.amazonaws.com/s3.documentcloud.org/documents/716633/exhibit-a.pdf (“2009 Targeting Procedures”).
9 See Barton Gellman & Laura Poitras, U.S., British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program, Wash. Post, June 7, 2013, http://wapo.st/1kdYqVb (“Even when the system works just as advertised, with no American
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recently released FISC opinions make clear that the government has violated the rules repeatedly, including in the period during which Mr. Muhtorov’s communications were obtained. See [Redacted], 2011 WL 10945618, at *2–*9.
Publicly available versions of the government’s targeting procedures underscore the scope of the surveillance carried out under the statute. As noted above, one of the statute’s principal purposes was to permit the government to conduct dragnet surveillance of U.S. persons’ international communications. The procedures give effect to that intent by permitting the government to collect U.S. persons’ international communications in the course of warrantless surveillance directed at targets outside the United States. See, e.g., 2009 Targeting Procedures 6 (discussing need to prevent acquisition only of communications “as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States”). Indeed, the procedures ensure that U.S. persons’ international communications will be collected in bulk. For example, while the procedures require the government to identify “targets” outside the country, once the targets have been identified, the procedures permit the NSA to sweep up not just any communications to and from those targets but any international communication about those targets. See 2009 Targeting Procedures 1 (discussing “those cases where NSA seeks to acquire communications about the target that are not to or from the target”); see also [Redacted], 2011 WL 10945618, at *5.
singled out for targeting, the NSA routinely collects a great deal of American content.”). 16

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News reports discuss this kind of surveillance—sometimes called “about” surveillance—in more detail. An August 2013 report from The New York Times states that the NSA is “searching the contents of vast amounts of Americans’ e-mail and text communications into and out of the country, hunting for people who mention information about foreigners under surveillance, according to intelligence officials.” Charlie Savage, NSA Said to Search Content of Messages to and From U.S., N.Y. Times, Aug. 8, 2013, http://nyti.ms/1cez5ZK. The report continues: “While it has long been known that the agency conducts extensive computer searches of data it vacuums up overseas, that it is systematically searching—without warrants—through the contents of Americans’ communications that cross the border reveals more about the scale of its secret operations.” Id.
Thus, even when the government abides by its rules, it collects huge volumes of U.S. residents’ international communications without any of the safeguards the Constitution ordinarily requires. Moreover, the minimization procedures place no meaningful limit on the government’s authority to retain, analyze, and disseminate these communications. See, e.g., 2011 Minimization Procedures §§ 3(b), 6 (permitting the government to retain communications to, from, or about U.S. persons for five years, or indefinitely if they contain “foreign intelligence information” or evidence of a crime). Even purely domestic communications can be retained indefinitely if the government concludes that they contain foreign intelligence information. Id. § 5.
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The minimization procedures also permit the government to conduct warrantless searches in its database of communications collected under the FAA, including by using search terms or identifiers (names, email addresses, phone numbers, etc.) associated with U.S. persons.10 These kinds of searches—“backdoor searches”—are an end-run around the Fourth Amendment. See James Ball & Spencer Ackerman, NSA Loophole Allows Warrantless Search for US Citizens’ Emails and Phone Calls, Guardian, Aug. 9, 2013, http://gu.com/p/3tva4 (“Senator Ron Wyden told the Guardian that the law provides the NSA with a loophole potentially allowing ‘warrantless searches for the phone calls or emails of law-abiding Americans’”). A presidential review group recently recommended ending the practice of backdoor searches, concluding that the practice violates the “full protection of [Americans’] privacy.” See President’s Review Group on Intelligence & Communications Technologies, Liberty and Security in a Changing World 149, 145–50 (Dec. 12, 2013), http://1.usa.gov/1be3wsO.
10 These kinds of searches were once prohibited by the government’s minimization procedures, but the prohibition was lifted in 2011. Compare Minimization Procedures Used by the National Security Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702, As Amended § 3(b)(5) (July 29, 2009), http://bit.ly/1hKjOzC (“Computer selection terms used for scanning, such as telephone numbers, key words or phrases, or other discriminators, will not include United States person names or identifiers . . . .” (emphasis added)), with 2011 Minimization Procedures § 3(b)(6) (omitting same restriction and stating that “use of United States person identifiers as terms to identify and select communications must first be approved in accordance with NSA procedures”).
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G. The role that the FAA played in the government’s investigation of Mr. Muhtorov
The FAA notice in this case was filed belatedly, and only after the government reversed its existing policy of depriving criminal defendants of notice under the statute. The notice supplies no information beyond the bare fact that the government intends to introduce or otherwise use information obtained or derived through use of the FAA. Thus, while it is plain that the FAA played a key role in the government’s investigation of Mr. Muhtorov, the government has not provided Mr. Muhtorov with information that is crucial to his defense.11
For example, the government has not told Mr. Muhtorov which communications it obtained under the FAA, when they were obtained, and whether they were used as the basis for subsequent warrant applications. It has not provided Mr. Muhtorov with its surveillance applications, the affidavits submitted in connection with those applications, or the FISC orders that granted those applications. It has not told Mr. Muhtorov which targeting and minimization procedures applied at the time his communications were collected; nor has it provided him with documents, including FISC orders, relating to the government’s compliance or non-compliance with those procedures. Nor, finally, has it told Mr. Muhtorov which selectors, search terms, or filters were applied to information
11 Discovery provided by the government thus far suggests that the government began intercepting Mr. Muhtorov’s email communications no later than January 2011. The earliest communication provided to the defense is a January 29, 2011 email exchange between an account associated with Mr. Muhtorov and an account that is allegedly linked to the Islamic Jihad Union. The earliest cell-phone interception of which the defense is aware was on March 8, 2011, purportedly a call between Mr. Muhtorov and the codefendant, Mr. Jumaev.
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collected in bulk such that the government’s attention became focused on him. To be clear, and as explained at greater length below, Mr. Muhtorov believes that
the government’s surveillance of him was unlawful for the simple fact that it was carried out under a statute that is procedurally defective—that is, because it was carried out under a statute that fails to comply with the Fourth Amendment’s most basic requirements. But both FISA and the due process clause of the Fifth Amendment entitle Mr. Muhtorov to more information about how, precisely, the FAA was used to collect his communications, how the communications collected under the statute were used in the government’s investigation of him, and in which ways the evidence they propose to use in the instant prosecution is tainted by the government’s violation of his constitutional rights.
ARGUMENT I. The evidence obtained or derived from surveillance under the FAA must be
suppressed because the FAA is unconstitutional. The fruits of the government’s surveillance of Mr. Muhtorov must be suppressed because the statute that authorized the surveillance is unconstitutional. The FAA violates the Fourth Amendment because it authorizes surveillance that violates the warrant clause and, independently, because it authorizes surveillance that is unreasonable. The statute also violates Article III by requiring judges to issue advisory opinions in the absence of a case or controversy. The procedural deficiencies of the FAA render the statute unconstitutional, and they render the surveillance of Mr. Muhtorov unconstitutional as well. See Sibron v. New York, 392 U.S. 40, 59 (1968) (“No search . . . is valid” if
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authorized by a statute whose “procedural safeguards” are “inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope.” (citing Berger v. New York, 388 U.S. 41 (1967)); Bond v. United States, 131 S. Ct. 2355 (2011).12 All evidence obtained or derived from the unlawful surveillance conducted under the statute —that is, all evidence obtained directly or indirectly from the statute’s use—must be suppressed. See 50 U.S.C. § 1806(g).
A. The FAA violates the Fourth Amendment. The FAA gives the government nearly unfettered access to U.S. persons’ international communications. Whereas FISA authorizes the government to conduct relatively narrow surveillance of foreign agents and foreign powers, the FAA permits the government to monitor any international communication without a warrant so long as the target of its surveillance is a foreigner abroad and a significant purpose of its surveillance is to acquire foreign intelligence information. In effect, the statute allows the government to acquire essentially any communication that originates or terminates outside the United States. The statute violates the warrant clause because it allows the government to monitor U.S. persons’ international communications without obtaining prior judicial approval
12 See Berger, 388 U.S. at 58 (invalidating an electronic surveillance statute that lacked “precise and discriminate” procedural requirements “carefully circumscribed so as to prevent unauthorized invasions” of privacy); see also, e.g., Chandler v. Miller, 520 U.S. 305 (1997) (invalidating state statute requiring candidates for state office to undergo warrantless and suspicionless drug tests); Payton v. New York, 445 U.S. 573 (1980) (invalidating state statute authorizing warrantless entry into homes); Torres v. Puerto Rico, 442 U.S. 465 (1979) (invalidating state statute permitting warrantless and suspicionless searches of luggage).
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based upon probable cause, and without describing the communications to be obtained with particularity. It also violates the reasonableness requirement. The Supreme Court has emphasized that a surveillance statute is reasonable only if it is precise and discriminate. The FAA is anything but.
1. Mr. Muhtorov had a reasonable expectation of privacy in his international communications.
American citizens and residents—including Mr. Muhtorov—have a constitutionally protected privacy interest in the content of their telephone calls and emails. United States v. Katz, 389 U.S. 347, 353 (1967); see also Keith, 407 U.S. at 313 (“[Katz] implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.”); Alderman v. United States, 394 U.S. 165, 177 (1969); United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010); In re Applications for Search Warrants for Info. Associated with Target Email Address, No. 12-MJ-8119-DJW, 2012 WL 4383917, at *5 (D. Kan. Sept. 21, 2012) (following Warshak). Indeed, as the Supreme Court noted in Berger, “[f]ew threats to liberty exist which are greater than that posed by the use of eavesdropping devices,” 388 U.S. at 63. In invalidating the New York surveillance statute before it, the Court wrote: “[I]t is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one’s home or office are invaded.” Id. at 63.
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The Fourth Amendment’s protection extends not just to domestic communications but to international ones as well. See, e.g., United States v. Ramsey, 431 U.S. 606, 616–20 (1977); see also Defs.’ Mem. in Opp’n to Pls.’ Mot. for Summ. J. 48, Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d 633 (S.D.N.Y. 2009) (No. 08 Civ. 6259) (not contesting that Fourth Amendment protects privacy of U.S. persons’ international communications).
2. The FAA permits surveillance of U.S. persons’ international communications in violation of the warrant requirement. a. The FAA authorizes “general searches.”
The Fourth Amendment requires that search warrants be issued only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Supreme Court has interpreted these words to require three things: (1) that any warrant be issued by a neutral, disinterested magistrate; (2) that those seeking the warrant demonstrate to the magistrate there is probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense; and (3) that any warrant particularly describe the things to be seized as well as the place to be searched. See Dalia v. United States, 441 U.S. 238, 255 (1979).
The FAA authorizes the executive branch to conduct electronic surveillance without complying with any of these three requirements; accordingly, the statute is presumptively unconstitutional. See Katz, 389 U.S. at 357 (Warrantless searches are “per se unreasonable under the Fourth Amendment—subject only to a few specifically
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established and well-delineated exceptions.”); accord Payton, 445 U.S. 573; Chimel v. California, 395 U.S. 752, 768 (1969).
First, the FAA fails to interpose “the deliberate, impartial judgment of a judicial officer . . . between the citizen and the police.” Katz, 389 U.S. at 357 (internal quotation marks omitted). While the government may not initiate an acquisition under the FAA without first applying for a mass-acquisition order from the FISC (or obtaining such an order within seven days of initiating the acquisition), the FISC’s role is solely to review general procedures relating to targeting and minimization. Every decision relevant to the surveillance of specific targets is made by executive officers and never presented to the FISC. Indeed, nothing in the FAA requires the government even to inform the FISC who its surveillance targets are (beyond to say that the targets are outside the United States), what the purpose of its surveillance is (beyond to say that a “significant purpose” of its year-long program of surveillance is to gather foreign intelligence), or which, or how many, U.S. persons are likely to be implicated by the acquisition. Compare with 18 U.S.C. § 2518(1)(b) (requiring government’s application for Title III warrant to include details of the particular offense that has been committed, a description of the nature and location of facilities to be monitored, a description of the type of communications to be intercepted, and the identity of the individual to be monitored); 50 U.S.C. § 1804(a) (setting out similar requirements for FISA orders).
The Fourth Amendment reflects a judgment that “[t]he right of privacy [is] too precious to entrust to the discretion of those whose job is the detection of crime and the
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arrest of criminals,” McDonald v. United States, 335 U.S. 451, 455–56 (1948), but this is precisely what the FAA does: It entrusts to the unreviewed discretion of the executive branch decisions that affect the privacy rights of countless U.S. persons.
Second, the FAA fails to condition government surveillance on the existence of probable cause. It permits the government to conduct acquisitions without proving to a court that its surveillance targets are foreign agents, engaged in criminal activity, or connected even remotely with terrorism. Compare with 18 U.S.C. § 2518(3) (Title III probable cause requirement); 50 U.S.C. § 1805(a)(2) (corresponding provision for FISA). It permits the government to conduct acquisitions without even making an administrative determination that its targets fall into any of these categories.
It is important to recognize that the absence of an individualized suspicion requirement has ramifications for U.S. persons like Mr. Muhtorov even though the government’s ostensible targets are foreign citizens outside the United States. The absence of an individualized suspicion requirement means that the government can engage in the wholesale collection of U.S. persons’ international communications—that it can, for example, intentionally collect all communications between the New York and London offices of Amnesty International, or all communications between Human Rights Watch in New York and human rights researchers in South and Central Asia. In fact, under the FAA the government could collect all communications between New York and London so long as the nominal targets for this mass acquisition were non-U.S. persons believed to be in the United Kingdom.
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Third, the FAA fails to restrict the government’s surveillance authority to matters described with particularity. The requirement of particularity “is especially great in the case of eavesdropping,” as eavesdropping inevitably results in the interception of intimate conversations that are unrelated to the investigation. Berger, 388 U.S. at 56. Unlike Title III and FISA, however, the FAA does not require the government to identify the individuals to be monitored. Compare with 18 U.S.C. § 2518(1)(b)(iv) (Title III); 50 U.S.C. § 1804(a)(2) (FISA). It does not require the government to identify the facilities, telephone lines, email addresses, places, premises, or property at which its surveillance will be directed. Compare with 18 U.S.C. § 2518(1)(b)(ii) (Title III); 50 U.S.C. § 1804(a)(3)(b) (FISA). It does not limit the kinds of communications the government can acquire, beyond requiring that a programmatic purpose of the government’s surveillance be to gather foreign intelligence. Compare with 50 U.S.C. § 1804(a)(6) (allowing issuance of FISA order only upon certification that a significant purpose of the specific intercept is to obtain foreign intelligence information). It does not require the government to identify “the particular conversations to be seized,” United States v. Donovan, 429 U.S. 413, 427 n.15 (1977). Compare with 18 U.S.C. § 2518(1)(b)(iii) (Title III); 50 U.S.C. § 1804(a)(6) (FISA). Nor, finally, does it place any reasonable limit on the duration of mass-acquisition orders. Compare 50 U.S.C. § 1881a(a) (allowing surveillance programs to continue for up to one year), with 50 U.S.C. § 1805(d)(1) (providing that surveillance orders issued under FISA are generally limited to 90 or 120 days), and 18 U.S.C. § 2518(5) (providing that surveillance orders issued under Title III are limited to 30 days).
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The FAA simply does not ensure that surveillance conducted under the Act “will be carefully tailored.” Maryland v. Garrison, 480 U.S. 79, 84 (1987).
b. There is no special needs exception to the warrant requirement for foreign intelligence gathering.
No “special needs” exception to the warrant requirement applies to the surveillance conducted under the FAA. Even if the foreign intelligence context may justify a modification to the probable cause requirement (as some courts have held with respect to traditional FISA), it does not justify abandoning altogether that requirement. Courts have recognized an exception to the warrant requirement “in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring); see Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (adopting Justice Blackmun’s “special needs” formulation for the Court). The mere fact that the government’s surveillance is conducted for foreign intelligence purposes, however, does not render the warrant and probable cause requirement unworkable.
Any discussion of the lawfulness of warrantless intelligence surveillance must begin with Keith, 407 U.S. 297, in which the Supreme Court addressed the lawfulness of warrantless surveillance conducted by the FBI against individuals eventually charged with having planned or carried out the bombing of a CIA office in Ann Arbor, Michigan. In that case, the government argued that the warrantless surveillance was lawful because
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it had been conducted for intelligence purposes rather than law enforcement purposes. The Court emphatically disagreed. Addressing the government’s effort to distinguish intelligence surveillance from law enforcement surveillance, the Court wrote that “[o]fficial surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech.” Id. at 320. Addressing the government’s claim that security matters would be “too subtle and complex for judicial evaluation,” it observed that the judiciary “regularly deal[s] with the most difficult issues of our society” and that there was “no reason to believe that federal judges [would] be insensitive to or uncomprehending of the issues involved in domestic security cases.” Id. Finally, addressing the government’s contention that the warrant requirement would “fracture the secrecy essential to official intelligence gathering,” the Court noted that the judiciary had experience dealing with sensitive and confidential matters and that in any event warrant-application proceedings were ordinarily ex parte. Id. at 320–21.
Keith involved surveillance directed at domestic security threats, but its logic applies with equal force to surveillance directed at threats with a foreign nexus—at least when that surveillance sweeps up U.S. persons’ communications (as surveillance conducted under the FAA does), and is conducted inside the United States (as surveillance conducted under the FAA is). See United States v. Verdugo-Urquidez, 494 U.S. 259, 278 (1990) (Kennedy, J., concurring) (concluding that a warrant was not required for the search of a non-resident alien’s home in Mexico but stating that “[i]f the
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search had occurred in a residence within the United States, I have little doubt that the full protections of the Fourth Amendment would apply”); see also H.R. Rep. No. 110-373(I), at 15 n.26 (2007) (“In judging the ‘reasonableness’ of [a] search, however, the location of the intercept can be as important as the location of the U.S. person under surveillance.” (citing Verdugo-Urqidez, 494 U.S. at 278 (Kennedy, J., concurring)).
First, intelligence surveillance conducted inside the United States presents the same risks to “constitutionally protected privacy of speech” whether the asserted threats are foreign or domestic. Both forms of surveillance can produce the “indiscriminate wiretapping and bugging of law-abiding citizens” that the Keith Court feared. See Keith, 407 U.S. at 320–21; see also S. Rep. No. 95-701 at 15, reprinted at 1978 U.S.C.C.A.N. 3973, 3984 (stating Senate Intelligence Committee’s judgment that the arguments in favor of prior judicial review “apply with even greater force to foreign counterintelligence surveillance”). The risks are still greater if, as under the FAA, there is no requirement that the government’s surveillance activities be directed at specific foreign agents, or subject to individualized judicial review.
Second, the courts are just as capable of overseeing foreign intelligence surveillance of U.S. persons’ communications as they are of overseeing domestic intelligence surveillance of their communications. Indeed, for the past thirty-five years, the courts have been overseeing intelligence surveillance relating to agents of foreign powers because, since its enactment in 1978, FISA has required the government to obtain individualized judicial authorization—based on probable cause that the target is an agent
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of a foreign power—before conducting foreign intelligence surveillance inside the nation’s borders. There is nothing unworkable about FISA’s core requirement of judicial authorization. Since 1978, the FISC has granted more than 33,000 surveillance applications submitted by the executive branch, and the government has brought dozens of prosecutions based on evidence obtained through FISA. See, e.g., Foreign Intelligence Surveillance Act Orders 1979–2012, Elec. Privacy Info Ctr., http://bit.ly/LoZqZG; FISA Annual Reports to Congress 1979–2007, Foreign Intelligence Surveillance Act, Fed’n of Am. Scis. http://bit.ly/1cvnUef; United States v. Sattar, 2003 WL 22137012, at *6 (S.D.N.Y. Sept. 15, 2003) (collecting cases). The country’s experience with FISA shows also that judicial oversight can operate without compromising the secrecy that is necessary in the intelligence context.
Thus, there is no basis to conclude that the warrant and probable cause requirement is unworkable here. Moreover, other factors weigh against recognizing a special needs exception to the warrant requirement in this context. Most significantly, special needs exceptions have generally been recognized only in contexts in which the search in question was minimally intrusive and the discretion of executive officers was strictly confined. See, e.g., Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S. 602, 624 (1989). This is not such a context. Surveillance under the FAA is exceptionally intrusive, and it is conducted by executive officers who enjoy broad authority to decide whom to monitor, when, and for how long.
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c. Even if a foreign intelligence exception to the warrant requirement exists, it is not broad enough to make the FAA constitutional.
Even if the government’s need to gather intelligence about security threats with a foreign nexus constitutes a special need justifying an exception to the warrant requirement, any such exception is not broad enough to render FAA surveillance constitutional.
Following Keith, the circuit courts split on the question of whether warrantless surveillance for foreign intelligence purposes could ever be constitutional. While the Tenth Circuit has never addressed the question, the D.C. Circuit has suggested that a warrant should be required even for foreign intelligence surveillance directed at suspected foreign powers and agents. Zweibon v. Mitchell, 516 F.2d 594, 614 (D.C. Cir. 1975) (stating in dicta that “we believe that an analysis of the policies implicated by foreign security surveillance indicates that, absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional”); see Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 159 (D.D.C. 1976). Several other circuit courts have held that warrantless surveillance for foreign intelligence purposes is constitutional in some circumstances. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908, 912–15 (4th Cir. 1980); United States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977); United States v. Butenko, 494 F.2d 593, 604–05 (3d Cir. 1974); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973). Crucially, however, all these cases involved surveillance conducted before the enactment of FISA in 1978, and FISA seriously
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undermines their rationale. See United States v. Bin Laden, 126 F. Supp. 2d 264, 272, 274 nn.8–9 (S.D.N.Y. 2000). As discussed above, FISA demonstrates that the mere fact that the government’s surveillance is conducted for foreign intelligence purposes does not render the warrant and probable cause requirements unworkable.
Perhaps more important here, the courts that recognized a foreign intelligence exception to the warrant requirement have defined that exception very narrowly. They excused the government from compliance with the warrant requirement only where the surveillance in question was directed at a specific foreign agent or foreign power. See, e.g., Truong, 629 F.2d at 915–16; United States v. Ehrlichman, 546 F.2d 910, 925 (D.C. Cir. 1976); Bin Laden, 126 F. Supp. 2d at 277. They required that the government’s “primary purpose” be to gather foreign intelligence information. See, e.g., Truong, 629 F.2d at 916. And they required that the surveillance be personally approved by the President or Attorney General. See, e.g., Ehrlichman, 546 F.2d at 926 (“Unless carefully circumscribed, such a power is easily subject to abuse.”); Bin Laden, 126 F. Supp. 2d at 277.
The FAA contains none of these limitations—it permits warrantless surveillance in circumstances far removed from those that have previously been held to fall within the foreign intelligence exception. Surveillance under the FAA is not directed only at foreign powers and their agents; FAA surveillance operates at a wholesale level, allowing the government to collect and search the international communications of U.S. persons in bulk. Nor does the FAA require that warrantless surveillance be personally approved by
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the President or the Attorney General. The Attorney General has a role in authorizing FAA surveillance, but this role involves approval of the overall procedures, not individual targets. See 50 U.S.C. § 1881a.
Nor, finally, does the FAA require that the government’s “primary purpose” be to collect foreign intelligence information. To the contrary, it allows the government to engage in warrantless surveillance even when its primary purpose is to gather evidence of criminal activity rather than to collect foreign intelligence information. See 50 U.S.C. § 1881a(g)(2)(A)(v) (permitting warrantless surveillance where gathering foreign intelligence information is simply a “significant purpose” of the interception). The possibility that FAA surveillance will be coopted for ordinary law enforcement surveillance is particularly acute, because the statute’s “significant purpose” requirement only attaches at the broad, programmatic level. See 50 U.S.C. § 1881a(g)(2)(A)(v). Unlike under FISA, 50 U.S.C. §§ 1804(a)(5), 1805(c)(1)(C), the government is not required to have a significant foreign intelligence purpose focused on the specific targets and facilities it ultimately chooses to monitor.
3. The FAA violates the Fourth Amendment’s requirement of reasonableness.
The FAA would be unconstitutional even if the warrant clause were inapplicable because “the ultimate touchstone of the Fourth Amendment is reasonableness”—a test the FAA fails. See Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (quotation marks omitted). The reasonableness requirement applies even where the warrant requirement
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does not. United States v. Montoya de Hernandez, 473 U.S. 531, 539 (1985); see In re Sealed Case, 310 F.3d 717, 737 (FISCR 2002) (assessing reasonableness of FISA); Figueroa, 757 F.2d 466, 471–73 (2d Cir. 1985) (Title III); United States v. Duggan, 743 F.2d 59, 73–74 (2d Cir. 1984) (assessing reasonableness of FISA); United States v. Tortorello, 480 F.2d 764, 772–73 (2d Cir. 1973) (Title III). Reasonableness is determined by examining the “totality of circu[m]stances” to “assess[], on the one hand, the degree to which [government conduct] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006) (quotation marks omitted); see also Virginia v. Moore, 553 U.S. 164, 169–70 (2008).
In the context of electronic surveillance, reasonableness requires that government eavesdropping be “precise and discriminate” and “carefully circumscribed so as to prevent unauthorized invasions of privacy.” Berger, 388 U.S. at 58 (quotation marks omitted); see United States v. Bobo, 477 F.2d 974, 980 (4th Cir. 1973) (“[W]e must look . . . to the totality of the circumstances and the overall impact of the statute to see if it authorizes indiscriminate and irresponsible use of electronic surveillance or if it authorizes a reasonable search under the Fourth Amendment.”). Courts that have assessed the lawfulness of electronic surveillance have looked to FISA and Title III as measures of reasonableness. See, e.g., United States v. Mesa-Rincon, 911 F.2d 1433, 1438 (10th Cir. 1990) (evaluating reasonableness of video surveillance); United States v. Biasucci, 786 .2d 504, 510 (2d Cir. 1986) (same); United States v. Torres, 751 F.2d 875, 884 (7th Cir.
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1984) (same). While the constitutional limitations on foreign intelligence surveillance may differ in some respects from those applicable to law enforcement surveillance, see Keith, 407 U.S. at 323–24, “the closer [the challenged] procedures are to Title III procedures, the lesser are [the] constitutional concerns,” In re Sealed Case, 310 F.3d at 737.
a. The FAA exposes every U.S. person’s international communications to the possibility of warrantless surveillance.
By abandoning the core requirements of the warrant clause—individualized suspicion, prior judicial review, and particularity—the FAA eliminates the primary protections against general surveillance. Whereas both FISA and Title III require the government to identify to a court its targets and the facilities it intends to monitor, the FAA does not. Whereas both FISA and Title III require the government to demonstrate individualized suspicion to a court, the FAA does not. (Indeed, the FAA does not require even an administrative finding of individualized suspicion.) And, whereas both FISA and Title III impose strict limitations on the nature of the communications that the government may monitor and the duration of its surveillance, the FAA does not. The FAA’s failure to include these basic safeguards is fatal, because these are the very safeguards that the courts have cited in upholding the constitutionality of both FISA and Title III. See, e.g., Duggan, 743 F.2d at 73 (FISA); United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987) (FISA); United States v. Cavanagh, 807 F.2d 787, 790 (9th Cir. 1987) (FISA); In re Sealed Case, 310 F.3d at 739–40 (FISA); In re Kevork, 634 F.
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Supp. 1002, 1013 (C.D. Cal. 1985) (FISA), aff’d, 788 F.2d 566 (9th Cir. 1986); United States v. Falvey, 540 F. Supp. 1306, 1313 (E.D.N.Y. 1982) (FISA); Tortorello, 480 F.2d at 773–74 (Title III); Bobo, 477 F.2d at 982 (Title III); United States v. Cafero, 473 F.2d 489, 498 (3d Cir. 1973) (Title III).
The consequence of the FAA’s failure to include any of these limitations is that the government may target effectively any foreigner for surveillance—even where another party to the communication is a U.S. person. Unlike Title III (in which the government’s surveillance targets must be criminal suspects, see 18 U.S.C. § 2518(1), (3)) and FISA (in which the surveillance targets must be agents of a foreign power, see 50 U.S.C. § 1804(3)), the FAA permits the surveillance of any foreigner abroad. 50 U.S.C. § 1881a(d). This sweeping authorization ensures that the communications of countless innocent U.S. persons will be monitored. Indeed, allowing the government to acquire U.S. persons’ international communications was the very purpose of the FAA. See Hayden SJC Statement.
For U.S. persons whose international communications are swept up by FAA surveillance, such as Mr. Muhtorov, the sole protection is the FAA’s requirement that the government “minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.” 50 U.S.C. § 1801(h)(1); see 50 U.S.C. § 1881a(e). This requirement, however, does not apply to communications that contain “foreign intelligence information.” Id. Moreover, the statute’s definition of “foreign intelligence information” is extraordinarily broad,
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encompassing not just information relating to terrorism, but information relating to “the
conduct of the foreign affairs of the United States.” See 50 U.S.C. § 1881(a); id.
§ 1801(e).
In short, the FAA’s targeting and minimization requirements permit the
government to target any foreigner abroad for surveillance and to acquire and retain any
U.S. persons’ international communications with (or about) those foreigners that relate to
“the conduct of the foreign affairs of the United States.” See U.S.C. § 1801(e). In this
way, the FAA exposes virtually every international communication—including those with
one end in the United States—to the possibility of warrantless surveillance.13
As touched on earlier, publicly available information about the targeting and
minimization procedures that has been used by the government confirms the statute’s
defects. See generally 2009 Targeting Procedures; 2011 Minimization Procedures. These
13 The FAA exposes even purely domestic communications to the possibility of surveillance as well. The FAA requires the government to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” 50 U.S.C. § 1881a(d)(1)(B) (emphasis added). In other words, the statute permits the government to collect any communication so long as it does not know for a fact that all parties to the communication are located inside the United States. This likely has had dramatic implications for the privacy of American residents’ purely domestic communications, as even the executive itself has indicated that uncertainty about location is the rule rather than the exception. See, e.g., Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans’ Privacy Rights (Part II): Hearing Before the H. Judiciary Comm. on the Foreign Intelligence Surveillance Act and Protect America Act, 110th Cong. 92 (2007) (statement of DNI McConnell) (“Sir, in the old days, Cold War days, location was much, much easier. Today, with mobile communications, it is more difficult. . . . There are some keys that can assist, but we can’t know for certain[].”). On one occasion, the FISC held that the government’s minimization procedures were unconstitutional because they resulted in the collection of “a very large number” of purely domestic communications. [Redacted], 2011 WL 10945618, at *28 (FISC Oct. 3, 2011).
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procedures give effect to the statute’s design by allowing the government to collect U.S. persons’ international communications in the course of surveillance directed at foreign targets. They allow the government to search literally every international communication going into or out of the United States for information “about” its targets, so long as it uses “an Internet Protocol filter to ensure that” one of the parties to the communication “is located overseas.” 2009 Targeting Procedures 1–2; see also Charlie Savage, NSA Said to Search Content of Messages to and From U.S., N.Y. Times, Aug. 8, 2013, http://nyti.ms/1cez5ZK. Those same procedures also reveal that among the factors that government analysts examine to determine whether a particular email address or phone number will be used to communicate foreign intelligence information is whether it has been used in the past to communicate with “an individual associated with a foreign power or foreign territory”—a definition broad enough to encompass essentially any foreign person. 2009 Targeting Procedures 4.
The procedures also explicitly permit the retention and dissemination of U.S. persons’ international communications if “necessary to understand foreign intelligence information or assess its importance.” 2011 Minimization Procedures § 6(a)(2), (b)(2). They permit the government to retain purely domestic communications acquired through the accidental targeting of U.S. persons if the government determines that they contain “significant foreign intelligence information” or “evidence of a crime.” Id. § 5(1)–(2). U.S. persons’ communications that do not contain foreign intelligence or evidence of a crime may be retained for up to five years. Id. § 3(b)(1). Even communications identified
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as “attorney–client” communications may be retained to “preserv[e] foreign intelligence information contained therein.” Id. § 4. Finally, the minimization procedures allow socalled “backdoor searches,” in which the government later searches communications acquired under the FAA specifically for information about U.S. persons—like Mr. Muhtorov—for any reason whatsoever. See id. § 3(b)(6).
As codified and as implemented, the FAA’s targeting and minimization requirements—in permitting nearly unfettered surveillance of U.S. persons’ international communications—bear little resemblance to the procedures in place under Title III and FISA. See, e.g., In re Sealed Case, 310 F.3d at 740–41 (stating that courts have found FISA’s minimization requirements to be “constitutionally significant”); Pelton, 835 F.2d at 1075 (similar); Duggan, 743 F.2d at 74 (similar); United States v. Turner, 528 F.2d 143, 156 (9th Cir. 1975) (finding Title III constitutional because, among other things, “measures [must] be adopted to reduce the extent of . . . interception [of irrelevant or innocent communications] to a practical minimum”); Figueroa, 757 F.2d at 471 (similar).
Title III requires the government to conduct surveillance “in such a way as to minimize the interception of” innocent and irrelevant conversations, 18 U.S.C. § 2518(5); see id. (stating that “every order and extension thereof shall contain a provision” regarding the general minimization requirement), and strictly limits the use and dissemination of material obtained under the statute, see 18 U.S.C. § 2517. FISA similarly requires the government to minimize the acquisition, retention, and dissemination of non-publicly available information concerning U.S. persons. See 50
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U.S.C. § 1801(h). It requires that each order authorizing surveillance of a particular target contain specific minimization procedures that will govern that particular surveillance. See 50 U.S.C. § 1804(a)(4); 50 U.S.C. § 1805(a)(3); 50 U.S.C. § 1805(c)(2)(A). FISA also specifically provides the FISC with authority to oversee the government’s minimization on an individualized basis during the course of the actual surveillance. See 50 U.S.C. § 1805(d)(3); see also 18 U.S.C. § 2518(6). Thus, under FISA, minimization is required with respect to every individual surveillance target, and, equally important, minimization s judicially supervised during the course of the surveillance.14
The targeting and minimization procedures under the FAA are problematic for still other reasons. Unlike the privacy protections in Title III and FISA, the FAA’s targeting and minimization procedures are neither individualized nor subject to ongoing judicial supervision. Under the FAA, minimization is not individualized but programmatic: Minimization procedures apply not to surveillance of specific targets but rather to surveillance programs, the specific targets of which may be known only to the executive branch. Moreover, the FISC is granted no authority to supervise the government’s compliance with the minimization procedures during the course of an acquisition or even to inquire about the treatment of U.S. persons’ communications. Compare with 50 U.S.C.
14 See Kris & Wilson § 9:1–2 (explaining that “each FISA application must describe specific minimization procedures that the Attorney General believes are appropriate for the particular surveillance or search in question,” that “the FISC may modify the proposed minimization procedures,” that the order “must direct that the (modified) procedures be followed . . . in conducting the surveillance,” and that the FISC “enjoys the authority to review the government’s compliance with minimization procedures”).
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§ 1805(d)(3). Nor is there any requirement that the government seek judicial approval before it analyzes, retains, or disseminates U.S. communications. Compare with 50 U.S.C. § 1801(h)(4) (requiring court order in order to “disclose[], disseminate[], use[] . . . or retain[] for longer than 72 hours” U.S. communications obtained in the course of warrantless surveillance of facilities used exclusively by foreign powers).
The FAA’s meager minimization provisions are especially problematic because the FAA does not provide for individualized judicial review at the acquisition stage. Under FISA and Title III, minimization operates as a second-level protection against the acquisition, retention, and dissemination of information relating to U.S. persons. The first level of protection comes from the requirement of individualized judicial authorization for each specific surveillance target. Cf. Scott v. United States, 436 U.S. 128, 130–31 (1978) (“‘The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.’” (quoting Terry v. Ohio, 392 U.S. 1 (1968))); United States v. James, 494 F.2d 1007, 1021 (D.C. Cir. 1971) (“The most striking feature of Title III is its reliance upon a judicial officer to supervise wiretap operations. Close scrutiny by a federal or state judge during all phases of the intercept, from the authorization through reporting and inventory, enhances the protection of individual rights.” (quotation marks omitted)); Cavanagh, 807 F.2d at 790.
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Under the FAA, by contrast, there is no first-level protection, because the statute does not call for individualized judicial authorization of specific surveillance targets (or, for that matter, of specific facilities to be monitored or specific communications to be acquired). Unlike FISA and Title III, the FAA permits dragnet surveillance - the mass acquisition of Americans’ international telephone calls and emails. In this context, minimization requirements should be at least as stringent as they are in the context of FISA surveillance of facilities used exclusively by foreign powers. See 50 U.S.C. § 1801(h)(4).
b. The FAA lacks other basic protections. The FAA is also unreasonable insofar as it permits the government to conduct dragnet surveillance of international communications so long as “a significant purpose of the acquisition is to obtain foreign intelligence information.” 50 U.S.C. § 1881a(g)(2)(A)(v). This relaxed purpose standard allows the government to engage in FAA surveillance even if its primary purpose is to discover evidence of criminal activity. As explained above, the Supreme Court and circuit courts have generally permitted departures from the Fourth Amendment’s ordinary requirements only where the government’s primary purpose is to collect foreign intelligence information. See Truong, 629 F.2d at 915–16; Butenko, 494 F.2d at 606; Brown, 484 F.2d at 427 (Goldberg, J., concurring); see also United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991) (stating that “the investigation of criminal activity cannot be the primary purpose of the surveillance” and that FISA may “not . . . be used as an end-run around the Fourth
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Amendment’s prohibition of warrantless searches”); Pelton, 835 F.2d at 1067 interpreting purpose” to mean “primary purpose”); United States v. Megahey, 553 F. Supp. 1180 (E.D.N.Y. 1982), aff’d sub nom., Duggan, 743 F.2d at 59. While some courts have upheld FISA despite Congress’s amendment of it to permit surveillance so long as a “significant purpose” of that surveillance is to gather foreign intelligence, see, e.g., In re Sealed Case, 310 F.3d at 742–44; United States v. Abu-Jihaad, 531 F. Supp. 2d 299, 306–09 (D. Conn. 2008), at least one court has found that the amendment renders FISA unconstitutional, Mayfield v. United States, 504 F. Supp. 2d 1037 (D. Or. 2007), vacated, 599 F.3d 964 (9th Cir. 2010) (en banc).
Whether or not the “significant purpose” standard is constitutional in the context of FISA, the standard is unreasonable in the context of FAA surveillance. The FAA’s purpose requirement—unlike FISA’s purpose requirement—applies not to individualized particularized surveillance orders but to entire programs of surveillance. Under the FAA, the government must certify that a significant purpose of a mass-acquisition order is to gather foreign intelligence information, but once the FISC has endorsed that acquisition, the government may target particular individuals primarily, or entirely, for the purpose of collecting evidence of criminal activity. Because the FISC may not review on an individualized basis the government’s purpose in targeting particular individuals or groups under the FAA, no court has ever reviewed the purpose of the FAA surveillance of the sort that resulted in the interception of Mr. Muhtorov’s communications.
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B. The FAA violates Article III of the Constitution. The FAA violates Article III because it authorizes the FISC to issue massacquisition orders in the absence of any case or controversy and requires the court to review the legality and constitutionality of the government’s programmatic procedures in the abstract. The Constitution “extend[s]” the judicial power of the United States to only “cases” and “controversies.” U.S. Const. art. III, § 2. That requirement is a condition precedent to the exercise of judicial authority, “restrict[ing]” federal courts to the “resolution of concrete disputes between the parties before them.” Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 976 (1984); accord Massachusetts v. EPA, 549 U.S. 497, 516 (2007); see also Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948) (Article III forbids federal courts from issuing “advisory opinions[,] even when asked by the Chief Executive.”). In other words, courts may pass only upon particularized issues capable of judicial resolution—“flesh-and-blood legal problems with data relevant and adequate to an informed judgment.” New York v. Ferber, 458 U.S. 747, 768 (1982) (quotation marks omitted). Conversely, courts are without the power to issue “abstract declaration[s] of the law,” In re Summers, 325 U.S. 561, 566–67 (1945) (quotation marks omitted), or adjudicate legal questions based “upon a hypothetical state of facts,” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937). See Felix Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002, 1005 (1937) (“Facts and facts again are decisive.”); see also Flast v. Cohen, 392 U.S. 83, 97 (1968); Citizens
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Concerned for Separation of Church & State v. City & Cnty. of Denver, 628 F.2d 1289, 1295 (10th Cir. 1980); United States v. Smith, 686 F. Supp. 847, 855 (D. Colo. 1988) (Kane, J.) (“Discharging tasks other than the deciding of cases and controversies would ‘involve the judges too intimately in the process of policy and thereby weaken confidence in the disinterestedness of their judicatory functions’”).
The FAA assigns to an Article III court a role that is fundamentally incompatible with the case-or-controversy requirement. Under the FAA scheme, the government asks the FISC to approve programmatic surveillance orders that will result in the mass acquisition of Americans’ communications without any individualized review or approval of the government’s monitoring activity. The FISC’s role is limited to evaluating in a vacuum whether the government’s proposed targeting and minimization procedures comply with the statute and the Constitution, without any concrete factual context relating to particular targets. Article III “admonishes federal courts . . . to abstain from entangling themselves in abstract disagreements,” Keyes v. Sch. Dist. No. 1, 119 F.3d 1437, 1443 (10th Cir. 1997) (quotation marks omitted), but engagement with abstraction is exactly what the FAA demands. And while Article III only “embraces application of principles of law or equity to facts,” Vermont v. New York, 417 U.S. 270, 277 (1974), the FAA calls for n abstract assessment of the general rules that will govern a surveillance program to be implemented entirely by the executive branch.
It is instructive that, in rejecting Article III challenges to the traditional FISA process, courts have pointed to the fact that the traditional FISA process is a
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particularized one—that it involves the court’s consideration of concrete facts about the specific person to be monitored, the facilities to be targeted, and the purpose of the surveillance. For example, in Megahey, the court rejected an Article III challenge to a traditional FISA order because “[a]pplications for electronic surveillance submitted to FISC pursuant to FISA involve concrete questions respecting the application of the Act and are in a form such that a judge is capable of acting on them, much as he might otherwise act on an ex parte application for a warrant.” 553 F. Supp. at 1197; see id. (“The FISC judge who is faced with a [traditional FISA] application is not faced with an abstract issue of law or called upon to issue an advisory opinion, but is, instead, called upon to ensure that the individuals who are targeted do not have their privacy interests invaded, except in compliance with the detailed requirements of the statute.” (emphasis added)); see also United States v. Falvey, 540 F. Supp. 1306, 1313 (E.D.N.Y. 1982); see In re Kevork, 634 F. Supp. 1002.
The Office of the Legal Counsel (“OLC”) relied on the same reasoning in defending the constitutionality of FISA in the debate preceding that statute’s enactment in 1978. Key to the OLC’s analysis was the fact that the FISC would be able to “apply standards of law to the facts of a particular case” in the form of probable cause determinations akin to those “made in other warrant proceedings.” Memorandum from John M. Harmon, Assistant Att’y Gen., OLC, to Hon. Edward P. Boland, Chairman, House Permanent Select Comm. on Intelligence (Apr. 18, 1978), reprinted in Foreign Intelligence Electronic Surveillance: Hearings on H.R. 5794, H.R. 9745, H.R. 7308, and
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H.R. 5632 Before the Subcomm. on Legis. of the H. Permanent Select Comm. on Intelligence, 95th Cong. 26, 28 (1978).
Thus, as both the judicial and executive branches have recognized, a traditional FISA order presents the court with a concrete question about a particular proposed interception. By contrast, a mass-acquisition order under the FAA demands only a broad assessment of whether the government’s minimization and targeting procedures are reasonable—a question asked and answered at the highest level of generality without reference to particular persons or facilities. That question is simply not a case or controversy appropriate for judicial resolution under Article III. II. Mr. Muhtorov is entitled to discovery concerning the government’s
interception of his communications under the FAA. Although Mr. Muhtorov challenges the constitutionality of FAA surveillance in this motion, the government has not provided him with material that would enable him to raft a challenge to the specific manner in which the FAA was used in his case. In order for this Court to “make an accurate determination of the legality of the surveillance,” 50 U.S.C. § 1806(f), and as required by due process, id. § 1806(g); Brady v. Maryland, 373 U.S. 83 (1963), it should order disclosure of information including but not limited to: the government’s applications to the FISC seeking authorization for, and the FISC’s orders authorizing, the FAA surveillance that intercepted communications to or from Mr. Muhtorov; notice of all communications to or from Mr. Muhtorov intercepted under the FAA; all evidence obtained under the FAA that the government intends to use at trial or
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that is material to Mr. Muhtorov’s defense; all evidence derived from communications intercepted under the FAA that the government intends to use at trial; and records indicating how Mr. Muhtorov’s communications were intercepted and identified under the FAA or were derived from communications collected under the FAA. See Part II.B, infra.
A. Disclosure of additional information is required by FISA and the due process clause.
The government’s notice of its intent to use information obtained or derived from FAA surveillance contains only a bare recitation of the statutory language requiring the notice, 50 U.S.C. § 1806(c). See Doc. 457. The notice is insufficient to allow Mr. Muhtorov to craft a suppression motion addressed to the specific FAA surveillance to which he was subjected. FISA provides two vehicles for correcting this deficiency.
First, even where the Attorney General has certified that disclosure of materials relevant to a motion to suppress would harm the national security, FISA provides that “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). Second, even where section 1806(f) does not mandate disclosure, the statute requires disclosure “to the extent that due process requires” it, 50 U.S.C. § 1806(g), thus expressly incorporating the protections of the Fifth Amendment’s due process clause. Here, disclosure is required for both reasons.
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1. Disclosure is necessary to make an accurate determination of the legality of the surveillance in light of the complexity of the issues and the lack of prior judicial interpretation of the FAA.
Mr. Muhtorov’s challenge presents legal issues of first impression and factual issues of significant complexity. Resolution of unique and “complex” questions justifies disclosure of information to defense counsel to facilitate an informed adversarial process. See United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982). No federal court has yet addressed the constitutionality of FAA surveillance.15 Indeed, as discussed above, Mr. Muhtorov’s case is the first in which a defendant has received the statutorily required notice that evidence obtained or derived from FAA surveillance will be used against him. In light of the complexity of the issues and the dearth of judicial interpretation of section 1881a, disclosure is warranted.
The issues before the Court are many and complicated. It must evaluate whether the order or orders authorizing the FAA surveillance of Mr. Muhtorov comply with the Fourth Amendment and section 1881a, and whether the government’s applications to the FISC seeking those orders contained material omissions or misrepresentations or were otherwise deficient. Cf. Franks v. Delaware, 438 U.S. 154 (1978).
15 The FISC itself believes it lacks the power to address the facial validity of the FAA. See In re Proceedings Required by § 702(I) of FISA Amendments Act of 2008, No. Misc. 08-01, 2008 WL 9487946, at *2 (FISC Aug. 27, 2008) (stating that its role in reviewing the FAA is “narrowly circumscribed,” with its mandate limited to accepting or rejecting “the certification, the targeting procedures and the minimization procedures” provided by the government (quotation marks omitted)).
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This Court must further determine whether the targeting and minimization procedures in use at the time the government obtained Mr. Muhtorov’s communications complied with the Fourth Amendment and section 1881a, whether the government complied with those procedures, and whether the methods used to collect, identify, and search Mr. Muhtorov’s communications were lawful. It must determine whether Mr. Muhtorov’s communications were obtained via “to/from” or “about” searches of targeted communications, whether the selectors for which the government searched were consistent with the FAA’s requirements (e.g., whether they were identified with a non–United States person), whether Mr. Muhtorov’s communications obtained pursuant to section 1881a were with a lawfully targetable non-U.S. person, and whether, if the communications were not properly obtained, they were inappropriately retained by the government and identified via later queries seeking selectors linked to Mr. Muhtorov or other individuals. Finally, it must assess whether other evidence derived, directly or indirectly, from the FAA surveillance must be suppressed as the fruit of an unconstitutional search. See Wong Sung v. United States, 371 U.S. 471, 487–88 (1963); United States v. Carson, 793 F.2d 1141, 1147–48 (10th Cir. 1986). Answering the latter question will involve determining whether the applications for traditional FISA warrants were tainted by information unconstitutionally obtained pursuant to the FAA.
Not only are these questions factually and legally complex, but this Court must answer them without the aid of precedent. No court has substantively ruled on a motion to suppress FAA-obtained or -derived surveillance (nor on an affirmative civil challenge to
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such surveillance), setting this case apart from those that involved traditional FISA surveillance in which courts have denied disclosure under section 1806(f). In traditional FISA cases, courts can look to a significant body of case law assessing the constitutionality of the FISA scheme and providing factors with which to evaluate FISA applications and orders. See, e.g., United States v. Duka, 671 F.3d 329, 336–47 (3d Cir. 2011); United States v. Abu-Jihaad, 630 F.3d 102, 117–31 (2d Cir. 2010); United States v. Hammoud, 381 F.3d 316, 332–34 (4th Cir. 2004), vacated on other grounds, 543 U.S. 1097 (2005).
In such cases, courts have found that “review of the FISA materials . . . [was] relatively straightforward and not complex,” and therefore ex parte, in camera consideration was appropriate. Abu-Jihaad, 630 F.3d at 129 (brackets in original) (quotation marks omitted). But see Mem. Op. and Order at 3-5, United States v. Daoud, No. 12 cr 723 (N.D. Ill. Jan. 29, 2014) (granting criminal defendant’s motion for disclosure of classified FISA materials). Here, however, the legal issues are complex and there is little guidance from other courts about how to evaluate the constitutionality of orders granting applications for FAA surveillance or actual execution of the surveillance. Disclosure of the requested information is therefore “necessary to make an accurate determination of the legality of the surveillance.” 50 U.S.C. § 1806(f).
Without disclosure, Mr. Muhtorov can challenge the FAA statutory scheme, as he does here, but he cannot assess the government’s actual surveillance of him. Nor can he participate in the adversarial process to inform this Court’s evaluation of these issues.
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The Supreme Court in Amnesty envisioned that a criminal case such as this one would provide the opportunity to test the constitutionality of particular FAA acquisitions. See 133 S. Ct. at 1154. But in order for this Court to provide the review, disclosure is required. It is entirely reasonable to assume Mr. Muhtorov would advance additional arguments regarding the legality of the government’s surveillance of him if he understood what that surveillance entailed. Without disclosure, the Court, and Mr. Muhtorov, will lose the benefit of informed arguments from the defense on these issues.
2. Disclosure and an adversarial hearing is required in light of the government’s repeated misrepresentations to the FISC.
In cases involving traditional FISA surveillance, courts of appeals have identified factors that would warrant disclosure of applications, warrants, and other materials under section 1806(f). Consistent with FISA’s legislative history,
disclosure is “necessary” only where the court’s initial review of the application, order, and fruits of the surveillance indicates that the question of legality may be complicated by factors 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, calling into question compliance with the minimization standards contained in the order.” Belfield, 692 F.2d at 147 (quoting S. Rep. No. 95–701, 95th Cong., 2d Sess. 64 (1978)); accord United States v. Ott, 827 F.2d 473, 476 (9th Cir. 1987); Duggan, 743 F.3d at 78. Recent disclosures demonstrate that all of these infirmities have plagued FAA surveillance, including during the period when Mr. Muhtorov was surveilled.
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Recently declassified FISC opinions show that the government has made a series of incomplete or inaccurate representations in its applications for approval of surveillance under the FAA and other FISA authorities, and that the government has repeatedly failed to comply with restrictions imposed by the FISC.
Most notably, one of those opinions held that FAA collection during the same period as the investigation of Mr. Muhtorov violated the Fourth Amendment. See [Redacted], 2011 WL 10945618 (FISC Oct. 3, 2011). That opinion details the government’s May 2011 disclosure to the FISC that, contrary to previous statements, the NSA was relying on the FAA to collect internet communications that are “wholly unrelated to the tasked selector, including the full content of discrete communications that are not to, from, or about the facility tasked for collection,” and that the “government might lack confidence in the effectiveness” of its procedures for ensuring that FAA surveillance of internet transactions was being limited to targets actually located overseas. Id. at *2. In other words, “the government . . . advised the Court that the volume and nature of the information it [had] been collecting [was] fundamentally different from what the Court had been led to believe.” Id. at *9. These disclosures “fundamentally alter[ed] the Court’s understanding of the scope of collection conducted pursuant to Section 702.” Id. at *5. The government’s applications for authorization to conduct FAA surveillance thus contained all the problems that justify disclosure: “misrepresentation of fact, vague identification of the persons to be surveilled, [and collection of] surveillance records which include a significant amount of nonforeign intelligence information, calling into
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question compliance with the minimization standards contained in [past] orders.” Belfield, 692 F.2d at 147.
Again, these problems coincide temporally with the likely period of FAA surveillance in this case. The government notified the FISC of its FAA compliance problems in a May 2, 2011, letter. As discussed above, the government intercepted email and phone communications involving Mr. Muhtorov as early as January 29 of the same year. The criminal complaint in this case refers to communications between Mr. Muhtorov and a person located overseas on February 5, March 8, March 22–23, April 2, April 4, August 19, August 26, September 1, and September 4, 2011. Crim. Compl. ¶¶ 12–17, 26–27, Doc. 1.
The criminal complaint does not indicate under what authority the surveillance was carried out, nor whether any of Mr. Muhtorov’s communications were intercepted or obtained prior to January 29, 2011, under section 1881a or another FISA authority. It appears from these facts, however, that Mr. Muhtorov’s communications were collected pursuant to section 1881a in early 2011, in the months immediately preceding (and possibly continuing after) the government’s disclosure to the FISC that it was operating its FAA collection in a manner other than what the FISC had approved.
The government submitted incorrect and misleading information to the FISC on other occasions, as well. As Judge Bates explained, “The Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial
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misrepresentation regarding the scope of a major collection program.” [Redacted], 2011 WL 10945618, at *30 n.14; see also In re Application of the FBI for an Order Requiring the Production of Tangible Things from [redacted], No. BR 09-13, 2009 WL 9150896, at *2 (FISC Sept. 25, 2009) (Walton, J.) (“The Court is deeply troubled by the incidents described above, which have occurred only a few weeks following the completion of an ‘end to end review’ by the government of NSA’s procedures and processes for handling the BR metadata, and its submission of a report intended to assure the Court that NSA had addressed and corrected the issues giving rise to the history of serious and widespread compliance problems in this matter and had taken the necessary steps to ensure compliance with the Court's orders going forward.”); In re Production of Tangible Things from [Redacted], No. BR 08-13, 2009 WL 9150913 (FISC Mar. 2, 2009) (Walton, J.) (detailing “misrepresentations to the Court” and “violations of its Orders”); In re Production of Tangible Things from [Redacted], No. BR 08-13, 2009 WL 9157881, at *2 (FISC Jan. 28, 2009) (Walton, J.) (“The Court is exceptionally concerned about what appears to be a flagrant violation of its Order in this matter . . . .”); In re All Matters Submitted to Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 620–21 (FISC 2002) (Lamberth, J.) (explaining government’s “errors related to misstatements and omissions of material facts” in FISA applications), abrogated on other grounds, In re Sealed Case, 310 F.3d 717.
The errors in the government’s applications to the FISC, including its applications for FAA surveillance authorization, were not merely “typographical or clerical in nature.”
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United States v. El-Mezain, 664 F.3d 467, 566 (5th Cir. 2011) (quotation marks omitted). Rather, “the errors were . . . pervasive enough to confuse the court as to the quantity or quality of the evidence described in the applications,” such that “disclosing the applications and related materials to defense counsel would assist the court in making an accurate determination of the legality of the surveillance.” Id. at 567 (quotation marks omitted). Moreover, because numerous FISC opinions—including opinions authorizing FAA surveillance—remain classified, counsel for Mr. Muhtorov have no way to know the full extent of any government misrepresentations or omissions in its applications to the FISC or of its noncompliance with FISC orders. Disclosure under section 1806(f) is necessary to enable the robust adversarial testing that accurate review of these issues requires.
Any misrepresentations in the applications that led to the orders under which Mr. Muhtorov’s communications were seized also provide a basis for a hearing pursuant to Franks v. Delaware, 438 U.S. 154. “Under Franks, a hearing on the veracity of the affidavit supporting a warrant is required if the defendant makes a substantial showing that the affidavit contains intentional or reckless false statements and if the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause.” United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997). Franks permits challenges to “material omissions[] as well as affirmative falsehoods,” id. (quotation marks omitted), and applies to applications for electronic surveillance orders as well as those seeking Rule 41 warrants, United States v. Green, 175 F.3d 822, 828 (10th Cir.
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1999); see Duggan, 743 F.3d at 77 n.6. Given the record of affirmative misrepresentations and omissions made by the government in its applications for section 1881a authorizations (as well as its misrepresentations and omissions in applications for orders authorizing other forms of FISA surveillance), an adversarial hearing is required to assess whether the fruits of those authorizations must be suppressed.
3. Disclosure is required because information about applications, orders, and fruits of FAA surveillance are helpful to Mr. Muhtorov’s suppression motion and defense.
The information sought by Mr. Muhtorov is relevant both to his motion to suppress the fruits of unconstitutional FAA surveillance, and to the adjudication of his guilt and punishment. Evidence must be turned over under Brady if it is favorable to the defense—in other words, if it is “exculpatory or impeaching.” Browning v. Trammell, 717 F.3d 1092, 1094 (10th Cir. 2013). The due process rights embodied in Brady apply both to trials and to motions to suppress. United States v. Barton, 995 F.2d 931, 935 (9th Cir. 1993); Smith v. Black, 904 F.2d 950, 965 (5th Cir. 1990), vacated on other grounds, 503 U.S. 930 (1992); see also United States v. Johnson, No. 96-2008, 117 F.3d 1429, at *2 (10th Cir. 1997) (unpublished table opinion) (assuming that Brady applies at motions to suppress).
The information and records requested in this motion will likely contain information favorable to Mr. Muhtorov’s motion to suppress. For example, the government’s applications to the FISC and the FISC’s orders that led to the surveillance of Mr. Muhtorov will provide evidence that the FAA surveillance scheme approved by
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the FISC and used to surveil Mr. Muhtorov violated the warrant clause and the requirements of section 1881a.16 Information about what communications were surveilled and how and why they were obtained will indicate whether the government violated the targeting and minimization restrictions approved by the FISC, whether the search was unreasonable under the Fourth Amendment, and whether Mr. Muhtorov’s communications were intercepted for a law enforcement purpose rather than a foreign intelligence one. The identification of Mr. Muhtorov’s communications obtained through FAA surveillance, and any evidence derived from that surveillance, will allow the defense o identify the evidence that should be suppressed as the fruits of an unconstitutional search. All of the requested materials will provide grounds for impeaching declarations or testimony of government officials in opposition to this motion to suppress.
The information and records requested in this motion would likely be helpful to Mr. Muhtorov in mounting a defense at trial. The contents of any communications obtained under the FAA but not yet provided to the defense (or even described in the criminal complaint) may be exculpatory, and may provide innocent explanations for seemingly incriminating evidence. They may also provide grounds for impeaching the testimony of prosecution witnesses. Due process requires that all records favorable to Mr. Muhtorov, including records that are exculpatory or impeaching, must be disclosed.
16 FISA provides for suppression of evidence on the grounds that “(1) the information was unlawfully acquired; or (2) the surveillance was not made in conformity with an order of authorization or approval.” 50 U.S.C. § 1806(e); see id. § 1806(f)–(g).
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4. If information helpful or material to the defense is classified, it must be disclosed or excluded.
The government violates due process when it withholds information or evidence from the defense as classified, but still seeks the benefit of the information in its prosecution:
[T]he Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. United States v. Reynolds, 345 U.S. 1, 12 (1953) (footnote omitted). Some or all of the information sought by this motion as material to Mr. Muhtorov’s defense, including the relevant applications to and orders of the FISC, is marked classified. Consistent with the principle set out in Reynolds, the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. III, provides a mechanism for accommodating both the government’s interest in protecting classified information and the defendant’s right to due process. When the government makes a claim of privilege over classified information, a court must “decide whether the information is helpful or material to the defense.” United States v. Aref, 533 F.3d 72, 80 (2d Cir. 2008). This is a low standard: “To be helpful or material to the defense, evidence need not rise to the level that would trigger the Government’s obligation under Brady v. Maryland . . . to disclose exculpatory information. [I]nformation can be helpful without being ‘favorable’ in the Brady sense.”
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Id. (citations and quotation marks omitted). If information meets this standard, the government has four options: (1) disclose the material to defense counsel; (2) declassify the material and disclose it; (3) in some circumstances, provide an unclassified summary; or, (4) if it rejects the first three options, face exclusion of the material or dismissal of the prosecution. See 18 U.S.C. app. III at § 6(c), (e). These provisions function to “protect[ ] and restrict[ ] the discovery of classified information in a way that does not impair the defendant’s right to a fair trial.” United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005) (alterations in original) (quotation marks omitted).
CIPA thus provides this Court with the mechanism to honor Mr. Muhtorov’s due process rights, as required by section 1806(g), without compromising the government’s interest in protecting classified information. If the government declines to declassify the requested materials or produce an adequate unclassified summary, it must provide security clearances to Mr. Muhtorov’s eligible counsel and disclose the materials under an appropriate protective order, as it has done in other prosecutions involving classified information.17 See, e.g., In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 116–18 (2d Cir. 2008); see also United States v. Libby, 467 F. Supp. 2d 20, 22 n.1, 24–25 (D.D.C. 2006). If the government fails to do so, it may not rely on evidence obtained or derived from FAA surveillance. Otherwise, a violation of Mr. Muhtorov’s due process rights will result.
17 If necessary to gain access to the materials requested in this motion, defense counsel are willing to receive security clearances and to abide by the requirements of those clearances and any additional restrictions imposed by protective orders of this Court.
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5. Ex parte proceedings are inconsistent with the requirements of due process.
A failure to disclose to the defense the requested materials, resulting in ex parte proceedings on the legality of the FAA surveillance, would, under the circumstances of this case, be inconsistent with due process and the adversary process upon which this nation’s justice system is premised.
The Supreme Court has recognized the necessity of adversarial proceedings to protect the rights of defendants and reach the correct outcome: “‘[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.’” United States v. James Daniel Good Real Prop., 510 U.S. 43, 55 (1993) (alterations in original) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170–72 (1951) (Frankfurter, J., concurring)). Indeed, “[o]ne would be hard pressed to design a procedure more likely to result in erroneous deprivations” than an ex parte proceeding. Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995) (quotation marks omitted).
The guarantee of adversarial proceedings finds a source not only in the due process clause, but also in the Sixth Amendment’s confrontation and assistance of counsel clauses. “‘The central concern of the confrontation clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of
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an adversary proceeding before the trier of fact.’” United States v. Gomez, 191 F.3d 1214, 1220 (10th Cir. 1999) (quoting Lilly v. Virginia, 527 U.S. 116 (1999)). Likewise, the Sixth Amendment “right to counsel is so fundamental to a fair trial, the Constitution cannot tolerate trials in which counsel, though present in name, is unable to assist the defendant to obtain a fair decision on the merits.” Evitts v. Lucey, 469 U.S. 387, 395 (1985). When a defendant’s counsel is denied access to material evidence and information, the defendant is denied a constitutionally adequate defense.
The Supreme Court has cautioned that “[i]n both the volume of the material to be examined and the complexity and difficulty of the judgments involved, cases involving electronic surveillance will probably differ markedly from those situations in the criminal law where in camera procedures have been found acceptable to some extent.” Alderman, 394 U.S. at 182 n.14. Here, only by their direct, informed participation can defense counsel be confident that the court is made aware of material omissions or misrepresentations in the government’s FISC submissions, evaluate the content of intercepted communications for exculpatory or otherwise material information, and enable adequate and accurate consideration by this Court.
The need for adversarial proceedings is highlighted by the failures of the FISC’s initial in camera, ex parte authorization of the FAA surveillance that swept up Mr. Muhtorov’s records. See Franks, 438 U.S. at 169 (explaining inadequacies of ex parte proceedings for issuing search warrants and explaining why defendants must be provided an opportunity to later challenge the adequacy and veracity of the government’s arrant
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applications in adversary proceedings). Many of the defects of the FISC’s non-adversarial
process are now on display. Recently declassified FISC opinions demonstrate not only a
repeating pattern of government misrepresentations, but also repeated reprieves granted
by the FISC as the government failed to meet successive deadlines to report to the FISC
or to conform its surveillance to the law. E.g., [Redacted], 2011 WL 10945618, at *2–*3;
see also Part II.A.2, supra. During these delays, the FISC failed to provide relief to
persons subject to illegal surveillance by halting that surveillance for the duration of the
government’s noncompliance. Most importantly, relying on only the representations of
the government, without adversarial testing, the FISC approved surveillance programs
that turned out to be overly broad, in violation of statutory authority. See Part II.A.2,
supra. The failure of ex parte proceedings to achieve fair and correct outcomes has resulted in calls—from members of Congress,18 the President’s blue ribbon panel on intelligence reform,19 the Privacy and Civil Liberties Oversight Board,20 and others—for
appointment of an advocate to argue against the government in FISC proceedings. The
18 See, e.g., USA FREEDOM Act, H.R. 3361, 113th Cong. § 401 (2013), http://1.usa.gov/1mPQmsh (proposing creation of Office of the Special Advocate to “vigorously advocate before the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review, as appropriate, in support of legal interpretations that protect individual privacy and civil liberties”).
19 See President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World 200–05 (Dec. 12, 2013), http://1.usa.gov/1be3wsO.
20 Privacy & Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court 183–87 (Jan. 23, 2014), http://www.pclob.gov/All%20Documents/Report%20on%20the%20Telephone%20Records%20 Program/PCLOB-Report-on-the-Telephone-Records-Program.pdf.
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President has agreed with the need for the FISC to “hear[] a broader range of privacy perspectives,” and has proposed “the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court.”21
Mr. Muhtorov understands the Court would, in any in camera, ex parte proceedings, make every effort to anticipate the arguments his attorneys might raise were they privy to the information sought in this motion and allowed to advocate for suppression on that basis. However, given the complex constitutional issues of first impression raised here, it would be particularly difficult—and inappropriate—for the Court to function as both advocate and judge. The Court would need to anticipate the defense arguments that seek a particular result, evaluate how secret evidence may or may not support that result, and then decide—without particularized briefing or pointed advocacy—whether the arguments it assumes would have been made are persuasive. In this case, as in any where an accused faces the loss of liberty, Mr. Muhtorov is entitled to have the lawyer defending him be his advocate, and to do everything possible to persuade the Court to grant the relief he seeks. See Mem. Op. and Order at 5, United States v. Daoud, No. 12 cr 723 (N.D. Ill. Jan. 29, 2014) (ordering disclosure of classified FISA materials because “an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding”).
21 President Barack Obama, Remarks by the President on Review of Signals Intelligence (Jan. 17, 2014), http://1.usa.gov/1l2zOBS.
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B. Mr. Muhtorov is entitled, at a minimum, to disclosure and discovery of the following materials and facts.
For the preceding reasons, Mr. Muhtorov respectfully seeks disclosure to the defense of the following information and records, with full opportunity for defense participation in any hearings pertaining to them:
1. Materials relating to the government’s failure to provide Mr. Muhtorov with timely notice that it intended to introduce or otherwise use information obtained or derived from FAA surveillance in this proceeding, including copies of any documents setting out, or purporting to justify, the Justice Department’s now-withdrawn policy of concealing the role of FAA surveillance from criminal defendants.
2. Materials indicating how Mr. Muhtorov’s communications were intercepted and identified under the FAA, including the nature of the targeting and queries that led to their detection (e.g., whether the government conducted “to/from” searches or “about” searches, whether the government collected metadata or contents of communications, and what surveillance programs the government used to effect the collection).
3. Documents indicating which of Mr. Muhtorov’s communications were intercepted under the FAA, and the contents those communications.
4. Documents indicating whether the fruits of FAA surveillance were used to justify further investigation of Mr. Muhtorov, or were used in applications
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for additional surveillance authority, including under 50 U.S.C. § 1861(b)(2)(A) (Section 215), id. § 1842 (FISA pen-register and trap-andtrace provision), and 18 U.S.C. § 2709 (national security letters provision). 5. Intelligence reports and other materials produced in reliance on any of Mr. Muhtorov’s communications collected under the FAA. 6. Documents indicating when and how the government established that Mr. Muhtorov was a U.S. person. 7. Applications, certifications, orders, and directives relating to the government’s surveillance of Mr. Muhtorov under the FAA, including the applicable targeting and minimization procedures. 8. Applications, certifications, orders, and directives relating to the government’s surveillance of Mr. Muhtorov under traditional FISA, in order to understand their reliance on FAA-obtained information. 9. Materials indicating which of Mr. Muhtorov’s FAA-collected communications were disseminated to other agencies, including the FBI, and when they were disseminated.
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CONCLUSION

The surveillance of Jamshid Muhtorov under the FAA was unconstitutional, and

the fruits of that surveillance must be suppressed. In addition, Mr. Muhtorov asks the

Court to order the disclosure of information that would permit him and the Court to

understand the role that the FAA played in the government’s investigation of him, and

that would enable him to challenge the specific manner in which the FAA was used in his

case.

Date: January 29, 2014

Respectfully submitted,

VIRGINIA L. GRADY Federal Public Defender

/s/ Warren R. Williamson WARREN R. WILLIAMSON Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 Fax: (303) 294-1192 Rick.Williamson@fd.org

/s/Brian Rowland Leedy Brian Rowland Leedy Assistant Federal Public Defender 633 Seventeenth Street #1000 Denver, CO 80202 303-294-7002 Fax: 303-294-1192 Brian_Leedy@fd.org

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/s/ Kathryn J. Stimson Kathryn J. Stimson, Attorney at Law 1544 Race Street Denver, CO 80206 Telephone: (720) 638-1487 kathryn@stimsondefense.com
Attorneys for Jamshid Muhtorov
On the brief:
Jameel Jaffer Alex Abdo Patrick Toomey Brett Max Kaufman Nathan Freed Wessler Attorneys at Law American Civil Liberties Union Foundation 125 Broad St., 18th Floor New York, NY 10004 Telephone: (212) 519-7816 Fax: (212) 549-2654 jjaffer@aclu.org
Mark Silverstein Sara J. Rich Attorneys at Law ACLU Foundation of Colorado 303 E. 17th Avenue, Suite 350 Denver, Colorado 80203 Telephone: (303) 777-5482 Fax: (303) 777-1773 msilverstein@aclu-co.org
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CERTIFICATE OF SERVICE
I hereby certify that on January 29, 2014, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email address:
Gregory A. Holloway Assistant U.S. Attorney Email: gregory.holloway@usdoj.gov
Erin Martha Creegan National Security Division for the U.S. Dept. of Justice Email: erin.creegan@usdoj.gov
David B. Savitz, Esq., Counsel for Bakhtiyor Jumaev Email: savmaster@aol.com
Mitchell Baker, Esq., Counsel for Bakhtiyor Jumaev Email: mitchbaker@estreet.com
I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant’s name:
Mr. Jamshid Muhtorov (Via U.S. Mail)
/s/ Warren R. Williamson WARREN R. WILLIAMSON Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 Fax: (303) 294-1192 Rick.Williamson@fd.org
Attorney for Defendant
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 Case 1:12-cr-00033-JLK Document 559 Filed 05/09/14 USDC Colorado Page 1 of 97

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

UNITED STATES OF AMERICA, Plaintiff,
v. 1. JAMSHID MUHTOROV, and 2. BAKHTIYOR JUMAEV,
Defendants.

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Case No.: 12-CR-00033-JLK

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)

)

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GOVERNMENT'S UNCLASSIFIED MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO SUPPRESS EVIDENCE OBTAINED OR DERIVED FROM SURVEILLANCE UNDER THE FISA AMENDMENTS ACT AND MOTION FOR
DISCOVERY

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TABLE OF CONTENTS
I. INTRODUCTION...................................................................................................................8 A. OVERVIEW................................................................................................................8 B. SUMMARY OF THE ARGUMENT ....................................................................... 11 1. Defendant Jumaev's Motion Should be Summarily Denied.................................. 12 2. Section 702 Is Constitutional ....................................................................................12 3. The Collection In this Case Was Lawfully Authorized and Conducted................................................................................................................... 13 4. Defendants' Motion for Discovery of the Section 702 Materials Should Be Denied....................................................................................................... 13 5. No Franks Hearing Should Be Held......................................................................... 14 C. BACKGROUND........................................................................................................ 14 1. The FBl's Investigation of the Defendants.............................................................. 14 2. Procedural History..................................................................................................... 14 3. Overview of the FAA Collection at Issue.................................................................16 a. CLASSIFIED MATERIAL REDACTED b. CLASSIFIED MATERIAL REDACTED 1. CLASSIFIED MATERIAL REDACTED a. CLASSIFIED MATERIAL REDACTED b. CLASSIFIED MATERIAL REDACTED c. CLASSIFIED MATERIAL REDACTED 2. CLASSIFIED MATERIAL REDACTED
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D. OVERVIEW OF FISA AND THE FISA AMENDMENTS ACT......................... 17 1. The Foreign Intelligence Surveillance Act............................................................... 17 2. The Protect America Act and the FISA Amendments Act of 2008.......................21 3. Section 702 of the FISA Amendments Act...............................................................25
a. The Government's Submission to the FISC................................................26 b. The FISC's Order(s)......................................................................................28 c. Implementation of Section 702 Authority....................................................28 d. Targeting and Minimization Procedures.....................................................29
1. Targeting Procedures..........................................................................30 a. CLASSIFIED MATERIAL REDACTED b. CLASSIFIED MATERIAL REDACTED
2. Minimization Procedures.....................................................................30 e. Oversight.........................................................................................................31 f. District Court Review of FISC Orders and Section 702
Collection ........................................................................................................ 31 II. DEFENDANT JUMAEV'S MOTION SHOULD BE DENIED........................................33 III. DEFENDANTS' CONSTITUTIONAL ARGUMENTS LACK MERIT.........................33
A. THE ACQUISTION OF FOREIGN INTELLIGENCE INFORMATION UNDER SECTION 702 IS LAWFUL UNDER THE FOURTH AMENDMENT .......................................................................................................... 34
1. There is No Judicial Warrant Requirement Applicable to Foreign Intelligence Collection Targeted at Foreign Persons Abroad................................36 a. The Fourth Amendment Generally Does Not Apply to Non-U.S. Persons Abroad.............................................................................36
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b. Incidental Collection of U.S. Person Communications Pursuant to Intelligence Collection Lawfully Targeting Non-U.S. Persons Located Outside the United States Does Not Trigger a Warrant Requirement.. .........................................................37
c. The Location of the Search Does Not Trigger a Warrant Requirement. .................................................................................................. 40
2. The Foreign Intelligence Exception Applies............................................................41
a. The "Special Needs" Doctrine.......................................................................41 b. The Foreign Intelligence Exception..............................................................43
c. The Government's Purpose in Section 702 Collection Goes Beyond Ordinary Crime Control. ................................................................46
d. A Warrant or Probable Cause Requirement Would Be Impracticable..................................................................................................46
e. A Warrant Requirement Would Inappropriately Interfere with Executive Branch Discretion in the Collection of Foreign Intelligence .......................................................................................49
f. Truong Does Not Preclude Application of the Foreign Intelligence Exception to Section 702 Collection.........................................49
3. The Government's Collection of Foreign Intelligence Information Pursuant to Section 702 Is Constitutional Under the Fourth Amendment's General Reasonableness Test.. .........................................................52 a. Acquisitions Under Section 702 Advance the Government's Compelling Interest in Obtaining Foreign Intelligence Information To Protect National Security...................................................55
b. Defendants Have, At Most, Limited Expectations of Privacy in Communications Obtained Through Targeting Non-U.S. Persons Outside the United States................................................................58
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1. Senders ofelectronic communications do not retain a reasonable expectation ofprivacy in communications once they arrive at their destination.............................................................59
2. CLASSIFIED MATERIAL REDACTED 3. CLASSIFIED MATERIAL REDACTED 4. Any remaining expectation ofprivacy in the international
communications at issue was significantly diminished........................60 c. The Privacy Interests of U.S. Persons Are Protected by Stringent
Safeguards and Procedures...........................................................................62 1. Senior officials certify that the government's procedures
satisfy statutory requirements..............................................................62 2. Targeting procedures ensure that the government targets
only non-US. persons reasonably believed to be outside the United States........................................................................................63 3. Minimization procedures protect the privacy ofUS. persons whose communications are acquired.....................................64 4. A significant purpose ofthe acquisition must be to obtain foreign intelligence information..........................................................71 5. Executive Branch, Congressional, and Judicial oversight..................71 6. Prior Judicial review...........................................................................73 d. Collection Under Section 702 Has Sufficient Particularity........................73 B. SECTION 702 IS CONSISTENT WITH ARTICLE 111........................................76 C. THE GOOD FAITH EXCEPTION APPLIES....................................................... 80 IV. THE SECTION 702 INFORMATION WAS LAWFULLY ACQUIRED AND CONDUCTED IN CONFORMITY WITH AN ORDER OF AUTHORIZATION OR APPROVAL................................................................................82
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A. . CLASSIFIED MATERIAL REDACTED B. THE APPLICABLE TARGETING PROCEDURES MET
THE STATUTORY REQUIREMENTS.................................................................83 C. THE APPLICABLE MINIMIZATION PROCEDURES MET THE
STATUTORY REQUIREMENTS...........................................................................83 D. CLASSIFIED MATERIAL REDACTED 1. Relevant Facts............................................................................................................83
a. CLASSIFIED MATERIAL REDACTED · b. CLASSIFIED MATERIAL REDACTED
c. CLASSIFIED MATERIAL REDACTED 2. CLASSIFIED MATERIAL REDACTED
a. CLASSIFIED MATERIAL REDACTED b. CLASSIFIED MATERIAL REDACTED c. CLASSIFIED MATERIAL REDACTED d. CLASSIFIED MATERIAL REDACTED 3. CLASSIFIED MATERIAL REDACTED a. CLASSIFIED MATERIAL REDACTED b. CLASSIFIED MATERIAL REDACTED c. CLASSIFIED MATERIAL REDACTED d. CLASSIFIED MATERIAL REDACTED 4. CLASSIFIED MATERIAL REDACTED a. CLASSIFIED MATERIAL REDACTED
6

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b. CLASSIFIED MATERIAL REDACTED 5. CLASSIFIED MATERIAL REDACTED
a. CLASSIFIED MATERIAL REDACTED b. CLASSIFIED MATERIAL REDACTED V. DEFENDANTS' DISCOVERY MOTION SHOULD BE DENIED.................................85 A. FISA PROVISIONS GOVERNING REVIEW AND DISCLOSURE..................86 B. IN CAMERA, EX PARTE REVIEW OF THE FISA MATERIALS IS THE RULE .......................................................................................................................... 87 C. DEFENSE PARTICIPATION IS NOT NECESSARY TO THIS COURT'S REVIEW ..................................................................................................................... 88 D. DEFENDANTS' ARGUMENTS IN SUPPORT OF DISCLOSURE CONTRAVENE FISA'S STANDARDS AND OTHERWISE LACK MERIT...89 VI. DEFENDANTS ARE NOT ENTITLED TO A HEARING UNDER FRANKS v. DELAWARE...........................................................................................................................94 VII. CONCLUSION......................................................................................................................97
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I. INTRODUCTION A. OVERVIEW 1The government is filing this unclassified memorandum in opposition to:
(1) Defendant Jamshid Muhtorov's ("Muhtorov") "Motion to Suppress Evidence Obtained or Derived from Surveillance Under the FISA Amendments Act and Motion for Discovery," which was joined by Defendant Bakhtiyor Jumaev ("Jumaev") ("defendants' motion") (CR 520; CR 521). In essence, the defendants' motion seeks: (1) disclosure ofrecords and documents relating to,.among other things, the government's acquisition, use, and dissemination of either defendants' communications acquired pursuant to Section 702 of the FISA Amendments Act of 2008 ("FAA") (collectively, "the Section 702 materials"); and (2) suppression of all evidence obtained or derived from surveillance conducted pursuant to the FAA. For the reasons set forth below, the Court should deny the defendants' motion in its entirety.
The defendants' motion for discovery and suppression was filed in response to the government's Second FISA Notice as to Muhtorov, filed on October 25, 2013, which provided "notice to defendant and the Court, pursuant to 50 U.S.C. §§ 1806(c) and 1881e(a), that the government has offered into evidence or otherwise used or disclosed in proceedings, including at trial," in this case "information derived from the acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 [FISA], as amended, 50 U.S.C. § 1881a." ("Government's Second Notice," CR 457). The Government's Second Notice was filed based on a recent determination by the government that certain evidence referenced in the original FISA notification, filed on February 7, 2012 (CR 12), obtained or derived from collection conducted pursuant to Title I and Title III of FISA, was itself also derived from Title VII collection 1 CLASSIFIED MATERIAL REDACTED
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as to which defendant Muhtorov was aggrieved. Section 702 of the PAA (part of Title VII of PISA and codified at Section 1881a of PISA) permits the targeting ofnon-U.S. persons reasonably
believed to be located outside the United States, in order to acquire foreign intelligence information,
subject to certain statutory requirements. See 50 U.S.C. § 1881a. Defendants seek suppression of the Section 702-derived evidence used in this case, as well as discovery of the PISA materials.2
The defendants' motion has triggered this Court's review of the relevant Section 702
materials pursuant to 50 U.S.C. §§ 1881e(a) and 1806(f) to determine whether the Section 702
intelligence collection at issue herein was lawfully authorized and conducted in accordance with the
requirements of the PAA. In particular, Section 1806(f) provides that, where the Attorney General certifies that "disclosure or an adversary hearing would harm the national security of the United
States, a district court "shall, notwithstanding any other law... 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."
50 U.S.C. § 1806(f); see also 50 U.S.C. § 1825(g). This same procedure applies to motions to disclose Section 702-related materials or to suppress information obtained or derived from Section
2 The defendants' suggestion that some bad faith or bad purpose underlies this determination is unfounded. Defs. Mot. 5-7. The Department has always understood that it is required to notify any "aggrieved person" of its intent to use or disclose, in a proceeding against such person, any information obtained or derived from Title VII collection as to which that person is an aggrieved person, in accordance with 50 U.S.C. §§ 1806(e), and 1881e(a). Prior to recent months, however, the Department had not considered the particular question of whether and under what circumstances information obtained through electronic surveillance under Title I or physical search under Title III could also be considered to be derived from prior collection under Title VIL After conducting a review of the issue, the Department determined that information obtained or derived from Title I or Title III PISA collection may, in particular cases, also be derived from prior Title VII collection, such that notice concerning both Title I/III and Title VII collections should be given in appropriate cases with respect to the same information. The Second Notice filed in this case, which the government filed based on its own review, resulted from that determination and demonstrates good faith, not misconduct.
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702 acquisitions, which is deemed to be electronic surveillance conducted pursuant to Title I of FISA for purposes of such motions. 50 U.S.C. § 1881e(a). The Attorney General has filed such a declaration in this case. 3
Once the Attorney General files a declaration, 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(£). As explained below, this Court should conduct an in camera, ex parte review of the documents relevant to defendants' motion, in accordance with the provisions of 50 U.S.C. §§ 1881e(a) and 1806(£). See also 50 U.S.C. § 1825(g).
The government expects that the Court will conclude from its in camera, ex parte review that: (1) defendant Jumaev lacks standing to challenge the FAA in this case; (2) the acquisition, retention, and dissemination of foreign intelligence information pursuant to the FAA at issue herein was lawfully authorized and conducted in accordance with the Act; (3) the FAA complies with the Fourth Amendment and Article III of the U.S. Constitution; (4) evidence obtained or derived from the FAA collection at issue herein should not be suppressed; and (5) the defendants' discovery requests should be denied to the extent that they seek disclosure of materials related to the FAA.
CLASSIFIED MATERIAL REDACTED In opposition to the defendants' motion, the government submits this unclassified memorandum of law. In this unclassified version of the classified memorandum, all classified information, and all header, footer, and paragraph classification markings have been redacted.4
3 The Declaration and Claim of Privilege of the Attorney General of the United States is being filed both publicly and as part of this classified filing. See Sealed Exhibit 1.
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CLASSIFIED MATERIAL REDACTED B. SUMMARY OF THE ARGUMENT In subsequent sections of this Memorandum, the government will: (1) present an overview of the case facts, background, procedural history, and summary of the collection at issue; (2) give an overview of Section 702 of the FAA; (3) describe the Section 702 certification(s) and summarize the collection at issue in this case; (4) establish defendant Jumaev' s lack of standing to challenge the constitutionality of Section 702 or the Section 702 collection at issue in this case; (5) establish the constitutionality of Section 702 as applied in this case; (6) establish that the specific Section 702 collection at issue in this case was legally authorized and conducted pursuant to the applicable targeting and minimization procedures; (7) explain why defendants' motion for discovery of the Section 702 materials should be denied; and (8) explain why defendants are not entitled to a hearing under Franks v. Delaware, 438 U.S. 154 (1978). All of the government's pleadings and supporting materials are being submitted not only to oppose the defendants' motion but also to support the United States' request, pursuant to FISA, that this Court (1) conduct an in camera, ex parte review of the Section 702 materials; (2) find that the Section 702 acquisition was lawfully authorized and conducted in conformity with the Constitution, the statute, and the approved targeting and minimization procedures; (3) hold that disclosure to the defense of the Section 702 materials and the government's classified submissions is not required because the Court is able to make an accurate determination of the legality of the collections at issue without disclosing any portion thereof; and (4) order that none of the Section 702 materials be disclosed to the defense, and instead that they be maintained by the United States under seal.
4 As a· result of the redactions, the pagination and footnote numbering of the classified memorandum and the unclassified memorandum are different.
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1. Defendant Jumaev's Motion Should be Summarily Denied Because the government is not entering into evidence or otherwise using or disclosing information obtained or derived from Section 702 collection to which Jumaev is aggrieved in this prosecution, he has no standing to challenge the constitutionality of Section 702 or the Section 702 collection at issue in this case. 50 U.S.C. § 1806(d); see 50 U.S.C. § 1825(d); see also 50 U.S.C. § 1881e(a). See infra Part II. 2. Section 702 Is Constitutional In their motion to suppress evidence derived from Section 702 foreign intelligence acquisition, defendants argue that Section 702 of the FAA violates the Fourth Amendment and Article III of the United States Constitution. As an initial matter, this Court's review should be limited to the constitutionality of the statute as applied to the acquisition of the information challenged in this case. See In re Directives Pursuant to Section 105B ofthe Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1010 (FISA Ct. Rev. 2008) ("Where, as here, a statute has been implemented in a defined context, an inquiring court may only consider the statute's constitutionality in that context; the court may not speculate about the validity of the law as it might be applied in different ways or on different facts"). As applied to the acquisition at issue here, Section 702 is constitutional. See infra at Part III. First, the Section 702 collection at issue was reasonable under the Fourth Amendment. The collection lawfully targeted non-U.S. person(s) located outside the United States, who generally are not protected by the Fourth Amendment, for foreign intelligence purposes. That U.S. persons' communications might be incidentally acquired during such collection does not trigger a warrant requirement. Nor does that fact render the collection unreasonable, in light of the compelling
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national security interests at stake and the extensive procedural safeguards that protect the privacy interests of U.S. persons. See infra at Part III.A.
Second, Section 702, in requiring the Foreign Intelligence Surveillance Court (FISC) to review the government's proposed certification(s) and implementing procedures for acquisitions, does not place the FISC in a role inconsistent with that accorded to Article III courts under the Constitution. The FISC's role under Section 702 is similar to the ability of federal courts to review ex parte applications for warrants, wiretap orders, and subpoenas. Like those provisions, Section 702 is entirely consistent with governing Article III principles. See infra at Part III.B.
3. The Collection In this Case Was Lawfully Authorized and Conducted In addition to challenging the general constitutionality of Section 702, the defendants also question the government's compliance with the applicable procedures with respect to the specific information that has been used in his case. The government submits that this Court's in camera, ex parte review of the relevant classified materials will establish that the Section 702 acquisition at issue was lawfully authorized and conducted. First, the applicable certification(s) and procedures, all of which were reviewed and approved by the FISC, complied with all of Section 702's requirements. Second, the Section 702 collection at issue was conducted in accordance with the statute and those approved certification(s) and procedures. See infra at Part IV.A-C. CLASSIFIED MATERIAL REDACTED 4. Defendants' Motion for Discovery of the Section 702 Materials Should Be
Denied Because the Attorney General has certified that disclosure of the classified FISA materials would harm the national security of the United States, the Court may disclose these materials (or portions thereof) "only where such disclosure is necessary to make an accurate determination of the
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legality of the surveillance [or search]." 50 U.S.C. § 1806(t) (emphasis added). Here, the government submits that the Court will be able to determine the legality of the Section 702 collection at issue without the need to disclose classified materials to the defense. As the government's submissions make clear, the Section 702 collection was lawful and the defendants' allegations to the contrary may be considered, and rejected, based on an examination of the classified record. Contrary to the defendants' contention, and as this Court's review of the classified record will show, there is no basis for a finding of material misrepresentations or other factors that would indicate a need for disclosure in this case. Nor are the Section 702 materials exculpatory or otherwise subject to disclosure under Brady v. Maryland, 373 U.S. 83 (1963). See infra at Part V.
5. No Franks Hearing Should Be Held Finally, defendants are not entitled to a hearing under Franks, 438 U.S. at 154, because there were no material omissions or misrepresentations of fact. Moreover, defendants' reliance on alleged governmental misconduct and misrepresentations in other, unrelated matters cannot establish a Franks violation in this case. There is no basis on which to hold a Franks hearing. See infra Part VI. C. BACKGROUND 1. The FBl's Investigation of the Defendants CLASSIFIED MATERIAL REDACTED 2. Procedural History On January 19, 2012, the government charged Muhtorov by criminal complaint in the District of Colorado with providing material support or resources to a designated FTO, namely, the IJU, in violation of 18 U.S.C. § 23398. (CR 1). On January 23, 2012, a federal grand jury sitting in the District of Colorado returned a one-count indictment charging Muhtorov with the same offense.
14

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1 (CR 5). On March 20, 2012, the grandjury returned a superseding indictment charging Muhtorov

with two counts of providing and attempting to provide material support and resources to the IJU,

and charging Muhtorov and Jumaev with one count of providing and attempting to provide material

support and resources to the IJU, and one count of conspiring to commit that offense, all in violation

of 18 U.S.C. § 2339B. (CR 50). The grandjury returned a second superseding indictment on March

22, 2012, containing the same charges as those set forth in the first superseding indictment. (CR 59).

On February 7 and April 4, 2012, pursuant to 50 U.S.C. §§ 1806(c) and 1825(d), the United

States provided notice to Muhtorov and Jumaev respectively that it intended "to offer into evidence

or otherwise use or disclose in any proceedings in the above-captioned matter, information obtained

and derived from electronic surveillance or physical search conducted pursuant to the Foreign

Intelligence Surveillance Act of 1978 (FISA), as amended, 50 U.S.C. §§ 1801-1811, 1821-1829."

(CR 12, 68). The statutes cited in those notices permit electronic surveillance and physical search

when a significant purpose is to obtain foreign intelligence information, provided that the

government establishes to the satisfaction of the FISC that, among other things, there is probable

cause to believe that the target is an agent of a foreign power. See 50 U.S.C. §§ 1801, 1804-1805,

1821, 1823-24. Electronic surveillance under these provisions is commonly referred to as Title I

collection, while physical search is commonly referred to as Title III collection.

On February 8, 2012, Muhtorov filed a motion to suppress PISA-acquired evidence for

purposes of detention (CR 14), and on May 25, 2012, Muhtorov filed a supplemental motion to

suppress PISA-acquired evidence. (CR 125). On July 30, 2012, Jumaev filed his combined FISA-

related motions. (CR 157). After conducting an ex parte, in camera review of the relevant material,

the Court denied both defendants' PISA-related motions on September 24, 2012. (CR 196).

15
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On October 25, 2013, pursuant to 50 U.S.C. §§ 1806(c) and 1881e(a), the United States provided the Second FISA Notice to Muhtorov, stating that it intended "to offer into evidence or otherwise use or disclose in any proceedings in the above-captioned matter information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended, 50 U.S.C. §1881a." (CR 457). On January 29, 2014, Muhtorov filed a motion to suppress evidence obtained or derived from collection under Section 702, together with a motion for discovery of materials related to the Section 702 collection. (CR 520).
The government has not provided similar notice to Jumaev under 50 U.S.C. § 1881a. Jumaev filed a motion requesting that the court order the government to provide him notice as to its intent to use evidence obtained or derived from surveillance authorized by the FAA. (CR 458). In its response and surreply to Jumaev's motion, the government stated that it does not intend to introduce or C>therwise use or disclose against Jumaev in any trial, hearing or other proceeding in this case evidence obtained or derived from Section 702 acquisition to which Jumaev is an aggrieved person. Thus, Jumaev is not entitled to any additional notice under FISA. (CR 470, 525). Notwithstanding the fact that he lacks statutory standing to seek suppression of any Section 702obtained or derived evidence, on January 30, 2014, Jumaev filed a motion to adopt Muhtorov's · Section 702-related suppression motion and motion for discovery. (CR 521).
3. Overview of the FAA Collection at Issue As set forth in the government's submissions in the previous FISA litigation, the government intends to introduce evidence obtained and derived from electronic surveillance and searches that were conducted pursuant to Titles I and III of FISA. This Court has already upheld the legality of that Title I and III collection. (CR 196.) Thus, at issue in defendants' instant motion is the use of
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evidence obtained or derived from collection pursuant to Section 702 to which defendant Muhtorov

is an aggrieved person.

CLASSIFIED MATERIAL REDACTED

a. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED

b. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED

1. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED

a. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED

b. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED

c. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED

2. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED

D. OVERVIEW OF FISA AND THE FISA AMENDMENTS ACT

1. The Foreign Intelligence Surveillance Act

Since the founding of this country, the government has relied on foreign intelligence

collection to protect the nation. For the majority of that time and through the present day, much of

this intelligence gathering has been conducted under the President's constitutional authority over

t

national security and foreign affairs, with methods of surveillance evolving over time in light of

rJ

t

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developing technologies. Presidents have authorized warrantless wiretaps for foreign intelligence

purposes since at least 1940. See, e.g., United States v. United States Dist. Ct, 444 F.2d 651, 669-71

(6th Cir. 1971) (reproducing as an appendix memoranda from Presidents Roosevelt, Truman, and

Johnson).

In 1978, Congress enacted FISA "to regulate the use of electronic surveillance within the

United States for foreign intelligence purposes." See S. Rep. No. 604, 95th Cong., 1st Sess. 7

(1977). The statute was a response to congressional investigations into abuses of surveillance

directed at specific American citizens and political organizations. Id at 7-8. FISA was designed to

provide a check against such abuses by placing certain types of foreign intelligence surveillance under the oversight of the FISC. 5

Before the United States may conduct "electronic surveillance," as defined in FISA, to obtain

foreign intelligence information, the statute generally requires the government to obtain an order

from a judge on the FISC. See 50 U.S.C. § 1805; see 50 U.S.C. §§ 1803(a), 1804(a). To obtain such

an order, the government must establish, inter alia, probable cause to believe that the "target of the

electronic surveillance is a foreign power or an agent of a foreign power" and that "each of the

I

facilities or places at which the surveillance is directed" (inside or outside the United States) "is being used, or is about to be used, by a foreign power or an agent of a foreign power." 50 U.S.C. §

1805(a)(2). The government must also establish that the "minimization procedures" that it will

employ are reasonably designed in light of the purpose and technique of the particular surveillance

to minimize the acquisition and retention, and prohibit the dissemination, of nonpublic information

concerning unconsenting "United States persons," consistent with the government's need to obtain,

5 The judges which sit on the FISC are Article III judges with life tenure that serve by designation of the Chief Justice of the Supreme Court of the United States. 50 U.S.C. § 1803(a).

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produce, and disseminate foreign intelligence information. See 50 U.S.C. §§ 180l(h), 1805(a)(3)

and (c)(2)(A).

In FISA, Congress limited the definition of the "electronic surveillance" governed by the

statute to four discrete types of domestically-focused foreign intelligence collection activities. See

50 U.S.C. § 1801(f). Specifically, Congress defined "electronic surveillance" to mean (1) the

acquisition of the contents of a wire or radio communication obtained by "intentionally targeting" a

"particular, known United States person who is in the United States" in certain circumstances; (2)

the acquisition of the contents of a wire communication to or from a "person in the United States"

when the "acquisition occurs in the United States"; (3) the intentional acquisition of the contents of

I

certain radio communications when the "sender and all intended recipients are located within the

1

United States"; and (4) the installation or use of a surveillance device "in the United States" for

monitoring or to acquire information other than from a wire or radio communication in certain

circumstances. Id. (emphasis added); cf 50 U.S.C. § 1801(i) (defining "United States person" to

mean, as to natural persons, a citizen or permanent resident of the United States).

Because ofFISA's definition of "electronic surveillance," FISA as originally enacted did not

apply to the vast majority of surveillance the government conducted outside the United States. This

was true even if that surveillance might specifically target U.S. persons abroad or incidentally

acquire, while targeting third parties abroad, communications to or from U.S. persons or persons

located in the United States. See S. Rep. No. 701, 95th Cong., 2d Sess. 7 & n.2, 34-35 & n.16 (1978).6 Congress was told in the hearing leading to FISA's enactment that the acquisition of

6 Executive Order No. 12333, as amended, addresses, inter alia, the government's "human and technical collection techniques ... undertaken abroad." Exec. Order No. 12333, § 2.2, 3 C.F.R. 210 (1981 Comp.), reprinted as amended in 50 U.S.C. § 401 note (Supp. II 2008). That Executive Order governs the intelligence community, inter alia, in collecting "foreign intelligence and counter-
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international communications at the time did not rely on the four types of "electronic surveillance"
covered by the definitions in the proposed legislation - including wire interceptions executed in the
United States - and thus those operations would not be affected by FISA. See Foreign Intelligence
Surveillance Act: Hearing before the Subcomm. On Crim. Laws and Procedures ofthe S. Judiciary Comm., 94th Cong., 2d Sess., at 11 ("Mar. 29, 1976 FISA Hrg.").7 Congress heard similar testimony from other witnesses. 8 Accordingly, at the time FISA was enacted, Congress understood that most
foreign-to-foreign and international communications fell outside the definition of "electronic
surveillance." See S. Rep. No. 701, 95th Cong. 2d Sess. 71 ("[T]he legislation does not deal with
international signals intelligence activities as currently engaged in by the National Security
Agency."). Where the government did not intentionally target a particular, known U.S. person in the
United States, FISA allowed the government to monitor international communications through radio
intelligence" abroad, collecting "signals intelligence information and data" abroad, and utilizing intelligence relationships with "intelligence or security services of foreign governments" that independently collect intelligence information. Id. §§ l.3(b)(4), l.7(a)(l), (5) and (c)(l). 7 Attorney General Levi subsequently elaborated: "The bill does not purport to cover interceptions of all international communications where, for example, the interception would be accomplished outside of the United States, or, to take another example, a radio transmission that does not have both the sender and all intended recipients within the United States." Electronic Surveillance within the United States for Foreign Intelligence Purposes: Hearings before the Subcomm. On Intel. And the Rights ofAmericans ofthe S. Select Comm. On Intel., 94th Cong., 2d Sess., 180-81 (1976). 8 See, e.g., Foreign Intelligence Surveillance Act: Hearings before the Subcomm. On Courts, Civil Liberties, and the Admin. OfJustice ofthe H Comm. On the Judiciary, 94th Cong., 2d Sess. 8 (1976) (statement of former Justice Department official Philip Lacovara) ("[N]ot covered [under the bill] are international wire communications since it is relatively simple, I understand, to intercept these communications at a point outside the United States. Similarly,* * *the bill would have no application whatsoever to international radio traffic."); Mar. 29, 1976 FISA Hrg. 31 testimony of Morton Halperin) (stating that "ifl am an American citizen [in the United States] and I make a phone call to London, and the Government picks it up on a transatlantic cable under the ocean, it is not covered," and "if it goes by microwave, or if it passes through Canada, it would not be covered").
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surveillance, or wire surveillance of transoceanic cables offshore or on foreign soil, outside the statute's regulatory framework.
2. The Protect America Act and the FISA Amendments Act of 2008 In 2006, Congress began considering proposed amendments to FISA aimed at modernizing the statute in response to changes in communications technology since its original enactment. See Modernization ofthe Foreign Intelligence Surveillance Act: Hearing before the H Permanent Select Comm. On Intel., 109th Cong., 2d Sess. (2006). Congress took up the issue concurrently with an inquiry into the Terrorist Surveillance Program ("TSP") - a program authorized by the President after the terrorist attacks of September 11, 2001, which allowed the NSA to intercept communications into, and out of, the United States where the government reasonably believed that a communicant included a member or agent of al Qaeda or an affiliated terrorist organization. S. Rep. No. 209, 110th Cong., 1st Sess. 2-5 (2007). The TSP was not carried out under FISA or with the authorization of the FISC. The President's confirmation of the program in 2005 led Congress to "inquire vigorously" into the TSP and to "carefully review[] the impact of technological change on FISA collection to assess whether amendments to FISA should be enacted." Id. at 2. The Director of National Intelligence ("DNI") and other government officials explained the need for this legislation in various appearances before Congress from 2006 to 2008. As the DNI explained, it was necessary to amend FISA because its definition of "electronic surveillance" was "tie[d] to a snapshot of outdated technology." Modernization ofthe Foreign Intelligence Surveillance Act: Hearing before the S. Select Comm. on Intel., 110th Cong., 1st Sess. 19 (2007) ("May 1, 2007 FISA Modernization Hrg."), at 19. The DNI explained further that, since the creation of the definition three decades previously, "[c]ommunications technology ha[d] evolved in ways that have had unforeseen consequences under [the statute]." Id.
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More specifically, the DNI explained that, whereas international communications were predominantly carried by radio when FISA was enacted, that was no longer true: "Communications that, in 1978, would have been transmitted via radio or satellite, are now transmitted principally by fiber optic cables" - and therefore qualify as wire communications under FISA. Id Thus, many international communications that would have been generally excluded from FISA regulation in 1978, when they were carried by radio, were now potentially included, due merely to a change in technology rather than any intentional decision by Congress. Id 9
Further, the DNI stated, with respect to the collection of wire communications, FISA's "electronic surveillance" definition "places a premium on the location of the collection." May 1, 2007 FISA Modernization Hrg. 19; see 50 U.S.C. § 1801(±)(2). The DNI explained that technological advances had rendered this distinction outmoded as well: "Legislators in 1978 could not have been expected to predict an integrated global communications grid that makes geography an increasingly irrelevant factor. Today, a single communication can transit the world even if the two people communicating are only located a few miles apart." May 1, 2007 FISA Modernization Hrg. 19. In this environment, regulating communications differently based on the location of collection arbitrarily limits the government's intelligence-gathering capabilities. As the Director of the NSA elaborated in an earlier hearing:
[As a communication travels the global communications network,] NSA may have multiple opportunities to intercept it as it moves and changes medium. As long as a co~unication is otherwise lawfully targeted, we should be indifferent to where the intercept is achieved. Signals intelligence is a difficult art and science, especially in today's telecommunication universe. Intercept of a particular communication ... is
9 Compare 50 U.S.C. § 1801(±)(2) (defining wire communication as "electronic surveillance" if, inter a/ia, one party is in the United States) with 50 U.S.C. § 1801(±)(3) (defining radio communication as "electronic surveillance" only if the sender and all intended recipients are in the United States).
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always probabilistic, not deterministic. No coverage is guaranteed. We need to be able to use all the technological tools we have. FISAfor the 21st Century: Hearing before the S. Comm. On the Judiciary, 109th Cong., 2d Sess. (2006) (statement ofthen-NSA Director General Michael V. Hayden). Although FISA was originally crafted to accommodate the government's collection of foreign and international communications as those operations were commonly conducted in 1978, the government in 2008 faced a different communications technology environment and a different terrorist threat and needed greater flexibility than the statute's terms allowed. 10 The fix needed for this problem, as a Department of Justice official put it, was a "technology-neutral" framework for surveillance of foreign targets - focused not on "how a communication travels or where it is intercepted," but instead on "who is the subject of the surveillance, which really is the critical issue for civil liberties purposes." May 1, 2007 FISA Modernization Hrg. 46 (statement of Asst. Att'y Gen. Kenneth L. Wainstein). That review initially led to the enactment in August 2007 of the Protect America Act ("PAA"), Pub. L. No. 110-55 (2007). Congress enacted the PAA in order to bring FISA "up to date with the changes in communications technology," while at the same time preserving "the privacy interests of persons in the United States" and addressing the "degraded capabilities in the face of a 10 As the DNI testified: In today's threat environment, ... FISA ... is not agile enough to handle the community's and the country's intelligence needs. Enacted nearly 30 years ago, it has not kept pace with 21st century developments in communications technology. As a result, FISA frequently requires judicial authorization to collect the communications of non-U.S. - that is foreign - p[ersons] located outside the United States ... This clogs FISA process with matters that have little to do with protecting civil liberties or privacy of persons in the United States. Modernizing FISA would greatly improve that process and relieve the massive amounts of analytic resources currently being used to craft FISA applications. May 1, 2007 FISA Modernization Hrg. 18.
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heightened terrorist threat environment" that resulted from FISA' s "requirement of a court order to collect foreign intelligence about foreign targets located overseas." S. Rep. No. 209, l lOth Cong., 1st Sess. 5-6. The PAA fulfilled these purposes by empowering the DNI and the Attorney General to jointly authorize "the acquisition of foreign intelligence information concerning persons reasonably believed to be located outside the United States." 50 U.S.C. § 1805b(a). To authorize such collection, the PAA required the DNI and the Attorney General to certify, inter alia, that there were reasonable procedures in place for determining that the acquisition concerned persons (whether U.S. persons or non-U.S. persons) reasonably believed to be located outside the United States ("targeting procedures"), there were minimization procedures in place that satisfied FISA's requirements for such procedures, and a significant purpose of the acquisition was to acquire foreign intelligence information. See 50 U.S.C. § 1805b(a)(l)-(5). The PAA also authorized the FISC to review the DNI and Attorney General's determination regarding the reasonableness of the targeting procedures. Finally, the PAA authorized private parties who had been directed by the government to assist in effectuating surveillance under the statute to challenge the legality of such a directive in the FISC, 50 U.S.C. § 1805b(h)(l)(A), and to appeal an adverse decision to the Foreign Intelligence Surveillance Court of Review ("FISA Court of Review"), id. § 1805b(i).11 One private party brought such a challenge, and both the FISC and the FISA Court of Review upheld the PAA. See In re Directives, 551 F.3d 1004 (holding that surveillance authorized under the PAA fell within the foreign intelligence exception to the warrant requirement and was otherwise reasonable under the Fourth Amendment).
11 The FISA Court of Review is composed of three United States District or Circuit Judges who are designated by the Chief Justice of the Supreme Court. See 50 U.S.C. § 1803(b).
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3. Section 702 of the FISA Amendments Act

Due to a sunset provision, the PAA expired in February 2008. In July 2008, Congress

enacted the FISA Amendments Act of2008 ("FAA"), Pub. L. No. 110-261, § 101(a)(2), 122 Stat. 2436.12 The FAA provision at issue here, Section 702 of the FAA (50 U.S.C. § 1881a),

"supplements pre-existing FISA authority by creating a new framework under which the government

may seek the FISC's authorization of certain foreign intelligence surveillance targeting ... non-U.S. persons located abroad." Clapper v. Amnesty Int'! USA, 133 S. Ct. 1138, 1144 (2013). 13 Section

702 provides that, "upon the issuance" of an order from the FISC, the Attorney General and DNI

I
i

may jointly authorize the "targeting of persons reasonably believed to be located outside the United States" for a period of up to one year to acquire "foreign intelligence information." 50 U.S.C. §

188 la(a). 14

Under Section 1881a(b), the authorized acquisition must comply with each of the following

requirements, which are directed at preventing the intentional targeting of U.S. persons or persons

located within the United States, or collection of communications known at the time of acquisition to

be purely domestic:

(1) The authorized acquisition "may not intentionally target any person known at the time of acquisition to be located in the United States." 50 U.S.C. § 1881a(b)(l).

12 In 2012, Congress reauthorized the FAA for an additional five years. See FISA Amendments Act Reauthorization Act of2012, Pub. L. No. 112-238, 126 Stat. 1631.
13 The FAA enacted other amendments to FISA, including provisions not at issue in this case that govern the targeting of United States persons outside the United States. See 50 U.S.C. §§ 1881b, 1881c.
14 The Attorney General and DNI may authorize targeting to commence under Section 702 before the FISC issues its order if they determine that certain "exigent circumstances" exist. 50 U.S.C. § 1881a(a), (c)(2). If that determination is made, the Attorney General and DNI must, as soon as practicable (and within seven days), submit for FISC review their Section 702 certification, including the targeting and minimization procedures used in the acquisition. 50 U.S.C. 1881a(g)(l)(B); see 50 U.S.C. § 1881a(d), (e), (g)(2)(B).

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(2) It may not intentionally target a person outside the United States "if the purpose . . . is to target a particular, known person reasonably believed to be in the United States." 50 U.S.C. § 188la(b)(2). (3) It "may not intentionally target a United States person reasonably believed to be located outside the United States." 50 U.S.C. § 188la(b)(3). (4) It may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States. 50 U.S.C. § 188la(b)(4). (5) The acquisition must be "conducted in a manner consistent with the [F]ourth [A]mendment." 50 U.S.C. § 188la(b)(5). Section 702 does not require an individualized court order addressing each non-U.S. person to be targeted under its provisions. Section 702 instead permits the FISC to approve annual certifications by the Attorney General and DNI that authorize the acquisition of certain categories of foreign intelligence information through the targeting of non-U.S. persons reasonably believed to be located outside the United States.
a. The Government's Submission to the FISC Section 702 requires the government to obtain the FISC's approval of (1) the government's certification regarding the proposed collection, and (2) the targeting and minimization procedures to be used in the acquisition. 50 U.S.C. § 188la(a), (c)(l), (i)(2), (3); see 50 U.S.C. § 188la(d), (e), (g)(2)(B). The certification must be made by the Attorney General and DNI and must attest that: (1) there are targeting procedures in place, that have been or will be submitted for approval by the FISC, that are reasonably designed to ensure that the acquisition is limited to targeting persons reasonably believed to be located outside the United States and to prevent the intentional acquisition of purely domestic communications; (2) the minimization procedures meet the definition of minimization procedures set forth in Titles I and III of FISA (50 U.S.C. §§ 180l(h), 1821(4)) and have been or will be submitted for approval by the FISC;
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(3) guidelines have been adopted by the Attorney General to ensure compliance with the aforementioned limitations set forth in Section 1881a(b) prohibiting, among other things, the targeting of United States persons; (4) the targeting and minimization procedures and guidelines are consistent with the Fourth Amendment; (5) a significant purpose of the acquisition 1s to obtain foreign intelligence information; (6) the acquisition involves obtaining "foreign intelligence information from or with the assistance of an electronic communication service provider"; and (7) the acquisition complies with the limitations in Section 1881 a(b). 15 50 U.S.C. § 1881a(g)(2)(A)(i) - (vii); see 50 U.S.C. §§ 1801(h), 1821(4), 1881a(b); cf. 50 U.S.C. §§ 1801(e), 1881(a) (defining "foreign intelligence information"). Such certifications are "not required to identify the specific facilities, places, premises, or property at which an acquisition authorized under [section 1881a(a)] will be directed or conducted." 50 U.S.C. § 1881a(g)(4). 16 The certification must include copies of the targeting and minimization procedures, and a supporting affidavit, "as appropriate," from the head of an Intelligence Community element or other Senate-confirmed official "in the area of national security." 50 U.S.C. § 1881a(g)(2)(B) - (C). Finally, the certification must include "an effective date for the authorization that is at least 30 days after the submission of the written certification" to the FISC. 50 U.S.C. § 1881a(g)(2)(D)(i). CLASSIFIED MATERIAL REDACTED
15 Those limitations, as described above, generally prevent the intentional targeting of United States persons or persons located within the United States or collection of communications known at the time of acquisition to be purely domestic. 16 CLASSIFIED MATERIAL REDACTED
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b. The FISC's Order(s) The FISC must review the certification, targeting and minimization procedures, and any amendments thereto. 50 U.S.C. § 188la(i)(1) and (2). If the FISC determines that the certification contains all the required elements and concludes that the targeting and minimization procedures and Attorney General guidelines for compliance with the statutory limitations are "consistent with" both the Act and "the [F]ourth [A]mendment," the FISC will issue an order approving the certification and the use of the targeting and minimization procedures. 50 U.S.C. § 188la(i)(3)(A). Ifthe FISC finds deficiencies in the certification or procedures, it must issue an order directing the government to, at the government's election and to the extent required by the court's order, correct any deficiency within 30 days, or cease or not begin implementation of the authorization. 50 U.S.C. § 188la(i)(3)(B). CLASSIFIED MATERIAL REDACTED
c. Implementation of Section 702 Authority The government acquires communications pursuant to Section 702 through compelled assistance from electronic communications service providers. 50 U.S.C. § 188la(h). The government identifies to these service providers specific accounts, addresses, and/or identifiers, such as email addresses and telephone numbers, that the government has assessed, through the application ofFISC-approved targeting procedures, are likely to be used by non-U.S. persons reasonably believed to be located overseas who possess, communicate, or are likely to receive a type of foreign intelligence information authorized for collection under a certification approved by the FISC. See NSA, The National Security Agency: Missions Authorities, Oversight and Partnerships 4 (Aug. 9, 2013) (describing the NSA's collection of foreign intelligence information under Section 702). Such "identifiers are used to select communications for acquisition," and the "[s]ervice providers are
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compelled to assist [the government] in acquiring the communications associated with those identifiers." Id. 17

CLASSIFIED MATERIAL REDACTED

d. Targeting and Minimization Procedures

The government may conduct acquisitions under Section 702 only in accordance with

specific targeting and minimization procedures that are subject to review and approval by the FISC.

50 U.S.C. § 188la(c)(l)(A), (d), (e), and (i)(3)(A). Not only must the targeting procedures be

reasonably designed to restrict acquisitions to the targeting of persons reasonably believed to be

I
I

outside the United States and applied using compliance guidelines to ensure that the acquisitions do not intentionally target U.S. persons or persons located in the United States, 50 U.S.C. §§ 188la(b),

I

(d)(l) and (f)(l)(A), the minimization procedures also must be reasonably designed to minimize any

acquisition of nonpublicly available information about unconsenting U.S. persons, and to minimize

the retention and prohibit the dissemination of any such information that might still be acquired,

consistent with the need to obtain, produce, and disseminate foreign-intelligence information. 50 U.S.C. §§ 180l(h)(l), 1821(4)(A); see 50 U.S.C. § 1881a(e)(l). 18 The FISC, in turn, must

l i

substantively review the targeting and minimization procedures to ensure that they satisfy the statutory criteria and are consistent with the Fourth Amendment. 50 U.S.C. § 188la(i)(2)(B), (C) and (3)(A). ·

I

17 CLASSIFIED MATERIAL REDACTED

18 Minimization procedures may also "allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes." 50 U.S.C. § 1801(h)(3). The definitions of minimization procedures in 50 U.S.C. §§ 1801(h)(4) and 1821(4)(D), which apply only to electronic surveillance approved pursuant to 50 U.S.C. § 1802(a) and physical searches approved pursuant to 50 U.S.C. § 1822(a), respectively, do not apply to acquisitions conducted under Section 702.

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CLASSIFIED MATERIAL REDACTED

1.

Targeting Procedures

CLASSIFIED MATERIAL REDACTED a. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED

b.

CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED 2. Minimization Procedures

As noted above, Section 702 also requires the adoption of minimization procedures that

comply with FISA's definition of such procedures. See 50 U.S.C. § 1881a(e)(l). PISA-compliant

minimization procedures are, in pertinent part:

(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information . . . , shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; [and]

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.
50 U.S.C. § 1801(h); see also 50 U.S.C. § 1821(4); 50 U.S.C. § 1801(e) (defining "foreign
intelligence information").

CLASSIFIED MATERIAL REDACTED

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e. Oversight Section 702 requires that the Attorney General and DNI periodically assess the government's compliance with both the targeting and minimization procedures and with relevant compliance guidelines, and that they submit those assessments both to the FISC and to Congressional oversight committees. 50 U.S.C. § 1881a(l). In addition, not less often than once every six months, the Attorney General must keep the relevant Congressional oversight committees "fully inform[ed]" concerning the implementation of Section 702. 50 U.S.C. § 1881f(a) and (b)(l); see also Clapper, 133 S. Ct. at 1144 ("Surveillance under [Section 702] is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment."). 19
f. District Court Review of FISC Orders and Section 702 Collection The FAA authorizes the use in a criminal prosecution of information obtained or derived from the acquisition of foreign intelligence information under Section 702, provided that advance authorization is obtained from the Attorney General and proper notice is subsequently given to the court and to each aggrieved person against whom the information is to be used. 50 U.S.C. § 1881e(a) provides that information acquired pursuant to Section 702 is "deemed to be" information acquired pursuant to Title I of FISA for, among other things, the purposes of the applicability of the statutory notice requirement and the suppression and discovery provisions of Section 1806.
19 Rule 13(b) of the Rules of Procedures for the FISC requires the government to report, in writing, all instances of non-compliance. FISC R. P. 13b(l) The government reports Section 702 compliance incidents to the FISC via individual notices and quarterly reports. See NSA, Civil Liberties and Privacy Offi~e Report on NSA's Implementation ofFISA Section 702, Apr. 16, 2014, publicly available at http://icontherecord/tumblr.com, at 3. Depending on the type or severity of compliance incidents, the NSA also may promptly notify the relevant Congressional intelligence committees of an individual compliance matter.
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Under Section 1806(c), the government's notice obligation applies only ifthe government "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).20 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. The "aggrieved" defendant may then challenge the use of that information in district court on two grounds: (1) that the information was unlawfully acquired; or (2) that the acquisition was not conducted in conformity with an order of authorization or approval. 50 U.S.C. §§ 1806(e) and (t), 188le(a).21 In assessing the legality of the collection at issue, the district court, "shall, notwithstanding any other law, if the Attorney General files [as he has filed in this proceeding] an affidavit [or declaration] under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance [or physical search] as may be necessary to determine whether the surveillance [or physical search] of the aggrieved person was lawfully authorized and conducted." 50 U.S.C. §§ 1806(t), 1825(g).
20 An "aggrieved person" is defined as the target of electronic surveillance or "any other person whose communications or activities were subject to electronic surveillance," 50 U.S.C. § 180l(k), as well as "a person whose premises, property, information, or material is the target of physical search" or "whose premises, property, information, or material was subject to physical search." 50 U.S.C. § 1821(2). 21 Separately, any electronic communications service provider the government directs to assist in Section 702 surveillance may challenge the lawfulness of that directive in the FISC. 50 U.S.C. § 188la(h)(4) and (6); see also In re Directives, 551 F.3d at 1004 (adjudicating Fourth Amendment challenge brought by electronic communications service provider to directive issued under the PAA).
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On the filing of the Attorney General's affidavit or declaration, 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 [or physical search] only where such disclosure is necessary to make an accurate determination of the legality of the surveillance [or search]. Id. If the district court is able to make an accurate determination of the legality of the surveillance or search based on its in camera, ex parte review of the materials submitted by the United States, then the court may not order disclosure of any of the FISA or FAA materials to the defense, unless otherwise required by due process. See id. II. DEFENDANT JUMAEV'S MOTION SHOULD BE DENIED
The government's notice obligations regarding its use ofFISA information under§§ 1806(c), 1825(d), and 1881e apply only ifthe 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(d); see 50 U.S.C. § 1825(d); see also 50 U.S.C. § 1881e(a). With regard to electronic surveillance, an aggrieved person is "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).
CLASSIFIED MATERIAL REDACTED III. DEFENDANTS' CONSTITUTIONAL ARGUMENTS LACK MERIT
Defendants move for suppression of evidence derived from the acquisition of foreign intelligence information under Section 702 on the ground that Section 702 is unconstitutional. (Defs. Mot. 21-47). For the reasons set forth below, defendants' motion should be denied.
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A. THE ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION UNDER SECTION 702 IS LAWFUL UNDER THE FOURTH AMENDMENT
For the reasons set forth below, the collection at issue in this case, pursuant to Section 702 and the applicable certification(s) and targeting and minimization procedures, was consistent with the Fourth Amendment.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" and that "no Warrants shall issue, but upon probable cause." "[A]lthough 'both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search,"' New Jersey v. TL.O., 469 U.S. 325, 340 (1985) (citation omitted), "neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." Nat'/ Treas. Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). The "touchstone" of a Fourth Amendment analysis "is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security."' Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (per curiam) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)).
As explained below, the Section 702-authorized collection at issue in this case, which was conducted pursuant to court-approved procedures reasonably designed to target non-U.S. persons located outside the United States, was reasonable under the Fourth Amendment. First, the Fourth Amendment generally does not apply to non-U.S. persons abroad, and the fact that collection targeting such persons also incidentally collects communications of U.S. persons does not trigger a warrant requirement or render the collection constitutionally unreasonable. Second, surveillance authorized under Section 702 falls within the well-recognized "foreign intelligence exception" to the
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warrant requirement because (1) the government's purpose - protecting against terrorist attacks and other external threats - extends "beyond routine law enforcement," and (2) "insisting upon a warrant would materially interfere with the accomplishment of that purpose." In re Directives, 551 F.3d at 1010-11.
Given the inapplicability of the warrant requirement, the challenged collection need only meet the Fourth Amendment's general reasonableness standard. That standard is satisfied here. The government has interests of the utmost importance in obtaining foreign intelligence information under Section 702 to protect national security. In contrast, the privacy interests of U.S. persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-U.S. persons located outside the United States. Finally, the privacy interests of U.S. persons whose communications are incidentally collected are amply protected by stringent safeguards the government employs in implementing the collection. Those safeguards include (1) certifications by Executive Branch officials concerning the permissible foreign intelligence purposes of the collection; (2) targeting procedures designed to ensure that only non-U.S. persons abroad are targeted; (3) minimization procedures to protect the privacy of U.S. persons whose communications are incidentally acquired; (4) the requirement of a significant purpose to obtain foreign intelligence information; (5) extensive oversight within the Executive Branch, as well as by Congress and the FISC; and (6) a prior judicial finding that the targeting and minimization procedures are consistent with the Fourth Amendment. In light of these and other safeguards employed by the government, the FISC has repeatedly concluded that acquisition of foreign intelligence information under Section 702 and the applicable targeting and minimization. procedures is constitutionally reasonable. This Court should reach the same conclusion.
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1. There is No Judicial Warrant Requirement Applicable to Foreign Intelligence Collection Targeted at Foreign Persons Abroad

a. The Fourth Amendment Generally Does Not Apply to Non-U.S. Persons Abroad

The Supreme Court has held that the Fourth Amendment does not "apply to activities of the

United States directed against aliens in foreign territory." United States v. Verdugo-Urquidez, 494

U.S. 259, 267 (1990); see also id. at 271 (noting that only persons who "have come within the

territory of the United States and developed substantial connections" to the country have Fourth

Amendment rights). Based on the Fourth Amendment's text, drafting history, and post-ratification

history, id. at 265-67, as well as its own precedents, id. at 268-71, the Supreme Court concluded that

the Fourth Amendment was not intended ''to restrain the actions of the Federal Government against

aliens outside of the United States territory," id. at 266. "If there are to be restrictions on searches and seizures ~hich occur incident to such American action," the Court explained, "they must be

imposed by the political branches through diplomatic understanding, treaty, or legislation." Id. at

275. Because the Fourth Amendment generally does not protect non-U.S. persons outside the

United States, at least where such persons lack "substantial connections" to this country, the Fourth

Amendment a fortiori does not prevent the government from subjecting them to surveillance without

a warrant.

