Case 3:10-cr-00475-KI Document 517 Filed 06/24/14 Page 1 of 56 Page ID#: 9140

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 3:10-CR-00475-KI-1

Plaintiff, v.

OPINION AND ORDER

MOHAMED OSMAN MOHAMUD,

Defendant.

S. Amanda Marshall United States Attorney District of Oregon Ethan D. Knight Pamala R. Holsinger United States Attorney’s Office 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204 John P. Carlin George Z. Toscas J. Bradford Wiegmann Tashina Gauhar Jolie F. Zimmerman

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National Security Division United States Department of Justice
Attorneys for Plaintiff
Steven T. Wax Federal Public Defender Stephen R. Sady Lisa Hay Office of the Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204
Attorneys for Defendant
KING, Judge: The Foreign Intelligence Surveillance Court of Review (“FISA Court of Review”) has
explained the difficult exercise which I now undertake: Our government is tasked with protecting an interest of utmost significance to
the nation–the safety and security of its people. But the Constitution is the cornerstone of our freedoms, and government cannot unilaterally sacrifice constitutional rights on the altar of national security. Thus, in carrying out its national security mission, the government must simultaneously fulfill its constitutional responsibility to provide reasonable protections for the privacy of United States persons. The judiciary’s duty is to hold that delicate balance steady and true. In re Directives [Redacted] Pursuant to Section 105B of FISA, 551 F.3d 1004, 1016 (FISA Ct. Rev. 2008). Title I and Title III of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C. §§ 1801-1812, 1821-1829, allow electronic surveillance and physical search after obtaining a FISA warrant from the Foreign Intelligence Surveillance Court (“FISC”). The government provided a FISA notification to defendant at his first appearance, advising him it intended to use evidence
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obtained under Title I and Title III. Defendant unsuccessfully relied on an entrapment defense. A
jury convicted him in January 2013 of attempting to use a weapon of mass destruction, in violation
of 18 U.S.C. § 2332a(a)(2)(A).
Section 702 of the FISA Amendments Act of 2008 (“FAA”), 50 U.S.C. § 1881a (part of Title
VII of FISA, which is codified at §§ 1881a-1881g), permits, subject to statutory requirements, the
targeting of non-United States persons reasonably believed to be located outside the United States in
order to acquire foreign intelligence information.
Unlike traditional FISA surveillance, § 1881a does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power. And, unlike traditional FISA, § 1881a does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur.
. . . .
Section 1881a mandates that the Government obtain the Foreign Intelligence Surveillance Court’s approval of “targeting” procedures, “minimization” procedures, and a governmental certification regarding proposed surveillance.
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1144-45 (2013) (internal citations omitted).
On November 19, 2013, the government filed a Supplemental FISA Notification:
This supplemental notice is being filed as a result of the government’s determination that information obtained or derived from Title I FISA collection may, in particular cases, also be “derived from” prior Title VII FISA collection. Based upon that determination and a recent review of the proceedings in this case, the United States hereby provides notice to this Court and the defense, 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 the above-captioned matter information derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. § 1881a.
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Defendant intended to challenge the constitutionality of Title VII and claimed he needed broad discovery to provide the court with the full factual context surrounding the legal issues relevant to the newly-noticed surveillance. On March 19, 2014, I denied defendant’s motion seeking this discovery. Now before the court are defendant’s Motion for Vacation of Conviction and Alternative Remedies of Dismissal of the Indictment, Suppression of Evidence, and New Trial for the Government’s Violation of the Pretrial Notice Statute [500], defendant’s Alternative Motion for Suppression of Evidence and a New Trial Based on the Government’s Introduction of Evidence at Trial and Other Uses of Information Derived from Unlawful Electronic Surveillance [502], and defendant’s Second Motion for a New Trial [504]. Generally speaking, defendant seeks suppression of evidence obtained or derived through § 702 or fruits of that evidence, as well as other related or alternative relief. I deny the motions for the reasons I explain below. I am also filing an accompanying classified opinion to explain some of my reasoning.
DISCUSSION I. Motion for Vacation of Conviction and Alternative Remedies of Dismissal of the Indictment, Suppression of Evidence, and New Trial for the Government’s Violation of the Pretrial Notice Statute
Under 50 U.S.C. § 1881e(a), information acquired under § 702 is deemed information acquired from an electronic surveillance and is subject to the notice requirement in 50 U.S.C. § 1806(c). Defendant argues the government violated the notice statute by failing to provide notice of § 702 surveillance in the original pretrial FISA notification. As a remedy, defendant seeks dismissal of the indictment or a new trial after suppression of evidence.
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Defendant first objects to what he contends are contradictory statements in the government’s briefing for the discovery motion I just denied. Defendant sees a contradiction between: (1) the government’s statement that it had not previously considered if evidence obtained through electronic surveillance under Title I/III could also be considered as a matter of law to be derived from a prior collection under Title VII and; (2) the government’s statement that the prosecutors acted in accordance with the then-current standard practice.
The government explains it provided the Supplemental Notification after deciding evidence obtained under Title I/III could also be considered to be derived from prior collection under Title VII as a matter of law. A changed legal opinion is a different issue from following the standard practice up to that point. I do not see the contradiction troubling defendant.
Next, defendant claims he has established a prima facie case regarding the circumstances surrounding the statutory violation, relying on speculation and public disclosures about Clapper. He argues that to rebut this prima facie case, the government must file affidavits to support its explanation concerning the reason it filed the Supplemental Notification. This is not a situation, however, where the law supports presumptions based on a prima facie case.1
I now turn to the legal arguments defendant brings forward, the first of which is based on cases in effect when Congress enacted FISA. Because the FISA notice provision requires notice to both the aggrieved person and the court, defendant argues dismissal of the indictment or a new trial provide the only mechanisms to vindicate the separation of powers doctrine and to effectuate the choice the Supreme Court has imposed on the government. Defendant relies on a trilogy of Supreme
1 I am unpersuaded the burden-shifting analysis for resolving summary judgment motions in employment discrimination cases, as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1981), and cited by defendant, has any application to the issue before me. PAGE 5 - OPINION AND ORDER

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Court cases requiring the government to choose between disclosure and dismissal of the indictment: Jencks v. United States, 353 U.S. 657, 672, 77 S. Ct. 1007 (1957) (defendant was entitled to reports of government witnesses testifying at trial; the criminal action must be dismissed if the government, on the ground of privilege, elects not to comply with an order to produce), Roviaro v. United States, 353 U.S. 53, 61, 77 S. Ct. 623 (1957) (if an informer’s identity is relevant and helpful to the defense or is essential to a fair trial, the government must disclose the identity or dismiss the indictment), and Alderman v. United States, 394 U.S. 165, 184, 89 S. Ct. 961 (1969) (in the context of electronic surveillance with no statutory notice requirement, government must disclose surveillance records needed to determine the legality of the surveillance or dismiss the indictment). Defendant contends these cases provide a framework for protection of the separation of powers because they enforce legislative and judicial constraints on executive over-reaching in prosecution.
The government’s response is based on FISA’s provision under 50 U.S.C. § 1806(e) which allows defendant to move to suppress evidence unlawfully acquired. Because this remedy would put defendant in a similar position to the government having provided the Supplemental Notification before trial, the government argues dismissal of the indictment is unnecessary. The government contends defendant’s trilogy of Supreme Court cases do not apply to his situation because, here, the government did not affirmatively withhold disclosure of the use of the Title VII-derived evidence in defiance of a court order.
Congress was aware of Jencks, Roviaro, and Alderman when it enacted FISA, yet it chose to provide the single remedy of suppression, not dismissal of the indictment, when the government unlawfully acquired evidence under the statute. Defendant has argued no persuasive reason to limit the term “unlawfully acquired . . . under the statute” to exclude a failure to provide the statutory
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notice. In addition, as the government notes, FISA even anticipates a suppression motion may be filed after trial: “Such a motion shall be made before the trial . . . unless . . . the person was not aware of the grounds of the motion.” 50 U.S.C. § 1806(c). If Congress wished to provide a harsher penalty for a notification violation, it could have done so.