Intelligence collection under Section 702 targets non-U.S. persons located outside the United

I
I

States. Accordingly, under Verdugo-Urquidez, the Fourth Amendment generally is inapplicable to persons who are targeted for collection in accordance with the requirements of the statute.22 For that

l

I

22 The head of each element of the intelligence community must report annually to the FISC

~

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concerning, inter alia, how many persons the element targeted under Section 702 (based on the

I

36

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reason, to the extent defendants attempt a facial challenge to Section 702 (see Defs. Mot. 49 n.15), the challenge fails, because the statute is constitutional in its application to persons unprotected by the Fourth Amendment. See United States v. Salerno, 481 U.S. 739, 745 (1987) (noting that, outside of the First Amendment context, a statute is facially invalid only ifit is unconstitutional in all of its possible applications).23
b. Incidental Collection of U.S. Person Communications Pursuant to Intelligence Collection Lawfully Targeting Non-U.S. Persons Located Outside the United States Does Not Trigger A Warrant Requirement
The statute does not permit United States persons to be intentionally targeted under Section 702. To the extent that U.S. person communications are collected incidentally under Section 702 in the course of-intelligence collection targeted at one or more non-U.S. persons outside the United States: "incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful." In re Directives, 551 F.3d at 1015; United States v. Kahn, 415 U.S. 143, 156-57 (1974) (upholding interception of communications of a woman that were incidentally collected pursuant to a criminal wiretap order targeting her husband); see also United States v. White, 401 U.S. 745, 751-53 (1971) (holding that a conversation recorded with the consent of one participant did not violate another participant's Fourth Amendment rights); United States v. Martin, 599 F.2d 880, 884-85 (9th Cir. 1979), overruled in part on other grounds by United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en bane); United States v. Figueroa, 757 F.2d 466, 472-73 (2d Cir. 1985) (rejecting challenge to Title Ill on the ground that it allows interception of
belief that the persons were located outside the United States) who were later determined to be located inside the United States. See 50 U.S.C. § 1881a(1)(3)(A)(iii). 23 In any event, this Court's review should be limited to the constitutionality of the statute as applied to the acquisition of the information challenged in this case.
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conversation~ of unknown third parties); United States v. Butenko, 494 F.2d 593, 608 (3d Cir. 1974) (upholding the constitutionality of warrantless surveillance for foreign intelligence purposes even though "conversations ... of American citizens[] will be overheard"); United States v. Bin Laden, 126 F. Supp. 2d 264, 280 (S.D.N.Y. 2000) ("[I]ncidental interception of a person's conversations during an otherwise lawful surveillance is not violative of the Fourth Amendment."). Therefore the incidental collection of U.S. person communications was lawful.24
Under these principles, incidental capture of a U.S. person's communications during surveillance that lawfully targets non-U.S. persons abroad does not imply that a judicial warrant or other individualized court order is required for such surveillance to be reasonable under the Fourth Amendment. See Bin Laden, 126 F. Supp. 2d at 281 (noting that "the combination of VerdugoUrquidez and the incidental interception cases" would permit surveillance that collects a U.S. person's communications as an incident to warrantless surveillance targeting a non-U.S. person abroad, so long as the United States person is not a "known and contemplated" surveillance target). Thus, surveillance of non-U.S. persons outside the United States pursuant to Section 702, even without a warrant or probable cause, is not rendered unlawful if the surveillance incidentally captures the communications of non-targeted persons in the United States. This conclusion is particularly appropriate here because the privacy interests of U.S. persons whose communications are incidentally collected are specifically protected by minimization procedures, as described supra at Part I.D.3.d.2. See In re Directives, 551 F.3d at 1016 (noting that'the minimization procedures under the PAA "serve ... as a means of reducing the impact of incidental intrusions into the privacy of non-targeted United States persons").
24 CLASSIFIED MATERIAL REDACTED
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Application of a warrant requirement to incidental interception of U.S. person

communications during surveillance targeting non-U.S. persons abroad for foreign intelligence

purposes not only would be contrary to case law but also would be impracticable and inconsistent

with decades of foreign-intelligence collection practice. See In re Terrorist Bombings ofUS.

Embassies, 552 F.3d 157, 169 (2d Cir. 2008) (holding that the warrant requirement does not apply to

searches or surveillance of U.S. citizens that occur outside the United States because the original

purpose of the Fourth Amendment "was to restrict searches and seizures which might be conducted

by the United States in domestic matters"); United States v. Barona, 56 F.3d 1087, 1092 n.1 (9th Cir.

1995) (foreign searches have "neither been historically subject to the warrant procedure, nor could

they be as a practical matter"); United States v. Stokes, 726 F.3d 880, 893 (7th Cir. 2013) (rejecting

warrant requirement for extraterritorial searches targeting United States persons and holding such searches "are subject only to the Fourth Amendment's requirement ofreasonableness").25 Before

initiating surveillance of a foreign target, the government cannot know the identities of all those with

whom the target will communicate in the future, and there will generally be at least some possibility

I

that the target will communicate with a U.S. person. See Bin Laden, 126 F. Supp. 2d at 280 ("[T]he

government is often not in a position of omniscience regarding who or what a particular surveillance

f•r

will record."). Thus, imposition of a warrant requirement for any incidental interception of U.S.

I

I

person communications would effectively require a warrant for all foreign intelligence collection,

even though the foreign targets lack Fourth Amendment rights and their communications often

involve only other foreigners. Such a rule would unduly restrict the government's intelligence

25 While defendants cite cases recognizing a warrant requirement for electronic surveillance in the

domestic context (Defs. Mot. 27, 32), they do not point to any authorities indicating that foreign

intelligence surveillance targeting non-United States persons outside the United States must be subject to the warrant procedure.

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collection against foreign targets and degrade its ability to protect against foreign threats. See Warrantless Surveillance and The Foreign Intelligence Surveillance Act: The Role ofChecks and Balances in Protecting Americans' Privacy Rights (Part II) Hearing Before the H Judiciary Comm., I 10th Cong., 1st Sess. 8 (2007) (statement of Rep. Forbes) ("To require a court order for every instance in which a foreign target communicates with someone inside the United States is to require a court order for every foreign target, and requiring this would reverse 30 years of established intelligence gathering ... The intelligence community cannot possibly know ahead of time who these terrorists will talk to. It needs to have the flexibility to monitor calls that may occur between a foreign terrorist and a person inside the United States.").
c. The Location of the Search Does Not Trigger a Warrant Requirement
Verdugo-Urquidez involved a physical search that was conducted overseas, while collection under Section 702 takes place within the United States. In the context of electronic communications, however, the fact that the communications of a non-U.S. person outside the United States may be collected from within the United States is not the kind of "significant voluntary connection with the United States" that brings that person within the protection of the Fourth Amendment under Verdugo-Urquidez. 494 U.S. at 271-72. Otherwise, any foreign person abroad seeking to evade United States surveillance, including al Qaeda terrorists, could claim the protections of the Fourth Amendment merely due to this type of insignificant connection to the United States. That result would be plainly contrary to the Supreme Court's statements in Verdugo-Urquidez that the Fourth Amendment was not originally intended to protect "aliens outside of the United States territory." Id. at 266-67. Moreover, when the government collects the communications of a non-U.S. person located abroad, whether the collection takes place in the United States or abroad makes no difference
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to the person's privacy interests and should not affect the constitutional analysis. When it comes to the content of communications, "the Fourth Amendment protects people, not places." United States v. Yonn, 702 F.2d 1341, 1347 (11th Cir. 1983)(quoting Katz v. United States, 389 U.S. 347, 351 (1967)). Accordingly, there is no "constitutional distinction which depends upon the location of the recording apparatus." Id.
2. The Foreign Intelligence Exception Applies Even assuming, arguendo, that incidental collection ofU.S.-person communications under Section 702 is subject to the same constitutional scrutiny as foreign intelligence collection targeting U.S. persons, cf [Caption Redacted], 2011WL10945618, at *26 (FISC Oct. 3, 2011) (noting that "[t]here surely are circumstances in which incidental intrusions can be so substantial as to render a search or seizure unreasonable"), the Fourth Amendment does not require a warrant here because such surveillance falls within the well-recognized foreign intelligence exception.
a. The "Special Needs" Doctrine The touchstone of the Fourth Amendment is reasonableness, which is assessed by balancing the degree to which a search is needed to promote legitimate governmental interests against the search's intrusion on a person's privacy interests. See United States v. Knights, 534 U.S. 112, 11819 (2001 ). In certain contexts, a search or surveillance is impermissible without a warrant or other individualized court order. See Vernonia Sch.Dist. 47Jv. Acton, 515 U.S. 646, 652-53 (1995) ("Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant."). But that procedure is by no means inflexibly required. Maryland v. King, 133 S. Ct. 1958, 1969 (2013) (The Fourth Amendment "imposes no irreducible requirement" of individualized suspicion.); see, e.g., United States v. Flores-Montano, 541 U.S. 149, 153 (2004) (The government
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j

or a warrant.").

The Supreme Court has recognized exceptions to the Fourth Amendment's warrant

requirement "when special needs, beyond the normal need for law enforcement, make the warrant

and probable-cause requirement impracticable," Griffin v. Wisconsin, 483 U.S. 868, 873 (1987),

such as where the governmental need is especially compelling or especially likely to be frustrated by

a warrant requirement, where expectations of privacy are diminished, and where alternative

safeguards restrain the government within reasonable limits. See King, 133 S. Ct. at 1969; see also,

e.g. Griffin, 483 U.S. at 873-74, (upholding warrantless search of probationer's home); Vernonia

Sch. Dist., 515 U.S. at 653 (upholding warrantless drug testing of student-athletes by public school

district); Samson v. California, 547 U.S. 843, 847 (2006) (upholding suspicionless searches of

parolees). In evaluating whether the "special needs" doctrine applies, the Supreme Court has

distinguished between searches designed to uncover evidence "of ordinary criminal wrongdoing"

and those motivated "at [a] programmatic level" by other governmental objectives. City of

Indianapolis v. Edmond, 531 U.S. 32, 37-40, 48 (2000) (reviewing cases).

The "special needs" doctrine applies where special government interests beyond the normal

need for law enforcement make the warrant and probable-cause requirement impracticable, and in

such cases the court "employ[s] a balancing test that weigh[s] the intrusion on the individual's

interest in privacy against the 'special needs' that supported the program." Ferguson v. City of

I

Charleston, 532 U.S. 67, 78 (2001). Accordingly, the Supreme Court has permitted, inter alia, warrantless stops of motorists at roadblocks for the purpose of securing borders, see United States v.

I

Martinez-Fuerte, 428 U.S. 543 (1976), warrantless searches of the homes of probationers to ensure

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compliance with probation conditions, see Griffin, 483 U.S. at 872, and warrantless searches of

public school students to enforce school rules, see TL. 0., 469 U.S. at 340.

b. The Foreign Intelligence Exception

Several courts of appeals - including the FISA Court of Review - have held, by analogy to

the "special needs" doctrine, that the government's "special need" for foreign intelligence

information justifies an exception to the warrant requirement. See, e.g., United States v. Duka, 671

F.3d 329, 341 (3d Cir. 2011) ("[C]ourts [that have considered the question] almost uniformly have

concluded that the important national interest in foreign intelligence gathering justifies electronic

surveillance without prior judicial review, creating a sort of 'foreign intelligence exception' to the

Fourth Amendment's warrant requirement."); In re Directives, 551 F.3d at 1010-11 (recognizing "a

foreign intelligence exception" to the warrant requirement); In re Sealed Case, 310 F.3d 717, 742

(FISA Ct. Rev. 2002) ("[A]ll the ... courts to have decided the issue [have] held that the President

did have inherent authority to conduct warrantless searches to obtain foreign intelligence

information."); United States v. Truong Dinh Hung, 629 F.2d 908, 912-13 (4th Cir. 1980) (upholding

warrantless foreign intelligence surveillance authorized by the Attorney General); United States v.

Buck, 548 F.2d 871, 875 (9th Cir. 1977) ("Foreign security wiretaps are a recognized exception to

the general warrant requirement."); Butenko, 494 F.2d at 605 (upholding warrantless foreign

intelligence surveillance); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973) (holding that

"the President may constitutionally authorize warrantless wiretaps for the purpose of gathering

foreign intelligence");26 but see Zweibon v. Mitchell, 516 F.2d 594, 618-20 (D.C. Cir. 1975) (en

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26 Except for Jn re Directives, these cases involved collection of foreign intelligence information from persons inside the United States. Their reasoning applies a fortiori to the Section 702 acquisition in this case, which targeted non-United States person(s) reasonably believed to be outside the United States.

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bane) (plurality opinion suggesting in dicta that a warrant may be required even in a foreign intelligence investigation).27 These decisions have found that foreign intelligence collection justifies an exception because the "programmatic purpose" of obtaining foreign intelligence information goes "beyond any garden-variety law enforcement objective," and "requiring a warrant would hinder the government's ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake." In re Directives, 551 F.3d at 1011.
Contrary to these cases, defendants contend (Defs. Mot. 32) that the foreign intelligence exception is "narrow[]" and applies only when the search is minimally intrusive and executive discretion is strictly confined. There is no such limitation on the doctrine. Cf MacWade v. Kelly, 460 F.3d 260, 269 (2d Cir. 2006) (noting, in upholding under special needs doctrine warrantless subway searches to prevent terrorist attacks, that "[t]he Supreme Court never has implied- much less actually held - that a reduced privacy expectation is a sine qua non of special needs analysis"). While considerations of intrusiveness and executive discretion may be relevant to the reasonableness of a government program designed to serve a special need, neither factor is decisive regarding whether the doctrine applies at the threshold as an exception to the warrant clause. See id. at 268-69 (addressing such factors under the general reasonableness test, separately from the threshold question whether the searches served a governmental purpose distinct from ordinary law enforcement).
Defendants rely (Defs. Mot. 27-29) on the Supreme Court's decision in United States v. United States District Court (Keith), 407 U.S. 297 (1972). This reliance is misplaced, as the Court in Keith expressly reserved the issue of a warrant requirement for foreign intelligence collection. As 27 The plurality in Zweibon specifically noted that the surveillance at issue targeted a domestic organization and suggested that its conclusion might be different if a foreign power were targeted. See 516 F.2d at 651.
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the FISA Cotµt of Review recognized in In re Sealed Case, the Supreme Court explained in Keith that "the focus of security surveillance 'may be less precise than that directed against more conventional types of crime' even in the area of domestic threats to national security." 310 F.3d at 738 (emphasis in original); see also Clapper, 133 S. Ct. at 1143 (noting that Keith "implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible"). The same rationale "applies a fortiori to foreign threats," a fact that Congress necessarily recognized in enacting FISA. In re Sealed Case, 310 F.3d at 738; see also Truong, 629 F.2d at 913 ("For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, 'unduly frustrate' the President in carrying out his foreign affairs responsibilities."). In addition, unlike the intelligence collection at issue here, the surveillance in Keith was conducted not only without a warrant but without any judicial or congressional oversight of any kind. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J. concurring) ("When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum."). Courts that have addressed the issue of whether foreign intelligence collection is subject to a warrant requirement have expressly distinguished Keith in holding that it is not. Jn re Directives, 551 F.3d at 1010; In re Sealed Case, 310 F.3d at 744; Truong, 629 F.2d at 913; Butenko, 494 F.2d at 602 n.32; Brown, 484 F.2d at 425.
In sum, courts have generally recognized, by analogy to the "special needs" doctrine, that a foreign intelligence exception to the warrant requirement exists. As the FISC has held, and for the reasons set forth below, that exception applies to acquisitions under Section 702. [Caption Redacted], 2011WL10945618, at *24 ("The Court has previously concluded that the acquisition of
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foreign intelligence information pursuant to Section 702 falls within the 'foreign intelligence

exception' to the warrant requirement of the Fourth Amendment.").
c. The Government's Purpose in Section 702 Collection Goes Beyond Ordinary Crime Control

First, it is clear that the government's programmatic purpose in obtaining the information

pursuant to Section 702 goes beyond routine law enforcement. See In re Sealed Case, 310 F.3d at

717 (holding that the government's "programmatic purpose" in obtaining foreign intelligence

information is "to protect the nation against terrorist and espionage threats directed by foreign

powers" - "a special need" that fundamentally differs from "ordinary crime control."); see also

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Cassidy v. Chertoff, 471 F.3d 67, 82 (2d Cir. 2006) (upholding warrantless searches of ferry passengers because "[p]reventing or deterring large-scale terrorist attacks present problems that are

distinct from standard law enforcement needs and indeed go well beyond them"). Acquisitions

under Section 702 must be conducted with a "significant purpose" to "obtain foreign intelligence information." As the FISA Court of Review found in the context of the PAA, the "stated purpose" of the collect~on "centers on garnering foreign intelligence," and "[t]here is no indication that the

collections of information are primarily related to ordinary criminal-law enforcement purposes." The same is true of the collection authorized under Section 702 in this case.28

d. A Warrant or Probable Cause Requirement Would Be Impracticable

Second, as the FISA Court of Review found with respect to the FAA's predecessor statute, "there is a high degree of probability that requiring a warrant would hinder the government's ability to collect time-sensitive information and, thus, would impede the vital national security interests that

28 CLASSIFIED MATERIAL REDACTED

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are at stake." In re Directives, 551 F.3d at 1011; see also Truong, 629 F.2d at 913 (noting that

"attempts to counter foreign threats to the national security require the utmost stealth, speed, and

secrecy" and, therefore, "[a] warrant requirement would add a procedural hurdle that would reduce

the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to

foreign intell~gence threats, and increase the chance of leaks regarding sensitive executive operations").29 Changes in technology and the manner of collecting foreign intelligence information,

as well as the shifting threat and communications methods employed by transnational terrorist

groups, make it impracticable for the government to obtain traditional warrants or FISC orders for

the acquisitions currently authorized under Section 702. Indeed, Congress enacted the FAA in part

because the burden of preparing individualized FISA applications for intelligence collection

targeting non-U.S. persons outside the United States was harming the government's ability to collect

foreign intelligence information from targets overseas. See 154 Cong. Rec. S6097, S6122 (June 25,

2008) (statement of Senator Chambliss) ("[T]he [FAA] will fill the gaps identified by our

intelligence officials and provide them with the tools and flexibility they need to collect intelligence

from targets overseas.").

When the government has reason to believe that a non-U.S. person overseas is connected to

international terrorist activities but the government lacks sufficient evidence to establish probable

cause that the target is an agent of a foreign power, a warrant requirement could prevent the

government from obtaining significant information. Even in circumstances where the government

succeeded in eventually gathering enough information to establish probable cause under FISA, the

need to devefop such information and obtain approval of the FISC could result in delays that would

hinder the government's ability to monitor fast-moving threats. See In re Directives, 551 F.3d at

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1011-12 (Because of the government's "need for speed, stealth, and secrecy" in this context, "[c]ompulsory compliance with the warrant requirement would introduce an element of delay, thus frustrating the government's ability to collect information in a timely manner"); cf VerdugoUrquidez, 494 U.S. at 273-74 ("Application of the Fourth Amendment" to aliens abroad could "significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest."); Skinner v: Ry. Labor Execs. 'Ass 'n, 489 U.S. 602, 623 (1989) (upholding warrantless search in part because "the delay necessary to procure a warrant ... may result in the destruction of valuable evidence"). Finally, a warrant requirement in this context would impose significant burdens on the government, because substantial resources and time of national security personnel would be diverted to preparing individualized warrant applications targeting persons who lack Fourth J\rnendment rights. Cf Von Raab, 489 U.S. at 666-67 (the mission of the Customs Service "would be compromised if it were required to seek search warrants in connection with routine, yet sensitive, employment decisions"); O'Connor v. Ortega, 480 U.S. 709, 722 (1987) (plurality opinion) ("requiring an employer to obtain a warrant" to access employee's office or files "would seriously disrupt the routine conduct of business and would be unduly burdensome").
In short, a warrant requirement would significantly undermine the government's ability to obtain foreign intelligence information vital to the Nation's security. See Bin Laden, 126 F. Supp. 2d at 273 ("[T]he imposition of a warrant requirement [would] be a disproportionate and perhaps even disabling burden" on the government's ability to obtain foreign intelligence information). That would be a particularly unnecessary result because Section 702 collection may not intentionally target persons protected by the Fourth Amendment, see 50 U.S.C. § 188la(b), and the law contains robust safeguards that protect the interests of U.S. persons whose communications might be incidentally collected. See United States v. Abu-Jihaad, 630 F.3d 102, 121-22 (2d Cir. 2010)
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("[T]he Constitution's warrant requirement is flexible, so that different standards may be compatible

with the Fourth Amendment in light of the different purposes and practical considerations at issue.") (internal quotation marks and citation omitted).30

e. A Warrant Requirement Would Inappropriately Interfere with Executive Branch Discretion in the Collection of Foreign Intelligence

The Fourth Amendment's warrant requirement is based in part on the interest in

"interpos[ing] a judicial officer between the zealous police officer ferreting out crime and the subject

of the search." In re Terrorist Bombings, 552 F.3d at 170 n.7. But that concern is considerably diminished in this context because of "the acknowledged wide discretion afforded the executive

branch in foreign affairs." Id.; see Truong, 629 F.2d at 914 ("[T]he executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-

eminent authority in foreign affairs."). For that reason, the Fourth Amendment does not require that

courts interpose themselves in the Executive Branch's collection of foreign intelligence beyond the

procedures provided for by Congress.

f.

Truong Does Not Preclude Application of the Foreign

Intelligence Exception to Section 702 Collection

Defe~dants contend (Defs. Mot. 32-33), relying on Truong, that the foreign intelligence exception is limited to circumstances where: (1) the surveillance was directed at a specific foreign

agent or foreign power; (2) the primary purpose was to gather foreign intelligence information; and

°3 For these reasons, defendants' claim (Defs. Mot. 31-32) that the availability of.Title I FISA

warrants undermines the rationale for the foreign intelligence exception is incorrect. Moreover,

1

courts have recognized the continuing validity of the rationale for the foreign intelligence exception

even after the enactment ofFISA created a regime in which the government could obtain a court

order to conduct foreign intelligence surveillance in certain circumstances. See, e.g., In re

Directives, 551 F.3d at 1010-11; In re Sealed Case, 310 F.3d at 742; Duka, 671 F.3d at 341;

[Caption Redacted], 2011WL10945618, at *24 (Oct. 3, 2011).

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(3) the surveillance was personally approved by the President or Attorney General. This argument

misreads Truong and should be rejected.

The specific foreign-agent-or-power limitation was recognized in Truong, which involved

unilateral Executive Branch surveillance directed at a person within the United States. However,

nothing in Truong suggests that foreign intelligence surveillance directed at non-U.S. persons

outside the United States, as authorized by Congress and conducted pursuant to targeting and

minimization procedures approved by the FISC, must be directed only at a specific foreign agent or

foreign power. And, for the reasons explained in Part III.A.2.d above, such a requirement would

seriously undermine the government's ability to obtain foreign intelligence information in this

context and, in any event, would be unnecessary since the targets of the surveillance are persons

unprotected by the Fourth Amendment.31

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Defendants' second limitation invokes the purported "primary purpose" requirement that has

been repeatedly rejected by Congress and the courts. See In re Directives, 551 F.3d at 1011; In re

Sealed Case, 310 F.3d at 742-45; Abu-Jihaad, 630 F.3d at 121; Duka, 671 F.3d at 343-45. As the

FISA Court of Review has explained, the "primary purpose" language adopted in Truong "drew an

unstable, unrealistic, and confusing line between foreign intelligence purposes and criminal

investigation purposes." In re Directives, 551 F.3d at 1011. Because "[a] surveillance with a

foreign intelligence purpose often will have some ancillary criminal-law purpose," such as

"apprehension of terrorism suspects," id., attempting to discern whether criminal-law purposes are

primary or secondary to intelligence purposes can be an artificial exercise. See In re Sealed Case,

310 F.3d at 743. Accordingly, "the more appropriate consideration is the programmatic purpose of

the surveillances and whether - as in the special needs cases - that programmatic purpose involves

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some legitimate objective beyond ordinary crime control." In re Directives, 551 F.3d at 1011; see also In re Sealed Case, 310 F.3d at 745-46. In In re Sealed Case, the FISA Court of Review construed the "significant purpose" requirement to preclude the government from using FISA as a "device to investigate wholly unrelated ordinary crimes." Id. at 735-36. Congress used the same term in the PAA, and Section 702 should be presumed to have incorporated this construction. See Cannon v. Univ. ofChic., 441 U.S. 677, 696-99 (1979). So construed, the "significant purpose" standard is sufficient for purposes of the "special needs" doctrine and "foreign intelligence" exception. See Edmond, 531 U.S. at 40-42 (noting that the doctrine turns on whether the programmatic purpose of a search goes beyond the investigation of "ordinary criminal wrongdoing"); In re Directives, 551 F.3d at 1011 (upholding directives under the PAA because "[t]heir stated purpose centers on garnering foreign intelligence" and "[t]here is no indication that the collections of information are primarily related to ordinary criminal-law enforcement purposes").
As for the third purported limitation defendants invoke, it is true that the Attorney General does not personally approve each individual acquisition under Section 702. However, the Attorney General and Director of National Intelligence play a significant role in establishing and authorizing the certification and procedures that govern the acquisition. See 50 U.S.C. 188la(a) (collection under Section 702 must be jointly authorized by the Attorney General and Director of National Intelligence). In addition, unlike the unilateral executive branch surveillance in Truong, Section 702 collection is governed by stringent, court-approved procedural safeguards and extensive oversight by Congress and by the FISC. Those requirements provide sufficient authorization and oversight, by all three branches of government, for purposes of the foreign intelligence exception.
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3. The Government's Collection of Foreign Intelligence Information Pursuant to Section 702 Is Constitutional Under The Fourth Amendment's General Reasonableness Test
As explained above, incidental collection of communications of U.S. persons during an otherwise lawful collection does not render the collection constitutionally unreasonable. See Part IIl.A.1.b. That principle applies here because the collection lawfully targeted non-U.S. persons outside the United States for foreign intelligence purposes. Moreover, as set forth below, even assuming that such incidental collection must satisfy the Fourth Amendment's "general reasonableness" test, the acquisitions at issue here were lawful under that test.
In circumstances where a warrant and probable cause are not required, searches and seizures are generally subject to the Fourth Amendment's "traditional standards of reasonableness." King, 133 S. Ct. at 1970; see id. ("To say that no warrant is required is merely to acknowledge that rather than employing aper se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.") (internal quotation marks and citation omitted). In assessing the constitutional reasonableness of a government search, the court must weigh "the promotion of legitimate governmental interests against the degree to which [the search] intrudes upon an individual's privacy." Id. (internal quotation marks and citation omitted); Knights, 534 U.S. at 117-19 (describing balancing as "general Fourth Amendment approach"); T.L.O., 469 U.S. at 337 (stating that "[t]he determination of the standard of reasonableness" requires balancing). The court determines what is reasonable, and what safeguards may be necessary in a particular context, by balancing the interests at stake in light of ''the totality of the circumstances." Samson, 547 U.S. at 848; see also Von Raab, 489 U.S. at 665, 668 (recognizing that "neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance" and that "the traditional
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probable-cause standard may be unhelpful" when the government "seeks to prevent" dangers to

public safety); In re Directives, 551 F.3d at 1012 (reviewing collection under the PAA under the

general reasonableness test).

Under the general reasonableness balancing test, searches without a warrant or individualized

finding of probable cause are particularly likely to be found reasonable when the governmental need

is especially great or especially likely to be frustrated by a warrant requirement, when the search

involves modest intrusions on the individual's privacy, and when alternative safeguards restrain the

government within reasonable limits. See, e.g., Ill. v. McArthur, 531 U.S. 326, 330-31 (2001)

("When faced with special law enforcement needs, diminished expectations of privacy, minimal

intrusions, or the like, the Court has found that certain general, or individual, circumstances may

render a warrantless search or seizure reasonable."); King, 133 S. Ct. at 1969 (warrantless search

may be reasonable where "the public interest is such that neither a warrant nor probable cause is

required" or where "an individual is already on notice ... that some reasonable [government]

intrusion on his privacy is to be expected") (citation omitted).

The Supreme Court recently engaged in this kind of balancing in King, which involved
I warrantless searches of arrestees to obtain DNA samples. 133 S. Ct. at 1968-69. The Court

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examined the totality of the circumstances, weighed the various interests at stake, and concluded, in

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light of the government's "substantial interest" in the "identification of arrestees," the diminished

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expectations of privacy of an individual taken into police custody, and statutory protections that limited the purposes for which the DNA evidence could be collected and stored, that the balance favored the government. Id. at 1977-80; see also Samson, 547 U.S. at 848-57 (applying

reasonableness balance in upholding warrantless, suspicionless search of the person of a parolee).

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In In re Directives, the FISA Court of Review applied the general reasonableness test in
considering the constitutional reasonableness of the PAA, the FAA' s predecessor statute, in the
context of an as-applied challenge brought by a private party that had been directed by the government to assist in effectuating surveillance under the statute. 551 F.3d at 1012-15.32 In
balancing the respective interests, the FISA Court of Review recognized that the government's
interest in national security was of such a "high[] order of magnitude" that it would justify
significant intrusions on individual privacy. Id. at 1012. The FISA Court of Review noted further that the PAA, the certifications, and the directives contained a "matrix of safeguards," id. at 1013, including "effective minimization procedures" that were "almost identical to those used under FISA
to ensure the curtailment of both mistaken and incidental acquisitions," id. at 1015, as well as
"targeting procedures" that included "provisions designed to prevent errors" and provided for
Executive Branch and congressional oversight of "compliance with the targeting procedures," id. The FISA Co.urt of Review concluded, based on the panoply of safeguards in the statutory provisions
and implementing procedures, that "the surveillances at issue satisfy the Fourth Amendment's reasonableness requirement." Id. at 1016.33
32 The PAA was not identical to, and in certain respects was broader than, Section 702. Notably, the PAA authorized surveillance concerning "persons reasonably believed to be outside the United States" without distinguishing between U.S.- and non-U.S. persons, In re Directives, 551 F.3d at 1007, while Section 702 authorizes only surveillance targeting non-U.S. persons outside the United States. In addition, the petitioner in In re Directives limited its claims to alleged injuries to U.S. persons. Accordingly, the analysis in In re Directives addresses certain issues specific to foreign intelligence surveillance targeted at U.S. persons abroad, including a requirement that surveillance targeting U.S. persons be based on a finding by the Attorney General of probable cause to believe that the U.S. person was a foreign power or agent of a foreign power, that are not applicable here. 33 In re Directives was not litigated ex parte. The FISA Court of Review considered briefing and oral argument from both the government and the communications provider that challenged the directives. 551 F.3d at 1008.
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The FAA provisions, certification(s), and procedures at issue in this case, with respect to collection targeting non-U.S. persons overseas, are as protective as, and in some respects significantly more robust than, the comparable PAA procedures that the PISA Court of Review considered in holding that the directives issued under the PAA were constitutional.34 In addition, the FAA goes beyond the PAA by requiring a prior finding by the FISC that the targeting and minimization procedures are reasonable under the Fourth Amendment. 50 U.S.C. § 1881a(i). The FAA, unlike the PAA, also expressly prohibits "reverse targeting" of U.S. persons. 50 U.S.C. § 188la(b)(2). The FAA thus stands on an even firmer constitutional foundation than the PAA, and the PISA Court of Review's analysis upholding the latter applies also to the former. Defendants' motion does not distinguish, or even cite, the PISA Court of Review's opinion in In re Directives.
In addition, the FISC has repeatedly reviewed the targeting and minimization procedures governing the government's acquisition of foreign intelligence information under Section 702 and held that acquisitions pursuant to those procedures satisfy the Fourth Amendment reasonableness standard. See [Caption Redacted], 2011 WL 10945618, at *6 ("The Court found in those prior dockets that the targeting and minimization procedures were consistent with the requirements of [Section 702] and with the Fourth Amendment."). There is no reason for a different outcome here.
a. Acquisitions Under Section 702 Advance the Government's Compelling Interest in Obtaining Foreign Intelligence Information To Protect National Security
The government's national security interest in conducting acquisitions pursuant to Section 702 "is of the highest order of magnitude." In re Directives, 551 F.3d at 1012; see also [Caption Redacted], 2011 WL 10945618, at *25; Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is 'obvious and
34 CLASSIFIED MATERIAL REDACTED
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f
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unarguable' that no governmental interest is more compelling than the security of the Nation.") (citation omitted). The terrorist threat the United States is facing today "may well involve the most serious threat our country faces." In re Sealed Case, 310 F.3d at 746; see also Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2724 (2010) ("[T]he Government's interest in combating terrorism is an urgent objective of the highest order."); Duka, 671 F.3d at 340 ("The government's interests in security and intelligence are entitled to particular deference."). Courts have recognized that the government's compelling interest in collecting foreign intelligence information to protect the Nation against terrorist groups and other foreign threats may outweigh individual privacy interests. See, e.g., In re Terrorist Bombings, 552 F.3d at 172-76 (upholding search and surveillance targeting U.S. person abroad because the intrusion on the individual's privacy was outweighed by the government's need to monitor the activities of al Qaeda); Cassidy, 471 F.3d at 82 (upholding warrantless searches of ferry passengers in light of government interest in "[p]reventing or deterring large-scale terrorist attacks").
The collection authorized by Section 702 is crucial to the government's efforts against terrorism and other threats both to the United States and its interests abroad. See National Security Agency, The National Security Agency: Missions, Authorities, Oversight and Partnerships 4 (August 9, 2013) ("[C]ollection under FAA Section 702 is the most significant tool in the NSA collection arsenal for the detection, identification, and disruption of terrorist threats to the U.S. and around the world."). As the Senate Select Committee on Intelligence found in recommending reauthorization of the FAA in 2012, "the authorities provided under the FISA Amendments Act have greatly increased the government's ability to collect information and act quickly against important foreign intelligence targets." S. Rep. No. 174, 112th Cong., 2nd Sess. 2 (2012); see also id. at 17 (noting that Section 702, in addition to "provid[ing] information about the plans and identities of
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terrorists" also enables the government to collect "information about the intentions and capabilities of weapons proliferators and other foreign adversaries who threaten the United States"). The Committee noted further that "failure to reauthorize Section 702" would "result in a loss of significant intelligence and impede the ability of the Intelligence Community to respond quickly to new threats and intelligence opportunities." Id.; see also H.R. Rep. 645 (II) 112th Cong., 2nd Sess. 3 (Aug. 2, 2012) ("The importance of the collection of foreign intelligence under the FISA Amendments Act ... cannot be underscored enough.... The information collected under this authority is often unique, unavailable from any other source, and regularly provides critically important insights and operationally actionable intelligence on terrorists and foreign intelligence targets around the world.").
A panel of experts appointed by the President to review the government's intelligence collection activities examined "the details of 54 counterterrorism investigations since 2007 that resulted in the prevention of terrorist attacks" and found that "[i]n all but one of these cases, information obtained under section 702 contributed in some degree to the success of the investigation." The President's Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World 144-45 (Dec. 12, 2013). The panel concluded that
. l "[S]ection 702 has clearly served an important function in helping the United States to uncover and prevent terrorist attacks both in the United States and around the world." Id. at 145. Thus, as the Executive Branch, Congress, the FISC, and the President's Review Group have all recognized, the government has an extraordinarily compelling interest in conducting the collection authorized by Section 702.
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b. Defendants Have, At Most, Limited Expectations of Privacy in Communications Obtained Through Targeting Non-U.S. Persons Outside the United States
The other side of the Fourth Amendment reasonableness balance is the degree to which the search "intrudes upon an individual's privacy." Knights, 534 U.S. at 118-19 (citation omitted). Of course, where an individual has no reasonable expectation of privacy at all, his Fourth Amendment claim fails at the threshold. And where the search takes place in circumstances where the individual's expectations of privacy are limited, the diminished character of the privacy interest must be taken into account in the court's assessment ofreasonableness.
An individual's ability to "claim the protection of the Fourth Amendment depends ... upon whether" he "has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143 (1978).35 A court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure "invaded [the defendant's] legitimate expectation of privacy rather than that ofa third party." United States v. Payner, 447 U.S. 727, 731 (1980). To claim the protection of the Fourth Amendment, a defendant "must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has 'a source outside of the Fourth Amendment, either by reference to concepts ofreal or personal property law or to understandings that are recognized and permitted by society.'" Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas, 439 U.S. at 144 n.12); see also, e.g., United States v.
35 Although the Supreme Court has formerly analyzed questions concerning an individual's ability to claim Fourth Amendment protections under the rubric of"standing," the Court made clear in Rakas that "definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." 439 U.S. at 140. Nevertheless, the nomenclature of "standing" is still commonly used by lower courts when addressing whether an individual can assert a Fourth Amendment claim.
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Wells, 739 F.3d 511, 522-23 (10th Cir. 2014) (holding that an individual lacked a reasonable expectation of privacy in his communications while in another person's hotel room).
1. Senders ofelectronic communications do not retain a reasonable expectation ofprivacy in communications once they arrive at their destination
The Supreme Court has long held that when one person voluntarily discloses information to another, the first person loses any cognizable interest under the Fourth Amendment in what the second person does with the information. See United States v. Miller, 425 U.S. 435, 443 (1976); Couch v. United States, 409 U.S. 322, 335 (1973); White, 401 U.S. at 752 (plurality opinion); Hoffa v. United States, 385 U.S. 293, 302-03 (1966). For Fourth Amendment purposes, the same principle applies whether the recipient intentionally makes the information public or stores it in a place subject to a government search. Thus, once a non-U.S. person located outside the United States receives a communicatfon, the sender loses any cognizable Fourth Amendment rights with respect to that communication. That is true even ifthe sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the communication to others, leave the communication freely accessible to others, or that the U.S. government (or a foreign government) will obtain the communication.36
This rule applies to physical mail, even within the United States. Although the Fourth Amendment protects sealed letters in transit, "once a letter is sent to someone, 'the sender's expectation of privacy ordinarily terminates upon delivery."' United States v. Gordon, 168 F.3d
36 The "recipient" in this context refers to the ultimate recipient, not (for example) an internet service provider. See United States v. Warshak, 631 F.3d 266, 282-88 (6th Cir. 2010). Thus, while Warshak held that a subscriber has a reasonable expectation of privacy in emails that the provider stores in the subscriber's account, it did not say that a person's Fourth Amendment rights are implicated when the government obtains, from the service provider, emails from someone else's account.
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1222, 1228 (10th Cir. 1999) (quoting United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995)). The same rul~ applies to email users, who lack "a legitimate expectation of privacy in an email that had already reached its recipient." Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001); see also United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008) (noting that an individual "may not ... enjoy ... an expectation of privacy in transmissions over the Internet or email that have already arrived at the recipient") (citation omitted); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (noting that a sender of email, like a letter-writer, would lose an objective expectation of privacy in email that the recipient had received).
2. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED
3. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED
4. Any remaining expectation ofprivacy in the international communications at issue was significantly diminished
CLASSIFIED MATERIAL REDACTED Finally, the principles underlying the "border search" doctrine are also relevant to this Court's weighing of the individual's privacy interests relative to the government's interests in this context. Co~s have long recognized the government's paramount interest in examining persons and property entering or exiting the country. Flores-Montano, 541 U.S. at 152. In that context, "not
~
only is the expectation of privacy less," but also "the Fourth Amendment balance between the interests of the government and the privacy right of the individual is also struck much more favorably to the Government." United States v. Montoya de Hernandez, 473 U.S. 531, 539-40 (1985) (citation omitted). Accordingly, under the rubric of the "border search" doctrine, courts have
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long recognized a diminished expectation of privacy in letters or packages that transit an international border, even where the search takes place in the interior of the country. See United States v. Ramsey, 431 U.S. 606, 620 (1977) (holding that the border search exception applies to international letters, because "[t]he critical fact is that the envelopes cross the border ... not that they are brought in by one mode of transportation rather than another"); United States v. Seljan, 547 F.3d 993, 1003 (9th Cir. 2008) ("An envelope containing personal correspondence is not uniquely protected from search at the border."); United States v. King, 517 F.2d 350, 354 (5th Cir. 1975) ("Appellants here could have had no reasonable expectation that their letters, mailed from abroad, would remain uninspected.").
The same rationale applies also to international data transmissions, like the communications at issue here, because such transmissions, in the form of terrorist communications, cyber attacks, illegal financial transactions, and the like, may implicate national security or other government interests to a similar degree as physical mail in an envelope. See Seljan, 547 F.3d at 1001-03 (upholding suspicionless search of envelope containing personal correspondence in light of "tempered" expectation of privacy in international mail and the government's interest in "regulating the flow of persons and property across the border"). Although the government does not contend that the Section 702 collection here was per se reasonable under the border search doctrine, the point remains that the principles underlying that doctrine support the constitutional reasonableness of the collection at issue in this case because, at a minimum, privacy expectations are sharply reduced in their context.37
37 Any expectations of privacy defendants may have had in their electronic communications with non-U.S. persons overseas were also diminished by the prospect that their foreign correspondents could be targets for surveillance by foreign governments or private entities, whose activities are not governed by the United States Constitution or federal law, or by the U.S. Government, pursuant to
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c. The Privacy Interests of U.S. Persons Are Protected by Stringent Safeguards and Procedures
The government employs multiple safeguards that are designed to ensure that surveillance is
appropriately targeted at non-U.S. persons located outside the United States for foreign intelligence
purposes and to protect the privacy interests of U.S. persons who communicate with targets or whose
communications are otherwise incidentally collected. These safeguards and procedures - some of
which go beyond what courts have held reasonable in the context of "special needs" warrantless
searches involving less compelling governmental interests - provide constitutionally sufficient
protection for the privacy interests of U.S. persons.
1. Senior officials certifo that the government's procedures satisfy statutory requirements
Section 702 requires the DNI and the Attorney General to certify that procedures are in place
to protect the privacy of U.S. persons, including targeting procedures and minimization procedures.
50 U.S.C. § 1881a(a), (g), and (i). In addition, the DNI and Attorney General must also certify, inter alia, that a significant purpose of the acquisition is to obtain foreign intelligence information, that the Attorney General and DNI have adopted guidelines to ensure compliance with the statutory
limitations in Section 702(b), and that the targeting procedures, minimization procedures, and
various authorities applicable to foreign intelligence surveillance conducted abroad. Cf Clapper, 133 S. Ct. at 1149 (noting that the government conducts surveillance of persons abroad under "programs that are governed by Executive Order 12333" and that "[t]he Government may also obtain information from the intelligence services of foreign nations"); Amnesty Int 'l USA v. Clapper, 667 F.3d 163, 192 (2d Cir. 2011) (Raggi, J., dissenting) (Because "the United States is hardly the only government conducting electronic surveillance," the foreign contacts of plaintiffs challenging the FAA might "be prime targets for surveillance by other countries," especially foreign contacts "believed to be associated with terrorist organizations."); Verdugo-Urquidez, 494 U.S. at 278 (Kennedy, J.,. concurring) (noting the relevance of "differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad"). This reality, which courts have acknowledged, arguably put defendant "on notice ... that some reasonable [government] intrusion on his privacy is to be expected." King, 133 S. Ct. at 1969.
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guidelines adopted by the government are consistent with the Fourth Amendment. 50 U.S.C. § 1881a(g)(2)(A). The requirement that these senior executive branch officials certify that the procedures comply with statutory requirements and with the Constitution represents an important "internal check" on the actions of the Executive Branch. See In re Sealed Case, 310 F.3d at 739.
2. Targeting procedures ensure that the government targets only non-US. persons reasonably believed to be outside the United States
Section 702 provides that the targeting procedures must be "reasonably designed" to "ensure that any acquisition authorized under [the certification] is limited to targeting persons reasonably believed to be located outside the United States" and to "prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." See 50 U.S.C. § 1881a(d)(l). The FISC repeatedly has found that the targeting procedures employed by the government meet that standard. See supra Part V.B.; {Caption Redacted], 2011WL10945618, at *6 ("The Court found in those prior dockets that the targeting and minimization procedures were consistent with the requirements of 50 U.S.C. § 1881(d)-(e) and with the Fourth Amendment.").
CLASSIFIED MATERIAL REDACTED These detailed procedures refute defendants' contention that collection under Section 702 is unreasonably broad because the government "could collect all communications" between entire geographical areas, such as "New York and London" as long as the "nominal" or "ostensible" targets were foreign citizens outside the United States. (Defs. Mot. 25). Those contentions amount to an accusation that the government will not abide by the required procedures, despite extensive oversight, and that the government will engage in "reverse targeting" of U.S. persons, even though that is expressly prohibited by the statute, see 50 U.S.C. § 1881a(b)(2). However, as the FISA Court
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of Review recognized, there is a "presumption of regularity" that "supports the official acts of public officers," and unless there is "clear evidence to the contrary, courts presume that they have properly discharged their official duties." In re Directives, 551 F.3d at 1011. In this case, as set forth more fully infra at Part IV.D. l .a, there is no indication of any non-compliance by the government that would rebut that presumption.38
CLASSIFIED MATERIAL REDACTED 3. Minimization procedures protect the privacy ofUS. persons whose communications are acquired
Section 702 requires the government to employ minimization procedures, as defined in FISA, to limit the acquisition, retention, and dissemination of information concerning U.S. persons. See 50 U.S.C. § 180l(h)(l). Section 702 further requires that the FISC review those procedures and determine that acquisitions in accordance with such procedures would be consistent with the FAA and the Fourth Amendment. 50 U.S.C. § 1881a(i)(l) and (2).
The minimization procedures governing Section 702 collection, some of which have recently been declassified, are appropriately designed to minimize the acquisition, retention, and dissemination of information to, from, or about U.S. persons, consistent with the government's foreign intelligence needs. See Minimization Procedures Used by the National Security Agency in Connection with Acquisitions ofForeign Intelligence Pursuant to Section 702 ofthe Foreign Intelligence Surveillance Act of1978, as amended, October 31, 2011 ), available at www.dni.gov/files/documents/Minimization%20Procedures%20used%20by%20NSA%20in%20Con nection%20with%20FISA%20SECT%20702.pdf ("NSA 2011 Minimization Procedures").39 The
38 CLASSIFIED MATERIAL REDACTED 39 CLASSIFIED MATERIAL REDACTED
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procedures further require, among other things, that the identity of U.S. persons be redacted from intelligence reports prior to dissemination unless the information constitutes foreign intelligence information, is necessary to understand foreign intelligence information, or is evidence of a crime. Id. § 6(b). In other words, the procedures by design aim to ensure that any intrusion on the privacy of U.S. persons is reasonably balanced against the government's intelligence and law enforcement needs.
For the same reasons that courts have found the use of minimization procedures to be an important factor in holding traditional FISA surveillance to be reasonable under the Fourth Amendment, In re Sealed Case, 310 F.3d at 740-42, the use of substantially similar minimization procedures supports the reasonableness of surveillance under Section 702. In re Directives, 551 F.3d at 1015 (finding it "significant," in upholding the PAA, that "effective minimization procedures are in place" to "serve as an additional backstop against identification errors as well as a means of reducing the impact of incidental intrusions into the privacy of non-targeted United States persons."). 40
Defendants contend (Defs. Mot. 40) that the minimization procedures are inadequate, despite their similarity to the procedures used in Title I FISA surveillance, because "minimization [under the FAA] is not individualized but programmatic; minimization procedures apply not to surveillance of specific targets but rather to surveillance programs, the specific targets of which may be known only to the executive branch." To the contrary, Congress has recognized that the application of uniform minimization procedures to collection directed against multiple targets actually enhances the protection of U.S. person information. H. Rep. No. 95-1283, Pt. 1, at 75 ("It is the intention of the committee that minimization procedures be as uniform as possible for similar surveillances.... The
°4 CLASSIFIED MATERIAL REDACTED
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application of uniform procedures to identical surveillances will result in a more consistent implementation of the procedures, will result in an improved capability to assure compliance with the procedures, and ultimately means a higher level of protections for the rights of U.S. persons."); see United States v. Abu-Jihaad, 531 F. Supp. 2d 299, 303 n.4 (D. Conn. 2008), ajf'd 630 F.3d 102 (2d Cir. 2010) (noting that "the Attorney General has adopted standard minimization procedures that apply to every [Title I] FISA application"); In re All Matters Submitted to Foreign Intelligence Surveillance Ct., 218 F. Supp. 2d 611, 615 (FISC 2002) (referring to "Standard Minimization Procedures for a U.S. Person Agent of a Foreign Power that are filed with the Court, which we continue to approve"). The sufficiency of the minimization procedures therefore does not depend on the identity of the particular target, but rather on whether the procedures are reasonably designed "in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination" of information about United States persons consistent with the government's need to obtain, produce, and disseminate foreign intelligence information. 50 U.S.C. §§ 1801(h)(l), 1821(4)(A); see 50 U.S.C. § 1881a(e)(l).
Defendants further contend (Defs. Mot. 39) that the minimization procedures "bear little resemblance" to the Title I FISA procedures and permit the government to conduct "unfettered" surveillance. However, the procedures employed here provide materially equivalent protection to the procedures employed for Title I and III FISA collection, and courts have found that these procedures sufficiently protect the privacy interests of U.S. persons whose communications are incidentally acquired. In re Sealed Case, 310 F.3d at 740-41; see In re Directives, 551 F.3d at 1015 (recognizing as "significant" to the Court's finding that acquisitions under the PAA were reasonable, that "effectiv~ minimization procedures are in place" that were "almost identical" to those used in traditional FISA surveillance). In addition, those procedures have repeatedly been found sufficient
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in the context of traditional FISA electronic surveillance and physical searches, which target U.S. persons in the United States and therefore are more likely to capture communications of non-targeted U.S. persons than the foreign communications targeted under Section 702. See [Caption Redacted], 2011 WL 10945618, at *7.
Defendants also argue (Defs. Mot. 40) that the minimization is inadequate because the FISC lacks authority to supervise the government's compliance with minimization procedures. However, the FAA' s oversight provisions require regular reporting to the FISC concerning the government's implementation of minimization procedures. 50 U.S.C. § 1881a(l). In addition, Rule 13 of the FISC's Rules of Procedures requires the government to report, in writing, all instances of noncompliance.41 In response to such reports, the FISC has authority to disapprove or to require amendments to the minimization procedures, as, indeed, the FISC has done.42
Defendants further contend (Defs. Mot. 18, 39) that the minimization procedures are inadequate because they permit the government to query information already collected pursuant to Section 702 using terms associated with U.S. persons.43 Defendants are incorrect.
Courts have held in various contexts that where the government's querying of information that has lawfully been obtained does not implicate any reasonable expectation of privacy beyond that implicated in the initial collection, merely running queries in a database does not infringe on any significant privacy interest or trigger any fresh constitutional analysis. See Boroian v. Mueller, 616 F.3d 60, 67-68 (1st Cir. 2010) ("[T]he government's retention and matching of [an individual's] profile against other profiles in [a DNA database] does not violate an expectation of privacy that
41 FISC R. P. 13. 42 CLASSIFIED MATERIAL REDACTED 43 CLASSIFIED MATERIAL REDACTED
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society is prepared to recognize as reasonable, and thus does not constitute a separate search under the Fourth Amendment"); see also Johnson v. Quander, 440 F.3d 489, 498-99 (D.C. Cir. 2006) (holding that ."accessing the records stored in the [DNA] database is not a 'search' for Fourth Amendment purposes" based in part on cases holding that, where a photograph is "taken in conformance with the Fourth Amendment, the government's storage and use of it does not give rise to an independent Fourth Amendment claim."). Notably, the Sixth Circuit has applied this principle in the foreign intelligence context. Jabara v. Webster, 691 F.2d 272, 277-79 (6th Cir. 1982) (holding, where plaintiff did not challenge the lawfulness of warrantless NSA interception of his foreign communications but challenged only the subsequent dissemination of the communications to the FBI, that such dissemination "after the messages had lawfully come into the possession of the NSA" did not implicate any reasonable expectation of privacy).44
The same reasoning applies here. Where, as here, the government has lawfully collected foreign intelligence information pursuant to statutory requirements and FISC-approved procedures that meet Fourth Amendment standards, the government's subsequent querying of that information does not amount to a significant further intrusion on privacy that implicates the Fourth Amendment. See King, 133 S. Ct. at 1980 (holding, "in light of the scientific and statutory safeguards" governing Maryland's warrantless collection of DNA from persons arrested for serious offenses, that "once
44 A rule that-every query, dissemination, or use of Section 702-obtained information amounts to a separate search under the Fourth Amendment would not only be contrary to these cases but also would be impracticable, because, as the Sixth Circuit explained in Jabara, such a rule would require "a succession of warrants as information, lawfully acquired, is passed from one agency to another." 691 F.2d at 279; see also id at 277 ("Evidence legally obtained by one police agency may be made available to other such agencies without a warrant, even for a use different from that for which it was originally taken.") (citation omitted). Accordingly, "[A]n expectation that information lawfully in the possession of a government agency will not be disseminated, without a warrant, to another government agency is [not] an expectation of privacy that society is prepared to recognize as reasonable." Id. at 279.
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respondent's _DNA was lawfully collected," the subsequent analysis of the DNA "did not amount to a significant invasion of privacy that would render the DNA identification impermissible under the Fourth Amendment"). Accordingly, the government's querying (whether using U.S. person identifiers or otherwise) of information lawfully obtained pursuant to Section 702 does not amount to a separate search under the Fourth Amendment and does not require separate or additional judicial process.
Finally, the fact that minimization procedures may permit the government to query information lawfully collected pursuant to Section 702 using identifiers associated with U.S. persons does not render those procedures constitutionally unreasonable. First, as noted above, the querying of information that the government lawfully has obtained is not a significant additional intrusion on a person's privacy, beyond the level of intrusion that has already resulted from the government's collection and review of the information pursuant to court-approved targeting and minimization procedures. Consistent with those procedures, the government is of course permitted to review the information it lawfully collects under Section 702 -which includes information concerning U.S. persons - to assess whether the information should be retained or disseminated. Accordingly, U.S.person information is, by necessity, already subject to review (and use) under the FISC-approved minimization procedures. It would be perverse to authorize the unrestricted review of lawfully collected information but then to restrict the targeted review of the same information in response to tailored queries. Querying lawfully collected information using U.S.-person identifiers does not involve a significant additional intrusion on a person's privacy, beyond the level of intrusion already occasioned by the government as it reviews and uses information it lawfully collects under Section 702 pursuant to its need to analyze whether the information should be retained or disseminated.
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On the other side of the balance, the government has a powerful interest in conducting such queries for appropriate purposes including, for example, discovering potential links between foreign terrorist groups and persons within the United States in order to detect and disrupt terrorist attacks. See Part III.A.3.a.45 Similarly, the government's interest in preventing crime is "paramount," and a criminal investigation is always a "compelling" state interest. Branzburg v. Hayes, 408 U.S. 665, 700 (1972); see also In re Directives, 551 F.3d at 1011 ("A surveillance with a foreign intelligence purpose ofte~ will have some ancillary criminal-law purpose" because, for example, the "apprehension of terrorism suspects ... is inextricably intertwined with the national security concerns that are at the core of foreign intelligence collection."). Likewise, the FISC repeatedly has approved minimization procedures that permit queries using U.S. person identifiers. See {Caption Redacted), 2011WL10945618, at *7. In approving such queries in the context of Section 702 collection, the FISC noted that the minimization procedures applicable to certain other FISAacquired information, which the FISC had previously approved, similarly permit queries using U.S.person identifiers, even though that information was likely to include a higher concentration of U.S. person information than Section 702 collection. Id The FISC concluded, "[i]t follows that the substantially-similar querying provision found [in] the amended NSA minimization procedures should not be problematic in a collection that is focused on non-United States persons located outside the United States and that, in the aggregate, is less likely to result in the acquisition of nonpublic information regarding non-consenting United States persons." Id. 46
45 Such queries also help the government counteract operational security measures such as hiding operational communications in large amounts of non-operational communications in the hope of delaying the government's detection of those communications. 46 CLASSIFiED MATERIAL REDACTED
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In other words, electronic surveillance under Title I of FISA is more likely to result in incidental collection of information about U.S. persons as to whom there has been no finding of probable cause that an individual is an agent of a foreign power. Yet the FISC has long approved the querying of Title I data, including with U.S. person identifiers, when such queries are designed to yield foreign intelligence information or evidence of a crime. Likewise, for decades the Federal Wiretap Act's minimization procedures have specifically allowed the government to search for and use evidence from a wiretap to prove a crime unrelated to the original purpose for the wiretap. See 18 U.S.C. § 2517(5); see also, e.g., United States v. Goffer, 721 F.3d 113, 124 (2d Cir. 2013). In sum, the government's querying of information lawfully acquired under Section 702 pursuant to the court-approved minimization procedures is reasonable under the Fourth Amendment, as the FISC has repeatedly found.
4. A significant purpose ofthe acquisition must be to obtain foreign intelligence information
Section 702 only authorizes collection when a "significant purpose" of the collection is to "obtain foreign intelligence information." 50 U.S.C. § 188la(g)(2)(A)(v). That requirement precludes the government from using directives issued under Section 702 "as a device to investigate wholly unrelated ordinary crimes." In re Sealed Case, 310 F.3d at 736.
CLASSIFIED MATERIAL REDACTED 5. Executive Branch, Congressional, and Judicial oversight
Section 702 requires the Attorney General and DNI to periodically assess the government's compliance with both the targeting and minimization procedures and with relevant compliance guidelines, including, for example, the extent to which U.S. persons' communications have been acquired under the statute and the number of intelligence reports stemming from Section 702
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l

acquisitions referring to the identity of a U.S. person. See 50 U.S.C. § 188la(l). They must submit

I

those assessments both to the FISC and to congressional oversight committees. Id. The Attorney

I

General must also keep the relevant oversight committees "fully inform[ed]" concerning the

l

implementation of Section 702. 50 U.S.C. § 188lf(a) and (b)(l); see also Clapper, 133 S. Ct. at

'

1144 ("Surveillance under § 1881 a is subject to statutory conditions, judicial authorization,

congressional supervision, and compliance with the Fourth Amendment.").

In 2012, the Senate Select Committee on Intelligence, following four years of such oversight,

found that

[T]he assessments, reports, and other information obtained by the Committee demonstrate that the government implements the FAA surveillance authorities in a responsible manner with relatively few incidents of non-compliance. Where such incidents have arisen, they have been the inadvertent result of human error or technical defect and have been promptly reported and remedied. Through four years of oversight, the Committee has not identified a single case in which a government official engaged in a willful effort to circumvent or violate the law. Moreover, having reviewed opinions by the FISA Court, the Committee has also seen the seriousness with which the Court takes its responsibility to carefully consider Executive Branch applications for the exercise of FAA surveillance authorities.

S. Rep. No. 174, 112th Cong. 2d Sess. 7 (2012); see also H.R. Rep. No. 645(II), 112th Cong., 2d ·

Sess. 4 ("The oversight this committee has conducted since the FAA was enacted in 2008 has shown

no evidence that the Intelligence Community has engaged in any intentional or willful failure to

comply with statutory requirements or Executive Branch policies and procedures."). Under the

FAA, as in traditional FISA, the "in-depth oversight of FISA surveillance by all three branches of

government" helps to "ensure[]" the "privacy rights of individuals" and to "reconcile national

intelligence and counterintelligence needs with constitutional principles in a way that is consistent

with both national security and individual rights." United States v. Belfield, 692 F.2d 141, 148 (D.C.

Cir. 1982).

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6. Prior Judicial review Finally, Section 702 requires the FISC to enter an order approving the certification and the use of the targeting and minimization procedures if the court finds that the certification contains all the required elements, and that the targeting and minimization procedures are consistent with the requirements of 50 U.S.C. §§ 1881a(d) and (e) and with the Fourth Amendment. 50 U.S.C. § 1881a(i)(3)(A). The requirement of prior FISC approval, and in particular the requirement of a judicial finding that the government's targeting and minimization procedures are consistent with the Fourth Amendment, support a finding that Section 702 collection conducted pursuant to such procedures is constitutional. See Clapper, 133 S. Ct. at 1150 (noting the importance of the requirement that the FISC "assess whether the Government's targeting and minimization procedures comport with the Fourth Amendment"); see also Clapper, 667 F.3d at 190 (Raggi, J., dissenting) ("There is no reason to think that the Article III judges who serve on the FISA court will be timid in exercising this review authority"). Indeed, the FISC's declassified opinions make clear that the FISC takes seriously its responsibility to independently review the constitutional reasonableness of the applicable procedures and subjects those procedures to exacting scrutiny. See, e.g., [Caption Redacted], 2011WL10945618.
d. Collection Under Section 702 Has Sufficient Particularity Defendants' overarching argument is, in essence, that collection pursuant to Section 702 fails the Fourth Amendment's general reasonableness test because it does not require a particularized court order or finding of probable cause as in traditional FISA collection or domestic law enforcement wiretaps under Title III. (Defs. Mot. 33-42). In doing so, defendants characterize Section 702-authorized collection as "dragnet" surveillance that collects communications in "bulk." (See, e.g., id. at 11, 16, 32, 42). However, collection under Section 702 is not bulk collection.
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Rather, it is targeted and particularized because FISC-approved procedures require the government
to determine (1) that the particular "user of the facility to be tasked for collection is a non-United
States person reasonably believed to be located outside the United States," [Caption Redacted],
2011 WL 10945618, at *7; and (2) the collection is designed to obtain foreign intelligence
information within the scope of the certification approved by the court.47
CLASSIFIED MATERIAL REDACTED
Moreover, defendants' argument conflates the test for constitutional reasonableness with the
different requirements for a warrant under the Fourth Amendment. See U.S. Const. Amend IV
("[N]o warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and
particularly describing the place to be searched) (emphasis added). In In re Directives, the FISA
Court of Review emphatically rejected the petitioner's "invitation to reincorporate into the foreign
intelligence exception the same warrant requirements that we already have held inapplicable." 551
F.3d at 1013. Although particularity may be considered as one factor among many in assessing the
47 Indeed, a review of "transparency reports" recently published by various U.S. Internet Service Providers demonstrates that collection of communications' content pursuant to FISA orders and FAA directives is far from bulk "dragnet" surveillance. For example, Microsoft reported receiving "fewer than 1,000 FISA orders" (which Microsoft defines to include both traditional FISA orders and FAA directives that were received or active during the reporting period) that related to between 16,000 and 16,999 user accounts during the six-month period between July and December 2012. See Brad Smith, General Counsel and Executive Vice President, Legal and Corporate Affairs, Microsoft, Providing additional transparency on US. government requests for customer data (Feb. 3, 2014), available at, http://blogs.technet.com/b/microsoft_on_the_issues/archive/2014/02/03/providingadditional-transparency-on-US-government-requests-for-customer-data.aspx. A particular user may have multiple accounts, so this "does not necessarily mean that more than [16,000] people were covered by these data requests." Id. Rather, "this number will likely overstate the number of individuals subject to government orders." Id. The number of user accounts impacted by the same number of orders during other six-month reporting periods was even less, namely up to 15,999 between January and June 2013 and up to 11,999 between July and December 2011 and January to June 2012. Id. When balanced against the "hundreds of millions" of Microsoft customers, "only a fraction of a percent of [Microsoft] users are affected by these orders. In short, this means that we have not received the type of bulk data requests that are commonly discussed publicly regarding telephone records." Id.
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reasonableness of a particular search, the Fourth Amendment "imposes no irreducible requirement" of individualized suspicion where the search is otherwise reasonable, as it is here. See King, 133 S. Ct. at 1969. Moreover, as the FISA Court of Review found in the context of the PAA, the "matrix of safeguards," including robust targeting and minimization procedures, provide constitutionally sufficient protections for the same interests that would be served by requirements of particularity or prior judicial review of individual targets. In re Directives, 551 F.3d at 1013.
In sum, in enacting Section 702, Congress and the Executive Branch developed a framework of procedures to facilitate collection of foreign intelligence vital to the nation's security while protecting any constitutionally protected privacy interests implicated by the collection. That framework is entitled to the utmost constitutional respect by this Court. See Youngstown, 343 U.S. at 635-37 (Jackson, J., concurring); Jn re Directives, 551 F.3d at 1016 ("[W]here the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts."). The safeguards built into the statute and the certifications and procedures by which it was implemented here ensured that the collection targeted only foreign person(s) outside the United States and was conducted in a way that only incidentally implicated the privacy of U.S. persons. Evaluating the totality of the circumstances and weighing the compelling governmental interests at stake in combination with the extensive safeguards employed by the government to protect the privacy interests of U.S. persons - including (1) certifications by Executive Branch officials concerning the permissible foreign intelligence purposes of the collection; (2) targeting procedures designed to ensure that only non-U.S. persons abroad are targeted; (3) minimization procedures to protect the privacy of U.S. persons whose communications are incidentally acquired; (4) the requirement of a significant purpose to obtain foreign intelligence information; (5) extensive
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oversight wit~in the Executive Branch, as well as by Congress and the FISC; and (6) a prior judicial finding that the targeting and minimization procedures are consistent with the Fourth Amendmentthis Court should hold that the government's acquisition pursuant to Section 702 of the foreign intelligence information challenged by the defendants meets the Fourth Amendment's central requirement of reasonableness.
B. SECTION 702 IS CONSISTENT WITH ARTICLE III Defendants contend (Defs. Mot. 44-48) that the FISC does not perform a proper judicial role under Article III in reviewing targeting and minimization procedures pursuant to Section 702 because the court does not review the procedures in the context of a particular proposed target and interception. Defendants further maintain that review at this level of generality does not present a "case or controversy" within the meaning of Article III. Those contentions have no merit. "Article III courts perform a variety of functions not necessarily or directly connected to adversarial proceedings in a trial or appellate court." Mistretta v. United States, 488 U.S. 361, 389 n.16 (1989); see also Morrison v. Olson, 487 U.S. 654, 679 n.16 (1988). In particular, the courts have long participated in the oversight of government searches and surveillance by reviewing warrant and wiretap applications, notwithstanding that these proceedings are wholly ex parte and do not occur at the behest of an aggrieved party as ordinarily required for a "case or controversy" under Article III. Mistretta, 488 U.S. at 389 n.16; see also, e.g., In re Sealed Case, 310 F.3d at 732 n.19 ("In light of [Morrison and Mistretta], we do not think there is much left to an argument ... that the statutory responsibilities of the FISA court are inconsistent with Article III case and controversy responsibilities of federal judges because of the secret, non-adversary process."); Matter ofKevork,
76
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634 F. Supp. 1002, 1014 (C.D. Cal. 1985) ("The ex parte nature ofFISC proceedings is ... consistent with Article III."), aff'd, 788 F.2d 566 (9th Cir. 1986).48
Congress, in assigning the FISC an analogous function in Section 702, did not vest the FISC with a power that is "incongruous" with the judicial function or that "more appropriately belong[s] to another Branch" - the central question in a separation of powers challenge under Article III. Mistretta, 488 U.S. at 390; see also In re Application ofthe US. for an Order Pursuant to 18 US.C. § 2703(d), 83.0 F. Supp. 2d 114, 144 (E.D. Va. 2011) ("Grand Juries, search warrants, wiretap orders, and many other ex parte applications and orders rely on judicial review to protect the rights of potential subjects of investigation. All of these tools have been routinely and consistently approved by the courts."). Congress's decision to vest the FISC with jurisdiction to review the reasonableness of procedures for searches or surveillance under the FAA is perfectly consistent with the traditional function of Article III courts in protecting the privacy rights of persons whose interests are potentially implicated by proposed searches, seizures, or compulsory processes. Cf Mistretta, 488 U.S. at 390-91 (given the judiciary's traditional role in determining individual criminal sentences, the judiciary could constitutionally participate in formulating general sentencing guidelines).
Moreover, the decision the FISC is called upon to render under Section 702 is not merely "advisory," any more than a decision on a traditional search warrant or wiretap application is "advisory." If the FISC disapproves the government's proposed targeting or minimization procedures under Section 702, that decision has legal effect, because it bars the government from 48 The judiciary participates in oversight of searches and seizures not only by reviewing applications and issuing warrants, but also through its participation in promulgating the procedural rules governing the warrant process. See Fed. R. Crim. P. 41; Mistretta, 488 U.S. at 387-88 (noting that Congress may properly delegate to the courts the authority to prescribe rules of procedure in criminal cases).
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conducting .collections under the statute if it does not remedy the deficiency within thirty days. A

FISC order approving the proposed certification and procedures also has an effect on third parties,

because it authorizes the government to issue directives (compulsory process analogous to a

subpoena) to electronic communications service providers. The fact that the providers have a right

to challenge a directive in court further establishes that a FISC order approving a Section 702

certification is not an advisory opinion but a legally enforceable order potentially subject to legal

challenge. See Clapper, 133 S. Ct. at 1154 ("[A]ny electronic communications service provider that

the Government directs to assist in§ 188la surveillance may challenge the lawfulness of that

directive before the FISC. ").

I

Defendants are also incorrect in claiming that the lack of a particular factual context for the

I

FISC's review of the government's certification renders the issue inappropriate for resolution by an

Article III judge. Even the authority on which defendants rely recognizes that the standard is

I

whether the questions presented to the FISC "are in a form such that a judge is capable of acting on

them." United States v. Megahey, 553 F. Supp. 1180, 1197 (E.D.N.Y. 1982). That standard is met

here.

Section 702 requires the FISC to review specific targeting and minimization procedures to

determine whether they comply with applicable statutory standards and the Fourth Amendment.

i

That review is not conducted in the abstract; rather, the FISC must review the minimization

l

procedures "in light of the purpose and technique of the particular surveillance." 50 U.S.C. §

1 '

180l(h)(l) (emphasis added); see also id. § 1821(4)(A) (requiring that minimization procedures with respect to physical search must be "reasonably designed in light of the purpose and technique of the

··. I

particular physical search") (emphasis added). Accordingly, the FISC's review must consider the

i

particular "purpose," as set forth in the certification, of the acquisitions, as well as the particular

I

78

i

Case 1:12-cr-00033-JLK Document 559 Filed 05/09/14 USDC Colorado Page 79 of 97
''technique[s]" the government uses. This often involves a close consideration of the application of specific, detailed provisions in the targeting and minimization procedures as applied to specific, technical tools through which the government implements Section 702. See [Caption Redacted], 2011 WL 10945618, at *9 ("The Court has repeatedly noted that the government's targeting and minimization procedures must be considered in light of the communications actually acquired."). That level of particularity and detail is exemplified in the declassified FISC opinions addressing the adequacy of particular targeting and minimization procedures in the context of certain technical limitations in the NSA's "upstream collection" of Internet communications transmitted as part of a multi-communication batch. See id. at *9-* 10.
Analyzing the reasonableness of electronic surveillance, in light of the government's national security interests and the privacy interests of potential subjects of the surveillance, is a traditional judicial function. See Halperin v. Kissinger, 606 F.2d 1192, 1201 n.59 (D.C. Cir. 1979) ("[D]etermin[ing] whether electronic surveillance was consonant with statutory and constitutional strictures [is] a traditional judicial function that is governed by well established and manageable standards."). The closely related question of whether surveillance conducted pursuant to particular procedures is reasonable under the relevant statutory and constitutional standards is also the kind of analysis that courts regularly undertake, such as, for example, when they adjudicate the constitutionality of a state statute regulating domestic wiretaps. See United States v. Tortorello, 480 F.2d 764, 772-73 (2d Cir. 1973) (analyzing constitutional adequacy of procedures provided by New York electronic surveillance statute).
The FISC's role under Section 702 is also analogous to judicial review of administrative warrants in the public health context, which may be based on the court's determination of the reasonableness of the standards and procedures for conducting inspections in a given area, rather
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than evidence of a violation at a specific location. See Camara v. Municipal Ct., 387 U.S. 523, 53738 (1967) ("Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building (e.g., a multifamily apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling."). Although warrant or wiretap applications for law enforcement purposes typically involve a more fact-specific form of review, that is because the Fourth Amendment or Title III requires more particularity in those contexts - not because of anything in Article III.
C. THE GOOD FAITH EXCEPTION APPLIES The good-faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 913 (1984), provides an independent basis for denying defendants' suppression motion. See, e.g., United States v. Ning Wen, 477 F.3d 896, 897-98 (7th Cir. 2007) (applying good-faith exception to a claim that FISA surveillance violated the Fourth Amendment). The good-faith rule applies when law enforcement agents act in "objectively reasonable reliance on a statute" authorizing warrantless searches that is later deemed unconstitutional, Ill. v. Krull, 480 U.S. 340, 349-50 (1987), when law enforcement officers reasonably rely on the probable-cause determination of a neutral magistrate, see Leon, 468 U.S. at 920, and when law enforcement officers reasonably rely on thenbinding appellate precedent that is subsequently overturned, see Davis v. United States, 131 S. Ct. 2419, 2434 (2011). The good-faith exception applies here because the collection at issue was authorized by a duly enacted statute, an order issued by a neutral magistrate, and court of appeals precedent. First, government agents conducted the collection at issue here pursuant to Section 702, as well as under procedures adopted by the Attorney General pursuant to the statute. See Krull, 480 U.S. at 349;
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Duka, 671 F.3d at 346 (reasoning that the good-faith rule applies because the search "was conducted in objectively reasonable reliance on a duly authorized statute [PISA]"); see also United States v. Marzook, 435 F. Supp. 2d 778, 790-91 (N.D. Ill. 2006) (holding that "the FBI's reliance on the Attorney Ge~eral's approval under Executive Order 12333 - an order that no court has found unconstitutional - was []objectively reasonable because that order pertains to foreign intelligence gathering"). Second, the agents also reasonably relied on orders issued by neutral magistrates - the judges of the FISC - who repeatedly have held that the applicable targeting and minimization procedures are reasonable under the Fourth Amendment. See Leon, 468 U.S. at 920; see also Duka, 671 F.3d at 347 n.12 ("[O]bjective ... reliance on the statute in this case is further bolstered by the fact that the particular provision at issue has been reviewed and declared constitutional by several courts."); United States v. Mubayyid, 521 F. Supp. 2d 125, 140 n.12 (D. Mass. 2007) (applying the good-faith exception because "there appears to be no issue as to whether the government proceeded in good faith and in reasonable reliance on the PISA orders"). Finally, the agents reasonably relied on appellate precedent from the PISA Court of Review that upheld similar directives issued under the PAA. See Davis, 131 S. Ct. at 2433-34; In re Directives, 551 F.3d at 1016.
Defendants cannot show that Section 702 is so "clearly unconstitutional," Krull, 480 U.S. at 349, that "a reasonable officer should have known that the statute was unconstitutional," id. at 355. Nor can they show that the collection was the result of "systemic error or reckless disregard of constitutional requirements." Herring v. United States, 555 U.S. 135, 147 (2009). Accordingly, even if the collection were deemed unconstitutional, the evidence derived from that collection would not be subject to exclusion.49
49 In the related context of Title III of the Wiretap Act, the weight of the precedent establishes that Title Ill's statutory suppression remedy for criminal wiretap orders incorporates the good-faith
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IV. THE SECTION 702 INFORMATION WAS LAWFULLY ACQUIRED AND CONDUCTED IN CONFORMITY WITH AN ORDER OF AUTHORIZATION OR APPROVAL
In addition to challenging the general constitutionality of Section 702, defendants also question the government's compliance with the applicable targeting and minimization procedures with respect to the specific information used in this case. (Defs. Mot. 39-40). As explained below, this Court's in camera, ex parte review of the relevant classified materials will establish that the Section 702 acquisition was lawfully authorized and conducted. First, the applicable certification(s), targeting procedures, and minimization procedures, all of which were reviewed and approved by the FISC, complied with the requirements for such certification(s) and procedures set forth in Section 702. Second, the Section 702 collection at issue in this case was conducted in accordance with those approved certification(s) and procedures.
A. CLASSIFIED MATERIAL REDACTED
CLASSIFIED MATERIAL REDACTED
exception. See United States v. Moore, 41 F.3d 370, 374, 376 (8th Cir. 1994) (applying good-faith exception to Title III violation); United States v. Malekzadeh, 855 F.2d 1492, 1497 (I Ith Cir. 1988) (same); United States v. Brewer, 204 Fed. Appx. 205 (4th Cir. 2006) (same); United States v. Solomonyan, 451 F. Supp. 2d 626, 637-38 (S.D.N.Y. 2006) (collecting cases). Although two courts of appeals have held otherwise, both courts also questioned in those cases whether the government's actions were actually taken in "good faith," either because the affiant recklessly misled the court, see United States v. Rice, 478 F.3d 704, 709-11 (6th Cir. 2007); or because the wiretap order, in the court's view, plainly violated the applicable rule, see United States v. Glover, 736 F.3d 509, 515-16 (D.C. Cir. 2013). In this case, even if some aspect of the collection did not comply with the requirements of Section 702, there is no similar indication of deliberate, reckless, or systemically negligent conduct. Accordingly, absent a finding that the government personnel who carried out the collection did not rely in good faith on the targeting and minimization procedures as approved by the FISC, or otherwise engaged in culpable conduct warranting application of the exclusionary rule, defendants' motion to suppress should be denied.
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B. THE APPLICABLE TARGETING PROCEDURES MET THE STATUTORY REQUIREMENTS
Section 702 targeting procedures must be "reasonably designed" both to "ensure that any acquisition authorized [pursuant to Section 702] is limited to targeting persons reasonably believed to be located outside the United States" and to "prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States." 50 U.S.C. § 1881a(d)(l).
CLASSIFIED MATERIAL REDACTED C. THE APPLICABLE MINIMIZATION PROCEDURES MET THE
STATUTORY REQUIREMENTS Section 702 requires the adoption of minimization procedures that comply with FISA's definition of such procedures. See 50 U.S.C. § 1881a(e)(l). That definition in turn requires that the minimization procedures must be reasonably designed, in light of the purpose and technique of the particular surveillance, in order to minimize any acquisition of non-publicly available information about unconsenting U.S. persons, and to minimize the retention and prohibit the dissemination of any such info.rmation that might still be acquired, consistent with the need to obtain, produce, and disseminate foreign-intelligence information, or to retain and disseminate evidence of a crime. 50 U.S.C. §§ 1801(h)(l), (3), 1821(4)(A), (C), 1881a(e)(l). CLASSIFIED MATERIAL REDACTED D. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED 1. Relevant Facts
a. CLASSIFIED MATERIAL REDACTED
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CLASSIFIED MATERIAL REDACTED b. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED c. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED

2.

CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED a. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED b. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED c. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED d. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED 3. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED
a. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED
b. CLASSIFIED MATERIAL REDACTED

CLASSIFIED MATERIAL REDACTED c. CLASSIFIED MATERIAL REDACTED

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CLASSIFIED MATERIAL REDACTED d. CLASSIFIED MATERIAL REDACTED
CLASSIFIED MATERIAL REDACTED 4. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED
a. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED
b. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED 5. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED
a. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED
b. CLASSIFIED MATERIAL REDACTED CLASSIFIED MATERIAL REDACTED V. DEFENDANTS' DISCOVERY MOTION SHOULD BE DENIED Defendants request discovery on a number of theories: (1) that disclosure is required under the Due Process Clause (Defs. Mot. 48); (2) that adversarial proceedings are required either because of the uniqueness of the legal issues, a lack of precedent, on the defendants' supposition that they would craft better arguments if they knew more about the underlying classified information, on the basis of so-called misrepresentations to the FISC, or on the argument -previously rejected by this court in CIPA proceedings - that ex parte proceedings are disfavoured or inconsistent with due process (Defs. Mot. 49-60); and (3) the argument that a suppression motion cannot be crafted
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without discl~sure - an argument which is undercut by years of precedent to the contrary (Defs. Mot. 48). For the reasons set forth below, the defendants' request for discovery of classified material should be denied.
A. FISA PROVISIONS GOVERNING REVIEW AND DISCLOSURE FISA provides that, where the Attorney General certifies that "disclosure [of FISA materials] or an adversary hearing would harm the national security of the United States," a district court "shall, notwithstanding any other law, ... 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." 50 U.S.C. § 1806(t). This same procedure applies to motions related to Section 1881 a collection, which is deemed to be Title I FISA surveillance for purposes of such motions. 50 U.S.C. § 1881e(a). If the Attorney General files such a declaration, as he has done here, the district court must review the FISA materials ex parte and in camera and may disclose the applications and orders (or portions thereof) "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance [or search]." Id (emphasis added). Accordingly, FISA requires the court to examine the applications, orders, and related materials ex parte and in camera to determine the lawfulness of the Section 702 collection. Id. If the court is able to assess the legality of the FISA collection by reviewing the government's submissions (and any supplemental materials that the court may request) in camera and ex parte, 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); Abu-Jihaad, 630 F.3d at 129; 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).
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A court may order disclosure only if it finds itself incapable of accurately resolving the lawfulness of the FISA collection. El-Mezain, 664 F.3d at 567; Abu Jihaad, 630 F.3d at 129.
B. IN CAMERA, EX PARTE REVIEW OF THE FISA MATERIALS IS THE
RULE
In light of these requirements, courts have consistently held that "[d]isclosure ofFISA 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); United States v. Duggan, 743 F.2d 59, 78 (2d Cir. 1984) (same); United States v. Rosen, 447 F. Supp. 2d 538, 546 (E.D. Va. 2006). Whenever possible, "the court should proceed in camera and without disclosure [of national security information] to determine the legality of a surveillance" in order to avoid frustrating the system designed by Congress to protect the "delicate and sensitive [process of] foreign intelligence gathering" to the greatest degree possible "compatible with the assurance that no injustice is done to a criminal defendant." Belfield, 692 F.2d at 149 (internal quotation marks omitted); see also In re Grand Jury Proceedings ofSpecial April 2002 Grand Jury, 347 F.3d 197, 203 (7th Cir. 2003) (noting that a case in which "disclosure is necessary" is "one-in-a-million"); 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.").
Until recently, every court to have addressed a motion to disclose FISA applications and orders or to suppress FISA information has been able to determine the legality of the challenged FISA collection based on an 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
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court); but see United States v. Daoud, No. 12-cr-723, 2014 WL 321384 (N.D. Ill. Jan. 29, 2014) (unpublished) (granting motion for disclosure of PISA materials to defense counsel with security clearance).50 Even where defendants have alleged specific errors or misrepresentations in the PISA applications, based on their analysis of the evidence in the case, courts have deemed disclosure unnecessary because they were able to adjudicate the lawfulness of the surveillance in light of the alleged errors through in camera, ex parte review. See, e.g., El-Mezain, 664 P.3d at 566; Abu Jihaad, 630 P.3d at 130; Rosen, 447 P. Supp. 2d at 552 (denying disclosure despite minimization errors that were inadvertent, disclosed to the PISC, and promptly rectified). Thus, if this Court is able to determine the legality of the Section 1881a collection from which certain of the evidence in this case was derived based on its ex parte, in camera review of the government's submission, then there will be no legal basis to disclose any portion of such submission.
C. DEFENSE PARTICIPATION IS NOT NECESSARY TO THIS COURT'S REVIEW
Under these standards, the legality of the Section 702 collection at issue in this case may be determined without the need to compel disclosure of classified materials to the defense. As the government's submissions make clear, the Section 702 collection was lawful and the defendants' allegations to the contrary may be considered, and rejected, based on an examination of the classified record. Contrary to defendants' contention, the classified record presents 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, or any other factors that would indicate a need for disclosure in this case." United States v. Ott, 827 P.2d 473, 476 (9th Cir. 1987). 50 The government appealed the district court's order in Daoud, and the district court stayed its order pending appeal.
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D. DEFENDANTS' ARGUMENTS IN SUPPORT OF DISCLOSURE CONTRAVENE FISA'S STANDARDS AND OTHERWISE LACK MERIT
Defendants contend (Defs. Mot. 50-51) that the Court should grant disclosure because his motion presents "factually and legally complex" issues that the Court must resolve "without the aid of precedent."51 That contention has no merit.
An order granting disclosure based simply on the fact that a FISA claim raises issues that have not previously been adjudicated would be inconsistent with the statutory scheme. After all, at the time FISA was enacted, every FISA suppression motion would have raised novel issues, yet Congress mandated that FISA litigation be handled ex parte, in camera, with disclosure the exception. Courts have been following that procedure for decades. 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. Moreover, the statute requires that courts review the FISA applications and orders in camera and ex parte before even contemplating disclosure. Thus, a court's decision to disclose should arise from that review, rooted in facts from the FISA materials, and not from a defendant's contention that his case raises novel issues.
In Belfield, the D.C. Circuit squarely rejected an attempt to compel disclosure on similar grounds. In that case, 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." 692 F.2d at 147. However, the court recognized that an argument relying on the general complexity of FISA issues would apply in every case, and therefore disclosure would always be "necessary." Id. 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 51 In asserting the lack of any helpful precedent, Muhtorov again fails to mention the decision of the FISA Court of Review in In re Directives.
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camera determination is to be the rule. Disclosure and an adversary hearing are the exception,

occurring only when necessary." Id. (emphasis in original). Thus, Muhtorov's arguments conflict

with Belfield, the clear statutory standard governing disclosure, and the process set forth in FISA for

review of FISA suppression claims.

The defendants note (Defs. Mot. 52) that, "without disclosure," the Court and the defendants

will "lose the benefit of informed arguments" from the defense. However, as noted above, whether

disclosure might assist the defendants in effectively presenting their claims is not the relevant

standard. FI$A requires a finding by the Court, after an ex parte, in camera review, that disclosure

"is necessary" for the Court to "make an accurate determination of the legality of the surveillance."

50 U.S.C. § 1806(f); see Kris & Wilson, National Security Investigations§ 29:3 n.l (2d ed. 2012)

(describing legislative history of another FISA provision in which Congress emphasized that the

term "necessary" meant "important and required," and not simply "useful or convenient").

Moreover, the defendants' contention runs counter to the policy judgment Congress made in

devising FISA's suppression procedures. The advantages of the adversary process were not lost on

Congress, but Congress weighed those benefits against the exceptional costs of revealing "sensitive

foreign intelligence information." S. Rep. No. 701, 95th Cong., 2d Sess. 57 (1978); 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."). If a defendant could obtain disclosure merely by pointing out that it would help him formulate his arguments more effectively, disclosure

would become 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

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procedures" of§ 1806(f) were not to be "bypassed by the inventive litigant using a new ... judicial construction") (citing S. Rep. No. 701, 95th Cong., 2d Sess. 63).52
Defendants contend (Defs. Mot. 52) that courts have suggested that factors such as "possible misrepresentations of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of non-foreign intelligence information," indicate that an adversary hearing may be warranted. They further contend that the government's "repeated misrepresentations to the FISC" establish the presence of those factors. (Defs. Mot. 52). However, the defendants fail to recognize that, to justify disclosure, the court must first find that those factors are present with respect to the collection at issue in a particular case, after, in camera, ex parte review. See Ott, 827 F.2d at 476 (noting that there are "no indications of possible misrepresentation of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of non-foreign intelligence information, or any other factors that would indicate a need for disclosure in this case) (internal quotation marks omitted) (emphasis added); United States v. Warsame, 547 F. Supp. 2d 982, 987-88 (D. Minn. 2008) (noting that defendant's allegations that "the government has included misstatements and critical omissions in other FISA applications not at issue here cannot justify disclosure in this case"). 53
52 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 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, reprinted in 1978 U.S. Code Cong. & Admin. News 4048, 4060-61. 53 The defendants' argument that they are entitled to a Franks hearing suffers from the same weakness. Defs. Mot. 56-57. A defendant cannot establish entitlement to a Franks hearing based on evidence of misrepresentations in some other case. Ifthat were true, every defendant would be entitled to a Franks hearing simply by pointing to alleged misrepresentations in a different case.
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Nor do the defendants' citations to statements in various FISC opinions, most of which do not involve Section 702, justify ordering disclosure of the Section 702 materials. Apart from the fact that those opinions have virtually no relevance to the present case, they underscore a more significant fact: the government takes its obligations under FISA and the Constitution seriously and candidly acknowledges and corrects deficiencies and compliance problems when it discovers them. See Comments of the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act (Jan. 10, 2014) at 5, 7 (noting that the government generally exhibits a "high degree of candor" in ex parte proceedings before the FISC and that the government "routinely discloses in an application information that is detrimental to its case"), available at www.judiciary.senate.gov/resources/documents/113thCongressDocuments/upload/O11413 RecordSu b-Grassley.pdf. To the extent that there are any issues concerning the lawfulness of the Section 1881a collection at issue, as raised in FISC opinions, those have been addressed in this pleading. Muhtorov's speculation therefore cannot overcome the statutory presumption favoring this Court's ex parte revi.ew.54
54 None of the FISC opinions cited by the defendants have any bearing on the issues surrounding the use of information derived from the acquisition of foreign intelligen~e information conducted pursuant to Section 702 in this case. Only one FISC opinion cited by the defendants relates in any way to the acquisition of foreign intelligence information under Section 702. See [Caption Redacted], 2011 WL 10945618. The defendants' reliance on that opinion, however, is misplaced. That opinion ·does not alter Section 1806's requirement that the district court first conduct an in camera, ex parte review of the government's submissions and only order disclosure if necessary to determine the legality of the Section 702 collection at issue. Moreover, the concerns expressed in that opinion applied only to one particular collection technique under Section 702, not to Section 702
collection as a whole, which the FISC approved as lawful. See id. at *14, 28. Thus, if that technique
is not at issue in this case, then the FISC opinion supports the proposition that Section 702 collection is constitutional. CLASSIFIED MATERIAL REDACTED
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The defendants' contend that disclosure of the Section 702 materials is required under Brady v. Maryland, 373 U.S. 83 (1963), on the ground that the materials "likely" will contain "information favorable" to the motion to suppress. Defs. Mot. 57-59. The government understands and has every intention of complying with its discovery obligations. The defendants are not entitled to go on a "fishing expedition" of the government's files on the mere supposition that they may contain exculpatory information. That contention has no merit.
Where disclosure is not necessary to make an accurate determination of the legality of the surveillance, FISA prohibits disclosure "except to the extent that due process requires discovery or disclosure." 50 U.S.C. § 1806(g). The due process requirement embraced by FISA is coterminous with the Brady standard. See United States v. Spanjol, 720 F. Supp. 55, 59 (E.D. Pa. 1989). However, contrary to defendants' speculation, none of the Section 702 materials submitted herewith are "material" within the meaning of Brady. The defendants' argument that due process requires disclosure of FISA materials based on the defendants' allegation that the materials "likely" will assist them in litigating their suppression motion would, again, apply in every FISA case and is therefore inconsistent with the numerous cases upholding FISA's ex parte review procedure against constitutional challenges. See, e.g., El-Mezain, 664 F.3d at 567-69; Damrah, 412 F.3d at 624-25; United States. v. Isa, 923 F.2d 1300, 1306-07 (8th Cir. 1991); Ott, 827 F.2d at 476-77; Belfield, 692 F.2d at 148. Likewise, even if, as the defendants contend (Defs. Mot. 59), FISA's due process disclosure requirement incorporates the "relevant and helpful" standard from the CIPA context, rather than the more stringent Brady standard, the Section 702 materials are not discoverable under either standard.
Finally, the defendants contend that adversary process is required in this context by the Constitution's due process, right to counsel, and confrontation clauses. Defs. Mot. 61-64. As noted
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above, that contention is inconsistent with decades of practice in FISA litigation and numerous cases upholding FISA's in camera, ex parte procedures against constitutional challenges. Muhtorov's argument also founders on the large body of non-FISA law allowing courts to hold ex parte, in camera hearings when necessary to protect an informant's safety, the integrity of an ongoing investigation, or some other important 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 in camera, ex parte. 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."). More generally, the Supreme Court has "repeatedly declined to require the use of adversarial procedures to make probable cause determinations." Kaley v. United States, 134 S. Ct. 1090, 1103 (2014). In accordance with those principles, the government's undeniable 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 defendants' right to review the FISA applications and orders. See Isa, 923 F.2d at 1307. Accordingly, defendants' request for discovery should be denied. VI. DEFENDANTS ARE NOT ENTITLED TO A HEARING UNDER FRANKS v.
DELAWARE Defendants argue that they are entitled to a Franks hearing based on purported misrepresentations in the applications that led to the orders under which Muhtorov's communications were seized" and because of some perceived failure of the FISC to bar the
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defendants' surveillance. Defs. Mot. 56, 62. For the reasons given below, the court should deny this request.
When a defendant makes the requisite showing, the Court may conduct a Franks hearing to determine if there are material misrepresentations of fact, or omissions of material fact, before the FISC sufficient to warrant suppression of evidence obtained or derived from Title I and Title III FISA collections. See Franks v. Delaware, 438 U.S. 154, 171 (1978); Ning Wen, 477 F.3d at 897. To merit a Franks hearing, the defendant first must make a "concrete and substantial preliminary showing" that: (1) the affiant deliberately or recklessly included false statements, or failed to include material information, in the affidavit; and (2) the misrepresentation was essential to the finding of probable cause. Franks, 438 U.S. at 155-56; United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990); Duggan, 743 F.2d at 77 & n.6; United States v. Kashmiri, 2010 WL 4705159, *5 (N.D. Ill. 2010) (defendant "has not made any showing- let alone a substantial one - that an Executive Branch officer knowingly and intentionally, or recklessly, included a false statement in the FISA application [and w]ithout such a showing, he is foreclosed from obtaining a hearing"). Failure of the defendant "to satisfy either of these two prongs proves fatal to a Franks hearing." Id. at *5; Mubayyid, 521 F. Supp. 2d at 130-31.
The defendants' burden in establishing the need for a Franks hearing is a heavy one. United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994). The defendant must submit allegations of deliberate falsehood or of reckless disregard for the truth, accompanied by an offer of proof. Franks, 438 U.S. at 171. Allegations of negligence or innocent mistake are insufficient, id., as are allegations of insignificant or immaterial misrepresentations or omissions. Colkley, 899 F. 2d at 301-02. Moreover, a defendant's lack of access to the FISA applications and orders is not an adequate substitute for the required showing. Although this situation presents a quandary for
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defense counsel when FISA-derived evidence comes into play, Congress and the courts have
recognized that such difficulty does not justify the disclosure ofFISA materials:
We appreciate the difficulties of appellants' counsel in this case. They must argue that t~e determination of legality is so complex that an adversary hearing with full access to relevant materials is necessary. But without access to the relevant materials their claim of complexity can be given no concreteness. It is pure assertion. Congress was also aware of these difficulties. But it chose to resolve them through means other than mandatory disclosure. In FISA Congress has made a thoroughly reasonable attempt to balance the competing concerns of individual privacy and foreign intelligence . . . . Appellants are understandably reluctant to be excluded from the process whereby the legality of a surveillance by which they were incidentally affected is judged. But it cannot be said that this exclusion rises to the level of a constitutional violation.
Belfield, 692 F.2d at 148; see also Kashmiri, 2010.WL 4705159, at *6: 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.
(U) Defendants cannot show that material misrepresentations or omissions of material fact
regarding Section 702 collection were deliberately or recklessly made to the FISC because there
were none. Other courts have rejected similar attempts by defendants to force a Franks hearing challenging the validity ofFISA orders based on speculation. See Kashmiri, 2010 WL 4705159, at *6 (noting that the court "has already undertaken a process akin to a Franks hearing through its ex parte, in camera review"); United States v. Abu-Jihaad, 531 F. Supp. 2d at 31 O; United States v. Hassoun, No. 04-CR-60001, 2007 WL 1068127, at *4 (S.D. Fla. Apr. 4, 2007); Mubayyid, 521 F. Supp. 2d at 130-31. This Court likewise should reject defendants' attempt to hold a Franks hearing in this case without making the proper showing.
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VII. CONCLUSION Based on the above discussion and analysis, the government requests that the Court deny
defendants' Motion to Suppress Evidence Obtained or Derived from Surveillance Under the FISA Amendments Act and Motion for Discovery.
Respectfully submitted this 9th day of May 2014. JOHN WALSH United States Attorney Isl Gregory Holloway Assistant United States Attorney District of Colorado JOHN P. CARLIN Assistant Attorney General for National Security GEORGE Z. TOSCAS J. BRADFORD WIEGMANN TASHINA GAUHAR Deputy Assistant Attorneys General National Security Division Isl Erin Creegan Trial Attorney Counterterrorism Section National Security Division United States Department of Justice
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
CASE NO. 12-cr-00033-JLK-1 UNITED STATES OF AMERICA,
Plaintiff, v. 1. JAMSHID MUHTOROV,
Defendant. ________________________________________________________________________
DEFENDANT’S REPLY TO GOVERNMENT’S RESPONSE (DOC. 559, 569) ________________________________________________________________________
INTRODUCTION Jamshid Muhtorov’s motion to suppress concerns the suspicionless and warrantless surveillance of a U.S. person’s international communications under the FISA Amendments Act (“FAA”). See Doc. 520.1 This surveillance violated the Fourth Amendment because it occurred without a warrant, without individualized suspicion, and under a program that lacks the limitations that courts have deemed necessary for electronic-surveillance regimes to be reasonable. The surveillance also violated Article III of the Constitution because it proceeded under programmatic orders issued by the Foreign Intelligence Surveillance Court (“FISC”) absent any constitutional “case or controversy.” As a remedy, this Court should suppress the fruits of that surveillance.
1 “Doc.” Refers to the Clerk’s Docket. 1

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The Court should permit Mr. Muhtorov discovery of evidence that would be helpful and material to his defense and that would permit him to understand and challenge the role that the FAA played in the government’s investigation of him.
Mr. Muhtorov will address each of the government’s arguments made in its response. However, it is important not to lose sight of the broader import of the government’s theory. The government’s theory is that Americans have no constitutionally protected privacy interest in their international communications. See Doc. 559 at 35. To accept the government’s arguments is to accept that the National Security Agency may collect Americans’ international communications, individually or in bulk, “incidentally” or directly, without having to answer to the Constitution. Under the government’s logic, the NSA may record every international phone call and copy every international text message and email. It may search those communications without limitation—for evidence of criminal activity, for foreign-intelligence information, or for anything else the government may be interested in learning. The government endeavors to obscure the implications of its theory; but to accept the theory is to accept a radically reimagined relationship between the governed and their government—one in which every cross-border missive, business transaction, or journalistic investigation takes place under the all-seeing and all-remembering gaze of the executive.
There is a narrower path—one that would accommodate the government’s legitimate foreign-intelligence interests but also protect the privacy of innocent Americans and U.S. Persons. Congress could prohibit the government from intentionally
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intercepting their international communications without a warrant, and require it to obtain a warrant retroactively to retain any such communications obtained unintentionally. Notably, then-Senator Obama proposed such a reform during the debate that preceded the enactment of the FAA. A foreign-intelligence scheme would not interfere with the government’s ability to monitor foreign-to-foreign calls and emails, and it would permit the government to collect and retain Americans’ international communications with judicial authorization. It would accommodate the government’s legitimate interest without encroaching unnecessarily—and unconstitutionally—on the privacy rights of innocent Americans. The scheme Congress chose, however—the scheme under which Mr. Muhtorov’s communications were surveilled—differs greatly from this one. It authorizes exactly the suspicionless surveillance the Constitution was meant to forbid.
ARGUMENT I. THE GOVERNMENT’S SURVEILLANCE OF MR. MUHTOROV’S
COMMUNICATIONS WAS UNCONSTITUTIONAL. A. The government’s surveillance of Mr. Muhtorov’s communications
violated the Fourth Amendment. i. The “incidental overhear” rule does not render the warrant requirement inapplicable.
The government contends that “incidental capture of a U.S. person’s communications during surveillance that lawfully targets non-U.S. persons abroad” does not engage the warrant clause. Doc. 559 at 38. But the rule the government cites— sometimes called the “incidental overhear” rule—has no application here.
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First, the surveillance of Americans’ communications under the FAA is not merely
“incidental.” Intelligence officials who advocated passage of the FAA (and of the Protect
America Act (“PAA”) before it) indicated that their principal aim was to allow the government broader authority to monitor Americans’ international communications.2
When legislators proposed language that would have required the government to obtain
probable-cause warrants before accessing Americans’ international communications, the White House issued a veto threat.3 One cannot reasonably say that the surveillance of
Americans’ communications under the FAA is “incidental” when permitting such
surveillance was the purpose of the Act.
Nor can one reasonably say that the surveillance of Americans’ international
communications is “incidental” when the FAA allows large-scale collection of those
communications. While the FAA prohibits “reverse targeting,” the prohibition is
narrow—it applies only if the government’s surveillance targets a “particular, known
2 See, e.g., FISA for the 21st Century: Hearing Before the S. Comm. on the Judiciary, 109th Cong. at 9 (2006), http://1.usa.gov/1kbgHm3 (statement of NSA Director Michael Hayden) (stating, with respect to the FAA’s predecessor statute, that certain communications “with one end . . . in the United States” are the ones “that are most important to us”); Privacy and Civil Liberties Oversight Board (“PCLOB”), Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 114–15 (July 2, 2014), http://www.pclob.gov/All%20Documents/Report%20on%20the%20Section%20702%20Progra m/PCLOB-Section-702-Report.pdf (“PCLOB 702 Report”) (“Executive and legislative branch officials have repeatedly emphasized to us that, with respect to terrorism, communications involving someone in the United States are some of the ‘most important’ communications acquired under the program.”) 3 See Letter from Att’y Gen. Michael Mukasey & DNI John M. McConnell to Sen. Harry Reid, at 3–4 (Feb. 5, 2008), http://1.usa.gov/1ihhf9A.
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person reasonably believed to be in the United States.” 50 U.S.C. § 1881a(b)(2). Outside that narrow prohibition, the statute allows the government to conduct surveillance to collect Americans’ international communications. This is precisely how the government uses the statute, and the government has acknowledged not only that it collects Americans’ communications under the statute but that it uses selectors associated with U.S. persons to search through the communications it collects. See Letter from Deirdre M. Walsh, Dir. of Legislative Affairs, Office of the Dir. of National Intelligence, to Sen. Ron Wyden (June 27, 2014), http://1.usa.gov/V8lYTo (“ODNI–Wyden Letter”) (acknowledging that various agencies, including the Federal Bureau of Investigation, conducted thousands of backdoor searches using U.S. identifiers in 2013 alone); Ellen Nakashima, Obama Administration Had Restrictions on NSA Reversed in 2011, Wash. Post, Sept. 7, 2013, http://wapo.st/1hP9FWm. The government relies heavily on In re Directives, 551 F.3d 1004 (FISCR 2008), but in that case the FISC found it significant that the government was not amassing the database it is concededly amassing here—let alone querying that database for information about Americans. Id. at 1015 (“The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary.”).
Second, the “incidental overhear” cases cited by the government involved surveillance predicated on warrants—that is, they involved circumstances in which courts had found probable cause regarding the government’s targets and had limited with
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particularity the facilities and communications to be monitored. See, e.g., United States v. Kahn, 415 U.S. 143 (1974); United States v. Figueroa, 757 F.2d 466 (2d Cir. 1985). The “incidental overhear” rule was invoked where a court had carefully circumscribed the government’s surveillance and limited the government’s intrusion into the privacy of third parties. See United States v. Donovan, 429 U.S. 413, 436 n.15 (1977) (holding that while a warrant is not made unconstitutional by “failure to identify every individual who could be expected to be overheard,” the “complete absence of prior judicial authorization would make an intercept unlawful”); United States v. Yannotti, 399 F. Supp. 2d 268, 274 (S.D.N.Y. 2005) (finding lawful an incidental intercept because the government had obtained a judicial warrant that “did not give the monitoring agents unfettered discretion to intercept any conversations whatsoever occurring over the target cell phone”); PCLOB 702 Report at 95 (“Where a wiretap is conducted in a criminal investigation pursuant to a warrant, satisfaction of the three requirements of the warrant clause . . . renders the wiretap constitutionally reasonable—both as to the intended subjects of the surveillance and as to any persons who end up being incidentally overheard, the full range of whom the government can never predict.”).
Surveillance conducted under the FAA is not similarly limited. Quite the opposite: the FAA does not require the government to establish probable cause or individualized suspicion of any kind concerning its targets; it does not require the government to identify to any court the facilities it intends to monitor; and it does not require the government to limit which communications it acquires—so long as the
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programmatic purpose of its surveillance is to obtain foreign-intelligence information. Surveillance is not particularized. The rule of the “incidental overhear” cases cannot be extended to this context.
Third, the volume of communications intercepted “incidentally” in surveillance under the FAA differs dramatically from the volume of communications intercepted incidentally in surveillance conducted under original FISA or Title III. Unlike original FISA and Title III, the FAA allows the government to monitor individuals without regard to whether those individuals are suspected criminals or foreign agents. PCLOB 702 Report 116 (“[T]he expansiveness of the governing rules, combined with the technological capacity to acquire and store great quantities of data, permit the government to target large numbers of people around the world and acquire a vast number of communications.”). Under the government’s theory, the statute even allows the NSA to scan millions of people’s communications for information “about” the government’s targets. The government’s use of the term “incidental” conveys the impression that its collection of Americans’ communications under the FAA is a de minimis byproduct common to all forms of surveillance. But whereas surveillance under Title III or the original FISA might lead to the incidental collection of a handful of people’s communications, surveillance under the FAA invades the privacy of thousands or even millions of people. See [Redacted], No. [Redacted], 2011 WL 10945618, at *27 (FISC Oct. 3, 2011) (observing that “the quantity of incidentally-acquired, non-target, protected communications being acquired by NSA through its upstream collection is, in
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absolute terms, very large, and the resulting intrusion is, in each instance, likewise very substantial”); id. at *26 (“[T]he Court must also take into account the absolute number of non-target, protected communications that are acquired. In absolute terms, tens of thousands of non-target, protected communications annually is a very large number.”); see id. at *27 (noting that the government collects over 250 million communications each year under the FAA); President’s Review Group on Intelligence & Communications Technologies, Liberty and Security in a Changing World 149 (Dec. 12, 2013), http://1.usa.gov/1be3wsO (“PRG Report”) (“incidental interception is significantly more likely to occur when the interception takes place under section 702 than in other circumstances”); see also Riley v. California, Nos. 13-132 & 13-212, 2014 WL 2864483, at *13–16 (U.S. June 25, 2014) (recognizing that the broad collection of data raises different constitutional questions); United States v. Jones, 132 S. Ct. 945, 963–64 (2013) (Alito, J., concurring) (similar); Jones, 132 S. Ct. at 954–57 (Sotomayor, J., concurring).4
The government’s effort to stretch the incidental overhear doctrine to cover its dragnet collection of Americans’ communications reflects a view that constitutional rules and exceptions designed for an era of individualized surveillance can be applied willy-
4 The district court in United States v. Mohamud erred in finding that incidental collection under the FAA does not “differ sufficiently from previous foreign intelligence gathering to distinguish prior case law”—a finding upon which the court based its conclusion that the FAA “does not trigger the warrant clause.” See No. 3:10-CR-00475, 2014 WL 2866749, at *15 (D. Or. June 24, 2014). Besides being from a different circuit, and not from a higher court, under 10th Cir. Rule 32.1(A) while this decision, if unpublished, may be cited for its persuasive value, it is not precedential.
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nilly to vast programs of suspicionless surveillance. This view is wrong. See Riley, 2014
WL 2864483; Jones, 132 S. Ct. 945; United States v. Knotts, 460 U.S. 276 (1983).
The government makes one further argument against application of the warrant
requirement: It argues that it would be unworkable because “imposition of a warrant
requirement for any incidental interception of U.S. person communications would
effectively require a warrant for all foreign intelligence collection.” Doc. 559 at 39. This
is a red herring. The Fourth Amendment does not require the government to obtain prior
judicial authorization for surveillance of foreign targets merely because those foreign
targets might, at some unknown point, communicate with U.S. persons. But compliance
with the warrant clause requires at least two things: that the government avoid
warrantless acquisition of Americans’ international communications where it is
reasonably possible to do so, and that it avoid warrantless review of such
communications when it collects them inadvertently or incidentally.5
5 The NSA could easily implement the first restriction by automatically excluding American phone numbers or internet protocol addresses from its collection. It could also exclude from its collection any communications sent or received by accounts, addresses, or identifiers that it separately has reason to believe are associated with U.S. persons. The NSA apparently maintains a list of such accounts, addresses, and identifiers to prevent targeting errors; there is no reason that it could not do the same to protect Americans’ privacy more fully. See Procedures Used by the National Security Agency for Targeting Non–United States Persons Reasonably Believed to Be Located Outside the United States to Acquire Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, As Amended 3 (July 28, 2009), https://s3.amazonaws.com/s3.documentcloud.org/documents/716633/exhibita.pdf (“Furthermore, in order to prevent the inadvertent targeting of a United States person, NSA maintains records of telephone numbers and electronic communications accounts/addresses/identifiers that NSA has reason to believe are being used by United States persons.”).
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There is no practical reason why these limitations—which have the effect of imposing a warrant requirement only for Americans’ international communications— could not be imposed here. During the debate that preceded the passage of the FAA, then-Senator Barack Obama co-sponsored an amendment that would have codified these limitations by prohibiting the government from (1) acquiring a communication without a warrant if it knew “before or at the time of acquisition that the communication [was] to or from a person reasonably believed to be located in the United States,” and (2) accessing Americans’ communications collected under the FAA without a warrant based on probable cause. See S.A. 3979, 110th Cong. (2008). More recently, the President’s Review Group concluded that a warrant requirement should be imposed, and the House of Representatives passed an appropriations bill that would impose one. See PRG Report 28–29; H.R. 4870, 113th Cong. § 8127 (2014).
ii. Even if there is a foreign-intelligence exception, the exception is not broad enough to make the surveillance of Mr. Muhtorov constitutional.
As Mr. Muhtorov has explained, Doc. 520 at 27–30, there is no foreignintelligence exception to the Fourth Amendment’s requirements of individualized suspicion and a warrant. Even if this exception existed it is not broad enough to make the government’s surveillance of Mr. Muhtorov constitutional. The cases the government cites involve a crucial limitation missing here: the surveillance was directed at foreign powers or their agents and predicated on an individualized finding of suspicion. See, e.g., United States v. Duka, 671 F.3d 329, 338 (3d Cir. 2011); In re Sealed Case, 310 F.3d
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717, 720 (FISCR 2002); United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980); see also Doc. 520 at 31–32 (discussing cases).
The government relies heavily on In re Directives, 551 F.3d 1004 (FISCR 2008), a case that only underscores Mr. Muhtorov’s point. In re Directives addressed the constitutionality of surveillance directives issued under the PAA, Executive Order 12,333, and certain Defense Department regulations. Although the PAA did not itself require individualized suspicion or particularity, the surveillance program considered by the Foreign Intelligence Surveillance Court of Review (“FISCR”) required both. See id. at 1007 (“The certifications require certain protections above and beyond those specified by the PAA.”); id. at 1013–14 (describing a “matrix of safeguards” that included both a particularity and probable cause requirement). Throughout its opinion, the FISCR emphasized this point again and again, observing that “[c]ollectively, these procedures require a showing of particularity, a meaningful probable cause determination, and a showing of necessity.” Id. at 1016.
While the FISCR recognized a foreign-intelligence exception to the warrant requirement, that exception was narrow:
[W]e hold that a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.
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551 F.3d at 1012 (emphasis added). The surveillance considered by the FISCR was premised on an individualized finding of probable cause documented and certified by the Attorney General himself. See In re Directives, 551 F.3d at 1014.
The foreign-intelligence exception the government proposes is far broader than the one recognized by the FISCR in In re Directives. Here, the government has invoked the foreign-intelligence exception not in defense of surveillance directed at “foreign powers or agents of foreign powers reasonably believed to be located outside the United States,” but in defense of a statute that permits surveillance directed at any non-citizen located outside the United States and that permits dragnet surveillance of Americans’ international communications without individualized suspicion or probable cause. The FISCR has never recognized a foreign-intelligence exception sweeping enough to render constitutional the surveillance that Mr. Muhtorov challenges here. See PCLOB 702 Report 90 n.411 (acknowledging that “it is not necessarily clear that the Section 702 [FAA] program would fall within the scope of the foreign-intelligence exception recognized by [earlier] decisions, which were limited to surveillance directly authorized by the Attorney General, targeting foreign powers or their agents, and/or pursuing foreign intelligence as the primary or sole purpose of the surveillance”).
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iii. The surveillance of Mr. Muhtorov’s communications was unreasonable.
No exception to the Fourth Amendment’s warrant and probable-cause requirements applies here. Even if one did, however, the surveillance of Mr. Muhtorov under the FAA would be unconstitutional as unreasonable. See Doc. 520 at 33–34.
The FAA is unreasonable under the Fourth Amendment because it exposes virtually every American’s international communication to suspicionless and warrantless surveillance. See Doc. 520 at 33–43. It abandons the limits that courts have identified as key to the constitutionality of electronic surveillance statutes, including FISA— individualized suspicion, prior judicial review, and particularity.6 Rather than dealing directly with these defining features of the FAA, the government argues that the statute is similar to the surveillance program held reasonable in In re Directives; that it is justified because of the government’s overriding interest in countering terrorism; that Americans have little to no expectation of privacy in their international communications; and that “multiple safeguards” make the FAA reasonable.
First, the government’s reliance upon In re Directives, see Doc. 559 at 54–55, is misplaced. The FISCR founded its ruling upon several factors that are absent here, including that, under the scheme considered, the government could acquire the communications only of “overseas foreign agents,” 551 F.3d at 1011; and the
6 See In re Directives, 551 F.3d at 1013 (“[T]he more a set of procedures resembles those associated with the traditional warrant requirements, the more easily it can be determined that those procedures are within constitutional bounds.”).
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determination that each target was a foreign agent was made by the Attorney General himself, id. at 1014. Also significant to the reasonableness of the scheme, the FISCR said, was that the government did not “maintain a database of incidentally collected information from non-targeted United States persons.” Id. at 1015.7
None of these factors is present here, and their absence is critical. Because it permits the government to monitor any foreigner overseas and not just foreign agents, the FAA eliminates the primary criterion relied upon by every appellate court to find a scheme of foreign-intelligence surveillance reasonable: individualized suspicion. By transferring targeting authority away from the Attorney General of the United States, the FAA permits low-level NSA analysts to decide whom to target. See also Glenn Greenwald, XKeyscore: NSA Tool Collects ‘Nearly Everything a User Does on the Internet’, Guardian, July 31, 2013, http://gu.com/p/3hy4h (describing interface through which NSA analysts can initiate FAA surveillance “by clicking a few simple pull-down menus designed to provide both legal and targeting justifications”). And, finally, the FAA permits the government to assemble—and the government has assembled—“a database of incidentally collected information from non-targeted United States persons.” As explained in Mr. Muhtorov’s motion, Doc. 520 at 18, the government routinely uses
7 The government compares the PAA to the FAA in a manner that suggests that In re Directives upheld the PAA facially. See Doc. 559 at 53–55. That is not so. The FISCR analyzed the PAA only “as implemented” in the case before it. In re Directives, 551 F.3d at 1009–10.
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his database, which contains hundreds of millions of communications, to target U.S. persons through so-called “backdoor searches.” See also ODNI–Wyden Letter.
Second, the government’s claim that the FAA is “crucial to the government’s efforts against terrorism and other threats,” Doc. 559 at 56, is an evasion. Mr. Muhtorov does not challenge the government’s warrantless acquisition of foreign-to-foreign communications, only of foreign-to-U.S. communications. The real question is whether the government’s interest would be thwarted if it had to demonstrate individualized suspicion or to obtain a warrant before acquiring or reviewing Americans’ communications.
On this question, the government’s brief is silent. Instead, it claims with deliberate vagueness that, in “‘54 counterterrorism investigations . . . information obtained under section 702 contributed in some degree to the success of the investigation.’” Doc. 559 at 57 (emphasis added) (quoting PRG Report 144–45). There are several problems with this argument. As an initial matter, the government has not specified the “degree” to which the FAA has contributed to its investigations. In Senate testimony, the government has admitted that only thirteen “had some nexus to the United States.” Continued Oversight of the Foreign Intelligence Surveillance Act: Hearing Before the S. Comm. on the Judiciary, 113th Cong. at 52:33 (2013), http://1.usa.gov/TPpSQb (Sen. Leahy: “Would you agree that the fifty-four cases that keep getting cited by the administration were not all plots, and of the fifty four only thirteen had some nexus to the United States? Would you agree with that, yes or no?”;
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Keith Alexander, Director, NSA: “Yes.”). The government has not explained how requiring that it demonstrate individualized suspicion or that it acquire a warrant in a handful of cases over a five- or six-year period would frustrate its surveillance efforts, particularly given that the government may conduct such surveillance without a warrant in exigent circumstances.8
Third, the government’s claim that Americans have no privacy interest in their international communications is without support. See Doc. 559 at 35 (“the privacy interests of U.S. persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-U.S. persons located outside the United States”); see also id. at 58–61. If it were true that Americans had no expectation of privacy in their international communications, then the government could target those communications for surveillance directly. It could dispense altogether with the doublespeak of “incidental collection” and collect and store all Americans’ every international call and email. Accepting this argument would mean the government has unfettered discretion to scrutinize every word that crosses the country’s borders. The government appears to be doing something along those lines by scanning every nearly cross-border communication
8 The recently released report by the PCLOB also fails to address this question. It states that “[a]pproximately fifteen of the cases we reviewed involved some connection to the United States,” PCLOB 702 Report 110, but it does not address whether requiring the government to obtain a warrant or demonstrate individualized suspicion when acquiring or reviewing Americans’ communications would have prevented the government from investigating those fifteen cases.
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for information “about” its targets. See Charlie Savage, NSA Said to Search Content of Messages to and From U.S., N.Y. Times, Aug. 8, 2013, http://nyti.ms/1cez5ZK; see also PCLOB 702 Report 121–22. Neither doctrine relied upon by the government—the border-search doctrine and the third-party doctrine, see Doc. 559 at 59–61—justifies such sweeping surveillance.
The border-search doctrine does not justify the surveillance of communications, and it does not justify the surveillance of them absent individualized suspicion. The government cites no cases suggesting that the doctrine even applies beyond the context of individuals or property physically at a border. The Supreme Court has clarified that the doctrine exists to serve the government’s interest in “stopping and examining persons and property crossing into this country.” United States v. Ramsey, 431 U.S. 606, 616 (1977) (emphasis added); accord United States v. Flores-Montano, 541 U.S. 149, 152 (2004). In its seminal case on the matter, the Court noted that, under the regulations, “envelopes are opened at the border only when the customs officers have reason to believe they contain other than correspondence, while the reading of any correspondence inside the envelopes is forbidden.” Ramsey, 431 U.S. at 624. It is not a surprise that “[e]ven at the border, [courts have] rejected an ‘anything goes’ approach.” United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (requiring reasonable suspicion before a thorough review of a laptop at the border), cert. denied, 134 S. Ct. 899 (2014); see also Lamont v. Postmaster Gen. of the United States, 381 U.S. 301 (1965) (invalidating registration requirement for recipients of certain foreign mail).
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The government’s reliance upon the third-party doctrine is equally misplaced. See Doc. 559 at 59–60. Mr. Muhtorov unquestionably enjoys a reasonable expectation of privacy in his communications, whether sent conventionally or using modern technologies. See, e.g., United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (“a subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial ISP” (quotation marks omitted)). The government’s argument, therefore, applies at most to a narrow subset of Mr. Muhtorov’s communications: those received by his foreign contacts (i.e., not in transit) and obtained by the government outside of the United States. The argument would not apply at all to FAA surveillance, which involves the acquisition of communications in transit, received by U.S. persons, or residing on the servers of U.S. companies. The government’s argument amounts to an impermissible attempt to bootstrap away Americans’ expectation of privacy in their international communications by focusing myopically on only the foreign end of the communications.
Finally, the government claims the FAA is reasonable because of “multiple safeguards” in place to protect Americans’ privacy. Doc. 559 at 62–73. As Mr. Muhtorov has explained in his motion to suppress, those supposed safeguards are weak and riddled with exceptions. They permit the government to target virtually any foreigner for surveillance—even where another party to the communication is a U.S. person, see Doc. 520 at 35–36; and, for the U.S. persons inevitably swept up by that international dragnet, the only safeguards are minimization procedures that provide little
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meaningful protection, see Doc. 520 at 36–42.9 The government’s response inadequately addresses two key facts.
First, while FAA surveillance is subject to minimization procedures, the minimization procedures do not account for the FAA’s failure to require individualized judicial review at the acquisition stage. Under FISA and Title III, minimization operates as a second-level protection against the acquisition, retention, and dissemination of information relating to U.S. persons; the first level of protection comes from the requirement of individualized judicial authorization for each surveillance target. Under the FAA there is no first-level protection, because the statute does not call for individualized judicial authorization of surveillance targets (or of facilities to be monitored or communications to be acquired). Unlike FISA and Title III, the FAA permits dragnet surveillance of Americans’ international communications. In this context, it is an indictment of the FAA, not a defense, to say, as the government does, that the FAA’s minimization rules are analogous to the minimization rules that apply under FISA and Title III.10
Second, unlike the surveillance at issue in In re Directives, FAA surveillance permits the government to “maintain a database of incidentally collected information
9 The Supreme Court recently warned against excessive reliance on “government agency protocols” to safeguard Americans’ privacy. See Riley, 2014 WL 2864483, at *16 (“[T]he Founders did not fight a revolution to gain the right to government agency protocols.”). 10 The government’s suggestion that Yahoo!’s challenge in In re Directives amounted to a full adversarial proceeding is unfounded. See Doc. 559 at 54 n.33. The court there was clear that it considered at least some of the relevant procedures on an ex parte basis. See 551 F.3d at 1013.
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from non-targeted United States persons,” 551 F.3d at 1015, and to later search that database using the names, email addresses, or other identifiers of U.S. persons. The government defends this practice—known as “backdoor searching”—by claiming this practice does not “implicate any reasonable expectation of privacy beyond that implicated in the initial collection.” Doc. 559 at 67. This is incorrect. The minimization procedures in surveillance schemes are a part of the terms of access. Courts uphold the reasonableness of the schemes—as with FISA and Title III—only if those terms are reasonable. See Scott v. United States, 436 U.S. 128, 140–43 (1978) (reviewing surveillance minimization practices for reasonableness); United States v. Ganias, No. 12240, 2014 WL 2722618 (2d Cir. June 17, 2014) (suppressing evidence where government obtained files and searched them for information beyond the terms of the warrant). Here, the terms of access omit a limitation that the FISCR viewed as essential to the constitutionality of a much narrower program. See In re Directives, 551 F.3d at 1015. If the government were correct, then the “multiple safeguards” on which it rests its case would be entirely superfluous as a constitutional matter.11
11 If the government conducted one or more backdoor searches of Mr. Muhtorov’s communications, that would violate both the Fourth Amendment and the FAA, and it would provide an independent basis for suppression. The FAA prohibits the targeting of a foreigner overseas for the purpose of targeting “a particular, known person” inside the United States. 50 U.S.C. § 1881a(b)(2). Backdoor searching of the government’s extensive database of Americans’ “incidentally” collected communications violates this prohibition, and the Fourth Amendment, by enabling the surveillance of particular, known U.S. persons without a warrant.
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B. The government’s warrantless surveillance of Mr. Muhtorov’s communications violated Article III.
The FAA violates Article III’s “case or controversy” requirement because the statute requires FISC judges to issue advisory opinions addressing the constitutionality of abstract procedures absent concrete facts. See Doc. 520 at 47. It is plain that a federal court could not adjudicate, at the mere urging of the Denver Police Department, the constitutionality of the department’s newly devised internal policies governing its officers’ use of force. Nor could a court take up a request by the Transportation Security Administration to pass upon the reasonableness of new agency procedures concerning secondary airport screening before their application to a particular passenger. So too here—and none of the government’s arguments to the contrary has merit.
The “case or controversy” requirement ensures that Article III courts do “not engage in adjudicatory or decisional functions except in those ‘cases’ and ‘controversies’ referred to in Article III.” Application of President’s Comm’n on Organized Crime, 763 F.2d 1191, 1203 (11th Cir. 1985) (emphasis added) (quotation marks omitted). By limiting the jurisdiction of Article III courts to live, concrete disputes, the “case or controversy” requirement closes the courthouse doors to requests for advisory opinions or “abstract declaration[s] of the law.” In re Summers, 325 U.S. 561, 567 (1945); see United States v. Fruehauf, 365 U.S. 146, 157 (1961) (characterizing advisory opinions as “advance expressions of legal judgment upon issues which remain unfocused because they” lack “clear concreteness”). As the Supreme Court recently explained, “[i]f a
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dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006); see Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948); United States v. Burlington N. R.R. Co., 200 F.3d 679, 699 (10th Cir. 1999).12
The government misconstrues Mr. Muhtorov’s “case or controversy” argument— and it cites cases that rejected very different Article III challenges. Mr. Muhtorov’s “case or controversy” argument has little in common with the failed Article III challenges in Morrison v. Olson, 487 U.S. 654 (1988), and Mistretta v. United States, 488 U.S. 361 (1989), which concerned congressional statutes granting executive and administrative functions to federal judges. See Morrison, 487 U.S. at 680–82 (rejecting Article III challenge to Congress’s assignment of administrative and executive functions to special court charged with role in the appointment of independent counsel); Mistretta, 488 U.S. at 411 (rejecting Article III challenge to “nonadjudicatory” functions of judges on U.S. Sentencing Commission). Likewise, Mr. Muhtorov’s argument is of a different flavor than objections to the administrative role of Article III judges in promulgating federal rules of procedure. See Mistretta, 488 U.S. at 391. And Mr. Muhtorov does not, like
12 See also Norvell v. Sangre de Cristo Dev. Co., Inc., 519 F.2d 370, 375 (10th Cir. 1975) (“It is fundamental that federal courts do not render advisory opinions and that they are limited to deciding issues in actual cases and controversies. A justiciable controversy is distinguished from a difference or dispute of a hypothetical character or from one that is academic.” (citations omitted)); see also Klinger v. Conan Doyle Estate, Ltd., No. 14-1128, 2014 WL 2726187, at *2 (7th Cir. June 16, 2014) (Posner, J.) (“It would be very nice to be able to ask federal judges for legal advice . . . . But that would be advisory jurisdiction, which” is “inconsistent with Article III’s limitation of federal jurisdiction to actual disputes, thus excluding jurisdiction over merely potential ones . . . .”).
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other criminal defendants challenging traditional FISA, base his Article III complaint in the fact that the FISC acts in secret and ex parte. See In re Sealed Case, 310 F.3d 717, 732 n.19 (FISCR 2002); In re Kevork, 634 F. Supp. 1002, 1013 (C.D. Cal. 1985), aff’d, 788 F.2d 566 (9th Cir. 1986); United States v. Megahey, 553 F. Supp. 1180, 1196 (E.D.N.Y. 1982), aff’d sub nom., United States v. Duggan, 743 F.2d 59, 73–74 (2d Cir. 1984); see also In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F. Supp. 2d 114, 144 (E.D. Va. 2011). Rather, Mr. Muhtorov’s Article III argument is that the FAA asks judges to judge absent a constitutionally required “case or controversy” in which to do so. See Application of President’s Comm’n on Organized Crime, 763 F.2d at 1203.
When the government addresses Mr. Muhtorov’s actual Article III challenge, its arguments are unpersuasive. The government contends that FISC opinions approving or disapproving of targeting and minimization procedures under the FAA are “no more advisory” than other kinds of Fourth Amendment assessments that “courts regularly undertake.” Doc. 559 at 79.13 But while “[a]nalyzing the reasonableness of electronic surveillance . . . is a traditional judicial function,” Doc. 559 at 79, an Article III court cannot conduct such an analysis absent a “case or controversy.” The government likens the FISC’s FAA review to judicial rulings on traditional search warrants or wiretap
13 The government’s suggestion that the FISC’s FAA review is not advisory because its orders “ha[ve] legal effect,” Doc. 559 at 77, is misguided. All statutes and regulations have “legal effect.” This does not mean that an Article III court can adjudicate their constitutionality in the absence of any case or controversy.
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applications, see Doc. 559 at 77, even as it concedes that “warrant or wiretap applications for law enforcement purposes typically involve a more fact-specific form of review” than that required by the FAA, Doc. 559 at 80.14 But the concession that traditional warrant assessments are “more” fact-specific minimizes the crucial difference—where warrant and wiretap applications almost invariably involve particular targets or premises and unique, articulable facts, the FISC’s FAA review involves none.
Finally, the government mistakes that when courts engage in Fourth Amendment review of warrant and wiretap schemes they always do so consistent with Article III. Yet that overlooks, again, what makes a “case or controversy.” Consistent with Article III, courts may engage in a Fourth Amendment review of such schemes only when presented with a concrete legal question at the behest of an individual affected by them. A court may adjudicate the Fourth Amendment reasonableness of statutory schemes governing domestic wiretaps for law-enforcement purposes or administrative warrants in the publichealth context. See Doc. 559 at 79–80 (citing United States v. Tortorello, 480 F.2d 764, 772–73 (2d Cir. 1973); Camara v. Municipal Court, 387 U.S. 523, 537–38 (1967)). And courts may also assess surveillance schemes for constitutional reasonableness. See, e.g., Berger v. New York, 388 U.S. 41 (1967). But there would have been no “case or
14 The government provides no citation for its bare and circular assertion that these differences are “because the Fourth Amendment or Title III require[] more particularity in those contexts— not because of anything in Article III,” Doc. 559 at 80. And, in fact, in advocating passage of FISA in 1978, the executive branch defended the constitutionality of the law against Article III objections by pointing to precisely the type of specificity that is lacking under the FAA. See Doc. 520 at 46–47.
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controversy” in Tortorello without Arthur Tortorello, nor in Camara without Roland Camara, nor in Berger without Ralph Berger—nor, here, without Jamshid Muhtorov. The government is correct that a court could evaluate the government’s proposed targeting and minimization procedures “as applied to specific, technical tools through which the government implements” the FAA. Doc. 559 at 79. But because the FAA asks the FISC to make that assessment absent a concrete dispute, the statute violates Article III. II. THE GOOD FAITH EXCEPTION DOES NOT APPLY.
The good-faith exception to the exclusionary rule does not apply to FISA’s statutory suppression remedy. And even if it did, it would have no application here.
If the Court “determines that the surveillance was not lawfully authorized or conducted, it shall . . . suppress the evidence which was unlawfully obtained or derived” from such surveillance. 50 U.S.C. § 1806(g) (emphasis added). “This ground for suppression plainly includes constitutional challenges to FISA itself.” David S. Kris & J. Douglas Wilson, 2 National Security Investigations and Prosecutions § 32:3 (2d ed. 2012); see also id. § 32:3 & n.2 (“[The] judge reviewing [a] motion to suppress FISA evidence ‘is also free to review the constitutionality of the law itself.’” (quoting FISA H. Rep. at 92–93)); ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 465 (D.C. Cir. 1991) (“The Constitution is law” to determine whether FISA surveillance was “‘lawfully authorized and conducted.’”). If the Court finds that the government’s surveillance of Mr. Muhtorov’s communications under the FAA was unconstitutional, it must order
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suppression under § 1806(g). This is required by the statute, and “does not turn on the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights.” United States v. Giordano, 416 U.S. 505, 524 (1974). The limits on the judicially created exclusionary rule do not apply to the statutory exclusionary rule. As with Title III, the good-faith exception to the Fourth Amendment’s exclusionary rule does not apply. United States v. Glover, 736 F.3d 509, 515–16 (D.C. Cir. 2013); United States v. Rice, 478 F.3d 704, 711–14 (6th Cir. 2007) (“The language and legislative history of Title III strongly militate against engrafting the good-faith exception into Title III warrants.”); id. at 713–14 (criticizing contrary holdings of the Eighth and Eleventh Circuits).15
Even if the good-faith exception applied to § 1806(g), it would not be properly invoked here. The government contends that suppression is unwarranted because it relied in good faith on “orders issued by neutral magistrates—the judges of the FISC,” Doc. 559 at 81 (citing United States v. Leon, 468 U.S. 897 (1984)), on a facially constitutional statute, id. at 80–81 (citing Illinois v. Krull, 480 U.S. 340 (1987)), and on appellate precedent from the FISA Court of Review, id. at 81 (citing Davis v. United States, 131 S. Ct. 2419 (2011)). These arguments are misplaced. The good-faith exception announced in Leon does not apply because this case does not involve reliance on an individualized warrant authorizing the search of particularly described communications or locations.
15 The Tenth Circuit has not yet had occasion to decide “whether the good-faith exception applies in the Title III context.” United States v. Barajas, 710 F.3d 1102, 1110 (10th Cir. 2013).
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See Leon, 468 U.S. at 920–21; United States v. Ning Wen, 477 F.3d 896, 897–98 (7th Cir. 2006) (discussing reliance on individualized FISA warrants). For FAA surveillance, the FISC approves only general procedures proposed by the government, and, on the basis of those procedures alone, the government determines whom to monitor, when, and for how long. See 50 U.S.C. § 1881a. No judge approves the target of the surveillance or makes an individualized assessment of probable cause. Therefore, there is no warrant upon which the government can rely within the meaning of Leon.
Reliance on the statute does not justify application of the good-faith exception either. To so hold would render the § 1806(g) statutory suppression remedy moot when the government has violated the Fourth Amendment. It makes no sense that reliance on the terms of an unconstitutional statute functions to erase the suppression remedy explicitly provided by that same statute for unconstitutional searches. Further, the government may have violated the statute itself during its surveillance of Mr. Muhtorov, which would trigger application of the § 1806(g) suppression remedy. See Doc. 520 at 38 (discussing “about searches”); id. at 39 (discussing “backdoor searches”); [Redacted], 2011 WL 10945618, at *9 (FISC Oct. 3, 2011) (finding that government’s minimization procedures contradict the FAA’s requirements). Reasonable government officials “should have known that the statute was unconstitutional,” Krull, 480 U.S. at 355, given its manifest and multiple infirmities. See Doc. 520 at 20–47; supra Part I.
Finally, reliance on In re Directives—an inapposite opinion of the FISCR—does not justify application of the good-faith exception under Davis. Davis suspends operation
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of the exclusionary rule when the government conducts a search “in objectively reasonable reliance on binding judicial precedent.” 131 S. Ct. at 2428–29. As the Eleventh Circuit has explained, “precedent on a given point must be unequivocal.” United States v. Davis, 598 F.3d 1259, 1266 (11th Cir. 2010), aff’d 131 S. Ct. 2419; accord United States v. Buford, 632 F.3d 264, 276 n.9 (6th Cir. 2011). The sole appellate precedent the government cites as justifying the surveillance of Mr. Muhtorov is In re Directives, in which the Court of Review evaluated a distinct and now-expired statute, the PAA, based on different criteria and different facts, including limitations on the surveillance not provided here. See supra Part I.A. In re Directives is not on point. And even if it were, the government fails to explain how an opinion of a nonadversarial court that conducts proceedings in secret and has, to the public’s knowledge, convened only twice in its 36-year history constitutes binding appellate precedent within the meaning of Davis. See United States v. Madden, 682 F.3d 920, 927 (10th Cir. 2012) (stating that Davis applies when there is “well-settled law of this court” (emphasis added)). The good-faith exception does not apply. III. MR. MUHTOROV IS ENTITLED TO DISCOVERY.
The government contends this Court’s in camera, ex parte review of materials at issue in Mr. Muhtorov’s motion satisfies the statute and the Due Process Clause. Doc. 559 at 87–88. Though the statute empowers the Court to conduct such a review, Mr. Muhtorov has provided the basis for this Court to order disclosure to his counsel, subject to appropriate protective orders. Doc. 520 at 47–66. Such disclosure is “necessary”
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under the statute, 50 U.S.C. § 1806(f), and the Court should reject the government’s cramped reading of that term. See Cellular Telecomms. & Internet Ass’n v. FCC, 330 F.3d 502, 509–10 (D.C. Cir. 2003) (explaining that “necessary” has a flexible meaning informed by context and often “mean[s] less than absolutely essential” (internal quotation marks omitted)). The legislative history clarifies that Congress fully intended there to be disclosure and adversary proceedings in at least some FISA cases because “[t]he defendant’s constitutional guarantee of a fair trial could be seriously undercut if he is denied the materials needed to present a proper defense. The committee believes that a just, effective balance has been struck in this section.” S. Rep. No. 95-701, at 59 (1978), reprinted in 1978 U.S.C.C.A.N. 3973, 4028. Congress contemplated that “[c]ases may arise, of course, where the court believes that disclosure is necessary.” Id. at 65, reprinted in 1978 U.S.C.C.A.N. at 4034. The government’s reading of the statute would foreclose any possibility of such cases arising and frustrate Congress’s intent.
As support for the claim that no disclosure is warranted here, the government cites cases addressing run-of-the-mill surveillance under individualized FISA surveillance orders. Doc. 559 at 89–91. But characterizing Mr. Muhtorov’s arguments as mere rehashing of these prior cases trivializes the novel complexities. Mr. Muhtorov challenges the constitutionality of the more complex surveillance program operated under the FAA. No appeals court has addressed the constitutionality of this statute, nor of
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collection of particular U.S. persons’ communications under it.16 See supra Parts I–II. Determining the constitutionality of FAA surveillance of Mr. Muhtorov requires assessment not only of the statutory scheme, but also of the government’s targeting and minimization procedures, of its application of those procedures, and of complicated, factually contingent questions such as whether and precisely how Mr. Muhtorov’s communications were obtained via “about” or “backdoor” searches. Addressing the constitutionality of the surveillance of Mr. Muhtorov’s communications requires insight into the surveillance, which is not possible without access to the underlying records.
Surveillance and searches under FISA and the FAA present especially acute difficulties to defendants seeking to vindicate their Fourth Amendment rights under Franks v. Delaware, 438 U.S. 154 (1978). But that does not mean that the necessity of the Franks procedure in FISA cases is diminished in any way: “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.” United States v. Daoud, No. 14-1284, 2014 WL 2696734, at *7 (7th Cir. June 16, 2014) (Rovner, J., concurring). The government concedes that Franks applies to FAA surveillance. Doc. 559 at 95. And although it contends that the Court’s in camera, ex parte review of classified FAA materials identifies and adjudicate any Fourth Amendment violations, see id. at 91, this non-adversarial process provides only a pale shadow of the protection
16 The government asserts that the FISA Court of Review’s decision in In re Directives settles these issues, but as explained above, that case is not on point. See supra Parts I.A, II.
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contemplated by Franks. As Judge Rovner explained, “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. . . . [A] court cannot conduct more than a limited Franks review on its own.” Daoud, 2014 WL 2696734, at *15–16.
Here, however, the Court need not be hobbled by such limited process. Contrary to the government’s suggestion, Mr. Muhtorov does not seek a Franks hearing solely “based on evidence of misrepresentations in some other case.” Doc. 559 at 91 n.53. Rather, unlike in Daoud, 2014 WL 2696734, at *4, 6, he has identified evidence, in a declassified FISC opinion, that the FISC’s approval of programmatic FAA surveillance when his communications were collected under that authority was tainted by government misrepresentations of fact. Doc. 520 at 53–54, 56–57 (citing [Redacted], 2011 WL 10945618 (FISC Oct. 3, 2011)). This meets the threshold set by Franks, 438 U.S. at 171–72, and requires disclosure of the government’s application(s) to the FISC (subject to appropriate protective orders) and an adversarial hearing on Mr. Muhtorov’s motion.17
17 Moreover, Daoud was argued and decided as a case raising issues under traditional FISA principles, and the opinion does not purport to address discovery and disclosure issues under the FAA.
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Dated: July 3, 2014

Respectfully submitted,
VIRGINIA L. GRADY Federal Public Defender
/s/ Warren R. Williamson WARREN R. WILLIAMSON Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 Fax: (303) 294-1192 Rick.Williamson@fd.org
/s/Brian Rowland Leedy Brian Rowland Leedy Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, CO 80202 Telephone: 303-294-7002 Fax: 303-294-1192 Brian_Leedy@fd.org
/s/ Kathryn J. Stimson Kathryn J. Stimson, Attorney at Law 1544 Race Street Denver, CO 80206 Telephone: (720) 638-1487 kathryn@stimsondefense.com
Attorneys for Jamshid Muhtorov

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On the brief: Jameel Jaffer Alex Abdo Patrick Toomey Brett Max Kaufman Nathan Freed Wessler Attorneys at Law American Civil Liberties Union Foundation 125 Broad St., 18th Floor New York, NY 10004 Telephone: (212) 519-7816 Fax: (212) 549-2654 jjaffer@aclu.org Mark Silverstein Sara J. Rich Attorneys at Law ACLU Foundation of Colorado 303 E. 17th Avenue, Suite 350 Denver, Colorado 80203 Phone: (303) 777-5482; Fax: (303) 777-1773 msilverstein@aclu-co.org
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CERTIFICATE OF SERVICE
I hereby certify that on July 3, 2014, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email address:
Gregory A. Holloway Assistant U.S. Attorney Email: gregory.holloway@usdoj.gov
Erin Martha Creegan National Security Division for the U.S. Dept. of Justice Email: erin.creegan@usdoj.gov
David B. Savitz, Esq., Counsel for Bakhtiyor Jumaev Email: savmaster@aol.com
Mitchell Baker, Esq., Counsel for Bakhtiyor Jumaev Email: mitchbaker@estreet.com
I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant’s name:
Mr. Jamshid Muhtorov (Via U.S. Mail)
/s/ Warren R. Williamson WARREN R. WILLIAMSON Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 Fax: (303) 294-1192 Rick.Williamson@fd.org
Attorney for Defendant
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 Case 1:12-cr-00033-JLK Document 1 Filed 03/14/12 USDC Colorado Page 1 of 21

AO 91 (Rev. 02/09) Criminal Complaint

UNITED STATES DISTRICT COURT
for the
District of Colorado

United States of America
v.
1. BAKHTIYOR JUMAEV,
Defendant

)

) )

Case No. \ d- fYlj - C) \03Q ·-·~L-m

)

)

CRIMINAL COMPLAINT

I, the complainant in this case, state that the following is true to the best of my knowledge and belief.