Alternatively, defendant claims the court can dismiss the indictment or grant a new trial to remedy the government’s intentional or reckless violation of the FISA notice provision, based on an exercise of the court’s inherent supervisory power, Federal Rule of Criminal Procedure 16(d), and Brady authority. Even if the government did not intentionally violate the notice provision, defendant claims the government’s reckless disregard for the statutory obligation warrants dismissal.
The government argues dismissing the indictment would serve no valid purpose because there was no constitutional violation. Because FISA provides an appropriate remedy, the government contends defendant cannot show substantial prejudice, and the court may take less severe action than dismissal. The government claims there was no prosecutorial misconduct, much less flagrant misconduct, when it provided notice under the standard practice at the time. Once the government changed its legal opinion, it provided the Supplemental Notification which allowed defendant to file the pending motion to suppress. Further, the government argues there were no discovery violations and there is no new evidence, making sanctions under Rule 16 or Brady inappropriate.
I agree with defendant that I have the power to dismiss the indictment under my inherent supervisory powers and for violations of the discovery obligations under the Constitution and federal rules. See United States v. Chapman, 524 F.3d 1073, 1084-88 (9th Cir. 2008) (under its supervisory power, the court may dismiss an indictment for flagrant prosecutorial misconduct, which can include
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reckless disregard for the prosecution’s constitutional obligations under Brady and Giglio); United States v. Hernandez-Meza, 720 F.3d 760, 769 (9th Cir. 2013) (indictment can be dismissed for willful Rule 16 violation). But dismissal is not warranted here.
The court may exercise its supervisory power “to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; or to deter future illegal conduct.” United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011) (internal quotations omitted), cert. denied, 132 S. Ct. 1768 (2012). Dismissal is available “when the investigatory or prosecutorial process has violated a federal constitutional or statutory right and no lesser remedial action is available.” United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991).
As explained above, FISA provides a lesser remedy if necessary–suppression. Thus, the harsh remedy of dismissal is not needed. Clearly a lot of time has passed, but otherwise suppression and a new trial would put defendant in the same position he would have been in if the government notified him of the § 702 surveillance at the start of the case. Moreover, the government has apparently changed its practice in making this type of notification, so dismissal is not needed as a deterrence.
In addition, once the government changed its legal opinion about when evidence could be derived under Title VII, it performed the second review of this case and provided the Supplemental Notification without prodding from the court or the defense. If the government had kept mum about the situation in this case, I would have sentenced defendant months ago. I consider this strong evidence of the lack of prosecutorial misconduct.
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For these reasons, I deny defendant’s motion for vacation of conviction and alternative remedies of dismissal of the indictment, suppression of evidence, and new trial for the government’s violation of the pretrial notice statute. II. Second Motion for a New Trial
Defendant went to trial to present an entrapment defense. He argued he was not predisposed to attempt to use a weapon of mass destruction in the United States, and he was induced into doing so. He divides the withheld evidence into three parts: (1) the fact of additional surveillance; (2) the scope of that surveillance; and (3) the evidence generated by that surveillance. Defendant is at a grave disadvantage in articulating how the withheld evidence might have affected the trial, because he has not seen it, but he presents a few scenarios he considers likely.
According to defendant, if he had the withheld evidence before trial, he could have argued that the lack of evidence of predisposition, in light of the additional and pervasive surveillance, more strongly suggests he was not predisposed. With respect to inducement, defendant could have argued the knowledge the government gained through the additional surveillance allowed the government to more closely tailor the sting operation. Defendant claims the jury should have seen the withheld evidence to fully assess the government’s conduct. Thus, defendant considers the late notification of the Title VII surveillance a Brady violation, as well as a violation of his other fundamental constitutional rights guaranteeing a fair trial, and he seeks a new trial as a remedy.
The government assumes defendant is moving for a new trial under Federal Rule of Criminal Procedure 33, which allows the court to grant a new trial if the interest of justice so requires or if there is newly discovered evidence. The government reminds us the Supplemental Notification referred to evidence previously addressed before trial that was derived from a Title VII collection as
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well as being obtained in a Title I/III collection. Thus, the government argues there is no new evidence, and defendant’s inference that the surveillance was pervasive in scope is only an inference, not new evidence. Moreover, the government claims the specific information at issue would not have been helpful to the defense or resulted in acquittal, as detailed in the government’s classified brief. The government contends it presented overwhelming evidence of defendant’s guilt at trial, and notes the jury convicted defendant even after the defense argued the pervasive scope of government surveillance to the jury.