On or about the date of 03/08/2011 in the county of - -D- env-er - - in the - -Sta-te-an- d - District of

Colorado

, the defendant violated

18

U. S. C. § -'=2=.=3-=-39"-_ B _ _ _ _ _ _ __

, an offense described as follows:

See Attachment A attached hereto and herein incorporated by reference

This criminal complaint is based on these facts: See Affidavit attached hereto and herein incorporated by reference
Iff Continued on the attached sheet.

Sworn to before me and signed in my presence.

Date:

03/14/2012

City and state:

--

I

Judge's signature
IUw.SS. 'WIE<N:tLi. tM~IX~iRIDGE DISTRICT OF COLORADO

Case 1:12-cr-00033-JLK Document 1 Filed 03/14/12 USDC Colorado Page 2 of 21 ATTACHMENT A
Bakhtiyor Jumaev, the defendant herein, together with others both known and unknown but not charged herein; did knowingly conspire, combine, confederate, cooperate and agree with each other to provide material support and resources, in violation of Title 18, United States Code, Section 2339(a)(1), to a foreign terrorist organization, namely the Islamic Jihad Union, and the Islamic Jihad Union was continuously designated a terrorist organization since June 12,2005 as amended April 29, 2008, knowing that this organization had engaged in and was engaging in terrorist activity and terrorism; and the offense occurred in whole or in part within the United States; and further there was interdependency among the members of the conspiracy.
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• •
AFFIDAVIT
1. I, Donald E. Hale, Special Agent (SA) assigned to the Federal Bureau ofInvestigation (FBI), Department of Justice, being duly sworn, hereby state:
2. Your affiant is a Special Agent with the FBI, having been so for approximately 9 years. I have completed the FBI's Special Agent training course at Quantico, VA. Subsequently my duties have included assignments to investigate a variety of criminal violations to include federal terrorism offenses. Your affiant currently investigates violations of federal law associated with terrorism related offenses, including material support of foreign terrorist organizations, arson and explosives crimes, firearms offenses, and other associated violations. Your affiant is authorized to carry firearms, execute warrants, make arrests for offenses against the United States, and to perform other duties as authorized by law.
3. This affidavit is made in support of a criminal complaint alleging that Bakhtiyor JUMAEV, a/k/a Abu Bakr, year of birth 1966, violated Title 18, United States Code Section 2339B, Conspiracy to Provide Material Support to a Designated Terrorism Organization, specifically the Islamic Jihad Union ("IlU"). This affidavit is also in support of three search warrants: (1) for a residence located at 3131 Richmond Street, Philadelphia, Pennsylvania; (2) any and all computers (including portable computer devices) located at 3131 Richmond Street, Philadelphia, PA 19134, to include a Sony Vaio laptop computer, model number VGN-F8690, service tag ofR5170004, and (3) for a T-Mobile cellular telephone assigned telephone number (267) 597-1321. The
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statements set forth in this affidavit are based upon my training and experience, consultation with other experienced investigators and agents, and investigative reports and other documents. This affidavit is intended to set forth probable cause in support of the criminal complaint and search warrants and does not purport to set forth all of the affiant's knowledge regarding the investigation. All conversations set forth in this affidavit are related in substance and in part.
BACKGROUND
4. The Islamic Jihad Union ("IJU", also known as al-Djihad al-Islami, Dzhamaat Modzhakhedov, and the Islamic Jihad Group of Uzbekistan) is an extremist organization that splintered from the Islamic Movement of Uzbekistan ("IMU") in the early 2000s. The IMU was founded by Tohir Yuldashev and Juma Namangani in or around 1998. The IJU is believed to have spilt from the Islamic Movement of Uzbekistan (IMU) in late 2001 shortly after the death ofNamangani. The IJU adheres to an anti-Western ideology, opposes secular rule in Uzbekistan, and seeks to replace the current regime with a government based on Islamic law.
5. The IJU first conducted attacks in April of2004, targeting a popular bazaar and police at several roadway checkpoints. These attacks killed approximately 47 people, including 33 terrorists, and some suicide bombers. The IJU claimed responsibility for these attacks on multiple militant Islamic websites and denounced the leadership of Uzbekistan.
6. In July 2004 the IJU conducted simultaneous suicide bombings of the U.s. and Israeli Embassies and the Uzbekistani Prosecutor General's Office in Tashkent. In claiming
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responsibility for these attacks, the IJU stated that their martyrdom operations would continue. The IJU also claimed the attacks were committed in support of their Palestinian, Iraqi and Afghan brothers in the global insurgency.
7. In September 2007, German authorities arrested three IJU operatives, disrupting a plot against unidentified U.S. or Western facilities in Germany. The IJU operatives had acquired about 700 kg of hydrogen peroxide and an explosives precursor, which was enough raw material to make the equivalent of about 1,200 pounds of the explosive, TNT. The IJU claimed responsibility for the foiled plot.
8. The IJU has claimed responsibility for attacks targeting Coalition forces in Afghanistan in 2008, including a March 2008 suicide attack against a U.S. military post purportedly carried out by a German-born Turk.
9. In April 2009, Turkish authorities seized weapons and detained extremists with ties to the IJU. The IJU has also claimed responsibility for a May 2009 attack in Uzbekistan and numerous attacks in Afghanistan against Coalition forces. It is believed that members of both the IJU and IMU have trained with and provided support to Al Qaida.
10. The website www.sodiqlar.comis an Uzbek language website that hosts operational claims and statements from the IJU. The website administrator for www.sodiqlar.comis known by the alias "Abu Muhammad." Public reporting shows that sodiqlar.com is affiliated with the IJU and is suspected to be owned and operated by the IJU.
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11. The Islamic Jihad Union is a designated terrorist organization, designated by the Secretary of State, and continuously designated since June 12,2005 (under the name Islamic Jihad Group). Notification of its designation appears at 70 F. Reg. 35332-01 (June 17,2005), amended to include name "Islamic Jihad Union" on April 29, 2008, published in the 73 F. Reg 30443-01 (May 27, 2008). FACTS OF THE CASE Conspiracy to Provide Material Support to the lJU
12. The FBI has been investigating Jamshid MUHTOROV based on his communications with Islamic Jihad Union ("IJU") website administrator and facilitator "Muhammad." "Muhammad" is known as "Abu Muhammad."
13. The FBI has also been investigating JUMAEV, a close friend of MUHTOROV. JUMAEV provided his mobile telephone number, (267) 597-1321, to the Department of Homeland Security Immigration and Customs Enforcement after being arrested for immigration charges in February 2010. Upon obtaining appropriate authority, the FBI has lawfully searched and obtained information through various investigative techniques. As a result the FBI has been able to determine that the mobile phone used by JUMAEV is a T-Mobile mobile phone. Moreover, there exists incriminating communications originating from JUMAEV's mobile phone, many of which are set forth below. The FBI has also determined that JUMAEV resides at 3131 Richmond Street, Philadelphia, Pennsylvania, and that he has kept a Sony Vaio laptop computer, model number VGNF8690, service tag of R5170004 at that residence.
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14. On or about March 5, 2011, MUHTOROV emailed Abu Muhammad and stated that he delivered Abu Muhammad's hello to JUMAEV. MUHTOROV stated that JUMAEV was very happy and sent many greetings to Abu Muhammad as well. MUHTOROV stated that JUMAEV promised to send money to Abu Muhammad and the IJU through MUHTOROV.
15. On or about March 6,2011, Abu Muhammad emailed MUHTOROV and instructed him [MUHTOROV] to say hello to the brothers again, and asked that Allah accept their deeds. Abu Muhammad told MUHTOROV that the IJU was in desperate need of money at the moment. Abu Muhammad repeated that the brothers say hello to all of you.
16. On or about March 8, 2011, MUHTOROV received a phone call from JUMAEV. MUHTOROV read JUMAEV parts of a message from the IJU, calling them the "brothers from the wedding house." MUHTOROV told JUMAEV that the "brothers from the wedding house are saying hi to you again." MUHTOROV told JUMAEV that "they say to you - may Allah accept the associations you made on the way of Allah." MUHTOROV told JUMAEV that the IJU said they need support. JUMAEV told MUHTOROV that help will go to them and that it will not be the first time, nor will it be the last time.
17. During the same conversation on March 8, 2011, JUMAEV asked MUHTOROV is this "the group of our brother?" MUHTOROV told JUMAEV "it is the second group." In . order to clarify, MUHTOROV asked JUMAEV ifhe remembered Juma Namangani. JUMAEV said he remembered Namangani very well. MUHTOROV told JUMAEV that
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it is the people of that brother, who after the martyrdom ofNamangani started their own group. In response, JUMAEV agrees and tells MUHTOROV that they are with this group. JUMAEV then warned MUHTOROV to be careful talking about Namangani and other sensitive information while on the phone. JUMAEV warned MUHTOROV about surveillance. Both MUHTOROV and JUMAEV then cursed whoever might be listening in on their conversations and called upon Allah to punish those who do so. JUMAEV told MUHTOROV that ifhe sends "it" tomorrow, then he should get "it" by Friday.
18. On or about March 16,2011, MUHTOROV received a call from JUMAEV. JUMAEV told MUHTOROV about an article he had recently read at the ferghana.ru website. According to JUMAEV, the article concerns the capture of two members of sodiqlar.com. JUMAEV refers to them as two "second rate sportsmen." JUMAEV additionally states that he hopes it is not true and that it is just one of the tricks "they use to destroy our faith." JUMAEV informed MUHTOROV of difficulties he experienced in accessing the sodiqlar.com website, but JUMAEV confirmed that he is able to access furqon.com. JUMAEVand MUHTOROV also discuss cell phones. MUHTOROV asked whether a new phone would work at "the wedding house" in case MUHTOROV travels there. JUMAEV stated that this issue should be confirmed with "the sportsmen brothers."
19. On or about March 22-23,2011, MUHTOROV updated Muhammad on his efforts and intentions. MUHTOROV committed himself to Bay'ah (an allegiance) to the IJU. MUHTOROV told Muhammad the he [MUHTOROV] was "ready for any task, even
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with the risk of dying." Muhammad later acknowledged having passed on MUHTOROV's Bay'ah to the IJU leadership.
20. On or about July 12,2011, during a telephone conversation, MUHTOROV told JUMAEV that "the wedding hosts" from "the wedding house" are concerned that Muhtorov had not arrived. MUHTOROV stated that he told them that he will come to "the wedding." JUMAEV told MUHTOROV that he received a letter to be fingerprinted in order to obtain his work authorization, but he was not excited because he did not really want to stay in the United States. JUMAEV stated that he wanted to join "the wedding" like MUHTOROV and that he envied MUHTOROV. JUMAEV said that ifhe [JUMAEV] went to "the wedding," then upon his arrival MUHTOROV could come to meet him. MUHTOROV agreed.
21. On or about July 15,2011, during a telephone conversation MUHTOROV told JUMAEV that the brothers from the "wedding house" say hi to you. JUMAEV then asked MUHTOROV to send his [JUMAEV's] best wishes to them.
22. On or about October 9,2011, JUMAEV told MUHTOROV that a known associate warned him [JUMAEV] not to have any sincere conversations on the phone or over the internet. JUMAEV stated that all communications were being monitored. MUHTOROV agreed with JUMAEV, noting that authorities know everything being said on the phone.
23. On or about October 28,2011, during a telephone conversation, MUHTOROV explained that religious restriction toward Muslims in the western world will get only worse. MUHTOROV cited a restriction on Sharia (Islamic law) somewhere in Denmark.
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JUMAEV stated that Western countries allow one to do anything in terms of lifestyle and business except for being a Sunni extremist. JUMAEV explained that he watched a video ofthe mujahidin (holy warriors) in the Afghanistan/Pakistan region and that he cried some, laughed some, and prayed some. JUMAEV said that he took advice from the videos and explained that the mujahidin are in another world and are the dear ones.
24. Between March 2011 and January 2012, during telephone conversations, JUMAEV and MUHTOROV utilized several different code words to discuss IJU activities, IJU videos on the internet, and MUHTOROV's intent to travel overseas to join the IJU.
25. On or about December 2,2011, JUMAEV called a known associate and told him that they better meet sooner rather than later, as the associate may not see JUMAEV in this world anymore. JUMAEV says that they would see each other in the other world, but in this world they cannot be certain.
26. On or about January 7, 2012, during a telephone conversation, JUMAEV and MUHTOROV discussed MUHTOROV's inability to find his passport. Using code, JUMAEV stated that MUHTOROV will not be able to join the IJU ifhe does not find the passport. JUMAEV states that there is so much to discuss with MUHTOROV, but they cannot speak freely on the phone.
27. On or about January 21,2012, MUHTOROV was arrested on a federal warrant at O'Hare International Airport while attempting to travel overseas. MUHTOROV was arrested based on a violation of Title 18, United States Code Section 2339B: Provision of Material Support to a Designated Terrorist Organization, specifically provision and attempted
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provision of personnel to the IJU. MUHTOROV was carrying approximately $2,800 in cash when he was arrested. Immediately following his arrest MUHTOROV was interviewed by the FBI. During the interview MUHTOROV admitted to communicating with Abu Muhammad at the sodiqlar.com web site. MUHTOROV stated that sodiqlar.com is the website for the IJU, a combat organization that fights NATO forces in Afghanistan, to include U.S. forces. MUHTOROV also described the IMU as another Uzbek terrorist organization.
28. On or about January 24,2012, during a telephone conversation with a known associate, JUMAEV discussed the arrest of MUHTOROV. JUMAEV stated that MUHTOROV's phone will be checked and that JUMAEV's name will come up. JUMAEV told the associate that he is consulting with him to coordinate the story they will tell authorities should they interview them. JUMAEV stated that they should be on the same page when asked about MUHTOROV.
29. On or about January 25,2012, YouTube records were obtained from Google, Inc. for JUMAEV's YouTube account. These records display that JUMAEV has commented on approximately eight YouTube videos since on or about July 27,2011. Several of the videos contained violent action by terrorists and featured footage of the IMU co-founder Yuldashev. Many of JUMAEV's comments espoused support for the terrorists and/or Yuldashev. For example, on or about July 27,2011, JUMAEV posted a comment on an approximately 10 minute video showing several males in traditional Islamic dress, in a mountain region that appears to be Afghanistan or Pakistan, carrying rifles, and firing rockets and other weaponry. The video indicated that it was produced by Jundullah
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Studios, which according to open source reports is the official media wing of the IMU. In response to the video, JUMAEV left a comment encapsulating a desire for Allah to be pleased with these individuals.
30. Based upon training and experience, your affiant knows that the term "wedding" or "wedding activities" in the instances above is used as code for terrorist activities, terrorist events or terrorist attacks.
Overt Acts in Furtherance of the Conspiracy
31. On or about March 5, 2011, MUHTOROV emailed Abu Muhammad and stated that he delivered Abu Muhammad's hello to JUMAEV. MUHTOROV stated that JUMAEV was very happy and sent many greetings to Abu Muhammad as well. MUHTOROV stated that JUMAEV promised to send money, $300, to Abu Muhammad and the IJU through MUHTOROV.
32. On or about March 8, 2011, in a lengthy conversation discussing support for the "second group" of Juma Namangani (i.e., the IJU), JUMAEV told MUHTOROV that ifhe sends "it" tomorrow, then MUHTOROV should get "it" by Friday.
33. On or about March 15,2011, JUMAEV called MUHTOROV. JUMAEVasked MUHTOROV whether he received the "wedding gift," which JUMAEV sent last week. MUHTOROV replied that he had not received it yet, but that he had not yet checked his mail.
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34. On or about April 2, 2011, MUHTOROV emailed Muhammad and explained that a brother sent me $300 as a "wedding gift" for you. Muhammad told MUHTOROV that he would find out how the IJU wanted the money to be sent. MUHTOROV asked to be invited to the wedding, expressing his willingness to help with "the wedding" and to hear from the "master of ceremonies" about plans for "the wedding."
35. Bank records have been obtained which display that a $300 check dated on or about March 10,2011 was made out to MUHTOROV by a known associate of JUMAEV. The check was thereafter cashed by MUHTOROV's wife on or about April 8, 2011. FBI investigation determined that the associate had a close relationship with JUMAEV. Moreover, JUMAEV has previously used the associate's name to register for utility services. For example, JUMAEV's home telephone and internet service at 3131 Richmond Street, Philadelphia, Pennsylvania is registered under the associate's name, despite the associate not being a resident of 3131 Richmond Street.
36. On January 21,2012, MUHTOROV was arrested at Chicago O'Hare International Airport, carrying, amongst other things, about $2,800 in u.S. currency.
37. On or about February 14,2012 and on or about February 24,2012, JUMAEV was interviewed by the FBI at his residence. During the interviews, JUMAEV stated that he was friends with MUHTOROV and he had communicated with MUHTOROV utilizing his T-Mobile mobile phone and a computer program known as Skype. During the
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interview, FBI agents observed a Sony Vaio laptop computer in JUMAEV' s residence with the Skype application running. JUMAEV confirmed that he had no roommates and was the only person residing at 3131 Richmond Street. JUMAEV confirmed that he had known of the IMU and the IJU since at least 2005 and that he had been aware since President Bush's presidency (some time prior to 2008) that both groups were designated terrorist organizations. He also stated that that he knew that both the IMU and IJU were fighting u.S. soldiers in Afghanistan. JUMAEV acknowledged that he knew that it was illegal to send any financial support to either the IMU or IJU. JUMAEV stated that the names Yuldashev and Namangani were synonymous with the IMU and that assisting either of them would mean that you would be assisting the IMU. JUMAEV denied he sent money to the IMU or IJU. JUMAEV confirmed however that he had sent a $300 check to MUHTOROV by using a known associate's checking account on or about March 10, 2011. JUMAEV stated that it was his handwriting on the check and that he personally mailed the check to MUHTOROV. JUMAEV claimed that the $300 was repayment of a debt.
38. Your Affiant has applied his experience and knowledge to the evidence gathered during the aforementioned investigation to conclude that JUMAEV conspired with MUHTOROV to provide money to the IJU while knowing that the IJU was a terrorist organization. The conversations between JUMAEV and MUHTOROV, as well as the conversations between MUHTOROV and Muhammad, display that JUMAEV sent $300 to MUHTOROV through a known associate. This was confirmed by JUMAEV himself. The $300 represents the money that MUHTOROV told Muhammad that a brother
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promised to send to him [Muhammad] and the IJU on March 5, 2011. The conversations between MUHTOROV and JUMAEV establish that JUMAEV is aware of the IJU as well as the fact that they are engaged in terrorist behavior. This was also confirmed by JUMAEV himself. The conversations between JUMAEV and MUHTOROV also display an agreement to provide help to the IJU. The $300 represents material support that JUMAEV attempted to provide to the IJU through MUHTOROV. MUHTOROV told Muhammad about JUMAEV's intent to send money on March 5, 2011, JUMAEV stated he would send the money to MUHTOROV on March 8, 2011, and JUMAEV confirmed that he had sent the money to MUHTOROV on March 15,2011.
SEARCHING COMPUTERS 39. As described above and in Attachment B, this affidavit is in support of an application
seeking permission to search and seize records, computers, and electronic storage media (including cellular phones or other personal media devices) that might be found at Bakhtiyor JUMAEV's residence, located at 3131 Richmond Street, Philadelphia, Pennsylvania or within Bakhtiyor JUMAEV's possession. Some of these electronic records might take the form of files, documents, and other data that is user-generated. Some of these electronic records, as explained below, might take a form that becomes meaningful only upon forensic analysis.
40. For example, based on knowledge, training, and experience, your affiant knows that a powered-on computer maintains volatile data. Volatile data can be defined as active information temporarily reflecting a computer's current state including registers, caches, physical and virtual memory, network connections, network shares, running processes,
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disks, floppy, tape and/or CD-ROM and printing activity. Collected volatile data may contain such information as opened files, connections to other computers, passwords used for encryption, the presence of anti-forensic tools, or the presence of programs loaded in memory that would otherwise go unnoticed. Volatile data and its corresponding evidentiary value is lost when a computer is powered-off and unplugged.
41. Based on knowledge, training, and experience, your affiant knows that computer files or remnants of such files can be recovered months or even years after they have been downloaded onto a storage medium, deleted, or viewed via the Internet. Electronic files downloaded to a storage medium can be stored for years at little or no cost. Even when files have been deleted, they can be recovered months or years later using forensic tools. This is so because when a person "deletes" a file on a computer, the data contained in the file does not actually disappear; rather, that data remains on the storage medium until it is overwritten by new data. Therefore, deleted files, or remnants of deleted files, may reside in free space or slack space-that is, in space on the storage medium that is not currently being used by an active file-for long periods of time before they are overwritten. In addition, a computer's operating system may also keep a record of deleted data in a "swap" or "recovery" file.
42. Also, again based on training and experience, wholly apart from user-generated files, computer storage media-in particular, computers' internal hard drives-contain electronic evidence of how a computer has been used, what it has been used for, and who has used it. This evidence can take the form of operating system configurations, artifacts from operating system or application operation, file system data structures, and virtual memory
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"swap" or paging files. Computer users typically do not erase or delete this evidence, because special software is typically required for that task. However, it is technically possible to delete this information. Data on the storage medium not currently associated with any file can provide evidence of a file that was once on the storage medium but has since been deleted or edited, or of a deleted portion of a file (such as a paragraph that has been deleted from a word processing file). Web browsers, e-mail programs, and chat programs store configuration information on the storage medium that can reveal information such as online nicknames and passwords. Operating systems can record additional information, such as the attachment of peripherals, the attachment of USB flash storage devices or other external storage media, and the times the computer was in use. Computer file systems can record information about the dates files were created and the sequence in which they were created.
43. As further described in Attachment B, this application seeks permission to locate not only computer files that might serve as direct evidence of the crimes described on the warrant, but also for evidence that establishes how computers were used, the purpose of their use, who used them, and when.
44. Similarly, files that have been viewed via the Internet are sometimes automatically downloaded into a temporary Internet directory or "cache." The browser often maintains a fixed amount of hard drive space devoted to these files, and the files are only overwritten as they are replaced with more recently viewed Internet pages or if a user takes steps to delete them.
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45. "User attribution" evidence can also be found on a computer and is analogous to the search for "indicia of occupancy" while executing a search warrant at a residence. For example, registry information, configuration files, user profiles, e-mail, e-mail address books, "chat," instant messaging logs, photographs, and correspondence (and the data associated with the foregoing, such as file creation and last accessed dates) may be evidence of who used or controlled the computer or storage medium at a relevant time.
46. Searching computers for the evidence described in the attachment may require a range of data analysis techniques. For example, information regarding user attribution or Internet use is located in various operating system log files that are not easily located or reviewed. Or, a person engaged in criminal activity will attempt to conceal evidence of the activity by "hiding" files or giving them deceptive names. As explained above, because the warrant calls for records of how a computer has been used, what it has been used for, and who has used it, it is exceedingly likely that it will be necessary to thoroughly search storage media to obtain evidence, including evidence that is not neatly orgariized into files or documents. Just as a search of a premises for physical objects requires searching the entire premises for those objects that are described by a warrant, a search of this premises for the things described in this warrant will likely require a search among the data stored in storage media for the things (including electronic data) called for by this warrant. Additionally, it is possible that files have been deleted or edited, but that remnants of older versions are in unallocated space or slack space. This, too, makes it exceedingly likely that in this case it will be necessary to use more thorough techniques.
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47. Based upon knowledge, training and experience, your affiant knows that a thorough search for information stored in storage media often requires agents to seize most or all storage media to be searched later in a controlled environment. This is often necessary to ensure the accuracy and completeness of data recorded on the storage media, and to prevent the loss of the data either from accidental or intentional destruction. Additionally, to properly examine the storage media in a controlled environment, it is often necessary that some computer equipment, peripherals, instructions, and software be seized and examined in the controlled environment. This is true because of the following:
a. The nature of evidence. As noted above, not all evidence takes the form of documents and files that can be easily viewed on site. Analyzing evidence of how a computer has been used, what it has been used for, and who has used it requires considerable time, and taking that much time on premises could be unreasonable.
b. The volume of evidence. Storage media can store the equivalent of millions of pages of information. Additionally, a suspect may try to conceal criminal evidence; he or she might store it in random order with deceptive file names. This may require searching authorities to peruse all the stored data to determine which particular files are evidence or instrumentalities of crime. This sorting process can take weeks or months, depending on the volume of data stored, and it would be impractical and invasive to attempt this kind of data search on-site.
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c. Technical requirements. Computers can be configured in several different ways, featuring a variety of different operating systems, application software, and configurations. Therefore, searching them sometimes requires tools or knowledge that might not be present on the search site. The vast array of computer hardware and software available makes it difficult to know before a search what tools or knowledge will be required to analyze the system and its data on-site. However, taking the storage media off-site and reviewing it in a controlled environment will allow its examination with the proper tools and knowledge.
d. Variety of forms of electronic media. Records sought under this warrant could be stored in a variety of storage media formats that may require off-site reviewing with specialized forensic tools.
48. Based on training and experience, your affiant further states that if evidence located on a computer as described on Attachment B appears to relate to criminal acts other than those outlined in this affidavit, those items will not be further examined unless and until a search warrant is applied for and issued for evidence of any such separate criminal acts.
49. Based upon the foregoing, your affiant believes there is probable cause to search: (1) the residence located at 3131 Richmond Street, Philadelphia, Pennsylvania; (2) any and all computers (including portable computer devices) located at 3131 Richmond Street, Philadelphia, PA 19134, to include a Sony Vaio laptop computer, model number VGNF8690, service tag of R5170004, and (3) aT-Mobile cellular telephone assigned telephone number (267) 597-1321. 18

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I, Donald E. Hale, being duly sworn according to law, depose and say that the facts stated in the foregoing affidavit are true and correct to the best of my knowledge, information and belief.

Donald E. Hale, Special Agent Federal Bureau ofInvestigation, Joint Terrorism Task Force

,'un. Sworn to and subscribed before me this,_......!..._-lII--__day of [1 V{~ tJ_ ru~..

,2012.

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 Case 1:12-cr-00033-JLK Document 584 Filed 06/12/14 USDC Colorado Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Case No.12-cr-00033-JLK
UNITED STATES OF AMERICA, Plaintiff,
v.
1. JAMSHID MUHTOROV, Defendant.
DEFENDANT MUHTOROV’S MOTION FOR ORDER REQUIRING GOVERNMENT TO DISCLOSE OR PROVIDE HIS COUNSEL ACCESS TO ITS CLASSIFIED PLEADINGS AND OBJECTION TO EX PARTE PROCEEDINGS
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The Federalist No. 51 (James Madison)
This Court has the power to control the government’s due process-killing obsession with secrecy and security by ordering disclosure to the defense of the classified material the government has hidden; specifically that which was redacted from its response filed May 5, 2014, Doc. 559, and which was included in its classified memorandum filed May 22, 2014, Doc. 569.

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Jamshid Muhtorov, asks the Court to exercise this power to order disclosure to the defense subject to appropriate protections. He does so because the statute, 50 U.S.C. § 1806(f), and Due Process require it.
50 U.S.C. § 1806(f) 50 U.S.C. § 1806(f) says that when a motion to suppress is filed under subsection (e); or a motion is made to discover “applications or orders or other materials relating to electronic surveillance;” or a motion is made “to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter;” and the Attorney General files an affidavit alleging that disclosure or an adversary hearing would harm the national security, the district court must – in camera and ex parte – “review 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.” § 1806(f) also says that “[i]n 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,” but should do so “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” Mr. Muhtorov asks that the Court make a finding, following its review of his motion to suppress, the government’s responses (secret and not secret), and his reply (due July 3, 2014), that disclosure to the defense is necessary to make an accurate determination of the legality of the surveillance.
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Due process 50 U.S.C. § 1825(g) also permits disclosure if a district court's ex parte, in camera review discloses that due process requires discovery or disclosure. While the question “is not how to optimize the legal review of the surveillance and search,” if the district judge concludes “disclosure is ‘necessary’ in order to make that determination,” it should be ordered. U.S. v. Mubayyid, 521 F.Supp.2d 125, 130 (D.Mass.2007). Timing of disclosures Mr. Muhtorov asks that the disclosures he seeks be made before the Court conducts a hearing on the legal issues raised in his Motion to Suppress (Doc. 520); and there be an evidentiary hearing on that motion at which the defendant and his counsel are present. Alternative requests If disclosure is not ordered, without waiving his motion for disclosure or his request for a full due process hearing, Mr. Muhtorov moves to strike the Classified Memorandum in its entirety, so whatever its hidden contents are, they may not be considered by the Court in deciding the legal issues raised in the Motion to Suppress. Again, without waiving the requests made here, if the Court, ex parte or otherwise, determines that the surveillance was illegal, Mr. Muhtorov moves it conduct a “taint hearing,” at which the Court would decide whether evidence the government proposes to introduce “has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the
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primary taint.” Alderman v. United States 394 U.S. 165, 180-181, 89 S.Ct. 961, 971 (1969). He asks that he and his attorneys be present at this hearing. As the Alderman Court observed, “the task (of determining taint) is too complex, and the margin of error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government's case.” Id., 394 U.S. 182, 89 S.Ct. 971. Procedural Background
The government asks this Court to decide Mr. Muhtorov’s Motion to Suppress in secret, without disclosing the facts and basis that form its opposition. This request comes at the end of a long history – highlighted by recent discovery – demonstrating the government operates under a veil of secrecy regarding wiretapping and surveillance to gather “foreign intelligence.”
In 1952 President Harry Truman, in a secret letter, established the National Security Agency. 1952 was also the year Joseph McCarthy assumed chairmanship of the Senate Committee on Government Operations and its Permanent Subcommittee on Investigations. The existence of the NSA remained secret until the 1970s when a Senate Select Committee report disclosed that it had been keeping a watch list of people involved in civil rights and anti-war demonstrations.1
The report was by the Church Committee, charged with investigating domestic spying by the U.S. intelligence community. Senator Frank Church, its chairman, warned against the “tremendous potential for abuse” should the NSA
1 S.Rep.No. 94-755, bk.III, at 735. (1976).
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“turn its awesome technology against domestic communications.”2 Senator Church also said:
I don’t want to see this country go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.3
The revelations of the Church Committee led to the passage of the Foreign Intelligence Surveillance Act, or FISA, in 1978. Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. § 1801 et seq. (2006)). 4 The first statute enacted to regulate the use of electronic surveillance within the United States for foreign intelligence, United States v. Megahey, 553 F.Supp. 1180, 1184 (D.C.N.Y., 1982), FISA’s “principal purpose . . . was to prohibit the government from monitoring Americans’ electronic communications without a
2 Intelligence Activities—The National Security and Fourth Amendment Rights, 94th Cong. (1975) (statement of Se. Church, Chairman, Select Committee to Study Governmental Operations with Respect to Intelligence Activities). 3 James A. Bamford, The Puzzle Palace, 379 (1983 ed.) 4 See, e.g., Warrantless Wiretapping and Electronic Surveillance, J. Hearings Before the Subcomm. on Administrative Practice and Procedure and the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary and the Subcomm. on Surveillance of the Senate Committee on Foreign Relations, 93rd Cong. part I(a), part I(b) & part II(a), part II(b), part II(c). (April 3, 8, 1974 & May 8, 9, 10, and 23, 1974). The United States Supreme Court also reviewed some of those abuses and declared that warrantless wiretaps of domestic groups for national security reasons violated the Fourth Amendment. United States v. United States District Court (Keith), 407 U.S. 297 (1972)
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judicially granted warrant.” National Security and Double Government, 5 Harvard National Security Journal at 77 (2014), see note 435.
FISA was later amended, including in 1994 by the Patriot Act and by the 2008 FISA Amendments Act. Between these dates, and in reaction to the attacks of September 11, 2001, then-President George W. Bush authorized the NSA – by secret order effective October 4, 2001 – to significantly broaden data collection, a process that continued through 2004, when Attorney General Ashcroft refused to reauthorize it. Id. at 78. Four months later, in an ex parte proceeding, the chief judge of the Foreign Intelligence Surveillance Court, or FISC, entered an order permitting bulk collection of internet data without a warrant. Id. at 78-79.
In 2008 Congress passed the FISA Amendments Acts (FAA), partly in response to court rulings the secret program was unconstitutional. See, e.g., ACLU v. NSA, 438 F. Supp. 2d 754 (E.D. Mich. 2006), rev’d at 493 F.3d 644 (6th Cir. 2007). The FAA allowed the government to secretly eavesdrop on millions of Americans – exactly what the Church Committee sought to prevent with the enactment of the original FISA legislation.
Since the passage of the FAA in 2008, the government has conducted its secret surveillance with few checks or balances. “[N]either Congress nor the public had any knowledge that surveillance of this magnitude was permitted or whether any checks were working,” as Senator Chris Coons put it. “The problem
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is: we here in the Senate and the citizens we represent don’t know how well any of these safeguards actually work.”5
Recent revelations demonstrate that top executive branch officials have made false statements and misrepresented information to the United States Senate and Supreme Court. Opinions by FISC judges clarify that misrepresentations have been made by the government to the FISC, as well.6
As the public, Congress, and other officials learned of the widespread domestic wiretapping and surveillance conducted by the government, the Department of Justice changed part of its secrecy policy. One result was that over two years after he was indicted, Mr. Muhtorov was notified the government intended to use against him evidence obtained under the FAA – or derived from evidence so obtained. The “notice” made by the government was less than a page in length and included no details or specifics. Doc. 457 (Oct. 25, 2013).
5 Glenn Greenwalk, NSA taps in to use data of Facebook, Google and others, secret files reveal, The Guardian, June 7, 2013, http://www.guardian.co.uk/world/2013/jun/06/us-tech-giants-nsa-data, cited in Glennon, Michael, National Security and Double Government, 5 HARV. NAT’L SEC. J. 1 (2014). 6 In In re Production of Tangible Things From [REDACTED], Dkt. BR 08-13, March 2, 2009 FISC Judge Reggie B. Walton of the United States District Court for the District of Columbia documented statutory violations of the NSA’s electronic surveillance programs. Judge Walton rejected the government’s explanations for the violations and criticized its repeated misrepresentations and non-compliance with FISC orders. In a declassified FISC opinion dated October 3, 2011, Judge John D. Bates of the United States District Court for the District of Columbia found the NSA’s surveillance under the FAA to be “deficient on statutory and constitutional grounds,” particularly with respect to the mas collection of emails of American citizens that were entirely domestic and not to or from a foreign intelligence target. 2011 WL 10945618.
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On January 29, 2014, Mr. Muhtorov filed his Motion to Suppress the fruits of the FAA surveillance because the government’s monitoring of his communications violated the Fourth Amendment to the U.S. Constitution and Article III. Doc. 520.
Continuing to operate under the veil of secrecy, the government filed its Memorandum in Opposition to the Motion to Suppress on May 9, 2014. Doc. 559. The Unclassified version – and only version Mr. Muhtorov received – was like a piece of Swiss cheese, full of holes justified by the government as containing classified information.7 Under the heading, “Overview of the FAA Collection at Issue,” all seven sections are redacted. Doc. 559 at 2. Likewise, under the heading, “Targeting Procedures,” two sections are redacted (Id. at 3), and under the heading, “The Section 702 Information was Lawfully Acquired and Conducted in Conformity with an Order of Authorization or Approval / Relevant Facts,” all 15 sections are redacted. Altogether, 32 sections and 15 footnotes are redacted from the government’s opposition brief.
With the government’s redacted Memorandum in Opposition, Attorney General Eric Holder has provided this Court with a Declaration and Claim of Privilege. It asks, in the name of national security, that Mr. Muhtorov be denied access to the redacted sections of the response, a request that ignores his constitutionally protected rights under the Fifth and Sixth Amendments, his rights under Rule 16, and under Brady v. Maryland and its progeny. The Attorney
7 These portions of the brief are identified as CLASSIFIED MATERIAL REDACTED
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General does not explain in his Declaration and Claim of Privilege why the statutory remedies created by Congress to protect sensitive information are not adequate to address security concerns. Nor does he explain why defense counsel cannot be given security clearance (a process followed in many national security cases, including the Abel Daoud case in Chicago and the Mohamed Osman Mohamud case in Portland, Oregon) so they may have access to classified information.
Instead, the Court is asked to determine “In Camera, Ex Parte” (Doc. 569) the issues that Mr. Muhtorov raised in his Motion (Doc. 520). 8 The government argues that Mr. Muhtorov should not (a) know the facts it relies on in opposing his motion; (b) be afforded a full and fair hearing; (c) have his own lawyer advocate on his behalf; or (d) know the basis on which it asserts this widereaching privilege. Ex Parte, In Camera Hearings Violate Fundamental Constitutional Principles
An ex parte, in camera hearing where discovery and a complete copy of the government’s arguments and facts in opposition are not provided to the defense is unconstitutional, violates FISA provisions, and offends the fundamental principles of our criminal justice system.
8 This sort of declaration always gets filed in these cases. See, e.g., United States v. Daoud, 2014 WL 321384, *2 (N.D.Ill. Jan. 29, 2014). In the one filed here, the Attorney General says he will submit a Declaration of Stephanie O’Sullivan, Acting Director of National Intelligence in support of his claim of privilege. This Declaration is TOP SECRET and will not be provided to Mr. Muhtorov or counsel.
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The Bill of Rights forms the backbone of our American system of justice. The first ten amendments to the United States Constitution are the “fundamental safeguards of liberty immune from federal abridgement.” Gideon v. Wainwright, 372 U.S. 335 (1963). Rights embodied in the Fifth and Sixth Amendments protect both individuals and these fundamental principles of liberty and justice. “The Sixth Amendment stands as a constant admonition that if constitutional safeguards [are] lost, justice will not be done.” Johnson v. Zerbst, 304 U.S. 458, 462). “To protect the interests of criminal defendants enmeshed in the midst of our adversarial system of justice, the Sixth Amendment of the United States Constitution guarantees each defendant the ‘assistance of counsel for his defense.’ This guarantee ‘contemplates that such assistance be untrammeled and unimpaired.’” United States v. Dolan, 570 F.2d 1177, 1180 (3rd Cir.1978), quoting Glasser v. United States, 315 U.S. 60, 70 (1942).
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). The adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. “The right to 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).9
9 This principle was the basis for U.S. District Judge Coleman’s recent decision ordering disclosure in United States v. Daoud, 2014 WL 321384, *3 (N.D.Ill.2014)(“The Court finds . . . that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding.”) This ruling, appealed by the government, was recently re-argued in
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The Fifth Amendment also entitles Mr. Muhtorov to an adversarial hearing with the assistance of counsel. The Due Process Clause requires any person accused of a crime be present at all critical stages against him and be present and have hearings on critical issues. The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976). “A defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730 (1987).
The Supreme Court has declared that “’[f]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights . . . No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.’” United States v. James Daniel Good Real Property, 510 U.S. 43, 55 (1993) (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-72 (1951). The Court made the same point in Franks v. Delaware, 438 U.S. 154 (1978). Franks held that a defendant must be permitted to attack the veracity of the affidavit underlying a search warrant, upon a preliminary showing of an intentional or reckless material falsehood. The Court rested its decision on the ex parte nature of the procedure for issuing a search warrant and the value of adversarial proceedings: The usual reliance of our legal system on adversary
the Seventh Circuit following disclosure there was no recording of the first “public” arguments. http://www.politico.com/blogs/under-the-radar/2014/06/courtorders-rare-redo-in-surveillance-case-189926.html (visited June 9, 2014)
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proceedings itself should indicate that an ex parte inquiry is likely to be less vigorous. 438 U.S. at 169
The same considerations that the Court found compelling in Franks and James Daniel Good militate against uniformly ex parte procedures in the FISA context. As early as 2002, the FISC acknowledged (in an rare published opinion) that without adversarial proceedings, systematic executive branch misconduct – including submission of dozens of FISA applications with “erroneous statements” and “omissions of material facts” – went undetected by the courts until the DOJ revealed it. See In re All Matters, 218 F. Supp. 2d 611, 620-21 (Foreign Intelligence surveillance Court) rev’d, 310 F.3d 717 (Foreign Intelligence Surveillance Court of Review 2002). Ex Parte, In Camera Hearings are Not Required by 50 U.S.C. § 1806(f)
When a defendant (and “aggrieved person”) moves to suppress fruits of FISA surveillance or a FISA search, the Attorney General may file an affidavit that “disclosure or an adversary hearing would harm the national security of the United States.”10 Once an Attorney General files such an affidavit, as Attorney General Holder has done here, 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 the legality of the
10 50 U.S.C. § 1806(f). 12

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surveillance.”11 Under 50 U.S.C. § 1806(f), any such disclosure must occur “under appropriate security procedures and protective orders.”
As touched upon above, one District Court Judge has, for the first time, ordered FISA materials be disclosed to the defense in a so-called terrorism case. United States v. Adel Daoud, (12-cr-723 N.Dist.Ill. Doc. 92). 12 In Daoud, the defendant “filed a motion for disclosure of Foreign Intelligence Surveillance Act of 1978 (“FISA”) related material; . . . to suppress the fruits or derivatives of electronic surveillance and any other means of collection conducted under FISA or other foreign intelligence gathering; [and] raised an issue about the legality of the government’s surveillance.” Id., *1. The district court found disclosure was an essential component of an adversarial proceeding; a proceeding for the court to make “an accurate determination of the legality of the surveillance.”
In enacting FISA Congress anticipated that sometimes disclosure would be ordered; specifically, when doing so would promote an accurate determination of a FISA order’s legality. See S. Rep. No. 701, 95th Cong., 1st Sess. at 64, reprinted 1978 U.S.Code & Cong. Admin. News 403.
11 Id.; see also id. § 1806(g) (if court determines surveillance or search was “lawfully authorized,” it shall deny motion to suppress “except to the extent due process requires discovery or disclosure”). 12 Defense counsel in the Daoud case previously had security clearance. Hundreds of lawyers were given security clearance to represent detainees at Guantanamo and “there does not appear to be on record a single, reliable reported incident in which a detainee or his counsel mishandled classified information in a way that could compromise national security.” Baher Azmy, Executive Detention, Boumediene, and the New Common Law of Habeas, 95 Iowa L. Rev. 445, 537 (2010).
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Provisions of FISA, itself, 50 U.S.C. §§ 1806(f) and 1825(g), require a case-by-case analysis about the need for disclosure; there is no automatic rule against it.
The Attorney General filed an affidavit in this case that disclosure would harm national security. The Attorney General has always done so where a criminal accused has sought suppression or disclosure of FISA material. David S. Kris & Douglas Wilson, 1 National Security Investigations and Prosecutions, § 30:7 (2nd ed. 2012). That the Attorney General has adopted a robotic approach does not mean courts must follow suit (although they did until Daoud).
Here, as in Daoud, disclosure focuses on the definition of “necessary” in 50 U.S.C. § 1806(f). The district court in Daoud defined “necessary” as meaning to “substantially promote an accurate determination of legality.” This follows the legislative history of FISA and its purpose to balance national security and civil liberties.
The government asserts that “necessary” in 50 U.S.C. § 1806(f) means “essential” or “required,” an assertion at odds with the legislative history of FISA. Two Senate Reports – one from the Senate Judiciary Committee and the other from the Senate Intelligence Committee – discuss the provision that became §1806. The Reports provide:
The extent to which the government should be required to surrender to the parties in a criminal trial the underlying documentation used to justify electronic surveillance raises delicate problems and competing interests. On the one hand, broad rights of access to the documentation and
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subsequent intelligence information can threaten the secrecy necessary to effective intelligence practices. However, the defendant’s constitutional guarantee of a fair trial could seriously be undercut if he is denied the materials needed to present a proper defense. The Committee believes that a just, effective balance has been struck in this section.
S. Rep. 604(I), 95th Cong., 1st Sess. 53, reprinted in 1978 U.S.C.C.A.N. 3904, 3954; see S. Rep. 701, 95th Cong., 1st Sess. 59 (similar passage in Senate Intelligence Committee Report), reprinted in 1978 U.S.C.C.A.N. 3973, 4028.
Turning to § 1806(f), the Committees, in discussing the disclosure provision, observed:
The decision whether it is necessary to order disclosure to a person is for the Court to make after reviewing the underlying documentation and determining its volume, scope and complexity. The committee has noted the reasoned discussion of these matters in the opinion of the Court in United States v. Butenko, [494 F.2d 593 (3d. Cir. 1974) (en banc)]. There, the Court, faced with the difficult problem of determining what standard to follow when balancing national security interests with the right to a fair trial stated: “The distinguished district court judge reviewed in camera the records of the wiretaps at issue here before holding the surveillances to be legal . . . [I]n some cases, the Court will likely be able to determine the legality of the surveillance without any disclosure to the defendant. In other cases, however, the question may be more complex because of, for example,
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indications of possible misrepresentation of fact, vague identification of the persons to be surveilled or surveillance records which includes [sic] a significant amount of nonforeign intelligence information, calling into question compliance with the minimization standards contained in the order. In such cases, the committee contemplates that the court will likely decide to order disclosure to the defendant, in whole or in part since such disclosure “is necessary to make an accurate determination of the legality of the surveillance.” S. Rep. 604(I), 95th Cong., 1st Sess. 58-59, reprinted in 1978 U.S.C.C.A.N. 3904, 3959-60; see S. Rep. 701, 95th Cong., 1st Sess. 64-65 (identical language in Senate Intelligence Committee Report), reprinted in 1978 U.S.C.C.A.N. 3973, 4033-44. This reflects the balanced approach the Senate Judiciary and Intelligence Committee meant for courts to take when deciding whether disclosure was warranted. Striking a sound balance between the need for such surveillance and the protection of civil liberties lies at the heart of [the Act].... [It] is designed to permit the Government to gather necessary foreign intelligence information by means of electronic surveillance but under limitations and according to procedural guidelines which will better safeguard the rights of individuals. United States v. Megahey 553 F.Supp. 1180, 1184 (D.C.N.Y., 1982).
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The citation to Butenko, a pre-FISA decision, reflects a congressional intent to give district judges broad discretion when deciding when disclosure is “necessary to make an accurate determination of the legality of the surveillance.” This suggests the “necessary” standard is met when the district court determines that “adversary presentation would substantially promote a more accurate decision.”
The Committees also noted the district court’s “broad discretionary power to excise certain sensitive portions” from the FISA materials before disclosure. This discretionary power has a statutory basis in CIPA and substantially ameliorates the government’s professed national security concerns. CIPA Procedures Can apply to Review of Classified Pleadings
Congress enacted the Classified Information Procedures Act (“CIPA”) in 1980 that outlines the procedures and conditions already in place for defense counsel to review classified discovery. Presumably, the redacted classified portions of the government’s pleadings are relevant and came from discovery not disclosed. CIPA procedures can be used for defense counsel to access the classified pleadings and information contained therein.
First, CIPA provides for entry of a protective order.13 The CIPA protective order requires defense counsel and other members of the defense team to obtain security clearances before receiving access to classified discovery. The protective order also requires the defense to maintain all classified information in a Sensitive Compartmented Information Facility or SCIF – usually in the federal
13 18 U.S.C. App. 3 § 3.
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courthouse and protected by locks and other security devices. The SCIF contains safes to hold classified documents, secure computers on which to prepare classified pleadings and other approved equipment.
Once the protective order is in place, defense counsel has clearance, and the SCIF is ready, the parties begin the classified discovery process. CIPA § 4 governs this process. It allows the court to authorize the government, “upon a sufficient show,” to delete classified information from the discovery it provides or to furnish substitutions for the classified information in summaries or admissions. The statute adds that “[t]he court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone.” 18 U.S.C. App. 3 § 4. CIPA contains additional procedures governing the use of classified information at trial and in hearings and giving the government a right of interlocutory appeal. See 18 U.S.C. App. 3 §§ 5, 6, 7, 8. In Mr. Muhtorov’s case, he government has already invoked the CIPA § 4 procedures. See e.g. Doc. 124.
For over 30 years, classified information has been disclosed under CIPA in federal criminal cases – without, as far as counsel are aware, a serious security violation by the defense. See, e.g., United States v. Lee, 99-cr-1417 JAP (U.S. District Court, New Mexico- Albuquerque), Doc. 15, CIPA protective order, 12-15-1999. In Lee, CIPA procedures were employed in a case involving classified national security information, nuclear weapon codes; codes capable of “changing the strategic global balance” that “represented the gravest possible security risk to the United States.” United States v. Lee, 2000WL228263, at *2
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(10th Cir. Feb. 29, 2000). See Richard B. Zabel & James J. Benjamin, Jr., Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in Federal Courts at 85 (May 2008) (concluding, after studying eighteen terrorism cases involving CIPA, that “CIPA has provided a flexible, practical mechanism for problems posed by classified evidence”).14
Conclusion The Fifth and Sixth Amendments to the United States Constitution, 50 U.S.C. §§1806(f),1825(g), and CIPA, support Mr. Muhtorov’s request that this Court order the government to disclose to defense counsel its Classified Memorandum (Doc. 569). Mr. Muhtorov asks the Court to find under 50 U.S.C. 1806(f) that disclosure and subsequent adversarial proceedings will substantially promote the accuracy of the district court’s determination of the legal issues raised in the motion to suppress. He also asks that his lawyers be given security clearances and that the process of disclosure be accomplished under CIPA and appropriate protective orders.
14 The 2009 update to this article concluded that “[t]he Classified Information Procedures Act (CIPA), although subject to being improved, is working as it should: we were unable to identify a single instance in which CIPA was invoked and there was a substantial leak of sensitive information as a result of a terrorism prosecution in federal court.” Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in Federal Courts, Preface and at p. 25 (May 2009 Update and Recent Developments). http://www.humanrightsfirst.org/wpcontent/uploads/pdf/090723-LS-in-pursuit-justice-09-update.pdf(visited June 12, 2014)
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Without waiving these requests, Mr. Muhtorov asks: If there is no disclosure, the government’s classified memorandum in response be stricken; and If the Court finds – after ex parte review in camera – that some or all of the evidence the government proposes to use was gathered illegally, it conduct a taint hearing in which he and his lawyers are full participants.
Respectfully submitted this 12th day of June, 2014,
By: /s/ Kathryn J. Stimson KATHRYN J. STIMSON Attorney at Law 1544 Race Street Denver, CO 80206 Telephone: (720) 638-1487 Kathryn@stimsondefense.com
/s/ Warren R. Williamson WARREN R. WILLIAMSON Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 Rick.williamson@fd.org
/s/ Brian Rowland Leedy BRIAN ROWLAND LEEDY Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 Brian.leedy@fd.org
Attorneys for Jamshid Muhtorov
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CERTIFICATE OF SERVICE I hereby certify that on June 12, 2014, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Gregory A. Holloway Assistant U.S. Attorney Email: Gregory.holloway@usdoj.gov Erin Martha Creegan National Security Division for the U.S. Department of Justice Email: erin.creegan@usdoj.gov David B. Savitz, Esq., Counsel for Bakhtiyor Jumaev Email: savmaster@aol.com Mitchell Baker, Esq., Counsel for Bakhtiyor Jumaev Email: mitchbaker@estreet.com I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant via U.S. Mail: Mr. Jamshid Muhtorov.
/s/ Kathryn J. Stimson KATHRYN J. STIMSON Attorney at Law 1544 Race Street Denver, CO 80206 Telephone: (720) 638-1487 Kathryn@stimsondefense.com Attorney for Mr. Muhtorov
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Action No. 1:12-cr-00033-JLK UNITED STATES OF AMERICA,
Plaintiff, v. 1. JAMSHID MUHTOROV, and 2. BAKHTIYOR JUMAEV,
Defendants.
GOVERNMENT’S RESPONSE TO DEFENDANTS’ MOTION FOR ORDER REQUIRING GOVERNMENT TO DISCLOSE OR PROVIDE DEFENSE COUNSEL
ACCESS TO ITS CLASSIFIED PLEADINGS AND OBJECTION TO EX PARTE PROCEEDINGS
The United States of America, through John F. Walsh, United States Attorney, and Greg Holloway, Assistant United States Attorney, both for the District of Colorado, and Erin Creegan, Trial Attorney for the United States Department of Justice, National Security Division, Counterterrorism Section, files this response in opposition to Defendant Muhtorov’s motion for an order requiring the government to disclose classified pleadings and objecting to ex parte proceedings and Defendant Jumaev’s motion to require the government to disclose, or otherwise provide his access to, its classified pleadings and objection to the ex parte, in camera submission and final determination by this Court of such pleadings without disclosure to the defendants.
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INTRODUCTION Defendant Muhtorov’s motion, joined by Defendant Jumaev, treads familiar ground. Muhtorov has previously moved to be permitted to enter ex parte, in camera Classified Information Procedures Act (CIPA) proceedings, in contravention of the CIPA statute Congress has enacted and the courts have upheld, on the theory that the adversarial process is preferred. Dkt. 116 & 128. This Court denied the defendant’s previous request. Dkt. 135. Now, in Foreign Intelligence Surveillance Act (FISA) proceedings, Defendant Muhtorov, joined by his co-defendant, again seeks to circumvent the procedure Congress has enacted and the courts have upheld by seeking access to classified information without meeting the statutory requirements for disclosure. In doing so, Muhtorov’s memorandum echoes arguments recently made and rejected in United States v. Daoud, 2014 WL 2696734 (7th Cir. June 16, 2014). For the reasons stated below, this Court should again reject defendants’ request for improper access to classified information.
50 U.S.C. 1806(f) 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” against whom the information is to be used. 50 U.S.C. §§ 1806(c)-(d), 1825(d)-(e), 1881e(a). 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
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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), 1881e(a).
In his motion, Defendant Muhtorov lays out some of the language of 50 U.S.C. § 1806(f), requiring the Court to make an ex parte, in camera evaluation of the legality of the surveillance, and he asks this Court to find that disclosure to the defense is necessary for this Court to determine the legality of the surveillance. The defendant further requests “that the disclosures he seeks be made before the Court conducts a hearing on the legal issues raised in his Motion to Suppress.” Dkt. 584 at 2-3. Defendant Jumaev adopts Muhtorov’s motion, Dkt. 590 at 5, and requests that the Court make no decision on the suppression motion until defendants have been provided access, id. at 1.
The statute, however, does not allow a defendant this form of relief unless the Court finds, after conducting its own ex parte, in camera review of the FISA material, that disclosure of “portions” of those materials “is necessary to make an accurate determination of the legality of the surveillance.” 50 U.S.C. § 1806(f). If the Court is capable of making a legality determination without the assistance of defense counsel, it must do so.1 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.
1 This same procedure applies to motions to disclose Section702-related materials or to suppress information obtained or derived from Section 702 acquisitions, which is deemed to be electronic surveillance conducted pursuant to Title I of FISA for purposes of such motions. 50 U.S.C. § 1881e(a).
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Damrah, 412 F.3d 618, 624 (6th Cir. 2005); United States v. Squillacote, 221 F.3d 542, 553-54 (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). Clearly the statutory mandate is that “[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); United States v. Duggan, 743 F.2d 59, 78 (2d Cir. 1984) (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.”) (emphasis in original); United States v. Isa, 923 F.2d 1300, 1306 (8th Cir. 1991). As courts have 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).
Defendant Muhtorov cites a district court order from United States v. Daoud, 2014 WL 321384, *2 (N.D. Ill. Jan. 29, 2014), for the proposition that FISA materials were recently ordered disclosed for the first time. Dkt. 584, at 10 n.9, 13. However, as Defendant Jumaev notes,2 the Seventh Circuit more recently reversed that order, finding that the district court had failed to comply with the requirement of the statute that it first make an ex parte, in camera determination that disclosure to the defense was
2 Jumaev, however, mischaracterized the Seventh Circuit’s ruling. The Seventh Circuit did not hold that a district court is obliged “to disclose such [FISA] materials to defense counsel in order for the court to make an accurate determination of the legality of the challenged surveillance.” Dkt. 590 at 5 n.1.
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“necessary to make an accurate determination of the legality of the surveillance.” United States v. Daoud, 2014 WL 2696734, at * 2. Notably, the Seventh Circuit did not credit Daoud’s argument, the same argument that Defendant Muhtorov advances here, that “necessary” should be construed to mean would “substantially promote an accurate determination of legality,” in reviewing the legislative history Muhtorov offers in his motion. Indeed, every court that has applied § 1806(f), including this Court in the prior FISA suppression litigation, has understood the provision to mean what it says—that that disclosure must be “necessary” or “needed” to adjudicate the lawfulness of the surveillance. See, e.g., El- Mezain, 664 F.3d at 565-66 (district court did not “need the assistance of defense counsel to make an accurate determination of the legality of the surveillance”); In re Grand Jury Proceedings, 347 F.3d at 203 (“there is no need to disclose any of the FISA materials”); Squillacote, 221 F.3d at 554 (denying request for disclosure “because the documents submitted by the government were sufficient for the [court] to determine the legality of the surveillance”); Belfield, 692 F.2d at 147 (“Disclosure and an adversary hearing are the exception, occurring only when necessary.”). Thus, before considering disclosure of classified FISA materials to defense counsel, “the district judge must, in a non-public (“in camera”), nonadversarial (“ex parte”) proceeding, attempt to determine whether the surveillance was proper.” Daoud, 2014 WL 2696734, at *2. If the Court is able to make that determination, disclosure to defense counsel is unwarranted.
The Propriety of a Redacted Classified Filing and Ex Parte Classified Hearing
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In the alternative, Muhtorov requests that the Court strike the government’s classified memorandum in its entirety and consider only the unclassified portions of the government’s response. Dkt. 584 at 3-4. The defendant cites no authority that would support this request. Moreover, for a second time in this case, the Muhtorov makes the meritless argument that ex parte, in camera hearings violate fundamental constitutional principles and cites general case law to that effect. Id. at 9-12. Jumaev also cites general case law disfavoring ex parte pleadings. Dkt. 590 at 7-17. This Court has already rejected such arguments and should do so again.
When it enacted FISA, Congress was fully aware of the benefits of adversary process, and it balanced those against the exceptional costs that would be incurred by revealing “sensitive foreign intelligence information.” S. Rep. No. 95-701, 95th Cong., 2d Sess. 64, at 57 (1978); 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.”). All courts that have considered the constitutionality of such an in camera, ex parte examination have held such examinations to be constitutional. See, e.g., United States v. Ott, 827 F.2d 473, 476-77 (9th Cir. 1987); Duggan, 743 F.2d at 78; Belfield, 692 F.2d at 147; United States v. Spanjol, 720 F. Supp. 55, 58-60 (E.D. Pa. 1989); United States v. Megahey, 553 F. Supp. 1180, 1193-94 (E.D.N.Y. 1982); United States v. Falvey, 540 F. Supp. 1306, 1315-16 (E.D.N.Y. 1982). The defendants cannot cite a single case, besides the recently reversed district court order in Daoud, in which a
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court has found the adversarial process to be the appropriate way to handle FISA litigation.
Other ex parte procedures are a familiar part of criminal procedure. Rule 16(d)(l) contains an oft-used provision: “the court may permit a party to show good cause [for relief from discovery] by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party’s statement under seal.” F. R. Crim. P. 16(d)(l); see also United States v. lnnamorati, 996 F.2d 456, 487 (1st Cir. 1993) (“[Rule] 16(d)(l) expressly authorizes the court to deny discovery of information sought by a defendant based on an ex parte showing by the Government of the need for confidentiality.”); see generally United States v. Rezaq, 134 F.3d 1121, 1142 (D.C. Cir. 1998). Courts have held that ex parte, in camera proceedings are appropriate under Rule 16(d)(1). See, e.g., United States v. Hanna, 661 F.3d 271, 294-95 (6th Cir. 2011); United States v. Pringle, 751 F.2d 419, 427-28 (1st Cir. 1984); United States v. Pelton, 578 F.2d 701,707 (8th Cir. 1978) (ex parte, in camera proceedings appropriate where prosecutors were concerned about safety of individuals if certain tapes were disclosed to defense).
Likewise, under CIPA, the rationale of authorizing ex parte submissions is logical. As the Ninth Circuit has observed – citing the legislative history of CIPA Section 4 – where “the Government is seeking to withhold classified information from the defendant, an adversary hearing with defense knowledge would defeat the very purpose of the discovery rules.” United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988) (quoting H.R. Rep. No. 96-831, 96th Cong., 2d Sess., at 27 n.22 (1980)). See also
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United States v. Zazi, 2011 WL 2532903, at *3 (E.D.N.Y. 2011) (finding that disclosure of the classified information to defense counsel “would be particularly anomalous, as it would provide defense counsel access to sensitive information to which, if the government is correct, they are not entitled under any theory”). In United States v. Campa, 529 F.3d 980, 995 (11th Cir. 2008), the court reasoned, “[t]he right that section four confers on the government would be illusory if defense counsel were allowed to participate in section four proceedings because defense counsel would be able to see the information that the government asks the district court to keep from defense counsel’s view.”
In United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006), the court, having rejected defendant’s contention that he was entitled to access to classified materials in a CIPA Section 4 motion, noted that criminal prosecutions routinely involve discovery determinations from which the defense is excluded:
We recognize . . . that the defendants and their counsel, who are in the best position to know whether information would be helpful to their defense, are disadvantaged by not being permitted to see the [classified] information — and thus to assist the court in its assessment of the information’s helpfulness . . . .We note, however, that while the defendants’ predicament is difficult, it is not without close analogies. When a court (rather than the prosecutor alone, as is ordinarily the case) reviews evidence in camera to determine whether it constitutes a witness statement subject to disclosure under the Jencks Act . . . , or exculpatory material subject to disclosure under Brady the defendant is likewise “not entitled
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to access to any of the evidence reviewed by the court . . . to assist in his argument” that it should be disclosed. Id. at 458. As the Seventh Circuit recently acknowledged in Daoud: “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 . . . . Conventional adversary procedure thus has to be compromised in recognition of valid social interests that compete with the social interest in openness.” 2014 WL 2696734, at *4. Defendants’ arguments that hearings on FISA discovery must be open and adversarial disregard the balance Congress struck when it enacted FISA provisions that provide due process to defendants while protecting the crucial interests in national security. 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 the FISA process enacted by Congress has been upheld by every court that has considered the constitutionality of the statute. See, e.g., Damrah, 412 F.3d at 624-25; Isa, 923 F.2d at 1306-07; Ott, 827 F.2d at 476–77; Belfield, 692 F.2d at 148-49. There is similarly no basis for Defendant Muhtorov’s objection to a classified, ex parte hearing. Indeed, the Seventh Circuit recently observed that there appears to be no authority to support such an argument. Daoud, 2014 WL 2696734, at *6. That court followed the Ninth Circuit’s practice in conducting such a hearing. See United States v. Sedaghaty, 728 F.3d 885, 891 & n. 2 (9th Cir. 2013); cf. American Civil Liberties Union
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v. Department of Justice, 681 F.3d 61, 66, 70 (2d Cir. 2012). The Daoud court also noted that the defense’s objection to the classified hearing was “ironic” as 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.” Daoud, 2014 WL 2696734, at *6. Finally, the defendants’ objection to the government’s ex parte filing of a classified brief, with a redacted version filed on the public record, something which the government does in every FISA case including the original FISA litigation in this case, is also baseless. See Sedaghaty, 728 F.3d at 908 n.12 (“[The defendant] moved to strike the classified, ex parte appellate briefs and excerpts of record filed by the government or, in the alternative, to request access for his security-cleared counsel and expert to the documents. We denied the motion for the same reasons discussed below with regard to the requirements of CIPA.”).
The defendants’ request to prevent the government from providing its full account of the surveillance that occurred in this case, either in its classified pleading or in any subsequent hearing, would impair the operation of one of the fundamental safeguards of FISA: that the district court have access to the information needed for an ex parte, in camera review of the propriety of the surveillance, and thus perform an important check on the government, without the government having to unnecessarily share that sensitive information with the defense. The defendants acknowledge that the Court can review the classified FISA applications and orders and other materials itself ex parte and in
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camera, but argues that the Court cannot review the government’s explanation of those materials or ask any questions to test the government’s assertions without defense counsel present. This would deprive the Court of the means of acquiring information relevant to the decision before it, means that would readily be available in any motion the government made under Rule 16(d). 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 defendants’ right to review the FISA applications and orders – and the information derived from them – especially given the relatively straightforward task of assessing the lawfulness of initiating surveillance, which district courts do on a regular basis when approving or evaluating criminal search warrants. See Isa, 923 F.2d at 1307; see also 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.”).
Jumaev’s Additional Arguments in Favor of Disclosure Because the government is not entering into evidence or otherwise using or disclosing information obtained or derived from Section 702 collection to which Jumaev is aggrieved in this prosecution, he has no standing to challenge the constitutionality of Section 702 or the Section 702 collection at issue in this case. 50 U.S.C. §§ 1806(c), 1881e(a). Defendant Jumaev has not accepted the government’s assertion that he does not meet the statutory test for notice and cannot seek suppression of Section 702 obtained or derived materials, and, therefore, the government has provided the Court ex
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parte with classified information which shows that Jumaev does not meet the statutory test for notice and has no standing to challenge to the statute or collection that occurred in the case. The portion of the government’s response to Muhtorov’s suppression motion which pertains to Jumaev does so only to again explain that he has no standing to adopt Muhtorov’s motion. Likewise, Jumaev lacks standing to file his instant motion to adopt Muhtorov’s objection to partially classified pleadings. There is nothing for Jumaev to move to suppress, and therefore he cannot object to the Court’s consideration of Muhtorov’s suppression motion without disclosure of the classified portions of the Government’s response. Defendant Jumaev’s arguments regarding any ambiguity that exists in the term “derived from” have no bearing on this case. Dkt. 590 at 5-7.
Jumaev makes additional, irrelevant arguments in support of his pleading. As to Jumaev’s speculation that discoverable material exists within the redacted material, Dkt. 590 at 7-9, there is no basis for this assertion. The government understands, has complied with, and intends to continue complying with its discovery obligations, including declassifying or providing through CIPA any materials currently classified. Disclosure of any of the FISA materials is not permitted unless “necessary” to adjudicate the lawfulness of the surveillance. 50 U.S.C. § 1806(f).
Jumaev’s arguments that an FAA suppression motion is somehow different from an ordinary FISA suppression motion, or that this is a case of first impression for this Court, Dkt. 590 at 9-10, similarly have no bearing on the statute Congress passed, which requires ex parte, in camera review of the FISA materials by the Court. Moreover, his claims that “[t]he FISC is not authorized to address the constitutionality of
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the FAA” and that “no court” has ever done so are patently wrong. Dkt. 590 at 10. The statute permits the FISC to authorize a certification only if it finds, among other things, that the targeting and minimization procedures are consistent with both the statute and the Fourth Amendment, the latter of which would be violated if the statutory definition of such procedures or the proposed acquisitions themselves were unconstitutional. See 50 U.S.C. § 1881a(i)(3)(A). A recently declassified FISC opinion establishes that the FISC has complied with this statutory mandate and closely scrutinized the constitutionality of such procedures in each certification. See [Caption Redacted], 2011 WL 10945618, at *6 (FISC Oct. 3, 2011).
Jumaev also argues that the government should have sought leave of Court before filing ex parte, but acknowledges that § 1806(f) explicitly allows and provides for ex parte submission. Dkt. 590 at 15 (“While 50 U.S.C. § 1806(f) allows the government, under specified circumstances to submit materials ex parte to the district court for an in camera review, Mr. Jumaev should not have to guess that such a proceeding is occurring.”). The government has not concealed that an ex parte filing, permitted by FISA, occurred; indeed, the government filed a notice to inform defendants. Dkt. 569. General arguments that ex parte proceedings are disfavored or that they have not been permitted in other contexts ignore Congress’s contrary determination embodied in FISA and the FAA. Dkt. 590 at 11-20.
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Request for Alternate Relief Under CIPA Defendant Muhtorov’s argument, invoked by Jumaev, that CIPA provides an alternate mechanism for the defense to access classified FISA material is erroneous. As an initial matter, FISA disclosure matters are not covered by CIPA, but by the specific procedures set forth in FISA. And, in any event, defense counsel does not have access to classified information under the procedures outlined in CIPA unless he or she has a “need to know” that information for a case-related purpose. It would be impossible for defense counsel to have a “need to know” in the FISA context unless the Court finds that such access is “necessary” to determine the legality of the surveillance. As was already previously discussed in CIPA litigation in this case, the mere possession of a clearance does not entitle defense counsel access to classified information. Counsel must also have a “need to know.” See Executive Order 13526, §§ 4.1(a) and 6.1(dd) (requiring that a “need to know” determination be made prior to the disclosure of classified information to anyone, including those who possess a security clearance); El-Mezain, 664 F.3d at 568 (“We are unpersuaded by the defendants' argument that the Government’s interest [in protecting classified information from disclosure to defense counsel] is diminished because defense counsel possess security clearance to review classified material.”); United States v. Amawi, 2009 WL 961143 (N.D. Ohio, Apr. 7, 2009) (cleared counsel denied access to CIPA classified information because they had no need to know); United States v. Abu-Jihaad, 2007 WL 2972623, at *2 (D. Conn. Oct. 11, 2007) (citing United States v. Yousef, 327 F.3d 56, 168 (2d Cir. 2003); Mejia, 448 F.3d at 455-56; United States v. Yunis, 867 F.2d 617, 621-25 (D.C.
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Cir. 1989); 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”); accord United States v. Bin Laden, 126 F. Supp. 2d 264, 287 n. 27 (S.D.N.Y 2000); see generally Ott, 827 F.2d at 476-77 (“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, whether or not she happens for unrelated reasons to enjoy security clearance.”) (rejecting the contention that the clearance of counsel creates a due process right of access to classified materials in a FISA litigation case). Where, as here, it is not “necessary” under FISA for the defense to access classified FISA application materials, defense counsel simply has no “need to know” and CIPA has no role.
Indeed, the Daoud court rejected the very CIPA-based circumvention of FISA that the defendants propose here:
[The district court judge] 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
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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. 2014 WL 2696734, at *4. Because the “need to know” for FISA application materials is governed by the “necessary” standard, “[i]f 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.” Id. at 5. CIPA, even if it applied here, would not allow a defendant to circumvent the procedures enacted by Congress in FISA.
Other Requested Relief To the extent Defendant Muhtorov requests a taint hearing under Alderman v. United States, 394 U.S. 165, 180-81 (1969), on the assumption that the Court will find the surveillance was illegal (Dkt. 584, at 3-4), such a motion is, at the least, premature, as no such finding has been made. The government thus asks that this relief be denied at this time without prejudice to refiling in the event that the Court finds any illegality.
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CONCLUSION For the reasons stated above, the defendants’ motions should be denied.
Respectfully submitted this 2nd day of July, 2014.
JOHN F. WALSH United States Attorney
By: s/ Gregory A. Holloway_____ GREGORY A. HOLLOWAY Assistant United States Attorney United States Attorney’s Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0406 e-mail: Gregory.Holloway@usdoj.gov Attorney for the Government
By: s/ Erin Creegan______________ ERIN CREEGAN Trial Attorney Counterterrorism Section U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 Telephone: (202) 514-0127 Fax: (202) 514-8714 e-mail: Erin.Creegan@usdoj.gov Attorney for the Government
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CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of July, 2014, I electronically filed the foregoing GOVERNMENT’S RESPONSE TO DEFENDANTS’ MOTION FOR ORDER REQUIRING GOVERNMENT TO DISCLOSE OR PROVIDE DEFENSE COUNSEL ACCESS TO ITS CLASSIFIED PLEADINGS AND OBJECTION TO EX PARTE PROCEEDINGS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Brain R. Leedy Email: Brian_Leedy@fd.org Warren R. Williamson Email: Rick_Williamson@fd.org Kathryn Stimson Email: kathryn@stimsondefense.com David B. Savitz Email: savmaster@aol.com Mitchell Baker Email: mitchbaker@estreet.com
S/ Maureen Carle MAUREEN CARLE Legal Assistant United States Attorney=s Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: 303-454-0100 Email: Maureen.Carle@usdoj.gov
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 Case 1:12-cr-00033-JLK Document 603 Filed 07/11/14 USDC Colorado Page 1 of 25
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Case No. 12-cr-00033-JLK UNITED STATES OF AMERICA,
Plaintiff, v. 2. BAKHTIYOR JUMAEV,
Defendant.
DEFENDANT JUMAEV’S REPLY TO “GOVERNMENT’S UNCLASSIFIED MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO
SUPPRESS EVIDENCE OBTAINED OR DERIVED FROM SURVEILLANCE UNDER THE FISA AMENDMENTS ACT AND MOTION FOR DISCOVERY”
(Related to Doc. 559)
Defendant Bakhityor Jumaev (“Mr. Jumaev”), by and through his attorneys, replies to the “Government’s Unclassified Memorandum In Opposition To Defendants’ Motion To Suppress Evidence Obtained Or Derived From Surveillance Under The FISA Amendments Act And Motion For Discovery” (Doc. 559) by informing the Court as follows:
I. INTRODUCTION More than a year ago, evidence of the United States government’s mass surveillance program first began appearing in the Guardian newspaper. The source of the Guardian’s information was NSA contractor Edward Snowden. In some circles, Mr. Snowden has been vilified. In others, he has been praised. Since early July 2013 to the present, hundreds of articles from the Guardian and other worldwide publications, including the Washington Post and New York
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Times, have revealed the existence of a government operation aimed at collecting, storing, reviewing, and using the personal and political communications of millions of American people and millions of people abroad.1 A global maelstrom has erupted as a result.
Plaintiffs in the case of Clapper v. Amnesty International, ___ U.S.___, 133 S. Ct. 1138, 185 L.Ed2d 264 (2013) challenged one of the statutes upon which the U.S. government has relied in its implementation of this secret mass surveillance program, namely, the FISA Amendment Act of 2008 (“the FAA”). During oral argument before the United States Supreme Court on October 29, 2012, upon being asked who has standing under the statute to make a constitutional challenge to the interceptions, the Solicitor General, Donald B. Verrilli, Jr. responded: “The first is if an aggrieved person, someone who is a party to a communication, gets notice that the government intends to introduce information in a proceeding against him.” See transcript of oral argument, available at www.supremecourt.gov/oral_arguments/argument.../11-1025.pdf at 3-4; see also Exhibit H, attached to Mr. Jumaev’s Motion for Notice of Whether the Government Intends to Use Evidence Obtained under or Derived from Surveillance Authorized by the FISA Amendment Act of 2008 (“FAA”) (Doc. 458). Oops! Could it be possible that people working down the hall from the Solicitor General had not even informed him of what the government’s inner sanctum was doing since, unbeknownst to Mr. Verrilli, his colleagues in the National Security 1 Ordinary Internet users, Americans and non-Americans alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency from U.S. digital networks, according to a four-month investigation by the Washington Post reported on July 5, 2014 in an article, 	  
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Division had determined that notice was not required under the FAA! It took the government nearly a year from the oral argument in Clapper, supra, to provide the first defendant in a criminal proceeding with the notice that their advocate before the Supreme Court said was required.
Did a “gotcha” before the Supreme Court result in the United States having to finally accord an accused the constitutional right of due process and whatever attendant rights flowed from it? After all, the executive branch disclosed this information to one of the FAA’s champions in the United States Senate, Senator Diane Feinstein, to enable her in December 2012 to argue the efficacy of the FAA as part of her persuasion to extend the FAA another five years. See Doc. 458 at 3-4 and Exhibit E attached thereto. This combination of events led the United States on October 25, 2013, for the first time since the FAA’s enactment in 2008, to inform a criminal accused that information obtained or derived from a FAA collection would be used against him. That notice to the co-defendant Jamshid Muhtorov in this case has spawned the presentation of the myriad pleadings that now await this Court’s determination. This Reply by Mr. Jumaev may be the culmination of that process.2
It would be presumptuous of Mr. Jumaev in this Reply to try to fashion a more articulate, better reasoned, or more thorough answer to the Government’s Response of issues common to both defendants than what has been presented by Mr. Muhtorov in Doc. 602. As a result, Mr. Jumaev will invoke the court’s local rule that will allow him to adopt that pleading. Mr. Jumaev will, however, address 2 The Procedural History from the First FISA Notice to Mr. Muhtorov (Doc. 12) filed on (date, 2012) to his Reply to the Government’s Response (Doc. 602) filed on July 2, 2014 is described in the attached Appendix A.
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the issues that are unique to him, namely: (1) whether he has standing to raise a motion to suppress, including the issue of “evidence derived from;” (2) whether he has standing to challenge the constitutionality of the FAA; and (3) the constitutional implications of the FAA.
II. ADOPTION OF MR. MUHTOROV’S MOTION Mr. Jumaev, pursuant to D.C.Colo.LCr 12.1(b), respectfully approves, adopts, and incorporates by reference any or all of the reasons stated, arguments advanced, and/or authorities cited by the Mr. Muhtorov’s “Reply to Government’s Response (Doc. 559, 569)” (Doc. 602). III. THE GOVERNMENT IS INCORRECT IN ASSERTING THAT MR. JUMAEV LACKS STANDING AND THAT HIS MOTION TO SUPPRESS SHOULD BE
SUMMARILY DENIED The Government Response, while 97 pages long, contains wholesale redactions – indeed, entire headings, sections, and presumably lengthy segments of text – in an attempt to render it largely bullet proof. The armor, however, has its soft spots. Mr. Jumaev has repeatedly requested the government to answer two basic questions: (1) whether the electronic surveillance described in its FISA Notice was conducted pursuant to the pre-2008 provisions of FISA, or instead, the FAA; and (2) 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? Jumaev Motion for Notice (Doc. 458), at 21; Reply in Support of Jumaev Motion for Notice (Doc. 501), at 19-20.
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The government has refused to directly answer either question, but
instead has relied on its election not to provide Mr. Jumaev with a Second FISA
Notice similar to what was served upon Mr. Muhtorov, stating that Mr. Jumaev
would have received such notice if he had satisfied the statutory criteria for
notice. See Doc. 470 at 4 and Doc. 525 at 2-3. The Government Response (Doc.
559) at 16, parrots its prior explanations by stating:
In its response and surreply to Jumaev’s motion, the government stated that it does not intend to introduce or otherwise use or disclose against Jumaev in any trial, hearing or other proceeding in this case evidence obtained or derived from Section 702 acquisition to which Jumaev is an aggrieved person. Thus, Jumaev is not entitled to any additional notice under FISA.
A. The Test For Standing Proposed by the Government is Formulated from FISA and Inapplicable To Defendants’ Challenge to the Legality Of The FAA and Evidence Derived Therefrom
In essence, the government claims that Mr. Jumaev’s challenge to the
constitutionality of FAA should be denied for the same reason it claims he is not
entitled to a direct response to his request for notice, namely, he lacks standing.
The government reaches this conclusion in the mistaken belief that there is a
five-part test determinative of whether Mr. Jumaev is entitled to notice under the
FAA, thereby affording him standing to challenge the constitutionality of the FAA.
According to the government, its notice obligation only arises when:
The government (1) “intends to enter into evidence or otherwise use or disclose” (2) “against any 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(d); see 50 U.S.C. § 1825(d); see also 50 U.S.C. § 1881e(a).
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Government Response (Doc. 559), at 33 (bracketed material original). Further
compounding the government’s opaque response is its failure to explain how Mr.
Jumaev has not met any of these five elements. The government, in essence,
has said that Mr. Jumaev has not met at least one of these five elements, yet it refuses to directly state which element or elements have not been met.3
Mr. Jumaev has not found, and the government has not cited, any judicial
authority for the position that the government’s five-part test is the applicable
standard for entitlement to notice under the FAA or is the prerequisite for
challenging the constitutionality of FAA. Rather, the government’s position for
standing appears rooted in a fundamental misunderstanding between the original
FISA provisions and its amendments in 2008 as the FAA and, in particular, the
mistaken belief that the full FISA criteria for notice have to be met in order to
3 Not only has the government refused to answer these simple two questions, it has gone even further in stonewalling Mr. Jumaev’s efforts to discover relevant information to enable him to challenge the introduction of anticipated evidence against him. At p. 14 of its Response, the government has redacted the entire section under the heading “1. The FBI’s Investigation of the Defendants.” This redaction is inappropriate because both defendants have been provided with thousands of pages of discovery regarding the government’s investigation of each of them. Furthermore, it is inconceivable that the two simple questions referenced above, along with the more fundamental question -- was Mr. Jumaev subject to electronic surveillance under the FAA? -- could not have been addressed in the discussion of the FBI investigation in a manner that did not compromise national security but still provided basic, necessary information to the defense. This issue was more fully addressed in Mr. Jumaev’s “Motion to Require the Government to Disclose, or Otherwise Provide Him Access to, its Classified Pleadings (Doc. 569) and Objection to the Ex Parte, In Camera Submission to and Final Determination by the Court of Such Pleadings and Related Documents Without Disclosure and Attendant Proceedings First Afforded to Defendant” (Doc. 590) at 7-9; the Court is requested to take judicial notice of that discussion. 	  
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trigger any notice requirement under the FAA or standing to mount a constitutional challenge to the FAA.
Although the differences between FISA and the FAA have been explained in Mr. Jumaev’s Reply (Doc. 499) at 21-23, a summary of that discussion bears recitation here. The second element of the government’s five-part test, i.e., that Mr. Jumaev must be an “aggrieved person” to be entitled to notice under the FAA or challenge its constitutionality, is inapplicable to a FAA notice. The term “aggrieved person” is a FISA concept that predated the enactment the FAA. FISA defines “aggrieved person” at two locations within the statute: 50 U.S.C. 1801(k) states: “‘Aggrieved person’ means 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. § 1821(2) states: “‘Aggrieved person’ means 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.”
The FAA, enacted in 2008, on the other hand, contains no definition of “aggrieved person.” The FAA’s definitional section, 50 U.S.C. § 1881(a), specifically prescribes that nine words or phrases have the same definition under the FAA as in section 1801 of FISA; “aggrieved person” is not one of those phrases.4 50 U.S.C. § 1881(b) provides definitions for five additional terms;
4 50 U.S.C. §1881(a) states: “The terms “agent of a foreign power”, “Attorney General”, “contents”, “electronic surveillance”, “foreign intelligence information”, “foreign power”, “person”, “United States”, and “United States person” have the meanings given such terms in section 101 [50 USCS § 1801], except as specifically provided in this title [50 USCS §§ 1881 et seq.]. 	  
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“aggrieved person” is not one of them.5 If Congress wanted the concept of “aggrieved person” to have the same meaning in the FAA as it does in the original FISA, it would have said so.
It is no wonder that the FAA nowhere defines “aggrieved person,” for while FISA includes requirements of individualized suspicion and particularity in identifying targets (50 U.S.C. §1805(c)), the FAA contains none of these requirements and facilitates the issuance of blanket authorizations for conducting electronic surveillance (50 U.S.C. §1881a(d)(1)(g)(4)). Under FISA, 50 U.S.C. § 1805(a)(2)(A), the FISC is required to find probable cause both that surveillance target is “foreign power” or agent thereof and that facilities to be monitored were being used or about to be used by foreign power or its agent; whereas under the FAA, 50 U.S.C. § 1881a(i)(3)(A), the FISC no longer needs to make any probable cause determination. Id. The government seeks to blend FISA and FAA together and to piggyback the requirement of FAA notice onto FISA’s notice provisions contained in 50 U.S.C. §§ 1806(c) and 1825(d).
Consequently, because it is nowhere defined under the FAA, it is impossible to be an “aggrieved person” with respect to FAA surveillance. The government thus has crafted a five-part test that includes an element that it is impossible for anyone to meet. This exemplifies why the government’s five-part test for standing for notice under the FAA and opportunity to challenge the constitutionality of the FAA is without merit.
5 The additional terms defined at 50 U.S.C. § 1881(b) are: “congressional intelligence committees,” “Foreign Intelligence Surveillance Court”/”Court,” “Foreign Intelligence Surveillance Court of Review”/”Court of Review,” “electronic communication service provider,” and “intelligence committee.”	  
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B. The Government Should Not Be the Sole Arbiter of What “Derived from” Means under the FAA In the face of Mr. Jumeav’s concerns as to whether evidence “derived from” FAA surveillance will be used against him, the government asks the Court and Mr. Jumeav to rely on the government’s judgment as to when and if “derived from evidence” will be utilized. The government refuses to even state whether evidence derived from FAA surveillance was later utilized in obtaining warrants for FISA surveillance. On the one hand, the government attempts to assuage the Court and counsel that FAA “derived from” evidence will not be used against Mr. Jumeav. On the other, the government has made the opposite representation at least three times now in this case. First, in the “Discovery Conference Memorandum and Order” (Doc. 89), p. 5, § E, ¶ 3, the govement states that in this case there have been leads obtained by electronic surveillance of the defendant’s person or premises. Second, the “Declaration and Claim of Privilege of the Attorney General of the United States,” executed by Attorney General Eric H. Holder, Jr. and attached to the Government’s Response states in ¶ 2 that: “I have been advised that the Government presently intends to use in the above-identified criminal proceeding information obtained or derived from the targeting of non-US persons outside the United States conducted pursuant to FISA.” Third, the Government Response at 8 concedes that FAA “derived from” evidence has already been used in this case, as the government discloses “that the government has offered into evidence or otherwise used or disclosed in proceedings, including at trial, in this case information derived from the
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acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 [FISA], as amended, 50 U.S.C. § 1881a.” [bracketed material in original; internal quotations omitted].
The meaning of “derived from” is well established in constitutional law regarding surveillance. Evidence is “derived” from illegal surveillance when it is the “product” of that surveillance or “is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes ‘so attenuated as to dissipate the taint.’” Murray v. United States, 487 U.S. 533, 536-37 (1988) (quoting Nardone v. United States, 308 U.S. 338, 341(1939)). “Derived” evidence is a “well established term of art” and carries context, carrying a meaning that pre-dates and was incorporated into FISA. Chandler v. U.S. Army, 125 F.3d 1296, 1304 (9th Cir. 1997); see also United States v. Giordano, 416 U.S. 505, 531-32 (1974) (interpreting the meaning of derived evidence in relation to a sequence of electronic intercepts and wiretap orders).
Nevertheless, and despite the FAA’s enactment six years ago, the government has been unable to settle on a consistent definition of what “derived from” means as used in that statute. Although the criminal Complaint was lodged against Mr. Muhtorov in January 2012, the government did not provide him with notice that it intended to use FAA acquired evidence against him until October 25, 2013. The government attempts to mitigate this noncompliance with the explanation in the Government Response, at 9 n.2, that its decision to give notice was a result of recent consideration of “the particular question of whether and
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under what circumstances information obtained through an electronic surveillance under Title I or physical search under Title III could also be considered to have derived from prior collection under Title VII.” One wonders if the Solicitor General’s embarrassment before the Supreme Court in Clapper, supra, had anything to do with the government’s “recent consideration.” Effectively the government has conceded that it now ascribes a different meaning to the term “derived from” than it did two years ago. In doing so, the government further concedes that its earlier interpretation of “derived from” was incomplete and incorrect.
Even more inexplicable is the government’s grossly belated notice in the recent case of United States v. Mohamud, No. 3:10-CR-00475-KI-1, 2014 WL 2866749, 2014 U.S. Dist. LEXIS 85452 (D. Or. June 24, 2014). There, the defendant was convicted in January 2013 of attempting to use a weapon of mass destruction. It was not until November 19, 2013 -- 11 months after the defendant’s conviction -- that the government provided notice that FAA-acquired evidence had been used during the trial to obtain the defendant’s conviction. Neither this Court nor Mr. Jumaev should have to rely upon the government’s ever morphing interpretation of what evidence is “derived from” FAA surveillance.
The government’s apparent position that it intends to use FAA-acquired evidence against Mr. Muhtorov, but not against Mr. Jumaev, is a legal impossibility. The government ignores that Count 1 of the Superseding Indictment charges both Messrs. Muhtorov and Jumaev with conspiracy. Consequently, any statement by either defendant determined to have been made
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during the course and scope of the conspiracy generally will be admissible against the codefendant. See Fed. R. Evid. 810(d)(2)(E). Additionally, under the Pinkerton doctrine of co-conspirator liability, a conspirator generally is liable for the substantive offenses committed by a co-conspirator when they are reasonably foreseeable and committed in furtherance of the conspiracy. See Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Cherry, 217 F.3d 811, 817 (10th Cir. 2000) (explaining and applying Pinkerton). Thus, it is a legal and factual impossibility for FAA-acquired evidence to be utilized at trial against Mr. Muhtorov and not Mr. Jumaev. As a result, Mr. Jumaev would be harmed by the introduction of FAA-acquired evidence in this case, and therefore he certainly has standing to receive notice and to challenge the constitutionality of the FAA.
Mr. Jumaev has standing to challenge the constitutionality of the FAA because there is a “realistic danger of sustaining a direct injury as a result of the statute's operation.” Pennell v. San Jose, 485 U.S. 1, 8 (1988); see also Davis v. Federal Election Comm’n, 554 U.S. 724, 734-735 (2008) (self-financed congressional candidate challenged the constitutionality of election law that relaxed the limits on an opponent's contributions when self-financed candidate’s spending itself exceeded certain limits, where opponent had decided not taken advantage of allowable increased statutory contribution limits, plaintiff had standing due to “realistic and impending threat” opponent would do so); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, (1978) (plaintiffs who lived near proposed nuclear power plant challenged
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constitutionality of statute that limited the plant's liability for nuclear accident; Court found standing due to generalized concern about exposure to radiation”).
IV. INDEPENDENT PANEL REVIEWS EMPHASIZE THE RIGHT TO PRIVACY AND QUESTION THE CONSTITUTIONALITY OF THE FAA Many of the constitutional arguments raised by Messrs. Muhtorov and Jumaev (Docs. 520, 521, and 602) have also been addressed and countenanced in many respects by two independent panels: one commissioned specifically by the President, and the other by the executive branch’s advisory board established by Congress in 2004. They are cited infra, and relevant excerpts from each to this case are now discussed. A. The FAA Violates The Fourth Amendment “The right to privacy is essential to a free and self-governing society. The rise of modern technologies makes it all the more important that democratic nations respect people’s fundamental right to privacy, which is a defining part of individual security and personal liberty.” The President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World, December 12, 2013, at 12 (the “President’s Review”). Excessive surveillance and unjustified secrecy can threaten civil liberties, public trust, and the core processes of democratic self-government. All parts of the government, including those that protect our national security, must be subject to the rule of law.” Id. While it is the government’s responsibility to protect this country’s national security, the government is equally responsible for protecting the fundamental values of our homeland security as captured in the Fourth Amendment: “The
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right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...” (emphasis added). Id. at 15. The underlying goal is to achieve the right “balance” between the two forms of security. Id. at 16.
To achieve this balance, the President’s Review endorsed new steps to protect those within the United States engaged in communications with non-US persons, including restrictions on the ability of the FISC to compel third parties (such as telephone providers) to disclose private information to the government, and restrictions on the issuance of National Security Letters (by which the FBI now compels individuals and organizations to turn over certain otherwise private records), recommending prior judicial review except in emergencies where time is of the essence. Id. at 18.
The President’s Review recommended that if the government legally intercepts a Section 702 communication directed at a non-US person who is located outside the US, and if the communication either includes a US person as a participant or reveals information about a US person: (1) any information about the US person should be purged upon detection unless it either has foreign intelligence value or is necessary to prevent serious harm to others; (2) any information about the US person may not be used in evidence in any proceeding against that US person; and (3) the government may not search the contents of Section 702 communications in an effort to identify communications of a particular US person, except (a) when the information is necessary to prevent a threat of death or serious bodily harm, or (b) when the government obtains a
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warrant based on probable cause to believe the US person is planning or is engaged in acts of international terrorism. Id. at 28-29 (“Recommendation 12”).
Although the President’s Review did acknowledge that Section 702 “does play an important role in the nation’s efforts to prevent terrorist attacks across the globe,” (Doc. 559 at 57), the question remains whether it achieves that goal in a way that unnecessarily sacrifices individual privacy and damages foreign relations. Id. at 145. The President’s Review concluded that Section 702 has a potentially troubling impact on the privacy of US persons because of the risk of inadvertent interception. Id. As a result, the panel made Recommendation 12 for reasons that included the following:
The government cannot lawfully target communications of a US person whether the individual is in or outside the US, without satisfying probable cause of both FISA and 4th Amendment. However, under the FAA, targeting of a nonUS person located outside the United States requires only that the government reasonably believe that the target is such a person. Thus, US persons are appreciably more likely to have their constitutionally protected communications inadvertently intercepted under this lower standard whenever the government engages in Section 702 surveillance. President’s Review, at 147.
In standard practice involving Title III, 18 U.S.C. § 2510, et seq., if the government wiretaps an individual’s phone because he is suspected of, for example, drug trafficking, and during that tap a completely innocent persons is overheard talking on that phone about non-related criminal activity, the government customarily will discontinue listening to and even discontinue the
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interception of the call to implement necessity protocols, thus effectively purging the call from its collection. However, that standard practice occurs under the rigors of probable cause, necessity, and individualized targeting for the application’s initial approval and under stringent minimization and a limited time period for the collection of the interceptions. None of the foregoing rigors apply to Section 702 collection, which because of its lower standard of “reasonably believed” increases the likelihood that the innocent person’s communications with a foreign-friend, physician, or attorney abroad would be inadvertently intercepted. Indeed, the “NSA treats all content intercepted incidentally from third parties as permissible to retain, store, search, and distribute to its government customers.” Washington Post, at 4. In fact, “the NSA does not generally attempt to remove irrelevant personal content, because it is difficult for one analyst to know what might become relevant to another.” Id.
Second, it is often difficult to determine whether an e-mail address, internet communication, Skype address, or telephone number of the nontargeted participant in a legally acquired Section 702 communication belongs to a US person. In such circumstances, there is a significant risk that Section 702 communications involving US persons will be retained indefinitely in a government database. Id. at 149. Third, the concept of information of “foreign intelligence value” has a degree of vagueness and can lead to the preservation of private information about US persons whose communications are incidentally intercepted under a Section 702 collection. Id.
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For the above reasons, there is a risk that the government after it incidentally collects information about US persons during the course of a Section 702 collection will be able to later search its database of communications in a way that invades the legitimate privacy interests of persons in the United States. The underlying rationale of Section 702 is to protect the privacy interests of US persons even when they communicate with non-US persons abroad. They should not lose that protection merely because the government has legally targeted non-US persons abroad under a legal standard that could not be employed to target a US person who participates in that communication. Id. at 150.
The President Review’s Recommendation 12 would allow the government to target non-US persons abroad while at the same time preserving the privacy and security interests of the US person and reduce the incentive of the government to use Section 702 in an effort to gather evidence against US persons in a way that would circumvent the underlying values of both FISA and the 4th Amendment. Id.
A second review panel, the Privacy and Civil Liberties Oversight Board (“PCLOB”), recently issued its Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“PCLOB Report”). The Panel noted that “evaluating the constitutionality of the Section 702 program poses unique challenges” since it is “complex surveillance program – one that entails many separate decisions to monitor large numbers of individuals, resulting in the annual collection of hundreds of millions of
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communications of different types, obtained through a variety of methods, pursuant to multiple foreign intelligence imperatives, and involving four intelligence agencies that each have their own rules governing how they may handle and use the communications that are acquired.” PCLOP Report, July 2, 2014, 86.
The PCLOP Report acknowledged that “the relevant Fourth Amendment interests are those of U.S. persons whose communications may be acquired despite not themselves having being targeted for surveillance.” Id. at 87. The acquisitions can occur in four main situations:
(1) An “incidental” collection – when a U.S. person communicates by telephone or Internet with a targeted non-U.S. person located abroad;
(2) An “about” collection – when a U.S. person sends or receives an Internet communication that is routed internationally and which communication makes reference to a targeted email address; here neither the sender nor recipient of the communication is a targeted non-U.S. person;
(3) A “multiple-communications transaction” – when a U.S. person sends or receives an Internet communication that is embedded within the same “transaction” as a different communication that meets the requirements for acquisition;
(4) An “inadvertent” collection – when a U.S. person’s communications are acquired by mistake due to a targeting error, an implementation error, or a technological malfunction.
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Id. Any Fourth Amendment assessment of the Section 702 program must take into account the cumulative privacy intrusions and risks of all four categories above, together with the limits and protections built into the program that mitigate them. Id.
Here, it has been shown that Mr. Jumaev has communicated with persons overseas. See Doc. 499 at 15. He and Mr. Muhtorov have engaged in Internet communications wherein the foreign email address of sodiqlar.com, an IJU site, was mentioned. Id. at 16. The facilitator of sodiqlar.com is most likely a non-U.S. person targeted under Section 702. Id. at 17-18. Internet communications of Mr. Jumaev most likely fall within one or more of the above categories. The government refuses to state whether that is so, other than to obliquely note that even if one’s communications were acquired under Section 702, but the government does not intend to use them in any proceeding against the U.S. person, then that person is not entitled to be informed whether such communications were indeed acquired. It is not within the government’s exclusive domain to decide if information is “derived from” such a collection, if the information is relevant to any of Mr. Jumaev’s defenses, or if the information is favorable to Mr. Jumaev under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny.
V. SUMMARY AND CONCLUSION The government’s refusal to answer two basic questions with a simple “yes” or “no” has unduly hampered Mr. Jumaev’s efforts at a full and meaningful
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challenge to the FAA evidence that the government has stated will be introduced in this criminal proceeding.
Mr. Jumaev has standing to challenge the constitutionality of the FAA because he will be harmed by the introduction of FAA acquired information or evidence derived therefrom in the criminal proceedings against him.
Mr. Jumaev has standing to seek suppression of the information obtained or derived from the FAA collection because he was likely intercepted or overheard during such surveillance and/or his activities were the subject of such surveillance.
Evidence uncovered over the course of more than a year’s investigation of the true workings of the government’s use of the FAA has questioned the notion of incidental and inadvertent collection of information and more and more appears as if specific individuals may have been targeted in order to avoid the more stringent collection, preservation, and use standards under FISA.
Based upon the reasons discussed herein, Mr. Jumaev seeks discovery of the materials described in Defendants’ Motions to Suppress and suppression of any information obtained or derived from FAA surveillance, and for such further relief as the Court may deem appropriate.
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Dated this 11th day of July, 2014. Respectfully submitted, s/David B. Savitz David B. Savitz 1512 Larimer Street, 600 Denver, CO 80202 303-825-3109 303-830-0804 (fax) SavMaster@aol.com s/Mitchell Baker Mitchell Baker 1543 Champa Street, Suite 400 Denver, CO 80202 (303) 592-7353 mitchbaker@estreet.com (Attorneys for Defendant Bakhtiyor Jumaev)
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 11th day of July, 2014 I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to counsel of record:
Gregory A. Holloway Email: Gregory.Holloway@usdoj.gov Erin Martha Creegan National Security Division for U.S. Department of Justice Email: erin.creegan@usdoj.gov Kathryn J. Stimson Counsel for Jamshid Muhtorov Email: kathryn@stimsondefense.com Brian Rowland Leedy Office of the Federal Public Defender Counsel for Jamshid Muhtorov Email: Brian_Leedy@fd.org Warren Richard Williamson Office of the Federal Public Defender Counsel for Jamshid Muhtorov Email: Rick_Williamson@fd.org
s/Pat Austin Pat Austin, Paralegal to David B. Savitz
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APPENDIX A PROCEDURAL HISTORY On April 4, 2012, the government filed a “Notice of Intent to Use Foreign Intelligence Information” (“Jumaev FISA Notice”) (Doc. No. 68) against Mr. Jumaev, informing the Court and Mr. Jumaev that pursuant to 50 U.S.C. §§ 1806(c) and 1825(d), the government intends to offer into evidence or otherwise use or disclose in any proceedings in the above-captioned matter, information obtained and derived from electronic surveillance and physical searches conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §§ 1801 - 1811, 1821 - 1829. (Doc. 68). A similar notice had been previously filed against codefendant Jamshid Muhtorov (“Mr. Muhtorov”) (“Muhtorov First FISA Notice”) (Doc. 12). On October 25, 2013, the government provided Mr. Muhtorov with a second notice that expanded the nature of the foreign intelligence information that it intended to use against this defendant, namely, evidence acquired or derived from the FAA. (“Muhtorov Second FISA Notice”) (Doc. 457). On October 28, 2013, because he had not been afforded a notice similar to Doc. 457, Mr. Jumaev filed his “Motion for Notice of Whether the Government Intends to Use Evidence Obtained Under or Derived from Surveillance Authorized by the FISA Amendment Act of 2008 (“FAA”)” (Doc. 458) (“Jumaev Motion for Notice”). On November 19, 2013, the government filed a Response to the Jumaev Motion for Notice (Doc. 470). On January 10, 2014, Mr. Jumaev filed a Reply in
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support of the Motion for Notice (Doc. 501), and on February 4, 2014, the government fled its Sur-Reply on (Doc. 525). Mr. Jumaev’s Motion for Notice then became at-issue. By then, the round of pleadings, seeking suppression of the FAA acquired evidence had already begun.
On January 29, 2014, Mr. Muhtorov, filed a “Motion to Suppress Evidence Obtained or Derived from Surveillance Under the FISA Amendments Act and Motion for Discovery” (Doc. 520). One day later, Mr. Jumaev filed a similar motion that both adopted Mr. Muhtorov’s arguments pursuant to D.C.Colo.LCr. 12.1(b), and presented additional arguments germane to Mr. Jumaev. (Doc. 521).
On May 9, 2014, the government filed a combined response to both suppression motions, and defense counsel was provided with an “unclassified” version of the response. (Doc. 559). (“Government Response”). The Government Response also included an appended “Declaration and Claim of Privilege” executed by Attorney General Eric H. Holder. On May 22, 2014, the government filed in camera, ex parte, and under seal its classified response (Doc. 569) (“Government’s Classified Response”).
The Government Response, while 97 pages long, contains wholesale redactions – indeed, entire headings, sections, and presumably lengthy segments of text. Consequently, on June 12, 2014, Mr. Muhtorov filed a pleading styled, “Defendant Muhtorov’s Motion for Order Requiring Government to Disclose or Provide His Counsel Access to its Classified Pleadings and Objection to Ex Parte Proceedings”. (Doc. 584); on June 18, 2014, Mr. Jumaev
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filed “Motion to Require the Government to Disclose, or Otherwise Provide Him Access to, its Classified Pleadings (Doc. 569) and Objection to the Ex Parte, In Camera Submission to and Final Determination by the Court of Such Pleadings and Related Documents Without Disclosure and Attendant Proceedings First Afforded to Defendant” (Doc. 590) (collectively “Motions for Disclosure”).
On July 2, 2014, the government filed a combined response to the Motions for Disclosure. (Doc. 600). The motions for disclosure are now at issue.
Also, on July 2, 2014, the Government’s Response was supplemented with the opinion in United States v. Mohamud, No. 3:10-CR-00475-KI-1, 2014 WL 2866749, 2014 U.S. Dist. LEXIS 85452 (D. Or. June 24, 2014). (Doc. 601).
On July 3, 2014, Mr. Muhtorov filed “Defendant’s Reply to Government’s Response (Doc. 559, 569)” (Doc. 602) (“Muhtorov’s Reply”). Mr. Jumaev’s Reply filed today presumably renders the matters of suppression and for discovery at issue.
Thus, pending for the Court’s consideration are: Mr. Jumaev’s Motion for Notice, the Defendants’ motions for disclosure, and the Defendants’ motions to suppress and for discovery.
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 Case 1:12-cr-00033-JLK Document 559-1 Filed 05/09/14 USDC Colorado Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

UNITED STATES OF AMERICA, Plaintiff,
v.
1. JAMSlllD MUHTOROV and 2. BAKHTIYOR JUMAEV,
Defendants.