Because defendant makes broad arguments, I will state a few standards which could apply. A party seeking a trial on newly discovered evidence must prove:
(1) the evidence is newly discovered; (2) the defendant was diligent in seeking the evidence; (3) the evidence is material to the issues at trial; (4) the evidence is not (a) cumulative or (b) merely impeaching; and (5) the evidence indicates the defendant would probably be acquitted in a new trial. United States v. Hinkson, 585 F.3d 1247, 1265 (9th Cir. 2009), reh’g denied and dissenting op. vacated and superseded, 611 F.3d 1098 (9th Cir. 2010). For the court to grant a new trial because of a Brady violation, it must determine that the documents, if favorable to the defendant, “undermine its confidence in the outcome and that there is a reasonable probability of a different result.” United States v. Doe, 705 F.3d 1134, 1152-53 (9th Cir. 2013) (internal quotation omitted). Although defendant vehemently disagrees, the fundamental problem with defendant’s argument is that there is no new evidence. A surveillance is not evidence–it produces evidence. Even with an entrapment defense, the way in which the government was able to tailor the sting operation is not relevant to entrapment. What is relevant to entrapment are the actual contacts
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between government agents and the defendant. Those contacts were presented in detail to the jury, including hours of video and audio recordings. The jury was able to fully assess the government’s conduct, as was I. The defense brought forward the pervasiveness of the surveillance of defendant, even lacking knowledge of the § 702 surveillance referenced in the Supplemental Notification. Moreover, even if there were a Brady violation, I cannot say my confidence in the outcome of the trial is undermined or that there is a reasonable probability of a different result.
Defendant further argues the government presented its investigation as being above reproach. He speculates that depending on the content of the withheld evidence, the defense might have been able to impeach government witnesses’ characterizations of the investigation and thereby cast doubt on their credibility.
The government claims that even if the fact of the § 702 collection would impeach a government witness, new impeachment evidence does not support a motion for a new trial except in extraordinary circumstances.
As stated above in the factors for a new trial under Hinkson, impeachment evidence is usually not enough to support a request for a new trial. However, there is one exception:
[T]he newly-discovered impeachment evidence may be so powerful that, if it were to be believed by the trier of fact, it could render the witness’ testimony totally incredible. In such a case, if the witness’ testimony were uncorroborated and provided the only evidence of an essential element of the government’s case, the impeachment evidence would be “material” under [United States v. Walgren, 885 F.2d 1417, 1428 (9th Cir.1989)]. Moreover, Rule 33 permits the granting of a new trial motion “if required in the interest of justice.” Fed. R. Crim. P. 33. If newly-discovered evidence establishes that a defendant in a narcotics case has been convicted solely on the uncorroborated testimony of a crooked cop involved in stealing drug money, the “interest of justice” would support a new trial under Rule 33. United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1991).
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That is clearly not the situation here. Introduction of the fact of the § 702 surveillance referenced in the Supplemental Notification would not gut the government’s case against defendant.
Accordingly, I deny defendant’s second motion for a new trial. III. Alternative Motion for Suppression of Evidence and a New Trial Based on the Government’s Introduction of Evidence at Trial and Other Uses of Information Derived from Unlawful Electronic Surveillance
A. Overview of FISA I first provide an overview of FISA’s history and an explanation of some of its provisions: As originally enacted in 1978, FISA generally requires a warrant to conduct electronic surveillance, as that term was defined in the Act. 50 U.S.C. § 1809(a)(1). Congress precisely defined electronic surveillance to cover four types of domestic foreign intelligence collection activities, with the type being dependent, in part, on whether a wire or a radio communication is being acquired. 50 U.S.C. § 1801(f). Based on witness testimony, Congress understood that most foreign-to-foreign and international communications were outside FISA’s proposed definition of electronic surveillance. “[T]he language of this amendment exempts . . . foreign intelligence gathering from international or foreign communications by means of an electronic, mechanical, or other surveillance device 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 S. Rep. No. 95-701, at 71 (1978). According to the government, if a particular known U.S. person in the United States was not intentionally targeted, FISA, when first enacted, “allowed the government to monitor international
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communications through radio surveillance, or wire surveillance of transoceanic cables offshore or
on foreign soil, outside the statute’s regulatory framework.” Government’s Unclassified Resp. to
Def.’s Alternative Mot. for Suppression of Evidence and a New Trial 11, ECF No. 500 [hereinafter
Govt.’s Brief]. Communications technology changed dramatically as the decades passed, causing
unforeseen consequences under FISA.