)

No. 12-CR-00033-JLK

)

)

)

)

)

)

DECLARATION AND CLAIM

)

OF PRIVILEGE

)

)

DECLARATION AND CLAIM OF PRIVILEGE OF THE ATTORNEY GENERAL OF THE UNITED STATES I, Eric H. Holder, Jr., hereby declare the following: 1. I am the Attorney General of the United States of America and head of the Ynited States Department of Justice, an Executive Department of the United States. I have official custody of and control over the files and records of the United States Department of Justice. The matters stated herein are based on my knowledge, on consideration of information available to me in my official capacity as Attorney General, on discussions that I have had with other Justice Department officials, and on conclusions I have reached after my review of this information. 2. Under the authority of 50 U.S.C. §§ 1806(f) and 1881e(a), I submit this declaration pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA"), as amended, in connection with the above-captioned criminal proceeding. I have been advised that the Government presently intends to use in the above-identified criminal proceeding information obtained or derived from the targeting of non-U.S. persons outside the United States conducted pursuant to FISA. See 50 U.S.C. §§ 1806(c) and 1881e(a). Accordingly, Defendants Jamshid
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Muhtorov and Bakhtiyor Jumaev, by and through their attorneys, have filed a motion seeking disclosure and suppression ofFISA-related materials (hereinafter the "Defendants' Motion"). The Government will file an opposition to the Defendants' Motion. For the reasons set forth in the Government's Opposition, it is necessary to provide this Court with the certification(s), affidavits, procedures, and materials submitted to, and the opinions and orders issued by, the Foreign Intelligence Surveillance Court ("FISC"), as well as other related documents (hereinafter collectively referred to as ''the FISA Materials").
3. Based on the facts and considerations set forth below, I hereby claim that it would harm the national security of the United States to disclose or hold an adversarial hearing with respect to the FISA Materials. The United States will submit the relevant classified documents to this Court as part of a "Sealed Appendix," so this Court may conduct an in camera, ex parte review of the legality of the FISA collection at issue. My Claim of Privilege also extends to the classified portions of any memoranda and briefs the Government may file in connection with this litigation and to any oral representations that may be made by the Government that reference the classified information contained in the FISA Materials.
4. In support of my Claim of Privilege, the United States is submitting to the Court for in camera, ex parte review the Declaration of Stephanie O'Sullivan, Acting Director ofNational Intelligence. The Declaration of Ms. O'Sullivan sets forth, in detail, the specific facts on which my Claim of Privilege is based. The Declaration of Ms. 0' Sullivan is classified at the "TOP SECRET" level.
5. Relying on the facts set forth in the Declaration of Ms. O'Sullivan, I certify that the unauthorized disclosure of the FISA Materials that are classified at the "TOP SECRET" level could reasonably be expected to cause exceptionally grave damage to the national security of the
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United States. I further certify that the unauthorized disclosure of the FISA materials that are classified at the "SECRET" level reasonably could be expected to cause serious damage to the national security of the United States. The FISA Materials 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, including the manner and means by which those investigations are conducted. As a result, the unauthorized disclosure of the information could harm the national security interests of the United States.
6. I respectfully request that the Court treat the contents of the Sealed Appendix, for security purposes, in the same sensitive manner that the contents were treated in the submission to this Court, and to return the Sealed Appendix to the Department of Justice upon the disposition of the Defendants' Motion. The Department of Justice will retain the Sealed Appendix under the seal of the Court subject to any further orders of this Court or other courts of competent jurisdiction.
Pursuant to Title 28, United States Code, Section 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed on --=M=a=y.L---=-8--L,____, 2014.
ric H. Holder, r. Attorney General
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 Case 1:12-cr-00033-JLK Document 125 Filed 05/25/12 USDC Colorado Page 1 of 34
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
CASE NO. 12-cr-00033-JLK UNITED STATES OF AMERICA,
Plaintiff, v. 1. JAMSHID MUHTOROV,
Defendant. _____________________________________________________________________
MOTION TO SUPPRESS FISA ACQUIRED EVIDENCE (SUPPLEMENT TO DOC. 14) _____________________________________________________________________ Mr. Muhtorov, through counsel, Brian R. Leedy, Assistant Federal Public Defender, and pursuant to 50 U.S.C. §§ 1806(e) and 1825(f), respectfully requests the suppression of any evidence obtained or derived from electronic surveillance or physical searches conducted pursuant to the Foreign Intelligence Surveillance Act (FISA) (50 U.S.C. §§ 1801-1811, 1821-1829), sought to be offered into evidence, or otherwise used or disclosed by the government. As grounds he states as follows: On February 7, 2012, the government filed a “Notice of Intent to Use Foreign Intelligence Surveillance Information,” stating their intent to “offer into evidence or otherwise use or disclose in any proceedings in the above captioned matter information obtained and derived from electronic surveillance and physical search conducted pursuant to” FISA. The government’s notice was provided pursuant to 50 U.S.C. §§ 1806(c) and 1825(d), which refer to the notification requirements for the use of FISA

Case 1:12-cr-00033-JLK Document 125 Filed 05/25/12 USDC Colorado Page 2 of 34
information acquired from electronic surveillance and physical searches, respectively.
Doc. 12.
50 U.S.C. §§ 1806(e) and 1825(f) provide that “[a]ny person against whom
evidence obtained or derived from” FISA acquired electronic surveillance or physical
search “to which he is an aggrieved person1 is to be, or has been, introduced or
otherwise used or disclosed in any trial, hearing, or other proceeding in or before any
court . . . may move to suppress the evidence obtained or derived from such search on
the grounds that the information was unlawfully acquired; or the physical search was
not made in conformity with an order of authorization or approval.”2
All evidence obtained and derived from FISA surveillance or searches should be
suppressed because the FISA applications may fail to establish probable cause that Mr.
Muhtorov is an “agent of a foreign power,” the applications may contain intentional or
1 An “[a]ggrieved person” is “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)
2 50 U.S.C. §§ 1806(f) and 1825(g) provide that whenever a court is notified of the government’s intent to enter into evidence, or otherwise use, information obtained through electronic surveillance or physical searches made pursuant to FISA, or whenever any motion to suppress such evidence is made pursuant to 50 U.S.C. §§ 1806(e), or 1825(f), the “United States district court . . . shall, notwithstanding any other provision of law, if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the physical search as may be necessary to determine whether the physical search of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. §§ 1806(f) and 1825(g) further provide that “[i]n 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 physical search, or may require the Attorney General to provide to the aggrieved person a summary of such materials, only where such disclosure is necessary to make an accurate determination of the legality of the physical search.”
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reckless material falsehoods or omissions, minimizations procedures may be inadequate, and the government may have failed to comply with minimization procedures, the government may not have made the required certifications in FISA applications, or those certifications may have been erroneous, and any extensions of FISA applications based on searches performed are fruit of the poisonous tree and should be suppressed.3 I. INTRODUCTION
This case involves numerous intrusive searches of Mr. Muhtorov's private residence, his computer, email accounts, and personal effects. According to the Affidavit attached to the Complaint (Document No. 1), The Federal Bureau of Investigation (FBI) began investigating Mr. Muhtorov based on “communications with www.soldiqlar.com website administrator and Islamic Jihad Union (“IJU”) facilitator” known as “Abu Muhammad”. Doc. 1, pg. 4. The Affidavit states that “[p]ursuant to court authorization,” the FBI obtained communications via email regularly accessed through a laptop computer, and communications originating from Mr. Muhtorov’s phone lines. Id.
The searches at issue violate the Fourth Amendment to the United States Constitution, which protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. AM. IV. The searches appear to have been conducted pursuant to an
3 Mr. Muhtorov has not had access to the underlying FISA materials, and as such, can only speculate as to their inadequacies. If the Court grants Mr. Muhtorov’s motion for access to FISA materials, he will seek leave to supplement this motion.
3

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authorization under the Foreign Intelligence Surveillance Act (FISA), which, as shown herein, was designed for foreign intelligence gathering but is increasingly used by law enforcement to circumvent the protections of the Fourth Amendment and other vital Constitutional protections.
This supplement will explain first, as far as can be determined without access to the FISA materials, that the protocol for obtaining a FISA order was not followed in this case and, consequently, that the fruits of the FISA search should be suppressed. Second, the numerous reasons why the defense should be given access to the FISA materials in this case. And finally, why this Court should rule that FISA is unconstitutional on its face and as applied in this case. II. FISA OVERVIEW
FISA, enacted in 1978, established the Foreign Intelligence Surveillance Court (FISC), a unique type of court that operates in secret and in which the government is the only entity permitted to appear. FISA authorizes issuance of two types of warrants that may be issued by the FISC – those allowing electronic surveillance and those allowing physical searches. Both types of warrants are at issue in this case, as the Complaint establishes that electronic and physical searches occurred prior to the issuance of a warrant and pursuant to "legally authorized surveillance" (i.e., FISA). Complaint Affidavit (Doc. No. 3) at 17 (electronic surveillance), 31 (physical searches).
The statutory prerequisites of FISA are the same in most respects for both electronic and physical intrusions. Any application to the FISC must be made under oath by a federal officer and contain certain information and certifications. 50 U.S.C.
4

Case 1:12-cr-00033-JLK Document 125 Filed 05/25/12 USDC Colorado Page 5 of 34

§§ 1804 and 1823. In brief, an application for electronic surveillance or a physical

search must:

•

provide the identity of the Federal officer making the application;

•

state the identity or description of the target;

•

include a statement of the facts and circumstances relied upon by

the applicant to justify his belief that the target of the search or

surveillance is a foreign power or an agent of a foreign power and each of

the facilities or places at which the electronic surveillance is directed is

being used, or is about to be used by a foreign power or an agent of a

foreign power;

•

provide a "statement of proposed minimization procedures";

•

provide a description of the nature of the information sought and the type

of communications or activities to be subjected to surveillance;

•

set forth "certifications" by the Assistant to the President for National

Security Affairs, an executive branch official or officials designated by the

President from among those executive officers employed in the area of

national security or defense and appointed by the President with the

advice and consent of the Senate, stating as follows:

(A) the certifying official deems the information sought to be foreign intelligence information;

(B) a significant purpose of the search or surveillance is to obtain foreign intelligence information;

(C) such information cannot reasonably be obtained by normal investigative techniques,

(D) the type of foreign intelligence information being sought according to the categories describe in section 1801(e); and

(E) the basis for the certification that -

(i) the information sought is the type of foreign intelligence information designated; and

5

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(ii) such information cannot reasonably be obtained by normal investigative techniques.

50 U.S.C. §§ 1804(a), 1823(a).

The statute also requires a summary statement of the means by which the

surveillance will be effected and a statement whether physical entry is required to effect

the surveillance, including:

•

a statement of facts concerning all previous applications that have been

made to any judge under this statute and action taken on each previous

application;

•

the specific period of time for which the electronic surveillance is required

to be maintained.

Id. § 1804(a)(7) - (9).

The Attorney General must personally review the application and determine that it

satisfies the criteria and requirements set forth in the statute. Id. at § 1804(d).

A. Requirements to Obtain a FISA Order and Standard for Suppression of FISA Evidence.
At the outset it will be helpful to emphasize some of FISA's more important requirements. Before the FISA court can approve electronic surveillance or a physical search, it must make several important findings. One of the more important aspects of a FISA order is that the government must show facts that "the target of the electronic surveillance is a foreign power or an agent of a foreign power" and that each of the facilities or places at which the electronic surveillance or physical search is directed is being used, or is about to be used, by the foreign power or an agent thereof. 50 U.S.C. §§ 1804(a)(3); 1824(a)(2).

6

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Additionally, FISA requires a "certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official," that a significant purpose of the surveillance or search is to obtain foreign intelligence information." 50 U.S.C. §§ 1804(a)(6)(B), 1823(a)(6)(B).
Also importantly, FISA authorizes any "aggrieved person" to move to suppress evidence obtained or derived from electronic surveillance or a physical search on the grounds that the information was unlawfully acquired, or the surveillance or search was not made in conformity with an order of authorization or approval. Id. at §§ 1806(e), 1825(f). FISA defines the phrase "aggrieved person" as "a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance." Id. at § 1801(k).
B. This Court's Standard of Review of the FISA Application and Procedure is De Novo.
This Court should review the FISA applications and orders de novo. United States v. Hammound, 381 F.3d 316, 332 (4th Cir. 2004) (noting district court's de novo review and conducting its own de novo review of FISA materials), vacated on other grounds, 543 U.S. 1097 (2005); United States v. Squillacote, 221 F.3d 542, 554 (4th Cir. 2000) (same). Indeed, a reviewing court should conduct essentially the same review of the FISA application and materials that the FISC conducted. In re Grand Jury
7

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Proceedings of the Special April 2002 Grand Jury, 347 F.3d 197, 204-05 (7th Cir. 2003). And "no deference [should be] accorded to the FISC's probable cause determinations." United States v. Rosen, 447 F.Supp. 2d 538, 545 (E.D. Va. 2006). The need for de novo review is critically important if this Court declines to permit the defense participation in the suppression issues. Id. ("de novo review is particularly important "especially given that the review is ex parte and thus unaided by the adversarial process."); see also United States v. Warsame, 547 F.Supp. 2d 982, 990 (D. Minn. 2008).
Additionally, this Court must give an exacting review of the FISA materials because at this stage, the FISA activity has moved out of the realm of intelligence gathering and is being used to obtain a criminal conviction. The focus now should be the rights of the defendant against whom the government is acting, and not the interests of intelligence. III. ACCESS TO FISA DISCOVERY IS REQUIRED TO LITIGATE SUPPRESSION
ISSUES AND IS REQUIRED IN ORDER TO CONFORM WITH DUE PROCESS OF LAW. The district court has the discretion to disclose portions of relevant materials, under appropriate protective procedures, if it decides that such disclosure is necessary to make an accurate determination of the legality of the surveillance, or is otherwise required by due process. 50 U.S.C. §§ 1806(f) (electronic surveillance), 1825(g) (physical searches); United States v. Stewart, 590 F.3d 93, 128 (2d Cir. 2009). This section will show that both principles require that the defense have access to the FISA materials in this case.
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A. Disclosure of FISA Materials is Necessary to Accurately Determine the Legality of the FISA Surveillance and Searches.
In determining the legality of surveillance, "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) (electronic surveillance), § 1825(g) (physical searches). Disclosure is, therefore, warranted when a court needs a defense attorney's input to decide whether to suppress evidence obtained through a FISA order.
While courts have not allowed defense participation in suppression hearings, the decisions have articulated several principles that support defense participation on Mr. Muhtorov's behalf. For example, in both United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982), and United States v. Ott, 827 F.2d 473, 476 (9th Cir. 1987), the courts identified issues such as misrepresentations of fact, vague identification, or records showing over broad surveillance may require disclosure to the defense. Here, there are many potential bases for suppression based on unlawful surveillance. There are, furthermore, several complicated issues that make the defense's input necessary.
Accordingly, pursuant to 50 U.S.C. § 1806(f), the defendant asks this court to order the government to provide the following materials: All applications, extensions, orders, and related materials underlying the electronic surveillance of the defendant conducted pursuant to FISA, as well as applications for such surveillance of any third-party target which intercepted defendant.
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B. Input from the Defense is necessary to make an accurate determination as to whether Mr. Muhtorov is a foreign power or agent thereof or if a "significant purpose" of the FISA application was foreign intelligence gathering.
Defense input is necessary for an accurate determination of the suppression issues raised above – that Mr. Muhtorov is not a foreign power or agent of a foreign power and that a "significant purpose" of the FISA application was not foreign intelligence gathering.
With respect to both physical searches and electronic surveillance, FISA requires that a court find probable cause to believe that the target of the investigation is a foreign power or agent of a foreign power, and that the facility or place at which the surveillance or search is directed is being used or is about to be used by the target. 50 U.S.C. §§ 1805(a)(2)(A)-(B), 1824(a)(2)(A)-(B). The FISA application here may be insufficient as to whether Mr. Muhtorov can be reasonably viewed as a foreign power or agent of a foreign power.
Section 1801(a)-(b) provides several definitions and categories of "foreign power" and "agent of a foreign power." None of those definitions apply to Mr. Muhtorov. Indeed, the only category that can even arguably apply to Mr. Muhtorov is the "agent of a foreign power" definition provided in § 1801(b)(1)(C). That definition provides that an agent of a foreign power includes a person who "engages in international terrorism or activities in preparation therefore." "International terrorism," is defined as activities that:
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a
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criminal violation if committed within the jurisdiction of the United States or any State; (2) appear to be intended-
(A) to intimidate or coerce a civilian population; (B) to influence the policy of a government by intimidation or
coercion; or (C) to affect the conduct of a government by assassination or
kidnapping; and (3) occur totally outside the United States, or transcend national boundaries
in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum. 50 U.S.C. § 1801(c). As enacted in 1978, FISA applied to interceptions the "primary purpose" of which was foreign intelligence. However, as amended in 2001 by the USA PATRIOT Act, the statute now applies to interceptions that have international intelligence gathering as a "significant purpose." See United States v. Ning Wen, 477 F.3d 896, 897 (7th Cir. 2007); 50 U.S.C. § 1804(a)(6)(B). The Foreign Intelligence Surveillance Court of Review ("FISCR"), has concluded that the amended statute allows domestic use of intercepted evidence provided that a "significant" international objective is present at the time of the FISA order. Ning Wen, 477 F.3d at 897 (citing Sealed Case, 310 F.3d 717 (F.I.S.Ct.Rev.2002)). The FISCR has further stated that the "significant purpose" test, "impose[s] a requirement that the government have a measurable foreign intelligence purpose, other than just criminal
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prosecution of even foreign intelligence crimes" in seeking to obtain a FISA order. Sealed Case, 310 F.3d 717, 735 (F.I.S.Ct.Rev.2002).
This Court should not be persuaded by any argument that this was strictly a "terrorism" investigation and thus had a significant foreign intelligence objective. Thus, the mere fact that a certain investigation is in relation to "terrorism" does not establish a "significant" foreign connection under FISA.
In deciding probable cause in a search warrant context, courts are instructed to rely on common sense. Illinois v. Gates, 462 U.S. 213, 239 (1983). Here, common sense and objectivity shows that this was a criminal investigation from the beginning. Common sense further shows that, in this case, FISA was used as a tool to circumvent the United States Constitution and procedures in place to protect the public and defendants from government overreaching. Common sense defies how a foreign intelligence-gathering mission turns into a full-blown criminal prosecution within days. In sum, looking at the entirety of this investigation, it is obvious that its sole purpose was to build a criminal case, and had no relevance to foreign intelligence gathering. Accordingly, FISA was improperly used and the fruits of the FISA searches and surveillance should be suppressed.
These are complex issues that involve statutory interpretation and legal principles to which the defense can, and should, be able to contribute. Both arguments address issues where there is little, if any, guidance from the Tenth Circuit. And in a similar vein, few courts throughout the nation have addressed these issues. Therefore, this Court would benefit from the adversarial process ("the basic framework of the American criminal justice system") in deciding these issues. United States v. Michelle's
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Lounge, 39 F.3d 684, 699 (7th Cir. 1994); see also United States v. Thompson, 827 F.2d 1254, 1259 (9th Cir. 1987) ("[a]dversary proceedings do in fact take more time, and they are more cumbersome, but with good reason: The adversary process helps us get at the truth").
Furthermore, there are issues that have not been raised as suppression issues that may very well invalidate the FISA investigation upon further analysis. These issues are addressed below.
C. Defense Involvement is Necessary to Address why the information could not be obtained by normal investigative procedures.
An important check on governmental abuse of FISA is that it may only be used when the Attorney General certifies, "that such information cannot reasonably be obtained by normal investigative procedures." 50 U.S.C. §§ 1804(a)(6)(C); 1823(a)(6)(C). A defense perspective is necessary to determine why normal investigative procedures could not be used in this case and to refute the government's explanation for why it relied on FISA.
D. Defense involvement is necessary to address questions related to minimization of government intrusion in this case.
Under FISA, as under the Title III wiretap statute, the government is required to demonstrate it has minimized its intrusions. See 50 U.S.C. §§ 1801(h); 1802 (a)(1)(C);1804(a)(4); 1805(a)(3); 1806(a); 1821(4); 1822(a)(1)(A)(iii); 1823(a)(4); 1824(a)(3), and (c)(2)(A); 1825(a); 1861(g); 1881a(e) and (g)(2)(A)(ii) and (i)(2)(C); 1881b(b)(D) and (c)(1)(C) and (c)(3)(C) and (d)(2); 1881c(b)(4) and (c)(1)(C) and (c)(3)(C) and (d)(2).
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[The] minimization procedures are designed to protect, as far as reasonable, against the acquisition, retention, and dissemination of nonpublic information which is not foreign intelligence information. If the data is not foreign intelligence information as defined by the statute, the procedures are to ensure that the government does not use the information to identify the target or third party, unless such identification is necessary to properly understand or assess the foreign intelligence information that is collected. In re Sealed Case, 310 F.3d at 731 (citing § 1801(h)(2)). The statute requires three specific types of minimization to protect distinct interests. 50 U.S.C. § 1801. First, by minimizing acquisition, Congress envisioned that surveillance should be discontinued where the target is not a party to the communications. Second, by minimizing retention, Congress intended that information acquired, which is not necessary for obtaining, producing, or disseminating foreign intelligence information, be destroyed where feasible. Third, by minimizing dissemination, Congress intended that even lawfully retained information should only be divulged to those officials with a specific need. In re Sealed Case, 310 F.3d at 731. "The FISA minimization procedures were enacted 'generally to parallel the minimization provision in existing [electronic surveillance] law.'" United States v. Thomson, 752 F. Supp. 75,80 (W.D.N.Y. 1990) (quoting S. Rep. No. 95-701, at 39 (1978), reprinted in 1990 U.S.C.C.A.N. 4008). In this case, based on the limited information known to the defense, the concern is that the surveillance was extremely overly broad, and there was little to no effort made to minimize the amount of intrusion to information related foreign intelligence gathering. In sum, this is one of those cases where defense input is necessary because there was surveillance of such a "significant amount of nonforeign intelligence
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information" that it is apparent that the minimization procedures were not followed. United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982).
E. Due Process requires disclosure of FISA material as well as any classified information to the defense.
FISA requires disclosure "to the extent that due process requires discovery or disclosure." 18 U.S.C. §§ 1806(g), 1825(h), 1845(g)(2). In the contest between disclosure of state secrets and the defendant's right to a fair trial, the latter wins out. As the Supreme Court has long recognized, "the Government can invoke its evidentiary privileges only at the price of letting the defendant go free . . . it is unconscionable to allow [the Government] to under take prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense." United States v. Reynolds, 345 U.S. 1, 12 (1953). This principal has remained unchanged over time. In fact, the Second Circuit recently reiterated that in a criminal prosecution the defense must have access to information that is "helpful or material" to the defense, regardless of whether such information is a state secret. United States v. Aref, 533 F.3d 72, 80 (2d Cir. 2008). Being "helpful or material" does not necessarily rise to the level of the government's obligations under Brady v. Maryland, 373 U.S. 83 (1963), because "information can be helpful without being favorable in the Brady sense." Id. Thus, the government must disclose any and all helpful information to the defense, regardless of whether it is classified. Id.; see also United States v. Varca, 896 F.2d 900, 905 (5th Cir. 1990).
Moreover, the government is given four options in a case that involves classified information that is material to the defense, in accordance with the procedures defined
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by the Classified Information Procedures Act (CIPA). In such a case, the government can either: (1) disclose the material to counsel; (2) declassify the material and disclose it; (3) in some circumstances, provide an unclassified summary of the material; or (4) if it refuses any of the three disclosure options, it faces exclusion of the evidence or dismissal of its case. 18 U.S.C. app. III at § 6(c) and (e). In a case such as this, where state secrets are expected to be elicited from the government, the proper procedure is to follow CIPA rather than to preclude discovery and examination of materials by the defense. See, e.g., United States v. Poindexter, 732 F.Supp. 142, 154-55 (D.D.C. 1990).
The importance of a defense perspective in assessing the materials in this case that are helpful to Mr. Muhtorov's defense cannot be overstated. The defense will provide a unique position to evaluate the plethora of electronic surveillance present in this case and assess its helpfulness to Mr. Muhtorov. Alderman v. United States, 394 U.S. 165, 182-84 (1969). In Alderman, the Supreme Court recognized that "the need for adversary inquiry is increased by the complexity of the issues presented for adjudication, and by the consequent inadequacy of ex parte procedures as a means for their accurate resolution, the displacement of well-informed advocacy necessarily becomes less justifiable." Id. at 183-84. The Court recognized that a district court's ability to represent the interests of a defendant is limited by the fact that
[a]n apparently innocent phrase, a chance remark, a reference to what appears to be a neutral person or event, the identity of a caller or the individual on the other end of a telephone, or even the manner of speaking or using words
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may have special significance to one who knows the more intimate facts of an accused's life. Alderman, 394 U.S. at 182. In this case, "the volume of the material to be examined and the complexity and difficulty of the judgments involved" requires a defense perspective and the protections provided by the adversarial process. Id. at 182 n.14. Finally, it must be noted that if the Court declines to permit the defense its due process right to access the FISA information to determine its helpfulness, the Court must "err on the side of protecting the interests of the Defendant," in deciding what is to be disclosed, again because of the ex parte nature of FISA proceedings are not adequate to protect defendants. United States v. Hanjuan Jin, 791 F.Supp.2d 612, 620 (N.D.Ill. 2011). IV. FISA IS UNCONSTITUTIONAL. Although a number of the challenges raised here have been rejected by other courts both before and after the Patriot Act Amendments to FISA in 2001, the Court should consider the claims in light of the facts of this case, amendments to the Patriot Act, and the lack of Supreme Court and Tenth Circuit authority addressing FISA issues. A. The "Significant Purpose" Standard Violates the Fourth Amendment's Prohibition on Unreasonable Searches and Seizures. Before FISA was enacted, and for the first 25 years of its existence, the "primary purpose" for surveillance or searches was required to be intelligence gathering. United States v. Truong Dinh Hung, 629 F.2d 908, 912-13 (4th Cir. 1980). The non-criminal purpose standard was essential to the cases upholding FISA's constitutionality. In the Patriot Act of 2001 and a subsequent decision of the FISCR, the primary purpose test
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was abandoned. The change requires reconsideration of FISA's constitutionality given the use of FISA for normal criminal purposes for governmental intrusions, which implicate the Fourth, Fifth, and Sixth Amendments.
1. The "primary purpose" standard was essential to the Constitutionality of FISA.
Prior to the amendments to FISA pursuant to the Patriot Act in 2001, information obtained pursuant to a FISA investigation could be used in a criminal proceeding only if the "primary purpose" of the FISA investigation was foreign intelligence gathering. United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984). Critically important, this "primary purpose" standard arose from pre-FISA case law holding that warrantless surveillance by the executive branch was permissible only if the purpose of the surveillance was primarily to gather foreign intelligence information. See, e.g., United States v. Butenko, 494 F.2d 593, 601 (3d Cir.1974) (noting that the surveillance was conducted "solely for the purpose of gathering foreign intelligence information"); United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir.1980) (finding that the executive branch is excused from the warrant requirement only when "the object of the search or the surveillance is a foreign power," and "the surveillance is conducted 'primarily' for foreign intelligence reasons"); United States v. Brown, 484 F.2d 418, 427 (5th Cir. 1973) ("The serious step of recognizing the legality of a warrantees wiretap can be justified only when, as in the case before us, the foreign and sensitive nature of the government surveillance is crystal clear.") (Goldberg, J., concurring). Because each of these cases either predates FISA or addresses searches that predated FISA, logically speaking, the "primary purpose" restriction arose from
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Constitutional, rather than statutory interpretation, concerns. Indeed, as the Fourth Circuit made clear:
[T]he executive can proceed without a warrant only if it is attempting primarily to obtain foreign intelligence from foreign powers or their assistants. We think that the unique role of the executive in foreign affairs and the separation of powers will not permit this court to allow the executive less on the facts of this case, but we also are convinced that the Fourth Amendment will not permit us to grant the executive branch more. Truong, 629 F.2d at 916.
2. FISA's original language. As initially enacted, in 1978, FISA required that "the purpose of the surveillance is to obtain foreign intelligence information." However, in order to comply with the Constitution, courts interpreted this language as requiring that the "primary purpose" of a FISA investigation to be directed at obtaining foreign intelligence information. United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991); United States v. Pelton, 835 F.2d 1067, 1074-76 (4th Cir. 1987). This test "ensured that law enforcement officials availed themselves of FISA's more flexible certification procedures only if they primarily sought to obtain foreign intelligence information." United States v. Warsame, 547 F.Supp. 2d 982, 995 (D. Minn. 2008). In other words, it was essential to the constitutionality of FISA.
3. The "significant purpose" standard violates the Fourth Amendment on its face and as applied in this case.
This "primary purpose" test – which has its basis in the Constitution - was the FISA procedure until 2001 when the Patriot Act amended FISA to allow electronic
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surveillance and searches where, "a significant purpose" of the surveillance or search was to obtain foreign intelligence information. 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B). As the FISCR has noted, the government advocated for this amendment to FISA, whereby the article "the" was replaced with the article "a" before the word "purpose," "in order to avoid the requirement of meeting the 'primary purpose' test." In re Sealed Case, 310 F.3d at 732.
Under the new "significant purpose" test, as interpreted by the FISCR, the government can obtain a FISA warrant provided that it has some "measurable foreign intelligence purpose, other than just criminal prosecution," in order to obtain a FISA warrant. Id. at 735. The test is satisfied, "[s]o long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution." Id. at 735. The standard, as other courts have recognized, problematically seems to allows FISA surveillance where the primary purpose is criminal prosecution. See, e.g., Warsame, 547 F.Supp. 2d at 998. This standard cannot withstand a Fourth Amendment challenge.
As shown above, the "primary purpose" test is based on the Constitution and pre-dates FISA. As the Fourth Circuit stated, the primary purpose test is as far as the Fourth Amendment will permit the Government to go in being permitted to physically search and electronically monitor an individual without a warrant. Truong, 629 F.2d at 916. Logically, then, the "significant purpose" test, which permits the government to obtain authority to physically search and electronically monitor an individual without a
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warrant and with the primary purpose of criminally prosecuting them, In re Sealed Case, 310 F.3d at 732, is unconstitutional.
The inherent danger in FISA's significant purpose test is that, in a wide range of criminal investigations, the government can now effect an end-run around the Fourth Amendment merely by asserting a desire to gather foreign intelligence information from the person it in fact intends to prosecute. This has prompted one court to hold that FISA is unconstitutional. Mayfield v. United States, 504 F.Supp.2d 1023, 1038 (D.Or. 2007), rev'd on other grounds, 599 F.3d 964 (striking down Patriot Act amendment because "the primary purpose of the electronic surveillance and physical searching of [plaintiff]'s home was to gather evidence to prosecute him for crimes"). And the same basis led to another court to having "very significant concerns that the 'significant purpose' standard violates the Fourth Amendment." Warsame, 547 F.Supp. 2d at 998 (but declining to reach the issue because, on the case before it, the FISA investigation satisfied the primary purpose test).
The "significant purpose" test, therefore, renders FISA unconstitutional on its face and as applied in this case. It is unconstitutional on its face because under the "significant purpose" test, every FISA surveillance order empowers the government to disregard the Fourth Amendment even if its primary purpose is to gather evidence of a crime. In addition, every FISA order fails to satisfy several of the Fourth Amendment's requirements – the orders do not qualify as warrants, fail to require probable cause, fail the particularity requirement because of their lengthy duration, and provide inadequate notice. See United States v. Salerno, 481 U.S. 739, 745 (1987) (a statute is
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unconstitutional on its face when "no set of circumstances exists under which the Act would be valid").
The significant purpose test, furthermore, renders FISA unconstitutional as applied in this case because the investigation of Mr. Muhtorov was at least primarily, if not fully, criminal. Mr. Muhtorov operated exclusively within the United States and there is no apparent foreign intelligence gathering connection. The FISA application in this case, therefore, must have relied on the "significant purpose" test, and would not have been upheld under the former "primary purpose" test. Accordingly, this Court should rule that the FISA "significant purpose" standard as applied in this case is unconstitutional.
B. FISA Violates Numerous Other Fourth Amendment Protections. 1. FISA Authorizes Warrants Without the Meaningful Judicial Review Required Under The Fourth Amendment.
In order to conduct a search or surveillance in an ordinary criminal investigation, the government must obtain the prior authorization of a neutral, disinterested magistrate who has the authority to determine whether the requirements of Rule 41 or Title III have been satisfied. See FED. R. CRIM. P. 41 (governing physical searches in criminal investigations); 18 U.S.C. §§ 2518(1)(b), (2) & (3) (governing electronic surveillance in criminal investigations); see Johnson v. United States, 333 U.S. 10, 13-14 (1948) ("The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be
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drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.").
FISA reduces the authority of judges reviewing warrants issued under its provisions. The FISC does not have full authority to determine whether, in any particular investigation, the FBI has satisfied the requirements of FISA. The government satisfies most of FISA's requirements simply by certifying that the requirements are met. See 50 U.S.C. § 1804(a)(6); 1823(a)(6) (enumerating necessary certifications).
While certain (but not all) of these certifications must be accompanied by "a statement of the basis for the certification," 50 U.S.C. § 1804(a)(6)(E), the statute makes clear that the FISA court is not to fully scrutinize such statements, but rather is to defer to the government's certification unless it is "clearly erroneous on the basis of the statement made under § 1804(a)(6)(E)." 18 U.S.C. § 1805(a)(4). As the FISCR has acknowledged, "this standard of review is not, of course, comparable to a probable cause finding by the judge." In re Sealed Case, 310 F.3d at 739 (quoting H. R. REP. NO. 95-1283, at 80 (1978)). Prior to the Patriot Act Amendment, it may have been reasonable to limit judicial review of warrant applications. Once, however, the use of warrants was permitted even when the "primary purpose" was no longer intelligence gathering, the rationale for limiting the judiciary's role can no longer stand under the Fourth Amendment. The protections of the people's right against government intrusions for criminal investigatory purposes required by the Fourth Amendment must be present if the government is to use evidence in a criminal prosecution. "A search prosecuted in violation of the Constitution is not made lawful by what it brings to light;
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and the doctrine has never been recognized by this court, nor can it be tolerated under our constitutional system, that evidences of crime discovered by a federal officer in making a search without lawful warrant may be used against the victim of the unlawful search where a timely challenge has been interposed." Byars v. United States, 273 U.S. 28, 29-30 (1927).
Since surveillance and searches conducted pursuant to FISA here were likely conducted without meaningful prior judicial review, they were unreasonable under the Fourth Amendment.
2. FISA Orders Do Not Qualify as Warrants Under the Fourth Amendment.
FISC surveillance orders are not warrants within the meaning of the Fourth Amendment. See In re Sealed Case, 310 F.3d at 741 (acknowledging that FISA orders "may not be . . .'warrant[s]' contemplated by the Fourth Amendment"). The Supreme Court has held that a warrant must be issued by a neutral, detached magistrate; must be based on a demonstration of probable cause; must relate to a particular offense; and must particularly describe the things to be seized as well as the place to be searched. Dalia v. United States, 441 U.S. 238, 255 (1979). FISC orders do not satisfy these requirements.
On the contrary, and as clearly demonstrated by this case, FISA empowers the government to conduct the most intrusive kinds of surveillance with lesser judicial review then required by the Constitution, without showing criminal probable cause, and without meeting particularity requirements. Because FISC orders are not warrants, searches conducted under FISA are presumptively unreasonable. See, e.g., Payton v.
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New York, 445 U.S. 573, 586 (1980); Chimel v. California, 395 U.S. 752, 762-63 (1969). The surveillance at issue in this case cannot overcome that presumption.
3. FISA Warrants Do Not Satisfy The Particularity Requirement. The electronic surveillance and searches in this case were substantial. As the Complaint Affidavit indicates, Mr. Muhtorov's home was searched on at least two occasions, his email account was searched, his personal journals were searched, and his computer files were searched. The duration and scope of these intrusions, obviously, was not strictly limited. Such surveillance violated the Fourth Amendment's particularity requirement. The Fourth Amendment ordinarily prohibits the government from conducting intrusive surveillance unless it first obtains a warrant describing with particularity the things to be seized as well as the place to be searched. Berger v. New York, 388 U.S. 41, 58 (1967) (noting that Fourth Amendment particularity requirement was intended to prevent the government's reliance on "general warrants" that allow "the seizure of one thing under a warrant describing another"). In Berger, the Supreme Court stated that the importance of the particularity requirement "is especially great in the case of eavesdropping." Id. at 56. The Court explained: "[B]y its very nature eavesdropping involves an intrusion on privacy that is broad in scope." Id. "[T]he indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments, and imposes a heavier responsibility on this Court in its supervision of the fairness of procedures." Id.
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With respect to eavesdropping devices and wiretaps, the particularity requirement demands not simply that the government describe in detail the communications it intends to intercept, but also that the duration of the intercept be strictly limited. See Berger, 388 U.S. at 58-60. Title III, which Congress enacted shortly after Berger was decided, limits the term of surveillance orders to 30 days. 18 U.S.C. § 2518(5). FISA, by contrast, authorizes surveillance terms of up to 90 or 120 days or even one year. 50 U.S.C. § 1805(d)(1); 1824(d)(1). To the extent FISA is read to permit issuance of a warrant - or an extension - without the type of particularity required under Title III, it would violate the Constitution. But see Mubayyid, 521 F. Supp. 2d at 138.
4. Surveillance was Conducted Without Compliance with the Fourth Amendment's Probable Cause Requirement.
The Fourth Amendment ordinarily prohibits the government from conducting intrusive surveillance without first demonstrating criminal probable cause - probable cause to believe that "the evidence sought will aid in a particular apprehension or conviction for a particular offense." See Dalia, 441 U.S. at 255. Although the government's primary purpose in this case was to obtain evidence of criminal activity, it failed to satisfy the criminal probable cause requirement.
FISA authorizes the government to conduct intrusive surveillance if it can show what is known as "foreign intelligence probable cause" – probable cause to believe that the surveillance target is a foreign power or agent of a foreign power. See 50 U.S.C. § 1805(a)(3)(A). The statute does not require the government to advance any reason whatsoever – let alone probable cause – to believe that its surveillance will yield
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information about a particular criminal offense. Indeed, foreign-intelligence probable cause bears only a passing resemblance to criminal probable cause. In response to a Freedom of Information Act request filed by the ACLU and others in August 2002, the FBI released, among other things, a document from the FBI's National Security Law Unit entitled, "What do I have to do to get a FISA?" The document states, in relevant part:
Probable cause in the FISA context is similar to, but not the same as, probable cause in criminal cases. Where a U.S. person is believed to be an agent of a foreign power, there must be probable cause to believe that he is engaged in certain activities, for or on behalf of a foreign power, which activities involve or may involve a violation of U.S. criminal law. The phrase "involve or may involve" indicates that the showing of [nexus to] criminality does not apply to FISA applications in the same way it does to ordinary criminal cases. As a result, there is no showing or finding that a crime has been or is being committed, as in the case of a search or seizure for law enforcement purposes. The activity identified by the government in the FISA context may not yet involve criminality, but if a reasonable person would believe that such activity is likely to lead to illegal activities, that would suffice. In addition, and with respect to the nexus to criminality required by the definitions of "agent of a foreign power," the government need not show probable cause as to each and every element of the crime involved or about to be involved. "What do I have to do to get a FISA?," at 2 (Document released by FBI in response to August 21Freedom of Information Act request submitted by ACLU et al.). It is clear that foreign-intelligence probable cause is not "probable cause" within the ordinary meaning of the Fourth Amendment. The surveillance at issue in this case was not premised on criminal probable cause and accordingly was unreasonable within the meaning of the Fourth Amendment.
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C. The Ex Parte, In Camera FISA Process Violates Due Process, A Defendant's Rights To Be Present At All Critical Stages Of The Criminal Process, And His Right To The Effective Assistance Of Counsel.
FISA authorizes the unprecedented exclusion of the accused from critical stages of the prosecution, including review of the motion to suppress evidence. The post-indictment procedure, in a criminal prosecution, is conducted ex parte and in camera and without the defendant ever having the right to even see the warrants or affidavits he is challenging. To permit Muhtorov's motion to proceed in this manner would violate his Fifth and Sixth Amendment rights. Fundamental to due process is the right to notice and an opportunity to be heard. See LaChance v. Erickson, 522 U.S. 262 (1998). The interest at stake is the most fundamental liberty- freedom from incarceration. Turner v. Rogers, 131 S.Ct. 2507, 2518 (2011) ("Freedom 'from bodily restraint' lies 'at the core of the liberty protected by the Due Process Clause.'"). Equally fundamental is a defendant's right to be present at, and participate in, all critical stages of a criminal prosecution and to be meaningfully assisted by counsel. See Montejo v. Louisiana, 129 S. Ct. 2079, 2085 (2009); Tennessee v. Lane, 541 U.S. 509, 523 (2004).
To be sure, the Constitution recognizes some limits on a defendant's participation in the criminal process. The government may secure an indictment without his participation. United States v. Salsedo, 607 F.2d 318, 319 (9th Cir. 1979). In limited circumstances, the court may review potential evidence ex parte to determine whether it is material to the defense. United States v. Mejia, 448 F.3d 436, 543-54
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(D.C. Cir. 2006). If it, it must be disclosed or the government loses the opportunity to use it. Skinner v. Switzer, 131 S. Ct. 1289, 1300 (2011) (citing Brady, 373 U.S. at 87).
The FISA limitations on a defendant's participation are different in kind, allowing the court to determine complex constitutional questions in a non-adversarial setting and in secret. The Constitution forbids such a process, as analogous holdings show. The unconstitutionality of the type of process authorized by FISA is supported by United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004). There, in the context of a bail application, the government submitted – and the District Court considered – evidence ex parte and in camera. The Court rejected one-sided secret proceedings: “Particularly where liberty is at stake, due process demands that the individual and the government each be afforded the opportunity not only to advance their respective positions but to correct or contradict arguments or evidence offered by the other.” Id. at 322. Abuhamra also noted that such a procedure not only violated the defendant's due process rights but also the right of public access to criminal trials. Id. at 316 n.3, 323; see also Alderman, 394 U.S. at 182-84. FISA's ex parte, in camera process, whatever its legality in the context of foreign surveillance, cannot constitutionally displace the defendant's rights under the Fifth and Sixth Amendments. See United States v. Coplon, 185 F.2d 629, 638 (2d Cir. 1950) (finding the refusal to allow the defense to see records the judge reviewed in camera to determine if the "taps" led to evidence introduced at trial violated the defendants' constitutional right). "Few weapons in the arsenal of freedom are more useful than the power to compel a government to disclose
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the evidence on which it seeks to forfeit the liberty of its citizens." Coplon, 185 F.2d at 638.
One of the first cases to consider these arguments under FISA was Belfield. There, the court rejected similar Fifth and Sixth Amendment claims. 692 F.2d at 148. The court's reasoning was, however, anchored in the fact that "FISA is concerned with foreign intelligence surveillance." Id. Courts that rejected similar claims after the Patriot Act amendments have failed to recognize the change in the statutory criteria. See, e.g., United States v. Kashmiri, No.09 CR 830-4, 2010 WL 4705159 (N.D. Ill. 2010). Once Congress expanded the purposes of and standards for surveillance, it shifted the constitutional calculus. As stated in Boumediene v. Bush, 553 U.S. 723, 797 (2008), "security subsists, too, in fidelity to freedom's first principles." Those principles support the conclusion that FISA no longer passes constitutional muster if it shuts criminal defendants out of the process.
D. The FISA "Suppression" Process Unconstitutionally Interferes With The Article III Judicial Power.
Chief Justice John Marshall in Cohens v. Virginia, noted that the judicial power of the federal courts "extends to all cases arising under the constitution or a law of the United States, whoever may be the parties." 19 U.S. (6 Wheat.) 264, 392 (1821). FISA may trigger this judicial power, but it cannot constitutionally expand or restrict the scope of Article III. It does both.
In considering the constitutionality of FISA's limit on judicial power, "[t]he controlling question is whether the function to be exercised by the court is a judicial function." Fed. Radio Comm'n v. Nelson Bros., Co., 289 U.S. 266, 277 (1933). An
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Article III court determining a Fourth Amendment suppression motion on a federal indictment surely performs a "judicial function."
The first defect in FISA under Article III is that it permits the courts to act when there is no case or controversy. Camreta v. Green, 131 S. Ct. 2020, 2028 (2011) ("Article III of the Constitution grants this Court authority to adjudicate legal disputes only in the context of "Cases" and "Controversies."). The role of the courts is to resolve disputes between or among parties. Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 671 (9th Cir. 2005). They may not issue advisory opinions. Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972). Contrary to these principles, FISA permits the courts to act in a one-sided manner, treating the question of suppression as if only one party had an interest sufficient to warrant judicial action.
The second defect in FISA is that it limits the Judiciary's Article III powers by requiring the courts to defer to executive assertions in a criminal case. 50 U.S.C. §§ 1805(a)(4),1824(a)(4). The fact that FISA gives the Attorney General undue control of the warrant and suppression motion processes and limits FISA review infringes on the judicial responsibility to say what the law is, as it "is a responsibility of this Court as ultimate interpreter of the Constitution." Baker v. Carr, 396 U.S. 186, at 211 (1962). See Kendall v. United States, 37 U.S. 524, at 526 (1838) (discerning judicial authority and separation of powers).
The third defect is that FISA, as implemented ex parte and in camera, violates the separation of powers inherent in the first three Articles of the Constitution. While the Executive Branch must assure that the laws are faithfully executed, the Judiciary
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ultimately must decide whether the executive action complies with legislative standards. By conferring deference to the Executive while excluding the citizen, the separation of powers is breached, with the citizen ineffectively protected from executive overreaching.
The judicial power to conduct a Fourth Amendment suppression hearing flows directly from Article III of the Constitution. It does not flow from, nor can it be limited by, a purported congressional delegation to the Attorney General, who in turn tells this Court how to exercise its judicial powers and discretion in a bona fide constitutional "case and controversy." V. CONCLUSION
First, even without FISA disclosure it is apparent that the FISA investigation in this case did not meet statutory standards. The purpose of this FISA investigation was to conduct a criminal investigation and there was no connection, much less the "significant" connection required, to foreign intelligence gathering. Furthermore, there was no probable cause to find that Mr. Muhtorov was an "agent of a foreign power" as required by FISA. Second, is that disclosure of the FISA evidence is required in this case both because defense input is necessary to properly address the complex matters at issue in the motion to suppress, and because disclosure is required under due
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process principles. Finally, FISA is unconstitutional both on its face and as applied in this case because it violates the Fourth, Fifth, and Sixth Amendments, as well as Article III to the United States Constitution.
Respectfully submitted, RAYMOND P. MOORE Federal Public Defender

s/ Brian R. Leedy

BRIAN R. LEEDY

Assistant Federal Public Defender

633 Seventeenth Street, Suite 1000

Denver, Colorado 80202

Telephone: (303) 294-7002

FAX:

(303) 294-1192

Brian.Leedy@fd.org

Attorney for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on May 25, 2012, I electronically filed the foregoing
MOTION TO SUPPRESS FISA ACQUIRED EVIDENCE (SUPPLEMENT TO DOC. 14) with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Gregory A. Holloway Assistant U.S. Attorney Email: gregory.holloway@usdoj.gov David B. Savitz Email: savmaster@aol.com
and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant’s name:

s/ Brian R. Leedy

BRIAN R. LEEDY

Assistant Federal Public Defender

633 Seventeenth Street, Suite 1000

Denver, Colorado 80202

Telephone: (303) 294-7002

FAX:

(303) 294-1192

Brian.Leedy@fd.org

Attorney for Defendant

34

 
 Case 1:12-cr-00033-JLK Document 157 Filed 07/30/12 USDC Colorado Page 1 of 36
INTHEUNITEDS}TATEDSISTRICCT OURI' FORTHEDISTRICOT FCOLORADO
CriminaCral seNo.12-cr-00033-JLK U N I T E DS T A T E SO FA M E R I C A
Plaintiff.
V.
2 . BAKHTIYOJRUMAEV. D,efendant.
D E F E N D A NJTU M A E V ' SC O M B I N E DF I S A . F T E L A TIEMDO T I O N S : (1)TOADOPTDEFENDANMT U|-|rOROV"'SMOtilONTOSUPPRESFS|SA ACQITIREEDVIDENC(ESUPPLE:METNOT DOC.14)"(DOt).12S)(;Z)FOR DISCLOSUROEF FISAMATERIALS(3; )FORA PIRELIMINARCYHIALLENGE TOSUPPRESFSISAAGQUIREDE:VIDENCAEN; D(4)FoR L.EAVETo F|LEA
F'?ANKSMOTIONAFTERREJCEIPOTFALLTTHEGOVERNMI=NT'S DIISCOVERY
DefendanBt akhtiyoJr umaev'b, y and throughhis counsel,s;ubmittshe followingcombinedFISA-relatemd otions(. 1) to l\dopt DefendanMt ruhtorov's "Motionto SuppressFISAAcquirerEJ vidence(Supplementot Doc. 1,[)"(Doc. 125)filtrdon May 25, 2012;(2) lor Disclosureof FISA Milterials(;,;3)for a PreliminarCyhallengteo $uppressFISAAcquiredErr'idencaen; d(4)for Leaveto Filea F:ranksMotionAfterReceipot f All the Government'Dsiscoverrayni,dfor r e a s o n si n f o r m st h e C o u r ta s f o l l o w s :

Case 1:12-cr-00033-JLK Document 157 Filed 07/30/12 USDC Colorado Page 2 of 36

TABLEOF CONTENTS
( 1 ) T OD EAFDEONPDTADNETFJ EUMN DA AE VN'TSMCUOHMTBOINREODVF' S,I.SMAO. F] -I EI OLNATTOESDIUI / IPOPTRI OE NS:SSF I S A
AcQLIfREDEVIDENC(ESUPPLEiMETNoTDoc. 14)"(Doo.12s)(; z)FoR DISCLOSUROEFFISAMATERIAL(S3;)FORA PIRELIMINACRHYIALLENGE To SUPPRESFSlsAAGQUIREED:VIDENGAEN;D(4)FoRL,EAVTEo F|LEA
FRANKSMorloN AFTERRE:GE|PoTF ALL]rHEGovE:RNMEN'r's
DISCOVERY

t. INTRODUCTION

....2

il. A D O P T I OONFM R .M U H T O I R O V ' S M O T I O N

......3

ilt. P E R T I N E N T F A G T S

......3

A. BakhtiyorJumaev'sInrmigrationto the UnitedS;tates . . . 3

B. TheArrestsof Mr.Muhtorovand Mr.Jumaev

. . . . . 6

C. TheGovernment'sFlsAlnvestigation

......7

D. TheGovernment'slnvestigationof Mr,J, umaev
tv. MOTIONFORDISCLOSUROEF FISAMATE]RIAL.S.

. . . I . . .11

A,, Procedurefor lssuanceof FISASurveillance

. . . .11

B, Disclosureof FISAMaterials

. . . 13

C' Mr.Jumaevis Neithera ForeignPowernor an AgentT'hereof16

D, TheFBI'sQuestionableFISAInvestigartioonf Mr,Jumaevwas Precededby the FBI's HistoricalAbusresof the PATRIOTAct . 1 9

1. TheAbusesReportedin 2000

19

2. TheAbusesReportedin 2001

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Case 1:12-cr-00033-JLK Document 157 Filed 07/30/12 USDC Colorado Page 3 of 36

3. TheAbusesReportedin 2006

20

4. TheAbusesReportedin 2008

22

5. TheAbusesReprortedin 2011

24

E. WithoutDisclosureof the FISAMaterialst,he Grovernment's

A b u s e s w i lCl o n t i n uwe i t hl m p u n i t y

......24

F. Disclosureof the FISAMaterialscan OccurunderAppropriate

SecurityMeasuresand ProtectiveOrders

. , 26

G. Prayerfor Disclosureof FISAMaterial

. . . .27

V. PRELIMINARCYHALLENGTEOi FISA.ACQUIREEDVIDENGE:

S U P P R E S S I OANN DU N C O N S T I T U T I O N A L I T Y

27

vt. MIOTIONFORLEAVETO FII.EA FRAruKSMIOTIOANFTERRECEIPT

O F A L L T H E G O V E R N M E NDTI S' SC O V E R Y

.....29

vil. coNcLUSroNs

. . .32

A. Disclosureof FISAMaterials

. . .32

B. ToSuppressandtoFindUnconstitutircnal ......33

c . For Leaveto Filea FranksMotion

. . . 33

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Case 1:12-cr-00033-JLK Document 157 Filed 07/30/12 USDC Colorado Page 4 of 36
I. IN'TR.ODUCTION JosefK.,the tragicprotagonisitn FranzKafka'sTheTrieilw, asarrestedby twoagernt"sonefinemorninga"ndspenta nightmarisy;eharwaitingto standtrial. He hadno ideaof the chargesagerinshtimor whatsecretcourtauthorizetdhe processthat led to his arrest. Onreyear later,two agentsagaincamefor the unknowinJgosefK. and took himltoa quarryoutsideof town. There,he was executed. SurelyJ, osefK. wourldempathizw:eiththenottoodissimilacrircurnstances confronllinDgefendanBt akhtiyoJrumaev.AlthoughMr. Jumerekvnowshe has been c;hargedwith providingmatelriasl upport to a designatedterrorist organizatiohne, is unawanoef whatgovernmenatgentstolda secretcourtabout himandwhythatcourtdecidedto initiartperocessagerinshtim. Mr.Jumaevhaslearnedthattheagentswhoarrrestehdinrarememberos f the FederaBl ureauof Investigatiownh, owerepernrittetdo conceasl urveillance of his phoneconversationasnd allorurrteodrummagethroughhis homeand personapl ossessionsH. owever[,\tlrJ. umaev doesn'tknowwhy the FBIwas allowedto do anyof thosethingsandforhowlongtheiyhadbee,ndoingtllremM. r. Jumaevis nowfacinga futuretrialirrerUnitedStatesfederadl istricct ourtwhere UnitediStateslaw - the FederalIntelligencSeurvreillancAec;t("F|SA") -- is designertCo preventhim from discoverinwg hy thes;ecovertltechniquewlsere orderedand whetherhis rightsas an aggrievedpartywere protectedin the
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processHi.ere,Mr.Jumaevwillexplainto this Hon<lrabCleourthowhe can be affordedrightswhicharerightfullhyris.
II. ADOPTIONOF i\,IRM. UHTORO\/'MS OTION ln accordancweithD.C.Colo.L,CrR12.1,Mr,Jumaevherrebaydoptsand incorponathees reinby referencethe argumentsre, asonsr,equestfsor reliefa, nd authoritieasdvancedandcitedbytfredefendanJtanrshidMuthtoroivn hisMotian to suppress F/sA Acquired Evidence(suppleme>ntot Doc'. 14) (Doc. 12s) (hereinafte"Mr uhtoroMv otion")fi,ledon May25,20'12M. r.Jumaevthenprovides thefollorwindgiscussioonffactsandernphasiosf legalauthoritsypecific1tohim.
I I I .P E R T I N E NFTA C T S A, BakhtiyorJumaev'slmmigrationto tiheUnitedtSfafes IVlr.Jumaevis a 4S-year-olcditizenof Uzbekistanw, ho, due to the persecutioonf Muslims(includinglVlrJumaev)by ltheUzbekistagnovernment, fledhisnativelandand laMullyenteredthe UnitedrStatedsuringAprilof 2000. SeeRespondentA'spplicationforAsylumand Relate>Rdelief(herreinaft"eArsylum Application"F);orml-589,ExhibiAt ,.1Mr. Jumaevhas r."riflerirnJ Philadelphia, Pennsyllvanainadworkedthereandin nearbycommrunitifeosr overa decade/.d.
rAnumbeor f Exhibitsin thesecombinedmotionsma\/implicattehecurrernt ProtectivOerder.Accordinglya,lloftheExhibitasreltiledas RestricteLdevel1, documervnitewableonlyb'ythecourlal ndparties.Exhibitcsonsidereidnthe publicdomains, uchas thereportsbytheOfficeof Inr;pectoGrernera("lOlG")c,an b e e a s i l ya c c e s s e vdi at h e I n t e r n e t .
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HehasnotleftUnitedStatessoilsincehe arrivedin 2000andfearshewouldbe imprisoneadnd/ortorturedif he returnedto uzbekistant.d.
On February2, 2010, Mr. Jumaevwas errrestedin Philaderlphbiay immigrattioanuthoritieosn the basisthathis non-immigranret sidencyprivileges had expired. See Warrianftor Arrestof Atien (hereinafte"rArrestWarrant"), ExhibiltB. Mr.JumaevwasreleasefdromimmigratiocnustodyrcnAprilZO,2O1O, havingposteda bond of $3,500with the conditionsthat hercomplywith the lntensiveSupervisionAppearanceProgram("lSAp,";. tmmigrationBond tCE ForMl-:?52E, xhibiCt . ISAPrequireda,mongotherthingst,hatMr.Jumiaewv ear an anklebraceleUGPmS onitoringdeviceto track his whereabout,slntensive Superur,sioAnppearancePrcgram,ExhibitD. Mr. Jumaeviawaitsa hearing beforethe immigratiocnourton hisAsylumApplicaltiobnu, t the proceedingisn thatcourthavebeenpostponeduntilthe instantmertteirs res;olved{.iee DHS MotiontoAdministrativecllyosecaseandorder, ExhibitsE andF.
Mr.Jumaev'sreleaseon bondfromimmigratiocnustod'y'waesffectuated withthe financiahl elpof familyandfriendsi,ncludinrMgr. Muhtorov.E:vidently, Mr. Muhtorovdecidedto reciprocatae previouskinrlnessthatMr. Jurnraehvad displayetdowardtheendof 2009whenhe,Mr.Jumereve,xtendedthe h,ospitality of hisa;cartmenint PhiladelphiwahereMr. Muhtorovstayedwhilestud'yinagnd trainingfora commerciadlriver'slicense.SeeFBI302datedFelbruar2y"2,2012, at 1, ExhibitG. Shortlyafter Mr. MuhtorovlefllPhiladelphiaim, rnigration
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authoritiecsommencetdheirremovapl roceedingasgainsMt r.JlrumaeinvrJanuary 2010. See Noficeto Appear,Form l-862,ExhibitH. One o1'theoffir:erswho assistedin the immigratioanrrestof Mr.JumaevonrFebruar2y,2010,wasFBI SpeciaAl gentJTA. SeeExhibi1t .2Mr.Jumaevwas releasecfrlomimmigration custodyonApril20,2010afterpostinghisimmigratiobnondas rlescribeadbove.
For the next approximateleyleven(11) morrthsM, r. lvluhtoroavnd Mr. Jumaevfostereda friendshipand communicatefdrequrentloyver the phone. Duringthis time, Mr. Muhtorovresidedin Denverwith his wife and young childrenw, hileMr.Jumaevr,esidedin Philadelphbiautwithouthe presencoef hiswifeandthreechildrerwr hohadbeendeniedvisasby the LJzbegkovernment to join[\/r.Jumaevin AmericaS. eeFBI302reporot f Feb,ruar2y,2010interview of Mr.JumaevE, xhibiJt.
lnrearlyMarch201'1a, t Mr.Jumaev'srequestanclin exchangefor $300 cash,a friendof his gave Mr. Jumaeva checkdertedMarch10, 2011in the amounot f $300;the checkwas madepayableto Mr.Muhtorov'S, eeFlll 302of intervielovn February14,2012,ExhibitK. Mr.JunnaesventlMr.Muhllorotvhe checkfor$300for repaymenotf theformer'sdebt.k/ Afterreceipot f thecheck, thetwomencontinuetdheirlong-distanceommunications;.
2SAJTAc, ontinuetdo playan integrarloleinthegovernmenti'nsvestigatioonf Mr. Jumaevduringthenextmorethantwoyearsc, ulminatinigntheagent'sarresot f Mr.Jumaevon March15.2012inthecase-at-bar.
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B. TheArrestsof Mr.MuhtorovanclMr.Jumarcv C)nJanuary21,2012,Mr.Muhtorowvasarresteidn thiircsaseartO'Hare Airportin Chicagowhile waitingto boarda flightto Turkey. The criminal Complainatgainsthim hadbeenfiledin thisdistricot n January19,2012. See Doc.No.1 in CaseNo. 12-mj-01011-CBGSo. vernmenatgentsthroughoutht e countrythen proceededto interviewany numberof people'whohad comein contacwt ithMr.Muhtorov. Cln February14, 2012 and February24, 2:,,012F,BI agents,including SpeciaAl gentJTA,who hadtwoyearsearlierassistedirrthe February2',2010 immigrartioanrrestand interviewof Mr.Jumaevi,nterviewehdimfor thr:second and thirdtime. The agentsquestioneMd r. Jumaevregardinga,mongother things,his relationshiwp ith Mr. Muhtorovt,he purposeunderlyingthe $300 check, and the meaningof alleged"code"words which the gorrernment contenclewdere usedduringtelephonicommunicationasnd e-mailsbetween MessrsJ.umaevandMuhtorov. CtnMarch14, 2012,the governmenfitledarComplainitn this district againsMt r.Jumaev.SeeDoc.No.1 in CaseNo.12-my01039-KL(Mhereinafter, "JumaevComplaint")M. n.Jumaevwas arrestedthrefollowinlmg orningM, arch 1Sthin, Philadelphiaf,terreturninghomefromwork,and unde,rweantcustodial interrogatiocnoncerningmanyof the sameissuescoveredduringthe two prior
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Case 1:12-cr-00033-JLK Document 157 Filed 07/30/12 USDC Colorado Page 9 of 36
interviewosf him in February.Duringthe threeseparatepost-Muhtorov-arrest interrogationMs,r. Jumaevrepeatedlmy aintainetdhatthe purposeof the $300 checksentin March2011wasto repaymoneythatlMr.Muhtorovhadlelnto Mr. Jumaevfor the latter's immigratiorcrase. A SupersedinrISndictrnenwt as returnecalgainstbothMr. Jumaevand Mr. Muhtoro,ovn Marc;h19,2012(Doc. No.50),whichwassupersedeadsecondtimeon March22,20'12(Doc.lrloS. 9).
C. TheGovernment'sFISAlnvestigation The governmenhtas notifiedMr.Jumaevthat it intendst;o use evidence acquiredthroughFISA surveillance. See Noticeo>f tntent to Use Foreign lntelligenceSurveillanceInformation(Doc.68). Howevert,hergovernrnenhtas not disclosedand will likelyresistdisclosuroef any FISAmerteria-lssuchas applicationas,ffidavitsand FISAorders- whichpunportedsly;upportftrecovert electronicsurveillancaend physicasl earchesconductedin this mattrlr. This governnlentrael sistancwe illoccurnotwithstanditnhgatin typic;iTailtlelll wiretap casesarisingundertheOminousCrimeControal ndSafeStreetsActof 1968,1B U.S.C{. i 2510,ef seg.,covertelectroniicnterceptioncsan be authorizefdor the exactcrimesfor whichMr.Jumaevhasbeenindictedhere.3Suchmaterriaalsre
'18 U.S.CS2516(1e) numerateasnexhaustivliesto1p' redicataerimesforwhich Titlelll etuthorizatioofnelectroniicnterceptioncsanbelobtainedi,ncludinagt subsectio(nq)anycriminavl iolatioonf 229(relatintgo chemicawl eapons)o:r sections2332,2332a,2332b,2332d,2332,f 23329,2332h,23311213,39A,23398, 2339Cr,cr2339Dof thistitle(relatintgo terrorism()enrphasissuprpliedln).the
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Case 1:12-cr-00033-JLK Document 157 Filed 07/30/12 USDC Colorado Page 10 of 36
customarailypartof thegovernmenRt'sule16disclosureinscasesarisinfgrom Titlelll investigationses.e18u.s.c.$ 2s18(s)(abn) d(d)and(9).
ln theabsenceof disclosuroef theFISAmaterialsM, r.Jumaevis unaware of, inter alia. the facts surroundingissuanceof thr-'FISA surveillanceolrders: when tlre applicationws ere submittedand when the orderswere entered; whetherthere were extensionrequestsand ordenst;he nartures,cope,and durationorf the surveillancew;hethertherewas compliancewith minimization procedulreasn; dwhetherthe FISAapplicationasndaffidavitcsontaininrtentional falsemateriasltatementasnd/oromissionosf materiaflacts,anrrC/wohr ethetrhey weremadewithrecklessdisregarfdorthetruth.
D. The Government'slnvestigation ctfMr. Jum'aev The JumaevComplainrtevealsthatthe FBI has beeninvestigertinMgr. Jumaevsinceas earlyas hisarrestfor immigratiocnhargesin F:ebrua2ry010,at whichtirneMr.Jumaevprovidedauthoritiewsithhis mobiletelc-phonneumber, SeeJur,naeCv omplainftl, 13. Thereaftetrh, e FBIclbtaineidnlbrmatioangainst Mr.Jumaevon the basisof havingobtained"appropriataeuthonityto" engagein variousinvestigativtechniquedsirectedagainsht im. ld. Mr..fumaevassumes that"appropriaateuthorityi"ncludetsheFISC.
case-at-baMr,r.Jumaevis chargedwithtwocountsoiiallegedlvyiolating18
u . s . cs. 2 3 3 e B .
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TheJumaevComplainctontainas gapof inforrnatiornelatedto Mr,Jumaev of approximateelyleven(11)monthsafterhis releas;feromimrnigratiocnustody onApril20,2010.TheComplaintht endescribesintr--rceptoiofncommunications thatocc;urrefdor at least10 months(Marchof 2011throughJanuaryof 2012) frombolthMr.Muhtorov'pshoneandMr.Jumaev'spl'roneM. r.Jumaevirialleged to havebeenspeakingto Mr. Muhtorovduringthe ;ceriodwhernMr. Muhtorov"s phonec;allswereinterceptedM. r.Jumaev'sphonewas alsoriubjectetdo FISA electroniscurveillancere, sultingin the interceptioon1'callfsronrhisphone.As a result,lVlr.Jumaevis an "aggrievedperson"in erccordancweilth 50 U.S.C.
s1801(k).
The Jumaev Complaint,among other allegationsa, ssertsthat the governmenti'nsvestigatioinvolvedMr.Muhtorov'"scommuniczrtiownitshlslamic JihadUnion("lJU')websiteadministratoarndfacilitart'oMr uhammedk"'nownas "'AbuMuhammed.S"'eeJumaevComplaint,l1l 2. Reviewof ttreAffidaviftiledin supportof the JumaevComplainat nd the FBI "30:2"reportsdiscloserbJy the governn'tenatl,lowbuta rudimentargylimpseof the F:ISAoperertioin thiscase. Thosenraterialrsevealthe governmenti'snterceptioonf e-mailsand terlephone callsbetweenMessrsJ. umaevandMuhtoroivnearlyMarch201'1.o
oMr.Jurnaevo,f courseh, asno ideawhentheelectronimc onitorinagctually beganandwhenthe FISAorderswereissued.
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FBI302reportsreveatlhe FBI'sphysicasl urveillancoef Mr.Jumaevfrom the beginningof 2011to the end. Examplesof the surveillancienclurJe(:a) a " t r a s hc o v e ro" n J a n u a r y ' 7 , 2 0 1s1e, eE x h i b iLt ; ( b )t h e F B I ' sJ a n u a r y1 1 , 2 0 1 1 1 observatioonf Mr. Jumaevwalkingfromhisapartmenot n therstreetciarryinag plasticbragandwearinga blackskullcap,seeExhibiMt ;(c)theFBI'sJanuary12, 2011followingof a vehiclein whichMr. Jumaevwits a passengerth; e vehicle traveledfromMr.Jumaev'sPhiladelphriaesidencteo hisworkplace(ttreSuper Freshgrocerystorein WilmingtonD, elaware)s,ee ExhibitN; (d) anothertrash coverandseizureof itemstherefromonApril28,2011s, eeExhibi)t; (e)ltheFBI's followingMr.Jumaevon May3, 2011as he traveledfromhis residencbey foot and publictransportatio(na trolleyand train)to and from his ISAPmonitoring centers, eeExhibiPt ; (f)the FBI'sfollowinMg r.Jumaevon May17,2011a, s he traveledfromhisresidenceon footandbytrolleyto theAL-Aqs;laslamicC; enter, seeExhibiQt ; (g)the FBI'sJune6,2011reviewof Mr.JumaervG'sPStracking datafor a week'speriodin May 201'1w, hichincludeddetailsand summaries relatingto Mr. Jumaev'stravelsto his employmerrtl,aundromatI,S,APa, nd mosques,eeExhibiRt ;5and(h)theFBI'sNovembe1r9,2011observatioonf Mr. Jumaevcleaningthefloorsat theAcmeGroceryStoneh, isplaceof employment
5SimiladretailsandsummaryreviewsarecontaineidnrtwoadditionaFlBI302 reportsforthemonthof May2011.
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in Holntes,Pennsylvanias,ee ExhibitS. Detailsof the above-described surveillatnocfeMr.Jumaev'sinnocuouasctivitieasrenotinclucleidn theJumaev ComplaintA. s a result,Mr.Jumaevdoesnot knowif any of llhrosseurveillance detailsetreincludedin anyFISAapplicatiotnhatidentifiehsimas a target.
Mr. Jumaevhas not been informedwhethertherewere multipleFISA surveillarncaepplicationsand ordersdirectedagerinsbt oth him and/or Mr. Muhtoro,ovr, againsteacllseparatelyh,owfrequentltyhe ordel'swereextended pursuantto 50 U.S.C. S 1805(dX2)o, r the particularsconcerningthe governmentc'sovertinvestigatioonf him.
IV.MOTIONFORDISCLOSUROEF FISiAMATERIALS A. Procediiurfeor /ssuanceof FISAiSurveillance
FISA authorizesissuanceof "warrants"f6or electronicsurveillancaend physicaslearchesT. herearetwoFISAcourtst:he FISC,consistinogf 11district courtjuclgesa;ndthe FISCof Reviewc, ompriseodf threedistricot r circuict ourt judges.See50 U.S.C$. 1803(a&) (b) Heret,heFISCwillbe referredto from timeto time as the "issuingcourt,"whilethis Courtwill from timeto time be referredto as the"reviewingo"r "trial"court.
uAlthougFhISArefersto ordersauthorizinpghysicaalndelectroniscurveillance as "warriantsM,"r.Jumaevdoesnotconcedethatsuclrordersconstitute "warrantsa"s contemplatebdytheFourthAmendmenlt.
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In orderto avoidunecessarryepetitioonf the entireargumentsr,easons, andauthoritieasdvancedand citedin the Muhtorov'motiown,hichMr.Jumaev hasadoptedM, r. Jumaevwill brieflyhighlighstomeauthoritietso betterenable theCourto followthoseargumentsspecifitco Mr.Jumaev.
FISAwas amendedduringOctoberof 2011irrthe wakeof the elventos f Septembe1r1,2011. The requiremenutsnderFIS;Afor issuanceof an order authoriz,ineglectroniscurveillancoer a searcharesurnmarizeadsfollows:
. An applicatiofnor a FISAorderauthorizinsgearchesor surveillance mustbe madeunderoathbya federaol {ficewr iththeapprorraolf the AttorneGy eneratlo theFISC5. 0U.S.CSS1801(g)1,804,1823;
. Theapplicatiomn ustidentifyor describethl e targerotf the s;earcohr surveillancaendestablishthatthe targerits eithera "foreignpower" or an "agentof a foreignpower."50 U.S.C.SS 1804(a)(3), 1BOa(a)(aXA18),23(a)(31)8, 23(a)(4XA); The applicationmust includea certificatiofnrorn a high-ranking ExecutiveBranchofficials, uchas the lDirectoor1'theFBl,that the officia"ldeemsthe informatiosnought[bythe sear<;ohr surveillance] to be foreign intelligenceinformation,a" nd tlrat "a s;ignificant purpose"Tof the search or surveillerncies tcr obtain "foreign i n t e l l i g e n c ei n f o r m a t i o n . "5 0 U . S . t 0 S S 1 8 0 a ( a ) ( r ' X A ) - ( : B ) , 1823(a)(X7A)-(B); A singleFISCjudge reviewseach FISAapplicatiofnollowingits s u b m i s s i o5n0. U . S . CS. S1 8 0 51, 8 2 4 .
'Priorto enactmenotf thePATRIOTAct,FISArequirerthdatthe"primarpy urpose" of searcheasndsurveillancaeuthorizebdythestatutewasto obtainforeign surveillaLnwcaesthe reduc;tioonf thisthemostcontrorrersioaflthe PatrioAt ct amendnrenwtsasto reducethisstandardto a "significanpturpose."
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Beforeapprovinga searchor surveillancteh,e Flsc judgemustliind

thatthe applicatioenstablishe"sprobablecause"to believethatthe

targetof the searchor surveillancies a "foreignpower"or ian"aglent

of a foreignpower"andthateachof thelfacilitiesor placesat wfrich

the electronicsurveillancies directedis beingused by a forerign

poweror an agentof a foreignpower5. 0 u.s.c (B)

SS1805(a)(2)(aAn) d

Theinitiadl urationof surveillancoef an iagenot f a foreignpower(lan b en om o r et h a nn i n e t yd a y s . 5 0U . S . CS S1 8 0 5 ( d X 1 ) . Thestatutordyefinitionosf someof thewordsandphrasesutilizedin FISA

aresummarizebdelow:

"[A]gentof a foreign power"includesany person who "knowingly engages in clandestineintelligencegertheringar;tivitiesfor or on behalfof a foreignpower,"or any personwho "knowinglyengagesin sabotageor internationatel rrorismo, r activitiesthatare in preparation
therefor,for or on behalfof a foreignpower."

"[F]oreign power" includes a "group engagecl in international t e r r o r i s m5. "0 U . S . CS $ 1 8 0 1 ( a ) ( 1 ) , ( 4 )
B. Disclosureof F/SAMaterials

FISA'sdisclosurepnocedureasre shroudedb11secrecy.U.S.C.$ 180t3(f) requiretshetrialcourtto:

reviewin cameraandex partetheapplicationo,rder,andsuchotlner materialsrelatingto the surveillanceas rTraybe necessaryto delterminwe hetherthe surveillancoef the arggrievepdersonwas
la'wfullayuthorizeadndconductedI.n makingthisdeternrinatiotnh,e court may discloseto the aggrievedperso,nu, nder appropriiate sercuritpyrocedureasndprotectiveorders,portiionosf the applicati,on, order,or othermaterialrselatingto thesurveillancoenlywheresuch disc/osure is necessary to make an accurate determinationof the legality of the surveillance.

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(emphaLsiuspplied). S;ectio1n806(9s) tatesthat,if the trialcourt";lursuantto [Section1g06i(f)]',
determinesthat the surveillancwe as unlawfuli,t shall order suppressionof evidenco'er informatiodnerivedfromtheunlaMusl urveillanceF.urtherrnorieft.he reviewingcourt finds tl'rat FISA surveillancewas "laMully authorizedand conductedit, shalldenythremotionof the aggrievecplrersoenxcept o theextent thatdutlprocessrequiresdiscoveroy r disclosure."k{. By itr;veryterms,FISA thusenvisionsa scenariowheredisclosureis authoriizeidn orderto accurately determinethe legalityof surveillance,venthougha motionto supprc'sms ight subsequentbley denied.
FISA's methodologyconcerningdiscoveryand requiringmotionsto suppressFISA-acquireedvidenceto be prematurelv-filperdesrantasn archetyrpal chicken-and-egcgonundrum.As a preconditiofnor a reviewingcourtto order discoverrFy,ISA requiresthe accusedto firstfile a motionto suppressFl{iAacquirecelvidence.The motionto suppressthusrnustbe filerrwl ithourdtefense counsel'shavingaccessto discoveryneededto jus;tifythe surppressiomnotion. Thedifemmawas recognizedin Mayfieldv. tJnited{ifallesS, 04lF.Supp.2d 1029, 1039(D. or. 2007),rev'don othergroundss, gg F.3d964 (gthcir.2010)."FlsA alsoallorwtshe governmentot retaininformatiocnollecteda,ndlusethe collected
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informatioinn criminapl rosecutionwsithoupt rovidinfglo! m€aringfuol pportunity forthetargetof thesurveiilancteo chailengietslegaliity."
The FISA discoveryproceduresalso placetlre trial r:ourtin the nontraditionalposition of reviewingpresumptivelyerccurateassertionsb; y the governrnenbtut,in manyinstancess,peculationasnd incompletgeuessworkbl y defensecrounsel.Oncethemotionto suppresissfiledanddiscoveriys requested, the court is requiredto engage in ex parte and i,o ceftteraprocer-.dingtos determinwe hetherdisclosuroef FISAmaterialiss warrantedin orderto evaluate the legatlitoyf the FISAorders.Sincethe reviewis ex parteandunaidedby the trueadversariaplrocesst,he trialcourt'sreviewis c/enovoand no deferenceis accordedthe FISC'sdeterminationslJ. nitedSfafesy. Rosen,447F. Supp.2d 538,5415(D.Va. 2006;serea/soUnitedSfafesv. Squiitlacot:e2,21F.3d 542,lj44 (4thcir. 2000);lJnitedsfafesv. warsame,s4z F. siupp.2d gg2,gg0 (D. Minn. 2008). Oncethe in camerae, x pafteprocedureis llriggeredth, e trialcourtnray disclosesuch materials,'rcnlw! heresuchdisclosureis necerssartyo makean accuratedteterminatioonf the legalityof the surveilliance5."0 U.S.C.{i 1806(f); seea/so50 U.S.C.$1825(9)T. helegislativheistoryexplainsthatthe questionof l e g a l i t ryn a yb e c o m p l i c a t ebdy f a c t o r ss u c ha s :
inrdicatioonfspossiblemisrepresentatioofnfac;tv, agueiclentification of thepersonsto be surveilledo,r surveillancre cordswhichinclurle a significanat mountof nonforeignintelligencienformationc,allirrg
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intoquestioncompliancwe iththe minimizatiosntandardclsontained intheorder. united'Sfafevs.Belfield6,92F.zd141, 147(D.c.cir. 19g2)(gruofinsg. Rep.No. 95-7019,5thCong2. d Sess6. 4 (197g)). (). Mr. Jumaevis Neithera ForeignPowernovan Ag'entThereof
As previouslnyoted,a FISAsurveillancoerdermustdeterminrthgatthe targetis;a "foreignpower'o' r an "agentof a foreignpower." FISArequiresthe courtto accepthe governmenta'sssertionthata targreits a foreignpoweror an agento1af foreignpowerunlessthatassertioins deerneltdo befaciallyerroneous. UnitedlSfafesv Mayfield5, 04F. Supp2d at 1032-33l.-heMuhtorovMotionat 1013hasiaddressethde issueof an assertiotnhata "targeti"s a foreignpoweror an agento1'aforeignpowera, ndthatdiscussiownillnotbe,repeate,hdere.
Comparedto any otheraccusedin thiscase, [\tlrJ. umaevis, basedupon the evidencee,xponentiallielysssusceptibloef beingconsiderreedithera foreign powerc)ran agentof a foreignpower. He has residedin the Unitedlitatesfor over 12 years,nearlyall of that time in the same apartmenitn Philladelphia, PennsylvaniaT. hereis no evidencethat Mr. Jumar-.hvad membershiipn or connectionto the IJU or any foreignpower,or that he engage<ijn any communicationwsith any representativoef the IJU or any terrorisot rganization duringtheentiretyof hisresidencein thiscountryo, r at anytinrebeforehe came to thiscountry.
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Tlre government'ssurveillancoef Mr. Jumaev,whichincludedobserving himtravelintgo hisworkplaceandcleaningthefloorsthere,wertchinhgimwalkin hisneighborhoosde, gregatinhgistrash,followinghimin a trolleyandtrainto his ISAPfacilitya, ndfurtivelay ccompanyinhgimin a trolleyrrideto themosquewhere he prays,do not reportMr. Jumaevbeing in thr-.presenceof any'terrorist organizettioann,ddo notconformto FISA'sminimizatiornequirelmenbtescauseof the totallyinnocuousnatureof the activitiesobsenred.Herert,he government evidentl'c/ hoseto go to the FISCdespitethe innocentnallureof the above evidenceandthe lackof any indiciathatMr.Jumae\l//r/asin anywayinrvolveind the acquisitioonr disseminatioonf foreignintelligerrcineformiatioanffectingour nationalsecurity.Thus, the primaryand sole purposeof the goverrnment's investig:ltioonf Mr.Jumaevevidentliynvolveda belieitfhathe \^/asengagedin or wasabout o commiat criminaol ffensei,ncludinag violatioonf'U.S.immigration laws. l-loweverc,learlyt,he governmenidt entified[VlrJ. umae\a/ s a targetin its FISAinrrestigatiosninceconversationosf hiswereinterceptefcrlomhis;phone. SeeJunraeCv omplainflt28 (callonJanuar2y 4,201':b2etweenMr.Jumaevanda knownassociatew,hichoccurredthreedaysafterMr.Muhtorov'asrrest).t]
8ObvioursMly,r.Jumaevis arguingintheblindhere. lltis notunreasonabtloe believellhaMt r.Muhtoromv ayhavebeenthegovernrnernsto'sletrargetof a FISC orderanrdthatconversationbsetweenhimandMr.Jumiaewv ereoverheard duringthetimeof and/orextension(os)f thatinitiaol rclerT. hegovernmenctould subsequenthlyavealsoobrtaineadseparateFISCorcledr irectedagainsMt r.
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Tlregravamanof the offenseallegedagainstMr.Jumaerivs his sendinga $300checkto Mr. Muhtorovon or aboutMarch1'0,2011,whichMr. Jumaev repeaterJelyxplainetdo the l:Bl wasin repaymenotf hisdebtto Mr.MuhtorovI.n its 49-piaragrap1h9, -pageComplaint,he affiantde'voteosne shortsentenceat the end of paragraph37 to Mr.Jumaev'srepaymenctlaim.The balanceof the Complainits a skewedrecitationof allegationisnterndintgo effecta connection betweenMr.Muhtoroavndthe lslamicJihandUnion("lJU")w, hichthe Muhtorov Motionr:hallengeas,nd an evenmoreattenuatedif, nrctotalabsentc,,onnection betweeMn r.JumaevandthelJU.
Tlnegovernmenst eeksto supportits belielt' hat the $300 checkwas intendedto be funneledto IJUby arguingthatMr.Jurnaevengagedin l.elephone conversationasndthe exchangeof e-mailswithMul'rtorruosving"code"language andthalthe codelanguagereflectedMr Jumaev's utrporot f the lJU. However, expressionosf supportin of themselveasre protectedspeechunderFISA. See 50 U.S.r0S. 1805(a()theF:lSCjudgemaynotconsidear UnitecSl tatespersonan agentof a foreignpower"solelyuponthe basisof ac;tivitiepsroltectebdy the First Amendrnenf(.e"mphasissupplied)),
JumaevwhileanyorderagainsMt r.Muhtorowv asals;oextantI.neitherinstant, Mr.Jumraeivs an "aggrievepdersonu" nderthestatut,eb,uthe is;compelletdo advancespeculativcehallengetso theFISAmaterialrsairithokunt owledgoefthe i n f o r m a t i ocno n t a i n e idn t h o s em a t e r i a l s .
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D. The FBI'sQuesfionableF SA lnvestigatiionof Mn Jumaev was Precededby the FBI'sHistoricalAbuses c>tfhe PAT'RIOTAct Her€,thereis an abundancoef historicaelvidenoaenda significanatmount of nonforeigsnurveillancienformatiornegardingMr. .Jumaevw, hichwrasnever mentionedin the JumaevComplaint.Thisraisestl'respecterand likelihooodf misrepresentatioannsdiormateriaol missionosf facttaiintintghe FISAmaterials. Thattaintcallsintoquestionthe legalityof the mannerin whic;hthe government hasprecedeidn itsFISAinvestigatioonf Mr.JumaevF. IISAandPatrioAt r:tabuses bythegovernmenht,oweverw, ouldnotbe novetlo thiscase.
1. The AbusesReporfedin ),2000 Startingin September2000, the governmenvt oluntarilydisclosedand confessr-'edrrorin some 75 FISAapplicationrselatedtlo majorterroris;atttacks directedagainstthe UnitedStates. See /n Re All MattersSubmitteftlo the ForeignlntelligenceSurveillancCe ourt,218F. Supp.2d 611,6;20(2002).Those errorsrerlatetdo misstatemenatsndomissionosf materiaflact,including: a. an erroneoustatemenint theFBIDirector'FsISAcertitficatitohnatthe targetof theFISAwasnotundercriminailnvesligiation; b. erroneousstatementisntheFISAaffidavitosf FBIagentsconcernintghe serparationf theoverlappinigntelligencaendcrinrinainl vestigationasn,d threunauthorizesdharingof FISAinformatiownithFBIcriminailnvestigators andassistanUt .S.attorneys; c. omissionosf materiaflactsfromFBIFISAaf idavitsrelatingto a prior relationshbipetweentheFBIanda FISAagenta, ndtheinterviewofa FISA targetbyan assistanUt .S.attorney.
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ld.;but seeUnitedSfafesv. Warsame5, 47F. Supp.2d 982,,987-8(8D. Minn. 2008)(courtpaidshortshrift o theabove-quoterdeports, tatingt;hatmisdeedisn priorFl{iAcaseswerenot in issue;rathert,heissuewiaswhetheer rrorscouldbe shownintheinvestigatioonf Warsamesoasto mandlatdeisclos;ureR).egrettably, sucha invitingchallengecan onlybe successfulleyr:ecutedby clairvoyantos,f whichlvlr.Jumaev'scounseils not one. Moreovert,he errorsof previousFISA and PatriotAct cases do not stop with the mea culpasadmittedto by the governnlenint 2000.
2. The AbusesReporfedin 21701 lnrMarchof 2001,thegovernmenret portedsimilamrr isstatemenitnsanother seriesof FISAapplic;ationins whichtherewere suprposedaly "wall"between separatrientelligencaend criminalsquadsin FBI tfieldoffice,sto scrc'enFISA interceptsw,henin far:tall of the FBIagentswereon the samesquadandall of the screreninwgas doneby the one supervisoorverseeingbothinvestigations. ForeignlntelligencSe rvrveillancCeourt,218F. Supp.2d at621,
3. The AbusesRepoftedin 21J06 The March8, 2006Departmenotf JusticeO, fficeof the InspectoGr eneral (hereinerf"teOrlG") Reportlo Congresosn lmplementettioofnSiectio1n001of the USA PatriotAct des;cribedcertainfailuresof the FBI to adhereto FISA's requirernentsS. eetJniterSl fafesy. Rosen4, 47 F. Supp2d 538,552(E.D.Va.
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2006).Thesefailuresareidentifieidn the OIG'sMarch8, 2006Reporat t 24-31, Sec.V, C. andconcern[hg r/e?rs2004and2005,ExhibiTt . 'theyfallintothree categoriesn,amely(,1)imprc)peurtilizatioonf authoritieusnderFISA;(2)failureto adhereto AttorneyGeneralGuidelinesor implementinFgIll policy;and (3) impropeurrtilizatioonf authoritieisnvolvingNationaSl ercuritLyr:tters("NSLs")/.d" at24.
Thefailuresencompasseadwiderangeof intelligencaectivitieussedbythe FBl, includingpossibleviolationsgenerallyrelatedto "ov'er-collectioann"d "overrurts." An "over-coll€rctiorne"fers to informationgaltheredwithin the authorizepderiodof a FISCclrdebr utoutsidethescopeor intentof theorder.An "overrunrte" fersto investigativaectivityconductedoutr;idethe timeperiodof the FISCorderor outsidethe authorizedperiodof investilgatiavre:tivityT.hreReport revealectlhat the averagedurationof over-collectionasnd overrunswas approxirnate2l4y daysin 2004and16daysin2005. ld.at24-25.Thedurationof possibleviolationosf theAttorneyGeneraGl uidelineosr FBIin'rplementipinoglicy governingnationasl ecurityinvestigationasveraged1i35daysin 2004and 130 daysin12005ld..at25. Approximately,p5e4rcentotfl'rereportsexaminebdythe OIG for 2004 and 41' percelnot f the reportsexaminedfor 2005 fell into the categoroyft impropeur seof FISAauthoritielsd. at27.
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Thenatureof the informatiotnhatmayhavebeenillegallcyollecterind2004 and2005includedtelephonrc=alls,audiorecordingsfa, csimiki:nterceptse,-mail communicationfsin, anciarl ecordsa, nd creditreports. ld. Discoveryreceived from the governmento darteby Mr. Jumaevincludesb, ut is not limitedto, telephoncealls,audiorecordingse,-mailcommunicationtse,,xtmessagesa, nd financiarlecords.
Thecourtin Rosenchraracteriztehde failuresenumerateidn theforegoing 2006OIGreportas generaal ssessmentasnd "no moreprobativeof a failureof minimizatiointhiscasethana generasl tudyof errorscommittedovera periodof yearsin basebalwl ouldbe probativeof whethererrorsoccurredin ia specific game."Rosen4, 47F. Supp.2d at 552.Thedifferenceh,oweverb,etweenRosen andthis;caseis that Mr. Jumaevhas shownminimiziatioan clotherfiailureass chronicleidn Sectionlll, supra,andinthisSectionlV. Ivloreoveurn, likethelimited historyof 2004and2005failuresshownin Rosent,he FBI'sahruseosf thePatriot Actfrom2000througl'2r 0'11havebeensystemicandrreflectivoef an ongoingand continuaplatternof failuresto adhereto therequiremenortfsFISA.
4. The AhusesReporfedin 2008 A reportreleasedon March13,2008by the OIG on the FBI'suse of NationaSl ecurityLetters("NSLs")revealeda systemicwidespreadabuseof poweraccordingto the ACLU,which,amongotheronganizationhsa,s playeda
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roleof "watchdogr"egarclintghe government'asbuserofPatriotAct Powers.See ExhibiltJ. TheJumaevCom;plaiantfl 13statesthat"[r.r]poonbtaininagppropriate authorit't/h. e FBIhas lawfullysearchedandobtainedinformatiotnhroughvarious investigativteechniques.N" owhereh,oweverd,oestheComplraiennt umerattehe variousinvestigativtechniqueustilizedby the FBl.As the ACLUpressrelease revealst,he FBI'spowerto collectprivateinformatioangainstindividuerblsy the issuancroef NSLswithoutccrurat pprovawl aswidelye,xpandebcyl the IPATRIOT Act. ld.
TlneOIG'sMarch13,2008reportwas a follow-upto its initialrelporot f a yearearliewr hereintheOIGfound"theseriousmisuseof NSLauthoritiesS."eeA Reviewof the FBI'sUse of ,NationaSl ecurityLetters:Assessmentof Oorrective ActionsandExaminationof /VSLUsagein 2006.Officr:of the lnspectoGr eneral, Marchi1008p, p. 1-3,6-9, tlxhibitV. Althoughit notedthat the FBI and the Departmenit.,e.Departmenotf Justice("DOJ"h) admadesigrrificanptrogressin implemerntitnhge recommenrlatiofnrosmthe March2007r€porrth, e OIGfound, howevert,hatthe FBI'sreviewof itsownfieldfilesdidnotcaptureall NSiL-related possibleintelligencveiolationsand therefore"did not providea fully accurate baselinefr,om whichto measurefutureimprovemenint conrpliancwe ith NSL authorities/.d at 8. The CllGconcluded",theresultsof the FBI'sfieldreview likelyunderstatetdherateof trlossibvleiolations.l"d.
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5. ThteAbuses Reportedin 2(111 Finally,as recentas approximateloyne year ago, still otherforms of PATRIOTAct abusesha'vecometo the limelighitn spiteof the FBI'sintent o shieldprotentiabl usesfromthe publiceye. WhenFBI DireotoRr obertMueller testifiedbeforethe SenateJudiciaryHearingon or :lboutMarch30, 2011,he reportedldyeniedthatthe thrreeabout-to-be-expirpinrogvisionosf the PATRIOT Act had beenthe subjectof any negativereportsof a findirrgof abuse. See ExhibitW. In at least one "John Doe" roving wiretap surveillerncteh,e conversationosf "youngchildrenw" erepurportedlmy ronitorefodr approximately fivedays. Id. BothMr.JumaevandMr.Muhtorohvavrechildrenb, utit is doubtful t h eg o v e r n m e nwti l lp r o d u c ei n d i s c o v e rayn yi n t e r c e p t etredl e p h o n icco n v e r s a t i o n s thatma'yinvolveeitherdefendantc'shildrenT.headversariaplrocessh, oweveris, betterdesignetdo flushoutsuchabusesi,f theyoccurrc'd.
E. WithouliDisc/osureof the FISAl[aterial:E, the Goverfifit€n't'sAbuses will Continuewith lm,punity Mlr.Jumaevis mindfutlhatapparentlnyo trialcourthasfoundit necessary to discloseFISA materialsto a criminaldefendetntto iassistthe court's determinatioonf the lawfulnessof eitherelectronics;urveillanceor physical searcherusnderFISA.9ss UnitedSfafesv. Mubayyid5, 21F. Supp.2d 125,130
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(D. Mas;s2. 007)(collectincgases).eHowevern, oneof thosecasescollectedin Mubayy'iadnd decidedsincethat decisionhave madethe l<indof compelling showingfordisclosuraes Mr.Jumaevhasmadehere. Furtheri,t is prec;isewlyhy thisunb,lemisheredcordby the governmendtemandsr:vencloserscrutinyby the reviewingcourt.A perpetuapl rophylactischieldof F:ISAmarterialpsnovideas complacenatndfertileenvironmenfot r the governmentot do andsayanythingit wantsin a FISAsettinge, spresis;w1therethe governrnenktnowsits ar:tionws ill neverseethelightof dayexcepftora futuregenericOll3reporot rACLUoutcry.
Tlne ACLU and other private organizationscan seek to be effective watchdogosverFBIabusesof the PatrioAt ctandthe OIGcansumrnariztehose abusesfor Congressb, ut onlythe trialcourtcanensurrtehe A,ct'scompliancien anyparticulacrase. "lf onef,eaturoef thejudiciaryis essentiaal boveallothersi,t is that 'thereis no liberty,if the powerof judgmentbe not separatedfromthe legislativaendexecutivepowers."l'n theMatterof LocitlRu/esof Practit;eDistrict of ColoradoJ,. Kane,dissentingfrom the amendmenttso the LocalRulesof Practicee,ffectiveDecembe1r , 2011.
Ampleevidencehas beenpresentetdo thisCorurot f long-termsignificant abusesof FISAby the executive'usnbridledand clandestinpeowers. Specific
nMrJ. umaev'sresearchhasnotuncoveredanyreportedclasesinceMubetyyid, suprat,hathasorderedsuchdisclosure.
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instanceosf overreachinagrrdfailureof minimizatioina,lacko1'anyconnectiotno or relationshiwpithany allegedforeignpower,and materiaol missionfsromthe FBI'saccusatorcyomplaircrtallintoquestionthegovernmentc'sonducht ere.The timehasnowripenedforthoseabusesandpowersto lbeaidedb, ytheadversarial process.TheFISAmaterialms;ustbe disclosedO. thernruiKse.a, fka'JsosefK.will becomem, oretruththanfiction.
F. Disclosure ctfthe FISAMaterialscan Occur under AppropriateSer;urityMeasuresand ProtlectiveOrders As providedin 18 U.S.CS. 1806(fd),isclosuroe1'FISAmaterialcsanoccur underatppropriatseecurityprocedureas nd protectivto-'rders. The Courthas alreadyconductedex pitrteCt IPA hearingsfor e?c'hside underappropriate precautions.A ProtectiveOrder is currentlyin place designedtlrt protect disclosureand disseminationof the government'sdiscovelry. Government personneiln, cludingprincipaol fficialsin the AttorneyGeneral'soffice,Assistant UnitedSitateAsttorneysD, OJcounsefloritscountefterrorisdmi'yisiona,ndSpecial Agentsof the FBIandotherlawenforcemenetntitiesh, ravemostlikelyassistedin the preparationp,resentationa,nd disseminatioonf tl"reFISAmaterials;T. hose materialhsavethusbeenscrutinizeadndreviewedby a numbelorf indiv'iduaolsn the prosecution'sside. Those individualshave presumabllmv ainterinetdhe confidentialiatynd securityo1'thesematerialsl.t is notpresumptuoutos contend thatdefensecounseflor Mr.MuhtorovandMr.Jumae\/a, s officefsof threCourt,
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cannotlikewisemaintainthe confidentialitaynd secunityof tl^rosematr:rialsand abideby any'securityprecarutionasnd/orprotectivoerdersinrplementebdy the Courtfcrrreviewof the same.
G. Prayerfor Disclosureof FISAtMaterial Basedon the forego,ingreasons,Mr. Jumaevseeks discoveryof the followinmg atrerials: 1. l\ll FISAapplicettioncse, rtificationasn, d affidavits ubmittedto the FISCin connectiown ithtlregovernmenti'ns vestigatioonf Mes;srsM. uhtoroavnd J u m a e vi n t h i sc a s e ; 2. Any and all transcriptsof any ex parte proceeriintghat occurred b e f o r et h e F l { i Ct h a ti s s u e de r n yF I S Ao r d e r si n t h i sc a s e ;a n d 3. l\ll records concerning minimizationprocerduresohd the implemc'ntatiocflsnuchprocedures. \/. PRELIMINARCYI.IALLENGTEO FISA-AGQIUIRIEEDVIDENGE:
SUPPRESSIOANND UNCONSTITUTIONALI]IY As has beenpreviousldyiscussedth, e requirernenthtata defendanmt ust file a nnotionto suppressbeforeobtainingFISA discoveryrequiresdefense counsetlo filear suppressiomn otionwithoubt eingfirstprovidecthl eopportunitoy discoventhe underlyingfacllsthat would supporta suppressionrnolion. Mr. JumaevjoinsMr. Muhtorovin assertingthatsuppress;iosnhouldbe gnantedon groundsthatincludeb, utarenotlimitedto:
.,1

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1. 1-hegovernmenfla. iledto complywithstatr"rtopryrocedurelseadingto issuancoef FISAordersauthrorizinsegarcheasnd/orsurveillance;
2. The government'aspplicatiotno FISCfailedto t-'stabllsphrobable causetlratthetargetwaseithera "foreignpower"or an "agentclfa foreignpower";
3. Theapplicatioinandsupportindgocumentdso notestablisthhateither a "primarpyurposeo"r a "significanpturposeo"f theFIS}Aorderis to obterifnoreign intelligencineformatio; n
4. l-he FISAapplioatioanndsupportinmg atc'rialasre unconstitutionally overbroaadndlackedparticulari(tsyeeadditionadliscussiotnhatfollows');
5. l-he PATRIOTact amendmentto FISA that lolveredthe "foreign intelligencienformationre" quiremenfrtomthe "primarrpl urpos;€to" a "significanl purposei"s unconstitutionaarslappliedto Mr.Jumaeva; nd
6. Mr. Jumaevreservesthe rightto assertsupprr:ssiocnhr allenges baseduponwhatmightbe revealedinfuturediscovery.
Ctnthe issueof FISA'sunconstitutionalMityr,. ,Jumaeuv rgesthr-c. ourtto adopt the reasoningin Mayfieldv. UnitedSfafes,which held that FISA,as amenderbdy the PATRIOTArctw, as unconstitutionoanl itsface. (Mayfieldwasa cwilBiv,enasr;tiont;he NinthCircuidt idnotreachthe nreritsof tlreconstitutionality issuebu.caustehe circuitcourtonlyreversedon the issueof standing)l.t is also importantto notethattwo ciesesthataddressedconstitutioncahl allengetso the post-PA,TRIOATct FISA'srerductioonf "primarypurporseto" "significanpturpose" didnotrleterrninwehethetrhreamendedFISAwasunconstitutionbaelcarustehose casesheldthattheirfactssatisfiedthe '*primarpyurposetest." ,SeeUnitedS/afes v. Stewiar5t9, 0F.3d93 (2!d{3ir.2009);UnitedSfafesvr.Hammoud,3BFl .3d316
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(4thCir.2004).MoreoverSrlewafoi undthatUnifedSfafesv. Duggan,743F.2d 59 (2dCir.1984)wascontrollinpgrecedenint thecircuiet venthoughQugganwas d e c i d e oble f o r et h e P A T ' R I O T A cwta se n a c t e d .
VI. MOTIONFORLEAVETO FILEA FRANKIMS OTIONAFTER RECEIPTOFALL THEGOVERNMENTD'$ISCOVERY
Dtisclosuoref FISAnnateriails alsonecessartyo permitclefens<e;ounsteol evaluataendfilea motionto suppresus nderFranks,vD. elavrare,43U8.S.154 (1978)w, hichupheldthe rightof the defendantto challengethe valirlityof an affidavitn supporot f a searrowharrant.UnderFranksa;,defendanits entitledto an evidr:ntiarhyearingif the veracitychallengeis supprertgbfl)' a specificofferof' proofwithaffidavitsthatallegesa deliberatefalsehoodof ? l'€c;klesrslisnegarfdor thetruth. lf theallegationasreprovent,hewarranits to be examinedfora finding of probablceauseabsenltthefalsestatements/d. .at 17'2.
\A/iretaappplicationasndaffidavitasresubjectto therequiremenotsf Franks anditsprogeny.see unitedsfafesv. Green,175F.3d822,B',2(8101ch;ir.1999); see a/s<Ur nitedSfafesv. R,amirez-Encarnaci2o9n1, F.3d12'19,1223(10thCir. 2002). Thus,if "a wiretapaffidavitomitsmateriailnformationthat wor.rldvitiate eitherthenecessitoyr the prrcbablceauserequiremenhtsadit beenincludedt,he resultanetvidencemustbesuppressed.G" reen1, 75F 3d at 82:8.
Adefendanits entitledto a hearingunderFranksaftermakinga srubstantial preliminarsyhowingthat theraffiantincludeda falsestatemenitn thr-w. iretap
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affidavite,itherknowinglaynrCintentionalolyr withrecklessdisregarfdorthetruth, and thatsuchmisstatemenwtas necessaryto the finrdinogf probablecauseor necessity.See UnitedSfafravs. Small,229F. Supp.2d 1166,11Eg(D. Colo. 2002). A materiaol missionin the wiretapaffidaviat lsoentitlesa defendantto a Frankshearingif thesamererquisistehowingis made.Green1, 17F5.3diat828.
Courts have explicitlyheld or assumedthat Franksappliesto FISA surveillernacnedsearchesT. 'hecourtin Dugganreasonedthat:
FISAcannoto, f coursc'g, ivethe governmenctarteblanc;hteo obltain a surveillancoerderin violationof a target'srightto dueprrocesisa,nd an applicatioinnwhichtherequisitreepresentatiowns€r€frraudulently madewouldconstitutseucha violationH. oweverw, e wouldthinkthat sltcha dueprocessargumenat s to FISAordersshouldbe governed b'ythe principleset forthin Franksv. Delaware,43BU S. 154lvith r e l s p e c tt o F o u r t h A m e n d m e n t r e q u i r e n r e n t sT. h u s , t h e rerpresentationasnd certifications ubmittedin support of an a;pplicatiofonr FISAs, urveillancsehouldbe presumedvalid. Sieeid. all 171. To be entitlerdto a hearingas to tlre validityof thrcse presentationtsh,e personchallengintghe FISAs;urveillanwceouldbe rerquiretdo make "a substantiapl reliminarsyhowingthat a ferlse statemenktnowingl,aynd intentionalloyr, withrecklessriisregarfdor thretruth,was includedi"n theapplicatioanndthiatheallegedlfyalse slatementwas "nece{isaryt"o the FISA Judge'sapprovalof the applicationId. .at 15;5-ti6. 743F.2d59 at 77; see alsoUnitedSfafesv. Abu-Jihaad6,30 F.3d11021"3, 0(2d Cr. 2010)("1:lSAwarrantapplicationasre subject o 'minimasl crutin'yby the courts,b' othuponinitiapl resentatioanndsubsequencthallengeO. f coursee, ven minimasl crutinyis not troothless..l.n. considerincghallengetso FISACourt ordersh, owever',therepresentatioannsdcertificationssubmitt,einldsupporot f an
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applicatiofnor FISAsurveillarnscheouldbe presumedvalid'by a reviewincgourt absent a showingsufficienrtto trigger a Frankshearing."(internraclitations omitted));united Sfafes v. Damrah,412 F.3d 61i3,624-iLs(6"' cir. 200s) (assumiinagrguendoFrankrasppliesto FISAproceedirrgsa)f,frt in pitrtandrev'd inpartc>ontherground,6slEF.3d35 (1" Cir.2011)l;JnltedS/afesv. SihneweNr,o. 07-459(RBK)2, 008u.s. Dist.LEXIS112001a, t *36-37(D.NJt. Aug. 14,2oo}) ("Thereis no bindingauthorityestablishintghatFranh:asppliesin the r:ontexot f' FfSA;howevers, everalcourtshaveconductedFranl'tsanalysesin FISAcases eitheralffirmativeolyr arguendo").
An effectiveand meaningfuFl rankschallengecannotbe madeuntilMr. Jumaevhas receivedall rcfthe governmentd'siscoveryin this,matter. lt is only aftera reviewof thatmateriacl anMr.Jumaevthenproperlymakehispneliminary showingolf the entiretyof the recklesslmy adefalsestatementasnd/ormaterial omissionfsromthe FISAapplicatioinn orderto obtaina Franksh;earing.lf courts foreclosea Frankschallengeorn the basisthatan accusedhasfailedt,omakea sufficienprrteliminarsyhowingi,t is becausesucha showingis impossibkto: make withoukt nowledgoef thecontentsof theFISAapplicati<lnS.ucha judiciapl osition thenrenrdervsacuousa chalk-.nguenderFranks.
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A'ccordinglMy,r. Junraevrespectfullryequestsleaveof the C;ourtto filea Franksmotionwithina reasonabletime after receiptof all the government's discoveriynthismatterandforsuchfurtherelieaf stheCourtnnaydeenrproper.
VII. CONCLUSIONS A. D)isclosuroef FISAMaterials lVlrJ. umaevis an aggrievedpartybecauseconversationinswhichhewasa partywithMr. Muhtorovoverthe latter'sphoneweresubjecto FISAelectronic surveilletncHee. is alsoan ial3grievepdartybecausehisp; hone,waaslsosubjectto FISAsurveillance. No evidenceexiststhiatMr. Jumaevis a foreignpoweror an agentof a foreignpower. Tlhephysicasl urveitlarrcoef Mr.Jumaevdid notrevealernyacltiviltioefshis thatinvolvedhimacquiringor participatining the acquisitioonr disseminatioonf foreignintelligencienformatircthnat affectedour nationasl ecurity.The primary andsolepurposeof the F'l$l\surveillancoef himwasto obtairer videnc;tehathe wasengagedor seekingto engagein criminaal ctivityi,ncludinigmnrigratiolanw violations. Thegovernmenfat iledto adhereto FISA'sminirnizatiorenquirementsT.he governnlentf'asiluresin its investigatioonf Mr.Jumae'wv arrandrtisclosuroef the FISAm:lterials.
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B. Io Suppressand to Find Uncons;titution,al For the reasonsstated in both Muhtorov'slulotionand Mr. Jumaev's argumentsth, eCourtshouldgrantthesuppressioonf iallF|SA-acquireedvidence anddec;larFeISAunconstitutionaaslappliedto Mr.Junraev.
C. For Leaveto Filea FranksMtotion Forthe reasonsandargumentasdvancedby Mr.Jumae"/t'h, eCorursthould allowMr.Jumaevto filea F:rankcshallengaefterdisclosuroef the FISAmaterials andthegovernmentd'siscovery. \ /HEREFOREM, r. "lumaevpraysas describeradboveand lbr whatever furtherelietfheCurtmaydeemproper" DATED: July30,t1012
s/Qav_tdEjSavit_z_ D a v i dB . S a v i t z gggl Bthst., #2500 DenverC, O 80202303-825-3109 .gavmaster(Daol.cor[
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CERTIF'ICATE OI' SEIIVICE I herebycertifythat on this 30tr'dayo1'July2012,I electronicallyfiiltedthe fbregoingwittL the Clerkrof Court using the CM/FICIFsysternwhich will sendnotification of sur;hfiline to the: followinl; email addresses: Gregory Allen Holloway Email: Gregory.Hollowgl'@usdogj.ov Maureen Carle Email: Maureen.Car[q!fu sd<r.jgot, Brian R.l,eedy EmaiI: Brian_l-eedlu(dlLrXg Warren R. Williamson Email: Rick_Wil Iianrson(@_fodl.g
s / P a tA u s l i n PalAustin, Paralegatlc David B. lSavitz
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 Case 1:12-cr-00033-JLK Document 196 Filed 09/24/12 USDC Colorado Page 1 of 5
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Case Number 12-cr-00033-JLK UNITED STATES OF AMERICA,
Plaintiff, v.
1. JAMSHID MUHTOROV, and 2. BAKHTIYOR JUMAEV,
Defendants. ________________________________________________________________________
ORDER ON PENDING MOTIONS REGARDING FISA-ACQUIRED EVIDENCE ________________________________________________________________________ Kane, J. This matter is before me on the following Motions: • Defendant Muhtorov’s Motion to Suppress FISA Acquired Evidence for Purposes of Detention (Doc. 14) and related Supplement (Doc. 125); and • Defendant Jumaev’s Combined FISA-related Motions: (1) to Adopt Defendant Muhtorov’s Supplemented Motion to Suppress; (2) for Disclosure Of FISA Materials; (3) for a Preliminary Challenge To Suppress FISA Acquired Evidence; and (4) for Leave To File A Franks Motion After Receipt All The Government’s Discovery (Doc. 157). Defendants seek disclosure of all applications, orders, and related materials obtained pursuant to the Foreign Intelligence Surveillance Act, as amended (“FISA”); suppression

Case 1:12-cr-00033-JLK Document 196 Filed 09/24/12 USDC Colorado Page 2 of 5
of information obtained or derived pursuant to FISA; and leave to file a motion for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). In consequence and pursuant to statute, the government has filed an affidavit in which the Attorney General of the United States swears that disclosure of the FISA-acquired evidence or an adversary hearing would harm the national security of the United States.
As the statutes require, I have conducted an ex parte and in camera examination of the Motions, the government’s unredacted and sealed brief in support of nondisclosure, along with the affidavits and documents filed under seal and relevant to the Defendants’ Motions. From this examination and review of applicable authorities cited by the government and the Defendants, as well as authorities produced by my own research, I conclude on that basis the electronic surveillance and physical searches at issue were lawfully authorized and conducted, that the FISA materials need not and should not be disclosed in the interests of national security, and that the fruits of the electronic surveillance and physical searches should not be suppressed at trial. Therefore, the several motions are DENIED.
First, I make note of a general reluctance on my part as a judge to engage in any ex parte judicial activity and do so only when required by law. While the responsibility of defense counsel to protect the rights of defendants cannot be overstated, it is important to note that in the context of defendants’ rights to discover FISA-acquired evidence, it is not an exclusive responsibility. The court itself is charged to protect the rights of defendants and to assure fairness in all proceedings under attendant circumstances. The ambit or
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extent of counsel’s responsibility is not coterminous with that of the court and where Congress has determined in the best interests of national security to limit counsel’s scope of inquiry, the court’s vigilance in protecting defendants rights and insuring fairness rises to a level of scrutiny. I have undertaken this ex parte review required by 50 U.S.C. § 1806 (f) under that standard. It is the same standard used by the Foreign Intelligence Surveillance Court (“FISC”), meaning that I may not second-guess the Executive Branch’s certification that the surveillance has a foreign intelligence objective. In re Grand Jury Proceedings of the Special April 2002 Grand Jury, 347 F.3d 197, 204-05 (7th Cir. 2003). My charge is to conduct a de novo review of the FISA materials to determine if the surveillance authorization was based on appropriate probable cause. If disclosure of the FISA materials is not necessary to make an accurate determination of the legality of the collection and if I find the surveillance was lawfully authorized and conducted, the motion must be denied. 50 U.S.C. § 1806(g).
Having concluded my review under 50 U.S.C. § 1806(f), I do not find it necessary to disclose any of the documents or orders incident to the FISA applications. There is no indication of any irregularities, misrepresentations of fact, vague identifications of the persons involved or any significant amount of non-foreign intelligence data that would call into question adherence to the minimization standards contained in the FISA orders. The attested facts support a finding of probable cause to believe that Defendants Muhtorov and Jumaev, the targets of the requested surveillance, were agents of a foreign power as defined by statute. I find the application and attendant affidavits complete and
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in proper form and that as to the one Defendant who is a United States person (for that matter as well the other Defendant who is not a United States person), the certifications are not clearly erroneous.
In sum, I find that all of the FISA orders and applications concerning these Defendants meet the standards set out in 50 U.S.C. § 1801 et seq. While I do not find it necessary in this case to resort to a finding of a “good faith” belief on the part of the government agents involved in obtaining the FISA warrants, there is no indication whatever of a lack of such good faith. Moreover, I find these same persons made a good faith effort at minimizing information concerning United States persons that was acquired through the surveillance efforts. Therefore, I conclude the FISA surveillance was lawfully authorized and legally conducted. There is no basis for permitting defense counsel to review the FISA materials and no need to order a Franks hearing.
Finally, I find no basis for deviating from the near unanimous view that FISA does not violate the Fourth Amendment. It is conceivable that an argument could be made that FISA cannot be used to circumvent the Fourth Amendment because the probable cause standard to obtain a search warrant for a criminal prosecution is more stringent than for a FISA order, but that situation does not exist here where the electronic surveillance is directed at the activities of a foreign power and its agents and the criminal prosecution is merely incidental to that dominant purpose.
For the reasons stated, Defendant Muhtorov’s Motion to Suppress (Doc. 14) and Supplement (Doc. 125), and the Combined FISA-Related Motions of Defendant Jumaev
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(Doc. 157) are DENIED. Dated September 24, 2012.

s/John L. Kane SENIOR U.S. DISTRICT JUDGE

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 Case 1:12-cr-00033-JLK Document 653 Filed 10/20/14 USDC Colorado Page 1 of 31
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Case No. 12-cr-00033-JLK UNITED STATES OF AMERICA,
Plaintiff, v. 1. JAMSHID MUHTOROV, and 2. BAKHTIYOR JUMAEV,
Defendants.
DEFENDANTS’ JOINT MOTION FOR NOTICE OF THE SURVEILLANCE TECHNIQUES UTILIZED BY THE GOVERNMENT IN ITS INVESTIGATION
OF SAID DEFENDANTS
JOINT MOTION The defendants, Jamshid Muhtorov and Bakhtiyor Jumaev, by and through their counsel, move this Honorable Court to require the government to provide notice of the surveillance techniques utilized by it in its investigation of said defendants, and they inform the Court as follows:
INTRODUCTION Recent disclosures have shown that the government uses a wide array of surveillance programs to monitor the communications and activities of its investigative targets and millions of others. Under various authorities, the government collects in bulk the content of phone calls in and out of certain countries, the content of emails, location data, electronic address books, calling records, and records of internet activity. Many of these surveillance programs are operated by the Executive Branch without congressional
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or judicial oversight. They have never been reviewed by any court, let alone been the subject of public or adversarial judicial review. All of them are warrantless and conducted without a finding of individualized suspicion.
Notice of the government’s reliance on these surveillance techniques is essential to the due process rights of the defendants in this case. Without notice, the defendants cannot test whether the government’s evidence was, in fact, lawfully obtained—or whether government surveillance conducted without a warrant and without probable cause violated the defendants’ rights. Notice of surreptitious electronic surveillance is routinely required in criminal cases. Courts confronted this question with the advent of wiretapping decades ago and concluded that the government could not criminally prosecute an individual while keeping the sources of its evidence secret. Instead, defendants are entitled to know how the government monitored their communications and activities, and then to test—in an adversarial proceeding—whether the government’s evidence is derived from that surveillance. See, e.g., United States v. U.S. District Court (Keith), 407 U.S. 297 (1972); Alderman v. United States, 394 U.S. 165 (1969).
The government today has sought to carve out an exception to this due process requirement. The government has routinely failed to provide notice of its surveillance activities to courts and criminal defendants in cases like this one—thereby avoiding judicial review. It is withholding notice, reports show, based on a narrow interpretation of its legal obligations.
Mr. Muhtorov and Mr. Jumaev respectfully request that the Court issue an order requiring the government to provide notice of: (1) each surveillance technique it used to obtain information about the defendants’ communications or activities in its
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investigation; (2) the timing or duration of that surveillance; (3) the legal authority relied upon; and (4) the evidence obtained or derived from that surveillance. I. The Government’s Investigation of the Defendants
Defendants have been provided only limited discovery, but it is already clear that the government’s investigations of Mr. Muhtorov and Mr. Jumaev involved extensive monitoring of their private communications and other activities. Yet the government has never explained how it obtained much of this information, let alone which legal authorities provided the basis for its surveillance of the defendants. Defendants summarize certain elements of the government’s wide-ranging investigation here.
In 2005, the government designated the Islamic Jihad Union (IJU) in Uzbekistan as a terrorist organization. Muhtorov Compl. ¶ 11 (Doc. 1). Mr. Muhtorov came to the United States as a refugee in 2007; Mr. Jumaev moved to the United States in 2000. From the time that both men arrived in the United States, they communicated with others— individuals located in the U.S. and abroad—by phone, Skype, and email.
Mr. Muhtorov and Mr. Jumaev first met in November of 2009, when Mr. Muhtorov stayed at Mr. Jumaev’s home in Philadelphia for several weeks while Mr. Muhtorov attended truck-driving school. Shortly after Mr. Muhtorov left Philadelphia, immigration authorities arrested Mr. Jumaev in February 2010 on the grounds that he had overstayed his visa. At that time, according to the government’s criminal complaint, Mr. Jumaev provided authorities with his mobile phone number. See Jumaev Compl. ¶ 13 (Doc. 1, Case No. 12-mj-01039-KLM). Mr. Jumaev was released on bond from immigration custody in April 2010. Family and friends, including Mr. Muhtorov, contributed funds to help secure Mr. Jumaev’s release. Soon after the time of Mr.
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Jumaev’s release through the beginning of 2012, the defendants communicated frequently over the phone and occasionally via Skype.
The government’s criminal complaints, as well as documents that it has produced in discovery thus far, show that its investigations of the defendants have relied on extensive surveillance of their internet-based communications and activities. According to its criminal complaint, the government monitored Mr. Muhtorov’s communications with the website administrator and facilitator for www.sodiqlar.com, an Uzbek language website that the government alleges is affiliated with the Islamic Jihad Union in Uzbekistan. See Muhtorov Compl. ¶¶ 10, 12, 15–17, 26–27. The limited discovery provided to defendants to date shows that the government intercepted communications between Mr. Muhtorov and the www.sodiqlar.com website administrator from January 2011 to January 2012. In addition, the complaint describes the government’s monitoring of at least two email accounts allegedly belonging to Mr. Muhtorov. See Muhtorov Compl. ¶ 12. The government also tracked Mr. Muhtorov’s online searches, including his use of a number of travel websites in May 2011 and January 2012. See id. ¶¶ 19, 31–32. Likewise, it appears to have tracked internet searches conducted by Mr. Muhtorov’s wife. See id. ¶ 22.
The government similarly tracked and monitored Mr. Jumaev’s internet communications and activities. It was aware of Mr. Jumaev’s visits to www.furqon.com, a website allegedly associated with the IJU; his watching of videos on political and religious matters; and his alleged commenting on YouTube videos. See Jumaev Compl. ¶ 29. It has also produced intercepted communications between Mr. Jumaev and third
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parties—including his wife and children—who reside in various foreign countries, including Uzbekistan.
The government likewise tracked and monitored the defendants’ phone calls, including those within the United States. See, e.g., Muhtorov Compl. ¶¶ 12, 14, 21–24, 28; Jumaev Compl. ¶¶ 13, 16–18, 20–26, 28. As shown by the government’s productions to date, the government intercepted hundreds of phone calls between January 2011 and January 2012 that involved Mr. Muhtorov. Many of these communications were with Mr. Jumaev.
The government also tracked and monitored the defendants’ financial transactions. Beginning in 2007, Mr. Muhtorov used MoneyGram and similar services to send money to individuals both inside the United States and abroad. Likewise, from the time of his arrival in the United States in 2000 through the time of his arrest in this matter in March 2012, Mr. Jumaev regularly used similar services to send money to individuals abroad. The government plainly collected financial records and information about the defendants. See, e.g., Bates No. G_000303 (describing an FBI trash cover effected outside of Mr. Jumaev’s residence on January 17, 2011, in which agents reported finding a MoneyGram receipt for $300). According to its criminal complaint against Mr. Jumaev, the government obtained bank records showing that a $300 check was made out to Mr. Muhtorov by a friend of Mr. Jumaev in March 2011. See Jumaev Compl. ¶ 35.
Although the unclassified documents produced in discovery go back no earlier than January 2011, there is reason to believe that the government was monitoring the defendants’ communications and activities far earlier—even prior to January 2010, when immigration authorities commenced removal proceedings against Mr. Jumaev. Of course,
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these removal proceedings did not occur in a vacuum, but likely occurred in parallel with the government’s criminal investigations of each defendant. In both its criminal investigation and the removal action, the government most likely relied on information gathered through surveillance of Mr. Muhtorov—and by extension, surveillance of Mr. Jumaev—before January 2010. II. The Government Is Withholding Notice from Criminal Defendants Based on
Secret Legal Interpretations Over the past year, it has become increasingly evident that the government is withholding notice of its reliance on controversial spying programs in criminal prosecutions. In doing so, the government is preventing defendants from challenging sweeping new forms of surveillance, often conducted without any warrant or prior judicial review. Recent reports indicate that the government holds an unjustifiably narrow view of its notice obligations, even when it relies on novel and legally untested surveillance programs in criminal prosecutions.1 This prosecution has already become a case-in-point for the government’s failure to comply with its notice obligations. Mr. Muhtorov learned that he had been surveilled by the NSA under the FISA Amendments Act (“FAA”) in October 2013—but only belatedly and only after the government had failed to provide such a notice to any defendant for five years. During that time, the government had avoided court review of its surveillance activities by relying on an undisclosed and “narrow understanding” of its
1 See, e.g., Charlie Savage, Reagan-Era Order on Surveillance Violates Rights, Says Departing Aide, N.Y. Times, Aug. 13, 2014, http://nyti.ms/1wPw6l0 (“Savage 12,333 Article”).
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notice obligations.2 The government altered course last year, but only after the Solicitor
General had inaccurately described the government’s FAA notice policy to the Supreme
Court.3 Following public outcry, the Solicitor General apparently concluded that the
Justice Department’s FAA notice policy “could not be legally justified.” Savage FAA
Article. Mr. Muhtorov then received what the government calls a “Second FISA Notice”
(Doc. 457)—more than a year-and-a-half after the government filed its original notice in
this case.4 Four other defendants around the country have also received belated notices,
almost all of them after they had already been tried or convicted.5
The public record shows that the government continues to withhold notice of
many other controversial surveillance programs. In particular, in a recent report,
2 Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. Times, Oct. 16, 2013, http://nyti.ms/1r7mbDy (“Savage FAA Article”). 3 See Savage FAA Article; Adam Liptak, A Secret Surveillance Program Proves Challengeable in Theory Only, N.Y. Times, July 15, 2013, http://nyti.ms/12ANzNM. 4 The government has repeatedly offered misleading explanations for its long-running failure to provide notice. It has told this Court and at least three others that, prior to 2013, it had not “considered” the issue of FAA-derived evidence. See, e.g., Gov’t Unclassified Mem. in Opp. to Def. Mot. to Suppress Evidence at 9 n.2, United States v. Muhtorov, No. 12-cr-33 (D. Colo. May 9, 2014) (Doc. 559). But that is demonstrably false. The issue was brought to the attention of Justice Department lawyers at least as early as 2011, when a defendant in United States v. Khan filed a motion focused on this precise question. Mot. for Clarification, No. 11-cr-20331 (S.D. Fla. Dec. 14, 2011) (ECF No. 219). The issue was raised again in 2012—in the Supreme Court, by the plaintiffs in Clapper v. Amnesty International USA. Br. for Respondents at 58 n.22, Clapper, 133 S. Ct. 1138 (Sept. 17, 2012). Moreover, multiple news reports indicate that NSD attorneys had considered the issue long before 2013, had decided that notice of evidence derived from FAA surveillance was not required, and had taken active steps to avoid ever giving notice of FAA surveillance in criminal cases. See, e.g., Savage FAA Article (explaining that NSD had “long used a narrow understanding of what ‘derived from’ means” to avoid providing notice). 5 Those cases are: United States v. Hasbajrami, No. 11 Cr. 623 (E.D.N.Y.) (postconviction notice); United States v. Mihalik, No. CR 11-833(A) (C.D. Cal.) (postconviction notice); United States v. Mohamud, No. 10-cr-475 (D. Or.) (post-trial notice); United States v. Khan, No. 12-CR-659 (D. Or.).
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government officials insisted that “defendants have no right to know” if investigators derived evidence from any of the government’s sweeping surveillance activities under Executive Order 12,333. Savage 12,333 Article. That position conflicts directly with the right of defendants—under the Fourth and Fifth Amendments, and the “fruit of the poisonous tree” doctrine—to seek suppression of unlawfully obtained evidence. See Wong Sun v. United States, 371 U.S. 471, 486–88 (1963); United States v. De La Cruz, 703 F.3d 1193, 1200–01 (10th Cir. 2013). It is also clear that the government is not providing notice to criminal defendants when investigators rely on the NSA’s bulk collection of phone records and email metadata. Although both of these domestic surveillance programs operated for a decade or more—and tips were routinely fed to FBI investigators—no defendant has ever received official notice from the government. See Sections III.B–C.
Compounding these problems, the government has refused to publicly explain its notice policies in any detail. Despite the efforts of defendants around the country, the government has refused in this case and others to disclose its view of its notice obligations.6 There is no reason for this secrecy, except to keep courts and defendants from ascertaining whether the government is providing notice when it should be. Recent events have shown that it is not.
6 See, e.g., Def. Response at 8–16, United States v. Qazi, 12-cr-60298 (S.D. Fla. July 21, 2014) (ECF No. 228).
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III. The Government Must Provide Notice of the Surveillance Programs It Used in Its Investigation of the Defendants A. Surveillance Under Executive Order 12,333 There is reason to believe that some of Mr. Muhtorov’s and Mr. Jumaev’s
communications were obtained under Executive Order 12,333, which serves as the “primary source” of the NSA’s foreign intelligence-gathering authority and governs most surveillance conducted abroad.7 According to the NSA’s own documents, the agency “conducts the majority of its [signals intelligence] activities solely pursuant to” E.O. 12,333.8 Over the past year, it has grown increasingly clear that the scale of the government’s surveillance under E.O. 12,333 is vast—and that the government uses this information when investigating individuals here in the United States.9 Under this authority, the NSA collects both content—such as phone calls, emails, and text messages—and so-called “metadata” like phone records, records of internet activity, and location information.
Recent reports show just how expansive the government’s surveillance under E.O. 12,333 has become. These reports indicate that the NSA is, among other things:
 Recording and storing every single cell phone call in and out of at least two countries, including the Bahamas.10
7 NSA Overview of Signals Intelligence Authorities, Jan. 8, 2007, at 4, http://bit.ly/1ruKbBk; see 3 C.F.R. 202, 210–212 (1981), reprinted as amended, note following 50 U.S.C. § 401, pp. 543, 547–548. 8 NSA Legal Fact Sheet: Executive Order 12333, Jun. 19, 2013, at 1, http://bit.ly/1CG9EtT. 9 See Savage 12,333 Article; Two Sets of Rules for Surveillance, Within U.S. and on Foreign Soil, N.Y. Times, Aug. 13, 2014, http://nyti.ms/1u2juDt (chart describing uses of E.O. 12,333 surveillance). 10 Ryan Devereaux et al., Data Pirates of the Caribbean: The NSA Is Recording Every Cell Phone Call in the Bahamas, Intercept, May 19, 2014, http://bit.ly/1qFFVNC.
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 Collecting communications in bulk from overseas communications hubs and from satellite transmissions.11
 Collecting nearly five billion records per day on the location of cell phones, including those of Americans.12
 Collecting hundreds of millions of contact lists and address books from personal email and instant-messaging accounts.13
 Surreptitiously intercepting data from Google and Yahoo! user accounts as that information travels between those companies’ data centers located abroad.14
The full extent of the government’s activities under E.O. 12,333 is unknown, but it is
clear that the government intercepts and searches an enormous amount of data with these
tools.15 It is also clear that both the NSA and FBI use this information in investigations
like the one that preceded this prosecution.16 For example, one tool enables the FBI to
search this data for information that “can be used to track people’s movements, map out
their networks of associates, help predict future actions, and potentially reveal religious
affiliations or political beliefs.”17
11 Savage 12,333 Article. 12 Brendan Sasso, NSA Tracks Phone Locations Under Executive Order, Hill, Dec. 6, 2013, http://bit.ly/1BOqWCZ; see Barton Gellman & Ashkan Soltani, NSA Tracking Cellphone Locations Worldwide, Snowden Documents Show, Wash. Post, Dec. 4, 2013, http://wapo.st/1mSXZAP. 13 Barton Gellman & Ashkan Soltani, NSA Collects Millions of E-mail Address Books Globally, Wash. Post, Oct. 14, 2013, http://wapo.st/MaTqn0. 14 Barton Gellman & Ashkan Soltani, NSA Infiltrates Links to Yahoo, Google Data Centers Worldwide, Snowden Documents Say, Wash. Post, Oct. 30, 2013, http://wapo.st/1mSYNpm (describing “large-scale collection of Internet content” that “would be illegal in the United States”). 15 See Ryan Gallagher, The Surveillance Engine: How the NSA Built Its Own Secret Google, Intercept, Aug. 25, 2014, http://bit.ly/1A1VFLL (“Gallagher Article”). 16 See, e.g., id. (describing FBI’s ability to search data gathered under E.O. 12,333); United States Signals Intelligence Directive 18, § 7.2(c)(4) (permitting NSA to share information potentially related to criminal activity), http://1.usa.gov/1tD1kGU. 17 Gallagher Article.
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Crucially, although surveillance conducted under E.O. 12,333 takes place outside
the United States, the communications of U.S. persons may still be swept up in large
quantity.18 Americans routinely place phone calls, send emails, and communicate online
with people and organizations located overseas. Even purely domestic communications or
data may be routed or stored abroad without a person ever realizing it, leaving that data
vulnerable to collection under E.O. 12,333.19
In this case, the government has relied on, among other things, its interception of
Mr. Muhtorov’s international communications with the administrator of
www.sodiqlar.com, a non-U.S. person located abroad; Mr. Jumaev’s visits to foreign-
based websites; and Mr. Jumaev’s communications via phone and other electronic
methods with persons overseas. It is likely that some or all of these communications were
either collected pursuant to E.O. 12,333, or were collected based on information derived
from earlier E.O. 12,333 surveillance.20
18 See, e.g., Savage 12,333 Article; John Napier Tye, Op-Ed, Meet Executive Order 12333: The Reagan Rule That Lets the NSA Spy on Americans, Wash. Post, July 18, 2014, http://wapo.st/1wPuzv2. 19 See, e.g., Axel Arnbak & Sharon Goldberg, Loopholes for Circumventing the Constitution: Unrestrained Bulk Surveillance on Americans by Collecting Network Traffic Abroad at 19-27, Telecomm. Policy Research Conf. (Aug. 27, 2014), http://bit.ly/1lWB4I4. 20 Although the FBI says that it obtained “court authorization” to acquire some of Mr. Muhtorov’s emails, see Muhtorov Compl. ¶ 12, that is not inconsistent with the government’s reliance on E.O. 12,333 to acquire the defendants’ communications. For example, it is possible that the NSA first acquired Mr. Muhtorov’s emails via E.O. 12,333 and subsequently tipped the FBI, which then obtained the same communications and/or others pursuant to court authorization. In that case, the government’s evidence would still be derived from E.O. 12,333 surveillance of the defendant, and Mr. Muhtorov would still be entitled to notice. A similar scenario may have occurred with Mr. Jumaev. The FBI obtained Mr. Jumaev’s mobile phone number as part of his immigration arrest in February 2010, which the government may then have used to query information it had already obtained under E.O. 12,333, or to collect information under other undisclosed legal authorities. See Jumaev Compl. ¶ 13 (claiming, without detail, that the FBI used
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Surveillance programs operated under E.O. 12,333 have never been reviewed by any court. Moreover, these programs are not governed by any statute, including FISA, and, as the chair of the Senate Intelligence Committee has conceded, they are not overseen in any meaningful way by Congress.21 Instead, this surveillance is conducted entirely under Executive Branch authority, on the basis of a presidential directive first issued by President Reagan in 1981. As a result, there are few statutory or practical constraints on the government’s use of this authority, even when it sweeps in huge quantities of Americans’ data overseas. As a former State Department official recently wrote, “Executive Order 12333 contains nothing to prevent the NSA from collecting and storing all such communications—content as well as metadata—provided that such collection occurs outside the United States in the course of a lawful foreign intelligence investigation. No warrant or court approval is required, and such collection never need be reported to Congress.”22
Based on the public record, the government rarely provides notice to criminal defendants when its investigation has relied upon surveillance conducted under E.O. 12,333. In fact, according to unnamed government officials, the Department of Justice believes that it has no legal obligation to provide notice to defendants, at least where its
“appropriate authority” to obtain information about Mr. Jumaev “through various investigative techniques”) 21 See Ali Watkins, Most of NSA’s Data Collection Authorized by Order Ronald Reagan Issued, McClatchy, Nov. 21, 2013, http://bit.ly/1lCXFsC. 22 John Napier Tye, Op-Ed, Meet Executive Order 12333: The Reagan Rule That Lets the NSA Spy on Americans, Wash. Post, July 18, 2014, http://wapo.st/1wPuzv2.
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evidence is only “derived”—as opposed to obtained directly—from E.O. 12,333 surveillance.23
B. The NSA Call-Records Program It is also extremely likely that the government’s investigation of Mr. Muhtorov and Mr. Jumaev relied on its bulk collection of Americans’ phone records. For more than a decade, the NSA has been collecting call records in bulk from major domestic telecommunications companies. The government conducts this program under Section 215 of the Patriot Act, 50 U.S.C. § 1861.24 As currently operated, the government presents multiple telecommunications carriers with secret court orders requiring them to produce to the NSA “on an ongoing daily basis . . . all call detail records or ‘telephony metadata’” relating to every domestic and international call placed on their networks.25 The orders, which are renewed every ninety days, further specify that the phone records sought include, for each call, the originating and terminating telephone number as well as the call’s time and duration. Once collected, the bulk call records are stored in a government database for five years, where the NSA queries those records—hundreds or thousands of times each year—to search for unknown connections between its
23 Savage 12,333 Article (“[O]fficials contend that defendants have no right to know if 12333 intercepts provided a tip from which investigators derived other evidence.”). 24 See Order, In re Application of the FBI for an Order Requiring the Prod. of Tangible Things from [Redacted], No. BR 06-05 (FISC May 24, 2006), http://1.usa.gov/1f28pHg; see USA PATRIOT Act of 2001, Pub. L. 107-56. 25 Secondary Order, In re Application of the FBI for an Order Requiring the Prod. of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 (FISC Apr. 25, 2013), http://bit.ly/1vvXvXG.
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investigative targets and others.26 Troublingly, although a number of court-ordered rules
restrict the NSA’s ability to use and access information obtained under the call-records program, the government violated those rules for years.27
The government routinely relies on its call-records database in criminal investigations like this one.28 For example, the government is permitted to freely query
its phone-records database using the phone numbers of individuals for whom it has obtained a FISA warrant—like Mr. Muhtorov and Mr. Jumaev here.29 Those call-records
queries allow investigators to probe a suspect’s telephone contacts. In this case, the
government has pointed to hundreds of phone calls made or received by the defendants.
See Section I. Some of the phone calls between Mr. Muhtorov and Mr. Jumaev—or
between the defendants and others—may initially have been identified using precisely
this program. Moreover, the government may have relied, in part, on phone records the
NSA collected in 2009, when it was still violating the court-ordered rules that restricted
its collection, use, and dissemination of this sensitive information. See Section I
(discussing communications between the defendants in 2009).
26 See Primary Order, In re Application of the FBI for an Order Requiring the Prod. of Tangible Things from [Redacted], No. BR 14-96 (FISC June 19, 2014), http://1.usa.gov/1oLUFtg. 27 See, e.g., Order at 8–9, In re Prod. of Tangible Things From [Redacted], No. BR 08-13 (FISC Mar. 2, 2009), http://bit.ly/1rJup07 (finding that the government’s “failure to ensure that responsible officials adequately understood the NSA’s alert process, and to accurately report its implementation to the Court, has prevented, for more than two years, both the government and the FISC from taking steps to remedy daily violations”). 28 See, e.g., id. at 13 (describing 2,549 telephone numbers that the NSA tipped to the FBI, and the FBI’s investigation of U.S. persons based on such tips). 29 See, e.g., Primary Order 8–9, In re Application of the FBI for an Order Requiring the Prod. of Tangible Things from [Redacted], No. BR 11-07 (FISC Jan. 20, 2011), http://1.usa.gov/1tyykiI (approving for querying “[i]dentifiers that are currently the subject of electronic surveillance” authorized by the FISC).
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The NSA’s call-records program has been deemed unconstitutional by one court because it violates the Fourth Amendment,30 yet the government has never provided official notice of this surveillance to a single criminal defendant. Only one defendant has ever learned that the program was used in his case—United States v. Moalin, No. 10-CR4246 (S.D. Cal.)—and he only discovered that fact after his trial was over, when government officials sought to justify the bulk call-records program by pointing to his case in congressional testimony.31 In short, the government appears to believe that it has no legal obligation to tell criminal defendants when it relies on evidence derived from the NSA’s bulk collection of call records.
C. The NSA Internet-Metadata Program The government’s investigations of Mr. Muhtorov and Mr. Jumaev may well have relied on yet another bulk-collection program: the NSA’s internet-metadata program. From 2001 to 2011, the NSA tracked the online activities of Americans by collecting internet metadata in bulk. (The program is sometimes known as the NSA’s “PR/TT” program because, beginning in 2004, it was operated on the basis of FISA’s pen register/trap-and-trace provisions, 50 U.S.C. §§ 1841–1846.) Under this program, the government acquired multiple types of internet records, including information about the senders and recipients of email messages and records of internet activity.32 Once
30 Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013). But see ACLU v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013) (appeal pending). 31 See, e.g., How Disclosed NSA Programs Protect Americans, and Why Disclosure Aids Our Adversaries: Hearing Before the H. Permanent Select Committee on Intelligence, 113th Cong. (June 18, 2013), http://1.usa.gov/1mz0YjI (statement of FBI Deputy Director Sean Joyce). 32 For instance, the government may have also collected information about internet transactions such as logging into or out of a web-based account, or the processing of an instant message communication. See Memorandum Opinion at 34–35, [Redacted], No.
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collected, the internet records were stored in a government database for several years, where the NSA queried those records to search for connections between its targets and others—much as it does using the call-records program discussed above.
The FBI, DOJ, and other agencies used information derived from the internetmetadata program in the course of investigations for years—including the period covered by the government’s investigation in this case.33 At one point, the NSA estimated that hundreds of accounts would be “tipped” to the FBI and CIA each year under the program, and that approximately 25 percent of those accounts would be associated with U.S. persons.34 The Foreign Intelligence Surveillance Court (“FISC”) imposed a number of restrictions on the NSA’s ability to disseminate information obtained under this program—yet, from 2004 through at least 2009, the government repeatedly violated those court-ordered restrictions.35
Indeed, for years, the NSA failed to abide by the FISC’s rules for collecting, querying, and handling internet metadata.36 From the outset of the PR/TT program, the NSA continuously and systematically over-collected Americans’ internet records in
PR/TT [Redacted] (FISC [Redacted]) (Bates, J.), http://1.usa.gov/1q3af5P (“FISC 2010 Op.”). 33 See, e.g., Decl. of Lt. Gen. Keith B. Alexander at 16 n.7, No. PR/TT [Redacted] (FISC [Redacted]), http://bit.ly/1r4t72o (describing the NSA’s provision of “research to Department of Justice or Department of Defense personnel for their review in connection with criminal or detainee proceedings”). 34 See Opinion & Order at 46, [Redacted], No. PR/TT [Redacted] (FISC [Redacted]) (Kollar-Kotelly, J.), http://1.usa.gov/1lPEe07 (“FISC 2004 Op.”). 35 FISC 2010 Op. at 12, 17–22; FISC 2004 Op. at 80–87. 36 FISC 2010 Op. at 9–22 (describing the NSA’s “substantial non-compliance” and “systemic overcollection” of metadata); Order at 6–7, [Redacted], No. PR/TT [Redacted] & In re Application of the FBI for an Order Requiring the Production of Tangible Things From [Redacted], No. BR 09-06 (FISC June 22, 2009), http://1.usa.gov/1tioe5f.
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violation of the FISC’s orders, which had authorized the collection of only specified categories of metadata. According to the government, for several years, “virtually every PR/TT record” generated by the program contained some illegally collected data.37 Although the FISC acknowledged these violations in 2010, it did not require the government to identify and destroy all of the illegally acquired information. Instead, it allowed the government to retain and search this data so long as it claimed not to know whether the information was acquired through unauthorized electronic surveillance.38 In December 2011, the government reportedly decided not to seek reauthorization of the internet-metadata program for operational reasons.39
As discussed above, the government relies on intercepted email communications as well as records of Mr. Muhtorov’s and Mr. Jumaev’s other internet activities— activities that may have first been tracked through the bulk collection of the defendants’ internet metadata. See Section I. Because the government’s investigation was active in 2011—and, in all likelihood, in 2010—it likely relied on information collected during precisely the period when the NSA operated the PR/TT program in violation of courtordered rules.
Even beyond these compliance violations, the NSA’s internet-metadata program raises constitutional and statutory questions on par with the NSA’s call-records program. Cf. Compl., First Unitarian Church of L.A. v. NSA, No. 13-cv-3287 (N.D. Cal. July 16,
37 FISC 2010 Op. at 20–21; NSA Response to FISA Court Questions at 18, Letter from David S. Kris, Asst. Att’y Gen., to the Hon. John D. Bates, Presiding Judge, U.S. FISC, [Date Redacted], http://1.usa.gov/Ze0Ugi. 38 FISC 2010 Op. at 114-15. 39 Unclassified Declaration of Teresa H. Shea at 15, Jewel v. NSA, 08-cv-4373-JSW (N.D. Cal. Mar. 19, 2014) (ECF No. 228), http://bit.ly/1lLZPGr.
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2013) (asserting statutory, Fourth Amendment, and First Amendment challenges to the NSA’s bulk collection of telephony metadata). Although FISA expressly requires notice of this surveillance, see 50 U.S.C. 1845(c), the government has never provided notice of the NSA’s internet-metadata program to a single criminal defendant.
D. Bulk Collection of Financial Records There is evidence also that the government collects financial records in bulk— including international money transfers like those the government monitored in this investigation. In November 2013, The New York Times and The Wall Street Journal reported that the Central Intelligence Agency (“CIA”) was collecting records of these transfers in bulk from companies like Western Union and MoneyGram.40 The financial records program is reportedly conducted under Section 215, 50 U.S.C. § 1861. The CIA has used the information it collects in bulk to amass “a vast database of international money transfers that includes millions of Americans’ financial and personal data,” including Social Security numbers.41 The data is analyzed by the CIA and then shared with other agencies like the FBI. According to a former official, “[I]f a CIA analyst searches the data and discovers possible suspicious terrorist activity in the U.S., the analyst provides that information to the FBI.”42 No criminal defendant, however, has ever received notice of the government’s reliance on this bulk collection program.
40 Charlie Savage & Mark Mazzetti, C.I.A. Collects Global Data on Transfers of Money, N.Y. Times, Nov. 13, 2013, http://nyti.ms/1lbhseL; Siobhan Gorman, Devlin Barrett & Jennifer Valentino-DeVries, CIA’s Financial Spying Bags Data on Americans, Wall St. J., Jan. 25, 2014, http://on.wsj.com/1dO2n2T. 41 Id. 42 Id.
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It is plain that the government monitored international money transfers by the defendants in this case, including Western Union and MoneyGram transactions. See Section I (describing Mr. Muhtorov’s use of these international monetary services since at least 2007 and Mr. Jumaev’s use of them between 2000 and 2012). The FBI claims that it obtained evidence of one such transfer by searching Mr. Jumaev’s trash, see Bates No. G_000303, but that may be one instance of the “parallel construction” that lawenforcement agencies reportedly use to conceal tips and leads they receive from intelligence agencies.43 Mr. Muhtorov and Mr. Jumaev are entitled to notice if the government’s investigation relied on the bulk collection of their financial records.
E. Other Surveillance Techniques Given the number of surveillance programs the government concealed for years, it is possible that the government relied on other, still-secret surveillance techniques in its investigations of Mr. Muhtorov and Mr. Jumaev. Disclosures suggest that it may have tracked the defendants’ locations, other financial activities, or various other kinds of communications data. Defendants’ motion to compel notice is not limited to the surveillance programs described above or surveillance methods the government has publicly acknowledged to date.44 Rather, it encompasses any surveillance program or technique that the government used to monitor the defendants’ communications or activities as part of its investigation.
43 See John Shiffman & Kristina Cooke, Exclusive: U.S. Directs Agents to Cover Up Program Used to Investigate Americans, Reuters, Aug. 5, 2013, http://reut.rs/1h07Hkl (describing DEA’s use of “parallel construction” to conceal its reliance on information derived from NSA surveillance). 44 See Charlie Savage & Mark Mazzetti, C.I.A. Collects Global Data on Transfers of Money, N.Y. Times, Nov. 13, 2013, http://nyti.ms/1lbhseL (“Several officials also said more than one other bulk collection program has yet to come to light.”).
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IV. The Defendants Are Entitled to Notice A. Due Process Entitles the Defendants to Notice Mr. Muhtorov and Mr. Jumaev are entitled to notice of the surveillance
techniques that contributed to the government’s investigation, so that they may challenge the legality of the surveillance and the admissibility of the resulting evidence. The government cannot preempt the right to seek suppression by withholding notice based on its own conclusion that its methods were lawful. Rather, the defendants are entitled to have the Court—not the government—decide issues going to their basic constitutional rights. Those questions include (1) whether the government’s surveillance violated the Fourth Amendment or other legal protections, and (2) whether the government’s evidence is in fact “derived” from such surveillance. See, e.g., United States v. U.S. District Court (Keith), 407 U.S. 297 (1972); Alderman v. United States, 394 U.S. 165 (1969).
The only way to effectuate a criminal defendant’s right to suppress illegally acquired evidence is through notice. This suppression right becomes especially important when the government adopts new and intrusive surveillance techniques. By now, it is clear that the government routinely employs legally untested surveillance methods in aid of investigations like this one—and that it often seeks to conceal those methods in order to avoid court review.45 But due process rights grounded in the Fourth and Fifth Amendments entitle the defendants to challenge the legality of these surveillance
45 See Savage 12,333 Article (describing continuing efforts to avoid giving notice of E.O. 12,333 surveillance); Savage FAA Article (describing five-year effort to avoid giving notice of FAA surveillance); John Shiffman & Kristina Cooke, Exclusive: U.S. Directs Agents to Cover Up Program Used to Investigate Americans, Reuters, Aug. 5, 2013, http://reut.rs/1h07Hkl (describing use of “parallel construction” to conceal reliance on information obtained from intelligence agencies).
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techniques and to seek suppression of the resulting evidence. See Wong Sun v. United States, 371 U.S. 471, 486–88 (1963) (describing “fruit of the poisonous tree” doctrine); Murray v. United States, 487 U.S. 533, 536–37 (1988) (describing right to seek suppression of evidence “derived” from an unlawful search).46
The exercise of the suppression right depends entirely on notice. Thus, courts have long found notice a constitutionally required element of surreptitious searches like wiretaps and sneak-and-peak entries. See Berger v. New York, 388 U.S. 41, 60 (1967) (finding wiretapping statute unconstitutional because, among other things, it had “no requirement for notice as do conventional warrants”); United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986) (finding sneak-and-peak warrant constitutionally defective for its failure to provide explicitly for notice within a reasonable time); United States v. Dalia, 441 U.S. 238, 247–48 (1979) (observing that Title III provided “a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance” (emphasis added)).
46 The defendants’ right to notice is also found within the government’s Brady obligation. In order to comply with that requirement, the government must disclose any information material to a defendant’s motion to suppress evidence. See United States v. GamezOrduno, 235 F.3d 453, 461 (9th Cir. 2000); Smith v. Black, 904 F.2d 950, 965–66 (5th Cir. 1990), vacated on other grounds, 503 U.S. 930 (1992) (due process mandates the disclosure of information in the government’s possession if nondisclosure would “affect[] the outcome of [a] suppression hearing”). It goes without saying that in order to seek suppression, the defendants must be aware of the surveillance that served as the source(s) of the government’s evidence. As a result, Brady requires the government to give notice of the surveillance techniques used to monitor the communications or activities of the defendants that were relied upon in the investigation, and the information obtained or derived from that surveillance.
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Congress has responded to these rulings by incorporating express notice provisions into many surveillance statutes. See, e.g., 18 U.S.C. § 2518(8)(d) (Title III); S. Rep. No. 1097, at 2194 (1968) (explaining the inclusion of a notice requirement in Title III’s wiretapping provisions, and citing Berger); see also 50 U.S.C. § 1806(c) (FISA electronic surveillance); id. § 1825(d) (FISA physical search); id. § 1842(c) (FISA pen register); cf. Fed. R. Crim. P. 41(f) (requiring notice).
As the cases above show, today is not the first time courts have had to confront the government’s use of new technologies to carry out surreptitious searches. The use of secret wiretapping and electronic recording devices in criminal investigations posed similarly novel legal problems in the last century. The courts that addressed the legality of these methods—and laid down the rules governing their use—were only able to do so because the defendants received notice of that surveillance. Thus, in Keith, the government responded to the defendant’s motion to compel the disclosure of electronic surveillance information in a national-security prosecution by publicly acknowledging that investigators had overheard the defendant’s conversations using wiretaps. 407 U.S. at 299–300. In Kyllo, the defendant had notice that the government’s search warrant application relied on evidence gathered using thermal-imaging technology. Kyllo v. United States, 533 U.S. 27, 29–30 (2001). Likewise, in Jones, the defendant had notice of the government’s use of GPS tracking in order to record his movements. United States v. Jones, 132 S. Ct. 945, 948 (2011). All of these seminal Fourth Amendment decisions would have been impossible if the defendants had not received notice of the government’s secret searches.
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Equally here, the Court must ensure that the defendants have sufficient notice of any surveillance of their communications or activities to allow them to press their claims fairly before the Court. For the reasons described above, it appears extremely unlikely that the government has applied such a standard in making its notice determinations in this case. For instance, the government apparently believes that it has no obligation to give notice any time its evidence is derived from E.O. 12,333 surveillance. See Savage 12,333 Article (describing the government’s view that “defendants have no right to know” if investigators derived evidence from an E.O. 12,333 intercept). Similarly, the government appears to believe that it has no obligation to provide notice when it relies on the NSA’s bulk collection of call records in criminal investigations, see Section III.B— perhaps because it does not believe its collection and querying of these records constitutes a “search.” But the call-records program plainly presents novel questions of a constitutional dimension, and one court has already found the program unlawful. See Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013). It is not the government’s prerogative to secretly and self-servingly conclude that its surveillance is legal and then to withhold notice from criminal defendants on that basis.
This point is a commonsense one. Due process entitles the defendants to test, on the facts of this case, whether the government’s evidence should be suppressed as the fruit of unlawful surveillance. Due process does not leave these questions to the government’s sole judgment and discretion. See Alderman v. United States, 394 U.S. 165, 168 (1969) (recounting, in wiretapping challenge, Supreme Court’s refusal “to accept the ex parte determination of relevance by the Department of Justice in lieu of adversary proceedings in the District Court”); Kolod v. United States, 390 U.S. 136, 136–37 (1968)
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(prior proceedings); cf., e.g., United States v. Eastman, 465 F.2d 1057, 1062–63 & n.13 (3d Cir. 1972) (concluding that the Wiretap Act’s statutory notice provision was “intended to provide the defendant whose telephone has been subject to wiretap an opportunity to test the validity of the wiretapping authorization”). It would make little sense if the government could pre-determine, as part of its notice analysis, difficult or novel legal questions that a defendant would properly put before the Court—if only he knew.
The government’s definition of “derived” evidence is especially opaque and problematic—yet notice in many cases turns on that definition. According to reports, the government has long held a “narrow understanding of what ‘derived from’ means in terms of when it must disclose specifics to defendants” in the context of foreignintelligence surveillance. Savage FAA Article. The government has never publicly described that “narrow understanding”—either before or after its notice policies began to draw scrutiny in the past year. But the consequences are significant. If the government is defining “derived” evidence more narrowly than the Constitution allows,47 and withholding notice on that basis, then it is concealing the underlying sources of its evidence, and thereby insulating them from judicial review. The government’s failure to provide notice of FAA surveillance in this case or any other for five years relied on precisely this type of evidence laundering. See id. Similarly, when the government engages in parallel construction—in order to conceal the nature of its underlying
47 See, e.g., Murray, 487 U.S. at 536–37 (prohibiting “the introduction of derivative evidence, both tangible and testimonial, that is the product of the [unlawful search], or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes ‘so attenuated as to dissipate the taint’”).
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investigation—that is a refusal to give notice of “derived” evidence as due process requires.48
The Supreme Court has repeatedly made clear that when the government chooses to criminally prosecute an individual, it may not keep secret the sources of its evidence.
[T]he Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Jencks v. United States, 353 U.S. 657, 670–71 (1957) (quoting United States v. Reynolds, 345 U.S. 1, 12 (1953)). Simply put, the government may not have it both ways—its secrecy and its prosecution—when an individual’s liberty is at stake. Indeed, due process requires not only notice to a defendant, but may also call for disclosure of underlying surveillance applications or intercepts. In Keith, the Supreme Court compelled the government to turn over records of wiretapped conversations in a national-security case, even as the government threatened to abandon the prosecution if required to disclose them. See 407 U.S. at 318–24, aff’g 444 F.2d 651, 655 (6th Cir. 1971) (discussing the government’s assertions). The Court did not blink—it ordered disclosure. See 407 U.S. at 324. The government is bound by that same choice here, wherever it has relied on undisclosed surveillance programs in the conduct of its investigation. Accordingly, the government must give notice of the surveillance techniques that contributed to its investigation of Mr. Muhtorov and Mr. Jumaev—so that the Court may ultimately decide whether there is a legal and factual basis for suppression.
48 See, e.g., John Shiffman & Kristina Cooke, Exclusive: U.S. Directs Agents to Cover Up Program Used to Investigate Americans, Reuters, Aug. 5, 2013, http://reut.rs/1h07Hkl.
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B. 18 U.S.C. § 3504 Entitles the Defendants to Notice Congress has also provided a right to notice of electronic surveillance by statute. Under 18 U.S.C. § 3504(a), if a party in a proceeding before any court claims that “evidence is inadmissible” because “it is the primary product of an unlawful act or because it was obtained by the exploitation of any unlawful act” then the government must “affirm or deny the occurrence of the alleged unlawful act.” The statute defines “unlawful act” as “the use of any electronic, mechanical, or other device (as defined in section 2510(5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.” Id. § 3504(b). The government has recognized that 18 U.S.C. § 3504 requires “the affirmance or denial of the fact of electronic surveillance, even if the government believes it was lawful.” David S. Kris & J. Douglas Wilson, National Security Investigations & Prosecutions 2d at § 27:12 (emphasis in original). A “cognizable claim” for notice under the statute “need be no more than a ‘mere assertion,’ provided that it is a positive statement that illegal surveillance has taken place.” United States v. Apple, 915 F.2d 899, 905 (4th Cir. 1990) (citing United States v. Tucker, 526 F.2d 279, 282 & n.4 (5th Cir. 1976)). The party must make a prima facie showing that he was “aggrieved” by the surveillance—i.e., “that he was a party to an intercepted communication, that the government’s efforts were directed at him, or that the intercepted communications took place on his premises.” Apple, 915 F.2d at 905. Because a defendant will have only limited information about the government’s undisclosed surveillance, this initial showing need not be complete; it must only have a “colorable basis.” Id. (citing United States v. Pacella, 622 F.2d 640, 643 (2d Cir. 1980)).
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Mr. Muhtorov and Mr. Jumaev have made such a showing. The government has described or disclosed numerous communications involving the defendants while refusing to specify how it obtained them. See Section I. Those include the defendants’ international communications and their online activities, which could readily have been vacuumed up by the government’s dragnet collection of content and metadata under Executive Order 12,333. See Section III.A. Separately, the government has acknowledged the domestic collection of internet metadata in bulk for at least ten years, up until 2011, under the NSA’s PR/TT program. See Section III.C. That program involved the interception of defendants’ metadata and/or communications, and was directed at defendants (as well as many others), rendering them aggrieved under section 3504. See generally United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1991) (“[W]hen the contents of a wire communication are captured or redirected in any way, an interception occurs at that time.”). Finally, the government has acknowledged the NSA’s bulk collection of phone records over a period of years that spans its investigation in this case. Through that program, the NSA obtained the call records of millions of individuals across multiple phone companies, and it uses that aggregated data to track the calls of individuals who are the subject of foreign-intelligence surveillance, like the defendants here. See Section III.B.
Accordingly, the government must provide notice of the surveillance methods used in this case and its purported legal authorities. See United States v. Alter, 482 F.2d 1016, 1027 (9th Cir. 1973) (holding that the government’s response to a claim under section 3504 was insufficient because it was conclusory, failed to clearly identify all
27

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governmental agencies involved in the surveillance, failed to identify the date ranges of the surveillance, and relied on vague hearsay recitations).
C. 50 U.S.C. § 1845 Entitles the Defendants to Notice Finally, FISA expressly requires notice of surveillance conducted pursuant to the statute’s pen-register and trap-and-trace provisions. 50 U.S.C. § 1845(c). The NSA’s internet-metadata program was, for seven years, conducted under this authority. If the government used data obtained via this program in its investigation of the defendants, it must give notice so that they may seek to suppress any resulting evidence.
CONCLUSION For the reasons above, Mr. Muhtorov and Mr. Jumaev respectfully request that the Court issue an order compelling the government to provide notice of: (1) each surveillance technique it used to obtain information about the defendants’ communications or activities in its investigation; (2) the timing or duration of that surveillance; (3) the legal authority relied upon; and (4) the evidence obtained or derived from that surveillance.

Dated this 20th day of October 2014.

Respectfully submitted,
VIRGINIA L. GRADY Federal Public Defender

/s/ Warren R. Williamson WARREN R. WILLIAMSON Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 Fax: (303) 294-1192 Rick.Williamson@fd.org

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/s/Brian Rowland Leedy Brian Rowland Leedy Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, CO 80202 Telephone: (303) 294-7002 Fax: (303) 294-1192 Brian_Leedy@fd.org
/s/ Kathryn J. Stimson Kathryn J. Stimson, Attorney at Law 1544 Race Street Denver, CO 80206 Telephone: (720) 638-1487 kathryn@stimsondefense.com
/s/ Patrick C. Toomey Patrick C. Toomey American Civil Liberties Union Foundation 125 Broad St., 18th Floor New York, NY 10004 Telephone: (212) 549-2500 ptoomey@aclu.org
Attorneys for Jamshid Muhtorov
/s/ David Barry Savitz David Barry Savitz Law Office of David B. Savitz 1512 Larimer Street, Suite 600 Denver, CO 80202 Telephone: (303) 825-3109 savmater@aol.com
/s/ Mitchell Baker Mitch Baker, Attorney at Law 1543 Champa Street, #400 Denver, CO 80202 Telephone: (303) 592-7353 mitchbaker@estreet.com
Attorneys for Bakhtiyor Jumaev
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On the brief: Jameel Jaffer Alex Abdo Ashley Gorski Attorneys at Law American Civil Liberties Union Foundation 125 Broad St., 18th Floor New York, NY 10004 Telephone: (212) 519-7816 Fax: (212) 549-2654 jjaffer@aclu.org Mark Silverstein Sara J. Rich Attorneys at Law ACLU Foundation of Colorado 303 E. 17th Avenue, Suite 350 Denver, Colorado 80203 Phone: (303) 777-5482; Fax: (303) 777-1773 msilverstein@aclu-co.org
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CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2014, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email address:
Gregory A. Holloway Assistant U.S. Attorney Email: gregory.holloway@usdoj.gov
Erin Martha Creegan National Security Division for the U.S. Dept. of Justice Email: erin.creegan@usdoj.gov

I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the manner (mail, hand-delivery, etc.) indicated by the non-participant’s name:

Mr. Jamshid Muhtorov

(Via U.S. Mail)

Mr. Bakhtiyor Jumaev

(Via U.S. Mail)

/s/ Warren R. Williamson WARREN R. WILLIAMSON Assistant Federal Public Defender 633 Seventeenth Street, Suite 1000 Denver, Colorado 80202 Telephone: (303) 294-7002 Fax: (303) 294-1192 Rick.Williamson@fd.org
Attorney for Defendant Jamshid Muhtorov

31

 
 Case 1:12-cr-00033-JLK Document 12 Filed 02/07/12 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Case No. 1:12-cr-00033-CMA UNITED STATES OF AMERICA,
Plaintiff, v. JAMISHID MUHTOROV, a.k.a. Abumumin Turkisony, a.k.a. Abu Mumin,
Defendant.
NOTICE OF INTENT TO USE FOREIGN INTELLIGENCE SURVEILLANCE INFORMATION
Comes now the United States of America, by John F. Walsh, United States Attorney, and Gregory Holloway, Assistant United States Attorney, both for the District of Colorado and Jason Kellhofer and Erin Creegan, Trial Attorneys United States Department of Justice, National Security Division, Counterterrorism Section, and hereby provides notice to this Court and the defendant, Jamshid Muhtorov that pursuant to Title 50, United States Code, Sections 1806(c) and 1825(d), the government intends to offer into evidence or otherwise use or disclose in any proceedings in the above-captioned matter, information obtained and derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §§ 1801-1811, 1821-1829.

Case 1:12-cr-00033-JLK Document 12 Filed 02/07/12 USDC Colorado Page 2 of 2
Respectfully submitted this 7th day of February, 2012.
JOHN F. WALSH United States Attorney
s/ Greg Holloway By: GREG HOLLOWAY, WSBA #28743 Assistant United States Attorney United States Attorney’s Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: 303-454-0100 Facsimile: 303-454-0403 Email: Gregory.Holloway@usdoj.gov
s/ Jason Kellhofer By: JASON KELLHOFER Trial Attorney United States Department of Justice National Security Division Counterterrorism Section 10th Street & Pennsylvania Avenue, NW Room 2740 Washington, DC 20530 Telephone: 202-353-7371 Facsimile: 202-353-0778 Email: Jason.Kellhofer@usdoj.gov
s/ Erin Creegan By: ERIN CREEGAN Trial Attorney United States Department of Justice National Security Division Counterterrorism Section 10th Street & Pennsylvania Avenue, NW Room 2740 Washington, DC 20530 Telephone: 202-353-7371 Facsimile: 202-353-0778 Email: Erin.Creegan@usdoj.gov

 
 Case 1:12-cr-00033-JLK Document 457 Filed 10/25/13 USDC Colorado Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Case No 1:12-cr-00033-JLK-01 UNITED STATES OF AMERICA
Plaintiff, v. 1. JAMSHID MUHTOROV,
Defendant.
SECOND NOTICE OF INTENT TO USE FOREIGN INTELLIGENCE SURVEILLANCE ACT INFORMATION
Comes now the United States of America, by John Walsh, United States Attorney, and Gregory Holloway, Assistant United States Attorney, both for the District of Colorado and Erin Creegan, Trial Attorney United States Department of Justice, National Security Division, Counterterrorism Section, and hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. '' 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose in proceedings in the above-captioned matter information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. ' 1881a.
Dated this 25th day of October, 2013.

Case 1:12-cr-00033-JLK Document 457 Filed 10/25/13 USDC Colorado Page 2 of 3
JOHN F. WALSH United States Attorney
s/ Greg Holloway By: GREG HOLLOWAY, WSBA #28743 Assistant United States Attorney United States Attorney=s Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: 303-454-0100 Facsimile: 303-454-0403 Email: Gregory.Holloway@usdoj.gov
s/ Erin Creegan By: ERIN CREEGAN Trial Attorney United States Department of Justice National Security Division 10th Street & Pennsylvania Avenue, NW Room 2740 Washington, DC 20530 Telephone: 202-353-7371 Facsimile: 202-353-0778 Email: Erin.Creegan@usdoj.gov

Case 1:12-cr-00033-JLK Document 457 Filed 10/25/13 USDC Colorado Page 3 of 3
CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of October, 2013, I electronically filed the foregoing SECOND NOTICE OF INTENT TO USE FOREIGN INTELLIGENCE SURVEILLANCE ACT INFORMATION with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
Brain R. Leedy Email: Brian_Leedy@fd.org
Warren R. Williamson Email: Rick_Williamson@fd.org
Kathryn Stimson Email: kathryn@stimsondefense.com
David B. Savitz Email: savmaster@aol.com
Daniel Sears Email: djsearspc@aol.com
S/ Maureen Carle MAUREEN CARLE Legal Assistant United States Attorney=s Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: 303-454-0100 Email: Maureen.Carle@usdoj.gov

 
 Case 1:12-cr-00033-JLK Document 885 Filed 11/19/15 USDC Colorado Page 1 of 35
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Case No. 12-cr-00033-JLK UNITED STATES OF AMERICA,
Plaintiff, v. 1. JAMSHID MUHTOROV, 2. BAKHTIYOR JUMAEV,
Defendants.
ORDER DENYING MOTION TO SUPPRESS EVIDENCE OBTAINED OR DERIVED UNDER FISA AMENDMENTS ACT OR FOR DISCOVERY (Doc. 520) Kane, J.
Jamshid Muhtorov, together with his co-defendant Bakhtiyor Jumaev, is charged with providing material support to a designated terrorist organization, and attempt and conspiracy to do the same. His arrest on a one-way flight to Turkey was originally believed to be solely the result of warrantless surveillance and physical searches authorized under Title I and III of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801-1811, 1821-1829. Mr. Muhtorov moved to suppress that FISA-acquired evidence earlier in these proceedings, which motion I denied based on a determination, after an extensive in camera review of the classified materials submitted to the FISA Court, that there was probable cause to believe the target was an agent as described and

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therefore lawfully subject to those searches. The matter is before me on a renewed Motion to Suppress, precipitated by the
government’s supplemental disclosure, nearly two years after Mr. Muhtorov’s arrest, that some of the FISA-acquired evidence it intends to use against him in this case was derived from surveillance conducted under § 702 of the FISA Amendments Act of 2008 (“FAA”).1 Section 702, codified at 50 U.S.C. § 1881a, establishes procedures for the warrantless surveillance of targeted persons overseas “to acquire foreign intelligence information.” Because communications to and from a target under § 702 are swept up without reference to who is sending them and without any determination of probable cause, the FAA results in the “incidental” interception, collection, and retention of communications from unconsenting U.S. persons including, in this case, Mr. Muhtorov.
Judicial review of § 702 authorizations is narrow, and until the Snowden leaks in 2013, the American public was led to believe that the government did not query or use FAA-acquired surveillance against non-targeted U.S. persons. See Clapper v. Amnesty Int’l, USA, 133 S. Ct. 1138 (2013). The belated notice in this case was part of the Snowden fallout and the revelation, post-Clapper, that the Executive Branch does, in fact, use FAA-acquired information to investigate U.S. persons for suspected criminal activity, and that it intends to use it against Mr. Muhtorov here.
1 The FAA added Title VII to the FISA statute, which establishes “Additional [intelligence gathering] Procedures Regarding Certain Persons Outside the United States.” It is intended to sunset on December 31, 2017. See P.L. 110-261, § 403(b)(1), 122 Stat. 2474, as amended, appearing in 50 U.S.C. § 1881 note.
-2-

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In his renewed Motion, Mr. Muhtorov moves to suppress all of the FAA-acquired evidence in this case and the “fruits thereof” on grounds that § 702's authorization and implementation procedures permit the government to collect and retain the communications of U.S. persons without a warrant and without probable cause in violation of the Fourth Amendment. Alternatively, as an “aggrieved person” entitled to challenge the lawfulness of the acquisitions directly under § 702, he argues the statute was unlawfully applied to him and seeks discovery into the means and methods of the government’s FAA surveillance in this case to substantiate that claim. With the entry of the ACLU as co-counsel for the defense, briefing has emphasized the former, with Mr. Muhtorov serving as the Clapper-qualified2 successor to the plaintiffs in that case, who were deemed insufficiently “harmed” by § 702's surveillance procedures to have standing to pursue a Fourth Amendment challenge. I find the Clapper argument attenuated by Mr. Muhtorov’s status as a criminal defendant – rather than an incidental interceptee generally – and that his privacy-related Clapper claim is transformed by that fact. As a U.S. person and a criminal defendant, Mr. Muhtorov is entitled to the full panoply of statutory and constitutional protections afforded under § 702 and the U.S. Constitution. As a criminal defendant whose communications were captured pursuant to FISA Title I and III
2 In Clapper v. Amnesty Int’l USA, __ U.S. __, 133 S. Ct. 1138 (2013), Justice Alito writing for a majority of the Supreme Court held that attorneys, human rights, and media organizations lacked article III standing to challenge the constitutionality of § 702 because they could only speculate that their communications had been or would be incidently acquired during FAA surveillance of their clients or other targeted persons abroad. With the government’s notice in this case, the acquisition of Mr. Muhtorov’s communications is demonstrable and he is therefore “Clapper-qualified” to challenge the law.
-3-

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surveillance targeting an agent of a foreign power, however, these protections are
counteracted to a significant extent by FISA and prerogatives long recognized in U.S. law
regarding the Executive’s primacy in the arena of foreign affairs and national security.
My concern as a trial court judge is with the individual criminal defendants before
me and their rights to due process and a fair trial. The constitutional question at issue is
one the Executive and courts have wrestled with since the Supreme Court’s acknowledgment in the 1972 Keith3 case of the dilemma invited when warrantless
national security intelligence surveillance uncovers evidence of crime. The question here
is where – on the continuum between the largely unfettered authority the government
enjoys in national security matters and foreign intelligence surveillance on the one hand,
and its constitutionally limited authority to investigate its citizens for crimes – stands Mr. Muhtorov.4 It is a particularized inquiry of the most solemn kind. While I am convinced
the FAA is susceptible to unconstitutional application as an end-run around the Wiretap
Act and the Fourth Amendment’s prohibition against warrantless or unreasonable
3 United States v. United States Dist. Court for the Eastern Dist. of Mich., 407 U.S. 297 (1972)(known as the Keith case).
4 I note Mr. Jumaev has filed his own renewed Motion to Suppress and/or for Discovery (Doc. 521), insisting that FAA must have informed the government’s investigation and indictment of him notwithstanding the government’s disclaimer and the fact that it filed no Notice of Intent to Use FAA-Acquired information against him in this case. Based on the
government’s representations that it does not intend to use FAA-acquired evidence against him and my ex parte review of all of the classified information in this case, I conclude Mr. Jumaev is not an “aggrieved person” authorized under 50 U.S.C. § 1806(e) to move to suppress such evidence or to bring an asapplied constitutional challenge to Section 702. The question of whether the disclaimer deprives Mr. Jumaev of standing to assert a facial challenge to the FAA under Clapper is an open one, in my view, but one, given my ruling in this case, that does not need to be answered. I limit my analysis in this opinion to the constitutional arguments raised by Mr. Muhtorov.
-4-

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searches, I am equally convinced that it was not unconstitutionally applied to Mr. Muhtorov. Based on my in camera review of the classified and unclassified documents made available to me, the FAA surveillance at issue was narrowly tailored to the government’s foreign intelligence-gathering prerogatives. Because I find Section 702 to have been constitutionally applied in this case, the facial challenge to the FAA must be denied. I will address Mr. Muhtorov’s request for specific, additional discovery and declassification in a separate order, after conducting one or more prefatory CIPA § 4 hearings on the subject.5
I. BACKGROUND AND PROCEDURAL HISTORY. Jamshid Muhtorov was born in Jizzak, Uzbekistan, when that country was still under communist rule. He is the oldest of five children. After graduating from a technical university, Mr. Muhtorov was offered a position with the Ezgulik Human Rights Society in Uzbekistan, becoming the head of the Jizzak branch in 2003. During the course of his work with Human Rights Watch, foreign embassies and NGOs, Muhtorov came under the increasing scrutiny of Islam Karimov, the last president
5 Section 4 of the Classified Information Procedures Act (CIPA) provides that “[t]he court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” I have, to date, accepted the government’s averred classification assertions as offered. Through the upcoming § 4 process, I intend to put the government through its paces to justify them, and to urge the declassification that was promised for much of the Muhtorov and Jumaev-related discovery in this case.
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of Soviet Uzbekistan who became and remains the first president of independent Uzbekistan. This scrutiny intensified in May 2005, and in 2006, according to Human Rights Watch, Mr. Muhtorov was himself threatened and beaten. With the help of other activists, Mr. Muhtorov fled to Kyrgystan, and then, with his wife and children to the United States.
Mr. Muhtorov and his family were admitted to the United States as political refugees in February 2007. They settled in Colorado. Mr. Muhtorov has no criminal record and, until his arrest in January of 2012, had never been arrested. He is a legal permanent resident of the United States.6
The operative Second Superseding Indictment (Doc. 59) charges Mr. Muhtorov with two counts of providing and attempting to provide material support and resources to the Islamic Jihad Union (IJU), and Muhtorov and Jumaev with one count of conspiring to commit that offense, in violation of 18 U.S.C. § 2339B. If convicted, each faces a maximum term of imprisonment of 15 years.
The allegations in the indictment were initially attributed to information gleaned in investigations of Mr. Muhtorov’s computer, email accounts, private residence, and personal effects. See Criminal Compl. (Doc. 1)(and attached Affid. of FBI Special Agent Hale). When the government formally notified Mr. Muhtorov that it intended to use FISA-acquired information against him in the proceedings (Doc. 12), Mr. Muhtorov
6 See 50 U.S.C. § 1801(i)(defining “United States person” as, among other things, “a citizen of the United States” or “an alien lawfully admitted for permanent residence”).
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exercised his right as an “aggrieved person” under the statute and moved to suppress. (Docs. 14, 125). I denied that Motion in a written Order issued September 24, 2012 (Doc. 196), applying the standards set forth at 50 U.S.C. § 1806(e) & (f) and finding the surveillance and physical searches at issue were lawfully authorized and conducted. I specifically concluded that the attested facts submitted to the FISA Court supported a finding of probable cause to believe the target was an “agent[] of a foreign power,” and concluded that the FISA application and related materials should not, in the interest of national security, be disclosed. Id. p. 3. I denied Mr. Jumaev’s related Motion on the same basis.
On October 25, 2013, the government filed a Second Notice of Intent to Use FISAacquired Information (Doc. 457), formally notifying Mr. Muhtorov of its intent to use information obtained or derived from the acquisition of foreign intelligence information under the Foreign Intelligence Surveillance Act of 1978, “as amended,” and citing 50 U.S.C. § 1881a. Given its timing in the Snowden-Clapper aftermath, the Notice was clearly intended to notify Mr. Muhtorov that he was a member of the previously undisclosed class of U.S. persons whose international communications had been monitored and acquired incidently to surveillance conducted under § 702 of the FAA. Viewing the affidavit informing the publicly available Complaint in this case in that light, it is clear that FAA surveillance overseas resulted in the acquisition of communications later traced to Muhtorov. See Affid. of FBI Agent Hale (attached as Ex. A to Complaint (Doc. 1)). What was acquired and over what period of time is classified information that
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has not yet been shared with the defense. Foreign Intelligence Gathering and FISA.
Presidents since FDR have claimed an inherent constitutional authority to conduct electronic surveillance in national security matters without prior judicial approval. The authority is grounded in Article II of the Constitution, which charges the Executive to “preserve, protect and defend the Constitution of the United States.” This authority was accorded great deference for many years, until that began to change in the early 1970s.7
In 1972, the Supreme Court took up the question in United States v. United States District Court (Keith), 407 U.S. 297 (1972), a case involving the bombing of a CIA building and the warrantless surveillance that led to the indictment of the U.S. persons involved. Justice Powell, writing for the majority, rejected the government’s assertion of a blanket national security exception to the Fourth Amendment’s warrant requirement as codified in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”), concluding the government’s concerns did not justify a departure from the customary Fourth Amendment requirement of judicial pre-approval under the circumstances presented.8 Id. at 323-24. The Court expressly refused, however, to “judge[] the scope of the President’s surveillance power with respect to the activities of
7 See Fiss, O., “Even in a Time of Terror,” 31 Yale Law & Policy Rev. 1 (2012). 8 Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”) governs domestic electronic surveillance activities and requires federal, state, and other officials to obtain judicial approval on a specific showing of probable cause before intercepting “wire, oral, and electronic” communications such as telephone conversations and e-mails.
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foreign powers, within or without [the U.S.],” id. at 308, leaving that question open. The Court further recognized potential distinctions between national security surveillance and “surveillance of ‘ordinary crime,’” and invited Congress to consider protective standards for the former different from those prescribed in Title III that took these distinctions into account. Id. at 322-23. “Different standards,” the Court acknowledged, “may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.” Id. at 323.
The Watergate scandal in 1974 thrust the Executive’s use of electronic surveillance into the public eye. Revelations during several Senate Committee hearings revealed a host of warrantless privacy infringements of U.S. citizens in the name of national security, including wiretapping of congressional staffers, anti-war protesters, and civil rights activists including Dr. Martin Luther King. After fourteen Senate Reports and significant debate, Congress enacted the Foreign Intelligence Surveillance Act “to regulate the use of electronic surveillance within the United States for foreign intelligence purposes.” See S. Rep. 95-604, p. 7 (1977). President Carter signed it shortly thereafter. 92 Stat. 1783, 50 U.S.C. § 1801 et seq.
In constructing a framework for foreign intelligence surveillance that balanced the Executive’s foreign intelligence and security prerogatives with Americans’ privacy interests, Congress defined “electronic surveillance” narrowly to include only foreign
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intelligence collection activities that impacted U.S. persons or took place on U.S. soil,9
and prohibited anyone from engaging in “electronic surveillance under color of law
except as authorized by this Act.” 50 U.S.C. § 1809(a)(emphasis mine). Congress then
created two specialized foreign intelligence courts – the FISA Court (FISC) and the FISA
Court of Review (FISR) – that would approve and review the approval of “electronic
surveillance” under the Act. 50 U.S.C. § 1803(a) & (b), discussed in Clapper, 133 S. Ct.
at 1143. Surveillance authorization would be given if there was “probable cause to
believe that . . . the target of the electronic surveillance is a foreign power or an agent of a
foreign power . . . and each of the facilities or places at which the electronic surveillance
is directed is being used, or is about to be used, by a foreign power or an agent of a
foreign power”; and if minimization procedures are in place that meet with FISC approval
under the standards articulated in the statute. See 50 U.S.C. § 1805(a). As will be
9 See 50 U.S.C. § 1801(f)(1)-(4)(§ 1801(f)(1)-(4)(defining “electronic surveillance” in terms of wire or radio communications targeting a person “in,” acquired “in,” or intended for or received by someone “in,” the “United States”). Given that international communications in 1978 were carried through satellite signals or over transoceanic cables subject to interception offshore, Congress understood this language would exempt NSA’s foreign-to-foreign as well as most of its international communications surveillance from regulation, because neither would fall within the definition of “electronic surveillance” under the Act:
“The language of this amendment exempts . . . foreign intelligence gathering . . . . if the acquisition does not come within the definition of ‘electronic surveillance’. . . . Specifically this provision is designed to make clear that the legislation does not deal with international signals intelligence activities as currently engaged in by the National Security Agency and electronic surveillance conducted outside the United States.” See United States v. Mohamud, Crim., Case No. 10-cr-475-KI, slip op. at p. 12, 2014 WL 2866749 (D. Or. June 24, 2014)(quoting S. Rep. No. 95-701, at 71 (1978)).
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discussed in more detail below, “minimization procedures” serve as the principle means
of protecting the Fourth Amendment privacy interests of U.S. persons whose
communications are caught up in foreign intelligence surveillance under FISA.10
Expansion of FISA Authority.
Almost as soon as it was enacted, pressure began to build to clarify and expand the
Executive’s foreign surveillance authority under the FISA statute. Increasing terrorist
activity raised the stakes11 and changes in communications technology brought
intelligence surveillance intended to remain outside FISA’s purview within its definition
of domestic surveillance and thus subject to FISA Court review and regulation.12
In 1981, President Reagan issued Executive Order 12333, reaffirming the
Executive’s inherent authority to conduct covert operations and collect information on
10 “Minimization procedures” under FISA are defined as “specific procedures . . . adopted by the Attorney General, that are reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” 50 U.S.C. § 1801(h).
11 The 1979 seizure of the U.S. embassy in Tehran; a series of Libyan and Hezbollah bombings, attacks and hostage taking beginning in 1982 and continuing throughout the 80s and early 90s, including the 1988 bombing of a Pan-Am flight over Lockerbie, Scotland, in 1988; the 1993 World Trade Center bombing in New York; and the Oklahoma City bombing in 1995 are but a few examples.
12 The advent of the internet, for example, meant that foreign communications previously transmitted via satellite or transoceanic cables in 1978 were now carried over fiber optic cables. Because these cables were arguably “wires,” foreign surveillance that would have been excluded from FISA regulation in 1978 was rendered potentially unlawful due merely to a change in technology, rather than any intentional decision by Congress. See Modernization of the Foreign Intelligence Surveillance Act: Hearing before the S. Sel. Comm. on Intel., 110th th Cong., 1st Sess. (2007) at pp. 9-19 (testimony of the Director of National Intelligence).
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“foreign powers, organizations, persons, and their agents” without reference to FISA, and specifically authorizing “elements of the intelligence community . . . to collect retain, or disseminate information concerning United States persons.” EO 12333, Parts 2.2, 2.3.13 In 1995 and 1998, Congress amended FISA directly, first to include physical searches, 50 U.S.C. §§ 1821-29, and then the installation and use of pen register and trap and trace devices, §§ 1841-46, “for foreign intelligence purposes.”
Then in 2001, foreign terrorists carried out the coordinated 9/11 attacks on New York City and the Pentagon, killing nearly 3,000 people on American soil. Within weeks, both President George W. Bush and Congress had acted to expand Executive surveillance authority and facilitate more effective coordination between the intelligence community and federal law enforcement agencies. In October 2001, Congress passed the USA PATRIOT ACT,14 sweeping legislation that modified multiple existing laws and enhanced the government’s law enforcement authority as it related to investigating and prosecuting terrorism.15 Among other things, the PATRIOT ACT revised FISA § 104's
13 EO 12333's complete text appears at 46 Fed. Reg. 59941, 3 C.F.R. 14 United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the “USA PATRIOT ACT), Pub. L. 107-56 (October 26, 2001). 15 The USA PATRIOT Act not only amended FISA, but also the Electronic Communications Privacy Act, Computer Fraud and Abuse Act, Pen Register and Trap and Trace Statute, Money Laundering Act, Immigration and Nationality Act, Money Laundering Control Act, Bank Secrecy Act, Right to Financial Privacy Act, and the Fair Credit Reporting Act all were impacted by USA PATRIOT Act amendments. See generally, Congressional Research Service (2002b), “The USA PATRIOT Act: A sketch.” [On-line]. Available: http://www.fas.org/irp/crs/RS21203.pdf
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“purpose” requirement. Responding to a series of court cases and intelligence agency policies that had erected a “Wall” between foreign intelligence and criminal investigations, the ACT authorizing FISA applications on a certification that foreign intelligence gathering was a “significant,” rather than “primary” purpose of the surveillance sought. Compare 50 U.S.C. § 1804(a)(6)(B) (2008) with 50 U.S.C. § 1804(a)(7)(B) (2000)(change discussed at length in United States v. Abu-Jihaad, 630 F.3d 102, 122-23 (2d Cir. 2010)). President Bush, meanwhile, responded to the 9/11 attacks by authorizing the NSA to conduct warrantless wiretapping of telephone and e-mail communications in the United States outside the purview of FISC entirely, as long as one party to a communication was located outside the United States and a participant in “the call was reasonably believed to be a member or agent of Qaeda or an affiliated terrorist organization.” See Clapper, 133 S. Ct. at 1143-44. Until 2005, neither the public nor most members of Congress were aware the President’s Terrorist Surveillance Program (TSP) existed.
President Bush’s confirmation in December 2005 that the NSA had been conducting warrantless electronic surveillance of U.S. persons without even FISA Court approval prompted Congress, once again, to conduct a “vigorous inquiry” into the Executive’s secret surveillance activities. See S. Rep. No. 110-209, 1st Sess. 1 (2007). With all parties in agreement that FISA required updating, Congress set to work. See Modernization of the Foreign Intelligence Surveillance Act: Hearing before the H.
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Permanent Select Comm. on Intel., 109th Cong., 2d Sess. (2006).16
The PAA and Elimination of the “Foreign Agent” Probable Cause Requirment
As a result of these efforts, Congress enacted the Protect America Act (“PAA”) in
August 2007, a temporary measure that brought the Executive’s TSP authority into the
FISA fold. Codified at 50 U.S.C. § 1805a, b & c, the PAA permitted the Director of
National Intelligence and the Attorney General to authorize the acquisition of foreign
intelligence information “concerning persons reasonably believed to be located outside
the United State” without reference to their status as foreign agents, limited solely by the
establishment of targeting and minimization procedures to “preserve the privacy interests
16 During hearings, Congress heard testimony on the ways the advancement of communications technology since 1978 had created unforeseen consequences under FISA. Transmission over an integrated global communications grid blurred the distinction between domestic and offshore acquisition. Domestic communications between neighbors in Peoria could travel around the world and be intercepted abroad. Foreign-to-foreign communications that were previously beyond FISA’s reach could be intercepted in the United States.
[As a communication travels the global network,] NSA may have multiple opportunities to intercept it as it moves and changes medium. As long as a communication is otherwise lawfully targeted, we should be indifferent to where the intercept is achieved. Signals intelligence is a difficult art and science . . . . Intercept of a particular communication . . . is always probabilistic, not deterministic [and] [n] o coverage is guaranteed.
FISA for the 21st Century: Hg. before the S. Comm. on the Judiciary, 109th Cong., 2d Sess. (2006)(statement of NSA Director General Michael V. Hayden). The necessary fix, Congress was told, was a “technology-neutral” framework for surveillance of foreign targets – focused not on “how a communication travels or where it is intercepted,” but on “who is the subject of the surveillance, which really is the critical issue for civil liberties purposes.” FISA Modernization Hg. at 46 (statement of Asst. Atty Gen. Kenneth L. Wainstein). With these changes, it was implied, the original balance between strictly “foreign” foreign intelligence gathering and foreign intelligence gathering that impacted Americans struck by FISA in 1978 could be reconstituted, and secret programs like TSP could be brought to light and integrated into the FISA framework.
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of persons in the United States.” S. Rep. No. 209, 110th Cong. 1st Sess. at 5-6. The PAA was revised and incorporated into FISA by the FISA Amendments Act of 2008, becoming § 702 of a new FISATitle VII.
Section 702, like the PAA before it, authorizes the Attorney General and the Director of National Intelligence to authorize jointly, “for a period of up to 1 year,” the “targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a). Like the PAA, § 702 permits the government to intercept all communications to and from the target, including those of U.S. persons, without demonstrating probable cause that either is a foreign power or the agent of a foreign power, and without identifying the facilities or places where the electronic surveillance will occur. FAA procedure simply requires the Attorney General, in consultation with the Director of National Intelligence, to select a target and adopt guidelines the Attorney General certifies will “ensure” compliance with appropriate targeting and minimization procedures, as well as the limitations on § 702 surveillance authority set forth in § 1881a(b). See § 1881a(f)&(g). If the FISC finds the AG’s certifications, targeting, and minimization procedures are “consistent with [the FAA’s requirements] and with the fourth amendment to the Constitution of the United States,” it “shall” enter an order approving the certification and use of the procedures for the acquisition. 50 U.S.C. § 1881a(i).
Section 702's limitations are significant, but largely conclusory and “riddled with loopholes.” An acquisition under § 702(a) may not “intentionally” target a person
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“known” at the time of acquisition to be located in the United States (§ 1881a(b)(1)), or “intentionally target” a person “reasonably believed to be located outside the United States” if the “purpose” of such acquisition is to target a “particular, known person reasonably believed to be in the United States.” § 1881a(b)(2). Also, acquisitions must be “conducted in a manner consistent with the fourth amendment to the Constitution.” § 1881a(b)(5). But the government is the sole arbiter of its “knowledge,” “intent,” “purposes,” and “conduct.”17 The government can continue “incidently” acquiring a person’s communications under § 702 even after such reveals evidence of a crime, as long as the government avoids learning that the person is a U.S. person or located in the United States. It can avoid seeking Title I or Title III authority to target the person directly by simply declining to call that person a “target.” It can say it is “conducting” this surveillance consistently with the fourth amendment, but § 702 provides no mechanism for FISC to assess whether that is the case. For an excellent discussion of the FAA’s weaknesses and prescriptions for remedying them, see T. Anderson, “Toward Institutional Reform of Intelligence Surveillance: A Proposal to Amend the Foreign Intelligence Surveillance Act,” 8 Harv. Law & Policy Rev. 413 (Summer 2014).
17 Compliance with § 702(b) limitations and with the Attorney General’s proffered targeting and minimization procedures is self-monitored and self-executing under the FAA, as judicial review is limited to the initial authorization and any reauthorizations sought by amendment. See § 1881a(i). The FAA requires that the Attorney General and Director of National Intelligence conduct a “semi-annual assessment” of compliance with the targeting and minimization procedures of a particular surveillance authorization, § 1881a(l), but other than submitting that assessment to FISC and to congressional intelligence and judiciary committees, the FAA requires no action on the assessment and no judicial review on the part of FISC.
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FISA and Law Enforcement. Our concern in this case, of course, is the confluence of FISA and law enforcement, i.e., what happens when FISA surveillance results in the acquisition of evidence of a crime. It is clear that FISA surveillance is more than simply foreign intelligence gathering, and that its purpose since its inception has been the discovery and investigation of foreign intelligence crimes. See In re Sealed Case, 310 F.3d 717, 725 (Foreign Int. Surv. Ct. Rev. 2002). U.S. persons may be authorized targets, and surveillance may be part of an investigative process designed to protect against the commission of serious crimes such as espionage, sabotage, assassination, kidnaping, and terrorist acts committed by or on behalf of foreign powers. Id. (quoting S. Rep. No. 95701, at 10-11 (1978)). The question has always been where these two functions merge, i.e., where FISA-acquired electronic surveillance information, which is acquired without a warrant under the Wiretap Act, is used against an U.S. person who would otherwise enjoy the protections of that Act. Before the enactment of the FAA, case law developed permitting the use of FISAacquired evidence against U.S. persons in criminal prosecutions as long as there was probable cause to believe those persons were “foreign powers” or “agents of a foreign power” (50 U.S.C. § 1805(a)(2)) and the surveillance was properly conducted “to acquire foreign intelligence information.” 50 U.S.C. § 1802(a)(1). E.g. United States v. Pelton, 835 F.2d 1067, 1074-76 (4th Cir. 1987), cert. denied, 486 U.S. 1010 (1988)(as long as the purpose of FISA surveillance is foreign intelligence gathering, that purpose is not
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changed merely because government anticipates using fruits of FISA surveillance in criminal prosecution). The purpose of the surveillance cannot be a ruse. See United States v. Johnson, 952 F.2d 656, 572 (1st Cir. 1991), cert. denied, 506 U.S. 816 (1992)(government cannot use FISA as an “end-run around the Fourth Amendment’s prohibition of warrantless searches” by drumming up a foreign intelligence purpose for ordinary criminal investigation); United States v. Troung Dinh Hung, 629 F.2d 908, 916 (4th Cir. 1980)(targets must “receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution.”) But unless surveillance is conducted “solely” for law enforcement purposes, the Fourth Amendment under Keith is flexible enough to justify the use of FISA-acquired evidence in criminal prosecutions even without a Title III warrant. See U.S. v. Duka, 671 F.3d 329, 345 (3d Cir. 2011)(evidence derived from a reasonable search is admissible in a criminal trial); Abu-Jihaad, 630 F.3d at 12 (Fourth Amendment does not require the government to identify a primary purpose or limit its ability to secure a warrant to satisfaction of the standards for that purpose; rather, the government may secure a warrant under the probable cause standards applicable to any purpose that it pursues in good faith).
Under the FAA, § 702 does away with the § 105's probable cause requirement, permitting the government to target persons based solely on their physical presence outside the United States, and to intercept communications to and from those persons, as long as the surveillance was conducted “to acquire foreign intelligence information.” § 1881a(a). Mr. Muhtorov contends this change distinguishes the case law allowing the
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use of FISA-acquired evidence in criminal prosecutions, and renders the use of FAAacquisitions against U.S. persons in criminal prosecutions unconstitutional.
II. DISCUSSION. Mr. Muhtorov contends the fruits of the government’s § 702 surveillance must be suppressed because the statute that authorized the surveillance is unconstitutional. He argues the FAA violates the Fourth Amendment by authorizing surveillance that contravenes the warrant clause and, independently, surveillance that is unreasonable. He also argues the FAA violates Article III by requiring judges to issue advisory opinions in the absence of a case or controversy, citing my opinion in United States v. Smith18 in support. The FAA and Article III’s Case or Controversy Requirement I pause briefly to address Mr. Muhtorov’s assertion that the FAA is unconstitutional because it violates Article III’s “case or controversy” requirement. His argument is novel and elegant, but I will not be the first to adopt it. Plainly stated, Muhtorov argues the FAA assigns to the FISA Court a role “fundamentally incompatible with the case-or-controversy requirement” because it compels FISC to “evaluate in a vacuum whether proposed targeting and minimization procedures comply with the statute
18 United States v. Smith, 686 F. Supp. 847 (D. Colo. 1988)(declaring Sentencing Reform Act of 1986 unconstitutional, in part, because role played by Article III judges on Sentencing Commission violated principles of separation of powers).
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and the Constitution” without any particularized facts or context. Mot. (Doc. 520) at 45.
The authority he cites for his proposition, however, is either inapposite,19 or
distinguishable,20 and none applies the concept in the context of the “neutral magistrate”
or other arbiter of search authorizations or warrants under the Fourth Amendment.
Mr. Muhtorov’s strongest argument is that courts that have rejected Article III
challenges to the traditional FISA process have done so because the FISC’s job is a
particularized one – i.e. that under 50 U.S.C. § 1805(a) and (b), FISC considers concrete
facts about a specific person to be monitored and the facilities to be targeted. Citing U.S.
19 Flast v. Cohen, 392 U.S. 83, 97 (1968)(addressing case in controversy requirement in context of standing analysis for taxpayer suit challenging validity of federal spending on textbooks); Citizens Concerned for Separation of Church & State v. City & Cnty. of Denver, 628 F.2d 1289, 1295 (10th Cir. 1980)(using case or controversy requirement as source for standing analysis, finding citizens lacked standing to bring First Amendment challenge to City’s creche display because there was no showing of causal connection between the creche display and any injury in fact to plaintiff); In re Summers, 325 U.S. 227, 241 (1937)(holding that a claim of a present right to admission to state bar association and denial of that right is a case or controversy that may be reviewed under Article III when federal questions are raised). The citation to my opinion in Smith is more interesting, because although my ruling there passed on a completely different aspect of the separation of powers doctrine, I observed that article III judges “‘[d]ischarging tasks other than the deciding of cases and controversies’” would involve them in the process of policy and thereby “‘weaken confidence in the disinterestedness of their judicatory functions.’” 686 F. Supp. at 855 (quoting In re Sealed Cases, 838 F.2d 476, 512 (D.C. Cir. 1988). The point is correct, in my view, but not particularly germane. If the concern is that FISC’s participation in § 702 authorizations undermines the perceived impartiality or detachment of the judiciary from law enforcement, it is of a kind with concerns over judges participation in secret or ex parte proceedings of all types, and wiretap authorizations generally.
20 See New York v. Ferber, 458 U.S. 747, 768 (1982)(addressing the need to focus on “flesh-and-blood” applications of fact to law in context of First Amendment overbreadth challenge to child pornography statute); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937)(construing Declaratory Judgment Act’s “actual controversy” requirement in context of Article III’s limitation of judicial power to “‘cases’ and ‘controversies,’” holding the term “‘controversies,’ if distinguishable at all from ‘cases,’ is so in that it is less comprehensive than the latter, and includes only suits of a civil nature”).
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v. Megahey, 553 F. Supp. 1180, 1186 (E.D.N.Y. 1982), aff’d 729 F.2d 1444 (2d Cir. 1983), and aff’d on other grounds sub nom. United States v. Duggan, 743 F.2d 59 (2d Cir. 1984). In Megahey, defendants argued that FISC was not constitutionally authorized under Article III because FISA required it to issue orders on an ex parte basis without any adversarial proceedings. The district court rejected the argument, stating
Applications for electronic surveillance submitted to FISC pursuant to FISA involve concrete questions respecting the application of the Act and are in a form such that a judge is capable of acting on them, much as he might otherwise act on an ex parte application for a warrant. In the case of each application, the FISC judge is statutorily obliged to ensure that each statutory prerequisite is met by the application before he may enter a surveillance order. The FISC judge who is faced with a surveillance application is not faced with an abstract issue of law or called upon to issue an advisory opinion, but is, instead, called upon to ensure that the individuals who are targeted do not have their privacy interests invaded, except in compliance with the detailed requirements of the statute. 553 F. Supp. 1180 at 1197. That the FAA altered this analysis is undeniable. The “concrete questions” and “individual targets” contemplated by traditional FISA authorization requests have been excused in authorization requests under the FAA. Moreover, the “incidental interceptees” with whom we are concerned are nameless, faceless, and transient in the context of § 702 surveillance, and their privacy interests are evaluated solely in the context of the certified targeting and minimization procedures FISC is asked to approve. The government dismisses this distinction, arguing FAA authorization approval is more similar to traditional FISA approval than different, and constitutionally not unlike other statutory schemes in which courts assess the reasonableness of standards and
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procedures for conducting searches or surveillance consistently with Article III. Govt’s Unclassified Resp. to Mot. Suppress (Doc. 559) at 79-80 (citing United States v. Tortorello, 480 F.2d 764, 772-73 (2d Cir. 1973)(analyzing adequacy of New York statutory procedures for reauthorizing surveillance after original authorization accidently uncovered evidence of crime) and Camara v. Municipal Court, 387 U.S. 523, 537-38 (1967)(approving warrantless inspection provision of municipal housing code – standard may be based on passage of time or nature of the building, and not necessarily specific knowledge of particular dwelling)). Accordingly to the government, FISC’s job of analyzing the reasonableness of electronic surveillance by weighing national security interests against the privacy interests of potential subjects is a “traditional judicial function,” citing Halperin v. Kissinger, 606 F.2d 1192, 1201 n.59 (D.C. Cir. 1979), and is not rendered otherwise by the fact that the potential subjects are not identified with particularity.
I do not dismiss the distinction so easily. FISC’s job under the FAA is substantively different than it is under traditional FISA and under any of the other examples of “traditional judicial function” the government cites. Under the FAA, incidental interceptees are part of the surveillance contemplated, but no particularized information about them or their communications practices is presented to FISC for consideration. Each of the scenarios cited by the government is different: There would have been no “case or controversy” in Tortorello without Arthur Tortorello, and no “case or controversy” in Camara without Roland Camara.
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FISC’s role in approving the surveillance of individual foreign powers or agents
under traditional FISA is qualitatively different from its role in approving the surveillance
and incidental acquisition of strangers’ communications under the FAA. Whether that
role offends Article III sufficiently to invalidate § 702 as a tool for gathering foreign
intelligence information is one I leave to a higher court.21 For purposes of the case before
me, my judgment is that it does not.
The FAA’s Validity Under the Fourth Amendment.
While FISA authorizes the government to conduct relatively narrow surveillance
of individuals reasonably believed to be “foreign agents” or “foreign powers,” the FAA
permits the government to monitor any person, and that person’s contacts, without
reference to his foreign status or agency. By permitting the government to acquire
“essentially any communication that originates or terminates outside the United States,”
21 I note that during the course of briefing in this case, Judge King in the District of Oregon issued his opinion in United States v. Mohamud, 2014 WL 2866749 (2014), upholding the FAA and the government’s disclosure that it had used FAA-acquired evidence to secure the conviction of a U.S. person. Defendant’s arguments in Mohamud, discussed further infra, included an Article III challenge similar to Mr. Muhtorov’s here. While I agree with several of Judge King’s legal conclusions in Mohamud, I find his analysis of defendant’s “case or controversy” arguments unpersuasive. Judge King spent most of his discussion couching defendant’s arguments in terms of a separation of powers challenge, which he contends has been put to rest by Mistretta v. United States, 488 U.S. 361 (1989). Id. at *10-11. As set forth in n. 19, supra, I find the separation of powers analysis inapposite to the “case or controversy” argument raised. Judge King’s further discussion equates FISC’s role in FAA surveillance authorizations to the “neutral and detached” review conducted by magistrates under the Wiretap Act, citing Keith. Id. at *11. In so doing, Judge King did not address the fundamental differences between wiretap authorization reviews conducted in criminal cases and traditional FISA on the one hand, and the FAA on the other. As a result, I do not believe Mohamud moves the ball forward on this issue.
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Mr. Muhtorov contends the FAA violates both the Fourth Amendment’s warrant clause and its ban on unreasonable searches and seizures. Mot. Suppress (Doc. 520) at 21.
The Fourth Amendment’s Warrant Requirement The Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the places to be searched, and the persons or things to be seized. The modern Supreme Court has done away with an interpretation of the Fourth Amendment that requires a warrant, a probable cause determination, “‘[]or, indeed, any measure of individualized suspicion,” in every circumstance, before a search may be lawful. Mohamud, 2014 WL 2866749 at *12 (quoting Nat’l Treasury Emp. Union v. Von Raab, 489 U.S. 656, 665 (1989)(holding suspicionless drug-testing of certain United States Custom Service employees not unreasonable under the Fourth Amendment)). The warrant requirement does not apply to activities of the United States directed against aliens in a foreign territory, United States v. Verdugo-Urquidez, 494 U.S. 259, 267 (1990)(search of the Mexican residences of a Mexican citizen), and does not apply to even U.S. persons if the government establishes a defensible “special need” to dispense with it. See e.g. Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)(exception to Fourth Amendment’s warrant requirement “when special needs, beyond the normal need for law enforcement, makes the warrant and probable-cause requirement impracticable.”)). Courts have combined these concepts to carve out a “foreign intelligence
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exception” to the warrant requirement,22 which Mr. Muhtorov urges me to reject.23 I find the special need/foreign intelligence exception argument somewhat academic and limiting, because the standard ultimately is one of reasonableness, and it is on that standard that the constitutionality of § 702's warrantless surveillance authorization must be decided. See Samson v. California, 547 U.S. 843, 852 n.3 (2006)(declining to address whether California’s parole search condition was justified “special need” under Griffin because determination that condition was reasonable rendered examination unnecessary).
On its face, § 702 surveillance targets individuals outside the United States “to acquire foreign intelligence information.” The reasonabless of that targeting, without a warrant, is not the essence of our inquiry. See In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (For. Intel. Surv. Ct. Rev. 2008)(Even if a foreign intelligence exception applies in a given case, “governmental action intruding on the individual privacy interest [of U.S. persons] must comport with the Fourth Amendment’s reasonableness requirement.”). Our concern is with the axiomatic corollary of that targeting, i.e., that U.S. persons’ communications with the target are perforce acquired as part of that targeted surveillance, and may be used
22 See Duka, 671 F.3d at 341 (stating “courts have concluded that the important national interest in foreign intelligence gathering justifies electronic surveillance without prior judicial review, creating a sort of ‘foreign intelligence exception’ to the Fourth Amendment’s warrant requirement,” and collecting cases).
23 Mot. Suppress (Doc. 520, at 27, 30)(there is no “special needs” exception to the warrant requirement for foreign intelligence and “not basis to conclude” the requirement is unworkable here).
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against them in criminal investigations on American soil without any reasonable suspicion or probable cause determination having been made as to them.
Reasonableness. The touchstone of constitutionality under the Fourth Amendment is reasonableness. It is a fluctuating rather than fixed standard. It depends not only on an analysis of the discrete facts incident to a finding of probable cause (and, for that matter, the search and/or seizure itself), but also the intent and purpose of the established laws of the United States. Because the test is one of reasonableness, the panoply of relevant factors must be considered. In the instant case, the charges against Mr. Muhtorov are premised in the constitutional requirement that the Executive has broad powers to protect the United States against foreign threats. What may be unreasonable in a purely domestic matter may, on balance, be considered reasonable in the context of the security of the nation in dealing with foreign powers and organizations that pose a threat. “It must be remembered that what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Elkins v. Unites States, 364 U.S. 206, 222 (1960). To analyze whether a government search is reasonable under the Fourth Amendment, the court examines the totality of the circumstances. Samson v. California, 547 U.S. 843, 848 (2006). The court weighs “the promotion of legitimate governmental interests against the degree to which [the search] intrudes upon an individual’s privacy.” Maryland v. King, __ U.S. __, 133 S. Ct. 1958, 1970 (2013)(internal citations and quotations omitted). Under this standard, the modern Supreme Court has approved
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statutory schemes requiring arrestees to submit to buccal swab DNA testing solely as a police booking procedure, see id., and parolees to agree in writing to be subject to suspicionless searches at any time, day or night. Samson, 547 U.S. at 846 (Thomas, J.)
Mr. Muhtorov argues that in the context of electronic surveillance, reasonableness requires that eavesdropping be “precise and discriminate” and “carefully circumscribed so as to prevent unauthorized invasions of privacy.” Mot. (Doc. 520) at 34 (citing Berger v. State of New York, 388 U.S. 41 (1967) and United States v. Bobo, 477 F.2d 974, 980 (4th Cir. 1973)). He urges me to look to traditional FISA and Title III as measures of the reasonableness for electronic surveillance, arguing FAA’s approval scheme permitting the generalized acquisition of U.S. persons’ communications without any particularized showing or demonstration of cause is a bridge too far. Id. I do not disagree, but find there is more to the balance than that. The fact traditional FISA surveillance requires a particularized demonstration of probable cause and is constitutional does not mean that FAA surveillance is unconstitutional because it does not. The question is the degree of the intrusion, weighed against the government’s legitimate interest in acquiring foreign intelligence information to protect against the commission of serious crimes such as espionage and terrorist acts committed by or on behalf of foreign powers. In my view, the FAA passes the Fourth Amendment test.
Privacy Interest. As an initial matter, I consider Mr. Muhtorov’s privacy interests. Under § 702, the intrusion on an individual’s privacy is as an incidental third party who is a participant in
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intercepted communications with a target overseas. The government contends defendants have little or “severely diminished” expectations of privacy in their communications with non-U.S. persons overseas, see Unclassified Br. (Doc. 559) at 59-61, & n. 37, based simply on the fact that those persons could be targets for surveillance both by the U.S. government and by other foreign governments or private interest. While I could never adopt the government’s cynical view of the First and Fourth Amendment, it is true that expectations of privacy are diminished the more information one puts out into the ether, especially the ether of the global telecommunications network.
Fourth Amendment jurisprudence has long recognized a third-party doctrine, i.e., a diminishment or loss of a person’s privacy interests where he reveals information to a third party, even in confidence. See United States v. Miller, 425 U.S. 435, 444 (1976)(bank records); Smith v. Maryland, 442 U.S. 735 (1979)(use of a pen register by telephone company does not constitute a search within meaning of Fourth Amendment because person has no legitimate expectation of privacy in numbers dialed on his phone). The concept has been held to apply to electronic communications, where “a person’s reasonable expectation of privacy may be diminished in transmissions over the Internet or e-mail that have already arrived at the recipient .” United Sates v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007). While Mr. Muhtorov and others have a reasonable expectation of privacy in the content of their communications generally, those interests are at least somewhat diminished when transmitted to a third party over the internet.
Weighing Privacy and National Security Interests to Assess Reasonableness. -28-

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The intrusion into U.S. persons’ legitimate privacy interests under § 702 is less than the generalized “vacuum-cleaner-style mass collection of virtually every person’s international communications” of which Mr. Muhtorov, in his role as Clapper-qualified antagoniste, complains. Collection must be demonstrably intertwined with the government’s efforts to “acquire foreign intelligence information,”24 § 1881a(a), and may not “intentionally target any person known at the time of the acquisition to be located in the United States.” § 1881a(b)(1). Approval hinges on findings that “foreign intelligence information” gathering is a “significant purpose” of the surveillance, and limitations against abusing the § 702 surveillance process to effectively target Americans will be observed.
More importantly, as was posited at the beginning of this opinion, Mr. Muhtorov’s concern is less with the incidental acquisition of his communications by national intelligence agencies during the course of otherwise lawful foreign intelligence gathering, but in the retention and use of those communications by federal law enforcement in criminal proceedings against him in a court of law. FISA clearly contemplates that intelligence gathering and law enforcement “tend to merge” in the area of terrorism detection and prevention. See In re Sealed Case, 310 F.3d at 725 (citing S. Rep. 95-701
24 “Foreign intelligence information” is defined under FISA as information that “relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against . . . an actual or potential attack . . . sabotage, international terrorism, or the international proliferation of weapons of mass destruction . . . , or clandestine intelligence activities.” § 1801(e)(1). It is also information with respect to a foreign power . . . that relates to, and if concerning a United States person is necessary to . . . the national defense or the security of the United States.” § 1801(e)(2).
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(1978)). The government’s interest in using intelligence information to detect and prevent criminal acts of terrorism, and ultimately to punish their perpetrators, is a legitimate governmental interest against which individual FAA privacy intrusions must be weighed.
Relevant to balancing of FAA interceptees’ privacy interests against the government’s interest in detecting and preventing acts of terrorism, is the fact that the government’s use of FAA-acquired communications is carefully controlled under FISA. See id., 310 F.3d at 740-41. Minimization procedures must be adopted by the Attorney General for every application under the FAA, see § 1881a(e), and must be designed to “minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.” 50 U.S.C. § 1801(h)(1). Procedures must provide for the weeding out of information that is not foreign intelligence information, and the protection of it from dissemination in any manner that identifies a United States person without his consent. § 1801(h)(2). Additional minimization procedures must be established for the retention and dissemination to law enforcement of information that is evidence of a crime, § 1801(h)(3), and provide for how communications to which a United States person is a party may be disclosed, disseminated, or used, and provide time limits for retention. § 1801(h)(4).
Mr. Muhtorov argues that § 702's minimization procedures are inadequate (and the approval scheme therefore constitutionally unreasonable) because they allow the
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government to maintain a database of incidently collected information and query it for law enforcement purposes later. These “backdoor searches,” Muhtorov concludes, require a warrant and render the FAA approval scheme unconstitutional. I disagree. Accessing stored records in a database legitimately acquired is not a search in the context of the Fourth Amendment because there is no reasonable expectation of privacy in that information. Evidence obtained legally by one police agency may be shared with similar agencies without the need for obtaining a warrant, even if sought to be used for an entirely different purpose. This principle applies to fingerprint databases and has also been applied in the foreign intelligence context in Jabara v. Webster, 691 F.2d 272, 27779 (6th Cir. 1982).
Applying these standards to the suspicionless incidental acquisition of U.S. persons’ communications contemplated under the FAA, I cannot conclude that the FAA’s approval procedures are per se constitutionally infirm. These acquisitions must be tailored to the very serious purpose of foreign intelligence gathering, as defined in the Act, and may not be used to target U.S. persons as an end-run around Title III. Minimization procedures must weed out acquisitions that are unrelated to foreign intelligence gathering, and inform the retention, querying, and dissemination of those acquisitions for law enforcement purposes in a manner that is consistent with the limitations in § 1881a(b). I note this conclusion is consistent with Judge King’s in Mohamud (2014 WL 2866749 at *27), the only other decision to date to have addressed the specific Fourth Amendment challenge to the FAA presented here.
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That I do not find the FAA unconstitutional on its face does not per force mean that it was constitutionally applied to Mr. Muhtorov. As I have already observed, § 702's authorization procedures are “riddled” with loopholes and there is no judicial oversight of their execution over time. Any acquisition, retention, dissemination, or use of his electronic communications that abused one of these loopholes or exceeded FISC’s authorizations in this case would be unlawful. Accordingly, I proceed to consider the constitutionality of the specific § 702 acquisitions of Mr. Muhtorov’s electronic communications in this case.
Acquisition of § 702 Materials in this Case. Other than the specific timeline of the § 702 acquisitions involving Mr. Muhtorov, the relevant facts in this case are straightforward and minimally classified. Nearly all are recited in the Affidavit of Special Agent Hale of the Federal Bureau of Investigation, a public document filed with the court in support of the criminal complaint (Doc.1, filed 01/19/12). The problem with Agent Hale’s factual recitation is that it elides any express distinction between the facts gathered as a result of Title I (electronic) and Title III (physical) searches on the one hand, and Title VII (FAA-acquired) information on the other. The Islamic Jihad Union (IJU) is an extremist organization that splintered from the Islamic Movement of Uzbekistan (IMU) in the early 2000s. The IJU adheres to an anti-Western ideology, opposes secular rule in Uzbekistan, and seeks to replace the current regime with a government based on Islamic law. The IJU first conducted attacks
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in April, 2004, targeting a popular bazaar and police at several roadway checkpoints. These attacks killed approximately 47 people, including 33 terrorists, some of whom were suicide bombers. The IJU claimed responsibility for these attacks on multiple militant Islamic websites and denounced the leadership of Uzbekistan. In July, 2004, the IJU conducted simultaneous suicide bombings of the United States and Israeli Embassies in Uzbekistan as well as the Uzbekistani Prosecutor General’s Office in Tashkent, Uzbekistan. Claiming responsibility for these attacks, the IJU stated that its martyrdom operations would continue. The IJU also claimed the attacks were committed in support of its Palestinian, Iraqi and Afghan brothers in a global insurgency.
In September, 2007, German authorities arrested three IJU operatives, thus disrupting a plot against unidentified U.S. or Western facilities in Germany. The IJU operatives had available 700 kilograms of hydrogen peroxide and an explosives precursor sufficient in raw material to make the equivalent of about 1200 pounds of TNT. The IJU claimed responsibility for the foiled plot. The IJU has also claimed responsibility for attacks targeting coalition forces in Afghanistan in 2008 including a March suicide attack against a U.S. military post that was allegedly carried out by a German-born Turk.
In April, 2009, Turkish authorities seized weapons and detained extremists with ties to the IJU. The IJU also claimed responsibility for a May 2009 attack in Uzbekistan and numerous attacks in Afghanistan against coalition forces. At all times relevant to the charges against Mr. Muhtorov, the IJU was designated a terrorist organization by the Secretary of State, and has been so designated since June 12, 2005, under the name
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Islamic Jihad Group.25 As has already been disclosed, the FISA application at issue in this case was based
in part on FAA surveillance and collection. Mr. Muhtorov contends the “incidental” acquisition of his communications and their subsequent retention, querying, and use in criminal proceedings brought against him, was unreasonable under the Fourth Amendment. I have already reviewed the FISA Court’s Title I and Title III approvals and concluded the searches and surveillance conducted under those approvals was lawfully authorized and conducted. I have since performed an exhaustive in camera and ex parte review of all relevant additional classified materials provided to me by the government, including supplemental classified materials prepared at my request. I conclude on the record before me that a proper and supported application was filed, and that the targeting and minimization procedures forwarded were tailored to the government’s legitimate foreign intelligence purposes and took into account the privacy interests of individuals whose communications would be incidently acquired. Mr. Muhtorov’s Motion to Suppress Evidence Obtained or Derived under § 702 (Doc. 520) is DENIED. Because I find all legal criteria were met by the government to establish that the searches and surveillance at issue were lawfully authorized and conducted, there is no need to consider the “good faith” alternative basis for denying the Motion to Suppress.
25 Notification of its designation appears at 70 Fed. Reg. 35332-01 (June 17, 2005) and was amended to include the name “Islamic Jihad Union” on April 29, 2008, published in the 73 F. Reg 30443-01 (May 27, 2008).
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As stated at the June 17, 2015 status conference, I will address Mr. Muhtorov’s request for specific, additional discovery and declassification in a separate order, after conducting one or more prefatory CIPA § 4 hearings on the subject. Accordingly, this matter will be set for a discovery conference, to be attended by the government and the defense, at which time the government should be prepared to address the CIPA § 4 hearing and process for moving toward the declassification of any Brady and related information material to the defense in this case. The conference will be conducted before a court reporter and under conditions that will allow it to be conducted as a closed hearing, should the need arise. Dated November 19, 2015
s/John L. Kane SENIOR U.S. DISTRICT JUDGE
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 Case 1:12-cr-00033-JLK Document 5 Filed 01/23/12 USDC Colorado Page 1 of 2

Case 1:12-cr-00033-JLK Document 5 Filed 01/23/12 USDC Colorado Page 2 of 2
Ink signature on file /Clerk's Office
s/ Gregory A. Holloway 1225 - 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0100 Fax: 303-454-0201 e-mail: gregory.holloway@usdoj.gov Attorney for the Government

 
 Case 1:12-cr-00033-JLK Document 50 Filed 03/20/12 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Case No. 1:12-cr-00033-JLK UNITED STATES OF AMERICA,
Plaintiff, v. 1. JAMSHID MUHTOROV,
a/k/a Abumumin Turkistony, a/k/a Abu Mumin, a/k/a Horun Asrorov 2. BAKHTIYOR JUMAEV, a/k/a Abu Bakr Defendants.
SUPERSEDING INDICTMENT 18 U.S.C. § 2339B - Material Support of a Designated Foreign Terrorist Organization
and Attempt and Conspiracy to do the Same
COUNT 1 The Grand Jury charges that:
Between and on or about January 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendants, Jamshid Muhtorov, a/k/a “Abumumin Turkistony”, a/k/a “Abu Mumin”, a/k/a “Horun Asrorov”; and Bakhtiyor Jumaev, a/k/a “Abu Bakr”, together with others both known and unknown to the Gand Jury; did knowingly conspire, combine, confederate, cooperate and agree with each other to provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: property [at least $300 in currency], to a foreign terrorist organization,
1

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specifically the Islamic Jihad Union (“IJU”), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States; and, further there was interdependency among the members of the conspiracy.
All in violation of Title 18, United States Code, Section 2339B.
COUNT 2 The Grand Jury further charges that:
Between and on or about January 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendants, Jamshid Muhtorov, a/k/a “Abumumin Turkistony”, a/k/a “Abu Mumin”, a/k/a “Horun Asrorov”; and Bakhtiyor Jumaev, a/k/a “Abu Bakr”, together with others both known and unknown to the Gand Jury; did knowingly provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: property [at least $300 in currency], to a foreign terrorist organization, specifically the Islamic Jihad Union (“IJU”), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States.
All in violation of Title 18,United States Code, Section 2339B.
2

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COUNT 3 The Grand Jury further charges that:
Between and on or about March 8, 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendant, Jamshid Muhtorov, a/k/a “Abumumin Turkistony”, a/k/a “Abu Mumin”, a/k/a “Horun Asrorov”, together with others both known and unknown to the Gand Jury; did knowingly provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: knowingly providing one or more personnel (who may be or include oneself) to the Islamic Jihad Union (“IJU”) to work under the IJU’s direction and control, to a foreign terrorist organization, specifically the Islamic Jihad Union (“IJU”), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States.
All in violation of Title 18,United States Code, Section 2339B.
COUNT 4 The Grand Jury further charges that:
Between and on or about January 30, 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendant, Jamshid Muhtorov, a/k/a “Abumumin Turkistony”, a/k/a “Abu Mumin”, a/k/a “Horun Asrorov”, together with others both known and unknown to the Gand Jury; did knowingly provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b),
3

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to wit: communications equipment and services, to a foreign terrorist organization, specifically the Islamic Jihad Union (“IJU”), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States.
All in violation of Title 18,United States Code, Section 2339B.
TRUE BILL
Ink signature on file in the clerk’s office FOREPERSON JOHN F. WALSH United States Attorney By: s/ Gregory Holloway GREGORY HOLLOWAY, WSBA #28743 Assistant United States Attorney United States Attorney’s Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0406 Email: Gregory.Holloway@usdoj.gov Attorney for the United States
4

 
 Case 1:12-cr-00033-JLK Document 59 Filed 03/22/12 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Case No. 1:12-cr-00033-JLK UNITED STATES OF AMERICA,
Plaintiff, v. 1. JAMSHID MUHTOROV, 2. BAKHTIYOR JUMAEV,
Defendants.
SECOND SUPERSEDING INDICTMENT 18 U.S.C. § 2339B - Material Support of a Designated Foreign Terrorist Organization
and Attempt and Conspiracy to do the Same
COUNT 1 The Grand Jury charges that:
Between and on or about January 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendants, Jamshid Muhtorov, a/k/a “Abumumin Turkistony”, a/k/a “Abu Mumin”, a/k/a “Horun Asrorov”; and Bakhtiyor Jumaev, a/k/a “Abu Bakr”, together with others both known and unknown to the Grand Jury; did knowingly conspire, combine, confederate, cooperate and agree with each other to provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: property [at least $300 in currency], to a foreign terrorist organization,
1

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specifically the Islamic Jihad Union (“IJU”), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States; and, further there was interdependency among the members of the conspiracy.
All in violation of Title 18, United States Code, Section 2339B.
COUNT 2 The Grand Jury further charges that:
Between and on or about January 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendants, Jamshid Muhtorov, a/k/a “Abumumin Turkistony”, a/k/a “Abu Mumin”, a/k/a “Horun Asrorov”; and Bakhtiyor Jumaev, a/k/a “Abu Bakr”, together with others both known and unknown to the Grand Jury; did knowingly provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: property [at least $300 in currency], to a foreign terrorist organization, specifically the Islamic Jihad Union (“IJU”), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States.
All in violation of Title 18,United States Code, Section 2339B.
2

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COUNT 3 The Grand Jury further charges that:
Between and on or about March 8, 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendant, Jamshid Muhtorov, a/k/a “Abumumin Turkistony”, a/k/a “Abu Mumin”, a/k/a “Horun Asrorov”, together with others both known and unknown to the Grand Jury; did knowingly provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: knowingly providing one or more personnel (who may be or include oneself) to the Islamic Jihad Union (“IJU”) to work under the IJU’s direction and control, to a foreign terrorist organization, specifically the Islamic Jihad Union (“IJU”), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States.
All in violation of Title 18,United States Code, Section 2339B.
COUNT 4 The Grand Jury further charges that:
Between and on or about January 30, 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendant, Jamshid Muhtorov, a/k/a “Abumumin Turkistony”, a/k/a “Abu Mumin”, a/k/a “Horun Asrorov”, together with others both known and unknown to the Grand Jury; did knowingly provide and attempt to provide material
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support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: communications equipment and services, to a foreign terrorist organization, specifically the Islamic Jihad Union (“IJU”), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States.
All in violation of Title 18,United States Code, Section 2339B.
TRUE BILL
Ink signature on file in the clerk’s office FOREPERSON JOHN F. WALSH United States Attorney By: s/ Gregory Holloway GREGORY HOLLOWAY, WSBA #28743 Assistant United States Attorney United States Attorney’s Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0406 Email: Gregory.Holloway@usdoj.gov Attorney for the United States
4

 
 Case 1:12-cr-00033-JLK Document 1014 Filed 05/18/16 USDC Colorado Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Criminal Case No. 1:12-cr-00033-JLK UNITED STATES OF AMERICA,
Plaintiff, v. 1. JAMSHID MUHTOROV, 2. BAKHTIYOR JUMAEV,
Defendants.
THIRD SUPERSEDING INDICTMENT 18 U.S.C. ' 2339B - Material Support of a Designated Foreign Terrorist Organization
and Attempt and Conspiracy to do the Same 18 U.S.C. ' 2339A – Conspiracy to Provide Material Support to Terrorism
COUNT 1 The Grand Jury charges that:
Between and on or about January 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendants, Jamshid Muhtorov, a/k/a AAbumumin Turkistony@, a/k/a AAbu Mumin@, a/k/a AHorun Asrorov@; and Bakhtiyor Jumaev, a/k/a AAbu Bakr@, together with others both known and unknown to the Grand Jury; did knowingly conspire, combine, confederate, cooperate and agree with each other to provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section
1

Case 1:12-cr-00033-JLK Document 1014 Filed 05/18/16 USDC Colorado Page 2 of 6
2339A(b), to wit: property [at least $300 in currency], to a foreign terrorist organization, specifically the Islamic Jihad Union (AIJU@), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States; and, further there was interdependency among the members of the conspiracy.
All in violation of Title 18, United States Code, Section 2339B.
COUNT 2 The Grand Jury further charges that:
Between and on or about January 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendants, Jamshid Muhtorov, a/k/a AAbumumin Turkistony@, a/k/a AAbu Mumin@, a/k/a AHorun Asrorov@; and Bakhtiyor Jumaev, a/k/a AAbu Bakr@, together with others both known and unknown to the Grand Jury; did knowingly provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: property [at least $300 in currency], to a foreign terrorist organization, specifically the Islamic Jihad Union (AIJU@), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States.
All in violation of Title 18, United States Code, Section 2339B.
2

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COUNT 3 The Grand Jury further charges that:
Between and on or about March 8, 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendant, Jamshid Muhtorov, a/k/a AAbumumin Turkistony@, a/k/a AAbu Mumin@, a/k/a AHorun Asrorov@, together with others both known and unknown to the Grand Jury; did knowingly provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: knowingly providing one or more personnel, Jamshid Muhtorov, to the Islamic Jihad Union (AIJU@) to work under the IJU=s direction and control, to a foreign terrorist organization, specifically the Islamic Jihad Union (AIJU@), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States.
All in violation of Title 18, United States Code, Section 2339B.
COUNT 4 The Grand Jury further charges that:
Between and on or about January 30, 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendant, Jamshid Muhtorov, a/k/a AAbumumin Turkistony@, a/k/a AAbu Mumin@, a/k/a AHorun Asrorov@, together with others both known and
3

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unknown to the Grand Jury; did knowingly provide and attempt to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: communications equipment and services, to a foreign terrorist organization, specifically the Islamic Jihad Union (AIJU@), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States.
All in violation of Title 18, United States Code, Section 2339B.
COUNT 5 The Grand Jury further charges that:
Between and on or about January 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendants, Jamshid Muhtorov, a/k/a “Abumumin Turkistony”, a/k/a “Abu Mumin”, a/k/a “Horun Asrorov”; and Bakhtiyor Jumaev, a/k/a “Abu Bakr”, together with others both known and unknown to the Grand Jury; did knowingly conspire, combine, confederate, cooperate and agree with each other to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: knowingly providing personnel, to include Abdullo Jumaev, knowing or intending that they were to be used in preparation for, or in carrying out, a violation of Title 18, United States Code, Section 956, and the offense occurred in whole or in part within the United States; and, further there was interdependency among the members of the conspiracy.
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All in violation of Title 18, United States Code, Section 2339A.
COUNT 6 The Grand Jury charges that:
Between and on or about January 2011 through January 21, 2012, inclusive, in the State and District of Colorado and elsewhere, the defendants, Jamshid Muhtorov, a/k/a AAbumumin Turkistony@, a/k/a AAbu Mumin@, a/k/a AHorun Asrorov@; and Bakhtiyor Jumaev, a/k/a AAbu Bakr@, together with others both known and unknown to the Grand Jury; did knowingly conspire, combine, confederate, cooperate and agree with each other to provide material support and resources, as that term is defined in Title 18, United States Code, Section 2339A(b), to wit: knowingly providing personnel, Abdullo Jumaev, to a foreign terrorist organization, specifically the Islamic Jihad Union (AIJU@), continuously designated since June 12, 2005 and as amended on April 29, 2008, knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States; and, further there was interdependency among the members of the conspiracy.
All in violation of Title 18, United States Code, Section 2339B.
TRUE BILL
Ink signature on file in the clerk=s office FOREPERSON
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JOHN F. WALSH United States Attorney By: s/ Gregory A. Holloway GREGORY A. HOLLOWAY, WSBA #28743 Assistant United States Attorney United States Attorney=s Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0406 Email: Gregory.Holloway@usdoj.gov Attorney for the United States
6

 
 United States v. Muhtorov, 702 Fed.Appx. 694 (2017)

702 Fed.Appx. 694 This case was not selected for publication in West’s
Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 10th Cir.
Rule 32.1. United States Court of Appeals, Tenth Circuit.
UNITED STATES of America, Plaintiff–Appellant, v.
Jamshid MUHTOROV, Defendant–Appellee.
No. 17–1220 |
Filed July 21, 2017
Synopsis Background: Defendant, who was charged with conspiracy and attempt to provide material support to designated terrorist organization, moved, for third time, for release from pre-trial detention. The United States District Court for the District of Colorado, No. 1:12–CR–00033–JLK–1, John L. Kane, Jr., Senior District Judge, granted motion. Government appealed.
Holdings: The Court of Appeals held that:
district court properly addressed presumption of detention, but
taking into account that government’s evidence against defendant was not as strong as it initially appeared, defendant still posed flight risk and danger to community.
Reversed.
Procedural Posture(s): On Appeal.
*695 District of Colorado (D.C. No. 1:12–CR–00033–JLK–1)
Attorneys and Law Firms
Gregory Allen Holloway, Office of the United States Attorney, Denver, CO, for Plaintiff–Appellant.

Kathryn J. Stimson, Stimson Glover, Denver, CO, for Defendant–Appellee.
Before KELLY, LUCERO, and HOLMES, Circuit Judges.
ORDER AND JUDGMENT*
Per Curiam
The defendant, Jamshid Muhtorov, is a refugee from Uzbekistan who has been charged with conspiracy and attempt to provide material support to a designated terrorist organization, the Islamic Jihad Union (IJU), in violation of 18 U.S.C. § 2339B. He has been detained pending trial since his arrest in 2012. At Muhtorov’s request, the district court recently continued his trial until March 12, 2018, so it can take place after his co-defendant, Bakhtiyor Jumaev, is tried in January.
*696 Muhtorov has filed three motions for pretrial release—in 2012, 2015, and 2017. The district court denied his first two motions, but on June 23, 2017, it issued an order allowing his release (“the June 23 order”), subject to home detention with an ankle bracelet and various other conditions. The government now challenges the June 23 order, which we have stayed pending resolution of this appeal. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), we reverse.
I. Background
A. Facts Muhtorov came to the United States from Uzbekistan as a refugee in 2007. The government became aware of him through his year-long e-mail communications with an administrator of the IJU’s official website. The IJU has been designated as a foreign terrorist organization since 2005. It is an ally of Al–Qaeda and the Taliban and has
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engaged in fights against United States troops in Afghanistan.
The government intercepted Muhtorov’s communications during surveillance under the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801–1811, 1821–1829. In them, Muhtorov expressed his “support of the [IJU], his profession of allegiance to them, and his profession of wanting to provide whatever support he could to them.” App., Vol. 4 at 867. In particular, he discussed purchasing portable satellite equipment and sending $300 in cash, which he had received from his co-defendant, Jumaev. Further, he swore his “Bay’ah,” or allegiance, to the IJU and said “he would do whatever is necessary for them or whatever they asked of him, even to the point of death.” Id. at 903. Muhtorov also discussed martyrdom with Jumaev, and the men said they would meet in heaven. Id. at 920. Additionally, in e-mail and phone conversations, they talked about joining the “wedding” (a common code word for the jihadist movement, martyrdom operations, or an armed struggle) and referenced the “wedding house,” and the “wedding gift” (which typically refers to financial support). The men also discussed going to Turkey to study at a madrassa, or religious school.
In January 2012, Muhtorov was arrested at the Chicago airport, en route to Istanbul, Turkey. He had purchased a one-way ticket. At the time of his arrest, he had almost $3,000 in cash, two new iPhones in their original packaging, and a new iPad in the same condition. His own phone contained videos showing combat against coalition forces, instructions on making improvised explosive devices, and graphic images of jihadists beheading captured men.
A grand jury indicted Muhtorov for conspiracy and attempt to provide material support to a designated foreign terrorist organization. He has been detained pending trial since his arrest for the past five and one-half years. The delay in proceeding to trial is the result of a confluence of factors, including his motions to suppress evidence obtained under FISA and other extensive pretrial motions; threats to a key government witness, which necessitated extensive discussions about the conditions of that witness’s testimony; issues stemming from the severance of the trials; and the need to translate voluminous documentary evidence.

B. Procedural History Muhtorov first sought release in February 2012 at a detention hearing before the magistrate judge, which centered on testimony by an FBI agent. The magistrate judge denied the motion for release after concluding (1) by a preponderance of the evidence, that no condition or combination of conditions of release would *697 reasonably assure Muhtorov’s appearance at future court proceedings; and (2) by clear and convincing evidence, that Muhtorov presents a risk to other persons and the community and that no condition or combination of conditions of release would reasonably assure the community’s safety. The district court affirmed.
Muhtorov next sought pretrial release in July 2015 through a motion for reconsideration of bail based on the extraordinary length of pretrial detention and the due process implications thereof. By then, Muhtorov had been in custody for three and one-half years, though his motion acknowledged the lack of any speedy trial issues and conceded the pretrial process had taken a long time due to the case’s complexity. The government objected that Muhtorov could not reopen the detention hearing because he had not presented any new information that was not known to him at the time of the detention hearing and that has a material bearing on whether there are conditions of release that will reasonably assure his appearance and the safety of other persons and the community, as required by 18 U.S.C. § 3142(f). The district court denied the second motion for release after concluding that Muhtorov presents a “bona fide,” “serious flight risk.” App., Vol. 3 at 475. It cited “[t]he serious nature of the charges”; “the severity of the penalties for conviction” (15 years per count, with a possibility the sentences could run consecutively for a total of 60 years);1 “the fact he was apprehended while in the process of leaving the country and destined for the Middle East carrying money and electronic equipment capable of being used by a terrorist organization”; and “the threat of violence implicit in these acts.” Id. And it opined that the trial delays were occasioned, to some degree, by the complexity of the case, numerous motions filed by Muhtorov, and translation issues—not by lack of diligence or zeal by either party.
That brings us to the third motion for pretrial release and the June 23 order granting it. That motion was precipitated by a continuance of Jumaev’s trial, which spurred Muhtorov to request his own continuance so as to proceed second and call Jumaev as a defense witness. The district court reopened Muhtorov’s detention hearing under 18 U.S.C. § 3142(f)(2) based on the following new
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information:
• The government dismissed counts 5 and 6 of the indictment, which charged that Muhtorov and Jumaev conspired to provide material support and resources to the IJU in the form of personnel (namely, Abdullo Jumaev) in violation of 18 U.S.C. §§ 2339A, 2339B.
• The “actual factual basis” for the nature of the alleged crimes and the flight and danger risk Muhtorov poses, App., Vol. 9 at 1934, is now based on more than one FBI agent’s testimony. Three evidentiary hearings show the government’s case may be weaker and Muhtorov’s defenses stronger, so “[t]here is reason to believe ... that Mr. Muhtorov has been invested with a sense of a direction and a reason to stay and see the trial of his case through.” Id. at 1934–35.
• The district court reassessed the factors listed in 18 U.S.C. § 3142(g)(1) and (2), as detailed below, and determined the evidence “suggest[s] Mr. Muhtorov’s bark was more serious than his bite.” Id. at 1936.
*698 Ultimately, the district court found that “a combination of conditions for release can be crafted that will assure [Muhtorov’s] attendance at [trial] and protect the safety of the community.” Id. at 1935. It imposed those conditions of release at a hearing on June 26, 2017. Restrictions include GPS ankle monitoring and a 24–hour lockdown at Muhtorov’s home, though he may leave his home for three approved exceptions: (1) religious purposes (i.e., weekly mosque services); (2) meetings with his attorneys; and (3) medical appointments. In addition, Muhtorov has surrendered his passport and cannot have access to internet-capable devices that allow access to social media. The probation office will monitor his electronics as well.
The government filed this appeal and sought an emergency stay of the release order, which we granted.
II. Legal Framework
The Bail Reform Act sets out the framework for evaluating whether pretrial detention is appropriate. See 18 U.S.C. § 3142. A defendant may be detained pending trial only if a “judicial officer finds that no condition or

combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” Id. § 3142(e)(1). To make such a finding, the judicial officer must hold a detention hearing per 18 U.S.C. § 3142(f). The factors relevant to considering whether there are release conditions that can ensure the defendant’s appearance and the safety of the community are: (1) the nature and circumstances of the offense, including whether the offense is a federal crime of terrorism; (2) the weight of the evidence; (3) the defendant’s history and characteristics; and (4) the nature and seriousness of the danger the defendant would pose to the community if released. Id. § 3142(g).
In this case, the charges against Muhtorov establish a rebuttable presumption that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.” Id. § 3142(e)(3)(C).2 It is Muhtorov’s burden to rebut the presumption. United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991) (per curiam) (“The defendant’s burden of production is not heavy, but some evidence must be produced.”). “However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government.” Id. at 1354–55. “The government must prove risk of flight by a preponderance of the evidence, and it must prove dangerousness to any other person or to the community by clear and convincing evidence.” United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003) (citations omitted). Having twice found the government met this burden, the district court changed course in the June 23 order.
We review the district court’s ultimate release decision de novo because it presents mixed questions of law and fact; however, we review the underlying findings of historical fact for clear error. Id. at 613. “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on review of the entire record, is left with the definite and firm conviction that a mistake has been committed.” United States v. Gilgert, 314 F.3d 506, 515 (10th Cir. 2002) (brackets and internal *699 quotation marks omitted). We review the district court’s findings with significant deference, cognizant that “our role is not to re-weigh the evidence.” Id. at 515–16.
III. Discussion
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United States v. Muhtorov, 702 Fed.Appx. 694 (2017)
A. The Statutory Presumption of Detention The government faults the district court for not “addressing the presumption of detention” and “not mak[ing] a specific finding that the defendant has rebutted the presumption.” Mem. Br. at 11–12. We have previously held that “[e]ven if a defendant’s burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain.” Stricklin, 932 F.2d at 1355 (citing United States v. Cook, 880 F.2d 1158, 1162 (10th Cir. 1989)). But the district court did not need to use a set of “magic” words when considering the presumption, as the government intimates. We deemed it “significant[ ]” in Stricklin that “there was no finding that defendant was successful in rebutting” the § 3142(e) detention presumption, 932 F.2d at 1355. But we emphasized that the government made a “strong evidentiary showing” while noting that the defendant offered no documentary evidence and the district court made no findings whatsoever on the strength of the defendant’s showings. Id. at 1354–55. Likewise, in Cook, we found error when the district court “completely skipped over” the rebuttable presumption of detention in denying a motion to revoke release under 18 U.S.C. § 3148(b). 880 F.2d at 1162.
Here, by contrast, it is clear the district court was aware of, and guided by, the rebuttable presumption. This was the third motion for pretrial release, and the parties and court discussed the presumption in detail with respect to all three motions; indeed, it played a role in Muhtorov’s continuing detention. And the district court explicitly referenced the presumption at the outset of the June 23 order. See App., Vol. 9 at 1929. It also operated within the framework of the presumption when it made detailed findings on the ways in which the circumstances had changed since its original finding that no conditions could guarantee Muhtorov’s appearance at trial or the community’s safety. For these reasons, we reject the government’s argument that the district court did not give any weight to the rebuttable presumption or make appropriate findings as to whether Muhtorov rebutted the presumption.
B. The § 3142(g) Factors Next, we turn to the government’s argument that the

district court did not identify significant evidence to overcome the statutory presumption and the evidentiary record—both of which show that no conditions of release can reasonably assure Muhtorov’s appearance at trial or the safety of the community.
1. Nature and Circumstances of Offense Charged The first factor is “the nature and circumstances of the offense charged, including whether the offense is ... a Federal crime of terrorism.” 18 U.S.C. § 3142(g)(1). Muhtorov has been charged with knowingly providing support or resources to a foreign terrorist organization, or attempting or conspiring to do so, in violation of 18 U.S.C. § 2339B, which is a federal crime of terrorism. This factor has remained constant: The district court repeatedly recognized the serious nature of the charges in resolving all three of Muhtorov’s motions for pretrial release.
Likewise, the circumstances surrounding Muhtorov’s arrest have not changed. He expressed his willingness to support the IJU in multiple e-mails and phone conversations *700 and was arrested while attempting to board a one-way flight to Turkey, in possession of cash and electronic equipment. He resigned from his job shortly before the trip. And he told his daughter in the preceding months that he might not see her again on earth, but he would see her in heaven if she was a good Muslim girl.
2. Weight of the Evidence The second factor—“the weight of the evidence against the person,” 18 U.S.C. § 3142(g)(2)—was the primary focus of the June 23 order. The district court’s treatment of this factor changed dramatically from its earlier analyses.
The district court noted the government’s dismissal of the last two counts of the indictment. It then reassessed the strength of the evidence against Muhtorov based on new or changed information gleaned from three hearings: (1) a January 2017 suppression hearing that demonstrated some weaknesses in the government’s translations of the evidence and its linguists; (2) a February 2017 James
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United States v. Muhtorov, 702 Fed.Appx. 694 (2017)
hearing that gave a thorough overview of the government’s evidence to support its conspiracy claims; and (3) a March 2017 Daubert hearing from which it can be inferred that the IJU’s administrator did not take Muhtorov seriously and that Muhtorov left for Turkey without a definitive plan with anyone from the IJU. Ultimately, the district court concluded that the evidence against Muhtorov is not as strong as it seemed to be at the initial detention hearing.
To support its revised assessment, the district court also cited expert testimony that may undermine the government’s theory that the madrassa that Muhtorov planned to attend was a known conduit to the IJU. It focused on the fact that Muhtorov’s oath to the IJU was made but not accepted. And it observed that “large majorities” of the Muhtorov–Jumaev conversations involved “prattle and topics other than terrorism or plans to support it.” App., Vol. 9 at 1936. Pointing to all of these purported deficiencies, the district court concluded that the evidence now “suggest[s] Mr. Muhtorov’s bark was more serious than his bite,” id. Even so, the district court expressed “concern[s] about witness intimidation and the actions of Mrs. Muhtorov and others having previously attempted to contact” potential witnesses. Id. at 1935. It also acknowledged the government “may have thwarted an actual plan to provide smartphones and services to the IJU.” Id. at 1936.

did for five years without incident before his arrest. Id. And it noted that his wife has visited him during his detention, the couple now has a third child *701 born during his incarceration, and thus “[t]heir familial relationship has deepened.” Id.
4. Nature and Seriousness of the Danger to Any Person or the Community The fourth factor is “the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4). As explained above, Muhtorov is presumed to be a danger to the community because of the nature of his charges. See id. § 3142(e). This presumption is rebuttable, but it remains in the case as a factor militating against release, to be weighed along with evidence related to the § 3142(g) factors.
The district court’s reassessment of this factor is closely tied to its revised appraisal of the second factor. It suggests that since the evidence against Muhtorov is not as strong as the district court originally appraised it to be, Muhtorov may not be as dangerous either.

3. Defendant’s History and Characteristics The third factor is “the history and characteristics of the person.” 18 U.S.C. § 3142(g)(3). It encompasses the defendant’s “character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings.” Id. § 3142(g)(3)(A). It also takes into account whether the defendant was being punished for another offense at the time of his arrest. Id. § 3142(g)(3)(B).
The district court generally referenced Muhtorov’s “work history” as a commercial truck driver. App., Vol. 9 at 1936. It also described his “family and community ties” as “substantial,” focusing on his relationship with his wife. Id. The district court stated that his wife has lived and worked in the community for ten years, as Muhtorov

5. Analysis We discern no clear error in the individual factual findings listed above. But reviewing the overall release decision de novo, we disagree with the district court’s assessment of the implications and significance of those findings.
It does not appear that the district court’s release decision turned on its assessment of the first and third factors. Its findings on those factors deviated from its earlier findings in minor respects only. The bulk of the June 23 order was devoted to the district court’s analysis of the second and fourth factors, which seems to be the impetus for the release order. The district court changed its position as to the propriety of release based largely on its revised assessment of the strength of the government’s evidence against Muhtorov, which in turn affected its opinion as to the danger Muhtorov presents to the community and the likelihood he will appear for trial. Its analysis suffers from several major flaws, however.
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United States v. Muhtorov, 702 Fed.Appx. 694 (2017)

First, the district court cited newly exposed weaknesses in the government’s translations and linguists as a new development that undermines the strength of the government’s case even though any implications are unclear. Testimony at the January 2017 suppression hearing revealed that one of the government’s translators listed his Interagency Language Roundtable test score for Uzbek as a “2 plus” on his resume when it was actually a “2.” A level-two score may not be ideal for translations at a professional level; however, a government expert testified that “almost all of the language that occurs in regular life is at a level 2,” including “routine day-to-day conversation.” App., Vol. 8 at 1525. The court did not identify what material inculpatory statements, if any, depend on the translator’s interpreting skills. At least some of the post-arrest statements can be proven without his translations, such as Muhtorov’s admissions as to the telephone number and e-mail addresses he used to communicate with the IJU and the websites he visited.
Second, the district court concluded that testimony from the James and Daubert hearings—which focused on the IJU’s failure to accept Muhtorov’s overtures or take him seriously—“gave rise to additional inferences that may be favorable to” Muhtorov and “undermined the seriousness or depth” of the co-defendant’s conspiracy. App., Vol. 9 at 1934, 1936. This focus on the IJU’s actions is misplaced. Muhtorov is charged, in part, with conspiring to provide and an attempt to provide material support to terrorists. Even assuming the testimony from these hearings weakens *702 the government’s evidence that Muhtorov actually provided material support to the IJU, it does not impact the conspiracy and attempt components of the offense. Likewise, any purported disinterest from the IJU does not minimize his coordinated efforts with his alleged co-conspirator.

further IJU’s terrorism and the concrete, affirmative steps that he took in manifesting his intent. Nor does the timing of his statement to his daughter, which Muhtorov emphasizes took place months before his arrest, alter our conclusion. The implications of that statement still evince a substantial risk of community danger in light of his ongoing communications with the IJU and Jumaev at the time.
Simply put, the evidence does not support the district court’s assessment that Muhtorov no longer poses a danger or presents a flight risk that cannot be minimized by strict release conditions. Muhtorov has professed that he is willing to fight and die for his cause, and he took affirmative steps to further that goal. The contents of his phone reflect Islamic extremist tendencies. And the government alleges that his brother, Hurshid Muhtorov, fought in Syria for the Islamic State in the recent past and has attempted to intimidate a witness in this case.
The government has shown by a preponderance of the evidence that Muhtorov would be a flight risk, even with the release conditions imposed by the district court. And it has shown by clear and convincing evidence that the conditions of release, though restrictive, would not reasonably assure the safety of the community.
IV. Conclusion
The temporary stay of the June 23 order, which was granted on July 7, 2017, is now lifted. For the reasons set forth above, we reverse the district court’s release order dated June 23, 2017. Muhtorov shall be detained pending trial.

Third, for the same reasons, we reject the district court’s conclusion that Muhtorov is less dangerous because the

All Citations

IJU had not accepted him and he had not formulated a concrete plan to serve the IJU before his attempted

702 Fed.Appx. 694

departure. Here, too, the significant concern of our

dangerousness inquiry is Muhtorov’s alleged intent to

Footnotes

*

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would

not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except

6

United States v. Muhtorov, 702 Fed.Appx. 694 (2017)

under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1

Since the time of Muhtorov’s indictment, the maximum prison term listed in § 2339B has since been amended from

15 years to 20 years.

2

A rebuttable presumption arises under this provision where the defendant faces charges for certain offenses listed

in 18 U.S.C. § 2332(g)(5)(B) that carry sentences of ten years. Muhtorov’s alleged crime—a violation of 18 U.S.C. §

2339B—is among the designated offenses.

7

 
 United States v. Muhtorov, 187 F.Supp.3d 1240 (2015)

187 F.Supp.3d 1240 United States District Court, D. Colorado.
UNITED STATES of America, Plaintiff, v.
1. Jamshid MUHTOROV, 2. Bakhtiyor Jumaev, Defendants.
Criminal Case No. 12–cr–00033–JLK |
Signed 11/19/2015
Synopsis Background: Defendant was charged with providing material support to a designated terrorist organization, and attempt and conspiracy to do the same. Defendant moved to suppress warrantless surveillance and physical searches authorized under the Foreign Intelligence Surveillance Act (FISA) Amendments Act.
Holdings: The District Court For The District Of Colorado Kane, J. held that:
FAA was not unconstitutional on its face in violation of the Fourth Amendment, and
acquisition and use of defendant’s communications did not violate the Fourth Amendment.
Motion denied.
Attorneys and Law Firms
*1241 Gregory Allen Holloway, David Alan Tonini, U.S. Attorney’s Office, Denver, CO, Erin Martha Creegan, Kiersten Jennifer Korczynski, U.S. Department of Justice, Washington, DC, for Plaintiff.
Kathryn J. Stimson, Brian Rowland Leedy, Stimson Glover Stancil Leedy, LLC, David Barry Savitz, Law Office of David B. Savitz, Mitchell Baker, Mitch Baker, Attorney at Law, Warren Richard Williamson, Office of the Federal Public Defender, Denver, CO, Patrick C. Toomey, American Civil Liberties Union, New York,

NY, for Defendants.
ORDER DENYING MOTION TO SUPPRESS EVIDENCE OBTAINED OR DERIVED UNDER FISA
AMENDMENTS ACT OR FOR DISCOVERY (Doc. 520)
Kane, Judge.
Jamshid Muhtorov, together with his co-defendant Bakhtiyor Jumaev, is charged with providing material support to a designated terrorist organization, and attempt and conspiracy to do the same. His arrest on a one-way flight to Turkey was originally believed to be solely the result of warrantless surveillance and physical searches authorized under Title I and III of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801–1811, 1821–1829. Mr. Muhtorov moved to suppress that FISA–acquired evidence earlier in these proceedings, which motion I denied based on a determination, after an extensive in camera review of the classified materials submitted to the FISA Court, that there was probable cause to believe the target was an agent as described and therefore lawfully subject to those searches.
The matter is before me on a renewed Motion to Suppress, precipitated by the government’s supplemental disclosure, nearly two years after Mr. Muhtorov’s arrest, *1242 that some of the FISA–acquired evidence it intends to use against him in this case was derived from surveillance conducted under § 702 of the FISA Amendments Act of 2008 (“FAA”).1 Section 702, codified at 50 U.S.C. § 1881a, establishes procedures for the warrantless surveillance of targeted persons overseas “to acquire foreign intelligence information.” Because communications to and from a target under § 702 are swept up without reference to who is sending them and without any determination of probable cause, the FAA results in the “incidental” interception, collection, and retention of communications from unconsenting U.S. persons including, in this case, Mr. Muhtorov.
Judicial review of § 702 authorizations is narrow, and until the Snowden leaks in 2013, the American public was led to believe that the government did not query or use
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United States v. Muhtorov, 187 F.Supp.3d 1240 (2015)
FAA–acquired surveillance against non-targeted U.S. persons. See Clapper v. Amnesty Int’l, USA, ––– U.S ––––, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). The belated notice in this case was part of the Snowden fallout and the revelation, post–Clapper, that the Executive Branch does, in fact, use FAA–acquired information to investigate U.S. persons for suspected criminal activity, and that it intends to use it against Mr. Muhtorov here.
In his renewed Motion, Mr. Muhtorov moves to suppress all of the FAA–acquired evidence in this case and the “fruits thereof” on grounds that § 702’s authorization and implementation procedures permit the government to collect and retain the communications of U.S. persons without a warrant and without probable cause in violation of the Fourth Amendment. Alternatively, as an “aggrieved person” entitled to challenge the lawfulness of the acquisitions directly under § 702, he argues the statute was unlawfully applied to him and seeks discovery into the means and methods of the government’s FAA surveillance in this case to substantiate that claim. With the entry of the ACLU as co-counsel for the defense, briefing has emphasized the former, with Mr. Muhtorov serving as the Clapper–qualified2 successor to the plaintiffs in that case, who were deemed insufficiently “harmed” by § 702’s surveillance procedures to have standing to pursue a Fourth Amendment challenge. I find the Clapper argument attenuated by Mr. Muhtorov’s status as a criminal defendant—rather than an incidental interceptee generally—and that his privacy-related Clapper claim is transformed by that fact. As a U.S. person and a criminal defendant, Mr. Muhtorov is entitled to the full panoply of statutory and constitutional protections afforded under § 702 and the U.S. Constitution. As a criminal defendant whose communications were captured pursuant to FISA Title I and III surveillance targeting an agent of a foreign power, however, these protections are counteracted to a significant extent by FISA and *1243 prerogatives long recognized in U.S. law regarding the Executive’s primacy in the arena of foreign affairs and national security.
My concern as a trial court judge is with the individual criminal defendants before me and their rights to due process and a fair trial. The constitutional question at issue is one the Executive and courts have wrestled with since the Supreme Court’s acknowledgment in the 1972 Keith3 case of the dilemma invited when warrantless national security intelligence surveillance uncovers evidence of crime. The question here is where—on the continuum between the largely unfettered authority the government enjoys in national security matters and

foreign intelligence surveillance on the one hand, and its constitutionally limited authority to investigate its citizens for crimes—stands Mr. Muhtorov.4 It is a particularized inquiry of the most solemn kind. While I am convinced the FAA is susceptible to unconstitutional application as an end-run around the Wiretap Act and the Fourth Amendment’s prohibition against warrantless or unreasonable searches, I am equally convinced that it was not unconstitutionally applied to Mr. Muhtorov. Based on my in camera review of the classified and unclassified documents made available to me, the FAA surveillance at issue was narrowly tailored to the government’s foreign intelligence-gathering prerogatives. Because I find Section 702 to have been constitutionally applied in this case, the facial challenge to the FAA must be denied. I will address Mr. Muhtorov’s request for specific, additional discovery and declassification in a separate order, after conducting one or more prefatory CIPA § 4 hearings on the subject.5
I.
BACKGROUND AND PROCEDURAL HISTORY.
Jamshid Muhtorov was born in Jizzak, Uzbekistan, when that country was still under communist rule. He is the oldest of five children. After graduating from a *1244 technical university, Mr. Muhtorov was offered a position with the Ezgulik Human Rights Society in Uzbekistan, becoming the head of the Jizzak branch in 2003.
During the course of his work with Human Rights Watch, foreign embassies and NGOs, Muhtorov came under the increasing scrutiny of Islam Karimov, the last president of Soviet Uzbekistan who became and remains the first president of independent Uzbekistan. This scrutiny intensified in May 2005, and in 2006, according to Human Rights Watch, Mr. Muhtorov was himself threatened and beaten. With the help of other activists, Mr. Muhtorov fled to Kyrgystan, and then, with his wife and children to the United States.
Mr. Muhtorov and his family were admitted to the United States as political refugees in February 2007. They settled in Colorado. Mr. Muhtorov has no criminal record and, until his arrest in January of 2012, had never been arrested. He is a legal permanent resident of the United
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United States v. Muhtorov, 187 F.Supp.3d 1240 (2015)
States.6
The operative Second Superseding Indictment (Doc. 59) charges Mr. Muhtorov with two counts of providing and attempting to provide material support and resources to the Islamic Jihad Union (IJU), and Muhtorov and Jumaev with one count of conspiring to commit that offense, in violation of 18 U.S.C. § 2339B. If convicted, each faces a maximum term of imprisonment of 15 years.
The allegations in the indictment were initially attributed to information gleaned in investigations of Mr. Muhtorov’s computer, email accounts, private residence, and personal effects. See Criminal Compl. (Doc. 1)(and attached Affid. of FBI Special Agent Hale). When the government formally notified Mr. Muhtorov that it intended to use FISA–acquired information against him in the proceedings (Doc. 12), Mr. Muhtorov exercised his right as an “aggrieved person” under the statute and moved to suppress. (Docs. 14, 125). I denied that Motion in a written Order issued September 24, 2012 (Doc. 196), applying the standards set forth at 50 U.S.C. § 1806(e) & (f) and finding the surveillance and physical searches at issue were lawfully authorized and conducted. I specifically concluded that the attested facts submitted to the FISA Court supported a finding of probable cause to believe the target was an “agent[ ] of a foreign power,” and concluded that the FISA application and related materials should not, in the interest of national security, be disclosed. Id. p. 3. I denied Mr. Jumaev’s related Motion on the same basis.
On October 25, 2013, the government filed a Second Notice of Intent to Use FISA–acquired Information (Doc. 457), formally notifying Mr. Muhtorov of its intent to use information obtained or derived from the acquisition of foreign intelligence information under the Foreign Intelligence Surveillance Act of 1978, “as amended,” and citing 50 U.S.C. § 1881a. Given its timing in the Snowden–Clapper aftermath, the Notice was clearly intended to notify Mr. Muhtorov that he was a member of the previously undisclosed class of U.S. persons whose international communications had been monitored and acquired incidently to surveillance conducted under § 702 of the FAA. Viewing the affidavit informing the publicly available Complaint in this case in that light, it is clear that FAA surveillance overseas resulted in the acquisition of communications later traced to Muhtorov. See Affid. of FBI Agent Hale (attached as Ex. A to Complaint (Doc. 1)). What was acquired and over what period of time is classified information that has not yet been shared with the defense.