More specifically, the DNI [Director of National Intelligence] 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. [Modernization of the Foreign Intelligence Surveillance Act: Hearing before the S. Select Comm. on Intel., 110th Cong. 1st Sess. (May 1, 2007), at 19. (“May 1, 2007 FISA Modernization Hrg.”)] 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.
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. at 19; see 50 U.S.C. § 1801(f)(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. at 19.
Govt.’s Brief 13-14 (footnote omitted).
To update FISA, Congress enacted the Protect America Act (“PAA”) in August 2007; under
a sunset provision, it expired in February 2008. In July 2008, Congress enacted the FISA
Amendments Act of 2008 (“FAA”), including § 702, the center of the dispute in this motion. Under
§ 702, after the FISC issues an order, the Attorney General and the DNI “may authorize jointly, for a
period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably
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believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a).
Section 702 includes limitations to protect domestic communications. An acquisition: (1) may not intentionally target any person known at the time of acquisition to
be located in the United States; (2) may not 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;
(3) may not intentionally target a United States person reasonably believed to be located outside the United States;
(4) 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; and
(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States. 50 U.S.C. § 1881a(b). Minimization 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 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)(1). If the FISC approves the targeting and minimization procedures and the certification from the Attorney General and DNI, it will approve the acquisition. Under 50 U.S.C. § 1881a(g)(2)(A), the certification must attest:
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(1) there are procedures in place that have been approved, submitted for approval, or will be submitted with the certification for approval by the FISC that are reasonably designed to ensure that an acquisition (a) is limited to targeting persons reasonably believed to be located outside the United States and (b) to prevent the intentional acquisition of any communication in which the sender and all intended recipients are known to be located in the United States;
(2) the minimization procedures meet the definition of minimization procedures under Title I/III and have been approved, submitted for approval, or will be submitted with the certification for approval by the FISC;
(3) the Attorney General has adopted guidelines to ensure compliance with the limitations in 50 U.S.C. § 1881a(b) [quoted above];
(4) the procedures and guidelines are consistent with the requirements of the Fourth Amendment;
(5) a significant purpose of the acquisition is 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 50 U.S.C. § 1881a(b) [quoted above]; In addition, the certification must include copies of the targeting and minimization procedures, a supporting affidavit from an appropriate national security official, and an effective date. 50 U.S.C. § 1881a(g)(2)(B)-(D). The FISC can approve the certification and related targeting and minimization procedures, or it can direct the government to either (1) correct any deficiency within 30 days or (2) cease or not begin implementation of the authorization. 50 U.S.C. § 1881a(i)(3)(B).
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Section 702 allows the government to compel an electronic communication service provider to acquire the authorized communications. 50 U.S.C. § 1881a(h). The National Security Agency (“NSA”) “provides specific identifiers (for example, e-mail addresses, telephone numbers) used by non-U.S. persons overseas who the government believes possess, communicate, or are likely to receive foreign intelligence information authorized for collection under an approved certification.” The National Security Agency: Missions, Authorities, Oversight and Partnerships 4, available at http://www.nsa.gov/public_info/_files/speeches_testimonies/2013_08_09_the_nsa_story.pdf (Aug. 9, 2013).