*1245 Foreign Intelligence Gathering and FISA.
Presidents since FDR have claimed an inherent constitutional authority to conduct electronic surveillance in national security matters without prior judicial approval. The authority is grounded in Article II of the Constitution, which charges the Executive to “preserve, protect and defend the Constitution of the United States.” This authority was accorded great deference for many years, until that began to change in the early 1970s.7
In 1972, the Supreme Court took up the question in United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), a case involving the bombing of a CIA building and the warrantless surveillance that led to the indictment of the U.S. persons involved. Justice Powell, writing for the majority, rejected the government’s assertion of a blanket national security exception to the Fourth Amendment’s warrant requirement as codified in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”), concluding the government’s concerns did not justify a departure from the customary Fourth Amendment requirement of judicial pre-approval under the circumstances presented.8 Id. at 323–24, 92 S.Ct. 2125. The Court expressly refused, however, to “judge[ ] the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without [the U.S.],” id. at 308, 92 S.Ct. 2125, leaving that question open. The Court further recognized potential distinctions between national security surveillance and “surveillance of ‘ordinary crime,’ ” and invited Congress to consider protective standards for the former different from those prescribed in Title III that took these distinctions into account. Id. at 322–23, 92 S.Ct. 2125. “Different standards,” the Court acknowledged, “may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.” Id. at 323, 92 S.Ct. 2125.
The Watergate scandal in 1974 thrust the Executive’s use of electronic surveillance into the public eye. Revelations during several Senate Committee hearings revealed a host of warrantless privacy infringements of U.S. citizens in the name of national security, including wiretapping of congressional staffers, anti-war protesters, and civil rights activists including Dr. Martin Luther King. After fourteen
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United States v. Muhtorov, 187 F.Supp.3d 1240 (2015)
Senate Reports and significant debate, Congress enacted the Foreign Intelligence Surveillance Act “to regulate the use of electronic surveillance within the United States for foreign intelligence purposes.” See S. Rep. 95–604, p. 7 (1977). President Carter signed it shortly thereafter. 92 Stat. 1783, 50 U.S.C. § 1801 et seq.
In constructing a framework for foreign intelligence surveillance that balanced the Executive’s foreign intelligence and security prerogatives with Americans’ privacy interests, Congress defined “electronic surveillance” narrowly to include only foreign intelligence collection activities that impacted U.S. persons or took place on U.S. soil,9 and prohibited anyone from engaging *1246 in “electronic surveillance under color of law except as authorized by this Act.” 50 U.S.C. § 1809(a)(emphasis mine). Congress then created two specialized foreign intelligence courts—the FISA Court (FISC) and the FISA Court of Review (FISR)—that would approve and review the approval of “electronic surveillance” under the Act. 50 U.S.C. § 1803(a) & (b), discussed in Clapper, 133 S.Ct. at 1143. Surveillance authorization would be given if there was “probable cause to believe that ... the target of the electronic surveillance is a foreign power or an agent of a foreign power ... and each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power”; and if minimization procedures are in place that meet with FISC approval under the standards articulated in the statute. See 50 U.S.C. § 1805(a). As will be discussed in more detail below, “minimization procedures” serve as the principle means of protecting the Fourth Amendment privacy interests of U.S. persons whose communications are caught up in foreign intelligence surveillance under FISA.10
Expansion of FISA Authority.
Almost as soon as it was enacted, pressure began to build to clarify and expand the Executive’s foreign surveillance authority under the FISA statute. Increasing terrorist activity raised the stakes11 and changes in communications technology brought intelligence surveillance intended to remain outside FISA’s purview within its definition of domestic surveillance and thus subject to FISA Court review and regulation.12
*1247 In 1981, President Reagan issued Executive Order

12333, reaffirming the Executive’s inherent authority to conduct covert operations and collect information on “foreign powers, organizations, persons, and their agents” without reference to FISA, and specifically authorizing “elements of the intelligence community ... to collect retain, or disseminate information concerning United States persons.” EO 12333, Parts 2.2, 2.3.13 In 1995 and 1998, Congress amended FISA directly, first to include physical searches, 50 U.S.C. §§ 1821–29, and then the installation and use of pen register and trap and trace devices, §§ 1841–46, “for foreign intelligence purposes.”
Then in 2001, foreign terrorists carried out the coordinated 9/11 attacks on New York City and the Pentagon, killing nearly 3,000 people on American soil. Within weeks, both President George W. Bush and Congress had acted to expand Executive surveillance authority and facilitate more effective coordination between the intelligence community and federal law enforcement agencies. In October 2001, Congress passed the USA PATRIOT ACT,14 sweeping legislation that modified multiple existing laws and enhanced the government’s law enforcement authority as it related to investigating and prosecuting terrorism.15 Among other things, the PATRIOT ACT revised FISA § 104’s “purpose” requirement. Responding to a series of court cases and intelligence agency policies that had erected a “Wall” between foreign intelligence and criminal investigations, the ACT authorizing FISA applications on a certification that foreign intelligence gathering was a “significant,” rather than “primary” purpose of the surveillance sought. Compare 50 U.S.C. § 1804(a)(6)(B) (2008) with 50 U.S.C. § 1804(a)(7)(B) (2000)(change discussed at length in United States v. Abu–Jihaad, 630 F.3d 102, 122–23 (2d Cir. 2010)). President Bush, meanwhile, responded to the 9/11 attacks by authorizing the NSA to conduct warrantless wiretapping of telephone and e-mail communications in the United States outside the purview of FISC entirely, as long as one party to a communication was located outside the United States and a participant in “the call was reasonably believed to be a member or agent of Qaeda or an affiliated terrorist organization.” See Clapper, 133 S.Ct. at 1143–44. Until 2005, neither the public nor most members of Congress were aware the President’s Terrorist Surveillance Program (TSP) existed.
President Bush’s confirmation in December 2005 that the NSA had been conducting warrantless electronic surveillance of U.S. persons without even FISA Court approval prompted Congress, once again, to conduct a “vigorous inquiry” into the Executive’s secret
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United States v. Muhtorov, 187 F.Supp.3d 1240 (2015)
surveillance activities. See S. Rep. No. 110–209, 1st Sess. 1 (2007). With all parties in agreement that FISA required updating, Congress set to work. See Modernization of the Foreign Intelligence Surveillance Act: Hearing before *1248 the H. Permanent Select Comm. on Intel., 109th Cong., 2d Sess. (2006).16
The PAA and Elimination of the “Foreign Agent” Probable Cause Requirment
As a result of these efforts, Congress enacted the Protect America Act (“PAA”) in August 2007, a temporary measure that brought the Executive’s TSP authority into the FISA fold. Codified at 50 U.S.C. § 1805a, b & c, the PAA permitted the Director of National Intelligence and the Attorney General to authorize the acquisition of foreign intelligence information “concerning persons reasonably believed to be located outside the United State” without reference to their status as foreign agents, limited solely by the establishment of targeting and minimization procedures to “preserve the privacy interests of persons in the United States.” S. Rep. No. 209, 110th Cong. 1st Sess. at 5–6. The PAA was revised and incorporated into FISA by the FISA Amendments Act of 2008, becoming § 702 of a new FISA Title VII.
Section 702, like the PAA before it, authorizes the Attorney General and the Director of National Intelligence to authorize jointly, “for a period of up to 1 year,” the “targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a). Like the PAA, § 702 permits the government to intercept all communications to and from the target, including those of U.S. persons, without demonstrating probable cause that either is a foreign power or the agent of a foreign power, and without identifying the facilities or places where the electronic surveillance will occur. FAA procedure simply requires the Attorney General, in consultation with the Director of National Intelligence, to select a target and adopt guidelines the Attorney General certifies will “ensure” compliance with appropriate targeting and minimization procedures, as well as the limitations on § 702 surveillance authority set forth in § 1881a(b). See § 1881a(f)&(g). If the FISC finds the AG’s certifications, targeting, and minimization procedures are “consistent with [the FAA’s requirements] and with the fourth amendment to the Constitution of the United States,” it “shall” enter an order approving the certification and use

of the *1249 procedures for the acquisition. 50 U.S.C. § 1881a(i).
Section 702’s limitations are significant, but largely conclusory and “riddled with loopholes.” An acquisition under § 702(a) may not “intentionally” target a person “known” at the time of acquisition to be located in the United States (§ 1881a(b)(1)), or “intentionally target” a person “reasonably believed to be located outside the United States” if the “purpose” of such acquisition is to target a “particular, known person reasonably believed to be in the United States.” § 1881a(b)(2). Also, acquisitions must be “conducted in a manner consistent with the fourth amendment to the Constitution.” § 1881a(b)(5). But the government is the sole arbiter of its “knowledge,” “intent,” “purposes,” and “conduct.”17 The government can continue “incidently” acquiring a person’s communications under § 702 even after such reveals evidence of a crime, as long as the government avoids learning that the person is a U.S. person or located in the United States. It can avoid seeking Title I or Title III authority to target the person directly by simply declining to call that person a “target.” It can say it is “conducting” this surveillance consistently with the fourth amendment, but § 702 provides no mechanism for FISC to assess whether that is the case. For an excellent discussion of the FAA’s weaknesses and prescriptions for remedying them, see T. Anderson, “Toward Institutional Reform of Intelligence Surveillance: A Proposal to Amend the Foreign Intelligence Surveillance Act,” 8 Harv. Law & Policy Rev. 413 (Summer 2014).
FISA and Law Enforcement.
Our concern in this case, of course, is the confluence of FISA and law enforcement, i.e., what happens when FISA surveillance results in the acquisition of evidence of a crime. It is clear that FISA surveillance is more than simply foreign intelligence gathering, and that its purpose since its inception has been the discovery and investigation of foreign intelligence crimes. See In re Sealed Case, 310 F.3d 717, 725 (Foreign Int. Surv. Ct. Rev. 2002). U.S. persons may be authorized targets, and surveillance may be part of an investigative process designed to protect against the commission of serious crimes such as espionage, sabotage, assassination, kidnaping, and terrorist acts committed by or on behalf of foreign powers. Id. (quoting S. Rep. No. 95–701, at 10–11 (1978)). The question has always been where these two
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United States v. Muhtorov, 187 F.Supp.3d 1240 (2015)
functions merge, i.e., where FISA–acquired electronic surveillance information, which is acquired without a warrant under the Wiretap Act, is used against an U.S. person who would otherwise enjoy the protections of that Act.
Before the enactment of the FAA, case law developed permitting the use of FISA–acquired evidence against U.S. persons in criminal prosecutions as long as there was probable cause to believe those persons were “foreign powers” or “agents of a foreign power” (50 U.S.C. § 1805(a)(2)) and the surveillance was properly conducted “to acquire foreign intelligence information.” *1250 50 U.S.C. § 1802(a)(1). E.g. United States v. Pelton, 835 F.2d 1067, 1074–76 (4th Cir. 1987), cert. denied, 486 U.S. 1010, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988)(as long as the purpose of FISA surveillance is foreign intelligence gathering, that purpose is not changed merely because government anticipates using fruits of FISA surveillance in criminal prosecution). The purpose of the surveillance cannot be a ruse. See United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991), cert. denied, 506 U.S. 816, 113 S.Ct. 58, 121 L.Ed.2d 27 (1992)(government cannot use FISA as an “end-run around the Fourth Amendment’s prohibition of warrantless searches” by drumming up a foreign intelligence purpose for ordinary criminal investigation); United States v. Troung Dinh Hung, 629 F.2d 908, 916 (4th Cir. 1980)(targets must “receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution.”) But unless surveillance is conducted “solely” for law enforcement purposes, the Fourth Amendment under Keith is flexible enough to justify the use of FISA–acquired evidence in criminal prosecutions even without a Title III warrant. See U.S. v. Duka, 671 F.3d 329, 345 (3d Cir. 2011)(evidence derived from a reasonable search is admissible in a criminal trial); Abu–Jihaad, 630 F.3d at 120 (Fourth Amendment does not require the government to identify a primary purpose or limit its ability to secure a warrant to satisfaction of the standards for that purpose; rather, the government may secure a warrant under the probable cause standards applicable to any purpose that it pursues in good faith).
Under the FAA, § 702 does away with the § 105’s probable cause requirement, permitting the government to target persons based solely on their physical presence outside the United States, and to intercept communications to and from those persons, as long as the surveillance was conducted “to acquire foreign intelligence information.” § 1881a(a). Mr. Muhtorov

contends this change distinguishes the case law allowing the use of FISA–acquired evidence in criminal prosecutions, and renders the use of FAA–acquisitions against U.S. persons in criminal prosecutions unconstitutional.
II.
DISCUSSION.
Mr. Muhtorov contends the fruits of the government’s § 702 surveillance must be suppressed because the statute that authorized the surveillance is unconstitutional. He argues the FAA violates the Fourth Amendment by authorizing surveillance that contravenes the warrant clause and, independently, surveillance that is unreasonable. He also argues the FAA violates Article III by requiring judges to issue advisory opinions in the absence of a case or controversy, citing my opinion in United States v. Smith18 in support.
The FAA and Article III’s Case or Controversy Requirement
I pause briefly to address Mr. Muhtorov’s assertion that the FAA is unconstitutional because it violates Article III’s “case or controversy” requirement. His argument is novel and elegant, but I will not be the first to adopt it. Plainly stated, Muhtorov argues the FAA assigns to the FISA Court a role “fundamentally incompatible with the case-or-controversy requirement” because it compels FISC to “evaluate in a vacuum whether proposed targeting and minimization procedures *1251 comply with the statute and the Constitution” without any particularized facts or context. Mot. (Doc. 520) at 45. The authority he cites for his proposition, however, is either inapposite,19 or distinguishable,20 and none applies the concept in the context of the “neutral magistrate” or other arbiter of search authorizations or warrants under the Fourth Amendment.
Mr. Muhtorov’s strongest argument is that courts that have rejected Article III challenges to the traditional FISA process have done so because the FISC’s job is a particularized one—i.e. that under 50 U.S.C. § 1805(a)
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United States v. Muhtorov, 187 F.Supp.3d 1240 (2015)
and (b), FISC considers concrete facts about a specific person to be monitored and the facilities to be targeted. Citing U.S. v. Megahey, 553 F.Supp. 1180, 1186 (E.D.N.Y. 1982), aff’d 729 F.2d 1444 (2d Cir. 1983), and aff’d on other grounds sub nom. United States v. Duggan, 743 F.2d 59 (2d Cir. 1984). In Megahey, defendants argued that FISC was not constitutionally authorized under Article III because FISA required it to issue orders on an ex parte basis without any adversarial proceedings. The district court rejected the argument, stating
Applications for electronic surveillance submitted to FISC pursuant to FISA involve concrete questions respecting the application of the Act and are in a form such that a judge is capable of acting on them, much as he might otherwise act on an ex parte application for a warrant. In the case of each application, the FISC judge is statutorily obliged to ensure that each statutory prerequisite is met by the application before he may enter a surveillance order. The FISC judge who is faced with a surveillance application is not faced with an abstract issue of law or called upon to issue an advisory opinion, but is, instead, called upon to ensure that the individuals who are targeted do not have their privacy *1252 interests invaded, except in compliance with the detailed requirements of the statute.
553 F.Supp. 1180 at 1197.
That the FAA altered this analysis is undeniable. The “concrete questions” and “individual targets” contemplated by traditional FISA authorization requests have been excused in authorization requests under the FAA. Moreover, the “incidental interceptees” with whom we are concerned are nameless, faceless, and transient in the context of § 702 surveillance, and their privacy interests are evaluated solely in the context of the certified targeting and minimization procedures FISC is asked to approve.

The government dismisses this distinction, arguing FAA authorization approval is more similar to traditional FISA approval than different, and constitutionally not unlike other statutory schemes in which courts assess the reasonableness of standards and procedures for conducting searches or surveillance consistently with Article III. Govt’s Unclassified Resp. to Mot. Suppress (Doc. 559) at 79–80 (citing United States v. Tortorello, 480 F.2d 764, 772–73 (2d Cir. 1973)(analyzing adequacy of New York statutory procedures for reauthorizing surveillance after original authorization accidently uncovered evidence of crime) and Camara v. Municipal Court, 387 U.S. 523, 537–38, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)(approving warrantless inspection provision of municipal housing code—standard may be based on passage of time or nature of the building, and not necessarily specific knowledge of particular dwelling)). Accordingly to the government, FISC’s job of analyzing the reasonableness of electronic surveillance by weighing national security interests against the privacy interests of potential subjects is a “traditional judicial function,” citing Halperin v. Kissinger, 606 F.2d 1192, 1201 n.59 (D.C. Cir. 1979), and is not rendered otherwise by the fact that the potential subjects are not identified with particularity.
I do not dismiss the distinction so easily. FISC’s job under the FAA is substantively different than it is under traditional FISA and under any of the other examples of “traditional judicial function” the government cites. Under the FAA, incidental interceptees are part of the surveillance contemplated, but no particularized information about them or their communications practices is presented to FISC for consideration. Each of the scenarios cited by the government is different: There would have been no “case or controversy” in Tortorello without Arthur Tortorello, and no “case or controversy” in Camara without Roland Camara.
FISC’s role in approving the surveillance of individual foreign powers or agents under traditional FISA is qualitatively different from its role in approving the surveillance and incidental acquisition of strangers’ communications under the FAA. Whether that role offends Article III sufficiently to invalidate § 702 as a tool for gathering foreign intelligence information is one I leave to a higher court.21 For *1253 purposes of the case before me, my judgment is that it does not.
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The FAA’s Validity Under the Fourth Amendment.
While FISA authorizes the government to conduct relatively narrow surveillance of individuals reasonably believed to be “foreign agents” or “foreign powers,” the FAA permits the government to monitor any person, and that person’s contacts, without reference to his foreign status or agency. By permitting the government to acquire “essentially any communication that originates or terminates outside the United States,” Mr. Muhtorov contends the FAA violates both the Fourth Amendment’s warrant clause and its ban on unreasonable searches and seizures. Mot. Suppress (Doc. 520) at 21.
The Fourth Amendment’s Warrant Requirement
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the places to be searched, and the persons or things to be seized.
The modern Supreme Court has done away with an interpretation of the Fourth Amendment that requires a warrant, a probable cause determination, “ ‘[ ]or, indeed, any measure of individualized suspicion,” in every circumstance, before a search may be lawful. Mohamud, 2014 WL 2866749 at *12 (quoting Nat’l Treasury Emp. Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989)(holding suspicionless drug-testing of certain United States Custom Service employees not unreasonable under the Fourth Amendment)). The warrant requirement does not apply to activities of the United States directed against aliens in a foreign territory, United States v. Verdugo–Urquidez, 494 U.S. 259, 267, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)(search of the Mexican residences of a Mexican citizen), and does not apply to even U.S. persons if the government establishes a defensible “special need” to

dispense with it. See e.g. Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)(exception to Fourth Amendment’s warrant requirement “when special needs, beyond the normal need for law enforcement, makes the warrant and probable-cause requirement impracticable.”)).
Courts have combined these concepts to carve out a “foreign intelligence exception” to the warrant requirement,22 which Mr. Muhtorov urges me to reject.23 I find the special need/foreign intelligence exception argument somewhat academic and limiting, because the standard ultimately is one of reasonableness, and it is on that standard that the constitutionality of § 702’s *1254 warrantless surveillance authorization must be decided. See Samson v. California, 547 U.S. 843, 852 n.3, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006)(declining to address whether California’s parole search condition was justified “special need” under Griffin because determination that condition was reasonable rendered examination unnecessary).
On its face, § 702 surveillance targets individuals outside the United States “to acquire foreign intelligence information.” The reasonabless of that targeting, without a warrant, is not the essence of our inquiry. See In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (For. Intel. Surv. Ct. Rev. 2008)(Even if a foreign intelligence exception applies in a given case, “governmental action intruding on the individual privacy interest [of U.S. persons] must comport with the Fourth Amendment’s reasonableness requirement.”). Our concern is with the axiomatic corollary of that targeting, i.e., that U.S. persons’ communications with the target are perforce acquired as part of that targeted surveillance, and may be used against them in criminal investigations on American soil without any reasonable suspicion or probable cause determination having been made as to them.
Reasonableness.
The touchstone of constitutionality under the Fourth Amendment is reasonableness. It is a fluctuating rather than fixed standard. It depends not only on an analysis of the discrete facts incident to a finding of probable cause (and, for that matter, the search and/or seizure itself), but also the intent and purpose of the established laws of the
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United States. Because the test is one of reasonableness, the panoply of relevant factors must be considered. In the instant case, the charges against Mr. Muhtorov are premised in the constitutional requirement that the Executive has broad powers to protect the United States against foreign threats. What may be unreasonable in a purely domestic matter may, on balance, be considered reasonable in the context of the security of the nation in dealing with foreign powers and organizations that pose a threat. “It must be remembered that what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.” Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).
To analyze whether a government search is reasonable under the Fourth Amendment, the court examines the totality of the circumstances. Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). The court weighs “the promotion of legitimate governmental interests against the degree to which [the search] intrudes upon an individual’s privacy.” Maryland v. King, ––– U.S. ––––, 133 S.Ct. 1958, 1970, 186 L.Ed.2d 1 (2013)(internal citations and quotations omitted). Under this standard, the modern Supreme Court has approved statutory schemes requiring arrestees to submit to buccal swab DNA testing solely as a police booking procedure, see id. and parolees to agree in writing to be subject to suspicionless searches at any time, day or night. Samson, 547 U.S. at 846, 126 S.Ct. 2193 (Thomas, J.)
Mr. Muhtorov argues that in the context of electronic surveillance, reasonableness requires that eavesdropping be “precise and discriminate” and “carefully circumscribed so as to prevent unauthorized invasions of privacy.” Mot. (Doc. 520) at 34 (citing Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) and United States v. Bobo, 477 F.2d 974, 980 (4th Cir. 1973)). He urges me to look to traditional FISA and Title III as measures of the reasonableness for electronic surveillance, arguing FAA’s approval *1255 scheme permitting the generalized acquisition of U.S. persons’ communications without any particularized showing or demonstration of cause is a bridge too far. Id. I do not disagree, but find there is more to the balance than that. The fact traditional FISA surveillance requires a particularized demonstration of probable cause and is constitutional does not mean that FAA surveillance is unconstitutional because it does not. The question is the degree of the intrusion, weighed against the government’s legitimate interest in acquiring foreign intelligence information to protect against the commission of serious

crimes such as espionage and terrorist acts committed by or on behalf of foreign powers. In my view, the FAA passes the Fourth Amendment test.
Privacy Interest.
As an initial matter, I consider Mr. Muhtorov’s privacy interests. Under § 702, the intrusion on an individual’s privacy is as an incidental third party who is a participant in intercepted communications with a target overseas. The government contends defendants have little or “severely diminished” expectations of privacy in their communications with non–U.S. persons overseas, see Unclassified Br. (Doc. 559) at 59–61, & n. 37, based simply on the fact that those persons could be targets for surveillance both by the U.S. government and by other foreign governments or private interest. While I could never adopt the government’s cynical view of the First and Fourth Amendment, it is true that expectations of privacy are diminished the more information one puts out into the ether, especially the ether of the global telecommunications network.
Fourth Amendment jurisprudence has long recognized a third-party doctrine, i.e., a diminishment or loss of a person’s privacy interests where he reveals information to a third party, even in confidence. See United States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976)(bank records); Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)(use of a pen register by telephone company does not constitute a search within meaning of Fourth Amendment because person has no legitimate expectation of privacy in numbers dialed on his phone). The concept has been held to apply to electronic communications, where “a person’s reasonable expectation of privacy may be diminished in transmissions over the Internet or e-mail that have already arrived at the recipient.” United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007). While Mr. Muhtorov and others have a reasonable expectation of privacy in the content of their communications generally, those interests are at least somewhat diminished when transmitted to a third party over the internet.
Weighing Privacy and National Security Interests to Assess Reasonableness.
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United States v. Muhtorov, 187 F.Supp.3d 1240 (2015)
The intrusion into U.S. persons’ legitimate privacy interests under § 702 is less than the generalized “vacuum-cleaner-style mass collection of virtually every person’s international communications” of which Mr. Muhtorov, in his role as Clapper–qualified antagoniste, complains. Collection must be demonstrably intertwined with the government’s efforts to “acquire foreign intelligence information,”24 *1256 § 1881a(a), and may not “intentionally target any person known at the time of the acquisition to be located in the United States.” § 1881a(b)(1). Approval hinges on findings that “foreign intelligence information” gathering is a “significant purpose” of the surveillance, and limitations against abusing the § 702 surveillance process to effectively target Americans will be observed.
More importantly, as was posited at the beginning of this opinion, Mr. Muhtorov’s concern is less with the incidental acquisition of his communications by national intelligence agencies during the course of otherwise lawful foreign intelligence gathering, but in the retention and use of those communications by federal law enforcement in criminal proceedings against him in a court of law. FISA clearly contemplates that intelligence gathering and law enforcement “tend to merge” in the area of terrorism detection and prevention. See In re Sealed Case, 310 F.3d at 725 (citing S. Rep. 95–701 (1978)). The government’s interest in using intelligence information to detect and prevent criminal acts of terrorism, and ultimately to punish their perpetrators, is a legitimate governmental interest against which individual FAA privacy intrusions must be weighed.
Relevant to balancing of FAA interceptees’ privacy interests against the government’s interest in detecting and preventing acts of terrorism, is the fact that the government’s use of FAA–acquired communications is carefully controlled under FISA. See id., 310 F.3d at 740–41. Minimization procedures must be adopted by the Attorney General for every application under the FAA, see § 1881a(e), and must be designed to “minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.” 50 U.S.C. § 1801(h)(1). Procedures must provide for the weeding out of information that is not foreign intelligence information, and the protection of it from dissemination in any manner that identifies a United States person without his consent. § 1801(h)(2). Additional minimization procedures must be established for the retention and dissemination to law enforcement of information that is evidence of a crime, § 1801(h)(3), and provide for how communications to

which a United States person is a party may be disclosed, disseminated, or used, and provide time limits for retention. § 1801(h)(4).
Mr. Muhtorov argues that § 702’s minimization procedures are inadequate (and the approval scheme therefore constitutionally unreasonable) because they allow the government to maintain a database of incidently collected information and query it for law enforcement purposes later. These “backdoor searches,” Muhtorov concludes, require a warrant and render the FAA approval scheme unconstitutional. I disagree. Accessing stored records in a database legitimately acquired is not a search in the context of the Fourth Amendment because there is no reasonable expectation of privacy in that information. Evidence obtained legally by one police agency may be shared with similar agencies without the need for obtaining a warrant, even if sought to be used for an entirely different purpose. This principle applies to fingerprint databases and has also been applied in the foreign intelligence context in Jabara v. Webster, 691 F.2d 272, 277–79 (6th Cir. 1982).
Applying these standards to the suspicionless incidental acquisition of U.S. persons’ communications contemplated under the FAA, I cannot conclude that the FAA’s approval procedures are per se constitutionally infirm. These acquisitions must be tailored to the very serious purpose of foreign intelligence gathering, as defined in the Act, and may not be used to target *1257 U.S. persons as an end-run around Title III. Minimization procedures must weed out acquisitions that are unrelated to foreign intelligence gathering, and inform the retention, querying, and dissemination of those acquisitions for law enforcement purposes in a manner that is consistent with the limitations in § 1881a(b). I note this conclusion is consistent with Judge King’s in Mohamud (2014 WL 2866749 at *27), the only other decision to date to have addressed the specific Fourth Amendment challenge to the FAA presented here.
That I do not find the FAA unconstitutional on its face does not per force mean that it was constitutionally applied to Mr. Muhtorov. As I have already observed, § 702’s authorization procedures are “riddled” with loopholes and there is no judicial oversight of their execution over time. Any acquisition, retention, dissemination, or use of his electronic communications that abused one of these loopholes or exceeded FISC’s authorizations in this case would be unlawful. Accordingly, I proceed to consider the constitutionality of the specific § 702 acquisitions of Mr. Muhtorov’s
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electronic communications in this case.
Acquisition of § 702 Materials in this Case.
Other than the specific timeline of the § 702 acquisitions involving Mr. Muhtorov, the relevant facts in this case are straightforward and minimally classified. Nearly all are recited in the Affidavit of Special Agent Hale of the Federal Bureau of Investigation, a public document filed with the court in support of the criminal complaint (Doc.1, filed 01/19/12). The problem with Agent Hale’s factual recitation is that it elides any express distinction between the facts gathered as a result of Title I (electronic) and Title III (physical) searches on the one hand, and Title VII (FAA–acquired) information on the other.
The Islamic Jihad Union (IJU) is an extremist organization that splintered from the Islamic Movement of Uzbekistan (IMU) in the early 2000s. The IJU adheres to an anti–Western ideology, opposes secular rule in Uzbekistan, and seeks to replace the current regime with a government based on Islamic law. The IJU first conducted attacks in April, 2004, targeting a popular bazaar and police at several roadway checkpoints. These attacks killed approximately 47 people, including 33 terrorists, some of whom were suicide bombers. The IJU claimed responsibility for these attacks on multiple militant Islamic websites and denounced the leadership of Uzbekistan. In July, 2004, the IJU conducted simultaneous suicide bombings of the United States and Israeli Embassies in Uzbekistan as well as the Uzbekistani Prosecutor General’s Office in Tashkent, Uzbekistan. Claiming responsibility for these attacks, the IJU stated that its martyrdom operations would continue. The IJU also claimed the attacks were committed in support of its Palestinian, Iraqi and Afghan brothers in a global insurgency.
In September, 2007, German authorities arrested three IJU operatives, thus disrupting a plot against unidentified U.S. or Western facilities in Germany. The IJU operatives had available 700 kilograms of hydrogen peroxide and an explosives precursor sufficient in raw material to make the equivalent of about 1200 pounds of TNT. The IJU claimed responsibility for the foiled plot. The IJU has also claimed responsibility for attacks targeting coalition forces in Afghanistan in 2008 including a March suicide attack against a U.S. military post that was allegedly

carried out by a German–born Turk.
In April, 2009, Turkish authorities seized weapons and detained extremists with ties to the IJU. The IJU also claimed responsibility for a May 2009 attack in Uzbekistan and numerous attacks in Afghanistan against coalition forces. At all *1258 times relevant to the charges against Mr. Muhtorov, the IJU was designated a terrorist organization by the Secretary of State, and has been so designated since June 12, 2005, under the name Islamic Jihad Group.25
As has already been disclosed, the FISA application at issue in this case was based in part on FAA surveillance and collection. Mr. Muhtorov contends the “incidental” acquisition of his communications and their subsequent retention, querying, and use in criminal proceedings brought against him, was unreasonable under the Fourth Amendment. I have already reviewed the FISA Court’s Title I and Title III approvals and concluded the searches and surveillance conducted under those approvals was lawfully authorized and conducted. I have since performed an exhaustive in camera and ex parte review of all relevant additional classified materials provided to me by the government, including supplemental classified materials prepared at my request. I conclude on the record before me that a proper and supported application was filed, and that the targeting and minimization procedures forwarded were tailored to the government’s legitimate foreign intelligence purposes and took into account the privacy interests of individuals whose communications would be incidently acquired. Mr. Muhtorov’s Motion to Suppress Evidence Obtained or Derived under § 702 (Doc. 520) is DENIED. Because I find all legal criteria were met by the government to establish that the searches and surveillance at issue were lawfully authorized and conducted, there is no need to consider the “good faith” alternative basis for denying the Motion to Suppress.
As stated at the June 17, 2015 status conference, I will address Mr. Muhtorov’s request for specific, additional discovery and declassification in a separate order, after conducting one or more prefatory CIPA § 4 hearings on the subject. Accordingly, this matter will be set for a discovery conference, to be attended by the government and the defense, at which time the government should be prepared to address the CIPA § 4 hearing and process for moving toward the declassification of any Brady and related information material to the defense in this case. The conference will be conducted before a court reporter and under conditions that will allow it to be conducted as a closed hearing, should the need arise.
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All Citations

187 F.Supp.3d 1240 Footnotes

1

The FAA added Title VII to the FISA statute, which establishes “Additional [intelligence gathering] Procedures

Regarding Certain Persons Outside the United States.” It is intended to sunset on December 31, 2017. See P.L.

110–261, § 403(b)(1), 122 Stat. 2474, as amended, appearing in 50 U.S.C. § 1881 note.

2

In Clapper v. Amnesty Int’l USA, ––– U.S. ––––, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013), Justice Alito writing for a

majority of the Supreme Court held that attorneys, human rights, and media organizations lacked article III standing

to challenge the constitutionality of § 702 because they could only speculate that their communications had been or

would be incidently acquired during FAA surveillance of their clients or other targeted persons abroad. With the

government’s notice in this case, the acquisition of Mr. Muhtorov’s communications is demonstrable and he is

therefore “Clapper–qualified” to challenge the law.

3

United States v. United States Dist. Court for the Eastern Dist. of Mich., 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752

(1972)(known as the Keith case).

4

I note Mr. Jumaev has filed his own renewed Motion to Suppress and/or for Discovery (Doc. 521), insisting that FAA

must have informed the government’s investigation and indictment of him notwithstanding the government’s

disclaimer and the fact that it filed no Notice of Intent to Use FAA–Acquired information against him in this case.

Based on the government’s representations that it does not intend to use FAA–acquired evidence against him and

my ex parte review of all of the classified information in this case, I conclude Mr. Jumaev is not an “aggrieved

person” authorized under 50 U.S.C. § 1806(e) to move to suppress such evidence or to bring an as-applied

constitutional challenge to Section 702. The question of whether the disclaimer deprives Mr. Jumaev of standing to

assert a facial challenge to the FAA under Clapper is an open one, in my view, but one, given my ruling in this case,

that does not need to be answered. I limit my analysis in this opinion to the constitutional arguments raised by Mr.

Muhtorov.

5

Section 4 of the Classified Information Procedures Act (CIPA) provides that “[t]he court, upon a sufficient showing,

may authorize the United States to delete specified items of classified information from documents to be made

available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a

summary of the information for such classified documents, or to substitute a statement admitting relevant facts that

the classified information would tend to prove.” I have, to date, accepted the government’s averred classification

assertions as offered. Through the upcoming § 4 process, I intend to put the government through its paces to justify

them, and to urge the declassification that was promised for much of the Muhtorov and Jumaev–related discovery

in this case.

6

See 50 U.S.C. § 1801(i)(defining “United States person” as, among other things, “a citizen of the United States” or

“an alien lawfully admitted for permanent residence”).

7

See Fiss, O., “Even in a Time of Terror,” 31 Yale Law & Policy Rev. 1 (2012).

8

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”) governs domestic electronic

surveillance activities and requires federal, state, and other officials to obtain judicial approval on a specific showing

of probable cause before intercepting “wire, oral, and electronic” communications such as telephone conversations

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and e-mails.

9

See 50 U.S.C. § 1801(f)(1)–(4)(§ 1801(f)(1)–(4)(defining “electronic surveillance” in terms of wire or radio

communications targeting a person “in,” acquired “in,” or intended for or received by someone “in,” the “United

States”). Given that international communications in 1978 were carried through satellite signals or over

transoceanic cables subject to interception offshore, Congress understood this language would exempt NSA’s

foreign-to-foreign as well as most of its international communications surveillance from regulation, because neither

would fall within the definition of “electronic surveillance” under the Act:

“The language of this amendment exempts ... foreign intelligence gathering .... if the acquisition does not come within the definition of ‘electronic surveillance’.... Specifically this provision is designed to make clear that the legislation does not deal with international signals intelligence activities as currently engaged in by the National Security Agency and electronic surveillance conducted outside the United States.”

See United States v. Mohamud, Crim., Case No. 10–cr–475–KI, slip op. at p. 12, 2014 WL 2866749 (D. Or. June 24, 2014)(quoting S. Rep. No. 95–701, at 71 (1978)).
10 “Minimization procedures” under FISA are defined as “specific procedures ... adopted by the Attorney General, that are reasonably designed ... to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” 50 U.S.C. § 1801(h).
11 The 1979 seizure of the U.S. embassy in Tehran; a series of Libyan and Hezbollah bombings, attacks and hostage taking beginning in 1982 and continuing throughout the 80s and early 90s, including the 1988 bombing of a Pan–Am flight over Lockerbie, Scotland, in 1988; the 1993 World Trade Center bombing in New York; and the Oklahoma City bombing in 1995 are but a few examples.
12 The advent of the internet, for example, meant that foreign communications previously transmitted via satellite or transoceanic cables in 1978 were now carried over fiber optic cables. Because these cables were arguably “wires,” foreign surveillance that would have been excluded from FISA regulation in 1978 was rendered potentially unlawful due merely to a change in technology, rather than any intentional decision by Congress. See Modernization of the Foreign Intelligence Surveillance Act: Hearing before the S. Sel. Comm. on Intel., 110th Cong., 1st Sess. (2007) at pp. 9–19 (testimony of the Director of National Intelligence).
13 EO 12333’s complete text appears at 46 Fed. Reg. 59941, 3 C.F.R.
14 United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the “USA PATRIOT ACT), Pub. L. 107–56 (October 26, 2001).
15 The USA PATRIOT Act not only amended FISA, but also the Electronic Communications Privacy Act, Computer Fraud and Abuse Act, Pen Register and Trap and Trace Statute, Money Laundering Act, Immigration and Nationality Act, Money Laundering Control Act, Bank Secrecy Act, Right to Financial Privacy Act, and the Fair Credit Reporting Act all were impacted by USA PATRIOT Act amendments. See generally, Congressional Research Service (2002b), “The USA PATRIOT Act: A sketch.” [On–line]. Available: http://www.fas.org/irp/crs/RS21203.pdf
16 During hearings, Congress heard testimony on the ways the advancement of communications technology since 1978
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had created unforeseen consequences under FISA. Transmission over an integrated global communications grid blurred the distinction between domestic and offshore acquisition. Domestic communications between neighbors in Peoria could travel around the world and be intercepted abroad. Foreign-to-foreign communications that were previously beyond FISA’s reach could be intercepted in the United States.
[As a communication travels the global network,] NSA may have multiple opportunities to intercept it as it moves and changes medium. As long as a communication is otherwise lawfully targeted, we should be indifferent to where the intercept is achieved. Signals intelligence is a difficult art and science .... Intercept of a particular communication ... is always probabilistic, not deterministic [and] [n]o coverage is guaranteed. FISA for the 21st Century: Hg. before the S. Comm. on the Judiciary, 109th Cong., 2d Sess. (2006)(statement of NSA Director General Michael V. Hayden). The necessary fix, Congress was told, was a “technology-neutral” framework for surveillance of foreign targets—focused not on “how a communication travels or where it is intercepted,” but on “who is the subject of the surveillance, which really is the critical issue for civil liberties purposes.” FISA Modernization Hg. at 46 (statement of Asst. Atty Gen. Kenneth L. Wainstein). With these changes, it was implied, the original balance between strictly “foreign” foreign intelligence gathering and foreign intelligence gathering that impacted Americans struck by FISA in 1978 could be reconstituted, and secret programs like TSP could be brought to light and integrated into the FISA framework.
17 Compliance with § 702(b) limitations and with the Attorney General’s proffered targeting and minimization procedures is self-monitored and self-executing under the FAA, as judicial review is limited to the initial authorization and any reauthorizations sought by amendment. See § 1881a(i). The FAA requires that the Attorney General and Director of National Intelligence conduct a “semi-annual assessment” of compliance with the targeting and minimization procedures of a particular surveillance authorization, § 1881a(l), but other than submitting that assessment to FISC and to congressional intelligence and judiciary committees, the FAA requires no action on the assessment and no judicial review on the part of FISC.
18 United States v. Smith, 686 F.Supp. 847 (D. Colo. 1988)(declaring Sentencing Reform Act of 1986 unconstitutional, in part, because role played by Article III judges on Sentencing Commission violated principles of separation of powers).
19 Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)(addressing case in controversy requirement in context of standing analysis for taxpayer suit challenging validity of federal spending on textbooks); Citizens Concerned for Separation of Church & State v. City & Cnty. of Denver, 628 F.2d 1289, 1295 (10th Cir. 1980)(using case or controversy requirement as source for standing analysis, finding citizens lacked standing to bring First Amendment challenge to City’s creche display because there was no showing of causal connection between the creche display and any injury in fact to plaintiff); In re Summers, 325 U.S. 561, 568, 65 S.Ct. 1307, 89 L.Ed. 1795 (1937)(holding that a claim of a present right to admission to state bar association and denial of that right is a case or controversy that may be reviewed under Article III when federal questions are raised). The citation to my opinion in Smith is more interesting, because although my ruling there passed on a completely different aspect of the separation of powers doctrine, I observed that article III judges “ ‘[d]ischarging tasks other than the deciding of cases and controversies’ ” would involve them in the process of policy and thereby “ ‘weaken confidence in the disinterestedness of their judicatory functions.’ ” 686 F.Supp. at 855 (quoting In re Sealed Cases, 838 F.2d 476, 512 (D.C. Cir. 1988). The point is correct, in my view, but not particularly germane. If the concern is that FISC’s participation in § 702 authorizations undermines the perceived impartiality or detachment of the judiciary from law enforcement, it is of a kind with concerns over judges participation in secret or ex parte proceedings of all types, and wiretap authorizations generally.
20 See New York v. Ferber, 458 U.S. 747, 768, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)(addressing the need to focus on “flesh-and-blood” applications of fact to law in context of First Amendment overbreadth challenge to child pornography statute); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239, 57 S.Ct. 461, 81 L.Ed. 617 (1937)(construing
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Declaratory Judgment Act’s “actual controversy” requirement in context of Article III’s limitation of judicial power to “ ‘cases’ and ‘controversies,’ ” holding the term “ ‘controversies,’ if distinguishable at all from ‘cases,’ is so in that it is less comprehensive than the latter, and includes only suits of a civil nature”). 21 I note that during the course of briefing in this case, Judge King in the District of Oregon issued his opinion in United States v. Mohamud, 2014 WL 2866749 (2014), upholding the FAA and the government’s disclosure that it had used FAA–acquired evidence to secure the conviction of a U.S. person. Defendant’s arguments in Mohamud, discussed further infra, included an Article III challenge similar to Mr. Muhtorov’s here. While I agree with several of Judge King’s legal conclusions in Mohamud, I find his analysis of defendant’s “case or controversy” arguments unpersuasive. Judge King spent most of his discussion couching defendant’s arguments in terms of a separation of powers challenge, which he contends has been put to rest by Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Id. at *10–11. As set forth in n. 19, supra, I find the separation of powers analysis inapposite to the “case or controversy” argument raised. Judge King’s further discussion equates FISC’s role in FAA surveillance authorizations to the “neutral and detached” review conducted by magistrates under the Wiretap Act, citing Keith. Id. at *11. In so doing, Judge King did not address the fundamental differences between wiretap authorization reviews conducted in criminal cases and traditional FISA on the one hand, and the FAA on the other. As a result, I do not believe Mohamud moves the ball forward on this issue. 22 See Duka, 671 F.3d at 341 (stating “courts have concluded that the important national interest in foreign intelligence gathering justifies electronic surveillance without prior judicial review, creating a sort of ‘foreign intelligence exception’ to the Fourth Amendment’s warrant requirement,” and collecting cases). 23 Mot. Suppress (Doc. 520, at 27, 30)(there is no “special needs” exception to the warrant requirement for foreign intelligence and “not basis to conclude” the requirement is unworkable here). 24 “Foreign intelligence information” is defined under FISA as information that “relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against ... an actual or potential attack ... sabotage, international terrorism, or the international proliferation of weapons of mass destruction ..., or clandestine intelligence activities.” § 1801(e)(1). It is also information with respect to a foreign power ... that relates to, and if concerning a United States person is necessary to ... the national defense or the security of the United States.” § 1801(e)(2). 25 Notification of its designation appears at 70 Fed. Reg. 35332–01 (June 17, 2005) and was amended to include the name “Islamic Jihad Union” on April 29, 2008, published in the 73 F. Reg 30443–01 (May 27, 2008).
15

 
 United States v. Muhtorov, 329 F.Supp.3d 1289 (2018)

329 F.Supp.3d 1289 United States District Court, D. Colorado.
UNITED STATES of America, Plaintiff, v.
1. Jamshid MUHTOROV, Defendant.
Criminal Case No. 12-cr-00033-JLK |
Signed 08/30/2018
Synopsis Background: Defendant was convicted after jury trial of three counts of providing material support to a foreign terrorist organization, and a sentencing hearing was held.
Holdings: The District Court, John L. Kane, Senior Judge, held that:
two-level sentencing enhancement for providing material support or resources to terrorist organization “with the intent, knowledge, or reason to believe they are to be used to commit or assist in the commission of a violent act” was applicable;
sufficient evidence supported application of terrorism enhancement;
government failed to show by preponderance of evidence that two-level obstruction of justice enhancement applied;
defendant was not entitled to downward sentencing adjustment for acceptance of responsibility;
application of terrorism enhancement over-represented seriousness of the defendant’s past criminal conduct or the likelihood that the defendant would commit other crimes;
defendant was not entitled to downward sentencing departure for past good works and public service as a human rights defender in foreign country; and
total sentence of 132 months’ imprisonment, with supervised release for a term of 15 years, constituted sufficient punishment that was not greater that necessary

to accomplish statutory purposes of sentencing.
Ordered accordingly.
Procedural Posture(s): Sentencing or Penalty Phase Motion or Objection.
Attorneys and Law Firms
*1291 Gregory Allen Holloway, Beth N. Gibson, David Alan Tonini, Julia K. Martinez, U.S. Attorney’s Office, Denver, CO, Erin Martha Creegan, U.S. Department of Justice, Washington, DC, for Plaintiff
Kathryn J. Stimson, Brian Rowland Leedy, Haddon Morgan & Foreman, P.C., Warren Richard Williamson, Jacob R. Rasch-Chabot, Office of the Federal Public Defender, Denver, CO, Patrick C. Toomey, New York, NY, for Defendant
MEMORANDUM OPINION AND SENTENCING ORDER
JOHN L. KANE, SENIOR U.S. DISTRICT JUDGE
On January 21, 2012, Defendant Jamshid Muhtorov was arrested at O’Hare Airport in Chicago as he attempted to board a flight to Istanbul, Turkey, with a one-way ticket. In his possession were $2,865 in cash, two new iPhones, a new iPad, and his personal cellphone containing numerous terrorist propaganda videos. *1292 The government had previously intercepted statements by Muhtorov that he intended to travel to the “wedding” or the “wedding house” from Turkey and that he desired to support the Islamic Jihad Union (IJU), a designated foreign terrorist organization. From his intercepted conversations, it is apparent that Muhtorov frequently used the word “wedding” in association with violent jihad and in relation to the activities of the IJU.
On June 21, 2018, a jury found Muhtorov guilty of three counts of providing material support to a foreign terrorist organization under 18 U.S.C. § 2339B, namely (1)
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conspiring and (2) attempting to provide $300 to the IJU, and (3) providing or attempting to provide himself as personnel to that same organization. The jury acquitted Muhtorov of a fourth material support count—attempting to provide communications equipment and services to the IJU.
Muhtorov’s codefendant, Bakhtiyor Jumaev, was also found guilty of (1) conspiring and (2) attempting to provide material support in the form of $300 to the IJU. A little over a month ago, I sentenced Jumaev to the 76 months and 3 days he had already spent in detention. See United States v. Jumaev, No. 12-cr-00033-JLK, 2018 WL 3490886, at *21 (D. Colo. Jul. 18, 2018). In doing so, I stressed that Jumaev’s conduct placed him among the least culpable offenders who have been convicted under the material support statute. See id. That is not the case with Muhtorov, however. Muhtorov was calculated and at times devious. He encouraged others, including Jumaev, to support the IJU and terrorist ideals generally. He also swore his allegiance to the IJU and told his daughter to pray that he become a martyr. Still, Muhtorov’s actions do not come close to the severity of those of the most culpable offenders. Like Jumaev, he did not plot to commit specific acts of violence, nor did he engage in planning acts of violence in the United States. Nor does the evidence reveal any concrete path known to or established by Muhtorov to achieve his intended goal of supporting the IJU. Indeed, he was a self-described braggart who craved attention and admiration from others, making the resoluteness of his actions and intentions questionable.
In examining Muhtorov’s individual circumstances and reaching the conclusions detailed below, I have considered the initial and revised Presentence Investigation Reports (ECF Nos. 1929 and 1957) and Muhtorov’s Objections (ECF No. 1951) and the Addendum (ECF No. 1958) to the Report. I have reviewed as well the government’s Amended Sentencing Statement (ECF Nos. 1944-1, 1944-2), Muhtorov’s Sentencing Statement (ECF No. 1949), his Supplement thereto (ECF No. 1950), his Memorandum Regarding Sentencing Guidelines (ECF No. 1918), his Motion for Variant Sentence and Downward Departure (ECF No. 1955), the letter from him filed as a Supplement thereto (ECF No. 1956-1), and the government’s eleventh-hour Response to Muhtorov’s filings (ECF No. 1961) that I have stricken. Before deciding the appropriate sentence, I have also listened to and reflected on the statements of the prosecution and defense counsel and Muhtorov’s allocution.

I.
BACKGROUND
Muhtorov was born in 1976 in Jizzakh, Uzbekistan, which at that time was part of the Soviet Union. His mother was a teacher and his father a surgeon. He was the eldest of five siblings—three boys and two girls.
In 1991, when Muhtorov was about 15, the Soviet Union collapsed, and Islam Karimov became the President of Uzbekistan. *1293 Steven Swerdlow, an expert on the human rights history of Uzbekistan, described the country’s human rights record under Karimov as “atrocious” and “abysmal,” commenting that it was “by far one of the worst and most repressive situations of human rights on earth.” Trial Tr. at 1429:6-12. During this time, the Uzbek government stamped out free expression, imprisoned thousands of people on false charges, and tortured detainees. Id. at 1429:21-1431:14. Uzbekistan further promulgated some of the world’s most restrictive laws on religion, under which individuals were forced to practice their religion within the strict confines required by the Uzbek government. Id. at 1437:3-13.
Under these circumstances, Tohir Yuldashev and Juma Namangani formed the Islamic Movement of Uzbekistan (IMU) with the purpose of toppling Islam Karimov’s regime. Trial Tr. at 168:5-25. The Islamic Jihad Union, the organization Muhtorov sought to support, splintered from the IMU in late 2001 or early 2002, seeking to focus its efforts globally instead of on Uzbekistan alone. Trial Tr. at 161:20-21, 167:11-13. The IJU has been affiliated with al-Qaeda and the Taliban and has fought U.S. and coalition forces in Afghanistan. Trial Tr. at 162:14-17, 163:1-5, 169:12-19. In its heyday around 2006, the organization had about 100 to 200 members, but its numbers dwindled substantially after that time. Trial Tr. at 202:17-19, 203:13-16.
Muhtorov went on to attend a polytechnical university and to graduate with a degree in construction engineering. In 2001, he married his wife Nargiza and went to work for the Uzbek human rights organization Ezgulik. As a human rights advocate, Muhtorov fought to protect farmers’ rights, appearing in court and meeting with
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representatives from various non-governmental organizations and foreign embassies.
On May 13, 2005, in the Uzbek city of Andijan, government troops opened fire on a peaceful protest. It is estimated that between 700 and 1,000 people were killed at what has become known as the “Andijan Massacre”. Afterwards, Muhtorov publicized reports from the incident and spoke out in opposition to the Uzbek government’s actions. As a result of this advocacy, he was beaten on two occasions. The second time, in November 2005, his nose was broken and he lost consciousness. Muhtorov’s family paid a hefty price for his work as well. His mother and his brother, Hurshid, were terminated from their jobs, and his sister and father were arrested.
Eventually, Muhtorov believed the threat from the Uzbek government was serious enough that he fled to Kyrgyzstan. His wife and two children joined him there. During the months he lived in Kyrgyztan, Muhtorov began researching the various sects of Islam, including the Hizb ut-Tahrir, Tabligh, and Akromiya sects. He continued his inquiry in the years that followed, studying the Salafi sect and ultimately embracing his curiosity about terrorist sects. He had never been permitted to explore such interests in Uzbekistan.
While in Kyrgyzstan, Muhtorov and his family applied for and were granted admission to the United States as political refugees. In February 2007, they moved to Denver, Colorado, where he found employment first as a janitor in a casino and then in a meat packing plant. In search of a better-paying job, he decided to obtain his commercial truck driver’s license, which led him to meet Jumaev. In December 2009, a friend of Muhtorov arranged for him to stay in Jumaev’s apartment in Philadelphia, Pennsylvania, while he studied to take his commercial license exam.
Jumaev and Muhtorov had similar backgrounds. Both were from Uzbekistan and *1294 had come to the United States after experiencing brutality at the hands of the Uzbek authorities. Over the months that passed after Muhtorov returned home, they developed a long-distance friendship in which they discussed a wide variety of topics, including their families, Islam, current events, and the immigrant experience in the U.S. They also conversed about the IJU and the IMU, the history of those terrorist organizations, and related propaganda videos they found online. In speaking about these organizations, they often used ambiguous code words, like wedding, resort,

Switzerland, alpinists, and sportsmen. Muhtorov also took the precaution of employing anonymizers1 to access terrorism-related websites and instructed Jumaev how to do the same. Gov’t Trial Ex. 19A at 3-7.
From 2009 to his arrest in this case, Muhtorov communicated over the internet with the website administrator for Sodiqlar.com, the the IJU’s website. Trial Tr. at 1250:4-7. Muhtorov developed such a relationship with the website administrator that he sent pictures of his young children and of himself with a beard. Gov’t Trial Exs. 111A at 1, 116A at 1, 116B at 1, 530 at 1, 530A at 1.
In February 2010, Jumaev was detained by U.S. Department of Homeland Security Immigration and Customs Enforcement (ICE) for overstaying his visa. Jumaev borrowed money from friends and acquaintances to pay his bond, including $500 from Muhtorov. After his arrest, Jumaev struggled to manage his and his family’s debts, so he did not pay Muhtorov back for many months.
Muhtorov repeatedly hinted to Jumaev about his need to at least partially repay the loan. By March 2011, Muhtorov informed the IJU that “Abu Bakr,” Jumaev’s moniker, had promised to send him $300 for the organization. Gov’t Trial Ex. 107A at 2. Muhtorov then relayed to Jumaev that the IJU had written him that it was in dire need of financial support. Gov’t Trial Ex. 125A at 2. Jumaev gathered $300 and used a friend’s check to send the money to Muhtorov. After a few days passed, Jumaev pressed Muhtorov on whether he had received the “wedding gift.” Gov’t Trial Ex. 128A at 1. Shortly after, the check was delivered.
Although Muhtorov’s wife spent the $300 from Jumaev on their family’s expenses, Muhtorov continued to tell others about Jumaev’s “wedding gift” for the IJU. Muhtorov informed the website administrator for the IJU that a brother had sent him a $300 “wedding gift” and asked what he should do with it. Gov’t Trial Ex. 112A at 1. Similarly, he told a Confidential Human Source for the FBI that a brother had sent him $300 for the IJU, but the IJU would not tell him how to get the money to it. Gov’t Trial Ex. 157A at 7.
Soon after receiving Jumaev’s check, Muhtorov emailed the IJU website administrator an oath of allegiance stating that he would perform any task for the organization even if it meant risking death. Gov’t Trial Ex. 107A at 1.2 The evidence shows that the IJU only ever requested that he *1295 upload and distribute terrorist propaganda
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materials and help them to acquire satellite internet equipment. Gov’t Trial Exs. 100A at 2, 101A at 1, 105A at 2, 109A at 1-3, 118A at 1, 124A at 1. Instead of carrying out the assignments himself, Muhtorov sought assistance from the FBI Confidential Human Source. Gov’t Trial Exs. 121A at 1, 157A at 2-11, 158A at 2, 162A at 16-22, 167A at 13-14.
Muhtorov frequently sent money to his parents and his brother Hurshid, who was in Kazakhstan attempting to obtain refugee status in Canada. Muhtorov’s parents urged him to assist his brother with the immigration process. In August 2011, Muhtorov told Hurshid:
You will go to Istanbul Turkey. I will talk to the brothers and solve your living arrangements and other things. We will submit your documents there. You will have an interview. I will find all your documents there....There is an Islamic school there. You will study for 45 days and then you will leave....You will come to America. You will come with my documents. Do you understand? You will come here as Jamshid.
Def. Trial Ex. 697A at 7.
On January 16, 2012, Muhtorov purchased a one-way ticket to Istanbul, Turkey, that was to depart five days later. He told countless contradictory stories about the length, destination, and purpose of his trip to every listening ear he could find. In a call to his pregnant wife on January 19, 2012, he instructed her to prepare to leave the U.S. by filing for their tax refund as soon as possible, selling their furniture, and buying tickets for her and the children to meet him in Turkey. Gov’t Trial Ex. 152A at 24, 33. Shortly before that call, he reminded his eight-year-old daughter: “Remember, I told you to pray for your Daddy to become a martyr...Don’t pray, ‘Don’t let him leave!’ It will be a curse for me....Pray and say, ‘Make my father a martyr, one of real martyrs.’ ” Gov’t Trial Ex. 146A at 1.
Muhtorov discussed his travel plans with Jumaev for months until Jumaev complained:

“Sir[,] I envy you. You too are leaving to a wedding. I want to go to the wedding, too.” Gov’t Trial Ex. 131A at 3. Less than two weeks before Muhtorov was to travel, Jumaev told him: “You are going to die either way. You are going to die here as it is and you are going to die there as it is. What’s the difference? The only one difference is that death over there is better!” Gov’t Trial Ex. 149A at 26. Muhtorov responded: “It is so.” Id.
To his friend Mustafa, Muhtorov claimed he would not be coming back from Turkey even though he had led his wife to believe he would. Gov’t Trial Ex. 153A at 6-7. To the Confidential Human Source, Muhtorov first explained that he would leave for Turkey and take his family along, placing his children in a madrasa there while he determined how to proceed further. Gov’t Trial Ex. 156A. As he became more eager to travel, Muhtorov described his feeling to the Source, saying: “[I]f God is protecting me now, then He will protect me at the wedding house as well....I can’t help it. I’m getting so excited.” Gov’t Trial Ex. 166A at 3. Then, days before leaving, he reported to the Source that the IJU wanted him to work in the propaganda and recruitment unit and not to “deploy to the wedding.” Gov’t Trial Ex. 168A at 12.
Muhtorov told his former employer that he was going to Istanbul to help his brother and asked if he would be able to get his job back. He did not say, however, that he would in fact be returning. Trial Tr. at 1414:21-1415:9, 1416:9-12. In contrast, he indicated to the taxi driver who drove him to the airport that he would only be gone for ten days to two weeks. Trial Tr. at 801:10-13.
*1296 So as not to “have all kind of problems at the airport,” Muhtorov shaved off his beard before his flight. Gov’t Trial Ex. at 9. On January 21, 2012, the day he was to fly out, he hired a taxi driver to spend three to four hours driving him around Chicago. At Muhtorov’s direction, they went to Best Buy so he could purchase an iPad, to a mosque, to an Arabic restaurant, to an Apple Store where he picked up two new iPhones, and then to the airport. He paid the driver $600.
Muhtorov was arrested that afternoon at O’Hare Airport in Chicago. In his possession were $2,865 in cash and the two new iPhones and iPad. His luggage contained suits, bags of candy, immigration forms, documents regarding his work with Ezgulik, and a letter from Jewish Family Service of Colorado, among other items. He was also carrying his cellphone, on which he had downloaded many violent terrorist propaganda videos. After being advised of his rights, he admitted to FBI agents that he
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knew the IJU was a terrorist organization and that he had been in communication with the IJU website administrator.
At trial, Muhtorov testified on his own behalf. His counsel advanced the argument that he was playing “Jamshid the jihadi warrior” out of boredom and did not intend to follow through with his claims or actually support terrorism. His testimony supported this claim to some extent, but otherwise, provided no clear narrative regarding his actions.3 In his testimony, he acknowledged he had the same principal goal as the IJU—to overthrow the Uzbek regime, specifically that of Islam Karimov, and he claimed he only communicated with the IJU and downloaded their videos to discover their strategy towards Uzbekistan. Trial Tr. at 1222:18-1223:16.
II.
U.S. SENTENCING GUIDELINES
I begin by calculating the applicable U.S. Sentencing Guidelines range for Muhtorov. I do so because I must, see Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), even though—as I have previously notified the parties and explained in sentencing Jumaev—I find the Guidelines illogical and inadequate in this case. See Jumaev, 2018 WL 3490886, at *8-13. Even if the following calculation is in error, however, it has *1297 no impact on the ultimate sentence. See United States v. Sabillon-Umana, 772 F.3d 1328, 1334 (10th Cir. 2014) (acknowledging that remanding for resentencing does not help the defendant or enhance the integrity of judicial proceedings when a district judge analyzes a case under alternative theories and indicates he or she would arrive at the same sentencing conclusion either way); United States v. Gieswein, 887 F.3d 1054, 1062-63 (10th Cir. 2018).4
A. Calculation of Guidelines Range U.S. Sentencing Guideline (U.S.S.G.) § 2M5.3(a) sets the Base Level for a conviction under 18 U.S.C. § 2339B at 26. Muhtorov’s three counts are grouped together under the Guidelines because they involve a common criminal

objective and constitute part of a common scheme or plan. See U.S.S.G. § 3D1.2. Muhtorov has no known criminal history, making his Criminal History Category I. Without any specific offense characteristics increase, adjustments, or departures, Muhtorov’s Guidelines range is 63 to 78 months’ imprisonment.
The Guideline for convictions under 18 U.S.C. § 2339B provides for a two-level increase “[i]f the offense involved the provision of (A) dangerous weapons; (B) firearms; (C) explosives; (D) funds with the intent, knowledge, or reason to believe such funds would be used to purchase any of the items described in subdivisions (A) through (C); or (E) funds or other material support or resources with the intent, knowledge, or reason to believe they are to be used to commit or assist in the commission of a violent act....” U.S.S.G. § 2M5.3(b)(1).
Muhtorov contests the application of this increase. I find the government has demonstrated by a preponderance of the evidence that it is applicable. Muhtorov cites United States v. Dhirane, 896 F.3d 295, 305 (4th Cir. 2018), to emphasize that he must have known or had reason to believe that his support—$300 and providing himself as personnel—“would be used to assist in acts of violence by the terrorist organization.” Muhtorov Sentencing Statement at 17-18. In focusing on the “would be used” portion of that statement, Muhtorov loses the significance of the word “assist.” As found by Congress and endorsed by the Supreme Court, “[F]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Holder v. Humanitarian Law Project, 561 U.S. 1, 47, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (quoting Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 301(a)(7), 110 Stat. 1247, note following 18 U.S.C. § 2339B (Findings and Purpose) ). Muhtorov knew or had reason to believe that the $300, even if it went to feed the orphans of IJU fighters, would “assist” in acts of violence by freeing up other money to support that cause. Likewise, he knew or had reason to believe that offering himself as personnel to the organization, even as a propagandist or recruiter, would “assist” others in the organization to engage in violent activity. Therefore, Muhtorov’s offense level is subject to a two-level increase under U.S.S.G. § 2M5.3(b).
The Guidelines inquiry does not end there; the facts of this case and the parties compel me to consider numerous other adjustments and departures. First, I must evaluate the application of the so-called *1298 Terrorism
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Enhancement found in U.S.S.G. § 3A1.4. Since the government again contends the Obstruction of Justice Enhancement in § 3C1.1 is applicable, I must also iterate the unmet requirements of that provision. After resolving those issues, I consider Muhtorov’s requests to reduce his offense level for acceptance of responsibility and depart based on his lack of criminal history, his prior good works and commitment to public service, and the immigration consequences he faces.
Adjustments
1. § 3A1.4: Terrorism Enhancement The Terrorism Enhancement in U.S.S.G. § 3A1.4 provides:
(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32.
(b) In each such case, the defendant’s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.
U.S.S.G. § 3A1.4. Thus, the Enhancement functions by both increasing the offense level at least 12 levels and moving the defendant to the highest Criminal History Category.
It applies when the predicate offense either “(1) ‘involve[s]’ a federal crime of terrorism or (2) [is] ‘intended to promote’ a federal crime of terrorism.” United States v. Awan, 607 F.3d 306, 313 (2d Cir. 2010). A “federal crime of terrorism” is defined, for the purposes of the Enhancement, as “an offense that—(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of—[a list of enumerated offenses, including] (i) section...2339B (relating to providing material support to terrorist organizations)....” Application Note 1 to U.S.S.G. § 3A1.4; 18 U.S.C. § 2332b(g)(5).
I first consider whether Muhtorov’s predicate offenses “involve” a federal crime of terrorism. Since his offenses

are enumerated in 18 U.S.C. § 2332b(g)(5)(B), I need only find that they were “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5); Awan, 607 F.3d at 316-17. “ ‘Calculation’ is concerned with the object that the actor seeks to achieve through planning or contrivance...Section 2332b(g)(5)(A) does not focus on the defendant but on his ‘offense,’ asking whether it was calculated, i.e., planned—for whatever reason or motive—to achieve the stated object.” Awan, 607 F.3d at 317. I find by a preponderance of the evidence that Muhtorov had the specific intent to influence the Uzbek government by providing the IJU with $300 and himself as personnel.
At trial, Muhtorov admitted he had the goal of overthrowing the Uzbek regime and was interested in the IJU because they had the same goal. Trial Tr. at 1222:18-1223:1. He communicated with the IJU’s website administrator for years, eventually offering to assist with any task even if he had to risk death. He enrolled others in his schemes with the IJU, including Jumaev and the FBI Confidential Human Source. He used anonymizers and code words. For nearly a year before setting his plans in motion, he discussed his travels to Turkey, all the while waiting for an “invitation to the wedding”. He then shaved his beard immediately before he embarked to avoid trouble in the airport. He was calculated.
Even if Muhtorov did not directly intend to influence, affect, or retaliate against a government, which I find he did, his offenses “intended to promote” the commission of federal crimes of terrorism *1299 by others, namely IJU members. “[A]n offense is ‘intended to promote’ a federal crime of terrorism when the offense is intended to help bring about, encourage, or contribute to” such a crime. Awan, 607 F.3d at 314. I find Muhtorov’s conspiracy and attempt to provide $300 and his attempt to provide himself as personnel were carried out with the intent to encourage or contribute to the IJU’s commission of federal crimes of terrorism. Muhtorov had in-depth knowledge of and supported the IJU’s mission and activity. See, e.g., Gov’t Trial Ex. 125A at 2-3; Trial Tr. at 1222:24-1223:1. He knew what the organization was up to, i.e., federal crimes of terrorism, and he endeavored to assist it.
Thus, Muhtorov’s offenses qualify under either prong of the Terrorism Enhancement. As the Enhancement requires, his offense level is subject to a 12-level increase and he is placed in Criminal History Category VI.
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2. § 3C1.1: Obstruction of Justice Enhancement The government argues, as it did for Jumaev’s sentencing, that the Obstruction of Justice Enhancement in U.S.S.G. § 3C1.1 mandates that I increase Muhtorov’s offense level by two levels. The enhancement is only applicable if the government demonstrates by a preponderance of the evidence that:
(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense....
U.S.S.G. § 3C1.1. The government highlights two examples of conduct covered by the adjustment—committing perjury “if such perjury pertains to conduct that forms the basis of the offense of conviction” and “providing materially false information to a judge or magistrate judge.” Application Note 4 to U.S.S.G. § 3C1.1.
To establish that Muhtorov has committed perjury for the purposes of the Enhancement, the government must show his conduct fulfills the elements of the criminal statute. “A witness testifying under oath or affirmation violates [the criminal perjury statute] if [ ]he gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). Additionally, as observed in United States v. Massey, 48 F.3d 1560, 1573 (10th Cir. 1995), “it has long been a requirement in the Tenth Circuit that the perjurious statement be identified, at least in substance.”
The government claims Muhtorov’s perjurious statements

are: “that the $300 payment from JUMAEV was repayment of a debt and not intended for the IJU; that he continued assisting the IJU in order to earn their trust as part of carrying on a fantasy persona; and, that he did not travel in order to join the IJU.” Gov’t’s Am. Sentencing Statement at 12, ECF No. 1944-1. The government argues that the jury’s verdict demonstrates that it rejected Muhtorov’s testimony on these matters.
However, the Supreme Court has cautioned: “[N]ot every accused who testifies at trial and is convicted will incur an enhanced sentence under § 3C1.1 for committing perjury....[The accused’s] testimony may be truthful, but the jury may nonetheless find the testimony insufficient to excuse criminal liability or to prove lack of intent.” Dunnigan, 507 U.S. at 95, 113 S.Ct. 1111. The prosecution demands I dismiss Muhtorov’s statements as fabrication. *1300 I am unwilling to do so and have no legal basis to conclude the jury did. The facts were fairly uncontested, and there is no indication that Muhtorov had the willful intent to provide false testimony. His defense propounded the legitimate question: Was he engaging in make-believe and only posing as a violent jihadist or was he engaging in criminal activity? The jury’s verdicts, including the not guilty verdict, reflect its interpretation of the facts, not a judgment that Muhtorov provided false testimony.
The government has failed to otherwise show that Muhtorov willfully attempted to obstruct or impede the administration of justice. Accordingly, the Obstruction of Justice Enhancement is inapplicable.
3. § 3E1.1: Acceptance of Responsibility Presumably because I have expressed my disapproval of the so-called trial tax, Muhtorov argues that his offense level should be decreased for acceptance of responsibility, despite the fact that he took his case to trial. I agree in principle that a defendant’s decision to exercise his constitutional right to a trial does not preclude him from being eligible for an acceptance of responsibility reduction. Here, however, Muhtorov’s “acceptance of responsibility” is incomplete. He has generally admitted to making the statements the government recorded and to viewing the videos found on his electronic devices. But his representations regarding much of his conduct which is the basis for his offenses have been equivocal and inconsistent. I do not regard such circular explanations
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and justifications as acceptance of responsibility. Even if many of the statements he made were exaggerations, there was never a clear line drawn between truth and fiction. Consequently, I find the adjustment is inappropriate in this case.
Departures
1. § 4A1.3: Criminal History Departure Since I have found the Terrorism Enhancement is applicable to Muhtorov’s offenses, his Criminal History Category is elevated from the lowest—I—to the highest—VI. As a result, Muhtorov asserts that he is entitled to a departure under U.S.S.G. § 4A1.3, which provides: “If reliable information indicates that the defendant’s criminal history category substantially overrepresents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted.” U.S.S.G. § 4A1.3(b)(1). A sentencing judge may therefore depart downward to counter the Terrorism Enhancement if he or she determines that it overrepresents “the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” See United States v. Meskini, 319 F.3d 88, 92 (2003); United States v. Benkahla, 501 F.Supp.2d 748, 758 (2007).
I am aware of no evidence indicating that, solely based on the crimes Muhtorov has committed, he is the most likely of all offenders to recidivate.5 I am concerned, however, that Muhtorov will again struggle to find his place in society and to dedicate his talents to lawful endeavors, especially now that he is branded a felon and a terrorist. His primary enemy—Islam Karimov—is deceased, but the persecution of *1301 Muslims across the world continues unabated. Will he find a way to support worthy causes wherever he lands without engaging in criminal activity? Based on the evidence presented to me, I believe it is likely he will. While a Criminal History Category of VI substantially overrepresents Muhtorov’s criminal history and the likelihood he will commit other crimes, I find a Criminal History Category of II does not.

2. § 5H1.11: Public Service, Record of Prior Good Works Departure Muhtorov also seeks a departure under U.S.S.G. § 5H1.11 for his past good works and public service as a human rights defender in Uzbekistan. While his previous work is commendable, his crimes here demonstrate that he does not respect the line Congress has drawn between activism and terrorism. Furthermore, it is unclear at this time that his crimes are an aberration in his path as a public servant. He did not merely dabble in or flirt with terrorism; he testified that he embraced its ideals after significant exploration over time. I find Muhtorov has failed to demonstrate that his case is one of the “exceptional” ones in which a departure is merited. See U.S.S.G. ch. 5, pt. H, introductory commentary (“[A]lthough these circumstances are not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range, they may be relevant to this determination in exceptional cases.”). Nevertheless, his prior human rights work is a valid consideration under the 18 U.S.C. § 3553(a) factors and is taken into account under that framework.
3. § 5K2.0: Extraordinary Circumstances Lastly, Muhtorov urges me to depart under U.S.S.G. § 5K2.0 on the basis that, after he completes his sentence in this case, he faces indefinite immigration detention in the U.S. or deportation to Uzbekistan. The Tenth Circuit “has determined that deportable alien status is not a ground for departing downward.” United States v. Gutierrez, 506 Fed. App’x 714, 722 (2012) (unpublished) (citing United States v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir. 1993); United States v. Castro-Rivas, 254 Fed. App’x 742, 752 (10th Cir. 2007) (unpublished); United States v. Tamayo, 162 Fed. App’x 813, 816 (10th Cir. 2006) (unpublished) ). If Muhtorov’s deportability is not grounds for a downward departure, neither is the potential for him to spend an indefinite period in immigration detention. As with his history of human rights work, these circumstances are more appropriately assessed under 18 U.S.C. § 3553,6 which I do below.
Final Range With those matters decided, I turn to the Sentencing
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Guidelines’ prescribed Table. After applying the specific offense characteristic increase under § 2M5.3(b) and the Terrorism Enhancement, the resulting offense level is 40. My departure under § 4A1.3 places Muhtorov in Criminal History Category II. The Guidelines range is, therefore, 324 to 405 months’ imprisonment with one year to life of supervised release and a $25,000 to $250,000 fine.
B. Rejection of Guidelines As I explained in detail in my Memorandum Opinion and Order on Sentencing for *1302 Jumaev, I find the Guidelines to be inadequate and illogical as applied to terrorism-related cases and the facts of this case in particular. See Jumaev, 2018 WL 3490886, at *8-13. In the terrorism context, the basic problem with the Guidelines is the utter vacuity of empirical evidence or facts employed by the Sentencing Commission in forming them. In this respect, the Guidelines are the epitome of ipse dixit—“because the Commission says so.”7 The failure of the Guidelines is not limited to the terrorism context, however. Critiques of the Guidelines’ wide-ranging faults are numerous and enduring.8 I have found their application to be similarly specious in many cases under diverse circumstances.9 So, too, I reject the advisory Guidelines range here and instead sentence Muhtorov based on a full consideration of the criteria set forth in 18 U.S.C. § 3553(a).
III.
APPLICATION OF 18 U.S.C. § 3553(a) FACTORS
As with Jumaev’s sentence, I must craft a sentence for Muhtorov that is “sufficient, but not greater than necessary...(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2). I must also examine the nature and circumstances of the offense and Muhtorov’s history and

characteristics, the kinds of sentences available, and the imperative to avoid unwarranted sentencing disparities. See id. § 3553(a).
A. Nature and Circumstances of the Offenses and Muhtorov’s History and Characteristics Here, more so than it was for Jumaev, it is tempting to buy into the notion that “a terrorist is a terrorist.” See George D. Brown, Notes on A Terrorism Trial Preventive Prosecution, “Material Support” and the Role of the Judge After United States v. Mehanna, 4 Harv. Nat’l Sec. J. 1, 54 (2012). Muhtorov’s conduct comports *1303 with that of more serious offenders than Jumaev, and his circumstances are undoubtedly not the result of chance. Nevertheless, as I have emphasized, even in this context sentencing cannot be reduced to a battle between good and evil. Muhtorov is a complex person, born a canvas like the rest of us. As Professor Katherine Donahue has sagely warned: “Evil is not a cause for behavior; it is a result. Seeing evil as a cause for behavior removes any need to understand why terrorists act as they do.” Katherine C. Donahue, Slave of Allah: Zacarias Moussaoui vs. The USA 53 (2007).10 In a time when all are enticed to reduce matters to black or white, left or right, same or different, one must respect nuance and complexity and ask “why?”
Muhtorov’s offenses are serious and his rhetoric is frightening. Although his statements and conduct are conflicting and difficult to decipher, they are revealing. He swore an oath of allegiance to the IJU and offered to risk his life for it.11 He sent a picture of his actual children to a terrorist organization. Regardless of any explanation he might have, he also told his eight-year-old daughter not to pray for him to stay but to pray instead that he would become a martyr. Gov’t Trial Ex. 146A at 1.
In a single conversation with his wife, it becomes apparent that Muhtorov was always scheming in some way. In filing their tax return, he directed her to inflate their donations for the year and to represent that he had not worked. Gov’t Trial Ex. 152A at 4-5. He suggested that she rip their couch apart at the seams so the store would replace it with a new one she could sell for more money. Id. at 27. He also advised her to tell their family friend they were only traveling to Turkey for two or three months and they would rent their apartment again when they returned, when the true plan was for the family to
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relocate there permanently. Id. at 33-34.
Muhtorov’s conduct makes it clear that he was searching for something. He explained at trial and told a very similar story to the CHS that he went from Muslim sect to sect looking for the right fit. In his adjustment to life as an immigrant in the U.S., he went from a human rights advocate to the monotony of cleaning casinos and the isolation of driving a truck. He found no acceptable channel for his ambition and spent his hours on the road desperate for connection.
It is telling that Muhtorov’s delusions of grandeur involved him working as a propagandist and recruiter. Based on his intercepted conversations and his enthusiasm for discussing extremist ideas, it seems likely he would have been dangerous in that role. But he did not boast he would kill more people than any other jihadist or that he would help to build the most destructive weapons.
Still, Muhtorov’s need for connection and passion for those he considers to be his people reinforced his inclination to support violence. Dr. Marc Sageman, a psychiatrist and expert in terrorism, advises that “[t]he most caring and self-sacrificing for their group, because they identify most with it, are most at peril to turn to violence.” Marc Sageman, Misunderstanding Terrorism at 174 (2017).
*1304 Muhtorov is mistaken in believing his creation of “Jamshid the jihadi warrior” was not dangerous. In studying political violent perpetrators, Dr. Sageman has determined that “[i]n the turn to political violence, identity trumps both ideology and self-interest.” Sageman, supra, at 174. Muhtorov fabricated this identity for himself, and as he began to see himself as this jihadi, it became more and more likely that he would follow through with supporting terrorism. While I am not convinced that Muhtorov would have ever made it to deliver himself or the $300 to the IJU (we will thankfully never know), I do not doubt that he intended to open that door in flying to Turkey. He made a poor choice, but not an innocent one.
B. Need for the Sentence Imposed The government recommends a sentence of 30 years’ imprisonment. This recommendation reflects its inability or refusal to assess the real threat Muhtorov posed.12 To

achieve a sentence that is “sufficient, but not greater than necessary,” I must assess the threat Muhtorov caused and still poses.
To Reflect the Seriousness of the Offense, To Promote Respect for the Law, and To Provide Just Punishment Again, here, I ask: What sentence is necessary to convey that any support for terrorism will not be tolerated? Muhtorov attempted to travel to join and to provide financial support to a terrorist organization. Regardless of whether his contribution aided orphans or whether he was limited to engaging in propaganda and recruiting, he would have furthered the illicit causes of a violent organization. He wanted to and did help spread propaganda for that organization. He encouraged others, including Jumaev, to discuss and support violent jihad. Although he contends he only sought to please others, it is clear he often initiated the subject matter and prioritized the topic.
Muhtorov has already suffered significant punishment, though. He has been detained for 6 years, 7 months, and 9 days. As the Presentence Investigation Report documents, his mental health has suffered as a result. See Revised Presentence Investigation Report at 20, ECF No. 1957. When he was arrested, his wife was pregnant with their third child. He has been fully absent for the first six years of that child’s life. He has been humiliated and humbled. His personal conversations with his wife and family members have been aired in public. Many of his family and friends have had additional burdens placed on them as a result of his prosecution and have had to testify in this Court.
I also consider the immigration consequences for Muhtorov. On July 14, 2018, ICE placed an immigration detainer on him. The defense’s submission of a formal opinion by an immigration law expert advises that Muhtorov’s convictions render him statutorily deportable, inadmissible to return to the United States, and ineligible for U.S. citizenship. Attach. A to Muhtorov’s Mot. Variant Sentence at 1, ECF No. 1955-1.
When Muhtorov is released from serving his sentence in this case, he will be directly transferred to ICE and, in the opinion of the immigration expert, will remain in “custody for a significant period of time, which may amount to years, or until he is removed from the United
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States.” *1305 Id. at 2. If Muhtorov can show that he would more likely than not be tortured if removed to Uzbekistan, he could be granted deferral of removal under the Convention Against Torture (CAT), see 8 C.F.R. § 208.17. However, deferral is an uncertain and precarious remedy for Muhtorov. He would still be subjected to prolonged detention and, if he is ever released in the U.S., would be under a permanent order of supervision likely requiring electronic monitoring. At any time, ICE could also seek to terminate deferral by demonstrating that Muhtorov is able to return to Uzbekistan without risk of being tortured there. These prospects are significant repercussions resulting from his conviction in this case.
To Afford Adequate Deterrence to Criminal Conduct With respect to Muhtorov personally, one cannot know with certainty what would deter him from further criminal activity. I am persuaded by the research that individuals are deterred more by the certainty of being caught than the severity of the punishment.13 I recognize the unique nature of terrorism cases often makes them difficult for the government to investigate and prosecute. This case is the prime example of the extraordinary means they demand. I am convinced, however, the message has been delivered to Muhtorov, and all others paying attention, that no resource will be withheld in pursuing anyone who violates the law by supporting terrorism.
To Protect the Public from Further Crimes by Muhtorov This conviction will undoubtedly make it more difficult for Muhtorov to associate himself with causes that are not illicit. He will be branded forever as a terrorist. I expect the human rights community he was once a respected member of will no longer accept him. Still, as discussed above, I believe Muhtorov is likely to avoid future criminal activity. He has significant family support and understands how to begin life anew.
After serving his sentence in this case, Muhtorov will eventually be deported, or he will be held in custody until his detention is “well outside the general parameters for prolonged custody.” Attach. A to Muhtorov’s Mot. Variant Sentence at 3. Whatever transpires, he will be detained for months and likely years following

completion of his sentence in this case, and as long as he remains in the United States, he will be subject to some form of restraint and supervision.
Additionally, as I explained in sentencing Jumaev, without adequate services and rehabilitation programs in prison, further radicalization is a concern with longer terms of imprisonment. Jumaev, 2018 WL 3490886, at *15-16.
To Provide Muhtorov with Needed Training, Medical Care, or Other Treatment To my knowledge, the Bureau of Prisons offers no training or rehabilitation programs relevant to Muhtorov’s crimes.14 *1306 Nevertheless, the opportunity for him to pursue additional education opportunities while imprisoned could greatly benefit him as he tries to build a new life upon release.15
C. Sentences Available The maximum penalty for each of the three counts on which Muhtorov was convicted is 15 years’ imprisonment, lifetime supervised release, and a $250,000 fine. The terms of imprisonment could be imposed to run consecutively for a maximum sentence of 45 years’ imprisonment. I have found the Procrustean16 calculations of the Sentencing Guidelines advise a sentence 324 to 405 months’ imprisonment.
Under 18 U.S.C. § 3585, Muhtorov has the right to receive credit toward the service of the term of imprisonment for the time he has already spent in detention. See United States v. Wilson, 503 U.S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). In determining the appropriate length of Muhtorov’s sentence, I take into account the 6 years, 7 months, and 9 days of presentence confinement he has served as of this date, August 30, 2018. The U.S. Bureau of Prisons’ Designations and Sentence Computation Center advised that Muhtorov will be awarded full credit for his presentence confinement, since he was initially arrested for criminal conduct and not held for immigration administrative purposes. See Revised Presentence Investigation Report at 2, n. 2, ECF No. 1957. If, for any reason, the Bureau of Prisons does
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not credit this time served in computing his release date, I will correct this error on presentation of a motion or petition for writ and resentence him.
D. Need to Avoid Unwarranted Sentence Disparities There is no rational basis for the government’s recommendation of a 30-year sentence. In support of its argument that such a sentence would avoid unwarranted sentence disparities, it directs me to the first 15 cases in its table of examples of 18 U.S.C. § 2339B convictions. Significantly, only three of the defendants listed received sentences of 30 years of imprisonment or more: Tairod Nathan Webster Pugh, Nader Elhuzayel, and Muhanad Badawi.17 None of these defendants’ conduct aligns in a substantial way with Muhtorov’s.
Tairod Nathan Webster Pugh In United States v. Pugh, No. 1:15-cr-00116 (E.D.N.Y.), Tairod Nathan Webster Pugh, an honorably discharged veteran of the U.S. Air Force, traveled to Turkey with plans to cross into Syria to fight with *1307 the Islamic State of Iraq and the Levant (ISIS).18 Although he maintained that he intended to fight Bashar al Assad with U.S. backing and had no contact with members of ISIS, evidence at trial showed his support for ISIS and the implausibility of his story. He was charged with one count of attempting to provide himself as personnel to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B, and with obstruction and attempted obstruction of an official proceeding, in violation of 18 U.S.C. § 1512. A jury convicted him of both counts. Pugh’s Guidelines range was 360 months to 420 months. At sentencing, the judge emphasized that the proceedings were not a result of his religion but instead a consequence of his betrayal of his country. He was sentenced to 180 months’ imprisonment with 5 years of supervised release for the § 2339B conviction and 240 months’ imprisonment with 3 years of supervised release for the § 1512 conviction, the terms of imprisonment to run consecutively and the terms of supervised release to run concurrently. Pugh’s sentence was within the advisory Guidelines range and was the maximum term of imprisonment permitted under the statutes of conviction.

Nader Elhuzayel and Muhanad Badawi In United States v. Elhuzayel, No. 8:15-cr-00060 (C.D. Cal.), Nader Elhuzayel and Muhanad Badawi conspired to send Elhuzayel to Syria to fight with ISIS. They engaged in bank and financial aid fraud and used the money to purchase Elhuzayel’s plane ticket. They were each convicted at trial of two counts under § 2339B—conspiring and attempting to provide material support to ISIS. (They were also convicted of additional counts of fraud.) For each of the two material support counts, the defendants were sentenced to 180 months’ imprisonment with the sentences to be served consecutively, resulting in sentences of 360 months, or 30 years.19 Each defendant also received a term of lifetime supervised release.
Elhuzayel and Badawi were among the first defendants to be sentenced by a District Court after conviction at trial of conspiracy or attempting to provide material support for ISIS. At sentencing, the judge recognized that ISIS poses a unique threat because of its brutality towards civilians and recruitment of young fighters for violent jihad. He concluded that the defendants’ staunch commitment to ISIS ideology rendered them an ongoing danger to society. They were unremorseful and so radicalized that they would be extremely difficult to rehabilitate.
Instead of blindly grouping Muhtorov with defendants who received 30 years, as the government asks, I am guided by other cases with similar facts. Sentencing is not an exercise in shooting an arrow into the air. To avoid disparate sentences, a defendant must be placed properly on the continuum of like cases. Although material support travel cases remain relatively few in number and Muhtorov’s circumstances are unique, the following cases generate a reliable scale.20
*1308 Gufran Ahmed Kauser Mohammed In United States v. Mohammed, No. 1:13-cr-20364 (S.D. Fla.), Gufran Ahmed Kauser Mohammed pleaded guilty to one count of violating § 2339B. At sentencing, the government highlighted that he “provide[d] 15 separate payments of support totaling over $30,000 over the course of two years” for al-Qaida, al-Nusra Front, and
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al-Shabaab. Sentencing Tr. at 6:2-5, 19-25, ECF No. 262. In some instances, he specifically authorized the money to be used to purchase weapons and finance an attack on Americans. During that time he also engaged in recruitment activities for designated terrorist organizations and encouraged others to go participate in insurgencies occurring overseas. The judge emphasized that while Mohammed may have gotten carried away on the internet, his conduct was extremely aggravated and thus there was no basis for a variance. He was sentenced to 180 months’ imprisonment, the maximum sentence permitted by statute, plus ten years’ supervised release.
Donald Ray Morgan In United States v. Morgan, No. 1:14-cr-00414 (M.D.N.C.), Donald Ray Morgan pleaded guilty to one count of violating § 2339B. A North Carolina native who moved to Beirut, Lebanon, he purchased a ticket to enter Syria and participate in jihad. He posted numerous Tweets over the course of several months indicating his knowledge of and support for ISIS, including posts that read: “Killing our enemies and beheadings are justified” and “If you have been protesting and campaigning and begging the enemy to stop killing u, It’s probably time to get an [AK]47 and stop the threat.” Morgan, No. 1:14-cr-00414, Factual Basis at 6-7, ECF No. 4. For violating § 2339B, Morgan was sentenced to 180 months’ imprisonment plus three years’ supervised release. (He was also sentenced to an additional 63 months for a separate charge of felon in possession of a firearm.)
Adam Dandach In United States v. Dandach, No. 8:14-cr-00109 (C.D. Cal.), Dandach pleaded guilty to one count of violating § 2339B, attempting to provide himself as personnel to ISIS, and to one count of violating 18 U.S.C. § 1542, making a false statement in a passport application. He was arrested as he attempted to travel to Syria via Turkey to join ISIS. He admitted to FBI agents that he intended to pledge allegiance to the leader of ISIS and to take weapons training to defend Islam’s invaded lands. He obtained an expedited 2014 passport for the trip by lying about the supposed loss of his previous passport, which had actually been confiscated by a concerned family

member. He was sentenced to 180 months’ imprisonment with lifetime supervised release for the § 2339B count, and 120 months’ imprisonment for the § 1542 count. At sentencing, the judge determined the sentences should run concurrently instead of consecutively. The judge considered Dandach’s long-standing emotional and psychological problems and acknowledged that his depression and other mental difficulties were severe enough to distinguish him from a typical case.
Khalid Awan
In United States v. Awan, No. 1:06-cr-00154 (E.D.N.Y.), a jury convicted Awan of two counts of violating 18 U.S.C. § 2339A, conspiracy to provide material support to terrorists and providing material support to terrorists, and one count of money laundering with the intention of promoting an offense against a foreign nation, involving murder and destruction of property in violation of 18 U.S.C. § 1956(a)(2)(A). Over several years, he transferred more than *1309 $60,000 to the Khalistan Commando Force (“KCF”), a militant Sikh separatist group responsible for hundreds of bombings and thousands of deaths in India. He also attempted to recruit at least one individual to travel to Pakistan to join the KCF and receive military training.
The sentencing judge characterized Awan as “a boaster, a salesman and a...terrorist groupie,” and reasoned that he was amenable to deterrence because his motives were not embedded in ideological fanaticism so strong it could not be quelled. Am. J. at 10-11, ECF No. 259. Although Awan faced an effective Guidelines sentence of 45 years, the statutory maximum sentence for his three counts, the judge determined that a non-guideline sentence was appropriate, especially given the absence of any evidence that he committed an act of violence. He was sentenced to 168 months’ imprisonment and three years’ supervised release.21
Nicholas Teausant In United States v. Teausant, No. 14-cr-00087 (E.D. Cal.), Teausant pleaded guilty to one count of attempting to provide himself as personnel to ISIS in violation of §
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2339B. He intended to travel to Syria to join ISIS but was stopped at the Canadian border. Teausant was sentenced to 144 months’ imprisonment plus 25 years’ supervised release.
After considering the factors set forth in 18 U.S.C. § 3553(a), the judge determined that a 36-month variance from the 15-year statutory maximum and Guidelines recommendation was appropriate. The nature and circumstances of the offense created a dilemma for the judge, who found Teausant “was one of the least successful want-to-be or would-be terrorists probably in most of the cases that have been charged in this country.” Sentencing Tr. at 34:6-12, ECF No. 87. The judge noted that, although Teausant’s crime did not involve victims or attempts to build or obtain weapons, the end game was that he would have become a member of a terrorist organization. Id. at 35:2-9. Concluding that the government’s recommended sentence of 9 years failed to sufficiently reflect the seriousness of the offense or the need to provide deterrence and protect the public, the judge sentenced Teausant to 12 years’ imprisonment.
Hamza Naj Ahmed and Zacharia Abdurahman In United States v. Ahmed, No. 1:15-cr-00049 (D. Minn.), Ahmed and Abdurahman each pleaded guilty to one count of conspiracy to provide material support in violation of 18 U.S.C. § 2339B. (Ahmed also pleaded guilty to an additional financial aid fraud charge.) Along with several others from Minnesota, Ahmed and Abdurahman attempted to travel to Syria to join ISIS. The judge noted that each member of the conspiracy took affirmative steps to travel overseas to fight with ISIS, “one of the most dangerous and violent terrorist organizations the world has ever known.” Abdurahman Sentencing Mem. and Op. at 2, ECF No. 833; Ahmed Sentencing Mem. and Op. at 3, ECF No. 820. They were each sentenced to 120 months’ imprisonment plus 20 years’ supervised release.
Although the judge acknowledged the defendants were both young men without criminal histories, he was concerned that they took affirmative steps to join ISIS, especially “given that other young men from Minnesota and elsewhere have left *1310 the country” and died while engaging in terrorist acts for groups including ISIS. Abdurahman Sentencing Mem. and Op. at 15; Ahmed Sentencing Mem. and Op. at 16. The judge determined that a 10-year prison sentence would deter others from

committing similar crimes, ensure the safety of the public, and avoid unwarranted sentencing disparities.
Avin Marsalis Brown and Akba Jihad Jordan In United States v. Brown, No. 1:14-cr-00058 (E.D.N.C.), Brown and Jordan each pleaded guilty to one count of conspiracy to provide material support to terrorists under § 2339A. In conversations with confidential human sources working for the FBI, they expressed a desire to fight non-Muslims overseas and discussed plans to travel abroad for jihad. Jordan repeatedly emphasized the need to train with firearms and allowed Brown and an FBI source to handle weapons he owned, including an AK-47. “[O]n numerous occasions [they] discussed the need to obtain passports to travel overseas for purposes of violent jihad.” Criminal Compl. at 5, ECF No. 1. Jordan had taken steps towards getting his passport but was not yet ready to travel at the time Brown attempted to fly overseas. Arrested at the airport, Brown stated he intended to travel to Syria via Turkey. After sealed sentencing proceedings, the court issued judgments sentencing Brown to 92 months’ imprisonment plus 5 years’ supervised release, and Jordan to 108 months’ imprisonment plus 5 years’ supervised release.
Joseph Hassan Farrokh In United States v. Farrokh, No. 1:16-cr-00020 (E.D. Va.), Farrokh pleaded guilty to conspiracy to provide and attempt to provide himself as personnel to ISIS in violation of § 2339B. He was arrested at the airport when attempting to travel to Syria to join ISIS. Farrokh was not himself a recruiter but was recruited by his co-defendant, who put Farrokh in contact with people to facilitate his travel. The sentencing judge considered Farrokh’s acceptance of responsibility, his willingness to cooperate, and his renouncement of ISIS. Farrokh was sentenced to 102 months’ imprisonment plus 10 years’ supervised release.
Muhammad Oda Dakhlalla
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In United States v. Dakhlalla, 1:15-cr-00098 (N.D. Miss.), Dakhlalla pleaded guilty to one count of conspiracy to provide himself as personnel to ISIS in violation of § 2339B. He and his co-conspirator planned to travel to join ISIS. The sentencing judge determined that mitigating factors warranted a variance from both the statutory maximum of 240 months and the 144-month limit agreed to by the parties under the plea agreement. The judge emphasized Dakhlalla’s youth, lack of criminal history, and contrition, and sentenced him to 96 months’ imprisonment plus 15 years’ supervised release.
Michael Todd Wolfe In United States v. Wolfe, No. 1:14-cr-00213 (W.D. Tex.), Wolfe pleaded guilty to one count of violating § 2339A. Wolfe was investigated by the FBI as part of a sting operation initially focused on others who had pledged loyalty to a now-deceased Taliban and terrorist leader. He planned to travel to Syria to engage in violent jihad and hoped to take his wife and two children. While he never expressed a desire to harm Americans, he did attempt to board a plane as the first step in his goal of joining ISIS. As part of a plea agreement, the government asked the court to impose a sentence of 84 months, far less than the statutory maximum of 180 months. The judge sentenced Wolfe to 82 months’ imprisonment plus 5 years’ supervised release.

him to 80 months’ imprisonment with lifetime supervised release.
I find that Muhtorov falls in the middle of this group of cases. He is unlike many of the defendants in that he is not young, did not plead guilty, and did not provide assistance to the government. However, that he refused to plead guilty does not set his case so apart from the others that they are incomparable, and I will not impose a trial tax that effectively penalizes him for exercising his constitutional right to a jury trial. Furthermore, there was no evidence of an ongoing conspiracy in the United States that extended beyond himself and Jumaev for which he could have provided information.
Muhtorov’s involvement with the IJU is markedly different from the ISIS recruitment epidemic that seeks to radicalize potential fighters to inflict violence on innocent civilians on U.S. soil and overseas. He has never committed himself to or attempted to aid in the violent activities of a “pernicious” group like ISIS. Indeed, he continues to assert that he “never intended on helping” anyone, including himself, “follow[ ] through on any of [the] talk” in which he engaged. See Supplement to Muhtorov’s Mot. for Variant Sentence and Downward Departure at 2, ECF No. 1956-1. It was routine for him to change his mind, his plans, and his story. This does not diminish the gravity of his actions, of course, but it does help distinguish him from those defendants who are extremely unlikely to ever be deradicalized or rehabilitated.

*1311 Aaron Daniels In United States v. Daniels, No. 2-16-cr-00222 (D. Ohio), Daniels was initially indicted of two counts of providing and attempting to provide himself as personnel to ISIS in violation of § 2339B. He was arrested at the airport before boarding his outbound flight and later admitted to the FBI that his ultimate destination was Libya, where he intended to join ISIS. He further confessed to previously sending $250 via Western Union to an ISIS member and recruiter. Pursuant to a plea agreement, he pleaded guilty to one count under § 2339B. The government urged the court to impose a 17-year term of imprisonment, or at a minimum a 15 years, because of Daniels’ “ability to manipulate others and his commitment to one of the most pernicious terrorist organizations in modern history.” Gov’t Sentencing Mem. at 14, ECF No. 87. The judge sentenced

IV.
SENTENCE
Muhtorov’s Motion for a Variant Sentence (ECF No. 1955)22 is GRANTED in that I impose the following sentence outside the advisory Guidelines range and pursuant to the § 3553 factors explored in full above.
I sentence Jamshid Muhtorov to 96 months’ imprisonment on Count 1, 96 months’ imprisonment on Count 2, and 132 months’ imprisonment on Count 3, the sentences for each count to run concurrently. I recommend to the Bureau of Prisons that Muhtorov be placed at an appropriate facility here in Colorado so that
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he may remain close to his family. Muhtorov shall be placed on supervised release for a term of 15 years for each count, also to run concurrently. He shall immediately pay a special assessment of $300. Because he does not have the ability, prospects, or resources to pay a fine, I waive the fine.
*1312 Within 72 hours of release from the custody of the Bureau of Prisons, Muhtorov shall report to the Probation Office in the District of Colorado. While on supervision, he is subject to the following conditions which may not be changed or modified without prior authorization of this Court:
1. He must not commit any other federal, state, or local crime.
2. He must not unlawfully possess a controlled substance and must refrain from any unlawful use of a controlled substance.
3. He must cooperate in the collection of DNA as directed by the probation officer.
4. After initially reporting to the probation office, he will receive instructions from the Court or the probation officer about how and when he must report to the probation officer, and he must report as instructed.
5. He must not knowingly leave the federal judicial district where he is authorized to reside without first getting permission from the Court or the probation officer.
6. He must answer truthfully the questions asked by his probation officer.
7. He must live at a place approved by the probation officer. If he plans to change where he lives or anything about his living arrangements (such as the people he lives with), he must notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, he must notify the probation officer within 72 hours of becoming aware of a change or expected change.
8. He must allow the probation officer to visit him at any time at his home or elsewhere and must permit the probation officer to take any items that he or she observes in plain view that are prohibited by the conditions of his supervision.

9. He must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses him from doing so. If he does not have full-time employment, he must try to find full-time employment, unless the probation officer excuses him from doing so. If he plans to change where he works or anything about his work (such as his position or job responsibilities), he must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, he must notify the probation officer within 72 hours of becoming aware of a change or expected change.
10. He must not communicate or interact with someone he knows is engaged in criminal activity. If he knows someone has been convicted of a felony, he must not knowingly communicate or interact with that person without first getting the permission of the probation officer.
11. If he is arrested or questioned by a law enforcement officer, he must notify the probation officer within 72 hours.
12. He must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person).
13. He must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the written permission of this Court.
14. If the probation officer determines that he poses a risk to another person (including an organization), the probation officer may require him to notify the person about the risk and he must comply with that instruction. The probation officer may contact the person and confirm that he has notified the person about the risk.
*1313 15. He must follow the instructions of the probation officer related to the conditions of supervision. I find that the Special Conditions of Supervision listed below are reasonably related to the factors enumerated in 18 U.S.C § 3553(a) and 18 U.S.C. § 3583(d) and do not constitute a greater deprivation of liberty than reasonably necessary to accomplish the goals of sentencing. Thus, Muhtorov is subject to them as well while on supervision.
16

United States v. Muhtorov, 329 F.Supp.3d 1289 (2018)

1. If he is deported, he must not thereafter re-enter the

§ 1030(e)(1) ), or other electronic communications, data

United States illegally. If he re-enters the United States

storage devices, or media to a search conducted by a

legally, he must report to the nearest U.S. Probation

United States probation officer. Failure to submit to a

Office within 72 hours of his return.

search may be grounds for revocation of release. He must

2. He may not under any circumstance use, own, or operate any computer or similar device without written authorization by the probation officer, and he must allow the probation officer to install software/hardware designed to monitor computer activities on any computer he is authorized by the probation officer to use. The software may record any and all activity on the computer, including the capture of keystrokes, application

warn any other occupants that the premises may be subject to searches pursuant to this condition. An officer may conduct a search pursuant to this condition only when reasonable suspicion exists that he has violated a condition of his supervision and that the areas to be searched contain evidence of this violation. Any search must be conducted at a reasonable time and in a reasonable manner.

information, internet use history, email correspondence,

4. He shall not possess, view, access, or otherwise use

and chat conversations. A notice will be placed on the

material that reflects extremist or terroristic views or is

computer at the time of installation to warn others of the

deemed to be similarly inappropriate by the U.S.

existence of the monitoring software on the computer. He

Probation Office.

must not attempt to remove, tamper with, reverse engineer, or in any way circumvent the

All Citations

software/hardware.

329 F.Supp.3d 1289

3. He must submit his person, property, house, residence,

office, vehicle, papers, computers (as defined in 18 U.S.C.

Footnotes

1

Anonymizers are tools that are utilized to mask the location of the user when accessing websites. Trial Tr. at

342:7-20.

2

Muhtorov wrote: “[Y]our humble servant intends to take an oath of allegiance. Today, I rehearse the oath exactly as

it was delivered by companions of our Prophet. I would like to request you, my dear brother, witness and entrust

you with delivering this humble servant’s oath to the emir. The name passed to this humble servant by his parents is

Jamshid Muhtorov. [I am] from Uzbekistan, Jizzakh province. My true name is Abumumin Turkistoniy. Now I am

ready for any task, even if it means the risk of death. Whom should I send the wedding gift to?” Gov’t Trial Ex. 107A

at 1.

3

See, e.g., Trial Tr. at 1085:8-14 (“[Q. O]nce -- and we’ll get to this -- you got done doing what you were going to do

over here in Central Asia, were you going to come home to the United States? A. Yes.”); id. at 1191:9-16 (“[Q. I]f you

were planning to come back to your wife and two children after you helped Hurshid, why didn’t you buy a

round-trip ticket? A. To start with, it was not clear when I would come back. Q. What do you mean by that? A. It was

unclear how long it would take to solve Hurshid’s issue. Also, I wanted to study at the Islamic mosque -- madrasa --

it’s a religious school – in Turkey, in Istanbul.”); id. at 1207:19-21 (“Q. Was it always your plan, if you had ever gotten

over there, to come back to your wife and children here in America? A. Of course.”); id. at 1274:2-16 (“I told [my

wife] she would come visit me in Turkey if something happened. It wasn’t -- there wasn’t any particular plan. I was

going to Turkey to see how things may develop. I wanted to see Abdulloh Buhoriy’s madrasa, whether it’s worth

studying there, and if it would be good for my family. There is also Islamic school for children. I wanted to see if it’s

going to be -- if it’s worth to move there and stay there, live there. Also, I wanted to see if it was possible to find a

job in Turkey to survive. I talked about that with -- to my friends. And I was also thinking, if circumstances are good,

conditions are good, that maybe I would move there, I would think about moving there. It wasn’t 100 percent, but I

17

United States v. Muhtorov, 329 F.Supp.3d 1289 (2018)

needed to see whether I would want to live there or not and whether my children would be able to go to school there or not. So if not, I would come back.”) (emphasis added); 1276:13-15 (“I wasn’t sure whether I was coming back or not, even though I knew I had to come back to pick up my family.”).

4

As was true of the government’s Sentencing Statement for Jumaev, the government’s analysis here amounts to

callous indifference or insouciance. If indeed government counsel read my Memorandum Opinion and Order on

Sentencing for Jumaev, the failure to address the issues therein is stunningly inexplicable.

5

I again am influenced by the comments of Judge George O’Toole in United States v. Mehanna, No.

1:09-cr-10017-GAO (D. Mass. April 12, 2012), and of James P. McLoughlin, Jr. in Deconstructing United States

Sentencing Guidelines Section 3A1.4: Sentencing Failure in Cases of Financial Support for Foreign Terrorist

Organizations, 28 Law & Ineq. 51, 114-15 (2010), referenced in my Memorandum Opinion for Jumaev’s sentencing.

See Jumaev, 2018 WL 3490886, at *9.

6

See United States v. Sanchez-Leon, 764 F.3d 1248, 1263-64 (10th Cir. 2014). While Muhtorov’s immigration

consequences and the time he will likely spend in ICE detention are not considered as a basis for departing under

the Guidelines, they are relevant for evaluating the severity of the punishment Muhtorov will endure for these

crimes and how to protect the public under 18 U.S.C. § 3553.

7

Kate Stith & José Cabranes, Judging under the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1247, 1271-72

(1997).

8

See, e.g., Judge Jed S. Rakoff, Why the Federal Sentencing Guidelines Should Be Scrapped, 26 Fed. Sent. R. 6, 7 (2013)

(observing that “[p]erhaps the most fundamental flaw in the Sentencing Guidelines is that they are based on the

assumption that you can, in the name of reducing disparities, isolate from the complexity that every sentence

presents a few arbitrary factors to which you then assign equally arbitrary weights— and somehow call the result “

‘rational’ ”); Mark Osler and Judge Mark W. Bennett, A “Holocaust in Slow Motion?” America’s Mass Incarceration

and the Role of Discretion, DePaul J. for Soc. Just. 117, 142 (2014) (describing the Guidelines as a “carnival funhouse

mirror riddled with distortions”); Paul Hofer, After Ten Years of Advisory Guidelines, and Thirty Years of Mandatory

Minimums, Federal Sentencing Still Needs Reform, 47 U. Tol. L. Rev. 649, 669 (2016) (emphasizing that “today’s

Guidelines do cloak penalties created by the political branches as the product of an independent agency in the

Judicial Branch”).

9

See, e.g., United States v. Williams, No. 16-cr-00111-JLK, 2018 WL 1014141, at *1-2 (D. Colo. Feb. 22, 2018) (in a

false statement case for their arbitrary prioritization of the amount of the economic loss as the most significant

sentencing factor); United States v. Cheever, No. 15-cr- 00031-JLK, 2016 WL 3919792, at *2 (D. Colo. Jul. 18, 2016)

(in a child pornography case for failing to embody any of the Commission’s expertise); United States v. Worku, No.

12-cr-346- JLK, 2014 WL 2197537, at *8-9 (in an unlawful procurement of documents and identity theft case for the

lack of relevant empirical evidence supporting them).

10 Professor Donahue’s analysis of Zacarias Moussaoui is profound. While I deemed it to be relevant for Jumaev, it is particularly so for Muhtorov. Indeed, she comments that Moussaoui took on the jihadist cause “because it gave him a role in the fight for social and economic justice.” Donahue at 54.

11 The fact that he did so in an improper manner and that his oath was never accepted demonstrates that Muhtorov was sloppy and the IJU took notice. It does not, however, undermine the genuineness of his commitment.

12 See Sageman, supra, at 22 (observing generally that, in “trying to prevent a repeat of 9/11, [the U.S. government] has again and again let its imagination run wild and responds to worst-case scenarios without objectively assessing
18

United States v. Muhtorov, 329 F.Supp.3d 1289 (2018)
the real threat.”); Khaled A. Beydoun, American Islamophobia: Understanding the Roots and Rise of Fear, passim (2018).
13 See Daniel S. Nagin, Deterrence in the Twenty-First Century, 42 Crime & Just. 199, 252-53 (2013) (“There is little evidence that increasing already long prison sentences has a material deterrence effect. Evidence on the deterrent effect of the certainty of punishment is more consistent....”); Valerie Wright, Deterrence in Criminal Justice Evaluating Certainty vs. Severity of Punishment, Sentencing Project Rep. (2010), available at https://www.sentencingproject.org/wp-content/uploads/2016/01/Deterrence-in-Criminal-Justice.pdf (“Criminological research over several decades and in various nations generally concludes that enhancing the certainty of punishment produces a stronger deterrent effect than increasing the severity of punishment.”).
14 See Sameer Ahmed, Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror, 126 Yale L.J. 1520, 1567 (2017) (explaining that programs focused on rehabilitating individuals convicted of terrorism offenses have not been instituted in American prisons); United States v. Bell, 81 F.Supp.3d 1301, 1318 (M.D. Fla. 2015) (citing testimony by a Federal Bureau of Prisons representative that “the BOP currently has no programs for de- radicalizing prisoners convicted of crimes of terrorism”).
15 See SpearIt, Muslim Radicalization in Prison: Responding with Sound Penal Policy or the Sound of Alarm?, 49 Gonz. L. Rev. 37, 78 (2013). (“The best course to successful return to society is educational training on the inside. Although, there is little empirical research on whether education reduces recidivism, education may militate against extremism directly, since groups like al-Qaeda have been known to prey on uneducated individuals to conduct their violent biddings.”).
16 I use “Procrustean” in its literal sense of action “marked by arbitrary often ruthless disregard of individual differences or special circumstances.” Webster’s Collegiate Dictionary (10th ed.)
17 Most notably, Fazliddin Kurbanov, who was in possession of bomb-making components and had communicated with the IMU regarding his desire to build a bomb and possible targets in the United States, received a sentence of 25 years’ imprisonment. United States v. Kurbanov, No. 1:13-cr-00120 (D. Idaho), Findings and Conclusions of Law in Support of J., ECF No. 282.
18 ISIS goes by many names, among them: the Islamic State of Iraq and Syria, Al-Qa’ida in Iraq, and the Islamic State.
19 Contrasting the Elhuzayel and Pugh cases exposes another idiosyncrasy of the Terrorism Enhancement. By “advising” judges to impose consecutive sentences until the Guidelines range is reached, usually at the statutory maximum for the counts, a defendant’s sentence is potentially doubled when he or she is charged with conspiracy in addition to the underlying offense.
20 I include in this review three cases in which the defendant’s statute of conviction was 18 U.S.C. § 2339A instead of § 2339B, noting the difference but finding the cases to still be relevant. Additionally, I considered, but do not describe here, travel cases in which the most useful information to this analysis (i.e., the reasoning or justification for the sentence imposed) is sealed or otherwise unavailable.
21 Awan was first sentenced immediately following trial, but the sentence was vacated on appeal on grounds that the district court judge erred in his application of the terrorism enhancement. Awan, 607 F.3d at 318. At resentencing, a different judge calculated a higher guidelines range pursuant to the remand order, but otherwise agreed with much of the first judge’s analysis and imposed the same sentence.
22 Although, in calculating the appropriate Guidelines range, I found it was appropriate to depart under U.S.S.G. § 19

United States v. Muhtorov, 329 F.Supp.3d 1289 (2018) 4A1.3, Muhtorov’s Motion for a Downward Departure (also set forth in ECF No. 1955) is DENIED, as I am not sentencing him in accordance with the Guidelines.
20

 
 APPEAL,TERMED
U.S. District Court - District of Colorado District of Colorado (Denver)
CRIMINAL DOCKET FOR CASE #: 1:12-cr-00033-JLK-1

Case title: USA v. Muhtorov et al Magistrate judge case number: 1:12-mj-01011-CBS

Date Filed: 01/23/2012 Date Terminated: 09/04/2018

Assigned to: Judge John L. Kane Appeals court case numbers: 171220 Tenth Circuit Court of Appeals, 18-1366 Tenth Circuit Court of Appeals
Defendant (1) Jamshid Muhtorov TERMINATED: 09/04/2018

represented by Jamshid Muhtorov 42383-424 ALLENWOOD MEDIUM FEDERAL CORRECTIONAL INSTITUTION Inmate Mail/Parcels P.O. BOX 2000 WHITE DEER, PA 17887 PRO SE
Kathryn J. Stimson Stimson Stancil LaBranche Hubbard LLC 1652 North Downing Street Denver, CO 80218 720-689-8909 Email: stimson@sslhlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment
Brian Rowland Leedy Ridley McGreevy & Winocur PCDenver 303 16th Street Suite 200

Denver, CO 80202 303-629-9700 Fax: 303-629-9702 Email: leedy@ridleylaw.com ATTORNEY TO BE NOTICED Designation: CJA Appointment
Jacob R. Rasch-Chabot Federal Public Defender's OfficeDenver 633 17th Street Suite 1000 Denver, CO 80202 303-294-7002 Fax: 303-294-1192 Email: jacob_rasch-chabot@fd.org ATTORNEY TO BE NOTICED Designation: Public Defender or Community Defender Appointment
John C. Arceci Federal Public Defender's OfficeDenver 633 17th Street Suite 1000 Denver, CO 80202 303-294-7002 Fax: 303-294-1192 Email: john_arceci@fd.org ATTORNEY TO BE NOTICED Designation: Public Defender or Community Defender Appointment
Patrick C. Toomey American Civil Liberties UnionNew York 125 Broad Street 18th Floor New York, NY 10004-2400 212-549-2500 Email: ptoomey@aclu.org ATTORNEY TO BE NOTICED
Warren Richard Williamson Office of the Federal Public Defender-Denver

Pending Counts
PROVIDING MATERIAL SUPPORT OR RESOURCES TO TERRORISTS (1ss)
PROVIDING MATERIAL SUPPORT OR RESOURCES TO TERRORISTS (2ss)
PROVIDING MATERIAL SUPPORT OR RESOURCES TO TERRORISTS (3ss)

633 Seventeenth Street Suite 1000 Denver, CO 80202 303-294-7002 Fax: 303-294-1192 Email: Rick_Williamson@fd.org ATTORNEY TO BE NOTICED Designation: Public Defender or Community Defender Appointment
Disposition
Defendant found GUILTY as to Counts 1ss, 2ss, and 3ss. Defendant to be imprisoned to 96 months as to Count 1ss, 96 months as to Count 2ss, and 132 months as to Count 3ss, to run concurrently for a total term of imprisonment of 132 months. Defendant shall be placed on Supervised Release for 15 years as to each of Counts 1ss, 2ss, and 3ss, to run concurrently. Total Assessment $300.
Defendant found GUILTY as to Counts 1ss, 2ss, and 3ss. Defendant to be imprisoned to 96 months as to Count 1ss, 96 months as to Count 2ss, and 132 months as to Count 3ss, to run concurrently for a total term of imprisonment of 132 months. Defendant shall be placed on Supervised Release for 15 years as to each of Counts 1ss, 2ss, and 3ss, to run concurrently. Total Assessment $300.
Defendant found GUILTY as to Counts 1ss, 2ss, and 3ss. Defendant to be imprisoned to 96 months as to Count 1ss, 96 months as to Count 2ss, and 132 months as to Count 3ss, to run concurrently for a total term of imprisonment of 132 months. Defendant shall be placed on Supervised Release for 15 years as

Highest Offense Level (Opening)
Felony
Terminated Counts
PROVIDING MATERIAL SUPPORT OR RESOURCES TO TERRORISTS (1)
PROVIDING MATERIAL SUPPORT OR RESOURCES TO TERRORISTS (1s-4s)
18:2339B.F-Material Support of a Designated Foreign Terrorist Organization and Attempt and Conspiracy to do the Same (1sss-3sss)
PROVIDING MATERIAL SUPPORT OR RESOURCES TO TERRORISTS (4ss)
18:2339B.F-Material Support of a Designated Foreign Terrorist Organization and Attempt and Conspiracy to do the Same (4sss)
18:2339A.F Conspiracy to Provide Material Support to Terrorism (5sss)
18:2339B.F-Material Support of a Designated Foreign Terrorist Organization and Attempt and Conspiracy to do the Same (6sss)
Highest Offense Level (Terminated)

to each of Counts 1ss, 2ss, and 3ss, to run concurrently. Total Assessment $300.
Disposition Dismissed.
Dismissed.
Dismissed.
Defendant found NOT GUILTY as to Count 4ss.
Dismissed.
Dismissed
Dismissed

Felony
Complaints 18:2339B.F Providing Material Support or Resources to Terrorists

Disposition

Interested Party
Department of Justice TERMINATED: 08/26/2020

represented by Erin Martha Creegan (See above for address) TERMINATED: 11/03/2017 Designation: Retained

Interested Party Department of Justice

Plaintiff USA

represented by Gregory Allen Holloway U.S. Attorney's Office-Denver 1801 California Street Suite 1600 Denver, CO 80202 303-454-0100 Fax: 454-0403 Email: Gregory.Holloway@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Federal Agency Attorney
Beth N. Gibson U.S. Attorney's Office-Denver 1801 California Street Suite 1600 Denver, CO 80202 303-454-0100 Fax: 303-454-0406 Email: Beth.Gibson@usdoj.gov

ATTORNEY TO BE NOTICED Designation: Federal Agency Attorney
David Alan Tonini U.S. Attorney's Office-Denver 1801 California Street Suite 1600 Denver, CO 80202 303-454-0100 Fax: 303-454-0403 Email: David.Tonini@usdoj.gov ATTORNEY TO BE NOTICED Designation: Federal Agency Attorney
Erin Martha Creegan U.S. Department of Justice-DCCounterterrorism National Security Division, Counterterrorism Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202-514-0127 Fax: 202-514-8714 Email: erin.creegan@usdoj.gov TERMINATED: 11/03/2017 Designation: Federal Agency Attorney
Jason Michael Kellhofer U.S. Department of Justice-DCCounterterrorism National Security Division, Counterterrorism Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202-353-7371 Fax: 202-353-0778 Email: Jason.Kellhofer@usdoj.gov TERMINATED: 10/01/2012 Designation: Federal Agency Attorney
Julia K. Martinez U.S. Attorney's Office-Denver

1801 California Street Suite 1600 Denver, CO 80202 303-454-0100 Email: julia.martinez@usdoj.gov ATTORNEY TO BE NOTICED Designation: Federal Agency Attorney
Kiersten Jennifer Korczynski U.S. Department of Justice-DCCounterterrorism National Security Division, Counterterrorism Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 202-353-9007 Fax: 202-514-8714 Email: kiersten.korczynski@usdoj.gov TERMINATED: 10/25/2017 Designation: Federal Agency Attorney

Date Filed 01/19/2012
01/19/2012 01/19/2012 01/19/2012 01/23/2012

# Docket Text
1 COMPLAINT as to Jamshid Muhtorov (1). (Attachments: # 1 Criminal Information Sheet) (kltsl, ) (Attachment 1 replaced on 1/24/2012) (kltsl, ). Modified on 1/24/2012 to correct criminal information sheet(kltsl, ). [1:12-mj-01011-CBS] (Entered: 01/20/2012)
2 Arrest Warrant Issued in case as to Jamshid Muhtorov. (kltsl, ) [1:12mj-01011-CBS] (Entered: 01/20/2012)
3 MOTION for Leave to Restrict Case by USA as to Jamshid Muhtorov. (kltsl, ) [1:12-mj-01011-CBS] (Entered: 01/20/2012)
4 ORDER granting 3 Motion for Leave to Restrict as to Jamshid Muhtorov (1) by Magistrate Judge Craig B. Shaffer on 1/19/2012. (kltsl, ) [1:12-mj-01011-CBS] (Entered: 01/20/2012)
5 INDICTMENT as to Jamshid Muhtorov (1) count(s) 1. (Attachments: # 1 Criminal Information Sheet) (kltsl, ) (Entered: 01/24/2012)

01/25/2012 02/02/2012
02/02/2012
02/02/2012 02/06/2012 02/06/2012 02/06/2012 02/07/2012 02/07/2012 02/07/2012

6 ORDER OF RECUSAL in case as to Jamshid Muhtorov. Judge Philip A. Brimmer recused. Case reassigned to Judge Christine M. Arguello for all further proceedings. By Judge Philip A. Brimmer on 1/25/12. (mnfsl, ) (Entered: 01/25/2012)
7 MINUTE ENTRY for proceedings held before Magistrate Judge Kathleen M. Tafoya: Initial Appearance as to Jamshid Muhtorov held on 2/2/2012. AUSA Gregory Holloway. Defendant present in custody without counsel. Pretrial Katrina Devine. Interpreter: Irina Kamensky. Defendant advised. Federal Public Defender appointed. Arraignment, Discovery, and Detention hearing set for 2/7/2012 10:00 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. Defendant remanded. Total time: 13 minutes. Hearing time: 2:58-3:11. Text Only Entry. (FTR: Courtroom C-201) (kmtcd) (Entered: 02/02/2012)
8 ORDER as to Jamshid Muhtorov. Arraignment, Discovery, and Detention hearings set for 2/7/2012 02:00 PM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya. By Magistrate Judge Kathleen M. Tafoya on 2/2/2012. Text Only Entry. (kmtcd) (Entered: 02/02/2012)
9 CJA 23 Financial Affidavit by Jamshid Muhtorov. (kmtcd) (Entered: 02/03/2012)
10 NOTICE OF ATTORNEY APPEARANCE: Brian Rowland Leedy appearing for Jamshid Muhtorov (Leedy, Brian) (Entered: 02/06/2012)
21 Translation of Document re: 5 Indictment as to Jamshid Muhtorov. (jjpsl, ) (Entered: 02/15/2012)
22 Partial Translation of Document re: 1 Complaint, more specifically, Affidavit of D. Hale, as to Jamshid Muhtorov. (jjpsl, ) (Entered: 02/15/2012)
11 NOTICE OF ATTORNEY APPEARANCE: Warren Richard Williamson appearing for Jamshid Muhtorov (Williamson, Warren) (Entered: 02/07/2012)
12 NOTICE of Intent to Use Foreign Intelligence Surveillance Information by USA as to Jamshid Muhtorov (Holloway, Gregory) (Entered: 02/07/2012)
13 MINUTE ENTRY for proceedings held before Magistrate Judge Kathleen M. Tafoya: Arraignment, Discovery, and Detention Hearing as to Jamshid Muhtorov held on 2/7/2012. AUSA Gregory Holloway.