B. Separation of Powers As a threshold issue, defendant claims § 702 violates the separation of powers doctrine. The Fourth Amendment inserts a neutral and detached magistrate between the subject of the search and the government. Defendant claims § 702 procedures reduce the role of the judge to consulting with the Executive Branch with no case or controversy involving an adversary. He contends the FISC does not approve or disapprove proposals for § 702 surveillance but instead has a role in designing them. Defendant characterizes the FISC’s role as providing a non-judicial advisory opinion, and he argues this violates the fundamental separation of powers function of the Warrant Clause. The government disagrees and analogizes the FISC role to numerous judicial functions not directly connected to adversarial proceedings. The FISA Court of Review has noted it does “not think there is much left to an argument made by an opponent of FISA in 1978 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.” In re Sealed Case, 310 F.3d 717, 732 n.19 (FISA Ct. Rev. 2002)
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(citing Foreign Intelligence Electronic Surveillance: Hearings on H.R. 5794, 9745, 7308, and 5632
Before the Subcomm. on Legislation of the Permanent Select Comm. on Intelligence, 95th Cong., 2d
Sess. 221 (1978) (statement of Laurence H. Silberman)). I agree.
The Supreme Court has approved numerous congressional delegations of power which did
not upset the balance of power established in the Constitution:
The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” U.S. Const., Art. I, § 1, and we long have insisted that “the integrity and maintenance of the system of government ordained by the Constitution” mandate that Congress generally cannot delegate its legislative power to another Branch. Field v. Clark, 143 U.S. 649, 692, 12 S. Ct. 495, 504, 36 L. Ed. 294 (1892). We also have recognized, however, that the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. . . . So long as Congress “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S. Ct. 348, 352 (1928).
Mistretta v. United States, 488 U.S. 361, 371-72, 109 S. Ct. 647 (1989) (holding Sentencing
Guidelines are constitutional, Congress did not delegate excessive legislative power to the
Commission and did not violate the separation-of-powers principle, judges traditionally determine
sentences). “[C]onsistent with the separation of powers, Congress may delegate to the Judicial
Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and
that are appropriate to the central mission of the Judiciary.” Id. at 388.
The statutory scheme Congress specified for § 702 surveillance is sufficient to serve as the
intelligible principle to which FISC judges must conform in reviewing applications. In particular,
the FISC review must insure the surveillance will be conducted in a manner consistent with the
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Fourth Amendment. 50 U.S.C. § 1881a(b)(5), (g)(2)(A)(4). The judiciary certainly is well-prepared to fulfill that function. Furthermore, determining if a statute is constitutional is not a prohibited executive or administrative duty which would violate the separation of powers doctrine. See Morrison v. Olson, 487 U.S. 654, 677, 108 S. Ct. 2597 (1988) (in upholding the constitutionality of the Ethics and Government Act under Article III and the separation of powers doctrine, the Court noted, “As a general rule, we have broadly stated that executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution.”) (internal quotation omitted).
Indeed, as the government points out, the judiciary also issues search warrants and reviews wiretap applications, both of which are ex parte proceedings. Id. at 389 n.16. I am not persuaded the review of § 702 surveillance applications interferes with the prerogatives of another branch of government beyond requiring the executive branch to conform to the statute. Review of § 702 surveillance applications is as central to the mission of the judiciary as the review of search warrants and wiretap applications.
Moreover, I disagree with defendant’s argument that the FISC judges only provide advisory opinions. The FISC judge reviews the certification, targeting procedures, and minimization procedures included in a § 702 surveillance application and either approves the acquisition or orders the government to choose between correcting deficiencies within 30 days and ceasing or not beginning the acquisition. 50 U.S.C. § 1881a(i)(2). Similarly, electronic communication service providers must follow directives to acquire communications or challenge the directive before the FISC; the opinions are not advisory. 50 U.S.C. § 1881a(h).
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Although I am not a FISC judge, I disagree with defendant’s argument that the FISC judges assist in designing § 702 procedures. FISC opinions now declassified inform us that the court meets with senior officials at the Department of Justice to discuss information provided in the submissions. [Caption Redacted], [docket no. redacted], 2011 WL 10945618, at *3 (FISA Ct. Oct. 3, 2011). The technology underlying the surveillance is so extremely complex there is likely little possibility of understanding it without question sessions like this. If the FISC disapproves a government submission, it explains why. The government can then make changes addressing the problems and resubmit the submission. This is the normal way courts operate–justice is not served if the court does not explain its decisions.