02/07/2012 02/08/2012 02/08/2012
02/08/2012 02/10/2012 02/13/2012 02/14/2012
02/14/2012

Defendant present in custody with Brian Leedy and Warren Williamson. Probation Christine Zorn. Interpreter Irina Kamensky. Plea of NOT GUILTY entered on all counts by Jamshid Muhtorov. Discovery memorandum executed. Government and defense counsel make arguments regarding continuation of Detention Hearing. ORDERED: Defendant remanded. Detention Hearing continued to 2/14/2012 09:00 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. Total time: 17 minutes. Hearing time: 2:09-2:26. Text Only Entry. (FTR: Courtroom C-201) (kmtcd) (Entered: 02/07/2012)
17 Discovery Conference Memorandum and ORDER: Estimated Trial Time - over 5 days as to Jamshid Muhtorov by Magistrate Judge Kathleen M. Tafoya on 2/7/2012. (cbscd, ) (Entered: 02/09/2012)
14 MOTION to Suppress FISA Acquired Evidence for Purposes of Detention by Jamshid Muhtorov. (Leedy, Brian) (Entered: 02/08/2012)
15 MEMORANDUM regarding 14 MOTION to Suppress FISA Acquired Evidence for Purposes of Detention filed by Jamshid Muhtorov. Motion(s) referred to Magistrate Judge Michael E. Hegarty. By Judge Christine M. Arguello on 2/8/2011. (jjpsl, ) (Entered: 02/08/2012)
16 MOTION for Order Requesting that Defendant be Placed in the FDC General Population while in Pretrial Confinement by Jamshid Muhtorov. (Williamson, Warren) (Entered: 02/08/2012)
18 RESPONSE to Motion by USA as to Jamshid Muhtorov re 14 MOTION to Suppress FISA Acquired Evidence for Purposes of Detention (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Holloway, Gregory) (Entered: 02/10/2012)
19 MOTION for Bond (Motion forRelease on Conditions) by Jamshid Muhtorov. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C)(Leedy, Brian) (Entered: 02/13/2012)
20 MEMORANDUM regarding 19 MOTION for Bond (Motion for Release on Conditions) filed by Jamshid Muhtorov. Motion referred to Magistrate Judge Michael E. Hegarty. By Judge Christine M. Arguello on 2/14/12. Text Only Entry (mnfsl, ) Modified on 2/14/2012 to correct judicial officer (mnfsl, ). (Entered: 02/14/2012)
23 MINUTE ENTRY for proceedings held before Magistrate Judge Michael E. Hegarty: Detention Hearing as to Jamshid Muhtorov held on 2/14/2012. AUSA Gregory Holloway. Defendant is present in

02/15/2012 02/15/2012 02/21/2012 02/21/2012 02/23/2012
02/24/2012 02/24/2012

custody with Brian Leedy and Warren Williamson. Pretrial Services: Christine Zorn. Interpreter: Irina Kamensky. Interpreter is sworn. Counsel present opening argument regarding detention. Government offers proffer regarding detention. Defendant calls Agent Donald E. Hale. Agent Donald E. Hale is sworn, examined, and questioned by the Court. Counsel present closing argument. The Court takes the following motions under advisement: 14 Motion to Suppress, and 19 Motion for Bond. Defendant remanded. 9:21-11:18. Total Time: 1 hour, 57 minutes. (FTR: C. Coomes -- Courtroom A-501) (mehcd) (Entered: 02/15/2012)
24 ORDER OF DETENTION as to Jamshid Muhtorov. By Magistrate Judge Michael E. Hegarty on 2/15/12. (jjpsl, ) (Entered: 02/15/2012)
45 MINUTE ORDER denying 19 Motion for Bond as to Jamshid Muhtorov (1) by Magistrate Judge Michael E. Hegarty on 2/15/2012 pursuant to 24 . Text Only Entry (skssl, ) (Entered: 03/09/2012)
25 MOTION to Strike Aliases from Indictment by Jamshid Muhtorov. (Williamson, Warren) (Entered: 02/21/2012)
26 Rule 5(c)(3) Documents Received as to Jamshid Muhtorov. (jjpsl, ) (Entered: 02/21/2012)
27 MINUTE ORDER as to Jamshid Muhtorov re 16 MOTION for Order Requesting that Defendant be Placed in the FDC General Population while in Pretrial Confinement filed by Jamshid Muhtorov. Defendant's Motion was filed on 02/08/2012. To date no response has been filed. The Government shall file a statement regarding its position or otherwise respond in writing to Doc. #16 NO LATER THAN 5:00 PM on 02/24/2012. SO ORDERED BY Judge Christine M. Arguello on 02/23/12. Text Only Entry (cmasec) (Entered: 02/23/2012)
28 RESPONSE to Motion by USA as to Jamshid Muhtorov re 16 MOTION for Order Requesting that Defendant be Placed in the FDC General Population while in Pretrial Confinement (Attachments: # 1 Exhibit)(Holloway, Gregory) (Entered: 02/24/2012)
29 TRANSCRIPT of Initial Appearance as to Jamshid Muhtorov held on 02/02/2012 before Magistrate Judge Tafoya. Pages: 1-11. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available

03/01/2012
03/01/2012 03/01/2012

after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 5/29/2012. (Avery Woods Reporting, ) (Entered: 02/24/2012)
30 MINUTE ORDER as to Jamshid Muhtorov. Pretrial motions due by 03/13/2012. Responses due by 03/20/2012. One-hour Final Trial Preparation Conference/Motion Hearing on pending non-evidentiary motions set for 03/23/2012 at 3:30 PM in Courtroom A602 before Judge Christine M. Arguello. If counsel believe an evidentiary hearing on any motions is necessary, a separate hearing date should be requested by motion. Two-week Jury Trial set for 04/09/2012 at 9:00 AM in Courtroom A602 before Judge Christine M. Arguello. If Defendant files a Notice of Disposition in good time, a change of plea hearing may be held at the time set for the Final Trial Preparation Conference. FURTHER ORDERED, the Court will not consider any motion related to the disclosure or production of discovery that is addressed by the Discovery Order and/or Fed.R.Crim.P.16, unless Counsel for the moving party, prior to filing the motion, has conferred or made reasonable, good-faith efforts to confer with opposing counsel in an effort to attempt to resolve the disputed matter, e.g., questions or disputes relating to the scope and/or timing of disclosure of such discovery. If the parties are able to resolve the dispute, the Motion shall be entitled "Unopposed Motion for _______," and the parties shall submit the proposed order the parties wish the Court to enter. If the parties are unable to resolve the dispute, the moving party shall state in the Motion the specific efforts that were taken to comply with this Order to Confer. FURTHER ORDERED, parties are expected to comply with this Court's "Criminal Practice Standards," Section V.A-G (see www.cod.uscourts.gov, under "Judicial Officers' Procedures"). SO ORDERED BY Judge Christine M. Arguello on 03/01/12. Text Only Entry (cmasec) (Entered: 03/01/2012)
31 MOTION to Revoke of Magistrate Judge's Detention Order and for Hearing De Novo by Jamshid Muhtorov. (Attachments: # 1 Attachment, # 2 Attachment, # 3 Attachment)(Williamson, Warren) (Entered: 03/01/2012)
32 MINUTE ORDER as to Jamshid Muhtorov re 16 MOTION for Order Requesting that Defendant be Placed in the FDC General Population while in Pretrial Confinement filed by Jamshid Muhtorov. Based on the Government's 28 Response to Defendant's motion, it appears that Defendant's 16 motion is now moot. Defendant is

03/02/2012
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03/07/2012 03/07/2012 03/07/2012 03/07/2012

DIRECTED to respond in writing to the Court NO LATER THAN 5:00 PM 03/05/2012 as to whether the issues raised by Defendant in his Motion requesting placement in FDC general population have been addressed. SO ORDERED BY Judge Christine M. Arguello on 03/01/12. Text Only Entry (cmasec) (Entered: 03/01/2012)
33 MINUTE ORDER as to Jamshid Muhtorov re 31 MOTION to Revoke of Magistrate Judge's Detention Order and for Hearing De Novo filed by Jamshid Muhtorov. ORDERED that the Government shall file a statement regarding its position or otherwise respond in writing to Doc. #31 NO LATER THAN 5:00 PM on 03/08/2012. SO ORDERED BY Judge Christine M. Arguello on 03/02/12. Text Only Entry (cmasec) (Entered: 03/02/2012)
34 MOTION for Protective Order by USA as to Jamshid Muhtorov. (Attachments: # 1 Proposed Order (PDF Only))(Holloway, Gregory) (Entered: 03/05/2012)
35 MOTION to Declare Case Complex by USA as to Jamshid Muhtorov. (Holloway, Gregory) (Entered: 03/05/2012)
36 MOTION for Hearing In Camera and Ex Parte by USA as to Jamshid Muhtorov. (Holloway, Gregory) (Entered: 03/05/2012)
37 REPLY by Jamshid Muhtorov to 28 Response to Motion Requesting He be Placed iin General Population while in Pretrial Confinement (Williamson, Warren) (Entered: 03/05/2012)
38 ORDER TRANSFERRING CASE in case as to Jamshid Muhtorov. Judge Christine M. Arguello termed. Case reassigned to Judge John L. Kane for all further proceedings. By Judge Christine M. Arguello on 3/7/2012. (jjpsl, ) Modified on 3/7/2012 to correct text (jjpsl, ). (Entered: 03/07/2012)
39 RESPONSE to Motion by USA as to Jamshid Muhtorov re 31 MOTION to Revoke of Magistrate Judge's Detention Order and for Hearing De Novo (Attachments: # 1 Exhibit, # 2 Exhibit)(Holloway, Gregory) (Entered: 03/07/2012)
40 MOTION for Leave to Restrict Document by USA as to Jamshid Muhtorov. (Holloway, Gregory) (Entered: 03/07/2012)
41 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov (Holloway, Gregory) (Entered: 03/07/2012)
42 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit,

03/08/2012 03/08/2012 03/09/2012
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# 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit)(Holloway, Gregory) (Entered: 03/07/2012)
43 MINUTE ORDER Setting Hearing as to Jamshid Muhtorov by Judge John L. Kane on 3/08/2012. Motions Hearing and Status Conference set for 3/15/2012 10:00 AM in Courtroom A 802 before Judge John L. Kane. (sks, ) (Entered: 03/08/2012)
44 MINUTE ORDER Setting Hearing as to Jamshid Muhtorov by Judge John L. Kane on 3/08/2012. Motion Hearing and Status Conference set for 3/15/2012 is VACATED and RESET for 3/19/2012 10:00 AM in Courtroom A 802 before Judge John L. Kane. (skssl, ) (Entered: 03/08/2012)
46 TRANSCRIPT of Detention Hearing as to Jamshid Muhtorov held on 02/14/2012 before Magistrate Judge Hegarty. Pages: 1-93. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 6/11/2012. (Avery Woods Reporting, ) (Entered: 03/09/2012)
47 ORDER granting 34 Motion for Protective Order as to Jamshid Muhtorov (1) by Judge John L. Kane on 3/13/2012. (skssl, ) (Entered: 03/13/2012)
48 RESPONSE to Motion by Jamshid Muhtorov re 36 MOTION for Hearing In Camera and Ex Parte (Williamson, Warren) (Entered: 03/14/2012)
49 MOTION for Reconsideration re 47 Order on Motion for Protective Order by Jamshid Muhtorov. (Williamson, Warren) (Entered: 03/14/2012)
55 MINUTE ENTRY for proceedings held before Judge John L. Kane: Status Conference/Motions Hearing held on 03/19/12 as to Jamshid Muhtorov (1). ORDERED: Opening brief is due on or before April 9,

03/20/2012 03/20/2012 03/20/2012
03/21/2012 03/21/2012 03/22/2012

2012, Response is due on or before April 19, 2012. Reply is due April 24, 2012 re: 49 . ORDERED: Hearing on 31 is set for April 11, 2012 at 10:00 a.m. ORDERED: 36 is GRANTED. The In Camera/Ex Parte hearing is set on May 23, 2012 at 10:00 a.m. Ordered re: 35 is Granted, A minimum of 90 days shall be excluded from the speedy trial calculation. Ordered that the Government has until 06/20/12 to file its response to 14 . Ordered re: 25 is granted in part and denied in part, Any future filings should exclude the aliases from the caption. Ordered Counsel shall follow the same briefing schedule as established for 47 to 16 . Hearing concluded. Interpreters: Irina Kamensky and Yuliya Fedasenka. (Court Reporter: Kara Spitler) (jjhsl, ) (Entered: 03/22/2012)
50 SUPERSEDING INDICTMENT as to Jamshid Muhtorov (1) count(s) 1s-4s, Bakhtiyor Jumaev (2) count(s) 1-4. Modified as specified in doc #52. (Attachments: # 1 Criminal Information Sheet, # 2 Criminal Information Sheet) (jjhsl, ) Modified on 3/23/2012 (jjhsl, ). (Entered: 03/20/2012)
51 MINUTE ORDER as to Jamshid Muhtorov. Re-arraignment set for 3/27/2012 11:00 AM in Courtroom A 401 before Magistrate Judge Boyd N. Boland by Magistrate Judge Boyd N. Boland on 03/20/12. Text Only Entry (jjhsl, ) (Entered: 03/20/2012)
52 ORDER. The alias names for Defendant No. 1, JAMSHID MUHTOROV, set forth in the caption of the Superseding Indictment filed this date, and the alias names for Defendant No. 2, BAKHTIYOR UMAEV, are ordered STRICKEN as surplussage and shall not be used again in the caption of any document or pleading by Judge John L. Kane on 03/20/12. (jjhsl, ) Modified on 3/21/2012 to correct text (jjhsl, ). (Entered: 03/21/2012)
53 MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. The Protective Order entered in this case will remain operative pending my resolution of Defendant Muhtorov's Motion for Reconsideration 49 by Judge John L. Kane on 03/21/12. (jjhsl, ) (Entered: 03/21/2012)
54 ORDER granting 40 Motion for Leave to Restrict as to Jamshid Muhtorov (1). Access to Docket 42 and the exhibits accompanying it shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1 by Judge John L. Kane on 03/21/12. (jjhsl, ) (Entered: 03/21/2012)
59 SECOND SUPERSEDING INDICTMENT as to Jamshid Muhtorov (1) count(s) 1ss-4ss, Bakhtiyor Jumaev (2) count(s) 1s-2s. (Attachments: # 1 Criminal Information Sheet, # 2 Criminal Information Sheet) (jjhsl, ) (Entered: 03/23/2012)

03/23/2012
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56 TRANSCRIPT of Arraignment/Discovery/Detention Hearing as to Jamshid Muhtorov held on 02/07/2012 before Magistrate Judge Tafoya. Pages: 1-15. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 6/25/2012. (Avery Woods Reporting, ) (Entered: 03/23/2012)
57 Translation of Document re: 50 Indictment as to Jamshid Muhtorov, Bakhtiyor Jumaev. Modified as specified in doc #58. (jjhsl, ) Modified on 3/23/2012 (jjhsl, ). (Entered: 03/23/2012)
58 ORDER. The alias names for Defendant No. 1, JAMSHID MUHTOROV, set forth in the caption of the Superseding Indictment filed this date, and the alias names for Defendant No. 2, BAKHTIYOR UMAEV, are ordered STRICKEN as surplussage and shall not be used again in the caption of any document or pleading re: 57 by Judge John L. Kane on 03/23/12. (jjhsl, ) Modified on 3/23/2012 to correct text (jjhsl, ). (Entered: 03/23/2012)
60 MINUTE ORDER as to Jamshid Muhtorov re 59 SECOND SUPERSEDING Indictment set for Re-arraignment on 03/27/12 at 11:00am with Magistrate Judge Boland. Text Only Entry (jjhsl, ) (Entered: 03/23/2012)
61 Translation of Document re: 59 Indictment as to Jamshid Muhtorov, Bakhtiyor Jumaev (jjhsl, ) (Entered: 03/26/2012)
62 MINUTE ENTRY for proceedings held before Magistrate Judge Boyd N. Boland: Arraignment Hearing as to Jamshid Muhtorov, as to Second Superseding Indictment. AUSA: Gregory A. Holloway. Defendant present in custody with Brian R. Leedy. Pretrial: Darren Streich. Interpreter: Irina Kamensky. NOT GUILTY Plea entered on all counts by defendant. ORDERED: Defendant detained without bond. Defendant remanded. Total time: 3 minutes. Hearing time: 11:00 - 11:03 Text Only Entry. (Court Reporter: FTR - Ellen E. Miller) (mjwcd) (Entered: 03/27/2012)

04/04/2012
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69 REPLY TO RESPONSE to Motion by Jamshid Muhtorov re 31 MOTION to Revoke of Magistrate Judge's Detention Order and for Hearing De Novo (Attachments: # 1 Attachment, # 2 Attachment, # 3 Attachment, # 4 Attachment, # 5 Attachment, # 6 Attachment, # 7 Attachment)(Williamson, Warren) (Entered: 04/04/2012)
75 Supplemental MOTION 16 for Order Requesting He be Placed in General Population While in Pretrial Confinement by Jamshid Muhtorov. (Williamson, Warren) Modified on 4/11/2012 to add linkage to doc #16 (jjhsl, ). (Entered: 04/09/2012)
76 BRIEF by Jamshid Muhtorov re: 49 MOTION for Reconsideration re 47 Order on Motion for Protective Order filed by Jamshid Muhtorov (Leedy, Brian) (Entered: 04/09/2012)
77 STATEMENT -- Defendant's Proffer Re Interview of Nargiza Muhtorova by Defendant Jamshid Muhtorov (Williamson, Warren) (Entered: 04/10/2012)
78 MOTION for Leave to Restrict Document by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 04/11/2012)
79 REPLY by Jamshid Muhtorov, Bakhtiyor Jumaev to 77 Statement (Holloway, Gregory) (Entered: 04/11/2012)
80 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 04/11/2012)
81 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Holloway, Gregory) (Entered: 04/11/2012)
86 MINUTE ENTRY for proceedings held before Judge John L. Kane: Motion Hearing as to Jamshid Muhtorov held on 4/11/2012. Interpreter: Alla Seletskaya. ORDERED Government's Motion To Restrict Document No. 80 78 is GRANTED. ORDERED: Motion For Revocation Of Magistrate Judge's Detention Order And For Hearing De Novo 31 is DENIED. ORDERED Defendant's Motion 16 and Supplemental Motion 75 Requesting He Be Placed In The FDC General Population While In Pretrial Confinement are DENIED as MOOT. (Court Reporter: Tamara Hoffschildt) (jjhsl, ) (Entered: 04/12/2012)

04/13/2012 04/26/2012 04/26/2012 04/26/2012 05/02/2012 05/03/2012 05/03/2012
05/07/2012 05/08/2012 05/08/2012

90 RESPONSE to Motion by USA as to Jamshid Muhtorov re 25 MOTION to Strike Aliases from Indictment (Holloway, Gregory) (Entered: 04/13/2012)
100 RESPONSE to Motion by Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev re 49 MOTION for Reconsideration re 47 Order on Motion for Protective Order (Savitz, David) (Entered: 04/26/2012)
101 RESTRICTED DOCUMENT - Level 1: by Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev (Savitz, David) (Entered: 04/26/2012)
102 MOTION for Leave to Restrict Document by Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 Proposed Order (PDF Only))(Savitz, David) (Entered: 04/26/2012)
104 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Savitz, David) (Entered: 05/02/2012)
105 NOTICE of Opposition to Government's Newest Proposed Protective Order by Jamshid Muhtorov (Williamson, Warren) (Entered: 05/03/2012)
106 RESPONSE by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re: 101 Restricted Document - Level 1 filed by Bakhtiyor Jumaev, 76 Brief filed by Jamshid Muhtorov, 100 Response to Motion filed by Bakhtiyor Jumaev, 49 MOTION for Reconsideration re 47 Order on Motion for Protective Order filed by Jamshid Muhtorov (Attachments: # 1 Proposed Order (PDF Only), # 2 Proposed Document)(Holloway, Gregory) (Entered: 05/03/2012)
107 MOTION for Order For a Date Certain for Any Supplemental Briefing Regarding Defendant Muhtorov's FISA Suppression Motion by USA as to Jamshid Muhtorov. (Holloway, Gregory) (Entered: 05/07/2012)
108 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 05/08/2012)
109 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 05/08/2012)

05/08/2012 05/08/2012
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110 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 05/08/2012)
111 MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. This matter is set for a Status Conference and Motions Hearing on May 14, 2012 at 1:30 p.m. in Courtroom A802. The court will address protective order and FISA issues at this hearing (doc. #s 49 and 107). The defendants' presence is not required before Judge John L. Kane by Judge John L. Kane on 05/08/12. (jjhsl, ) (Entered: 05/08/2012)
112 NOTICE OF NONCOMPLIANCE WITH CM/ECF PROCEDURES: The court notes that Jason Kellhofer has failed to register for electronic case filing (CM/ECF) in violation of D.C.COLO.LCrR 49.4A. and III.3.2.A. of the Electronic Case Filing Procedures for the District of Colorado (Criminal Cases). Counsel is advised that continued failure to file electronically through CM/ECF may lead to sanctions by the court. Counsel must register for CM/ECF within 10 days of the date of this docket entry or further action may be taken by the court. Text Only Entry (mjfsl, ) (Entered: 05/08/2012)
113 CJA 20/30 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment, # 3 CJA Attachment)(Savitz, David) (Entered: 05/09/2012)
114 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Savitz, David) (Entered: 05/10/2012)
115 Objections to Newly Proposed Protective Order and MOU 106 by Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Savitz, David) Modified on 5/14/2012 to correct title of document (jjhsl, ). (Entered: 05/11/2012)
118 MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 5/14/2012 as to Jamshid Muhtorov (1),and Bakhtiyor Jumaev (2). Defendants not present. Granting 107 Motion for Order as to Jamshid Muhtorov (1), to and including 7/30/2012. (Court Reporter: Gwen Daniel)(babia) (Entered: 05/16/2012)
116 STATEMENT -- Memorandum of Law on Procedures to be Followed at any CIPA 4 Proceedings [Doc. No. 55] and Defendant's Motions Regarding Such Proceeding(s) by Defendant Jamshid Muhtorov (Leedy, Brian) (Entered: 05/15/2012)
117 ORDER re Doc. 116 as to Jamshid Muhtorov, Bakhtiyor Jumaev. The requests for relief embedded in the "Memorandum of Law on

05/17/2012 05/17/2012 05/17/2012 05/17/2012 05/17/2012 05/23/2012
05/25/2012 05/29/2012 05/29/2012

Procedures to be Followed at an CIPA 4 Proceedings" 116 filed on behalf of Mr. Muhtorov are Denied as Premature. The May 23 hearing is not a CIPA § 4 hearing and was not converted into one by operation of the March 19 Minute Entry 55 . However, that Minute Entry 55 is AMENDED to clarify that the May 23 hearing is not in camera or ex parte. To the extent specific matters arise during the course of the May 23 hearing that require in camera or ex parte attention, they will be addressed accordingly at that time by Judge John L. Kane on 05/16/12. (jjhsl, ) (Entered: 05/16/2012)
119 CJA 24 Transcript Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Savitz, David) (Entered: 05/17/2012)
120 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 05/17/2012)
121 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 05/17/2012)
122 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 05/17/2012)
123 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 05/17/2012)
124 MINUTE ENTRY for proceedings held before Judge John L. Kane: Pretrial Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 5/23/2012. ORDERED: Oral Request by the Government to conduct a preliminary CIPA § 4 (ex parte) hearing within the week of June 18, 2012 is GRANTED. Counsel shall contact Chambers to schedule a time (Court Reporter: Tamara Hoffschildt) (jjhsl, ) (Entered: 05/23/2012)
125 MOTION to Suppress FISA Acquired Evidence (Supplement to Doc. 14) by Jamshid Muhtorov. (Leedy, Brian) (Entered: 05/25/2012)
126 CJA 24 Transcript Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Savitz, David) (Entered: 05/29/2012)
127 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 05/29/2012)

06/05/2012
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06/21/2012 06/22/2012

128 MOTION for Reconsideration re 116 Statement filed by Jamshid Muhtorov ("Memorandum of Law on Procedures to be followed at any CIPA Section 4 Proceedings and Defendant's Motions Regarding Such Proceeding(s)" by Jamshid Muhtorov. (Leedy, Brian) (Entered: 06/05/2012)
129 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Savitz, David) (Entered: 06/05/2012)
130 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Savitz, David) (Entered: 06/05/2012)
131 RESPONSE by USA as to Jamshid Muhtorov re: 116 Statement filed by Jamshid Muhtorov, 128 MOTION for Reconsideration re 116 Statement filed by Jamshid Muhtorov ("Memorandum of Law on Procedures to be followed at any CIPA Section 4 Proceedings and Defendant's Motions Regarding Such Proceeding(s)" filed by Jamshid Muhtorov (Holloway, Gregory) (Entered: 06/12/2012)
132 CJA 20/30 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Savitz, David) (Entered: 06/13/2012)
134 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 06/18/2012)
135 ORDER granting in part and denying in part 128 Motion for Reconsideration as to Jamshid Muhtorov (1). Ex Parte Hearing set for 6/21/2012 02:00 PM in Courtroom A 802 before Judge John L. Kane. Ex Parte Hearing set for 6/21/2012 03:00 PM in Courtroom A 802 before Judge John L. Kane by Judge John L. Kane on 06/20/12. (jjhsl, ) (Entered: 06/20/2012)
137 Courtroom Minutes for proceedings held before Judge John L. Kane held on 6/21/2012. (jjhsl, ) (Entered: 06/21/2012)
144 TRANSCRIPT of Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 5/14/2012 before Judge Kane. Pages: 1-25. <P> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available

06/26/2012 06/26/2012 06/27/2012
06/27/2012

after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 9/24/2012. (Daniel, Gwen) (Entered: 06/22/2012)
145 ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. Pursuant to counsel's representations and stipulations related in a joint conference call to chambers this morning, the deadline for the government's FISA response is EXTENDED one month from July 30, 2012 to August 31, 2012, and Mr. Jumaev shall have to July 26, 2012, to file a SUPPLEMENTAL PLEADING or JOINDER related to Mr. Muhtorov's FISA-related Motion to Suppress 125 by Judge John L. Kane on 06/26/12. Text Only Entry (jjhsl, ) (Entered: 06/26/2012)
148 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 06/26/2012)
149 Amended TRANSCRIPT of Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 5/14/2012 before Judge Kane. Pages: 1-25. <P> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 9/28/2012. (Daniel, Gwen) (Entered: 06/27/2012)
150 Amended TRANSCRIPT of Pretrial Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on May 23, 2012 before Judge Kane. Pages: 1-21. <P> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts

06/28/2012 07/12/2012 07/12/2012 07/30/2012
07/30/2012 07/30/2012 07/30/2012
07/30/2012

document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 9/28/2012. (Hoffschildt, Tamara) (Entered: 06/27/2012)
151 MINUTE ENTRY for proceedings held before Judge John L. Kane: Ex Parte Hearing as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 6/28/2012 re: 135 . Court Reporter: Tamara Hoffschildt. (jjhsl, ) (Entered: 06/28/2012)
152 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (Attachments: # 1 Proposed Order (PDF Only), # 2 Restricted Attachment)(Leedy, Brian) (Entered: 07/12/2012)
153 RESTRICTED DOCUMENT - Level 3. (lygsl, ) (Entered: 07/12/2012)
157 MOTION for Order Combined FISA-Related Motions: (1) To Adopt Defendant Muhtorov's "Motion to Suppress FISA Acquired Evidence (Supplement to Doc. 14)" (Doc. 125); (2) for Disclosure of FISA Materials; (3) for a Preliminary Challenge to Suppress FISA Acquired Evidence; and (4) for Leave to File a Franks Motion After Receipt of All the Government's Discovery by Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Savitz, David) (Entered: 07/30/2012)
158 RESTRICTED DOCUMENT - Level 1: by Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibits QW)(Savitz, David) (Entered: 07/30/2012)
159 MOTION for Leave to Restrict Document by Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 Proposed Order (PDF Only))(Savitz, David) (Entered: 07/30/2012)
160 MOTION for Leave to File Out of Time, Namely, on July 30, 2012, Defendant Jumaev's Combined FISA-Related Motions: (1) to Adopt Defendant Muhtorov's "Motion to Suppress FISA Acquired Evidence (Supplement to Doc. 14)" (Doc. 125; (2) For Disclosure of FISA Materials; (3) for a Preliminary Challenge to Suppress FISA Acquired Evidence; and (4) for Leave to File a Franks Motion After Receipt of All the Government's Discovery (Doc. No. 157) by Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 Proposed Order (PDF Only))(Savitz, David) (Entered: 07/30/2012)
161 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Savitz, David) (Entered: 07/30/2012)

07/30/2012 07/30/2012
07/30/2012 08/01/2012 08/09/2012 08/09/2012 08/30/2012
08/31/2012 08/31/2012 08/31/2012

162 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Savitz, David) (Entered: 07/30/2012)
163 ORDER. ORDERED that Defendant Jumaev's Motion for Leave to Restrict Exhibits Attached to his Combined FISA-Related Motions 159 is GRANTED. Exhibits A-W of Doc 157 are RESTRICTED from public view at Level 1, by Judge John L. Kane on 7/30/12. Text Only Entry (sgrim) (Entered: 07/31/2012)
164 ORDER. ORDERED that Defendant Jumaev's Motion 160 for Leave to File Doc. 157 Out of Time is GRANTED. The Combined FISARelated Motions 157 is ACCEPTED for filing, by Judge John L. Kane on 7/30/12. Text Only Entry (sgrim) (Entered: 07/31/2012)
165 CJA 20/30 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) (Entered: 08/01/2012)
171 CJA 21/31 Payment Request as to Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) Modified on 8/9/2012 to correct filer (jjhsl, ). (Entered: 08/09/2012)
172 CJA 21/31 Payment Request as to Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Savitz, David) Modified on 8/9/2012 to correct filer (jjhsl, ). (Entered: 08/09/2012)
175 MINUTE ORDER notifying counsel of ex parte telephone communication between Court and counsel re delivery of CIPA Section 4 materials as to Jamshid Muhtorov and Bakhtiyor Jumaev, by Judge John L. Kane on 8/30/12. Text Only Entry (sgrim) (Entered: 08/30/2012)
176 MOTION for Leave to Restrict Document by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 08/31/2012)
177 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 08/31/2012)
178 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Holloway, Gregory) (Entered: 08/31/2012)

09/05/2012 09/21/2012 09/24/2012 09/26/2012 09/27/2012 09/28/2012 09/28/2012 10/01/2012
10/01/2012

184 Joint MOTION for Discovery of their Statements and Translations Thereof by Jamshid Muhtorov. (Williamson, Warren) (Entered: 09/05/2012)
194 Superseding Protective Order as to Jamshid Muhtorov and Bakhtiyor Jumaev, by Judge John L. Kane on 9/21/12. (Attachments: # 1 Attachment) (sgrim) (Entered: 09/21/2012)
196 ORDER on Pending Motions Regarding FISA-Acquired Evidence. Defendant Muhtorov's Motion to Suppress 14 and Supplement 125 , and the Combined FISA-Related Motions of Defendant Jumaev 157 are DENIED, by Judge John L. Kane on 9/24/12. (lygsl, ) (Entered: 09/24/2012)
198 NOTICE to Defendants of In Camera, Ex Parte Under Seal Filing by the United States Pursuant to Classified Information Procedures Act by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 09/26/2012)
199 MOTION to Continue Pursuant to Declaration of Complexity by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 09/27/2012)
200 MOTION to Withdraw as Attorney of Record by Jason Kellhofer by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 09/28/2012)
203 MOTION to Disclose Grand Jury Material to Defendant by Jamshid Muhtorov. (Williamson, Warren) (Entered: 09/28/2012)
204 MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. MINUTE ORDER setting STATUS CONFERENCE/CIPA Section 2 hearing. At some time before 4 p.m. on Tuesday, October 2, 2012, counsel for the government and both defendants shall call in jointly to chambers to set a time for a status conference/CIPA section 2 hearing. The conference/hearing will be open (not ex parte) and topics for discussion shall be the status of discovery, including discovery of information designated as classified, and plans for proceeding on pending motions, by Judge John L. Kane on 10/1/12. Text Only Entry (sgrim, ) (Entered: 10/01/2012)
205 ORDER Granting Motion 199 for Tolling of Speedy Trial as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). The government's Motion for (90-Day) Tolling of Speedy Trial pursuant to a declaration of complexity 199 is GRANTED. An additional 90 days SHALL BE EXCLUDED from speedy trial calculations, by Judge John L. Kane on 10/1/12. (sgrim) (Entered: 10/01/2012)

10/01/2012 10/01/2012 10/01/2012 10/01/2012 10/02/2012 10/03/2012 10/11/2012
10/28/2012

206 ORDER granting 200 Motion to Withdraw as Attorney. Jason Michael Kellhofer withdrawn from case as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2), by Judge John L. Kane on 10/1/12. (sgrim) (Entered: 10/01/2012)
207 ORDER granting 200 Motion to Withdraw as Attorney. Jason Michael Kellhofer withdrawn from case as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2), by Judge John L. Kane on 10/1/12. (sgrim) Modified on 10/1/2012 duplicate entry. (sgrim). (Entered: 10/01/2012)
208 ORDER granting 200 Motion to Withdraw as Attorney. Jason Michael Kellhofer withdrawn from case as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2), by Judge John L. Kane on 10/1/12. (sgrim) Modified on 10/1/2012 duplicate entry. (sgrim). (Entered: 10/01/2012)
209 ORDER granting 200 Motion to Withdraw as Attorney. Jason Michael Kellhofer withdrawn from case as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2), by Judge John L. Kane on 10/1/12. (sgrim) Modified on 10/1/2012 duplicate entry. (sgrim). (Entered: 10/01/2012)
210 MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. Status Conference/CIPA section 2 hearing set for 10/11/2012 at 03:00 PM in Courtroom A 802, Alfred A. Arraj U.S. District Courthouse, before Judge John L. Kane, by Judge John L. Kane on 10/2/12. Text Only Entry. (sgrim) (Entered: 10/02/2012)
213 PROTECTIVE ORDER as to Jamshid Muhtorov and Bakhtiyor Jumaev re 198 Notice to Defendants of in Camera, ex Parte under Seal Filing By the United States Pursuant to the Classified Information Procedures Act, by Judge John L. Kane on 10/3/12. (sgrim) (Entered: 10/03/2012)
223 MINUTE ENTRY for Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 10/11/2012 before Judge John L. Kane. ORDERED: If there is no plea disposition filed, counsel shall have to and including November 19, 2012 to file responses to the three pending motions 184 , 203 , and 201 . ORDERED: The Government shall file its response to 211 , on or before October 31, 2012, otherwise the motion will be ruled on as submitted. Court Reporter: Kara Spitler. Interpreter: Alla Seletskaya. (sgrim) (Entered: 10/17/2012)
230 TRANSCRIPT of Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 10-11-12 before Judge Kane. Pages: 1-23. <P> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact

11/05/2012
11/06/2012
12/20/2012 12/20/2012 01/04/2013 01/09/2013 02/22/2013

personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 1/31/2013. (Spitler, Kara) (Entered: 10/28/2012)
235 MOTION for Extension of Time to File Response/Reply as to 184 Joint MOTION for Discovery of their Statements and Translations Thereof, 203 MOTION to Disclose Grand Jury Material to Defendant , 201 MOTION to Disclose Grand Jury Material to Defendant by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 11/05/2012)
237 MINUTE ORDER GRANTING Government's Motion 235 for Extension of Time in Which to File Responses to Pending Defense Motions as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). The Government's response(s) to the pending defense Motions 184 , 201 , 203 are due on or before December 21, 2012, by Judge John L. Kane on 11/6/12. Text Only Entry. (sgrim) (Entered: 11/06/2012)
263 RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 184 Joint MOTION for Discovery of their Statements and Translations Thereof (Holloway, Gregory) (Entered: 12/20/2012)
264 RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 203 MOTION to Disclose Grand Jury Material to Defendant , 201 MOTION to Disclose Grand Jury Material to Defendant (Holloway, Gregory) (Entered: 12/20/2012)
266 REPLY TO RESPONSE to Motion by Jamshid Muhtorov re 184 Joint MOTION for Discovery of their Statements and Translations Thereof (Williamson, Warren) (Entered: 01/04/2013)
267 MINUTE ORDER re Doc 184 as to Jamshid Muhtorov (1) and Bakhtiyor Jumaev (2). Defendants' Joint Motion for Discovery of their Statements and Translations Thereof is DENIED without prejudice, by Judge John L. Kane on 1/9/13. (sgrim) (Entered: 01/09/2013)
288 MOTION to Continue For Tolling of Speedy Trial Pursuan to 18 USC 3161(h)(7)(7)(B)(ii) by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 02/22/2013)

02/26/2013
04/23/2013 04/24/2013
04/24/2013 04/26/2013
04/29/2013 04/30/2013 06/05/2013 06/10/2013 06/14/2013 06/14/2013

289 ORDER granting 288 Government's Motion for Tolling of Speedy Trial as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). ORDERED that an additional 120 days shall be excluded from speedy trial calculations by Judge John L. Kane on 2/26/13. (sgrim) (Entered: 02/26/2013)
331 MOTION to Appoint CJA Counsel as Co-Counsel by Jamshid Muhtorov. (Williamson, Warren) (Entered: 04/23/2013)
332 ORDER granting 331 Motion to Appoint CJA Counsel as to Jamshid Muhtorov (1) CJA counsel Kathryn J. Stimson shall be appointed as co-counsel for defendant Muhtorov, by Judge John L. Kane on 04/24/13. Text Only Entry (jlksec) (Entered: 04/24/2013)
333 CJA 20/30 Appointment of Kathryn J. Stimson as co-counsel for Jamshid Muhtorov by Judge John L. Kane on 4/24/2013. (smatl, ) (Entered: 04/24/2013)
336 NOTICE To Defendant of In Camera, Ex Parte Under Seal Filing By the United States Pursuant to the Classified Information Procedures Act by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 04/26/2013)
337 NOTICE OF ATTORNEY APPEARANCE: Kathryn J. Stimson appearing for Jamshid Muhtorov (Stimson, Kathryn) (Entered: 04/29/2013)
339 PROTECTIVE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev by Judge John L. Kane on 04/30/13. (jjhsl, ) (Entered: 04/30/2013)
354 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 06/05/2013)
359 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 6/10/2013. (smatl, ) (Entered: 06/17/2013)
356 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 06/14/2013)
357 MOTION for Tolling of Speedy Trial by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) Modified on 6/14/2013 correct title of document (jjhsl, ). (Entered: 06/14/2013)

06/17/2013 06/17/2013 06/18/2013 06/19/2013 06/21/2013 06/21/2013 06/27/2013
07/01/2013 07/10/2013 07/22/2013 08/04/2013 08/04/2013 08/05/2013

360 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment Invoice, # 2 CJA Attachment Signed Copy)(Stimson, Kathryn) (Entered: 06/17/2013)
368 CJA 21/31 Authorization for Service as to Jamshid Muhtorov by Judge John L. Kane on 6/17/2013. (smatl, ) (Entered: 07/03/2013)
363 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment, # 3 CJA Attachment)(Stimson, Kathryn) (Entered: 06/18/2013)
364 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 06/19/2013)
370 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 6/21/2013. (smatl, ) (Entered: 07/03/2013)
372 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 6/21/2013. (smatl, ) (Entered: 07/08/2013)
365 ORDER granting 357 Motion for Tolling of Speedy Trial as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). ORDERED that an additional 120 days shall be excluded from speedy trial calculations by Judge John L. Kane on 06/27/13. (jjhsl, ) (Entered: 06/27/2013)
366 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment, # 3 CJA Attachment)(Stimson, Kathryn) (Entered: 07/01/2013)
377 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 7/10/2013. (smatl, ) (Entered: 07/18/2013)
379 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 07/22/2013)
386 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 08/04/2013)
387 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 08/04/2013)
388 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 08/05/2013)

08/05/2013 08/08/2013 08/09/2013 08/09/2013 08/21/2013 08/26/2013 08/27/2013
09/03/2013
09/05/2013 09/09/2013 09/11/2013 09/16/2013
09/16/2013 09/16/2013 09/17/2013

393 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 8/5/13. (dbrow, ) (Entered: 08/15/2013)
391 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 08/08/2013)
399 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 8/9/2013. (smatl, ) (Entered: 08/20/2013)
404 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 8/9/13. (dbrow, ) (Entered: 08/23/2013)
409 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 08/21/13. (dbrow, ) (Entered: 08/27/2013)
406 CJA MOTION by Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 08/26/2013)
408 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 08/27/2013)
412 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 09/03/2013)
421 CJA 21/31 Authorization for Service as to Jamshid Muhtorov by Judge John L. Kane on 9/5/2013. (smatl, ) (Entered: 09/17/2013)
417 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 09/09/2013)
432 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 9/11/2013. (smatl, ) (Entered: 09/27/2013)
419 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 09/16/2013)
420 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 09/16/2013)
441 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 9/16/2013. (smatl, ) (Entered: 10/09/2013)
437 CJA 21/31 Authorization for Service as to Jamshid Muhtorov by Judge John L. Kane on 9/17/2013. (smatl, ) (Entered: 10/02/2013)

09/19/2013 09/19/2013 09/23/2013 09/23/2013 09/25/2013 09/26/2013 10/02/2013
10/02/2013
10/14/2013 10/15/2013 10/16/2013 10/23/2013
10/23/2013 10/25/2013

426 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 09/19/2013)
427 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 09/19/2013)
443 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 9/23/2013. (smatl, ) (Entered: 10/09/2013)
446 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 9/23/2013. (smatl, ) (Entered: 10/09/2013)
429 CJA Travel Request (Non-Defendant) as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 09/25/2013)
430 CJA Travel Authorization as to Jamshid Muhtorov by Judge John L. Kane on 9/26/2013. (smatl, ) (Entered: 09/27/2013)
435 MOTION to Continue For Tolling of Speedy Trial Pursuant to 18 USC 3161(h)(7)(B)(ii) by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 10/02/2013)
436 ORDER granting 435 Motion to Continue -tolling of speedy trial, as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). ORDERED that an additional 120 days SHALL BE EXCLUDED from speedy trial calculations pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii). by Judge John L. Kane on 10/2/2013. (trlee, ) (Entered: 10/02/2013)
448 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 10/14/2013)
449 RESTRICTED DOCUMENT - Level 3. (jjhsl, ) (Entered: 10/15/2013)
455 CJA 21/31 Authorization for Service as to Jamshid Muhtorov by Judge John L. Kane on 10/16/2013. (smatl, ) (Entered: 10/25/2013)
453 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 10/23/2013)
454 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 10/23/2013)
457 NOTICE of Intent to Use Forgeign Intelligence Surveillance Act Information by USA as to Jamshid Muhtorov (Holloway, Gregory) (Entered: 10/25/2013)

11/05/2013 11/05/2013 11/07/2013
11/13/2013 11/15/2013 12/05/2013

468 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 11/5/2013. (smatl, ) (Entered: 11/18/2013)
469 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 11/5/2013. (smatl, ) (Entered: 11/18/2013)
463 MINUTE ORDER. In light of the FAA matters that have arisen in this case (Docs. 457 & 458) and potential motions practice related to Mr. Hasanov's appointment as Court's Qualified Interpreter (Doc. 243), this case is set for a STATUS CONFERENCE. For ease of scheduling, the Conference is unilaterally set for 10:00 a.m. on Friday, November 15, 2013. If that date is unworkable for one or more counsel, the parties are asked to call in jointly to set one that is mutually agreeable. In anticipation of the conference, counsel are directed to CONFER regarding a list of agenda items they wish to be discussed at the conference and any filing and briefing timelines to which they may be able to agree regarding FAA-related motions, including a deadline for the government's response to Mr. Jumaev's Motion for Notice of Intent to use FAA-related evidence. (Doc. 458.) Counsel for Mr. Muhtorov shall cause the resulting Joint Status Report to be filed by 9:00 a.m. the day before the Status Conference set pursuant to this Minute Order by Judge John L. Kane on 11/07/13. Text Only Entry (jjhsl, ) (Entered: 11/07/2013)
465 ORDER TO SHOW CAUSE DIRECTED TO MR. OTABEK HASANOV. If Mr. Hasanov prepares and delivers a final transcript to Mr. David Savitz at his office at 1512 Larimer St., Ste 600, Denver, Colorado 80202 on or before November 30, 2013, he will be deemed to have complied with this Order and the Order shall be discharged. The Clerk is directed to send a copy of this Order to Show Cause to Mr. Hasanov at otabekuz@gmail.com by Judge John L. Kane on 11/13/13. (jjhsl, ) (Entered: 11/14/2013)
471 MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 11/15/2013 as to Jamshid Muhtorov (1) and Bakhtiyor Jumaev (2). Defendants present in custody. ORDERED: Government's Response to Doc. No. 458 is due on or before 11/19/2013. Reply due by 12/12/2013. Granting 203 Motion to Disclose Grand Jury Material as to Jamshid Muhtorov (1); Granting 201 Motion to Disclose Grand Jury Material as to Bakhtiyor Jumaev (2). Defendants are REMANDED. Court Reporter: Mary George. Interpreter: Yuliya Fedasenka. (babia) (Entered: 11/19/2013)
476 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 12/05/2013)

12/09/2013 12/17/2013 01/02/2014 01/03/2014 01/06/2014
01/14/2014 01/14/2014 01/21/2014 01/21/2014 01/29/2014
02/10/2014 02/10/2014 04/09/2014

480 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 12/09/2013)
510 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 12/17/2013. (smatl, ) (Entered: 01/15/2014)
490 CJA MOTION by Jamshid Muhtorov. (Attachments: # 1 Exhibit, # 2 Exhibit)(Stimson, Kathryn) (Entered: 01/02/2014)
491 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 CJA Attachment)(Stimson, Kathryn) (Entered: 01/03/2014)
492 MINUTE ORDER directing Mr. Jumaev to file a status report re Order to Show Cause (Doc. 465). Specifically, Mr. Jumaev shall inform the Court whether Mr. Hasanov delivered the transcript he was ordered to deliver to Mr. Savitz by November 30, 2013. Mr. Jumaev's silence on the matter has been interpreted by the Court as suggesting Mr. Hasanov had complied, but if this is not the case, the Court will issue an Order finding Mr. Hasanov in contempt and a subpoena for his appearance by Judge John L. Kane on 01/06/14. Text Only Entry (jjhsl, ) (Entered: 01/06/2014)
503 RESTRICTED DOCUMENT - Level 3. (jjhsl, ) (Entered: 01/14/2014)
528 CJA 21/31 Authorization for Service as to Jamshid Muhtorov by Judge John L. Kane on 1/14/2014. (shugh, ) (Entered: 02/13/2014)
514 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 01/21/2014)
515 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 01/21/2014)
520 MOTION to Suppress Evidence Obtained or Derived from Surveillance under the FISA Amendments Act and Motion for Discovery by Jamshid Muhtorov. (Williamson, Warren) (Entered: 01/29/2014)
535 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 2/10/2014. (babia) (Entered: 03/04/2014)
536 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 2/10/2014. (babia) (Entered: 03/04/2014)
548 CJA 21/31 Request for Service as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 04/09/2014)

04/17/2014
05/01/2014 05/02/2014 05/05/2014 05/06/2014 05/09/2014 05/09/2014
05/13/2014 05/13/2014 05/15/2014

551 MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. The government's informal request for an extension of time to file its Response to Mr. Muhtorov's Motion to Suppress (Doc. 520), which was communicated via email and is unopposed, is GRANTED. The government's Response, originally due April 29, 2014, is now due on or before May 9, 2014. The Court notes Mr. Jumaev has joined in Mr. Muhtorov's Motion (see Doc. 521). by Judge John L. Kane on 4/17/14. Text Only Entry (jlksec) (Entered: 04/17/2014)
554 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 05/01/2014)
555 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 05/02/2014)
556 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 05/05/2014)
557 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 05/06/2014)
558 CJA 21/31 Request for Service as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 05/09/2014)
559 RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 521 MOTION to Suppress Evidence Obtained or Derived from Surveillance Under the FISA Amendments Act and Motion for Discovery (Related to Doc. No. 520), 520 MOTION to Suppress Evidence Obtained or Derived from Surveillance under the FISA Amendments Act and Motion for Discovery (Attachments: # 1 Exhibit)(Holloway, Gregory) (Entered: 05/09/2014)
562 CJA 21/31 Request for Service as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 05/13/2014)
567 CJA 21/31 Authorization for Service as to Jamshid Muhtorov by Judge John L. Kane on 5/13/2014. (shugh) (Entered: 05/22/2014)
568 CJA 21/31 Authorization for Service as to Jamshid Muhtorov by Judge John L. Kane on 5/15/2014. (shugh) (Entered: 05/22/2014)

05/20/2014 05/22/2014
05/27/2014 05/30/2014 05/30/2014 06/02/2014 06/04/2014
06/04/2014 06/09/2014 06/12/2014
06/17/2014 06/24/2014

565 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 05/20/2014)
569 NOTICE of Government's Classified Memorandum In Opposition to Defendant's Motion to Suppress Evidence Obtained or Derived From Surveilance Under the FISA Amendments Act and Motion for Discovery by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 05/22/2014)
570 ORDER Concerning Disclosure of Grand Jury Material as to Jamshid Muhtorov, Bakhtiyor Jumaev by Judge John L. Kane on 05/27/14. (jhawk, ) (Entered: 05/28/2014)
573 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 05/30/2014)
575 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 5/30/2014. (shugh) (Entered: 06/03/2014)
574 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 06/02/2014)
577 NOTICE Defendant Muhtorov's Proposed Briefing Schedule to Complete Briefing on Mr. Muhtorov's Motion to Suppress by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev (Stimson, Kathryn) (Entered: 06/04/2014)
585 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 6/4/2014. (shugh) (Entered: 06/13/2014)
580 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 06/09/2014)
584 MOTION for Order Requiring Government to Disclose or Provide His Counsel Access to Its Classified Pleadings and Objection to Ex Parte Proceedings by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Stimson, Kathryn) (Entered: 06/12/2014)
591 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 6/17/2014. (shugh) (Entered: 06/19/2014)
607 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 6/24/2014. (shugh) (Entered: 07/14/2014)

06/24/2014 06/30/2014 07/02/2014
07/02/2014 07/03/2014 07/07/2014 07/15/2014 07/21/2014 07/21/2014 07/22/2014 07/25/2014

608 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 6/24/2014. (shugh) (Entered: 07/14/2014)
598 CJA 21/31 Payment Request as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 06/30/2014)
600 RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 584 MOTION for Order Requiring Government to Disclose or Provide His Counsel Access to Its Classified Pleadings and Objection to Ex Parte Proceedings, 590 MOTION for Disclosure Defendant Bakhtiyor Jumaev's Motion to Require the Government to Disclose, or Otherwise Provide Him Access to, its Classified Pleadings (Doc. 569) and Objection to the Ex Parte, In Camera Submission to and Final Determina (Holloway, Gregory) (Entered: 07/02/2014)
601 SUPPLEMENT Authority to 559 Response to Motion, 569 Notice (Other), by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Holloway, Gregory) (Entered: 07/02/2014)
602 REPLY by Jamshid Muhtorov to 559 Response to Motion, 569 Notice (Other), (Williamson, Warren) (Entered: 07/03/2014)
610 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 7/7/2014. (shugh) (Entered: 07/14/2014)
614 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 07/15/2014)
616 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 07/21/2014)
623 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 7/21/2014. (shugh) (Entered: 07/31/2014)
617 SUPPLEMENT Defendant's Supplemental Authority in Support of his Reply to Government's Response to 602 Reply by Jamshid Muhtorov (Attachments: # 1 Attachment, # 2 Attachment)(Williamson, Warren) (Entered: 07/22/2014)
619 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 07/25/2014)

07/25/2014 07/28/2014
08/01/2014 08/20/2014 08/20/2014 08/21/2014 08/26/2014 08/29/2014 08/31/2014 09/01/2014 09/12/2014 09/22/2014 09/22/2014 10/20/2014

626 CJA 21/31 Authorization for Service as to Jamshid Muhtorov by Judge John L. Kane on 7/25/2014. (shugh) (Entered: 08/13/2014)
620 NOTICE OF ATTORNEY APPEARANCE: Patrick C. Toomey appearing for Jamshid MuhtorovAttorney Patrick C. Toomey added to party Jamshid Muhtorov(pty:dft) (Toomey, Patrick) (Entered: 07/28/2014)
625 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 08/01/2014)
627 MOTION for Order Directing He be Returned to the Denver Detention Center by Jamshid Muhtorov. (Attachments: # 1 Attachment)(Williamson, Warren) (Entered: 08/20/2014)
632 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 8/20/2014. (shugh) (Entered: 08/27/2014)
629 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 08/21/2014)
631 ORDER denying 627 Motion for Order re: Facility Transfer as to Jamshid Muhtorov (1) by Judge John L. Kane on 08/26/14. (jhawk, ) (Entered: 08/26/2014)
637 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 8/29/2014. (shugh) (Entered: 09/10/2014)
633 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 08/31/2014)
634 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 09/01/2014)
642 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 9/12/2014. (shugh) (Entered: 09/22/2014)
643 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 9/22/2014. (shugh) (Entered: 09/24/2014)
644 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 9/22/2014. (shugh) (Entered: 09/24/2014)
653 Joint MOTION for Order for Notice of the Surveillance Techniques Utilized by the Government in its Investigation of said Defendants by

10/28/2014 10/31/2014 10/31/2014 10/31/2014 11/03/2014
11/07/2014

Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Williamson, Warren) (Entered: 10/20/2014)
658 MOTION for Order to Adopt Codefendant's Motion, Doc. 652 by Jamshid Muhtorov. (Williamson, Warren) Modified on 1/15/2016 to term pursuant to the instruction of JLK (jhawk, ). (Entered: 10/28/2014)
659 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 10/31/2014)
660 UNRESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified on 11/13/2014 to unrestrict pursuant to doc #669 (jhawk, ). (Entered: 10/31/2014)
661 UNRESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Holloway, Gregory) Modified on 1/15/2016 pursuant to doc 669 (jhawk, ). (Entered: 10/31/2014)
663 MINUTE ORDER as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2) re Docs. 659 & 661. Document 661 is a Restricted filing entitled Government's Motion to Clarify Protective Order., filed re Extrajudicial Statements The Government's Motion to Clarify and Motion for. Government's Motion (Doc. 660) to Restrict Doc. 661, filed October 31, 2014, is GRANTED. The government's Document 661, a Motion for Clarification of the Court's Protective Order, shall remain restricted to the public at Restriction Level 1. FURTHER ORDERED that a Response to the Government's Motion for Clarification (Doc. 661) is due on or before November 12, 2014. Any Reply is due on or before November 19, 2014. After reviewing these filings, the Court may set the matter for hearing by Judge John L. Kane on 11/03/14. Text Only Entry (jhawk, ) (Entered: 11/03/2014)
667 MINUTE ORDER. Defendant Bakhtiyor Jumaev has filed a Response (Doc. 664) to the Government's Motion to Clarify (Doc. 661), together with a Motion (Doc. 665) to Restrict the Response and a Brief in Support of the Motion to Restrict (Doc. 666). It appears from Mr. Jumaev's filings that he disagrees with the Restricted status afforded the government's Motion to Clarify Protective Order. The parties are therefore directed to CONFER regarding the restricted status of Docs. 660, 661, 664, and 666. The parties shall file a Joint Status Report stating the result of their discussion on or before Wednesday, November 12, 2014. Given the Court's antipathy for restricting the public's access to court filings generally, the preference would be for lifting the existing restrictions rather than imposing more. Entered by

11/12/2014
11/13/2014 11/20/2014 11/20/2014
12/03/2014
12/03/2014 12/09/2014 12/15/2014 01/22/2015 02/06/2015

Judge John L. Kane on 11/07/14. Text Only Entry (jhawk, ) (Entered: 11/07/2014)
669 MINUTE ORDER as to Jamshid Muhtorov, and Bakhtiyor Jumaev. At the direction of chambers and pursuant to the parties' Status Report Re Restrict Status of Pleadings Related to Government's Motion to Clarify [Doc. 668], the restricted status of Documents 660, 661, 664, and 666 is lifted, by Judge John L. Kane on 11/12/2014. Text Only Entry. (agarc, ) (Entered: 11/12/2014)
672 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 11/13/2014)
678 Joint MOTION for Order Parties' Joint Proposed Briefing Schedule by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Williamson, Warren) (Entered: 11/20/2014)
679 MINUTE ORDER adopting as an ORDER of the Court the Joint Proposed Briefing Schedule submitted by the parties (Doc. 678). The Government's responses to the Motions found at Docs. 652, 653, and 658 are due on or before February 26, 2015. Any Replies by Defendants are due on or before April 24, 2015. Entered by Judge John L. Kane on 11/20/14. Text Only Entry (jhawk, ) (Entered: 11/20/2014)
684 MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. Given the nature of the filings and counsel's acknowledgments regarding the same in the 11/12/14 Joint Status Report (Doc. 668) the restricted status of Docs. 660, 661, and 666 is LIFTED. Entered by Judge John L. Kane on 12/03/14. Text Only Entry (jhawk, ) (Entered: 12/03/2014)
685 ORDER on Government's Motion for Clarification 661 as to Jamshid Muhtorov, Bakhtiyor Jumaev by Judge John L. Kane on 12/02/14. (jhawk, ) (Entered: 12/03/2014)
687 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 12/09/2014)
694 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 12/15/2014. (shugh) (Entered: 02/06/2015)
705 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 1/22/2015. (shugh) (Entered: 02/12/2015)
701 Joint MOTION for Order Defendants' Joint Request that an Order Enter Requiring Their Statements Be Provided by the Government by

02/10/2015 02/18/2015 02/23/2015 02/26/2015
02/26/2015 02/26/2015 02/26/2015 03/10/2015 03/19/2015 03/23/2015 04/14/2015 04/24/2015

Jamshid Muhtorov, Bakhtiyor Jumaev. (Williamson, Warren) (Entered: 02/06/2015)
702 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment, # 2 CJA Attachment)(Stimson, Kathryn) (Entered: 02/10/2015)
706 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 02/18/2015)
709 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 02/23/2015)
711 RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 652 MOTION for Disclosure of 404(b) Evidence First MOTION for Order Defendant Jumaev's Motion Requiring the Government to Provide Notice of Interceptions and/or Surveillance of His Defense Counsel and Members of His Defense Team, 653 Joint MOTION for Order for Notice of the Surveillance Techniques Utilized by the Government in its Investigation of said Defendants (Holloway, Gregory) (Entered: 02/26/2015)
712 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 02/26/2015)
713 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 02/26/2015)
714 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 02/26/2015)
725 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 3/10/2015. (shugh) (Entered: 03/27/2015)
733 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 3/19/2015. (shugh) (Entered: 04/15/2015)
723 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 03/23/2015)
730 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 04/14/2015)
739 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 04/24/2015)

04/24/2015 04/27/2015
04/30/2015 05/13/2015 05/21/2015 05/22/2015 06/09/2015
06/17/2015 06/17/2015

740 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 04/24/2015)
742 REPLY TO RESPONSE to Motion by Jamshid Muhtorov, Bakhtiyor Jumaev re 653 Joint MOTION for Order for Notice of the Surveillance Techniques Utilized by the Government in its Investigation of said Defendants (Williamson, Warren) Modified to restrict the document at Level 2 on 4/27/2015 (tshea, ). Modified on 5/24/2016 to unrestrict pursuant to JLK Chambers instruction (jhawk, ). Modified on 6/30/2016 to restrict pursuant to the Order of 06/30/16 (jhawk, ). (Entered: 04/27/2015)
759 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 4/30/2015. (shugh) (Entered: 05/27/2015)
748 NOTICE of Supplemental Authority by Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Williamson, Warren) (Entered: 05/13/2015)
752 NOTICE of Supplemental Authority in Support of Defendants' Joint Motion for Motion for Notice of the Surveillance Techniques Utilized by the Government in its Investigation (Doc. 653) by Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Attachment)(Williamson, Warren) (Entered: 05/21/2015)
754 MOTION for Order to Unrestrict Doc. 742 by Jamshid Muhtorov, Bakhtiyor Jumaev. (Williamson, Warren) Modified on 5/24/2016 to term pursuant to Chambers instruction (jhawk, ). Modified on 6/30/2016 to add gavel pursuant to the Order of 06/30/16 (jhawk, ). (Entered: 05/22/2015)
764 MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. This matter is set for a Status Conference/Motions Hearing on June 17, 2015, at 3:00 p.m. in Courtroom A802, Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado. The court will address the restriction of documents and case management expectations. Entered by Judge John L. Kane on 06/09/15. (jhawk, ) (Entered: 06/09/2015)
768 RESPONSE in Opposition by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 701 Joint MOTION for Order Defendants' Joint Request that an Order Enter Requiring Their Statements Be Provided by the Government (Holloway, Gregory) (Entered: 06/17/2015)
770 MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 6/17/2015 as to Jamshid Muhtorov and

06/17/2015 06/25/2015
06/26/2015 07/01/2015 07/01/2015 07/01/2015 07/01/2015

Bakhtiyor Jumaev. Defendants present in custody. Denying 584 Motion for Order as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Defendants are REMANDED. Court Reporter: Mary George. Interpreter: Yuliya Fedasenka. (babia) (Entered: 06/19/2015)
771 AMENDED MINUTE ENTRY for proceedings held before Judge John L. Kane on 6/17/2015 as to Jamshid Muhtorov, Bakhtiyor Jumaev. Denying Without Prejudice 653 Motion for Order as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Court Reporter: Mary George. Interpreter: Yuliya Fedasenka. (babia) (Entered: 06/22/2015)
774 TRANSCRIPT of Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on June 17, 2015 before Judge Kane. Pages: 113.
NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (mgeor, ) Modified on 7/2/2015 to correct text (jhawk, ). (Main Document 774 replaced on 6/22/2016) (kweck, ). Modified on 6/22/2016 to add docket text (jhawk, ). (Entered: 06/25/2015)
775 CJA 24 Transcript Request as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 06/26/2015)
776 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 07/01/2015)
777 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 07/01/2015)
778 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 07/01/2015)
779 MINUTE ORDER. Granting Government's Motion to Restrict Document (778) 776 . Documents 777 and 778 will remain under

07/02/2015
07/16/2015 07/20/2015 07/28/2015 08/07/2015
08/07/2015 08/07/2015 08/07/2015 08/19/2015
08/24/2015

Level 1 Restriction. The Court grants requests outlined in Document 778 as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Entered by Judge John L. Kane on 07/01/15. Text Only Entry (jhawk, ) (Entered: 07/01/2015)
780 RESPONSE by Jamshid Muhtorov re: 778 Restricted Document Level 1 filed by USA Opposition to the Government's Restricted Motion (778) and Order Entered Granting It (Williamson, Warren) (Entered: 07/02/2015)
783 MOTION for Reconsideration of Bail Based on the Extraordinary Length of Pretrial Detention by Jamshid Muhtorov. (Williamson, Warren) (Entered: 07/16/2015)
784 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 07/20/2015)
803 CJA 21/31 Authorization for Service as to Jamshid Muhtorov by Judge John L. Kane on 7/28/2015. (shugh) (Entered: 08/17/2015)
799 RESPONSE to Motion by USA as to Jamshid Muhtorov re 783 MOTION for Reconsideration of Bail Based on the Extraordinary Length of Pretrial Detention (Holloway, Gregory) (Entered: 08/07/2015)
800 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov. (Holloway, Gregory) (Entered: 08/07/2015)
801 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov (Holloway, Gregory) (Entered: 08/07/2015)
802 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit, # 2 Exhibit)(Holloway, Gregory) (Entered: 08/07/2015)
809 ORDER denying 783 Motion for Reconsideration of Bailed Based on the Extraordinary Length of Pretrial Detention as to Jamshid Muhtorov (1). Entered by Judge John L. Kane on 08/19/15. (jhawk, ) (Entered: 08/19/2015)
813 MOTION for Order For Immediate Hearing on Violation of Attorney Client Privilege - Otabek Hasanov and The F.B.I. by Jamshid Muhtorov. (Attachments: # 1 Attachment A, # 2 Attachment B)(Williamson, Warren) (Entered: 08/24/2015)

08/25/2015 08/26/2015 08/26/2015
09/03/2015 09/08/2015
09/11/2015 09/18/2015 09/18/2015 09/24/2015

814 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 08/25/2015)
815 CJA 24 Transcript Request as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 08/26/2015)
816 MINUTE ENTRY for Ex Parte proceedings held in chambers at 1:30 p.m. on August 26, 2015. The purpose of the meeting was the discussion of necessary transcript and document redactions to accommodate classified information. Those in attendance included counsel of record for the government, the court's Classified Information Security Officer and other government counsel. The meeting concluded at 3:25 p.m. Entered by Judge John L. Kane on 08/26/15. Text Only Entry (jhawk, ) (Entered: 08/27/2015)
824 NOTICE (JOINT) of Statutory Prohibition and Supplemental Motion for Discovery by Jamshid Muhtorov (Williamson, Warren) (Entered: 09/03/2015)
826 MINUTE ORDER The Government is ORDERED to file responses to Defendants' Motion for Immediate Hearing on Violation of Attorney Client Privilege Doc. 813 , Defendant Jumaev's Motion for an Evidentiary Hearing Doc. 825 , as well as responding to Defendants' Joint Notice of Statutory Prohibition and Supplemental Motion for Discovery Doc. 824 by Friday, September 18, 2015. Entered by Judge John L. Kane on 9/8/2015. Text Only Entry (evana, ) (Entered: 09/08/2015)
829 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 09/11/2015)
832 RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 825 MOTION for Hearing Evidentiary Hearing Regarding Otabek Hasanov, 813 MOTION for Order For Immediate Hearing on Violation of Attorney Client Privilege - Otabek Hasanov and The F.B.I. (Holloway, Gregory) (Entered: 09/18/2015)
833 RESPONSE by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re: 824 Notice (Other) filed by Jamshid Muhtorov (Holloway, Gregory) (Entered: 09/18/2015)
842 ORDER as to Jamshid Muhtorov. The Court is in receipt of several letters/documents sent to it directly from Mr. Muhtorov without reference to counsel. These documents are not being filed into the Courts CM/ECF system, but are being forwarded to defense counsel with an admonition that Mr. Muhtorov has appointed counsel, and all

09/25/2015
09/30/2015 10/01/2015
10/14/2015 10/26/2015 10/26/2015 10/26/2015 10/27/2015 10/28/2015 10/29/2015

court filings must go through them. Signed by Judge John L. Kane on 09/24/15. (jhawk, ) (Entered: 09/24/2015)
843 MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. The Court would like to set a Status Conference/Motions Hearing on Docket No. 774. Counsel are directed to call in JOINTLY on or before October 1, 2015, to set a date and time for the conference, 303-8446118. Entered by Judge John L. Kane on 09/25/15. Text Only Entry (jhawk, ) (Entered: 09/25/2015)
845 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 09/30/2015)
846 MINUTE ORDER: An In Court Hearing is SET as to Jamshid Muhtorov, Bakhtiyor Jumaev for 10:00 AM on December 2, 2015, in Courtroom A802 of the Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado, before Judge John L. Kane. Entered by Judge John L. Kane on 10/01/15. Text Only Entry (jhawk, ) (Entered: 10/01/2015)
875 CJA 21/31 Payment Authorization as to Jamshid Muhtorov, by Judge John L. Kane on 10/14/2015. (tscha, ) (Entered: 11/09/2015)
855 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 10/26/2015)
856 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 10/26/2015)
857 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Proposed Order (PDF Only), # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Holloway, Gregory) (Entered: 10/26/2015)
877 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 10/27/2015. (tscha, ) (Entered: 11/10/2015)
858 ORDER granting 855 Motion for Leave to Restrict as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Entered by Judge John L. Kane on 10/28/2015. (agarc, ) (Entered: 10/28/2015)
859 MINUTE ORDER. A Status Conference regarding Document No. 857 is set for Friday, October 30, 2015, at 1:00 p.m. at 901 19th Street, Courtroom A802, Denver, Colorado, before Judge John L. Kane. Defendants are required to attend the hearing. Entered by Judge

10/30/2015 10/30/2015
11/03/2015 11/03/2015 11/03/2015 11/03/2015 11/04/2015 11/04/2015 11/04/2015 11/05/2015

John L. Kane on 10/29/15. Text Only Entry (jhawk, ) (Entered: 10/29/2015)
860 RESTRICTED DOCUMENT - Level 1. (jhawk, ) (Entered: 11/02/2015)
861 Courtroom Minutes for Closed to the Public Status Conference held before Judge John L. Kane as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 10/30/2015. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky. (jhawk, ) Text Only Entry (Entered: 11/02/2015)
862 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 11/03/2015)
863 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 11/03/2015)
864 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 11/03/2015)
865 ORDER granting 862 Motion for Leave to Restrict as to Bakhtiyor Jumaev (2). Access to Docket 864 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 11/03/15. (jhawk, ) (Entered: 11/03/2015)
868 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) Modified on 11/5/2015 to term motion pursuant to the order of 11/05/15, as our system won't term it. (jhawk, ). (Entered: 11/04/2015)
869 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 11/04/2015)
870 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 11/04/2015)
872 ORDER granting 868 Motion for Leave to Restrict as to Bakhtiyor Jumaev (2). Access to Docket 870 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 11/05/15. (jhawk, ) (Entered: 11/05/2015)

11/10/2015 11/10/2015 11/19/2015 11/25/2015
11/25/2015 11/25/2015 11/30/2015 11/30/2015 11/30/2015 11/30/2015 12/01/2015

878 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 11/10/2015)
879 NOTICE of Government's Ex Parte Filing of Additional Materials with The Court Relating to Documents 559 and 569 by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified to add linkage on 11/12/2015 (agarc, ). (Entered: 11/10/2015)
885 Order Denying Motion to Suppress Evidence Obtained or Derived Under FISA Amendments Acts or for Discovery re: 520 . Signed by Judge John L. Kane on 11/19/15. (jhawk, ) (Entered: 11/19/2015)
888 RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov, Bakhtiyor Jumaev as to Jamshid Muhtorov (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Attachment D, # 5 Attachment E)(Williamson, Warren) (Entered: 11/25/2015)
889 RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov, Bakhtiyor Jumaev as to Jamshid Muhtorov (Williamson, Warren) (Entered: 11/25/2015)
890 Joint MOTION for Leave to Restrict by Jamshid Muhtorov. (Attachments: # 1 Proposed Order (PDF Only))(Williamson, Warren) (Entered: 11/25/2015)
891 ORDER granting Defendants' 890 Motion for Leave to Restrict. Access to Docket Nos. 888 and 889 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 11/30/15. (jhawk, ) (Entered: 11/30/2015)
892 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 11/30/2015)
893 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 11/30/2015)
894 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 11/30/2015)
895 ORDER granting 892 Motion for Leave to Restrict as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Access to Docket Nos. 893 and 894 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 12/01/15. (jhawk, ) (Entered: 12/01/2015)

12/01/2015
12/02/2015 12/02/2015
12/04/2015 12/04/2015 12/07/2015 12/10/2015 12/10/2015

896 TRANSCRIPT of Motion Hearing as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 10/30/2015 before Judge Kane. Pages: 1-26. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 12/01/2015)
898 RESTRICTED DOCUMENT - Level 1: re Jamshid Muhtorov, Bakhtiyor Jumaev. (jhawk, ) (Entered: 12/02/2015)
899 Courtroom Minutes for proceedings held before Judge John L. Kane: In Court Hearing as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 12/2/2015. ORDERED: Government's Request 870 is GRANTED, as specified. Transcripts shall be surrendered, as specified. ORDERED: Government shall file an AMENDED Protective Order, as specified. ORDERED: Government's Motion 864 is DENIED as MOOT. ORDERED: An In Court hearing is set for Monday, January 4, 2016 at 9:00 a.m. ORDERED: Defendants are REMANDED to the custody of the United States Marshal for the District of Colorado. Court Reporter: Terri Lindblom. Interpreter: Yuliya Fedasenka-Cloud and Alla Seletskaya. (jhawk, ) (Entered: 12/03/2015)
900 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 12/04/2015)
901 NOTICE OF ATTORNEY APPEARANCE Kiersten Jennifer Korczynski appearing for USA. Attorney Kiersten Jennifer Korczynski added to party USA(pty:pla) (Korczynski, Kiersten) (Entered: 12/04/2015)
912 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 12/7/2015. (shugh) (Entered: 12/31/2015)
902 NOTICE of Compliance by Jamshid Muhtorov (Williamson, Warren) (Entered: 12/10/2015)
903 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 12/10/2015)

12/11/2015
12/14/2015 01/05/2016 01/11/2016 01/12/2016 01/13/2016 01/15/2016 01/15/2016

905 TRANSCRIPT of Motion Hearing as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 12/02/2015 before Judge Kane. Pages: 1-40. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 12/11/2015)
933 CJA 21/31 Authorization for Service as to Jamshid Muhtorov by Judge John L. Kane on 12/14/2015. (shugh) (Entered: 01/20/2016)
916 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 01/05/2016)
917 SECOND SUPERSEDING PROTECTIVE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. Signed by Judge John L. Kane on 1/11/2016. (agarc, ) (Entered: 01/11/2016)
919 MINUTE ENTRY for proceedings held before Judge John L. Kane: Ex Parte In-Court Hearing as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 1/12/2016. Court Reporter: Terri Lindblom. (agarc, ) (Entered: 01/12/2016)
920 Objection Defendants' Joint Objections to Entry of the Second Superseding Protective Order (Doc. 917) and Motion for its Withdrawal and Reconsideration by Jamshid Muhtorov, Bakhtiyor Jumaev re 917 Order (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Savitz, David) (Entered: 01/13/2016)
921 MINUTE ORDER. Discovery is ongoing. Therefore, the Motions contained in the Court's Docket Nos. 652 , 701 and 743 are DENIED with leave to refile at a later date as Motions to Compel, if appropriate. Entered by Judge John L. Kane on 01/15/16. Text Only Entry (jhawk, ) (Entered: 01/15/2016)
922 ORDER granting 800 Motion for Leave to Restrict as to Jamshid Muhtorov (1). Access to Docket Nos. 801 and 802 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 01/15/16. (jhawk, ) (Entered: 01/15/2016)

01/15/2016
01/15/2016
01/15/2016 01/19/2016 01/19/2016 01/19/2016
01/22/2016
01/25/2016 02/05/2016 03/01/2016 03/01/2016 03/03/2016

923 Minute ORDER denying as moot documents 458 , 590 , 813 , 825 as to Jamshid Muhtorov (1) and Bakhtiyor Jumaev (2). Pursuant to JLK Chambers instruction. Text Only Entry (jhawk, ) (Entered: 01/15/2016)
924 ORDER granting 712 Motion for Leave to Restrict as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Access to Docket Nos. 713 and 714 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 01/15/16. (jhawk, ) (Entered: 01/15/2016)
925 Minute ORDER re 701 Motion for Order as to Bakhtiyor Jumaev (2). Pursuant to document #921. on 01/15/16. Text Only Entry (jhawk, ) (Entered: 01/19/2016)
929 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 01/19/2016)
930 CJA 24 Transcript Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 01/19/2016)
931 ORDER granting 928 Motion for Leave to Restrict as to Bakhtiyor Jumaev (2). Access to Docket Nos. 926 and 927 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 1/19/16. (jhawk, ) (Entered: 01/20/2016)
935 RESPONSE by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re: 920 Objection (Other), filed by Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Proposed Order (PDF Only))(Holloway, Gregory) (Entered: 01/22/2016)
956 CJA 24 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 01/25/2016. (sglee, ) (Entered: 02/26/2016)
944 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 02/05/2016)
962 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 03/01/2016)
963 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 03/01/2016)
966 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 03/03/2016)

03/03/2016

967 ORDER granting 962 Motion for Leave to Restrict as to Jamshid Muhtorov (1) and Bakhtiyor Jumaev (2). Access to Docket Nos. 963 and 964 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 03/03/16. (jhawk, ) (Entered: 03/03/2016)

03/21/2016 980 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 3/21/16. (limart, ) (Entered: 04/04/2016)

03/24/2016

972 Joint MOTION for Order To Set Pretrial Deadlines and Trial Date Pursuant to a Scheduling Order by Jamshid Muhtorov, Bakhtiyor Jumaev. (Savitz, David) (Entered: 03/24/2016)

03/24/2016

973 ORDER granting 972 Motion to Set Pretrial Deadlines and a Trial Date as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). The parties are ordered to meet and confer on or before May 5, 2016. The parties shall submit a proposed scheduling order on or before June 1, 2016. The parties are ordered to call chambers JOINTLY on or before June 8, 2016, to set a date and time for a status conference. Signed by Judge John L. Kane on 03/24/16. (jhawk, ) (Entered: 03/24/2016)

04/05/2016 981 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 04/05/2016)

04/06/2016 982 CJA 21/31 Payment Request as to Jamshid Muhtorov. (Attachments: # 1 CJA Attachment)(Stimson, Kathryn) (Entered: 04/06/2016)

04/07/2016 995 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 4/7/16. (limart) (Entered: 04/20/2016)

04/13/2016 990 NOTICE of Change of Address/Contact Information (Stimson, Kathryn) (Entered: 04/13/2016)

04/13/2016 991 NOTICE of Change of Address/Contact Information (Amended) (Stimson, Kathryn) (Entered: 04/13/2016)

04/29/2016 999 CJA 20/30 Payment Request as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 04/29/2016)

05/04/2016

1000

MOTION for Order Government's Motion for Tolling of Speedy Trial Pursuant to 18 U.S.C. Section 3161(h)(7)(B)(ii) by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 05/04/2016)

05/13/2016

1010 MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. The parties are directed to call chambers jointly on or before May 25, 2016, to set a Motion Hearing date regarding Defendants' Joint

Objections to Entry of the Second Superseding Protective Order (Doc. 917) and Motion for its Withdrawal and Reconsideration (Doc. 920) and related documents - 303-844-6118. Ordered by Judge John L. Kane on 5/13/2016. Text Only Entry (jlksec) (Entered: 05/13/2016)

05/18/2016 1013 CJA 21/31 Request for Service as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 05/18/2016)

05/18/2016

1014

Third Superseding Indictment as to Jamshid Muhtorov (1) count(s) 1sss-4sss, 5sss, 6sss, Bakhtiyor Jumaev (2) count(s) 1ss-2ss, 5ss, 6ss. (Attachments: # 1 Criminal Information Sheet, # 2 Criminal Information Sheet) (jhawk, ) (Entered: 05/19/2016)

05/18/2016 1015 RESTRICTED DOCUMENT - Level 4: by Jamshid Muhtorov, Bakhtiyor Jumaev. (jhawk, ) (Entered: 05/19/2016)

05/19/2016

1016

MINUTE ORDER Setting Re-Arraignment on Third Superseding Indictment 1014 for 6/1/2016 02:00 PM before Magistrate Judge Shaffer as to Jamshid Muhtorov, Bakhtiyor Jumaev. Text Only Entry on 05/19/16 (jhawk, ) (Entered: 05/19/2016)

05/24/2016

1020 MINUTE ORDER. This matter is set for a Status Conference/Motions Hearing on June 7, 2016, at 10:00 a.m. in Courtroom A802. Entered by Judge John L. Kane on 05/24/16. (jhawk, ) (Entered: 05/24/2016)

05/31/2016 1026 STATEMENT Regarding Scheduling Order: Government's Proposed Scheduling Order by Plaintiff USA (Holloway, Gregory) (Entered: 05/31/2016)

06/01/2016

1027

COURTROOM MINUTES for proceedings held before Magistrate Judge Craig B. Shaffer: Re-Arraignment on Third Superseding Indictment as to Jamshid Muhtorov held on 6/1/2016. Defendant present in custody. Interpreter sworn. Defendant advised of new charges. Defendant waives further reading of indictment. Plea of NOT GUILTY entered by defendant. Defendant remanded. (Total time: 5 minutes, Hearing time: 2:11-2:16 p.m.)

APPEARANCES: Greg Holloway on behalf of the Government, Brian Leedy, Rick Williamson, Kathryn Stimson on behalf of the defendant. FTR: CRIMINAL DUTY PM. Interpreter: Irina Kamensky. (amont, ) Text Only Entry (Entered: 06/01/2016)

06/01/2016 1040 CJA 21/31 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 6/1/2016. (shugh) (Entered: 06/17/2016)
06/07/2016 1032 COURTROOM MINUTES for Status Conference / Motions Hearing as to Jamshid Muhtorov and Bakhtiyor Jumaev held before Judge

John L. Kane on 6/7/2016. Granting 1000 Government's Motion for Tolling of Speedy Trial as to Jamshid Muhtorov and Bakhtiyor Jumaev. On or before 6/16/2016, Government shall file its objections to Motion for Disclosure of Grand Jury Materials. Court adopts Scheduling Order. Four week Jury Trial set for 3/13/2017 09:00 AM in Courtroom A 802 before Judge John L. Kane. Five day Suppression Hearing set for 1/9/2017 at 10:00 AM in Courtroom A 802 before Judge John L. Kane. Counsel shall submit their at issue memorandums no later than 6/30/2016. Defendants remanded. Court Reporter: Terri Lindblom. Interpreters: Yuliya Fedasenka-Cloud and Sanjar Babadjanov. (ebuch) (Entered: 06/07/2016)

06/09/2016 1035 MOTION for Disclosure of Grand Jury Materials by Jamshid Muhtorov. (Leedy, Brian) (Entered: 06/09/2016)

06/10/2016

1037

MOTION for Extension of Time to File Response/Reply as to 1035 MOTION for Disclosure of Grand Jury Materials, 1025 MOTION to Disclose Grand Jury Material to Defendant Defendant Bakhtiyor Jumaev's Motion for Disclosure of Grand Jury Materials by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 06/10/2016)

06/10/2016

1038

ORDER GRANTING 1037 Government's Motion to Enlarge Time for Filing a Response to Defendants' Motions for Disclosure of Grand Jury Materials as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). The Government's response(s) to the pending Motions (Doc. 1025) and (Doc. 1035) are due on or before June 23, 2016. Ordered by Judge John L. Kane on 6/10/2016. Text Only Entry (jlksec) (Entered: 06/10/2016)

06/14/2016 1039 Third Superseding Protective Order as to Jamshid Muhtorov, Bakhtiyor Jumaev. Signed by Judge John L. Kane on 06/14/16. (jhawk, ) (Entered: 06/14/2016)

06/20/2016 1047 CJA 20/30 Payment Authorization as to Jamshid Muhtorov by Judge John L. Kane on 6/20/2016. (shugh) (Entered: 06/23/2016)

06/23/2016

1048

RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 1035 MOTION for Disclosure of Grand Jury Materials, 1025 MOTION to Disclose Grand Jury Material to Defendant Defendant Bakhtiyor Jumaev's Motion for Disclosure of Grand Jury Materials (Holloway, Gregory) (Entered: 06/23/2016)

06/30/2016 1057 NOTICE of Defendant Muhtorov's At Issue Memorandum by Jamshid Muhtorov (Williamson, Warren) (Entered: 06/30/2016)

06/30/2016 1059 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 06/30/2016)

06/30/2016

1060 Amended MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 06/30/2016)

06/30/2016 1061 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 06/30/2016)

06/30/2016

1062

UNRESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified on 6/30/2016 unrestricted pursuant to the Order of 06/30/16 and Chambers instructions (jhawk, ). (Entered: 06/30/2016)

06/30/2016

1063

ORDER. Government's Motion to [re-]Restrict Document 742 (Doc. 1062 ) pending resolution of defendants' motion to unrestrict it is GRANTED. The Clerk shall re-restrict Doc. 742 , signal that Doc. 754 remains pending, and the parties shall CONFER and NOTIFY the Court of a preferred briefing schedule. Government's Amended Motion to Restrict Document No. 1062 (Doc. 1060 ) is DENIED. However, the brief (Doc. 1061 ) shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 06/30/16. (jhawk, ) (Entered: 06/30/2016)

06/30/2016

1064

MINUTE ORDER. Back in October 2014, Defendant Muhtorov filed a procedural motion (Doc. 658 ) seeking to "adopt," or join, in Defendant Jumaev's Motion Requiring the Government ot Provide Notice of Interceptions and/or Surveillance of his Defense Counsel and Members of his Defense Team (Doc. 652 ). While the court denied Doc. 652 with leave to refile at a later date as a Motion to Compel and directed the Clerk to term Doc. 658 as moot, Mr. Jumaev reminds the court that Doc. 658 was never formally ruled on. Accordingly, and for the record, Mr. Muhtorov's Motion (Doc. 658 ) to Adopt a Motion (Doc. 652 ) that is not currently pending, is DENIED, as MOOT. Entered by Judge John L. Kane on 06/30/16. Text Only Entry (jhawk, ) (Entered: 06/30/2016)

06/30/2016

1065 NOTICE of Government's Notice of Items At Issue by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 06/30/2016)

06/30/2016 1066 NOTICE OF ATTORNEY APPEARANCE David Alan Tonini appearing for USA. Attorney David Alan Tonini added to party USA(pty:pla) (Tonini, David) (Entered: 06/30/2016)

07/13/2016

1068

TRANSCRIPT of Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 6/7/2016 before Judge Kane. Pages: 1-50. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 07/13/2016)

07/19/2016 1076 MOTION for Leave to Restrict by Jamshid Muhtorov. (Williamson, Warren) (Entered: 07/19/2016)

07/19/2016 1077 Amended MOTION for Leave to Restrict by Jamshid Muhtorov. (Williamson, Warren) (Entered: 07/19/2016)

07/19/2016 1078 Amended MOTION for Leave to Restrict by Jamshid Muhtorov. (Williamson, Warren) (Entered: 07/19/2016)

07/19/2016 1079 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (Williamson, Warren) (Entered: 07/19/2016)

07/19/2016

1080 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (Attachments: # 1 Attachment 1)(Williamson, Warren) (Entered: 07/19/2016)

07/20/2016 1081 ORDER granting 1078 Motion for Leave to Restrict as to Jamshid Muhtorov (1). Entered by Judge John L. Kane on 07/20/16. Text Only Entry (jhawk, ) (Entered: 07/20/2016)

07/20/2016 1082 RESTRICTED DOCUMENT - Level 3. (jhawk, ) (Entered: 07/20/2016)

07/21/2016

1083

ORDER Denying Motions 1025 and 1035 for Disclosure [Additional] Grand Jury Materials as to Jamshid Muhtorov and Bakhtiyor Jumaev (2). Signed by Judge John L. Kane on 07/21/16. (jhawk, ) (Entered: 07/21/2016)

07/22/2016 1084 MINUTE ORDER. The Government is DIRECTED to file its response to Defendants' Joint Motion to Unrestrict 742 754 on or before August 18, 2016. Defendants shall file their replies, if any, on

or before September 9, 2016. Entered by Judge John L. Kane on 0722/16. Text Only Entry (jhawk, ) (Entered: 07/22/2016)

08/17/2016

1086 ORDER Adopting Stipulation to Amend the Scheduling Order 1032 as to Jamshid Muhtorov, Bakhtiyor Jumaev. Signed by Judge John L. Kane on 08/17/16. (jhawk, ) (Entered: 08/17/2016)

08/18/2016 1087 RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 754 MOTION for Order to Unrestrict Doc. 742 (Holloway, Gregory) (Entered: 08/18/2016)

08/18/2016 1088 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 08/18/2016)

08/18/2016 1089 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 08/18/2016)

08/18/2016

1090

RESTRICTED DOCUMENT - Level 1-Response in Opposition to Defendants' Joint Motion to Unrestrict doc. 752 (doc. 754) by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified on 9/9/2016 to add text (jhawk, ). (Entered: 08/18/2016)

08/18/2016

1091

RESPONSE in Opposition to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 754 MOTION for Order to Unrestrict Doc. 742. (Public entry for restricted document 1090 filed on 08/18/16) Text only entry (jhawk, ) (Entered: 08/19/2016)

08/24/2016

1092

NOTICE to Defendants of In Camera, Ex Parte Under Seal Filing by the United States Pursuant to the Classified Information Procedures Act by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 08/24/2016)

08/25/2016

1093

MINUTE ENTRY for Ex Parte In Court Hearing proceedings held before Judge John L. Kane on 8/25/2016 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Pursuant to 1092 . Court Reporter: Terri Lindblom. (babia) (Entered: 08/25/2016)

08/29/2016 1094 Protective Order as to Jamshid Muhtorov, Bakhtiyor Jumaev. Signed by Judge John L. Kane on 08/29/16. (jhawk, ) (Entered: 08/29/2016)

09/09/2016 1095 Joint MOTION for Leave to Restrict by Jamshid Muhtorov, Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Leedy, Brian) Modified on 9/9/2016 to correct filers (jhawk, ). (Entered: 09/09/2016)

09/09/2016 1096 RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov, Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev (Leedy,

Brian) Modified on 9/9/2016 to correct filers (jhawk, ). (Entered: 09/09/2016)

09/09/2016

1097

RESTRICTED DOCUMENT - Level 1-Reply in Support of Their Motion to Unrestrict Document 742 by Jamshid Muhtorov, Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Attachment 1)(Leedy, Brian) Modified on 9/9/2016 to correct filers (jhawk, ). (Entered: 09/09/2016)

09/09/2016

1098

ORDER as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Order granting 1088 Motion for Leave to Restrict. Access to Docket Nos. 1089 and 1090 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1 (A). Signed by Judge John L. Kane on 09/9/16. (jhawk, ) (Entered: 09/09/2016)

09/09/2016

1099

ORDER as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Order granting 1095 Motion for Leave to Restrict. Access to Docket Nos. 1096 and 1097 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1 (A). Signed by Judge John L. Kane on 09/09/16. (jhawk, ) (Entered: 09/09/2016)

09/19/2016

1101

ORDER re: Stipulation to Modify Certain Provisions of the Scheduling Order 1100 as to Jamshid Muhtorov, Bakhtiyor Jumaev. The Rule 12 motions: October 14, 2016: deadline for filing of the defendants' Rule 12 Motions; November 14: deadline for filing of the government's responses to defendants' Rule 12 motions; and November 25, 2016: deadline for filing of defendants' replies to government's responses to Rule 12 motions; (B) The Suppression motions; November 7, 2016: deadline for filing of the defendants' suppression motions; December 7, 2016: deadline for filing of the government's responses to defendants' suppression motions; and December 16, 2016: deadline for filing of defendants' replies to the government's responses to the defendants' suppression motions. Except as noted by the foregoing modifications, the scheduling orders (Docs. 1032 and 1086 ) are re-adopted and re-affirmed. Signed by Judge John L. Kane on 09/19/16. (jhawk, ) (Entered: 09/20/2016)

09/30/2016

1103

ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. The Court having reviewed the stipulation (Doc. 1102 ) and being fully informed in this matter does hereby modify the scheduling order (Docs. 1032 , 1086 , and 1101 ) in the following respects only: discovery motions are to be filed on or before October 14, 2016; the governments response to be filed on or before October 28, 2016; and any defense reply to be filed on or before November 8, 2016. Except as noted by the foregoing modifications, the scheduling orders

(Docs. 1032 , 1086 and 1101 ) are re-adopted and re-affirmed. Signed by Judge John L. Kane on 09/30/16. (jhawk, ) (Entered: 09/30/2016)

09/30/2016

1104 NOTICE Government's Case in Chief Expert Disclosure by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Holloway, Gregory) (Entered: 09/30/2016)

10/03/2016

1105

MOTION for Order for Notice of the Surveillance Techniques Utilized by the Government in its Investigation by Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 Attachment)(Williamson, Warren) Modified on 10/3/2016 terminated as refiled in document 1107 (jhawk, ). (Entered: 10/03/2016)

10/03/2016

1106

Joint MOTION for Disclosure and Objection to Secret Litigation of Fourth Amendment Suppression Issues by Jamshid Muhtorov, Bakhtiyor Jumaev. (Williamson, Warren) Modified on 10/3/2016 Motion terminated and refiled in document 1108 (jhawk, ). (Entered: 10/03/2016)

10/03/2016 1107 Joint MOTION for Order for Notice of the Surveillance Techniques Utilized by the Government in its Investigation by Jamshid Muhtorov, Bakhtiyor Jumaev. (Williamson, Warren) (Entered: 10/03/2016)

10/03/2016

1108

Joint MOTION for Disclosure and Objection to Secret Litigation of Fourth Amendment Suppression Issues by Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 Attachment)(Williamson, Warren) (Entered: 10/03/2016)

10/04/2016

1109 Joint MOTION for Clarification and Reconsideration by Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Williamson, Warren) (Entered: 10/04/2016)

10/12/2016 1110 MOTION to Appoint Counsel by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Leedy, Brian) (Entered: 10/12/2016)

10/12/2016

1111

ORDER granting 1110 Motion to Appoint Counsel as to Jamshid Muhtorov (1). Brian R. Leedy is appointed to represent Mr. Muhtorov in his individual capacity as counsel under the Criminal Justice Act. Ordered by Judge John L. Kane on 10/12/2016. Text Only Entry (jlksec) (Entered: 10/12/2016)

10/14/2016

1113

WITHDRAWN RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 Exhibit Attachment A, # 2 Exhibit Attachment B)(Leedy, Brian) Modified on 10/24/2016 withdrawn pursuant to the minute order of 10/24/16 (jhawk, ). (Entered: 10/14/2016)

10/14/2016

1114

WITHDRAWN RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 Exhibit Attachment A)(Leedy, Brian) Modified on 10/24/2016 withdrawn pursuant to the minute order of 10/24/16 (jhawk, ). (Entered: 10/14/2016)

10/14/2016 1115 MOTION to Dismiss Count 5 of the Indictment by Jamshid Muhtorov. (Williamson, Warren) (Entered: 10/14/2016)

10/17/2016 1116 MOTION for Leave to Restrict by Jamshid Muhtorov. (Williamson, Warren) (Entered: 10/17/2016)

10/17/2016

1117

UNRESTRICTED DOCUMENT - Level 1: Brief in Support of 116 Motion for Leave to Restrict by Jamshid Muhtorov. (Williamson, Warren) Modified on 10/17/2016 to add title of document to and to unrestrict pursuant to 1119 Order (athom, ). (Entered: 10/17/2016)

10/17/2016

1118

RESTRICTED DOCUMENT - Level 1: Motion to Sever by Jamshid Muhtorov. (Williamson, Warren) Modified on 10/17/2016 to add title of document pursuant to chambers instructions (athom, ). (Entered: 10/17/2016)

10/17/2016

1119 ORDER granting in part and denying in part 1116 Motion for Leave to Restrict as to Jamshid Muhtorov. Signed by Judge John L. Kane on 10/17/2016. (athom, ) (Entered: 10/17/2016)

10/20/2016

1124

MINUTE ORDER. Defendants' Joint Motion to Supplement Doc. 1113 (Doc. 1122 ) and Defendants' Joint Motion to Supplement Doc. 1114 (Doc. 1123 ) are DENIED. Rather than clutter the docket with duplicative filings, the parties are directed to withdraw Nos. 1113 and 1114 and refile the supplements as corrected versions of the same. The refiled documents will be accepted as timely filed if they are received by Friday, October 21, 2016. Entered by Judge John L. Kane on 10/20/16. Text Only Entry (jhawk, ) Modified on 10/20/2016 to correct DUE DATE (jhawk, ). (Entered: 10/20/2016)

10/24/2016

1128

MINUTE ORDER granting Motion to Withdraw Doc. 1113 and Doc. 1114 (Doc. 1125 ). The Clerk is directed to withdraw Document Nos. 1113 and 1114 and mooting the motion contained therein. The documents have been refiled as Document Nos. 1126 and 1127. Entered by Judge John L. Kane on 10/24/16. Text Only Entry (jhawk, ) (Entered: 10/24/2016)

10/26/2016 1129 MOTION for Order Motion for Tolling of Speedy Trial Pursuant to 18 U.S.C., Section 3161(h)(7)(B)(ii) by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 10/26/2016)

10/27/2016

1130

ORDER granting 1129 Motion for Tolling of Speedy Trial as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). ORDERED that an additional 137 days SHALL BE EXCLUDED from speedy trial calculations pursuant to 18 U.S.C. § 3161 (h)(7)(B)(ii). Signed by Judge John L. Kane on 10/27/16. (jhawk, ) (Entered: 10/27/2016)

10/28/2016

1131

RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 1106 Joint MOTION for Disclosure and Objection to Secret Litigation of Fourth Amendment Suppression Issues (Holloway, Gregory) (Entered: 10/28/2016)

10/28/2016

1132

RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 1107 Joint MOTION for Order for Notice of the Surveillance Techniques Utilized by the Government in its Investigation (Holloway, Gregory) (Entered: 10/28/2016)

10/28/2016 1133 RESPONSE to Motion by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev re 1109 Joint MOTION for Clarification and Reconsideration (Holloway, Gregory) (Entered: 10/28/2016)

10/28/2016 1134 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 10/28/2016)

10/28/2016

1135

RESTRICTED DOCUMENT - Level 1-Response to 1126 by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified on 10/31/2016 to add text pursuant to JLK instructions (jhawk, ). (Entered: 10/28/2016)

10/28/2016

1137

ORDER granting 1134 Motion for Leave to Restrict as to Bakhtiyor Jumaev (2). Access to Docket No. 1135 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 10/28/16. (jhawk, ) (Entered: 10/31/2016)

11/01/2016 1141 NOTICE of Defendant's Expert Disclosures by Jamshid Muhtorov (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4)(Williamson, Warren) (Entered: 11/01/2016)

11/01/2016

1143

RESTRICTED DOCUMENT - Level 1-Proffer in Support of CoConspirator Statements Admissible by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit CO-CONSPIRATOR STATEMENTS)(Tonini, David) Modified on 11/2/2016 to add text (jhawk, ). (Entered: 11/01/2016)

11/01/2016 1144 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Tonini, David) (Entered: 11/01/2016)

11/01/2016

1146

ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES: re: 1143 Restricted Document - Level 1, filed by attorney David A. Tonini. The document is incorrectly formatted-DOUBLE SPACE ALL DOCUMENTS DO NOT REFILE THE DOCUMENT. Action to take - future documents must be filed pursuant to D.C.COLO.LCrR 49.3. (Text Only Entry) (jhawk, ) (Entered: 11/02/2016)

11/02/2016

1147

ORDER granting 1144 Motion for Leave to Restrict as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Access to Docket No. 1143 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 11/02/16. (jhawk, ) (Entered: 11/02/2016)

11/03/2016 1148 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 11/03/2016)

11/03/2016

1149

RESTRICTED DOCUMENT - Level 1-Response to Motion to Sever Case from Codefendant 1118 by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified on 11/4/2016 to add text (jhawk, ). (Entered: 11/03/2016)

11/04/2016

1150

ORDER granting 1148 Motion for Leave to Restrict as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Access to Docket No. 1143 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 11/04/16. (jhawk, ) (Entered: 11/04/2016)

11/04/2016

1153

CORRECTED ORDER re: 1150 as to Jamshid Muhtorov, Bakhtiyor Jumaev. Access to 1149 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 11/04/16. (jhawk, ) (Entered: 11/04/2016)

11/07/2016

1155 MOTION for Order for Defendant Muhtorov to Adopt the Arguments in Codefendant Jumaev's Motion to Suppress Doc. 1152 by Jamshid Muhtorov. (Williamson, Warren) (Entered: 11/07/2016)

11/07/2016 1156 MOTION to Suppress Statements by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Leedy, Brian) (Entered: 11/07/2016)

11/07/2016

1157

ORDER granting 1155 Defendant Muhtorov's Motion To Adopt the Arguments in Codefendant Jumaev's Motion to Suppress, Doc. 1152. Defendant Jamshid Muhtorov (1) is allowed to adopt the motion filed by Defendant Bakhtiyor Jumaev in Doc. 1152. Ordered by Judge John L. Kane on 11/7/2016. Text Only Entry (jlksec) (Entered: 11/07/2016)

11/07/2016 1158 REPLY by Jamshid Muhtorov to 1135 Restricted Document - Level 1 (Williamson, Warren) (Entered: 11/07/2016)

11/08/2016

1159 Joint MOTION for Leave to Restrict by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Williamson, Warren) (Entered: 11/08/2016)

11/08/2016

1160

UNRESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev (Williamson, Warren) Modified on 11/8/2016 unrestricted pursuant to the Minute Order of 11/08/16 (jhawk, ). (Entered: 11/08/2016)

11/08/2016

1161

RESTRICTED DOCUMENT - Level 1-Joint Reply to Motions 1107 and 1108 by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev (Williamson, Warren) Modified on 11/8/2016 to add description pursuant to JLK (jhawk, ). (Entered: 11/08/2016)

11/08/2016

1162

ORDER granting in part and denying in part 1159 Motion for Leave to Restrict as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). There is nothing private or restrictable in the brief in Support of the Motion to Restrict Access (Doc. 1160 ) and the Motion is DENIED. The Motion to Restrict Access to Defendants' Joint Reply to ECF Nos. 1107 and 1108 (Doc. 1161 ) is GRANTED and shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 11/08/16. (jhawk, ) (Entered: 11/08/2016)

11/08/2016

1166

ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES: re: 1161 Restricted Document - Level 1 filed by attorney Warren R. Williamson. The format for the attorneys signature block is not correct. DO NOT REFILE THE DOCUMENT. Action to take - future documents must be filed pursuant to D.C.COLO.LCr49.1(a) and 4.3(d) of the Electronic Case Filing Procedures (Criminal Cases). (Text Only Entry) (jhawk, ) (Entered: 11/09/2016)

11/14/2016

1168

UNRESTRICTED DOCUMENT - Level 1-Response Motion to Dismiss Count 5 of the Indictment 1115 by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Tonini, David) Modified on 11/15/2016 to add text pursuant to JLK instructions (jhawk, ). Modified on 12/8/2016 to unrestrict pursuant to the Order of 12/08/16(jhawk, ). (Entered: 11/14/2016)

11/16/2016 1169 MOTION to Unrestrict Document 1167 Restricted Document - Level 1 filed by USA, 1168 Restricted Document - Level 1 filed by USA by

USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Tonini, David) (Entered: 11/16/2016)

11/18/2016

1170

MOTION for Order Pursuant to Rule 16(d) for Confidential Human Source Protections by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 Exhibit, # 2 Proposed Order (PDF Only))(Holloway, Gregory) (Entered: 11/18/2016)

11/18/2016

1171

NOTICE to Defendants of In Camera, Ex Parte Under Seal Filing by the United States Pursuant to the Classified Information Procedures Act by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 11/18/2016)

11/28/2016

1176

MOTION for Order MOTION FOR DISCOVERY AND ENLARGEMENT OF TIME FOR GOVERNMENT EXPERT WITNESS RESPONSES AND REBUTTAL by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 11/28/2016)

11/29/2016

1177

ORDER Granting Defendant Muhtorov's Motion ( Doc. 1118 )to Sever His Case From Codefendants as to Jamshid Muhtorov. Counsel are directed to CONFER regarding the consequences of this ruling, and to telephone chambers jointly to set a date and time for a status conference. Signed by Judge John L. Kane on 11/29/2016. (athom, ) (Entered: 11/29/2016)

11/30/2016

1178

MINUTE ORDER as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Given the pendency of the government's Motion for Discovery and Enlargement of Time for Government Expert Witness Responses and Rebuttal 1176 , the December 1, 2016, deadline for Government rebuttal experts disclosure is tolled until further order of the court. The December 7, 2016, deadline for the Government's response to pending motions to suppress remains in effect. Entered by Judge John L. Kane on 11/30/16. Text Only Entry (jhawk, ) (Entered: 11/30/2016)

12/02/2016

1179

REPLY TO RESPONSE to Motion by Jamshid Muhtorov re 1176 MOTION for Order MOTION FOR DISCOVERY AND ENLARGEMENT OF TIME FOR GOVERNMENT EXPERT WITNESS RESPONSES AND REBUTTAL (Williamson, Warren) (Entered: 12/02/2016)

12/02/2016

1180

RESPONSE to Motion by Bakhtiyor Jumaev as to Jamshid Muhtorov, Bakhtiyor Jumaev re 1170 MOTION for Order Pursuant to Rule 16(d) for Confidential Human Source Protections (Baker, Mitchell) (Entered: 12/02/2016)

12/07/2016 1183 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 12/07/2016)

12/07/2016

1185

RESPONSE to Motion by USA as to Jamshid Muhtorov re 1156 MOTION to Suppress Statements (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Holloway, Gregory) (Entered: 12/07/2016)

12/07/2016

1187

ORDER This matter is currently before me on the Government's Motion to Restrict Document 1184 Doc. 1183 . Having reviewed the motion and the relevant pleadings and finding good cause appearing, the motion is GRANTED. Access to Docket No. 1184 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A), by Judge John L. Kane on 12/7/2016. (evana, ) (Entered: 12/07/2016)

12/07/2016 1188 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov. (Tonini, David) (Entered: 12/07/2016)

12/07/2016

1190

RESTRICTED DOCUMENT - Level 1: Conventionally Submitted Material: 1 CD- Exhibit 1 to 1185 Response to Motion filed by USA as to Jamshid Muhtorov. Text Only Entry (jhawk, ) (Entered: 12/08/2016)

12/08/2016

1192

ORDER as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). This matter is currently before me on the Government's Motion to Unrestrict Documents 1167 and 1168 (Doc. 1169 ); Government's Unopposed Motion to Restrict Document 1185-01 (Doc. 1188 ); Government's Motion to Restrict Document Nos. 1186-01 and 118602 (Doc. 1189 ). Having reviewed the motions and the relevant pleadings and finding good cause appearing, the motions are GRANTED. Access to Docket Nos. 1185-01, a CD, and 1186-01 and 1186-02, two CDs, shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). The clerk is instructed to unrestrict Document Nos. 1167 and 1168 . by Judge John L. Kane on 12/08/16. (jhawk, ) (Entered: 12/08/2016)

12/08/2016

1193

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev re 1118 Restricted Document - Level 1 filed by Jamshid Muhtorov. A Status Conference is set for Tuesday, December 20, 2016, at 10:00 AM in Courtroom A802 before Judge John L. Kane. The presence of the defendants is not necessary and no interpreter will be present. Ordered by Judge John L. Kane on 12/8/2016. Text Only Entry (jlksec) (Entered: 12/08/2016)

12/13/2016 1194 ORDER on Motion Pursuant to Rule 16(d) for Confidential Human Source Protections as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2)

re: 1170 . Signed by Judge John L. Kane on 12/13/16. (jhawk, ) (Entered: 12/13/2016)

12/13/2016 1195 MOTION for Order by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Tonini, David) (Entered: 12/13/2016)

12/13/2016 1196 PROTECTIVE ORDER re: 1171 as to Jamshid Muhtorov, Bakhtiyor Jumaev. Signed by Judge John L. Kane on 12/13/16. (jhawk, ) (Entered: 12/14/2016)

12/14/2016

1197

MINUTE ORDER. In order to maximize the time available for the December 20, 2016 Status Conference, counsel are to CONFER and PREPARE a jointly proposed Notice of Agenda Items to be addressed at that time flowing from the court's 11/29/16 Order 1177 Granting Defendant Muhtorov's Motion 1118 to Sever. The Status Conference is currently scheduled for two hours (from 10:00 a.m. to noon), but could re-convene after lunch if necessary. The Notice should be filed no later than noon on Monday, December 19, 2016. Entered by Judge John L. Kane on 12/14/16. Text Only Entry (jhawk, ) (Entered: 12/14/2016)

12/14/2016

1198

MINUTE ORDER. Government's Motion 1195 to Hold Deadlines in Abeyance until ten days after an order setting the trial schedule after severance is GRANTED. The operative scheduling order's December 15 and 16 deadlines for disclosure of information on confidential human source, Giglio, Jencks, FRE 404(b), expert challenges, and FRE 801(d)(2)(E) disclosures shall be TOLLED until 10 days after the entry of an order finalizing the post-severance trial schedule or other order of the court. It is the court's intention to finalize that trial schedule at the December 20, 2016 status conference 1193 , so these extended deadlines should be expected to run on or shortly after December 30, 2016. Under no circumstances will the extensions affect the January 9-13 hearing dates on the pending Motions to Suppress, which remain firm. Entered by Judge John L. Kane on 12/14/16. Text Only Entry (jhawk, ) (Entered: 12/15/2016)

12/15/2016

1199

MOTION to Exclude Expert Testimony Pursuant To Fed. R. Crim. P. 16, Or In The Alternative, Motion for Pre-Trial Hearing Under Fed. R. Evid. 702 by Jamshid Muhtorov. (Williamson, Warren) (Entered: 12/15/2016)

12/19/2016 1203 NOTICE Parties' Joint Proposed Notice of Agenda Items for Status Conference December 20, 2016 by Jamshid Muhtorov (Williamson, Warren) (Entered: 12/19/2016)

12/20/2016 1204 COURTROOM MINUTES for Status Conference as to Jamshid Muhtorov and Bakhtiyor Jumaev held before Judge John L. Kane on

12/20/2016. Court will adhere to its ruling, keep the severance, and try Mr. Jumaev first. Portion of the transcript in camera shall be placed under Level 3 restriction. A seven week jury trial regarding Mr. Jumaev is set for March 13, 2017 at 9:00 a.m. A seven week jury trial regarding Mr. Muhtorov is set for July 31, 2017 at 9:00 a.m. Court Reporter: Terri Lindblom. (ebuch) (Entered: 12/20/2016)

12/20/2016

1205

Utility Setting/Resetting Deadlines/Hearings as to Jamshid Muhtorov pursuant to the Courtroom Minutes of 12/20/2016: Seven week Jury Trial set for 7/31/2017 09:00 AM in Courtroom A 802 before Judge John L. Kane. Text Only Entry (ebuch) (Entered: 12/20/2016)

12/22/2016 1207 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Tonini, David) (Entered: 12/22/2016)

12/22/2016 1208 RESTRICTED DOCUMENT - Level 3: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Tonini, David) (Entered: 12/22/2016)

12/22/2016

1209

RESTRICTED DOCUMENT - Level 3-Motion for Protective Order by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Tonini, David) Modified on 12/23/2016 to add text pursuant to JLK instructions (jhawk, ). (Entered: 12/22/2016)

12/23/2016

1210

ORDER as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2) granting 1207 Motion for Leave to Restrict Access to Docket Nos. 1208 and 1209 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1( A). Signed by Judge John L. Kane on 12/23/16. (jhawk, ) (Entered: 12/23/2016)

12/23/2016

1211 MOTION in Limine to Exclude Improper Evidence and Argument in Support of Jury Nullification by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 12/23/2016)

12/23/2016 1212 MOTION to Exclude the Testimony of Leo and Obolsky by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 12/23/2016)

12/23/2016

1213

RESPONSE to Motion by USA as to Jamshid Muhtorov re 1199 MOTION to Exclude Expert Testimony Pursuant To Fed. R. Crim. P. 16, Or In The Alternative, Motion for Pre-Trial Hearing Under Fed. R. Evid. 702 (Holloway, Gregory) (Entered: 12/23/2016)

12/23/2016

1214

MINUTE ORDER clarifying Order (Doc. 1210 ), restricting access to Docs. 1208 and 1209 . Given that the restriction level granted was Restriction Level 3, access to Docket Nos. 1208 and 1209 is limited to the filer (in this case the government) and the court under D.C.COLO. LCr.R. 47.2(A) only, not the "parties" and the court. Entered by Judge

John L. Kane on 12/23/16. Text Only Entry (jhawk, ) (Entered: 12/23/2016)

12/29/2016

1215 RESPONSE to Motion by Jamshid Muhtorov re 1211 MOTION in Limine to Exclude Improper Evidence and Argument in Support of Jury Nullification (Williamson, Warren) (Entered: 12/29/2016)

12/30/2016

1216

NOTICE Government's Rebuttal Expert Disclosures by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Holloway, Gregory) (Entered: 12/30/2016)

01/04/2017 1218 WITNESS LIST For January 9, 2017 Hearing by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Tonini, David) (Entered: 01/04/2017)

01/04/2017

1219 EXHIBIT LIST For January 9, 2017 Hearing by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Tonini, David) (Entered: 01/04/2017)

01/06/2017

1223

MINUTE ENTRY for In Camera, Ex Parte proceedings held before Judge John L. Kane with the United States Government on 1/6/2017, pursuant to Classified Rule 16(d) Motion 1209 . Court Reporter: Terri Lindblom. (babia) Text Only Entry Modified on 1/6/2017 (babia). (Entered: 01/06/2017)

01/09/2017

1227

MINUTE ENTRY for proceedings held before Judge John L. Kane. Motion Hearing as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 1/9/2017. Interpreters: Irina Kamensky, Hasmik Jorgensen, Sanjar Babadjanov and Nodira Matyakubova are sworn. ORDER denying 1225 Motion to Strike as to Bakhtiyor Jumaev (2).Defendants are remanded. Court Reporter: Terri Lindblom. (kpreu) (Entered: 01/10/2017)

01/09/2017

1229 Utility Setting/Resetting Deadlines/Hearings as to Jamshid Muhtorov, Bakhtiyor Jumaev: Suppression Hearing terminated as being held starting on 01/09/17. Text Only Entry (jhawk, ) (Entered: 01/12/2017)

01/10/2017

1228

MINUTE ENTRY for Suppression Hearing - Day 2 proceedings held before Judge John L. Kane on 1/10/2017 as to Jamshid Muhtorov (1), and, Bakhtiyor Jumaev (2). Defendants present in custody. Defendants REMANDED. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen, Irina Kamensky, Nodira Matyakubova, and Sanjar Babadjanov. (babia) (Entered: 01/11/2017)

01/11/2017 1230 MINUTE ENTRY for Suppression Hearing - Day 3 proceedings held before Judge John L. Kane on 1/11/2017 as to Jamshid Muhtorov (1),

and Bakhtiyor Jumaev (2). Defendants present in custody. Defendants REMANDED. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen, Irina Kamensky, Nodira Matyakubova, and Sanjar Babadjanov. (babia) (Entered: 01/12/2017)

01/12/2017

1231

MINUTE ENTRY for Suppression Hearing - Day 4 proceedings held before Judge John L. Kane on 1/12/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants present in custody. Defendants REMANDED. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky, Hasmik Jorgensen, Sanjar Babadjanov, and Nodira Matyakubova. (babia) (Entered: 01/13/2017)

01/13/2017

1233

MINUTE ENTRY for Suppression Hearing - Day 5 proceedings held before Judge John L. Kane on 1/13/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants present in custody. Defendants REMANDED. Court Reporter: Tamara Hoffschildt. Interpreter: Hasmik Jorgensen, Irina Kamensky, Nodira Matyakubova, and Sanjar Babadjanov. (babia) (Entered: 01/17/2017)

01/17/2017

1232 Order Setting Agenda Items for consideration January 17, 2017. Signed by Judge John L. Kane on 01/17/17. (jhawk, ) (Entered: 01/17/2017)

01/17/2017

1234

MINUTE ENTRY for Suppression Hearing - Day 6 proceedings held before Judge John L. Kane on 1/17/2017 as to Jamshid Muhtorov, Bakhtiyor Jumaev. Defendants present in custody. Taking under advisement 1151 Motion to Suppress as to Bakhtiyor Jumaev (2); Taking under advisement 1154 Motion as to Bakhtiyor Jumaev (2); Taking under advisement 1156 Motion to Suppress as to Bakhtiyor Jumaev (2). Defendants REMANDED. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Irina Kamensky. (babia) (Entered: 01/18/2017)

01/19/2017

1235

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev directing counsel to call in to set oral argument on Defendants' Motions [1112 and 1115] to Dismiss Count 5 of the Indictment. Representatives for each party shall confer and call in to set a time for oral argument on either January 27, 30, or 31st - 303-844-6118. The time chosen may be set to run concurrently with the weekly status conference. by Judge John L. Kane on 1/19/2017. Text Only Entry (jlksec, ) (Entered: 01/19/2017)

01/19/2017

1236

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev re 1115 MOTION to Dismiss Count 5 of the Indictment filed by Jamshid Muhtorov, 1112 MOTION to Dismiss Counts Five filed by Bakhtiyor Jumaev. A motions and status conference is set for January 31, 2017, at 11:00 AM in Courtroom A802 before Judge John L.