Finally, “[p]rior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights.” United States v. United States Dist. Court for E. Dist. of Mich., 407 U.S. 297, 318, 92 S. Ct. 2125 (1972)(citing Beck v. Ohio, 379 U.S. 89, 96, 85 S. Ct. 223 (1964)) (in the criminal prosecution for the bombing of a CIA office in Michigan, warrantless wiretaps conducted as part of a domestic security surveillance violated the Fourth Amendment) [hereinafter Keith]. Although the FISC is not reviewing a warrant application under § 702, the FISC review of § 702 surveillance submissions provides prior review by a neutral and detached magistrate. This strengthens, not undermines, Fourth Amendment rights.
Accordingly, I conclude § 702 does not violate the separation of powers doctrine. C. Constitutionality of Section 702 under the First Amendment Defendant contends the breadth and vagueness of § 702 surveillance chill Americans’ exercise of their First Amendment rights, causing many to change their habits in using the Internet
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and telephones. Defendant claims this chill is sufficient to create a First Amendment violation, invalidating § 702.
The government responds that First Amendment interests in a criminal investigation are protected by the Fourth Amendment, and motions to suppress based on alleged First Amendment violations are analyzed under the Fourth Amendment and the exclusionary rule.
Defendant raises a significant point: “Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with scrupulous exactitude.” Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S. Ct. 1970 (1978) (internal quotation omitted) (a search warrant for a newspaper which was not suspected of a crime does not violate the First Amendment because the warrant’s preconditions adequately safeguard the newspaper’s ability to gather and publish the news).
But the appropriate analysis is under the Fourth Amendment, not the First Amendment. United States v. Mayer, 503 F.3d 740, 747-48 (9th Cir. 2007) (affirming conviction based on investigation with FBI agent going undercover as a member of organization opposed to sexual age-of-consent laws, “First Amendment concerns become part of the Fourth Amendment analysis because, under the Fourth Amendment, the court must examine what is unreasonable in the light of the values of freedom of expression” (citing Roaden v. Kentucky, 413 U.S. 496, 504, 93 S. Ct. 2796 (1973))).
Defendant cites a concurrence in Nevada Commission on Ethics v. Carrigan for the proposition that a statute is invalid if it “operates to chill or suppress the exercise of First Amendment freedoms by reason of vague terms or overbroad coverage.” Nevada Commission on Ethics v. Carrigan, 131 S. Ct. 2343, 2353 (2011) (Kennedy, J., concurring) (state government
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conflict of interest rule did not violate legislator’s First Amendment rights). I have no quarrel with this blackletter statement of the law, but Nevada Commission on Ethics is far afield from § 702 surveillance.
Consequently, I will follow Mayer and move on to a Fourth Amendment analysis, but I will apply the Fourth Amendment requirements with “scrupulous exactitude,” as required by Zurcher.
D. Constitutionality of Section 702 under the Fourth Amendment 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 place to be searched, and the persons or things to be seized. “[N]either a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” Nat’l Treasury Emp. Union v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384 (1989) (suspicionless drug-testing of certain United States Custom Service employees was reasonable under Fourth Amendment). The parties agree on one thing: 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, 110 S. Ct. 1056 (1990) (Fourth Amendment did not apply to American law enforcement’s search of the Mexican residences of a Mexican citizen with no voluntary attachment to the United States). Section 702 is aimed at acquiring communications of non-U.S. persons outside the United States, and thus not entitled to Fourth Amendment protection. The dispute arises because communications of U.S. persons located in the United States can be incidentally acquired.
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The government claims the § 702 acquisition targeting non-U.S. persons outside the United States is constitutional because: (1) the incidental collection of communications of U.S. persons does not trigger the warrant requirement; (2) surveillance authorized under § 702 falls within the foreign intelligence exception to the warrant requirement; and (3) surveillance authorized under § 702 is a reasonable search under the Fourth Amendment.