Kane. The defendants' presence is not necessary and no interpreter will be in court. Ordered by Judge John L. Kane on 1/19/2017. Text Only Entry (jlksec) (Entered: 01/19/2017)

01/19/2017

1237

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. A Status Conference is set for Wednesday, January 25, 2017, at 11:00 AM in Courtroom A802 before Judge John L. Kane. The defendants' presence is not necessary and no interpreter will be present. Ordered by Judge John L. Kane on 1/19/2017. Text Only Entry (jlksec) (Entered: 01/19/2017)

01/19/2017

1238

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. A Status Conference is set for Wednesday, February 8, 2017, at 11:00 AM in Courtroom A802 before Judge John L. Kane. The defendants' presence is not necessary and no interpreter will be present. Ordered by Judge John L. Kane on 1/19/2017. Text Only Entry (jlksec) (Entered: 01/19/2017)

01/19/2017

1239

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. A Status Conference is set for Wednesday, February 15, 2017, at 11:00 AM in Courtroom A802 before Judge John L. Kane. The defendants' presence is not necessary and no interpreter will be present. Ordered by Judge John L. Kane on 1/19/2017. Text Only Entry (jlksec) (Entered: 01/19/2017)

01/19/2017

1240

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. A Status Conference is set for Wednesday, February 22, 2017, at 11:00 AM in Courtroom A802 before Judge John L. Kane. The defendants' presence is not necessary and no interpreter will be present. ORdered by Judge John L. Kane on 1/19/2017. Text Only Entry (jlksec) (Entered: 01/19/2017)

01/19/2017

1241

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. A Status Conference is set for Wednesday, March 1, 2017, at 11:00 AM in Courtroom A802 before Judge John L. Kane. The defendants' presence is not necessary and no interpreter will be present. Ordered by Judge John L. Kane on 1/19/2017. Text Only Entry (jlksec) (Entered: 01/19/2017)

01/19/2017

1242

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. A Status Conference is set for Wednesday, March 8, 2017, at 11:00 AM in Courtroom A802 before Judge John L. Kane. The defendants' presence is not necessary and no interpreter will be present. Ordered by Judge John L. Kane on 1/19/2017. Text Only Entry (jlksec) (Entered: 01/19/2017)

01/25/2017

1244

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 1/25/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Court Reporter: Terri Lindblom. (babia) (Entered: 01/25/2017)

01/25/2017

1245

RESTRICTED DOCUMENT - Level 1-Notice of Intent to Use Evidence by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Tonini, David) Modified on 1/26/2017 to add text (jhawk, ). (Entered: 01/25/2017)

01/25/2017 1246 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Tonini, David) (Entered: 01/25/2017)

01/26/2017

1247

ORDER granting 1246 Motion for Leave to Restrict as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Access to Docket No. 1245 shall be limited to the parties and the court pursuant to D.C.COLO.LCrR 47.1(A). Signed by Judge John L. Kane on 01/26/17. (jhawk, ) (Entered: 01/26/2017)

01/31/2017

1249

MINUTE ORDER GRANTING Unopposed Motion 1248 to Modify Order on Government's 16(d) Motion 1194 . With the government's consent, provisions (5) and (9) of Doc. 1194 are modified/clarified to permit Jumaev defense team members Austin, Boehme, and Thompson the same level of access to information an concomitant responsibilities as to secrecy pertaining to the CHS as defense counsel and the defense investigator. Entered by Judge John L. Kane on 01/31/17. Text Only Entry (jhawk, ) (Entered: 02/01/2017)

01/31/2017

1251

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 2/1/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants NOT PRESENT. Taking under advisement 1115 Motion to Dismiss as to Jamshid Muhtorov (1). Taking under advisement 1112 Motion to Dismiss Counts as to Bakhtiyor Jumaev (2). Appearance of attorney Jacob R. Rasch-Chabot entered for Jamshid Muhtorov. Motion Hearing set for 2/8/2017 01:30 PM in Courtroom A 802 before Judge John L. Kane. Court Reporter: Terri Lindblom. (babia) Modified on 2/1/2017 to edit date filed(babia). (Entered: 02/01/2017)

02/01/2017

1250 NOTICE of Change of Address/Contact Information for AUSA Gregory Holloway and AUSA David Tonini (Holloway, Gregory) (Entered: 02/01/2017)

02/06/2017

1252

MINUTE ORDER re Doc. 1217 , Joint Motion to Strike the Government's James Proffer and Log or, in the Alternative, Joint Objections to the Government's Proffer and Request for Hearing. Defendants' Motion to Strike is DENIED, but the alternative Motion

for a James hearing is GRANTED. Counsel are directed to CONFER and call in jointly to chambers to set the date and time for the hearing. In preparation for the hearing, to be submitted at least 48 hours before hand, counsel for the government and each defendant SHALL SUBMIT proposed JURY INSTRUCTIONS for each of the conspiracy claims in the operative Indictment. Entered by Judge John L. Kane on 02/06/17. Text Only Entry (jhawk, ) (Entered: 02/06/2017)

02/08/2017

1256

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 2/8/2017 as to Jamshid Muhtorov(1), and Bakhtiyor Jumaev (2). Defendants not present, in custody. Daubert Hearing set for 3/8/2017 01:30 PM in Courtroom A 802 before Judge John L. Kane. DEFENDANTS SHALL BE PRESENT. Court Reporter: Terri Lindblom. (babia) Modified on 2/9/2017 to correct hearing date (babia). (Entered: 02/08/2017)

02/08/2017

1257

AMENDED MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 2/8/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev(2). Amended re 1256 . Court Reporter: Terri Lindblom. (babia) (Entered: 02/08/2017)

02/08/2017

1258

MINUTE ENTRY for Motion Hearing proceedings held before Judge John L. Kane on 2/8/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants not present, in custody. James Hearing set for 2/22/2017 01:00 PM in Courtroom A 802 before Judge John L. Kane Defendants Jamshid Muhtorov (1) and Bakhtiyor Jumaev (2), and interpreters shall be present. Today's Motion Hearing is set to continue on 2/10/2017 at 11:00 AM - Ms. Korczynski (Government counsel) may appear via telephone. Court Reporter: Terri Lindblom. (babia) (Entered: 02/09/2017)

02/10/2017

1259

MINUTE ORDER modifying start time for the James Hearing on Wednesday, February 22, 2017, and the Daubert Hearing on Wednesday, March 8, 2017. ORDERED that the hearings will begin at 9:30 a.m. rather than the original time of 1:00 p.m. and 1:30 p.m. in Courtroom A-802, Alfred A. Arraj United Stated District Courthouse, 901 19th St., Denver Colorado. Entered Text Only Entry (jhawk, ) (Entered: 02/10/2017)

02/10/2017 1260 RESTRICTED DOCUMENT - Level 3-Minute Order by Court for Government and Court Only (jhawk, ) (Entered: 02/10/2017)

02/10/2017

1261

MINUTE ENTRY for Motion Hearing proceedings held before Judge John L. Kane on 2/10/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants not present, in custody. Court Reporter: Terri Lindblom. (babia) (Entered: 02/10/2017)

02/10/2017

1285

Utility Setting/Resetting Deadlines/Hearings as to Jamshid Muhtorov, Bakhtiyor Jumaev: Daubert Hearing set for 3/8/2017 09:30 AM before Judge John L. Kane. Pursuant to document 1259 . Defendants' presence is required. Text Only Entry (jhawk, ) (Entered: 02/27/2017)

02/14/2017

1262

MINUTE ORDER. Agenda items for this week's status conference set for 11:00 a.m. tomorrow, February 15, 2017, include: (1) status of discovery requests/orders issued 2/8 and 2/10 during proceedings on Defendants' Joint Motion for Discovery (Doc. 1126); (2) status/needs regarding of USA's Motion 1176 re Expert Witness Responses and Rebuttal; and (3) schedule for jury selection/juror questionnaires. Counsel are advised Judge Kane is considering a 1:00 p.m. report time for prospective jurors on March 13 to accommodate other trials set on that date. In that event, jurors would complete their questionnaires Monday afternoon, and completed questionnaires would be available for counsel to review later that afternoon and overnight. If 20-30 jurors were cleared by Monday afternoon, notice could go out that evening and voir dire could begin Tuesday. Otherwise, it would commence on Wednesday. Judge Kane would like jurors brought up in small groups of 15-20 for voir dire. ORDERED as to Jamshid Muhtorov and Bakhtiyor Jumaev by Judge John L. Kane on 02/14/2017. Text Only Entry. (cthom, ) (Entered: 02/14/2017)

02/15/2017 1265 RESTRICTED TRANSCRIPT of proceedings held on 2/8/2017 before Judge Kane. Pages: 1-125. (tlind, ) (Entered: 02/15/2017)

02/15/2017 1266 RESTRICTED TRANSCRIPT of proceedings held on 2/10/2017 before Judge Kane. Pages: 126-189. (tlind, ) (Entered: 02/15/2017)

02/15/2017

1267

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 2/15/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Finding as Moot 1176 Motion for Order as to Jamshid Muhtorov (1); Granting 1263 Motion for Reconsideration as to Bakhtiyor Jumaev (2). ORDERED: The Government shall produce the Grand Jury transcripts, as specified, as soon as practicable. Court Reporter: Tamara Hoffschildt. (babia) (Entered: 02/15/2017)

02/16/2017

1268

MINUTE ORDER re Jury Instructions. A set of Judge Kane's most recent criminal case jury instructions is available on the court's website following the art. III Senior Judges, Judge Kane, and Sample Jury Instructions links. In anticipation of the James hearing on next week, Judge Kane is also drafting his own versions of elements of the offense instructions, specifically including the instruction(s) for Count 5. The Count 5 elements instruction will follow the 1, 2, 3 format discussed in U.S. v. Stewart, 590 F.3d 93, 114-116 (2d Cir. 2009)(proof of underlying conspiracy first, then material support, then

applicable mens rea), and include reference to First Amendment defenses/distinctions. ORDERED by Judge John L. Kane on 02/16/2017. Text Only Entry. (cthom, ) (Entered: 02/16/2017)

02/16/2017

1269

MINUTE ENTRY for In Camera Hearing, Ex Parte, Classified proceedings held before Judge John L. Kane with the United States Government on 2/16/2017. Court Reporter: Terri Lindblom. (babia) Text Only Entry (Entered: 02/16/2017)

02/17/2017

1272

(RESTRICTED DOCUMENT - Level 1) Gov submission of Grand Jury transcripts by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Holloway, Gregory) Modified to add title on 2/23/2017 (cthom, ). (Entered: 02/17/2017)

02/17/2017

1273

NOTICE First NOTICE OF INTENT TO OFFER CERTIFIED DOMESTIC RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Tonini, David) (Entered: 02/17/2017)

02/21/2017

1274 Proposed Jury Instructions Conspiracy Jury Instructions by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Tonini, David) (Entered: 02/21/2017)

02/21/2017

1275

(RESTRICTED DOCUMENT - Level 1) MINUTE ORDER Regarding Jury Instruction for Count 5. ORDERED as to Jamshid Muhtorov and Bakhtiyor Jumaev by Judge John L. Kane on 02/21/2017. (cthom, ) (Entered: 02/21/2017)

02/21/2017

1276

MINUTE ENTRY for In Camera Hearing, Ex Parte, Classified proceedings held before Judge John L. Kane with the United Stated Government on 2/21/2017. Court Reporter: Terri Lindblom. (babia) Text Only Entry (Entered: 02/21/2017)

02/22/2017

1279

MINUTE ENTRY for James Hearing proceedings held before Judge John L. Kane on 2/22/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants present, in custody. The James Hearing is continued and set for 2/24/2017 08:00 AM in Courtroom A 802 before Judge John L. Kane. Defendants are REMANDED. Court Reporter: Tamara Hoffschildt. Interpreter: Nodira Isamiddinova, and Bakhodir Abdullaev. (babia) (Entered: 02/23/2017)

02/23/2017

1277

(RESTRICTED DOCUMENT - Level 1) ORDER re Counts 5 and 6 of the Third Superseding Indictment In Light of the Government's Proffer and the Evidence Adduced During Day 1 of this Court's February 22, 2017 James Hearing as to Jamshid Muhtorov and

Bakhtiyor Jumaev. ORDERED by Judge John L. Kane on 02/23/2017. (cthom, ) (Entered: 02/23/2017)

02/23/2017

1278

(RESTRICTED DOCUMENT - Level 1) AMENDED 1277 ORDER re Counts 5 and 6 of the Third Superseding Indictment In Light of the Government's Proffer and the Evidence Adduced During Day 1 of this Court's February 22, 2017 James Hearing as to Jamshid Muhtorov and Bakhtiyor Jumaev. ORDERED by Judge John L. Kane on 02/23/2017. (cthom, ) (Entered: 02/23/2017)

02/24/2017

1280

RESTRICTED DOCUMENT - Level 1-Letter to Counsel by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified on 2/27/2017 to add text pursuant to JLK instructions (jhawk, ). (Entered: 02/24/2017)

02/24/2017

1281

MINUTE ENTRY for James Hearing - Day 2 proceedings held before Judge John L. Kane on 2/24/2017 as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Defendants present, in custody. A further James Hearing set for 2/27/2017 08:30 AM in Courtroom A 802 before Judge John L. Kane. Defendants REMANDED. Court Reporter: Tamara Hoffschildt. Interpreter: Nodira Isamiddinova and Bakhodir Abdullaev. (babia) (Entered: 02/24/2017)

02/27/2017 1282 RESTRICTED DOCUMENT - Level 1-Minute Order by the Court. (jhawk, ) (Entered: 02/27/2017)

02/27/2017

1283

RESTRICTED DOCUMENT - Level 1-Letter to Counsel by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified on 2/27/2017 to add text pursuant to JLK instructions (jhawk, ). (Entered: 02/27/2017)

02/27/2017

1284

RESTRICTED DOCUMENT - Level 1-Letter to Counsel. Not to be shared with defendants. Filed by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified on 2/27/2017 to add text pursuant to JLK instructions (jhawk, ). (Entered: 02/27/2017)

02/27/2017 1286 RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). (babia) (Entered: 02/27/2017)

02/27/2017

1287

MINUTE ENTRY for James Hearing proceedings held before Judge John L. Kane on 2/27/2017 as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Defendants present, in custody. Pursuant to 1286 . Defendants REMANDED. Court Reporter: Tamara Hoffschildt. Interpreter: Nodira Isamiddinova and Bakhodir Abdullaev. (babia) Text Only Entry (Entered: 02/27/2017)

02/27/2017 1288 RESTRICTED DOCUMENT - Level 3-Minute Order by Court for Government Counsel and Court Only (jhawk, ) (Entered: 02/28/2017)

02/28/2017

1289 MINUTE ORDER re Agenda Items for 03/01/17 Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev. Entered by Judge John L. Kane on 02/28/17. (jhawk, ) (Entered: 02/28/2017)

02/28/2017 1290 NOTICE Government's Submission Regarding Multiplcity by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 02/28/2017)

02/28/2017 1291 MOTION for Order Tolling of Speedy Trial Pursuant to 18 U.S.C. Section 3161(h)(7)(B)(ii) by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 02/28/2017)

03/01/2017

1293

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 3/1/2017 as to Jamshid Muhtorov (1),and Bakhtiyor Jumaev (2). Defendants not present, in custody. Finding as moot 1115 Motion to Dismiss as to Jamshid Muhtorov (1); Granting 1291 Motion for Order as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2); Finding as moot 1112 Motion to Dismiss Counts as to Bakhtiyor Jumaev (2). ORDERED: The Governments (Unopposed) Oral Motion to Dismiss Counts Five and Six of The Third Superseding Indictment is GRANTED. Only Counts One, Two, Three and Four remain to be tried. Status Conference set for 3/2/2017 10:00 AM in Courtroom A 802 before Judge John L. Kane. Status Conference set for 3/6/2017 02:00 PM in Courtroom A 802 before Judge John L. Kane. ORDERED:The Government has to and including Thursday, March 9, 2017 to file its response to Doc. No. 1292. If the Defense files a reply, it needs to be done in an expedited manner. Court Reporter: Tamara Hoffschildt. (babia) (Entered: 03/01/2017)

03/02/2017

1294

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 3/2/2017 as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Court Reporter: Terri Lindblom. (babia) (Entered: 03/02/2017)

03/03/2017 1295 RESTRICTED DOCUMENT - Level 3: Minute Order by Court for Government Counsel and Court Only (jhawk, ) (Entered: 03/03/2017)

03/06/2017 1296 MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 3/6/2017 as to Bakhtiyor Jumaev. Court Reporter: Terri Lindblom. (babia) (Entered: 03/06/2017)

03/06/2017 1297 RESTRICTED DOCUMENT - Level 3: Order by Court for Government Counsel and Court Only (jhawk, ) (Entered: 03/06/2017)

03/07/2017

1301

RESTRICTED DOCUMENT - Level 1: Letter to Counsel. Not to be shared with defendants by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Tonini, David) Modified on 3/8/2017 to add text pursuant to JLK instructions (jhawk, ). (Entered: 03/07/2017)

03/07/2017

1302

RESTRICTED DOCUMENT - Level 3: Government Response to Multiple Court Orders for Government Counsel and Court Only by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Tonini, David) Modified on 3/8/2017 to add text pursuant to JLK instrucions (jhawk, ). (Entered: 03/07/2017)

03/08/2017

1303

MINUTE ENTRY for Daubert Hearing proceedings held before Judge John L. Kane on 3/8/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants present, in custody. Denying 1199 Motion to Exclude as to Jamshid Muhtorov (1); Denying 1206 Motion to Strike as to Bakhtiyor Jumaev (2). Defendants REMANDED. Court Reporter: Terri Lindblom. Interpreter: Nodira Isamiddinova and Bakhodir Abdullaev. (babia) (Entered: 03/09/2017)

03/08/2017

1304

MINUTE ENTRY for In Camera Hearing, Ex Parte, Classified proceedings held before Judge John L. Kane with the United States Government on 3/8/2017. Court Reporter: Terri Lindblom. (babia) Text Only Entry (Entered: 03/09/2017)

03/09/2017 1306 RESTRICTED DOCUMENT - Level 1: UNCLASSIFIED ORDER re in camera DISCOVERY REVIEWS UNDER CIPA §4 as to Jamshid Muhtorov, Bakhtiyor Jumaev. (athom, ) (Entered: 03/09/2017)

03/10/2017

1310

RESTRICTED DOCUMENT - Level 1: Letter to Counsel. Not to be shared with defendants by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified on 3/13/2017 to add text pursuant to JLK instructions (jhawk, ). (Entered: 03/10/2017)

03/12/2017

1314

TRANSCRIPT of Rule 702 Hearing as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 3/8/2017 before Judge Kane. Pages: 1-153. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 03/12/2017)

03/13/2017

1317

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. A Status Conference is set for 3/14/2017 at 1:00 PM in Courtroom A802 before Judge John L. Kane. The defendants' presence is required. Mr. Williamson is instructed to call chambers immediately prior to 1:00 p.m. and the telephone call will be transferred into the courtroom 303-844-6118. Defendants will be transported to the courthouse and available -- with interpreters -- for counsel to meet with at 10:00 a.m. Ordered by Judge John L. Kane on 3/13/2017. Text Only Entry (jlksec) (Entered: 03/13/2017)

03/14/2017

1319

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 3/14/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants present, in custody. The Court states that a new Jury venire will be secured for the trial of Defendant Jamshid Muhtorov, which is set to begin July 31, 2017 at 9:00 a.m. Defendants REMANDED. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Nodira Matyakubova. (babia) (Entered: 03/14/2017)

03/20/2017 1322 CJA Travel Request (Non-Defendant) as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 03/20/2017)

03/24/2017

1324

MINUTE ORDER GRANTING Unopposed Motion 1323 to Modify Order on Government's 16(d) Motion 1194 . With the government's consent, provisions (5) and (9) of Doc. 1194 are modified/clarified to permit Jumaev defense team members Phil Landreth and Hobie Landreth the same level of access to information and concomitant responsibilities as to secrecy pertaining to the CHS as defense counsel and the defense investigator. Entered by Judge John L. Kane on 03/24/17. (jhawk, ) (Entered: 03/24/2017)

03/27/2017

1325

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. The court would like to hold monthly status conferences beginning either the week of April 17 or 24, 2017. Please confer, pick a day and time for the meetings, and let chambers know on or before March 31, 2017 - 303-844-6118. Ordered by Judge John L. Kane on 3/27/2017. Text Only Entry (jlksec) (Entered: 03/27/2017)

03/28/2017

1326

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. Monthly Status Conferences are set for 10:00 a.m. on 4/20/2017, 5/11/2017, 6/15/2017 and 7/13/2017 in Courtroom A-802 before Judge John L. Kane. Ordered by Judge John L. Kane on 3/28/2017. Text Only Entry (jlksec) (Entered: 03/28/2017)

03/29/2017

1327 MOTION to Dismiss for Violation of Constitutional Right to Speedy Trial by Jamshid Muhtorov. (Attachments: # 1 Attachment A)(Williamson, Warren) (Entered: 03/29/2017)

03/31/2017 1328 ORDER Setting Agenda Items for 04/20/17 Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev. Signed by Judge John L. Kane on 03/31/17. (jhawk, ) (Entered: 03/31/2017)

04/03/2017

1329

MOTION for Order for Issuance of Letters Rogatory by Jamshid Muhtorov. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Attachment D)(Williamson, Warren) (Entered: 04/03/2017)

04/03/2017

1330 Supplement to 1329 Motion for Order by Jamshid Muhtorov. (Williamson, Warren) Modified on 4/4/2017 to correct event title (athom, ). (Entered: 04/03/2017)

04/03/2017

1331

MINUTE ORDER re Sauerland Verdict and Related Motion 1329 for Issuance of Letters Rogatory as to Jamshid Muhtorov. The government is ORDERED to disclose to Mr. Muhtorov's counsel, in writing, whether it has a copy of the Sauerland Verdict or whether it may secure a copy of it for immediate production to the defense. A Status Report regarding the substance of this ordered disclosure is due on or before Friday, April 7, 2017. Counsel may also add the Sauerland Verdict as item 7 for discussion at the April 20 status conference in this case. (Doc. 1328.) By Judge John L. Kane on 4/3/2017. (agarc, ) (Entered: 04/03/2017)

04/04/2017 1332 Request for International Judicial Assistance Letter Rogatory re 1329 Motion for Order as to Jamshid Muhtorov. Signed by Judge John L. Kane on 04/04/2017. (athom, ) (Entered: 04/04/2017)

04/06/2017

1334

MOTION for Order Directing That The Government Grant Parole So Foreign Witnesses May Be Temporarily Admitted To The United States To Testify At Trial by Jamshid Muhtorov. (Williamson, Warren) (Entered: 04/06/2017)

04/06/2017

1335

MINUTE ORDER. Upon preliminary consideration of Jamshid Muhtorov's Motion for Order Directing that the Government Grant Parole so Foreign Witnesses May be Temporarily Admitted to the United States to Testify at Trial (Doc. 1334 ), I am inclined to grant it in some form. The government is DIRECTED to file a response to the Motion on or before April 13, 2017, addressing possible alternatives for obtaining the witnesses' testimony (e.g., arranging for them to testify via live video conference from Uzbekistan). Entered by Judge John L. Kane on 04/06/17. Text Only Entry (jhawk, ) (Entered: 04/06/2017)

04/07/2017

1336 NOTICE OF ATTORNEY APPEARANCE Beth N. Gibson appearing for USA. Attorney Beth N. Gibson added to party USA(pty:pla) (Gibson, Beth) (Entered: 04/07/2017)

04/07/2017 1337 STATUS REPORT Refgarding The Minute Order Re Sauerland Cell Verdict and Related Motion (Doc 1331) by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Tonini, David) (Entered: 04/07/2017)

04/10/2017 1338 Letter by Clerk of Court. (Exhibit # 1 Request for Letter Rogatory by Judge John L. Kane and Attachment A) (jhawk, ) (Entered: 04/10/2017)

04/10/2017

1339

Certificate of Service by Deputy Clerk re 1338 Letter mailed to Judicial Assistance Officer, U.S. Department of State, Office of Legal Affairs, SA-17, 10th Floor, 2201 C Street, NW, Washington DC 20522-1710. Text only entry. (jhawk, ) (Entered: 04/10/2017)

04/12/2017 1340 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/12/2017)

04/12/2017 1341 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/12/2017)

04/12/2017

1342 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/12/2017)

04/12/2017 1343 ORDER granting 1340 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/12/17. (jhawk, ) (Entered: 04/12/2017)

04/12/2017

1344 ORDER granting 1341 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/12/17. (jhawk, ) (Entered: 04/12/2017)

04/12/2017 1345 ORDER granting 1342 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/12/17. (jhawk, ) (Entered: 04/12/2017)

04/13/2017

1347 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/13/2017)

04/13/2017 1348 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/13/2017)

04/13/2017 1349 RESPONSE to Motion by USA as to Jamshid Muhtorov re 1334 MOTION for Order Directing That The Government Grant

Parole So Foreign Witnesses May Be Temporarily Admitted To The United States To Testify At Trial (Gibson, Beth) (Entered: 04/13/2017)

04/13/2017

1350 ORDER granting 1347 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/13/17. (jhawk, ) (Entered: 04/13/2017)

04/13/2017 1351 ORDER granting 1348 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/13/17. (jhawk, ) (Entered: 04/13/2017)

04/17/2017 1353 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/17/2017)

04/17/2017

1354 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/17/2017)

04/17/2017 1355 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/17/2017)

04/17/2017

1356 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/17/2017)

04/17/2017 1357 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/17/2017)

04/17/2017

1359 ORDER granting 1353 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/17/17. (jhawk, ) (Entered: 04/17/2017)

04/17/2017 1360 ORDER granting 1354 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/17/17. (jhawk, ) (Entered: 04/17/2017)

04/17/2017 1361 ORDER granting 1355 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/17/17. (jhawk, ) (Entered: 04/17/2017)

04/17/2017

1362 ORDER granting 1356 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/17/17. (jhawk, ) (Entered: 04/17/2017)

04/17/2017 1363 ORDER granting 1357 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/17/17. (jhawk, ) (Entered: 04/17/2017)

04/18/2017

1364

Motion to Adopt Arguments of Codefendant Jumaev in Doc 1358 RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov. (Williamson, Warren) Modified on 4/18/2017 to unrestrict pursuant to JLK instructions and turn into a Motion (jhawk, ). (Entered: 04/18/2017)

04/18/2017 1365 ORDER granting 1364 Motion for Order as to Jamshid Muhtorov (1). Ordered by Judge John L. Kane on 4/18/2017. Text Only Entry (jlksec) (Entered: 04/18/2017)

04/19/2017

1366 RESPONSE to Motion by USA as to Jamshid Muhtorov re 1327 MOTION to Dismiss for Violation of Constitutional Right to Speedy Trial (Holloway, Gregory) (Entered: 04/19/2017)

04/19/2017

1367

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. At the government's request, an ex parte classified hearing is set for 9:00 a.m. tomorrow, April 20, 2017, before the 10:00 a.m. status conference. The government's request was general and did not indicate that CIPA or CIPA classified materials would be discussed. Defense counsel will be apprised of any non-classified subject matter discussed at the hearing. Ordered by Judge John L. Kane on 4/19/2017. Text Only Entry (jlksec) (Entered: 04/19/2017)

04/20/2017

1368 ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. Government's Motion to Reconsider is Denied 1321 . Signed by Judge John L. Kane on 04/20/17. (jhawk, ) (Entered: 04/20/2017)

04/20/2017

1369

MINUTE ENTRY for In Camera Hearing, Ex Parte, Classified proceedings held before Judge John L. Kane with the United States Government on 4/20/2017. Court Reporter: Terri Lindblom. (babia) Text Only Entry (Entered: 04/20/2017)

04/20/2017

1370

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 4/20/2017 as to Jamshid Muhtorov (1) and Bakhtiyor Jumaev (2). Defendants not present, in custody. Granting 1334 Motion for Order as to Jamshid Muhtorov (1); Finding as moot 1333 Motion for Order as to Bakhtiyor Jumaev (2), based on in-court discussion. Motion Hearing set for 5/18/2017 10:00 AM in Courtroom A 802 before Judge John L. Kane. THE APPEARANCES OF BOTH DEFENDANTS JAMSHID MUHTOROV(1) AND BAKHTIYOR JUMAEV (2) ARE REQUIRED. Court Reporter: Terri Lindblom. (babia) (Main Document 1370 replaced on 4/20/2017) (babia, ). (Entered: 04/20/2017)

04/21/2017

1371

TRANSCRIPT of Motion hearing as to Jamshid Muhtorov held on February 22, 2017 before Judge Kane. Pages: 1-113. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (thoff, ) (Entered: 04/21/2017)

04/21/2017

1372

TRANSCRIPT of Motion hearing as to Jamshid Muhtorov held on February 24, 2017 before Judge Kane. Pages: 114-165 and 192-315. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (thoff, ) (Entered: 04/21/2017)

04/21/2017

1373 RESTRICTED TRANSCRIPT of proceedings held on February 24, 2017 before Judge Kane. Pages: 166-191. (thoff, ) (Entered: 04/21/2017)

04/21/2017

1374

TRANSCRIPT of Status Conference as to Jamshid Muhtorov held on February 15, 2017 before Judge Kane. Pages: 1-30. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court

Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (thoff, ) (Entered: 04/21/2017)

04/21/2017

1375

TRANSCRIPT of Motion Hearing - Day One as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 1/09/2017 before Judge Kane. Pages: 1-172. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 04/21/2017)

04/21/2017

1376

TRANSCRIPT of Motion Hearing - Day Two as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 1/10/2017 before Judge Kane. Pages: 173-341. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 04/21/2017)

04/21/2017 1377 RESTRICTED TRANSCRIPT of proceedings held on 1/10/2017 before Judge Kane. Pages: 207-213. (tlind, ) (Entered: 04/21/2017)

04/21/2017

1378

TRANSCRIPT of Motion Hearing - Day Three as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 1/11/2017 before Judge Kane. Pages: 341-518. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts

document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 04/21/2017)

04/21/2017

1379

TRANSCRIPT of Motion Hearing - Day Four as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 1/12/2017 before Judge Kane. Pages: 519-656. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 04/21/2017)

04/21/2017

1380

TRANSCRIPT of Motion Hearing - Day Six as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 1/17/2017 before Judge Kane. Pages: 845925. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 04/21/2017)

04/21/2017 1381 RESTRICTED TRANSCRIPT of proceedings held on 1/17/2017 before Judge Kane. Pages: 828-844. (tlind, ) (Entered: 04/21/2017)

04/21/2017

1382

TRANSCRIPT of Hearing as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 3/13/2017 before Judge Kane. Pages: 1-80. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically

available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 04/21/2017)

04/21/2017

1383

TRANSCRIPT of Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 3/14/2017 before Judge Kane. Pages: 1-13. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 04/21/2017)

04/21/2017 1384 RESTRICTED TRANSCRIPT of proceedings held on 3/2/2017 before Judge Kane. Pages: 1-33. (tlind, ) (Entered: 04/21/2017)

04/21/2017 1385 RESTRICTED TRANSCRIPT of proceedings held on 1/25/2017 before Judge Kane. Pages: 1-51. (tlind, ) (Entered: 04/21/2017)

04/21/2017 1386 RESTRICTED TRANSCRIPT of proceedings held on 1/31/2017 before Judge Kane. Pages: 1-68. (tlind, ) (Entered: 04/21/2017)

04/21/2017 1387 RESTRICTED TRANSCRIPT of proceedings held on 12/20/2016 before Judge Kane. Pages: 1-54. (tlind, ) (Entered: 04/21/2017)

04/21/2017

1388

TRANSCRIPT of Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 6/7/2016 before Judge Kane. Pages: 1-50. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court

Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 04/21/2017)

04/21/2017

1389

ORDER as to Jamshid Muhtorov re: Defendant's Motion for Order Directing Government to Grant Parole so Foreign Witnesses May Be Temporarily Admitted to the United States to Testify at Trial 1334 . Signed by Judge John L. Kane on 04/21/17. (jhawk, ) (Entered: 04/24/2017)

04/26/2017

1390 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/26/2017)

04/26/2017 1391 ORDER granting 1390 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 04/26/17. (jhawk, ) (Entered: 04/26/2017)

05/01/2017

1393

STRICKEN - MOTION for Speedy Trial or Release on Bond and Order for Discovery to be Supplied to Defendant by Jamshid Muhtorov. (athom, ) ( Modified on 5/3/2017 to strike pursuant to 1394 order (athom, ). (Entered: 05/01/2017)

05/01/2017

1394

ORDER striking 1393 Motion for Speedy Trial as to Jamshid Muhtorov (1). As noted in CM/ECF No. 842, Mr. Muhtorov is represented by counsel and is not permitted to file pro se. Ordered by Judge John L. Kane on 5/1/2017. Text Only Entry (jlksec) (Entered: 05/01/2017)

05/08/2017

1395

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. Counsel for the parties are directed to CONFER and PREPARE a jointly proposed Notice of Agenda Items to be addressed at the Status Conference scheduled for Thursday, May 11, 2017, at 10:00 a.m. The Notice should be filed no later than noon on Wednesday, May 10, 2017. Ordered by Judge John L. Kane on 5/8/2017. Text Only Entry (jlksec) (Entered: 05/08/2017)

05/09/2017

1397

MINUTE ORDER. The government's "Response to Motion for Parole of Witnesses and Request for Reconsideration" 1396 , filed with regard to Defendant 2 Bakhtiyor Jumaev only, is both a Response to Mr. Jumaev's Motion to Parole Witnesses 1392 and a separate Motion to Reconsider the court's 4/21/17 Order 1389 granting Mr. Muhtorov's Motion to Parole of Witnesses. Mr. Muhtorov is ORDERED to respond to the Motion to Reconsider on or before Tuesday, May 16, 2017, so that the witness parole question as it applies to his trial may be addressed on May 18, 2017, when the parties will be before the court on Mr. Muhtorov's Motion 1327 to Dismiss for Violation of Speedy Trial. Mr. Jumaev's Motion will be addressed in the normal

course. Entered by Judge John L. Kane on 05/09/17. Text Only Entry (jhawk, ) (Entered: 05/09/2017)

05/10/2017

1398 STATUS REPORT Regarding Agenda Items for Status Conference on May 11, 2017 by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Gibson, Beth) (Entered: 05/10/2017)

05/11/2017

1400

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 5/11/2017 as to Jamshid Muhtorov, Bakhtiyor Jumaev. Defendants NOT present, in custody. Court Reporter: Terri Lindblom. (babia) (Entered: 05/11/2017)

05/11/2017 1401 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (babia) (Entered: 05/11/2017)

05/15/2017

1402 STRICKEN -Pro Se Motion to Demand Trial or Dismissal filed by Jamshid Muhtorov. (jhawk, ) Modified on 5/15/2017 to strike pursuant to the Order of 05/15/17 (jhawk, ). (Entered: 05/15/2017)

05/15/2017

1403

ORDER striking 1402 Motion for Order as to Jamshid Muhtorov (1). As noted in CM/ECF No. 842, Mr. Muhtorov is represented by counsel and is not permitted to file pro se. Ordered by Judge John L. Kane on 5/15/2017. Text Only Entry (jlksec) (Entered: 05/15/2017)

05/16/2017

1404

REPLY TO RESPONSE to Motion by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev re 1392 MOTION for Order Directing the Government to Grant Parole of Foreign Witnesses and His Adoption of Mr. Muhtorov's "Motion for Parole" (Doc. 1334) - Mr. Muhtorov's Reply to the Government's "Request for Reconsideration," Doc. 1396 (Attachments: # 1 Attachment A)(Williamson, Warren) (Entered: 05/16/2017)

05/18/2017

1405

STRICKEN Combined MOTION for Sanctions on Excessive Discovery and Request for Speedy Trial or Dismissal by Jamshid Muhtorov. (jhawk, ) Modified on 5/18/2017 stricken pursuant to the Order of 05/18/17 (jhawk, ). (Entered: 05/18/2017)

05/18/2017

1406

ORDER striking 1405 Motion for Sanctions as to Jamshid Muhtorov (1). As noted in CM/ECF No. 842, Mr. Muhtorov is represented by counsel and is not permitted to file pro se. Ordered by Judge John L. Kane on 5/18/2017. Text Only Entry (jlksec) (Entered: 05/18/2017)

05/18/2017

1409

MINUTE ENTRY for Motion Hearing proceedings held before Judge John L. Kane on 5/18/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants present, in custody. Denying 1327 Motion to Dismiss as to Jamshid Muhtorov (1). ORDERED: The Governments Motion for Reconsideration (Doc. No.

1396) is GRANTED to VACATE language directing the Executive to parole into the country any particular witness. ORDERED: The Order (Doc. No. 1389) is REAFFIRMED to the extent it directs the Prosecution to continue working with Defense counsel to secure the presence of Mr. Muhtorovs witnesses for trial. Defendants are REMANDED. Court Reporter: Tamara Hoffschildt. Interpreter: Hasmik Jorgensen and Nodira Matyakubova. (babia) (Entered: 05/19/2017)

05/18/2017

1410

RESTRICTED DOCUMENT - Level 1: Defendant's Exhibit A, offered and admitted, by Jamshid Muhtorov as to Motions Hearing held for Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2) on May 18, 2017. (babia) (Entered: 05/19/2017)

05/19/2017

1407 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3)(Williamson, Warren) (Entered: 05/19/2017)

05/19/2017 1408 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 05/19/2017)

05/22/2017

1411

ORDER granting 1407 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 05/22/17. (Attachments: # 1 Order, # 2 Order) (jhawk, ) (Entered: 05/22/2017)

05/22/2017

1412 ORDER granting 1408 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 05/22/17. (jhawk, ) (Entered: 05/22/2017)

05/24/2017 1413 STRICKEN Motion for Bond Pending Trial or Dismissal of Case by Jamshid Muhtorov. (jhawk, ) Modified on 5/24/2017 stricken pursuant to the order of 05/24/17 (jhawk, ). (Entered: 05/24/2017)

05/24/2017

1414

ORDER striking 1413 Motion for Bond Pending Trial or Dismissal of Case as to Jamshid Muhtorov (1). As noted in CM/ECF No. 842, Mr. Muhtorov is represented by counsel and is not permitted to file pro se. Ordered by Judge John L. Kane on 5/24/2017. Text Only Entry (jlksec) (Entered: 05/24/2017)

05/25/2017

1415 Joint MOTION for Order approving a Jointly Proposed Pretrial Schedule by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Tonini, David) (Entered: 05/25/2017)

05/25/2017 1416 ORDER granting 1415 Motion for Order as to Jamshid Muhtorov (1) for Pretrial Schedule as detailed in the motion. The parties will file

jury instructions and questionnaires, identifying which are opposed and unopposed, and, if applicable, a joint exhibit list on or before June 30, 2017. The parties will file any objections to opposing partys instructions and questionnaire on or before July 7, 2017. The government will file its witness and exhibit lists for those exhibits that were not previously on the joint exhibit list on or before July 24, 2017. Mr. Muhtorov will file his witness and exhibit lists for those exhibits that were not previously on the joint exhibit list on or before July 31, 2017. Ordered by Judge John L. Kane on 5/25/2017. Text Only Entry (jlksec) (Entered: 05/25/2017)

05/25/2017

1417

MINUTE ORDER: The Status Conference scheduled for Thursday, June 15, 2017, at 10:00 AM is VACATED and RESET for 10:00 AM on Wednesday, June 14, 2017, in Courtroom A802 of the Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado, before Judge John L. Kane. Entered by Judge John L. Kane on 05/25/17. Text Only Entry (jhawk, ) (Entered: 05/25/2017)

05/26/2017

1418 MOTION for Order for Pretrial Release by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Attachments: # 1 Attachment A)(Williamson, Warren) (Entered: 05/26/2017)

05/30/2017 1419 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Gibson, Beth) (Entered: 05/30/2017)

05/30/2017

1420

RESTRICTED DOCUMENT - Level 1: Motion to Sever the Deposition by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Gibson, Beth) Modified on 6/1/2017 to add text (jhawk, ). (Entered: 05/30/2017)

05/30/2017

1422

Ordered as to as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). Government's Motion to Restrict Document 1419 is Granted. Document 1420 shall remain under Level 1 Restriction. Entered by Judge John L. Kane on 05/30/17. Text Only Entry (jhawk, ) (Entered: 05/30/2017)

06/02/2017

1424

MINUTE ORDER GRANTING third Unopposed Motion to Modify Order re Government's Rule 16(d) Motion 1194 . With the government's consent, provisions (5) and (9) of Doc. 1194 are modified to permit Jumaev team member Darren McClaury the same level of access to information, subject to the same responsibilities as to secrecy, as other authorized defense team members. Entered by Judge John L. Kane on 06/02/17. Text Only Entry (jhawk, ) (Entered: 06/02/2017)

06/07/2017 1426 MINUTE ORDER The government shall respond to Defendant Muhtorov's Motion 1418 for Pretrial Release on or before Monday,

June 12, 2017. Defendant's Reply is due before the status conference on Wednesday, June 14, 2017. Ordered by Judge John L. Kane on 6/7/2017. Text Only Entry (jlksec) (Entered: 06/07/2017)

06/09/2017 1427 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (jhawk, ) (Entered: 06/09/2017)

06/09/2017 1428 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (jhawk, ) (Entered: 06/09/2017)

06/09/2017

1429

Amended ORDER re Defendant's Motion for Order Directing Government to Grant Parole so Foreign Witnesses May Be Temporarily Admitted to the United States to Testify at Trial as to Jamshid Muhtorov 1334 . Signed by Judge John L. Kane on 06/09/17. (jhawk, ) (Entered: 06/09/2017)

06/09/2017

1430 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 06/09/2017)

06/09/2017 1431 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 06/09/2017)

06/09/2017 1432 ORDER granting 1430 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 06/09/17. (jhawk, ) (Entered: 06/09/2017)

06/09/2017 1433 ORDER granting 1431 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 06/09/17. (jhawk, ) (Entered: 06/09/2017)

06/09/2017 1434 MINUTE ORDER: The Status Conference scheduled for Wednesday, June 14, 2017, at 10:00 AM is VACATED. Entered by Judge John L. Kane on 06/09/17. Text Only Entry (jhawk, ) (Entered: 06/09/2017)

06/09/2017

1435

MINUTE ORDER: A Motion Hearing is set for 9:30 AM on Thursday, June 22, 2017, in Courtroom A802 of the Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado, before Judge John L. Kane. The court will hear argument on Mr. Muhtorov's Motion for Pretrial Release (Doc. 1418). Mr. Muhtorov's presence is required. Entered by Judge John L. Kane on 06/09/17. Text Only Entry (jhawk, ) (Entered: 06/09/2017)

06/12/2017 1436 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 06/12/2017)

06/12/2017 1437 ORDER granting 1436 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). Signed by Judge John L. Kane on 06/12/17. (jhawk, ) (Entered: 06/12/2017)

06/12/2017

1438

RESPONSE to Motion by USA as to Jamshid Muhtorov re 1418 MOTION for Order for Pretrial Release (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Holloway, Gregory) (Entered: 06/12/2017)

06/14/2017

1439

REPLY TO RESPONSE to Motion by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev re 1418 MOTION for Order for Pretrial Release -- Defendant's Reply to Government Response (Doc. 1438) In Opposition to His Bail Motion (Doc. 1418) (Williamson, Warren) (Entered: 06/14/2017)

06/16/2017

1440 NOTICE of Intent to Use Evidence by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Tonini, David) (Entered: 06/16/2017)

06/16/2017 1441 NOTICE of Intent to Use Evidence by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Tonini, David) (Entered: 06/16/2017)

06/16/2017 1442 NOTICE of Intent to Use Evidence by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Tonini, David) (Entered: 06/16/2017)

06/16/2017 1443 NOTICE of Intent to Use Evidence by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit)(Tonini, David) (Entered: 06/16/2017)

06/22/2017

1445

TRANSCRIPT of Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 4/20/2017 before Judge Kane. Pages: 1-38. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 06/22/2017)

06/22/2017

1446

TRANSCRIPT of Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 5/11/2017 before Judge Kane. Pages: 1-17. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 06/22/2017)

06/22/2017

1447

MINUTE ENTRY for Motion Hearing proceedings held before Judge John L. Kane on 6/22/2017 as to Jamshid Muhtorov (1). Defendant present, in custody. Taking under advisement 1418 Motion for Order as to Jamshid Muhtorov (1). Motion Hearing CONTINUED for 6/23/2017 11:00 AM in Courtroom A 802 before Judge John L. Kane. Defendant is REMANDED. Court Reporter: Terri Lindblom. Interpreter: Yuliya Fedasanka and Hasmik Jorgensen. (babia) (Entered: 06/22/2017)

06/23/2017

1448

ORDER as to Jamshid Muhtorov (1). Based on the foregoing, I am GRANTING Mr. Muhtorovs Motion for Release on Conditions 1418 , but will ABATE my order for his release so that the specific combination of conditions can be aired and determined with comment from all sides. I am setting a hearing to determine the contents of my release order and the specific conditions with which Mr. Muhtorov is expected to abide. Signed by Judge John L. Kane on 06/23/17. (jhawk, ) (Entered: 06/23/2017)

06/23/2017

1449

MINUTE ENTRY for Motion Hearing proceedings held before Judge John L. Kane on 6/23/2017 as to Jamshid Muhtorov. Defendant present in CUSTODY. ORDERED: Motion For Pretrial Release (Filed 5/26/17; Doc. No. 1418) is GRANTED but ABATED until a hearing to set specific conditions of release can be held. An In Court Hearing is set for Monday, 6/26/2017 at 01:30 PM in Courtroom A 802 before Judge John L. Kane. Defendant is REMANDED. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen. (babia) (Entered: 06/23/2017)

06/23/2017 1450 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (jhawk, ) (Entered: 06/23/2017)

06/23/2017 1451 NOTICE of Defendant's Proposed Conditions of Pretrial Release by Jamshid Muhtorov (Attachments: # 1 Attachment A)(Williamson, Warren) (Entered: 06/23/2017)

06/26/2017 1452 NOTICE OF APPEAL as to 1448 Order on Motion for Order, by USA as to Jamshid Muhtorov (Holloway, Gregory) (Entered: 06/26/2017)

06/26/2017

1453

LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 1452 Notice of Appeal as to Jamshid Muhtorov to the U.S. Court of Appeals. (Attachments: # 1 Docket Sheet and Preliminary Sheet)(cthom, ) (Entered: 06/26/2017)

06/26/2017 1454 USCA Case Number as to Jamshid Muhtorov 17-1220 for 1452 Notice of Appeal filed by USA. (cthom, ) (Entered: 06/26/2017)

06/26/2017

1455

MINUTE ENTRY for In Court Hearing proceedings held before Judge John L. Kane on 6/26/2017 as to Jamshid Muhtorov. Defendant present, in custody. ORDERED: The Probation Departments proposed conditions are APPROVED, as modified on the record. The Order for pretrial release is STAYED, to and including June 29, 2017, so that Pretrial Services can conduct a home evaluation, as specified. ORDERED: Defendants Proposed Conditions of Pretrial Release (Filed 6/23/17; Doc. No. 1451) is DENIED as MOOT. An In Court Hearing is set for 6/29/2017 at 10:00 AM in Courtroom A 802 before Judge John L. Kane. Jury Trial set for 7/31/2017 at 9:00 AM is VACATED and RESET for 3/12/2018 09:00 AM in Courtroom A 802 before Judge John L. Kane. ORDERED: All the subpoenas that have been issued returnable for the July 31, 2017 trial date are now returnable for the new trial date of March 12, 2018. Defendant is REMANDED. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen. (babia) (Entered: 06/26/2017)

06/27/2017

1456

TRANSCRIPT of Hearing on Pretrial Detention as to Jamshid Muhtorov held on 6/22/2017 before Judge Kane. Pages: 1-30. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court

Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 06/27/2017)

06/27/2017

1457

TRANSCRIPT of Ruling on Motion for Pretrial Release as to Jamshid Muhtorov held on 6/23/2017 before Judge Kane. Pages: 1-23. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 06/27/2017)

06/27/2017

1458

TRANSCRIPT of Hearing on Pretrial Release as to Jamshid Muhtorov held on 6/26/2017 before Judge Kane. Pages: 1-14. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 06/27/2017)

06/28/2017 1459 ORDER of USCA as to Jamshid Muhtorov re 1452 Notice of Appeal. (USCA Case No. 17-1220) (cthom, ) (Entered: 06/28/2017)

06/28/2017

1460

MINUTE ORDER as to Jamshid Muhtorov confirming that the in court hearing scheduled for Thursday, June 29, 2017, at 10:00 a.m. will take place as scheduled. Defendant Muhtorov's presence is required. Ordered by Judge John L. Kane on 6/28/2017. Text Only Entry (jlksec) (Entered: 06/28/2017)

06/28/2017 1461 ORDER of USCA as to Jamshid Muhtorov re 1452 Notice of Appeal. (USCA Case No. 17-1220) (cthom, ) (Entered: 06/29/2017)

06/29/2017 1462 COURTROOM MINUTES for In Court Hearing as to Jamshid Muhtorov held before Judge John L. Kane on 6/29/2017. Court

approves the condition of home confinement, and the order of abatement is no longer operative. A transcript of this hearing shall be prepared as soon as possible and filed with the Tenth Circuit Court of Appeals. Order Setting Conditions of Release is certified to the Tenth Circuit Court of Appeals. The orders of this Court are stayed until further order from the Tenth Circuit Court of Appeals. Defendant remanded. Court Reporter: Janet Coppock. Interpreter: Hasmik Jorgensen. (ebuch) (Additional attachment(s) added on 6/29/2017: # 1 Proposed Order (PDF Only)) (cthom, ). (Entered: 06/29/2017)

06/29/2017

1463

TRANSCRIPT of Status Conference as to Jamshid Muhtorov held on June 29, 2017 before Judge John L. Kane. Pages: 1-10. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (jcopp, ) (Entered: 06/29/2017)

07/07/2017 1464 ORDER of USCA as to Jamshid Muhtorov re 1452 Notice of Appeal. (USCA Case No. 17-1220) (cthom, ) (Entered: 07/10/2017)

07/12/2017 1465 MINUTE ORDER: The Status Conference scheduled for Thursday, July 13, 2017, at 10:00 AM is VACATED. Ordered by Judge John L. Kane on 7/12/2017. Text Only Entry (jlksec) (Entered: 07/12/2017)

07/13/2017

1466

MINUTE ENTRY for In Camera Hearing, Ex Parte, proceedings held before Judge John L. Kane with the United States Government on 7/13/2017. Court Reporter: Terri Lindblom. (babia) Text Only Entry (Entered: 07/13/2017)

07/21/2017

1468

USCA Order and Judgment as to Jamshid Muhtorov re 1452 Notice of Appeal : (USCA Case No. 17-1220) (This document is not the Mandate) "The temporary stay of the June 23 order, which was granted on July 7, 2017, is now lifted. For the reasons set forth above, we reverse the district courts release order dated June 23, 2017. Muhtorov shall be detained pending trial." (cthom, ) (Entered: 07/21/2017)

07/24/2017 1469 ORDER of USCA as to Jamshid Muhtorov re 1452 Notice of Appeal. (USCA Case No. 17-1220) (cthom, ) (Entered: 07/24/2017)

07/24/2017 1470 MANDATE of USCA as to Jamshid Muhtorov re 1468 USCA Order/Opinion/Judgment, 1452 Notice of Appeal. (USCA Case No. 17-1220) (cthom, ) (Entered: 07/24/2017)

07/27/2017 1471 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Gibson, Beth) (Entered: 07/27/2017)

07/27/2017 1472 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Gibson, Beth) (Entered: 07/27/2017)

07/28/2017

1474 ORDER granting 1472 Motion for Leave to Restrict as to Bakhtiyor Jumaev (2) by Judge John L. Kane on 7/28/2017. (cthom, ) (Entered: 07/28/2017)

08/21/2017

1478

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev re 1467 Restricted Document - Level 1 filed by Bakhtiyor Jumaev. Defendant Muhtorov's Response to Defendant Jumaev's motion 1467 shall be filed on or before August 30, 2017. Counsel for all parties should confer and call chambers jointly on or before August 31, 2017, in order to set a status conference - 303-844-6118. The status conference will be held before September 25, 2017. Ordered by Judge John L. Kane on 8/21/2017. Text Only Entry (jlksec) (Entered: 08/21/2017)

08/23/2017 1479 RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov. (Williamson, Warren) (Entered: 08/23/2017)

08/23/2017

1480

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. The Government's request for an outright denial of Defendant Jumaev's Motion for Videotaping Deposition 1467 is denied. The Government shall submit any additional briefing it would like the court to consider on or before Friday, September 1, 2017. Mr. Jumaev's Reply is due on or before September 12, 2017. Ordered by Judge John L. Kane on 8/23/2017. Text Only Entry (jlksec) (Entered: 08/23/2017)

08/23/2017

1481

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. A Status Conference is set for 9/25/2017 at 10:00 AM in Courtroom A802 before Judge John L. Kane. The presence of the Defendants is NOT required. Ordered by Judge John L. Kane on 8/23/2017. Text Only Entry (jlksec) (Entered: 08/23/2017)

09/01/2017 1483 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 09/01/2017)

09/01/2017 1484 (RESTRICTED DOCUMENT - Level 1) 2nd Response to 1467 by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway,

Gregory) Modified to add text on 9/18/2017 (cthom, ). (Entered: 09/01/2017)

09/05/2017

1485 ORDER granting 1483 Motion for Leave to Restrict as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). ORDERED by Judge John L. Kane on 9/5/2017. (cthom, ) (Entered: 09/05/2017)

09/12/2017 1487 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 09/12/2017)

09/12/2017

1488

ORDER on 1487 FPD Motion for Issuance of Subpoena in Forma Pauperis, as to Jamshid Muhtorov (1), by Judge John L. Kane on 9/12/17. (Attachments: # 1 Attachment) (dkals, ) (Entered: 09/12/2017)

09/13/2017

1489 NOTICE of Classified Ex Parte, In Camera Motion Filed by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 09/13/2017)

09/13/2017 1490 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 09/13/2017)

09/14/2017

1491 ORDER granting 1490 Motion for Leave to Restrict as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). ORDERED by Judge John L. Kane on 9/14/2017. (cthom, ) (Entered: 09/14/2017)

09/18/2017 1494 ORDER Setting Agenda Items for 9/25/2017 Status Conference as to Jamshid Muhtorov, Bakhtiyor Jumaev. ORDERED by Judge John L. Kane on 9/18/2017. (cthom, ) (Entered: 09/18/2017)

09/20/2017

1498

MINUTE ORDER. Judge John L. Kane directs counsel to ADD Doc. 1300, Motion for Leave to File Expert Endorsements, as an AGENDA ITEM for the 9/25/17 Status Conference. Ordered by Judge John L. Kane on 9/20/2017. Text Only Entry (jlksec) (Entered: 09/20/2017)

09/21/2017

1499

(RESTRICTED DOCUMENT - Level 1) Joint Status Report: Agenda Items by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Gibson, Beth) Modified to add title on 9/22/2017 (cthom, ). (Entered: 09/21/2017)

09/21/2017 1500 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Gibson, Beth) (Entered: 09/21/2017)

09/22/2017

1501 ORDER granting 1500 Motion for Leave to Restrict as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). ORDERED by Judge John L. Kane on 9/22/2017. (cthom, ) (Entered: 09/22/2017)

09/25/2017

1503

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane on 9/25/2017 as to Defendants Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants not present, in custody. Granting 1300 Motion for Leave to File as to Bakhtiyor Jumaev (2). A Discovery Hearing is set for 10/30/2017 at 01:00 PM and 10/31/2017 at 09:00 AM in Courtroom A 802 before Judge John L. Kane. A Status Conference is set for 9/28/2017 10:00 AM in Courtroom A 802 before Judge John L. Kane. Court Reporter: Tamara Hoffschildt. (babia) (Entered: 09/25/2017)

09/29/2017

1506

Letter from U.S. Supreme Court regarding Petition for Writ of Certiorari re 1452 Notice of Appeal ; assigned Supreme Court No. 176163 as to Jamshid Muhtorov ( Appeal No. 17-1220) (cthom, ) (Entered: 09/29/2017)

10/03/2017 1512 (RESTRICTED DOCUMENT - Level 2) Motion for Discovery as to Jamshid Muhtorov. (Williamson, Warren) Modified to add title on 10/3/2017 (cthom, ). (Entered: 10/03/2017)

10/10/2017

1515 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 10/10/2017)

10/12/2017 1518 RESTRICTED DOCUMENT - Level 3 as to Jamshid Muhtorov. (Attachments: # 1 Exhibit)(cthom, ) (Entered: 10/12/2017)

10/12/2017

1519

MINUTE ORDER as to Jamshid Muhtorov and Bakhtiyor Jumaev. In accordance with my statement at the September 25, 2017 status conference, an evidentiary hearing regarding Docs. 813 , 825 , and 832 is set for November 9, 2017, at 9 a.m. in Courtroom A-802, Alfred A. Arraj U.S. District Courthouse, 901 19th St., Denver, Colorado. Defendants' presence is required. ORDERED by Judge John L. Kane on 10/12/2017. Text Only Entry. (cthom, ) (Entered: 10/12/2017)

10/13/2017

1520

TRANSCRIPT of Status Conference as to Jamshid Muhtorov held on September 25, 2017 before Judge Kane. Pages: 1-26. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court

Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (thoff, ) (Entered: 10/13/2017)

10/17/2017

1525

(RESTRICTED DOCUMENT - Level 1) Response to 1512 and 1517 by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified to add text pursuant to 1527 Order on 10/18/2017 (cthom, ). (Entered: 10/17/2017)

10/18/2017 1526 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 10/18/2017)

10/18/2017 1527 ORDER granting 1526 Motion for Leave to Restrict by Judge John L. Kane on 10/18/2017. (cthom, ) (Entered: 10/18/2017)

10/24/2017 1532 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 10/24/2017)

10/24/2017 1533 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 10/24/2017)

10/24/2017 1534 NOTICE Government's Request for CIPA Section 4 Status Hearing by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 10/24/2017)

10/24/2017

1535

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. At the government's request, an ex parte classified hearing is set for 2:30 p.m. tomorrow, October 25, 2017. The government's request for the hearing was general and nonspecific. Defense counsel will be apprised of any non-classified subject matter discussed at the hearing. Ordered by Judge John L. Kane on 10/24/2017. Text Only Entry (jlksec) (Entered: 10/24/2017)

10/24/2017 1536 ORDER granting 1533 Motion for Leave to Restrict as to Jamshid Muhtorov (1) and Bakhtiyor Jumaev (2). ORDERED by Judge John L. Kane on 10/24/2017. (cthom, ) (Entered: 10/25/2017)

10/25/2017

1538 NOTICE of Withdrawal of Appearance by Department of Justice as to Jamshid Muhtorov, Bakhtiyor Jumaev (Korczynski, Kiersten) (Entered: 10/25/2017)

10/25/2017

1539

MINUTE ORDER as to Jamshid Muhtorov, Bakhtiyor Jumaev. The court construes the Government's 1538 Notice of Withdrawal of Appearance as a Motion to Withdraw and GRANTS the request. Given that representation of the Government will continue with Mr. Holloway, Ms. Gibson, and Mr. Tonini, Attorney Kiersten Jennifer Korczynski is authorized to WITHDRAW as counsel. Ms. Korczynski

shall be removed from future electronic notifications in this case. ORDERED by Judge John L. Kane on 10/25/2017. (cthom, ) (Entered: 10/25/2017)

10/25/2017

1540

MINUTE ENTRY for In Camera Hearing, Ex Parte (Status Conference) Classified proceedings held before Judge John L. Kane with United States Government on 10/25/2017. Court Reporter: Terri Lindblom. (babia) Text Only Entry Modified on 10/26/2017 to correct text error. (babia) (Entered: 10/25/2017)

10/26/2017 1542 RESTRICTED TRANSCRIPT of proceedings held on September 28, 2017 before Judge Kane. Pages: 1-15. (thoff, ) (Entered: 10/26/2017)

10/26/2017

1543

TRANSCRIPT of Hearing as to Jamshid Muhtorov held on September 28, 2017 before Judge Kane. Pages: 16-26. <br><br> NOTICE REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (thoff, ) (Entered: 10/26/2017)

10/26/2017

1544

TRANSCRIPT of Hearing as to Jamshid Muhtorov held on September 25, 2017 before Judge Kane. Pages: 1-26. <br><br> NOTICE REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (thoff, ) (Entered: 10/26/2017)

10/30/2017

1545

MINUTE ENTRY for Discovery Hearing proceedings held before Judge John L. Kane on 10/30/2017 as to Jamshid Muhtorov, Bakhtiyor Jumaev. ORDERED: The United States Marshal Service shall have Defendants Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2) available in person for the Discovery Hearing set October 31, 2017

at 9:00 a.m. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Nodira Matyakubova. (babia) (Entered: 10/30/2017)

10/30/2017 1546 RESTRICTED DOCUMENT - Level 2: as to Jamshid Muhtorov. (babia) (Entered: 10/31/2017)

10/31/2017

1550

MINUTE ENTRY for Discovery Hearing proceedings held before Judge John L. Kane 10/31/2017 as to Jamshid Muhtorov, and Bakhtiyor Jumaev. ***Finding as moot [] Motion as to Bakhtiyor Jumaev (2); ***Granting [] Motion as to Bakhtiyor Jumaev (2). ORDERED:Immediately following todays hearing counsel for the Government and counsel for Defendant Jumaev shall meet and confer and provide names and contact information of Tajik Interpreters to Interpreter Services (LaDonne Bush) by Wednesday, November 8, 2017. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Nodira Matyakubova. (Attachments: # 1 Exhibit, # 2 Exhibit) (babia) (Entered: 11/01/2017)

11/01/2017

1551

MINUTE ENTRY for Discovery Hearing Day 3 proceedings held before Judge John L. Kane on 11/1/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen. (Attachments: # 1 Exhibit 3) (babia) (Entered: 11/02/2017)

11/01/2017

1552

MINUTE ENTRY for In Camera Hearing, Ex Parte (Status Conference) Classified proceedings held before Judge John L. Kane with the Government on 11/1/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Court Reporter: Terri Lindblom. (babia) Text Only Entry (Entered: 11/02/2017)

11/02/2017 1553 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 11/02/2017)

11/02/2017

1554 MOTION to Withdraw as Attorney by Erin Martha Creegan by Department of Justice as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Creegan, Erin) (Entered: 11/02/2017)

11/03/2017

1555

ORDER granting 1554 Motion to Withdraw as Attorney. Given that representation of the Government will continue with Mr. Holloway, Ms. Gibson, and Mr. Tonini, Attorney Erin Creegan is authorized to WITHDRAW as counsel. Ms. Creegan shall be removed from future electronic notifications in this case. ORDERED by Judge John L. Kane on 11/3/2017. Text Only Entry (cthom, ) (Entered: 11/03/2017)

11/03/2017 1556 MINUTE ORDER GRANTING Government's 1553 Motion to Restrict Document No. 1551-1, despite the fact that it refers to a seemingly unrelated 1194 Protective Order. As a warning to the

government, informal, ex parte requests of the Court are unacceptable. Written motions must be filed including some justification substantiating any request. ORDERED by Judge John L. Kane on 11/3/2017. Text Only Entry (cthom, ) (Entered: 11/03/2017)

11/06/2017

1560

NOTICE to Defendants of In Camera, Ex Parte Under Seal Filing by the United States Pursuant to the Classified Information Procedures Act by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 11/06/2017)

11/06/2017

1561

Letter from U.S. Supreme Court regarding Petition for Writ of Certiorari re 1452 Notice of Appeal ; assigned Supreme Court No. 176163 as to Jamshid Muhtorov ( Appeal No. 17-1220) "The petition for a writ of certiorari is denied." (cthom, ) (Entered: 11/06/2017)

11/08/2017

1562 (RESTRICTED DOCUMENT - Level 1) Order re November 9, 2017 Evidentiary Hearing. ORDERED by Judge John L. Kane on 11/8/2017. (cthom, ) (Entered: 11/08/2017)

11/09/2017

1563

MINUTE ENTRY for Evidentiary Hearing proceedings held before Judge John L. Kane on 11/9/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants present, in custody. ORDERED:Defendants Motion To Dismiss, (as related to Doc. Nos. 813 and 825), is DENIED. In Court Hearing set for 12/21/2017 at 10:30 AM in Courtroom A 802 before Judge John L. Kane. Defendant Jumaev (2) and Interpreter shall be present. ORDERED: Counsel shall file a Joint Status report by December 18, 2017. Trial Preparation Conference set for 1/3/2018 at 10:30 AM in Courtroom A 802 before Judge John L. Kane. Defendants REMANDED. Court Reporter: Tamara Hoffschildt. Interpreter: Hasmik Jorgensen and Nodira Matyakubova. (babia) (Additional attachment(s) added on 11/9/2017: # 1 Exhibit) (babia, ). (Entered: 11/09/2017)

11/13/2017

1564

MINUTE ENTRY for In Camera Hearing, Ex Parte Status Conference proceedings held before Judge John L. Kane with the Government on 11/13/2017 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Court Reporter: Terri Lindblom. (babia) Text Only Entry (Entered: 11/13/2017)

11/13/2017

1565 (RESTRICTED DOCUMENT - Level 1) Notice of Classified Order by Judge John L. Kane on 11/13/2017. (cthom, ) (Entered: 11/13/2017)

11/21/2017 1567 NOTICE to Defendants of In Camera, Ex Parte Under Seal Filing by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 11/21/2017)

11/24/2017

1571

TRANSCRIPT of Motion Hearing - Day 1 as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 10/30/2017 before Judge Kane. Pages: 1-6. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 11/24/2017)

11/24/2017

1572

TRANSCRIPT of Motion Hearing - Day 2 as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 10/31/2017 before Judge Kane. Pages: 7166. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 11/24/2017)

11/24/2017

1573

TRANSCRIPT of Motion Hearing - Day 3 as to Jamshid Muhtorov, Bakhtiyor Jumaev held on 11/1/2017 before Judge Kane. Pages: 167226. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 11/24/2017)

11/24/2017 1574 RESTRICTED TRANSCRIPT of proceedings held on 11/1/2017 before Judge Kane. Pages: 227-234. (tlind, ) (Entered: 11/24/2017)

11/30/2017

1578

MINUTE ENTRY for Status Conference proceedings held before Judge John L. Kane: as to Jamshid Muhtorov, and Bakhtiyor Jumaev on 11/30/2017. Court Reporter: Terri Lindblom. (babia) (Entered: 11/30/2017)

12/01/2017 1579 NOTICE of Classified Order by Judge John L. Kane on 12/1/2017. (cthom, ) (Entered: 12/01/2017)

12/05/2017 1580 RESTRICTED DOCUMENT - Level 3: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 12/05/2017)

12/05/2017

1581 RESTRICTED DOCUMENT - Level 3 as to Jamshid Muhtorov, Bakhtiyor Jumaev re: 1580 Restricted Document. (cthom, ) (Entered: 12/05/2017)

12/08/2017 1583 STATUS REPORT Notice of Defendant Muhtorov's Position Regarding Recent Developments by Jamshid Muhtorov (Williamson, Warren) (Entered: 12/08/2017)

12/08/2017 1584 NOTICE of the Government's Position by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Gibson, Beth) (Entered: 12/08/2017)

12/12/2017

1585

ORDER Vacating and Resetting Trial Dates and Deadlines as to Defendants Jamshid Muhtorov and Bakhtiyor Jumaev. Defendant Bakhtiyor Jumaev's trial set to begin January 8, 2018, is VACATED and is reset to begin March 12, 2018, and to run for seven weeks. Defendant Jamshid Muhtorov's trial set to begin March 12, 2018, is also VACATED and is reset to begin May 14, 2018, and to run for seven weeks. ORDERED by Judge John L. Kane on 12/12/2017. (cthom, ) (Entered: 12/12/2017)

12/12/2017

1586

Utility Setting/Resetting Deadlines/Hearings as to Jamshid Muhtorov: 7 week Jury Trial set for 5/14/2018 at 09:00 AM in Courtroom A 802 before Judge John L. Kane pursuant to 1585 Order. Text Only Entry (cthom, ) (Entered: 12/12/2017)

12/13/2017 1588 MOTION to Continue Subpoenas to New Trial Date by Jamshid Muhtorov. (Williamson, Warren) (Entered: 12/13/2017)

12/15/2017

1590

NOTICE to Defendants of In Camera, Ex Parte Under Seal Filing by the United States Pursuant to the Classified Information Procedures Act by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 12/15/2017)

12/15/2017 1591 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 12/15/2017)

12/18/2017

1592 ORDER granting 1591 Motion for Leave to Restrict as to Jamshid Muhtorov (1) and Bakhtiyor Jumaev (2). ORDERED by Judge John L. Kane on 12/18/2017. (cthom, ) (Entered: 12/18/2017)

12/19/2017

1593

NOTICE of Intent to Rely on FRE 902(14) to Autheniticate Certain Communications by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit, # 2 Exhibit)(Gibson, Beth) (Entered: 12/19/2017)

12/19/2017

1594

ORDER granting 1588 and 1589 Defendants' Motions to Continue Subpoenas to New Trial Dates. All the subpoenas that have been issued returnable for the March 12, 2018, trial as to Jamshid Muhtorov (1) are now returnable for the new trial date May 14, 2018. All the subpoenas that have been issued returnable for the January 8, 2018, trial as to Bakhtiyor Jumaev (2) are now returnable for the new trial date March 12, 2018. Ordered by Judge John L. Kane on 12/19/2017. Text Only Entry (jlksec) Modified to correct date on 12/19/2017 (cthom, ). (Entered: 12/19/2017)

01/18/2018 1604 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 01/18/2018)

01/18/2018 1605 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 01/18/2018)

01/19/2018

1606 ORDER granting 1605 Motion for Leave to Restrict as to Jamshid Muhtorov (1) and Bakhtiyor Jumaev (2). ORDERED by Judge John L. Kane on 1/19/2018. (cthom, ) (Entered: 01/19/2018)

01/22/2018 1607 MOTION in Limine by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Holloway, Gregory) (Entered: 01/22/2018)

01/22/2018 1608 RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov. (Williamson, Warren) (Entered: 01/22/2018)

01/26/2018 1610 NOTICE OF ATTORNEY APPEARANCE Julia K. Martinez appearing for USA. Attorney Julia K. Martinez added to party USA(pty:pla) (Martinez, Julia) (Entered: 01/26/2018)

01/26/2018 1611 (RESTRICTED DOCUMENT - Level 1) Protective Order by Judge John L Kane. (cthom, ) (Entered: 01/26/2018)

01/26/2018 1613 (RESTRICTED DOCUMENT - Level 1) Order on Defendants 1507 , 1509 , 1510 , 1512 Discovery Motions. ORDERED Judge John L Kane. (cthom, ) (Entered: 01/26/2018)

01/26/2018 1614 MOTION for Leave to Restrict by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev. (Gibson, Beth) (Entered: 01/26/2018)

01/29/2018 1615 ORDER granting 1614 Motion for Leave to Restrict as to Jamshid Muhtorov (1) and Bakhtiyor Jumaev (2). ORDERED by Judge John L. Kane on 1/29/2018. (cthom, ) (Entered: 01/29/2018)

01/30/2018

1620

MINUTE ENTRY for In Camera Hearing, Ex Parte Classified proceedings held before Judge John L. Kane with the Government on 1/30/2018 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Court Reporter: Terri Lindblom. (jlksec) Text Only Entry Modified to correct date on 2/2/2018 (cthom, ). (Entered: 02/01/2018)

01/31/2018 1616 (RESTRICTED DOCUMENT - Level 1) Notice of Classified Orders by Judge L. Kane. (cthom, ) (Entered: 01/31/2018)

01/31/2018

1618

MINUTE ORDER as to Jamshid Muhtorov. The government and Defendant Muhtorov are DIRECTED to jointly file on or before February 7, 2018, a proposed scheduling order for any matters they foresee arising between now and the start of Mr. Muhtorov's trial on May 14, 2018. They are further DIRECTED to file their proposed jury instructions, including a verdict form, and proposed jury questionnaire on or before March 2, 2018. A Final Trial Preparation Conference is set for May 8, 2018 at 10:30 a.m. by Judge John L. Kane on 1/31/2018. Text Only Entry (jlksec) (Entered: 01/31/2018)

02/01/2018

1621

MINUTE ENTRY for In Camera hearing on deposition objections held before Judge John L. Kane on 1/30/2018 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Court Reporter: Terri Lindblom. (jlksec) Text Only Entry (Entered: 02/01/2018)

02/06/2018

1624

RESPONSE to Motion by Jamshid Muhtorov re 1607 MOTION in Limine Defendant Muhtorov's Response to Government's Motion In Limine, Doc. 1607: A Defendant's Self Serving Out of Court Statements are Inadmissible Hearsay (Williamson, Warren) (Entered: 02/06/2018)

02/06/2018

1626

ORDER Setting Hearings and Agenda Items for Hearing as to Jamshid Muhtorov and Bakhtiyor Jumaev. A hearing is set for February 21, 2018, at 1:30 p.m., to continue February 22, 2018, at 1:30 p.m., if necessary. Defendant Muhtorov's 1608 Motion to Adopt Codefendant Jumaev's 1602 Motion to Compel Discovery of Material and for Sanctions, is GRANTED. The presence of both Defendants

Muhtorov and Jumaev is, therefore, required. ORDERED by Judge John L. Kane on 2/6/2018. (cthom, ) (Entered: 02/06/2018)

02/07/2018

1628

(RESTRICTED DOCUMENT - Level 1) Response from State Department to 1332 Request for International Judicial Assistance Letter Rogatory re: 1329 Motion for Order as to Jamshid Muhtorov. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(cthom, ) (Entered: 02/07/2018)

02/07/2018

1632 NOTICE of Parties' Proposed Scheduling Order and Request for Addition of Agenda Item for the 2/21/2018 and 2/22/2018 Hearings by Jamshid Muhtorov (Williamson, Warren) (Entered: 02/07/2018)

02/14/2018

1643

NOTICE to Defendants of in Camera, Ex Parte Under Seal Filing by the United States Pursuant to the Classified Information Procedures Act by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 02/14/2018)

02/15/2018 1644 (RESTRICTED DOCUMENT - Level 1) Unclassified Order and Notice of Classified Order by Judge John L. Kane.(cthom, ) (Entered: 02/15/2018)

02/20/2018

1648 NOTICE of Defendant Muhtorov's Request for Addition of Agenda Item for the 2/21/2018 and 2/22/2018 Hearings by Jamshid Muhtorov (Williamson, Warren) (Entered: 02/20/2018)

02/20/2018 1649 RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov. (Attachments: # 1 Attachment)(Williamson, Warren) (Entered: 02/20/2018)

02/20/2018

1653

(RESTRICTED DOCUMENT - Level 1) ORDER on Revised Agenda for 2/21/2018 Hearing as to Jamshid Muhtorov and Bakhtiyor Jumaev. ORDERED by Judge John L. Kane. (Attachments: # 1 Jury Instructions, # 2 Verdict Form, # 3 Jury Introductory Remarks)(cthom, ) (Entered: 02/20/2018)

02/20/2018

1655

NOTICE OF INTENT TO RELY ON FED.R.EVID. 902(13) AND (14) SUPPORT OF AUTHENTICITY OF RECORDS by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit, # 2 Exhibit)(Gibson, Beth) (Entered: 02/20/2018)

02/21/2018

1657

MINUTE ENTRY for In Camera Hearing, Ex Parte, Classified proceedings held before Judge John L. Kane with the United States Government on 2/21/2018. Court Reporter: Tamara Hoffschildt. (babia) Text Only Entry Modified on 3/2/2018 to correct spelling of court reporter's last name (lrobe). (Entered: 02/22/2018)

02/21/2018

1660

MINUTE ENTRY for In Court Hearing proceedings held before Judge John L. Kane on 2/21/2018 as to Jamshid Muhtorov (1), and Bakhtiyor Jumaev (2). Defendants present. in custody. Denying Without Prejudice 1607 Motion in Limine as to Jamshid Muhtorov (1), Bakhtiyor Jumaev (2). ORDERED: Doc. No. 1602 is taken UNDER ADVISEMENT. ORDERED: Any additional expert disclosures shall be made on or before April 23, 2018. ORDERED: The Government needs to submit the list of Jumaev Exhibits, to the Court and to Defense counsel by Thursday, March 1, 2018. Motions due by 3/30/2018. Responses due by 4/13/2018. Replies due by 4/23/2018. Motion Hearing set for 4/27/2018 10:00 AM in Courtroom A 802 before Judge John L. Kane. Defendants REMANDED. Court Reporter: Tamara Hoffschildt. Interpreters: Hasmik Jorgensen and Tatiana Dautkhanova. (babia) (Entered: 02/23/2018)

02/23/2018 1659 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 02/23/2018)

02/23/2018

1661

MINUTE ORDER setting hearing as to Jamshid Muhtorov pursuant to the request in Restricted Document 1659. Ex parte hearing is set for 2/27/2018 at 10:30 AM in Courtroom A802 before Judge John L. Kane. Mr. Muhtorov's presence is not required. Ordered by Judge John L. Kane on 2/23/2018. Text Only Entry (jlksec) (Entered: 02/23/2018)

02/27/2018

1664

NOTICE OF INTENT TO RELY ON FED. R. EVID. 902(13) AND (14) by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Holloway, Gregory) (Entered: 02/27/2018)

02/27/2018

1667

NOTICE 2nd AMENDED NOTICE OF INTENT TO RELY ON FED. R. EVID. 902(13) AND (14) by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Holloway, Gregory) (Entered: 02/27/2018)

02/27/2018 1668 (RESTRICTED DOCUMENT - Level 1) Notice of Classified Order by Judge John L. Kane. (cthom, ) (Entered: 02/27/2018)

02/27/2018

1669 (RESTRICTED DOCUMENT - Level 3) Courtroom Minutes for Ex Parte Hearing as to Jamshid Muhtorov. (babia) Modified to add title on 2/28/2018 (cthom, ). (Entered: 02/27/2018)

02/28/2018 1673 (RESTRICTED DOCUMENT - Level 3) Order re 1659 and 1669 as to Jamshid Muhtorov. (cthom, ) (Entered: 02/28/2018)

02/28/2018 1679 NOTICE To Defedants of In Camera, Ex Parte Under Seal Filing by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 02/28/2018)

03/01/2018 1681 NOTICE Amended Notice to Defendants on in Camera, Ex Parte Under Seal Filing by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 03/01/2018)

03/02/2018 1686 RESTRICTED DOCUMENT - Level 1: Notice of 1685 Order, by Judge John L. Kane (evana, ) (Entered: 03/02/2018)

03/02/2018 1687 RESTRICTED DOCUMENT - Level 1: Order 1602 Motion to Compel and 1622 Objections by Judge John L. Kane (Attachments: # 1 Instruction)(evana, ) (Entered: 03/02/2018)

03/06/2018

1689

(RESTRICTED DOCUMENT - Level 1) Government's Updated 404(b) Notice by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified to add title on 3/6/2018 (cthom, ). (Entered: 03/06/2018)

03/06/2018

1691

MINUTE ENTRY for In Camera Hearing, Ex Parte, Classified proceedings held before Judge John L. Kane with the United States Government on 3/6/2018. Court Reporter: Terri Lindblom. (babia) Text Only Entry (Entered: 03/06/2018)

03/14/2018 1702 (RESTRICTED DOCUMENT - Level 1) Response to 1698 by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Gibson, Beth) Modified to add title on 3/20/2018 (cthom, ). (Entered: 03/14/2018)

03/16/2018

1709

(RESTRICTED DOCUMENT - Level 1) Supplemental Notice of Intent by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Holloway, Gregory) Modified to add title on 3/20/2018 (cthom, ). (Entered: 03/16/2018)

03/19/2018

1713 (RESTRICTED DOCUMENT - Level 1) Motion to Limine by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) Modified to add title on 3/20/2018 (cthom, ). (Entered: 03/19/2018)

03/22/2018 1719 (RESTRICTED DOCUMENT - Level 1) Order re 1649 and 1712 as to Jamshid Muhtorov and Bakhtiyor Jumaev. (cthom, ) (Entered: 03/22/2018)

03/22/2018 1720 (RESTRICTED DOCUMENT - Level 1) Notice of Classified Order as to Jamshid Muhtorov and Bakhtiyor Jumaev. (cthom, ) (Entered: 03/22/2018)

03/23/2018 1724 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Gibson, Beth) (Entered: 03/23/2018)

03/27/2018

1728

TRANSCRIPT of James Hearing as to Jamshid Muhtorov held on February 27, 2017 before Judge Kane. Pages: 316-340. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (thoff, ) (Entered: 03/27/2018)

03/30/2018

1733 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (Attachments: # 1 Proposed Order (PDF Only))(Leedy, Brian) (Entered: 03/30/2018)

03/30/2018 1734 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (Attachments: # 1 Proposed Order (PDF Only))(Leedy, Brian) (Entered: 03/30/2018)

03/30/2018

1735

(RESTRICTED DOCUMENT - Level 1) Motion to Limine under 404(b) by Jamshid Muhtorov. (Attachments: # 1 Attachment A, # 2 Attachment B)(Williamson, Warren) Modified to add title on 3/30/2018 (cthom, ). (Entered: 03/30/2018)

03/30/2018 1736 MOTION in Limine for Discovery of Evidence of U.S. Government Collaboration with Uzbekistan by Jamshid Muhtorov. (Williamson, Warren) (Entered: 03/30/2018)

04/02/2018 1738 (RESTRICTED DOCUMENT - Level 3) Ex Parte Order as to Jamshid Muhtorov. (cthom, ) (Entered: 04/02/2018)

04/02/2018 1739 (RESTRICTED DOCUMENT - Level 3) Ex Parte Order as to Jamshid Muhtorov. (cthom, ) (Entered: 04/02/2018)

04/02/2018

1740 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (Attachments: # 1 Proposed Order (PDF Only), # 2 Proposed Order (PDF Only))(Leedy, Brian) (Entered: 04/02/2018)

04/02/2018 1741 (RESTRICTED DOCUMENT - Level 3) Amended Ex Parte Order as to Jamshid Muhtorov. (cthom, ) (Entered: 04/02/2018)

04/02/2018 1742 (RESTRICTED DOCUMENT - Level 3) Amended Ex Parte Order as to Jamshid Muhtorov. (cthom, ) (Entered: 04/02/2018)

04/02/2018

1743 NOTICE TO DEFENDANTS OF IN CAMERA, EX PARTE UNDER SEAL FILING by USA as to Jamshid Muhtorov, Bakhtiyor Jumaev (Holloway, Gregory) (Entered: 04/02/2018)

04/06/2018 1746 ORDER regarding the Government's Exhibits for Defendant Muhtorov's Trial. ORDERED by Judge John L. Kane on 4/6/2018. (cthom, ) (Entered: 04/06/2018)

04/06/2018 1747 FPD MOTION for Issuance of Subpoena in Forma Pauperis by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/06/2018)

04/06/2018

1750

ORDER granting 1747 FPD Motion for Issuance of Subpoena in Forma Pauperis as to Jamshid Muhtorov (1). ORDERED by Judge John L. Kane on 4/6/2018. (Attachments: # 1 Subpoena) (cthom, ) (Entered: 04/09/2018)

04/13/2018

1756

(RESTRICTED DOCUMENT - Level 1) Response to 1736 Motion in Limine by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit, # 2 Exhibit)(Holloway, Gregory) Modified to add title on 4/16/2018 (cthom, ). (Entered: 04/13/2018)

04/17/2018 1760 RESTRICTED TRANSCRIPT of proceedings held on January 13, 2017 before Judge Kane. Pages: 657-827. (thoff, ) Modified to show same transcript at 1255 on 4/17/2018 (cthom, ). (Entered: 04/17/2018)

04/17/2018

1762

MINUTE ORDER granting 1761 Motion to Restrict. The clerk is directed to place Doc. 1142 and attachments under Restriction Level 1 to be viewable by the parties and the court. The docket entry shall be changed to "Notice." ORDERED by Judge John L. Kane on 4/17/2018. Text Only Entry. (cthom, ) (Entered: 04/17/2018)

04/18/2018

1770 (RESTRICTED DOCUMENT - Level 1) Exhibit List by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit)(Holloway, Gregory) Modified to add title on 4/19/2018 (cthom, ). (Entered: 04/18/2018)

04/18/2018 1771 (RESTRICTED DOCUMENT - Level 1) Updated 404(b) Notice by USA as to Jamshid Muhtorov (Holloway, Gregory) Modified to add title on 4/19/2018 (cthom, ). (Entered: 04/18/2018)

04/20/2018

1776 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit)(Holloway, Gregory) (Entered: 04/20/2018)

04/23/2018 1778 NOTICE of Supplemental Expert Endorsement by Jamshid Muhtorov (Stimson, Kathryn) (Entered: 04/23/2018)

04/23/2018

1780

(RESTRICTED DOCUMENT - Level 1) Government's Supplemental Expert Disclosure by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit)(Holloway, Gregory) Modified to add title on 4/24/2018 (cthom, ). (Entered: 04/23/2018)

04/23/2018

1781

(RESTRICTED DOCUMENT - Level 1) Government Expert Notice of Linguist Testimony by USA as to Jamshid Muhtorov (Holloway, Gregory) Modified to add title on 4/24/2018 (cthom, ). (Entered: 04/23/2018)

04/24/2018 1784 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (Attachments: # 1 Attachment)(Williamson, Warren) (Entered: 04/24/2018)

04/25/2018 1791 RESTRICTED DOCUMENT - Level 3 as to Jamshid Muhtorov. (cthom, ) (Entered: 04/25/2018)

04/25/2018 1792 MOTION for Extension of Time to File Exhibit List Identifying Stipulations and Objections by Jamshid Muhtorov. (Leedy, Brian) (Entered: 04/25/2018)

04/25/2018

1793

MINUTE ORDER as to Defendant Jamshid Muhtorov. Mr. Muhtorov's 1792 Motion for Extension of Deadline to File Exhibit List Identifying Stipulations and Objections is GRANTED. He is DIRECTED to file the exhibit list identifying stipulations and objections by 3:00 p.m. tomorrow, April 26, 2017. ORDERED by Judge John L. Kane on 4/25/2018. Text Only Entry. (cthom, ) (Entered: 04/25/2018)

04/25/2018 1796 RESTRICTED DOCUMENT - Level 3 as to Jamshid Muhtorov. (cthom, ) (Entered: 04/26/2018)

04/26/2018

1797 RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(Williamson, Warren) (Entered: 04/26/2018)

04/27/2018

1800

MINUTE ENTRY for Motion Hearing proceedings held before Judge John L. Kane on 4/27/2018 as to Jamshid Muhtorov. Denying 1736 Motion in Limine as to Jamshid Muhtorov. ORDERED: Doc. No. 1735 is taken UNDER ADVISEMENT. Court Reporter: Terri Lindblom. Interpreter: Nodira Matyakubova and Muhitdin Ahunhodjaev. (babia) (Entered: 04/27/2018)

05/01/2018 1806 (RESTRICTED DOCUMENT - Level 1) ORDER re Jury Selection Protocol and Schedule as to Jamshid Muhtorov. (cthom, ) (Entered: 05/01/2018)

05/01/2018

1807

(RESTRICTED DOCUMENT - Level 1) ORDER re the Government's Exhibit List and Defendant Muhtorov's Objections as to Jamshid Muhtorov. (Attachments: # 1 Exhibit)(cthom, ) (Entered: 05/01/2018)

05/01/2018 1808 NOTICE of Change of Address/Contact Information (Stimson, Kathryn) (Entered: 05/01/2018)

05/01/2018 1809 MOTION for Extension of Time to File Witness and Exhibit Lists by Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 05/01/2018)

05/01/2018 1810 NOTICE Change of Contact Information by Jamshid Muhtorov (Leedy, Brian) (Entered: 05/01/2018)

05/07/2018 1815 ORDER regarding jury service as to Jamshid Muhtorov. ORDERED by Judge John L. Kane on 5/7/2018. (cthom, ) (Entered: 05/07/2018)

05/07/2018

1816

ORDER granting 1809 as to Jamshid Muhtorov (1). Defendant Muhtorov's Request for Extension of Time to File Witness List and Exhibit List is GRANTED. The government has yet to file its witness list as required. The government is DIRECTED to file its witness list by 10 a.m. tomorrow, May 8, 2018. Mr. Muhtorov is DIRECTED to file his witness and exhibit lists on or before May 15, 2018. Ordered by Judge John L. Kane on 5/7/2018. Text Only Entry (jlksec) (Entered: 05/07/2018)

05/07/2018 1817 Proposed Jury Instructions by Jamshid Muhtorov (Attachments: # 1 Exhibit, # 2 Exhibit)(Leedy, Brian) (Entered: 05/07/2018)

05/07/2018

1818

(RESTRICTED DOCUMENT - Level 1) Government's Witness List for Trial by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit)(Holloway, Gregory) Modified to add title on 5/8/2018 (cthom, ). (Entered: 05/07/2018)

05/08/2018 1819 RESTRICTED DOCUMENT - Level 2: as to Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 05/08/2018)

05/08/2018

1822

MINUTE ENTRY for Trial Preparation Conference proceedings held before Judge John L. Kane on 5/8/2018 as to Jamshid Muhtorov. ORDERED:The Governments Oral Motion to Reconsider is DENIED. The prior rulings will stand. Court Reporter: Terri Lindblom. Interpreter: Tatiana Dautkhanova and Irina Kamensky. (babia) (Entered: 05/09/2018)

05/08/2018

1831

AMENDED MINUTE ENTRY for Trial Preparation Conference proceedings held before Judge John L. Kane on 5/8/2018as to Jamshid Muhtorov. Amended re 1822 . Court Reporter: Terri Lindblom. Interpreter: Tatiana Dautkhanova and Irina Kamensky. (Attachments: # 1 Final Jury Questionnaire) (babia) (Entered: 05/15/2018)

05/09/2018 1820 (RESTRICTED DOCUMENT - Level 1) ORDER at to Jamshid Muhtorov and Bakhtiyor Jumaev. (cthom, ) (Entered: 05/09/2018)

05/09/2018

1821

(RESTRICTED DOCUMENT - Level 1) MOTION in Limine by Jamshid Muhtorov. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C, # 4 Attachment D, # 5 Attachment E)(Williamson, Warren) Modified to add title on 5/10/2018 (cthom, ). (Entered: 05/09/2018)

05/09/2018

1823 (RESTRICTED DOCUMENT - Level 1) ORDER Correcting May 8, 2018 Oral Ruling as to Jamshid Muhtorov. ORDERED by Judge John L. Kane on 5/9/2018 (cthom, ) (Entered: 05/10/2018)

05/10/2018

1824

MINUTE ORDER as to Jamshid Muhtorov re 1821 . After reviewing Defendant Muthorov's Motion in Limine, I find a response from the government is warranted. Thus, the government is DIRECTED to file a response to the Motion on or before May 15, 2018. Since the matter has yet to be resolved, the government is PROHIBITED from discussing any related topic during jury selection. Ordered by Judge John L. Kane on 5/10/2018. Text Only Entry (jlksec) (Entered: 05/10/2018)

05/11/2018

1825 (RESTRICTED DOCUMENT - Level 1) Response to 1821 Motion to Limine by USA as to Jamshid Muhtorov (Holloway, Gregory) Modified to add title on 5/11/2018 (cthom, ). (Entered: 05/11/2018)

05/14/2018 1826 (RESTRICTED DOCUMENT - Level 1) ORDER Granting Motion in Limine as to Jamshid Muhtorov. ORDERED by Judge John L. Kane. (cthom, ) (Entered: 05/14/2018)

05/14/2018

1829

MINUTE ENTRY for Jury Trial Day 1 proceedings held before Judge John L. Kane on 5/14/2018 as to Jamshid Muhtorov. Jury Selection. Court Reporter: Terri Lindblom. Interpreter: Hamik Jorgensen and Tatiana Dautkhanova. (babia) (Additional attachment(s) added on 5/15/2018: # 1 Juror 165 Note, # 2 Juror 880 Note) (babia, ). (Entered: 05/14/2018)

05/15/2018

1833

MINUTE ENTRY for Jury Trial Day 2 proceedings held before Judge John L. Kane on 5/15/2018 as to Jamshid Muhtorov. Jury selection. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Tatiana Dautkhanova. (babia) (Entered: 05/15/2018)

05/16/2018

1834

MINUTE ENTRY for Jury Trial Day 3 proceedings held before Judge John L. Kane on 5/16/2018 as to Jamshid Muhtorov. Jury selection. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Tatiana Dautkhanova. (babia) (Entered: 05/16/2018)

05/17/2018

1835

MINUTE ENTRY for Jury Trial Day 4 proceedings held before Judge John L. Kane on 5/17/2018 as to Jamshid Muhtorov. ORDERED: The Jury Administrator shall notify the Jury to report for further jury service on Thursday, May 24, 2018 at 8:30 a.m.ORDERED: The Jury Trial will resume on Thursday, May 24, 2018 at 9:00 a.m. Counsel, and parties shall arrive by 8:30 a.m. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Tatiana Dautkhanova. (babia) (Entered: 05/17/2018)

05/18/2018 1837 EXHIBIT LIST by Jamshid Muhtorov (Attachments: # 1 Exhibit List)(Williamson, Warren) (Entered: 05/18/2018)

05/18/2018 1838 WITNESS LIST by Jamshid Muhtorov (Attachments: # 1 Witness List)(Williamson, Warren) (Entered: 05/18/2018)

05/22/2018

1839

MOTION to Dismiss the Indictment with Prejudice Based on a Violation of Defendant Jamshid Muhtorov's Constitutional Right to a Speedy Trial by Jamshid Muhtorov. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C)(Williamson, Warren) (Entered: 05/22/2018)

05/22/2018

1840

(RESTRICTED DOCUMENT - Level 1) Order re the Use of Defendant Jumaev's Convictions in Defendant Muhtorov's Trial as to Jamshid Muhtorov. ORDERED by Judge John L. Kane. (cthom, ) (Entered: 05/22/2018)

05/23/2018 1848 (RESTRICTED DOCUMENT - Level 1) Memo Regarding Rule 609 by Jamshid Muhtorov. (Williamson, Warren) Modified to add title on 5/23/2018 (cthom, ). (Entered: 05/23/2018)

05/23/2018

1849

MINUTE ORDER as to Jamshid Muhtorov. After reviewing Defendant Muhtorov's most recent Motion to Dismiss 1839 , I will hear argument on it after the parties' opening statements tomorrow, May 24, 2018. The parties should be prepared to address the Motion at that time. Ordered by Judge John L. Kane on 5/23/2018. Text Only Entry (jlksec) (Entered: 05/23/2018)

05/24/2018

1850

MINUTE ENTRY for Jury Trial Day 5 proceedings held before Judge John L. Kane on 5/24/2018 as to Jamshid Muhtorov (1). Denying 1839 Motion to Dismiss as to Jamshid Muhtorov. ORDERED: Defense counsel shall provide the Government with copies of the full videos Defendants Exhibits 689 and 690 by the close

of business, Friday, May 25, 2018. Corresponding translations are to be provided as soon as practicable. ORDERED: Defendants Exhibit 749 is taken UNDER ADVISEMENT. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky and Yuliya Fedasenka. (babia) (Entered: 05/25/2018)

05/28/2018

1851

(RESTRICTED DOCUMENT - Level 1) MOTION to Exclude Testimony by Jamshid Muhtorov. (Attachments: # 1 Attachment A)(Williamson, Warren) Modified to add title on 5/29/2018 (cthom, ). (Entered: 05/28/2018)

05/29/2018 1852 (RESTRICTED DOCUMENT - Level 1) RESPONSE to Motion to Exclude by USA as to Jamshid Muhtorov (Holloway, Gregory) Modified to add title on 5/29/2018 (cthom, ). (Entered: 05/29/2018)

05/29/2018

1853

MINUTE ORDER as to Defendant Jamshid Muhtorov. Mr. Muhtorov is DIRECTED to file a Reply to the government's Response (Doc. 1852) to his Motion seeking to exclude witness testimony (Doc. 1851) on or before Friday, June 1, 2018, at noon. Ordered by Judge John L. Kane on 5/29/2018. Text Only Entry (jlksec) (Entered: 05/29/2018)

05/29/2018

1854

MINUTE ENTRY for In Camera Hearing, Ex Parte, Classified proceedings held before Judge John L. Kane with the United States Government on 5/29/2018. Court Reporter: Terri Lindblom. (babia) Text Only Entry (Entered: 05/29/2018)

05/29/2018 1855 RESTRICTED DOCUMENT - Level 3: by Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 05/29/2018)

05/29/2018

1856

MINUTE ENTRY for Jury Trial Day 6 proceedings held before Judge John L. Kane on 5/29/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Tatiana Dautkhanova. (babia) (Entered: 05/29/2018)

05/30/2018 1858 (RESTRICTED DOCUMENT - Level 3) ORDER by Judge John L. Kane as to Jamshid Muhtorov. (cthom, ) (Entered: 05/30/2018)

05/30/2018

1859

(RESTRICTED DOCUMENT - Level 1) Reply to 1851 Motion to Exclude by Jamshid Muhtorov. (Attachments: # 1 Attachment A)(Williamson, Warren) Modified to add title on 5/31/2018 (cthom, ). (Entered: 05/30/2018)

05/30/2018

1860

MINUTE ENTRY for Jury Trial Day 7 proceedings held before Judge John L. Kane on 5/30/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Tatiana Dautkhanova. (babia) (Entered: 05/30/2018)

05/30/2018

1861

MINUTE ENTRY for Jury Trial Day 7 proceedings held before Judge John L. Kane on 5/30/2018 as to Jamshid Muhtorov. Amended re 1860 . Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Tatiana Dautkhanova. (babia) (Entered: 05/30/2018)

05/30/2018

1862

(RESTRICTED DOCUMENT - Level 1) Surreply to 1851 Motion to Exclude by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit)(Holloway, Gregory) Modified to add title on 5/31/2018 (cthom, ). (Entered: 05/30/2018)

05/31/2018

1863

MINUTE ENTRY for Jury Trial Day 8 proceedings held before Judge John L. Kane on 5/31/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Tatiana Dautkhanova. (babia) (Entered: 05/31/2018)

05/31/2018

1864

AMENDED MINUTE ENTRY for Jury Trial Day 8 proceedings held before Judge John L. Kane on 5/31/2018 as to Jamshid Muhtorov. Amended re 1863 . Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Tatiana Dautkhanova. (babia) (Entered: 05/31/2018)

05/31/2018

1869

2nd - AMENDED MINUTE ENTRY for Jury Trial Day 8 proceedings held before Judge John L. Kane on 5/31/2018 as to Jamshid Muhtorov. Amended re 1863 and 1864 . Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Tatiana Dautkhanova. (babia) (Entered: 06/04/2018)

06/01/2018

1865

MOTION for Order for Issuance of Writ of Habeas Corpus Ad Testicandum for In-Custody Witness Bakhtiyor Jumaev by Jamshid Muhtorov. (Attachments: # 1 Proposed Order (PDF Only))(Williamson, Warren) (Entered: 06/01/2018)

06/01/2018 1866 ORDER for Writ of Habeas Corpus Ad Testicandum for Bakhtiyor Jumaev. ORDERED by Judge John L. Kane on 6/1/2018. (cthom, ) (Entered: 06/01/2018)

06/01/2018 1867 Writ of Habeas Corpus ad Testificandum Issued as to Bakhtiyor Jumaev for 6/18/2018 in case as to Jamshid Muhtorov. (cthom, ) (Entered: 06/01/2018)

06/01/2018

1868

(RESTRICTED DOCUMENT - Level 1) ORDER Denying Defendant Muhtorov's 1851 Motion to Exclude Testimony as to Jamshid Muhtorov. ORDERED by Judge John L. Kane. (cthom, ) (Entered: 06/01/2018)

06/04/2018 1870 MINUTE ENTRY for Jury Trial Day 9 proceedings held before Judge John L. Kane on 6/4/2018 as to Jamshid Muhtorov. Court Reporter:

Terri Lindblom. Interpreter: Irina Kamensky and Yuliya Fedasenka. (babia) (Entered: 06/04/2018)

06/04/2018

1871

(RESTRICTED DOCUMENT - Level 1) Second Amended Exhibit List by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit)(Holloway, Gregory) Modified to add title on 6/5/2018 (cthom, ). (Entered: 06/04/2018)

06/05/2018

1873

MINUTE ENTRY for Jury Trial Day 10 proceedings held before Judge John L. Kane on 6/5/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky and Yuliya Fedasenka. (babia) (Entered: 06/05/2018)

06/05/2018

1874

(RESTRICTED DOCUMENT - Level 1) Government's Third Amended Exhibit List by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit)(Holloway, Gregory) Modified to add title on 6/6/2018 (cthom, ). (Entered: 06/05/2018)

06/06/2018

1875

MINUTE ENTRY for Jury Trial Day 11 proceedings held before Judge John L. Kane on 6/6/2018 as to Jamshid Muhtorov. Jury excused until Thursday, June 7, 2018 at 9:00 a.m. The Court states that counsel shall arrive at 8:30 a.m., at which time the Defendants motion will be heard. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky and Yuliya Fedasenka. (babia) (Entered: 06/06/2018)

06/07/2018

1876

MINUTE ENTRY for Jury Trial Day 12 proceedings held before Judge John L. Kane on 6/7/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky, Yuliya Fedasenka, and Muhitdin Ahunhodjaev. (babia) (Entered: 06/07/2018)

06/07/2018

1877

AMENDED MINUTE ENTRY for Jury Trial Day 12 proceedings held before Judge John L. Kane on 6/7/2018 as to Jamshid Muhtorov. Amended re 1876 . Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky, Yuliya Fedasenka, and Muhitdin Ahunhodjaev. (Attachments: # 1 Juror Question 1) (babia) (Entered: 06/08/2018)

06/11/2018

1878

MINUTE ENTRY for Jury Trial Day 13 proceedings held before Judge John L. Kane on 6/11/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky, Yuliya Fedasenka, Muhitdin Ahunhodjaev, and Sanjar Babadjanov. (Attachments: # 1 Juror Question 2) (babia) (Entered: 06/11/2018)

06/11/2018

1880

AMENDED MINUTE ENTRY for Jury Trial Day 13 proceedings held before Judge John L. Kane on 6/11/2018 as to Jamshid Muhtorov. Amended re 1878 . Correct interpreter name. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen, Yuliya

Fedasenka, Muhitdin Ahunhodjaev, and Sanjar Babadjanov. (babia) (Entered: 06/13/2018)

06/12/2018

1879

MINUTE ENTRY for Jury Trial Day 14 proceedings held before Judge John L. Kane on 6/12/2018 as to Jamshid Muhtorov. ORDERED: Defendants Renewed Oral Motion for Judgment of Acquittal is DENIED. ORDERED: Immediately following todays proceedings, counsel shall meet with court staff to confirm the accuracy of all admitted/stipulated exhibits being submitted to the Jury for deliberations. Immediately following todays proceedings, counsel met with court staff - (approx. 11:30 a.m. - 2:00 p.m.) to confirm all exhibits, including content. The following exhibits were confirmed as admitted/stipulated (all redacted exhibits were also confirmed) and will accompany the Jury once they are excused to begin their deliberations:Governments Exhibits -1, 2, 9, 9A, 10, 11, 11A, 12A, 14, 41, 44, 45, 50, 51, 52, 53, 70B, 71, 71A, 71B, 71C, 71D, 73, 73B, 74, 74B, 75, 76, 96, 97B, 100, 100A, 101, 101A, 102, 102A, 103, 103A, 104, 104A, 105, 105A, 106, 106A, 107, 107A, 108, 108A, 109, 109A, 110, 110A, 111, 111A, 112,112A, 113, 113A, 114, 114A, 116, 116A, 116B, 118, 118A, 119, 119A, 120, 120A, 121, 121A, 122, 122A, 123, 123A, 124, 124A, 125, 125A, 127, 127A, 128, 128A, 129, 129A, 130, 130A, 131, 131A, 132, 132A, 133, 133A, 138, 138A, 139, 139A, 141, 141A, 145, 145A, 146, 146A, 149, 149A, 150, 150A, 151, 151A, 152, 152A, 153, 153A, 155, 155A, 156, 156A, 157, 157A, 158, 158A, 159, 159A, 160, 160A, 161, 161A, 162, 162A, 163, 163A, 164, 164A, 165, 165A, 166, 166A, 167, 167A, 168, 168A, 169, 169A, 170, 170A, 200, 201, 202, 203, 205, 206, 207, 214, 215, 216, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 234A, 234B, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 270, 272, 274, 275, 276, 282, 283A, 283B, 283C, 283D, 283E, 283F, 283G, 299, 305A, 306A, 307, 307A, 307B, 307C, 308, 309, 311, 312, 312A, 332, 332A1, 333, 333A, 335, 335A, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 424, 426, 427, 434, 435, 450B. 450C, 450D, 451, 451B, 451C, 451D, 451E, 451F, 451G, 474, 475, 476, 478, 479, 480, 481, 484, 485, 500, 512, 515, 516, 530, 530A, 531, 531A, 531B, 531C, 531D, 531E, 531F, 535, 536, 540, 541, and 542.Defendants Exhibits - 600, 601, 062, 603, 604, 605, 606, 606A, 607, 607A, 608, 608A, 609, 609A, 610, 610A, 611, 611A, 612, 612A, 613, 613A, 614, 614A, 615, 615A, 616, 616A, 617, 617A, 618, 618A, 619, 619A, 620, 620A, 621, 621A, 622, 622A, 623, 623A, 624, 624A, 625, 625A, 626, 626A, 627, 627A, 628, 628A, 629, 629A, 630, 630A, 631, 631A, 632, 632A, 633, 633A, 634, 634A, 635, 635A, 636, 636A, 637, 637A, 638, 638A, 639, 639A, 640, 640A, 641, 641A, 642, 642A, 643, 643A, 644, 644A, 645, 645A, 646, 646A, 647, 647A, 648, 648A, 649, 649A, 650, 650A, 651, 651A, 652, 652A, 653,

653A, 654, 654A, 655, 655A, 656, 656A, 657, 657A, 658, 658A, 659, 659A, 660, 660A, 661, 661A, 662, 662A, 663, 663A, 664, 664A, 665, 665A, 666, 666A, 667, 667A, 668, 669, 670, 671, 672, 673, 674, 675, 676, 677, 678, 679, 680, 681, 682, 683, 684, 685, 686, 687, 688, 689, 689A, 690, 690A, 692A, 697A, 702A, 703A, 707A, 709A, 713A, 714A, 716A, 718, 720, and 735. ORDERED:Trial resumes tomorrow at 9:00 a.m. Counsel shall be ready by 8:45 a.m. to make a final record as to exhibits and jury instructions. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen, Yuliya fedasenka, Muhitdin Ahunhodjaev, Sanjar Babadjanov, and Darius Suziedelis. (babia) (Entered: 06/12/2018)

06/12/2018

1881

MINUTE ENTRY for Day 14 proceedings held before Judge John L. Kane on 6/12/2018 as to Jamshid Muhtorov. Amended re 1879 . Correction to Government's Exhibits - 271. Corrections to Defendant's Exhibits - 283A, 283B, 283C, 283D, 283E, 283F, 283G, 602. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen, Yuliya Fedasenka, Muhitdin Ahunhodjaev, Sanjar Babadjanov, and Darius Suziedelis. (babia) (Entered: 06/13/2018)

06/13/2018

1882

MINUTE ENTRY for Jury Trial Day 15 proceedings held before Judge John L. Kane on 6/13/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Hasmik Jorgensen and Yuliya Fedasenka. (Attachments: # 1 Jury Note) (babia) (Additional attachment(s) added on 9/5/2018 per Chambers: # 2 Complete Jury Instructions) (babia). (Entered: 06/13/2018)

06/14/2018

1886

MINUTE ENTRY for Jury Trial Day 16 proceedings held before Judge John L. Kane on 6/14/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. (Attachments: # 1 Jury Note) (babia) (Entered: 06/14/2018)

06/15/2018

1887

MINUTE ORDER as to Jamshid Muhtorov. An In Court Hearing is set for 6/15/2018 at 10:30 AM in Courtroom A802 before Judge John L. Kane. The defendant's presence is not required for the hearing. Ordered by Judge John L. Kane on 6/15/2018. Text Only Entry (jlksec) (Entered: 06/15/2018)

06/15/2018

1888

MINUTE ENTRY for In Court Hearing proceedings held before Judge John L. Kane on 6/15/2018 as to Jamshid Muhtorov. A further In Court Hearing is set for 6/18/2018 at 08:00 AM in Courtroom A 802 before Judge John L. Kane. Court Reporter: Terri Linblom. (babia) (Entered: 06/15/2018)

06/15/2018 1889 MOTION for Hearing and Order Requiring U.S. Marshals and Court Security to Release All Reports and Surveillance Re: June 14, 2018

Incident by Jamshid Muhtorov. (Stimson, Kathryn) (Entered: 06/15/2018)

06/15/2018

1890

ORDER granting in part 1889 Mr. Muhtorov's Motion for Evidentiary Hearing and for Court Order Requiring the United States Marshals and Court Security Officers to Release All Reports and Video Surveillance Regarding the June 14, 2018 Incident. An Evidentiary Hearing is set for 6/18/2018 at 8:00 AM in Courtroom A802 before Judge John L. Kane. The defendant's presence is required. The people listed on page 2 of the motion are required to be in attendance. Discussion will be had as to whether individual jurors will be questioned. Ordered by Judge John L. Kane on 6/15/2018. Text Only Entry (jlksec) (Entered: 06/15/2018)

06/18/2018

1891

RESPONSE to Motion by USA as to Jamshid Muhtorov re 1889 MOTION for Hearing and Order Requiring U.S. Marshals and Court Security to Release All Reports and Surveillance Re: June 14, 2018 Incident (Holloway, Gregory) (Entered: 06/18/2018)

06/18/2018

1892

MINUTE ENTRY for Evidentiary Hearing proceedings held before Judge John L. Kane on 6/18/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky. (Attachments: # 1 Defense Exhibit A, # 2 Defense Exhibit B, # 3 Defense Exhibit C video conventionally submitted in Clerk's office) (babia) (Entered: 06/18/2018)

06/18/2018

1893

MINUTE ENTRY for Jury Trial Day 17 proceedings held before Judge John L. Kane on 6/18/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky. (Attachments: # 1 Jury Note) (babia) (Entered: 06/18/2018)

06/18/2018

1894

AMENDED MINUTE ENTRY for Jury Trial Day 17 proceedings held before Judge John L. Kane on 6/18/2018 as to Jamshid Muhtorov. Amended re 1893 . Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky. (babia) (Entered: 06/19/2018)

06/19/2018

1895

MINUTE ENTRY for Jury Trial Day 18 proceedings held before Judge John L. Kane on 6/19/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky. (Attachments: # 1 Jury Note) (babia) (Entered: 06/19/2018)

06/20/2018

1896

MINUTE ENTRY for Jury Trial Day 19 proceedings held before Judge John L. Kane 6/20/2018 as to Jamshid Muhtorov. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky. (Attachments: # 1 Jury Question 2 and Response by the Court, # 2 Jury Note) (babia) (Entered: 06/20/2018)

06/21/2018

1897

MINUTE ENTRY for Jury Trial Day 20 proceedings held before Judge John L. Kane on 6/21/2018 as to Jamshid Muhtorov held. Jury Verdict as to Jamshid Muhtorov (1) Guilty as to Counts One, Two, and Three of the Second Superseding Indictment, and Not Guilty on Count Four of the Second Superseding Indictment. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky. (Attachments: # 1 Jury Questions 3 and 4 and Response From The Court, # 2 Jury Question 5 and Response From The Court, # 3 Jury Note) (babia) Modified on 6/22/2018 to correct Indictment information (babia). (Entered: 06/21/2018)

06/21/2018 1898 JURY VERDICT Form (redacted) as to Jamshid Muhtorov (babia) (Entered: 06/21/2018)

06/21/2018 1899 Jury Verdict Un-Redacted - Level 4 - Viewable by Court Only (babia) (Entered: 06/21/2018)

06/21/2018

1900

STIPULATION AND ORDER GOVERNING THE CUSTODY AND DISPOSITION OF TRIAL EXHIBITS, DEPOSITIONS, TRANSCRIPTS, AND PAPERS as to Jamshid Muhtorov by Judge John L. Kane on 6/21/2018. (babia) (Entered: 06/21/2018)

06/22/2018

1901

MINUTE ORDER as to Jamshid Muhtorov. Sentencing for Defendant Muhtorov is set for August 30, 2018, at 10:00 a.m. before Judge Kane. The government is DIRECTED to file its Sentencing Statement on or before July 23, 2018. The deadline for the initial Presentence Investigation Report is July 26, 2018. Mr. Muhtorov's Sentencing Statement is due August 6, 2018. Any motion for a departure or variance must be filed on or before August 16, 2018, with responses due on or before August 23, 2018. Ordered by Judge John L. Kane on 6/22/2018. Text Only Entry (jlksec) (Entered: 06/22/2018)

06/28/2018

1912 Unopposed MOTION for Order to Extend Time for Filing Post Trial Motions by Jamshid Muhtorov. (Williamson, Warren) (Entered: 06/28/2018)

06/29/2018

1913

MINUTE ORDER as to Jamshid Muhtorov. Defendant Muhtorov's Unopposed Motion to Extend Time for Filing Post Trial Motions (Doc. 1912) is GRANTED. The time for filing post trial motions is extended to July 19, 2018. The government's response will then be due on or before August 2, 2018, and any reply will be due on or before August 9, 2018. By Judge John L. Kane on 06/29/2018. Text Only Entry. (sphil, ) (Entered: 06/29/2018)

07/02/2018 1932 NOTICE of Rejections of U.S. Sentencing Guidelines as to Bakhtiyor Jumaev and Jamshid Muhtorov. ORDERED by Judge John L. Kane

on 7/2/2018. Duplicate entry of ecf 1914 filed in 12-cr-33--JLK-2. (cthom, ) (Entered: 07/30/2018)

07/13/2018

1918

NOTICE of Defendant's Memorandum Regarding Sentencing Guidelines and Adoption of Arguments Made by Bakhtiyor Jumaev in Docs. 1908 and 1910 by Jamshid Muhtorov (Williamson, Warren) (Entered: 07/13/2018)

07/19/2018 1924 RESTRICTED DOCUMENT - Level 1: by Jamshid Muhtorov. (Williamson, Warren) (Entered: 07/19/2018)

07/23/2018 1927 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov (Attachments: # 1 Exhibit)(Holloway, Gregory) (Entered: 07/23/2018)

07/26/2018

1929 RESTRICTED PRESENTENCE REPORT first disclosure for attorney review as to Jamshid Muhtorov (aarag, ) (Entered: 07/26/2018)

08/01/2018

1933

TRANSCRIPT of Trial to Jury - Day 1 as to Jamshid Muhtorov held on 5/24/2018 before Judge Kane. Pages: 1-129. <br><br> NOTICE REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 08/01/2018)

08/01/2018

1934

TRANSCRIPT of Trial to Jury - Day 2 as to Jamshid Muhtorov held on 5/29/2018 before Judge Kane. Pages: 130-298. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 08/01/2018)

08/01/2018

1935

TRANSCRIPT of Trial to Jury - Day 3 as to Jamshid Muhtorov held on 5/30/2018 before Judge Kane. Pages: 305-441. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 08/01/2018)

08/01/2018 1936 RESTRICTED TRANSCRIPT of proceedings held on 5/30/2018 before Judge Kane. Pages: 299-304. (tlind, ) (Entered: 08/01/2018)

08/01/2018

1937

TRANSCRIPT of Trial to Jury - Day 4 as to Jamshid Muhtorov held on 5/31/2018 before Judge Kane. Pages: 442-624. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 08/01/2018)

08/01/2018 1938 RESTRICTED TRANSCRIPT of proceedings held on 6/4/2018 before Judge Kane. Pages: 625-785. (tlind, ) (Entered: 08/01/2018)

08/01/2018

1939

TRANSCRIPT of Trial to Jury - Day 6 as to Jamshid Muhtorov held on 6/5/2018 before Judge Kane. Pages: 786-992. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only

be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 08/01/2018)

08/01/2018

1940

TRANSCRIPT of Trial to Jury - Day 7 as to Jamshid Muhtorov held on 6/6/2018 before Judge Kane. Pages: 993-1143. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 08/01/2018)

08/01/2018

1941

TRANSCRIPT of Trial to Jury - Day 8 as to Jamshid Muhtorov held on 6/7/2018 before Judge Kane. Pages: 1144-1288. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 08/01/2018)

08/01/2018

1942

TRANSCRIPT of Trial to Jury - Day 9 as to Jamshid Muhtorov held on 6/11/2018 before Judge Kane. Pages: 1289-1406. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court

Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 08/01/2018)

08/01/2018

1943

TRANSCRIPT of Trial to Jury - Day 10 as to Jamshid Muhtorov held on 6/12/2018 before Judge Kane. Pages: 1407-1469. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 08/01/2018)

08/01/2018

1944 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov (Attachments: # 1 Proposed Document, # 2 Exhibit)(Holloway, Gregory) (Entered: 08/01/2018)

08/02/2018 1948 RESTRICTED DOCUMENT - Level 1: by USA as to Jamshid Muhtorov (Martinez, Julia) (Entered: 08/02/2018)

08/06/2018 1949 SENTENCING STATEMENT by Jamshid Muhtorov (Williamson, Warren) (Entered: 08/06/2018)

08/07/2018

1950 SUPPLEMENT to Defendant Jamshid Muhtorov's Sentencing Statement by Jamshid Muhtorov (Attachments: # 1 Attachment)(Williamson, Warren) (Entered: 08/07/2018)

08/09/2018 1951 OBJECTION/RESPONSE to Presentence Report by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev (Leedy, Brian) (Entered: 08/09/2018)

08/09/2018

1952

MINUTE ORDER: While not required to do so, the government may file a response to Mr. Muhtorov's Objections to the Presentence Report, ECF No. 1951 , on or before August 15, 2018. ORDERED by Judge John L. Kane on 8/9/2018. (cthom, ) (Entered: 08/09/2018)

08/10/2018

1953 ORDER Denying 1924 Defendant's Restricted Motion to Set Aside Verdict and for a New Trial by Jamshid Muhtorov. ORDERED by Judge John L. Kane on 8/10/2018. (cthom, ) (Entered: 08/10/2018)

08/14/2018 1954 TRANSCRIPT of Final Trial Prep Conference as to Jamshid Muhtorov held on 5/8/2018 before Judge Kane. Pages: 1-57.

<br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 08/14/2018)

08/15/2018

1955 MOTION for Non-Guideline Sentence and Downward Departure by Jamshid Muhtorov. (Attachments: # 1 Attachment A)(Williamson, Warren) (Entered: 08/15/2018)

08/16/2018 1956 SUPPLEMENT to 1955 MOTION for Non-Guideline Sentence and Downward Departure by Jamshid Muhtorov (Attachments: # 1 Attachment)(Williamson, Warren) (Entered: 08/16/2018)

08/21/2018 1957 RESTRICTED PRESENTENCE REPORT as to Jamshid Muhtorov (Attachments: # 1 Exhibit A, # 2 Exhibit B)(aarag, ) (Entered: 08/21/2018)

08/21/2018 1958 RESTRICTED ADDENDUM to Presentence Report 1957 as to Jamshid Muhtorov (aarag, ) (Entered: 08/21/2018)

08/29/2018

1961

STRICKEN RESPONSE by USA as to Jamshid Muhtorov re: 1949 Sentencing Statement filed by Jamshid Muhtorov and Objections to the Advisory Guideline Range (Doc 1951) (Holloway, Gregory) Modified to show stricken on 8/30/2018 (cthom, ). (Entered: 08/29/2018)

08/29/2018

1962 MOTION to Strike Doc. 1961, Government's Response to Defendant's Sentencing Statement and Objections to Advisory Guideline Range by Jamshid Muhtorov. (Williamson, Warren) (Entered: 08/29/2018)

08/30/2018

1963

ORDER granting 1962 Defendant Jamshid Muhtorov's Motion to Strike Doc. 1961, Government's Response to Defendant's Sentencing Statement and Objections to Advisory Guideline Range. Ordered by Judge John L. Kane on 8/30/2018 at 7:45 a.m. Text Only Entry (jlksec) (Entered: 08/30/2018)

08/30/2018 1964 MEMORANDUM OPINION AND SENTENCING ORDER as to Jamshid Muhtorov by Judge John L. Kane on 8/30/2018. (cthom, ) (Entered: 08/30/2018)

08/30/2018

1965

MINUTE ENTRY for Sentencing proceedings held before Judge John L. Kane on 8/30/2018 as to Defendant Jamshid Muhtorov (1). Granting in part and denying in part 1955 Motion for Non-Guideline Sentence as to Jamshid Muhtorov (1). Defendant sentenced as reflected on the record. Court Reporter: Terri Lindblom. Interpreter: Irina Kamensky and Tatiana Dautkhanova. (babia) (Entered: 08/30/2018)

09/04/2018

1966

FINAL JUDGMENT as to Defendant Jamshid Muhtorov (1). Defendant found GUILTY as to Counts 1ss, 2ss, and 3ss. Defendant to be imprisoned for 96 months as to Count 1ss, 96 months as to Count 2ss, and 132 months as to Count 3ss, to run concurrently for a total term of imprisonment of 132 months. Defendant found NOT GUILTY as to Count 4ss. Defendant shall be placed on Supervised Release for 15 years as to each of Counts 1ss, 2ss, and 3ss, to run concurrently. Total Assessment $300. Counts 1, 1s-4s, 1sss-3sss, 4sss, 5sss, and 6sss are Dismissed. Criminal Case Terminated by Judge John L. Kane on 9/4/2018. (babia) (Entered: 09/04/2018)

09/04/2018 1967 STATEMENT OF REASONS as to Jamshid Muhtorov. (babia) (Entered: 09/04/2018)

09/07/2018 1968 NOTICE OF APPEAL re Final Judgment [Doc. 1966] by Jamshid Muhtorov. (Williamson, Warren) (Entered: 09/07/2018)

09/07/2018

1969

LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 1968 Notice of Appeal as to Jamshid Muhtorov to the U.S. Court of Appeals. ( FPD,) (Attachments: # 1 Docket Sheet and Preliminary Record)(cthom, ) (Entered: 09/07/2018)

09/07/2018 1970 USCA Case Number as to Jamshid Muhtorov 18-1366 for 1968 Notice of Appeal filed by Jamshid Muhtorov. (cthom, ) (Entered: 09/07/2018)

10/01/2018 1972 ORDER of USCA as to Jamshid Muhtorov re 1968 Notice of Appeal. (USCA Case No. 18-1296) (cthom, ) (Entered: 10/02/2018)

10/11/2018

1975

DESIGNATION OF RECORD ON APPEAL re 1968 Notice of Appeal, 1928 Notice of Appeal by Jamshid Muhtorov as to Jamshid Muhtorov, Bakhtiyor Jumaev (Attachments: # 1 Attachment A - Joint Designation of Record Docket Sheet, # 2 Attachment B - JumaevOnly Designation of Record Docket Sheet, # 3 Attachment C Muhtorov-Only Designation of Record Docket Sheet)(Arceci, John) (Entered: 10/11/2018)

10/11/2018 1976 TRANSCRIPT ORDER FORM re 1968 Notice of Appeal by Jamshid Muhtorov. (Attachments: # 1 Attachment)(Arceci, John) (Entered: 10/11/2018)

10/24/2018 1985 RESTRICTED TRANSCRIPT of proceedings held on 11/30/2017 before Judge Kane. Pages: 1-13. (tlind, ) (Entered: 10/24/2018)

10/29/2018 1989 REPORTER TRANSCRIPT ORDER FORM filed by Terri Lindblom re 1968 Notice of Appeal. Transcript due by 11/19/2018. (nrich) (Entered: 10/29/2018)

11/25/2018

1990

TRANSCRIPT of Trial to Jury - Day 11 as to Jamshid Muhtorov held on 6/13/2018 before Judge Kane. Pages: 1470-1633. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 11/25/2018)

11/25/2018

1991

TRANSCRIPT of Trial to Jury - Day 12 as to Jamshid Muhtorov held on 6/14/2018 before Judge Kane. Pages: 1634-1637. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 11/25/2018)

11/25/2018

1992

TRANSCRIPT of Trial to Jury - Day 13 as to Jamshid Muhtorov held on 6/15/2018 before Judge Kane. Pages: 1638-1646. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent

to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 11/25/2018)

11/25/2018 1993 RESTRICTED TRANSCRIPT of proceedings held on 6/18/2018 before Judge Kane. Pages: 1647-1822. (tlind, ) (Entered: 11/25/2018)

11/25/2018

1994

TRANSCRIPT of Trial to Jury - Day 16 as to Jamshid Muhtorov held on 6/20/2018 before Judge Kane. Pages: 1823-1826. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 11/25/2018)

11/25/2018

1995

TRANSCRIPT of Trial to Jury - Day 17 as to Jamshid Muhtorov held on 6/21/2018 before Judge Kane. Pages: 1827-1838. <br><br> NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 11/25/2018)

11/25/2018 1996 VOIR DIRE TRANSCRIPT - Day 1 of proceedings held on 5/14/2018 before Judge Kane. Pages: 1-136. (tlind, ) (Entered: 11/25/2018)

11/25/2018 1997 VOIR DIRE TRANSCRIPT - Day 2 of proceedings held on 5/15/2018 before Judge Kane. Pages: 137-345. (tlind, ) (Entered: 11/25/2018)

11/30/2018 1998 VOIR DIRE TRANSCRIPT of proceedings held on 5/16/2018 before Judge Kane. Pages: 346-531. (tlind, ) (Entered: 11/30/2018)

11/30/2018 1999 VOIR DIRE TRANSCRIPT - Day 4 - of proceedings held on 5/17/2018 before Judge Kane. Pages: 532-623. (tlind, ) (Entered: 11/30/2018)

11/30/2018 2000 RESTRICTED TRANSCRIPT of proceedings held on 7/13/2017 before Judge Kane. Pages: 1-4. (tlind, ) (Entered: 11/30/2018)

11/30/2018 2001 RESTRICTED TRANSCRIPT of proceedings held on 2/27/2018 before Judge Kane. Pages: 1-8. (tlind, ) (Entered: 11/30/2018)

11/30/2018

2002

TRANSCRIPT of Sentencing` as to Jamshid Muhtorov held on 8/30/2018 before Judge Kane. Pages: 1-39. <br><br> NOTICE REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 11/30/2018)

12/05/2018

2003

NOTICE OF ATTORNEY APPEARANCE: John C. Arceci appearing for Jamshid MuhtorovAttorney John C. Arceci added to party Jamshid Muhtorov(pty:dft) (Attachments: # 1 Order & Entry)(Arceci, John) (Entered: 12/05/2018)

12/26/2018

2005

TRANSMITTAL OF RECORD ON APPEAL as to Jamshid Muhtorov to the U.S. Court of Appeals for the Tenth Circuit as to 1968 Notice of Appeal filed by Jamshid Muhtorov. Volume I Electronic Documents Part 1;Volume II - Electronic Documents Part 2; Volume III - Restricted Documents Part 1; Volume IV - Restricted Documents Part 2; Volume V - Transcripts; Volume VI - Restricted Transcripts; (USCA Case No. 18-1366). Text Only Entry (cthom, ) (Entered: 12/26/2018)

12/27/2018 2006 TRANSMITTAL OF JOINT RECORD ON APPEAL (requested by parties) as to Jamshid Muhtorov, Bakhtiyor Jumaev to the U.S. Court of Appeals for the Tenth Circuit as to 1968 Notice of Appeal filed by

Jamshid Muhtorov, 1928 Notice of Appeal filed by Bakhtiyor Jumaev. Volume I - Electronic Documents Part 1;Volume II - Electronic Documents Part 2; Volume III - Electronic Documents Part 3; Volume IV - Electronic Documents Part 4; Volume V - Restricted Documents Part 1; Volume VI - Restricted Documents Part 2; Volume VII Restricted Documents Part 3; Volume VIII - Restricted Documents Part 4 (USCA Case No. 18-1366 and 18-1296). Text Only Entry. (cthom, ) (Entered: 12/27/2018)

01/10/2019 2007 RESTRICTED TRANSCRIPT of proceedings held on June 28, 2012 before Judge Kane. Pages: 1-22. (thoff, ) (Entered: 01/10/2019)

06/27/2019

2012

TRANSCRIPT of Motion Hearing as to Jamshid Muhtorov held on 4/27/2018 before Judge Kane. Pages: 1-36. <br><br> NOTICE REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 06/27/2019)

07/12/2019

2013

TRANSCRIPT of Status Conference as to Jamshid Muhtorov held on 3/19/2012 before Judge Kane. Pages: 1-18. <br><br> NOTICE REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.<br><br> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (tlind, ) (Entered: 07/12/2019)

08/04/2019 2014 TRANSCRIPT of Arraignment Hearing as to Jamshid Muhtorov held on March 27, 2012 before Magistrate Judge Boland. Pages: 1-4.

NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact

personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.

Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Patterson Transcription Company, ) (Entered: 08/04/2019)

08/04/2019 2015 TRANSCRIPT of Re-Arraignment Hearing as to Jamshid Muhtorov held on June 1, 2016 before Magistrate Judge Shaffer. Pages: 1-9.

NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.

Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Patterson Transcription Company, ) (Entered: 08/04/2019)
10/21/2019 2018 MOTION to Amend/Correct Judgment Consistent with the Court's Oral Pronouncement at Sentencing by Jamshid Muhtorov. (Williamson, Warren) (Entered: 10/21/2019)

10/23/2019 2019 ORDER Granting 2018 Motion to Amend/Correct as to Jamshid Muhtorov (1) by Judge John L. Kane on 10/23/19. (babia) (Entered: 10/23/2019)

10/24/2019

2020

AMENDED JUDGMENT by Judge John L. Kane on 10/24/2019, as to Jamshid Muhtorov (1). Defendant found GUILTY as to Counts 1ss, 2ss, and 3ss. Defendant to be imprisoned to 96 months as to Count 1ss, 96 months as to Count 2ss, and 132 months as to Count 3ss, to run concurrently for a total term of imprisonment of 132 months. Defendant found NOT GUILTY as to Count 4ss. Defendant shall be placed on Supervised Release for 15 years as to each of Counts 1ss, 2ss, and 3ss, to run concurrently. Total Assessment $300. Count 1, 1s4s, 1sss-3sss, 4sss, 5sss, and 6sss are DISMISSED. The Court recommends the Defendant be designated to a facility in Colorado so

that he may remain close to his family, and that he receive credit for presentence confinement of 2,413 days. (babia) (Entered: 10/24/2019)

12/16/2019

2021

STRICKEN MOTION for Order to Disclose Grand Jury Transcripts, Ballot of Record for Inspection, Indictment and Criminal Complaint by Jamshid Muhtorov. (evana, ) (Modified on 12/17/2019 Stricken pursuant to the 2022 Order)(evana, ). (Entered: 12/16/2019)

12/16/2019

2022

ORDER striking 2021 Motion for Order as to Jamshid Muhtorov (1). This case is on appeal. As noted in CM/ECF 842 , Mr. Muhtorov is represented by counsel and is not permitted to file pro se. Ordered by Judge John L. Kane on 12/16/2019. Text Only Entry (jlksec) (Entered: 12/16/2019)

08/25/2020 2024 ORDER of USCA as to Jamshid Muhtorov re 1968 Notice of Appeal. (USCA Case No. 18-1366) (evana, ) (Entered: 08/25/2020)

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