Defendant strongly disagrees: [R]egardless of the nominal targeting of foreign persons abroad, the § 702 programs routinely acquire huge numbers of American communications in America . . . [which] implicate[] the Fourth Amendment. This case is a test of fundamental American liberties: the Court should reject the claim that, simply because foreign persons are being targeted, Americans lose their rights as collateral damage. Def.’s Reply to Government’s Unclassified Resp. to Def.’s Alternative Mot. for Suppression of Evidence 4, ECF No. 513 [hereinafter Def.’s Reply]. First, I must address whether defendant’s challenge to § 702 must be limited to an “as applied” challenge, as the government argues, or also include a facial challenge, as defendant argues. Defendant relies on Berger v. State of New York, 388 U.S. 41, 87 S. Ct. 1873 (1967), in which the Court held a state statute, allowing law enforcement to obtain ex parte orders for eavesdropping, violated the Fourth Amendment because it was overbroad and allowed “a trespassory invasion of the home or office, by general warrant.” Id. at 44, 64. The Court allowed the facial challenge, even though the defendant was convicted using evidence obtained by the eavesdropping order. Id. at 44. The Court took the opposite approach in Sibron v. New York, 392 U.S. 40, 59, 88 S. Ct. 1889 (1968) (refusing to undertake a facial challenge to the constitutionality of New York’s stop-and-frisk law), and distinguished Berger:
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The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of § 180-a ‘on its face.’ We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of § 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See [Berger]. No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment.
Sibron, 392 U.S. at 59 (internal citation omitted).
Defendant contends his facial challenge to § 702 concerns the adequacy of its procedural
safeguards, and should be allowed under Berger.
The government insists the challenge must be limited to “as applied,” citing In re Directives,
551 F.3d at 1010, which limited the communication service provider’s challenge to “as applied.”
Specifically, “[w]here, 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.” In turn, In
re Directives cited National Endowment for the Arts v. Finley, 524 U.S. 569, 118 S. Ct. 2168 (1998),
in which the Court concluded a statute setting some guidelines in awarding financial grants for the
arts did not violate the First Amendment. Although the plaintiffs had been denied a grant, the Court
held the statute was facially valid “as it neither inherently interferes with First Amendment rights nor
violates constitutional vagueness principles.” Id. at 573. In doing so, the Court reasoned:
Facial invalidation “is, manifestly, strong medicine” that “has been employed by the Court sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S.
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601, 613, 93 S. Ct. 2908, 2916, 37 L. Ed. 2d 830 (1973); see also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223, 110 S. Ct. 596, 603, 107 L. Ed. 2d 603 (1990) (noting that “facial challenges to legislation are generally disfavored”). To prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech. Id. at 580. The Court also noted it was “reluctant, in any event, to invalidate legislation on the basis of its hypothetical application to situations not before the Court.” Id. at 574 (internal quotation omitted). If I use defendant’s proffered standard in a facial challenge, that there would be a substantial risk the statute would be applied unconstitutionally, rather than the government’s proffered standard, that the statute would survive a facial challenge if there is any set of circumstances in which it could be constitutionally applied,2 I would be required to speculate about the other applications. Under the government’s standard, if the statute survives an as-applied challenge, it automatically survives a facial challenge because there is at least one constitutional application. I am unwilling to speculate on other applications with a statute this complex. Moreover, although defendant argues I should undertake a facial challenge to address the lack of procedural safeguards in § 702, the allegedly insufficient procedural safeguards were applied to defendant, so I would address them in an asapplied challenge also. This includes the lack of a warrant, the lack of any probable cause determination, and the lack of any judicial determination about a targeted individual, due to the programmatic nature of § 702 surveillance. This overlap, as well as the complexity, weigh in favor of an as-applied challenge.
2 Based on United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095 (1987).
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For these reasons, I will follow the lead of the FISA Court of Review in In re Directives and limit defendant’s challenge to an as-applied challenge.
1. Warrant Requirement Defendant, a U.S. citizen, was not targeted under § 702, but his communications were collected incidentally during intelligence collection targeted at one or more non-U.S. persons outside the United States. The government contends the warrant requirement is not triggered by the incidental collection of non-targeted U.S. person communications during the lawful collection of communications of targeted non-U.S. persons located outside the United States. According to the government, the privacy interests of the U.S. persons are protected by the required minimization procedures. Application of a warrant requirement in this situation would be impracticable and inconsistent with decades of foreign-intelligence collection practice. The government notes that before starting surveillance of a foreign target, the government cannot know the identities of all people with whom the target will communicate, and there is always a possibility the target will communicate with a U.S. person. Thus, the government claims imposing a warrant requirement for any incidental interception of U.S. 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. Testimony before Congress supports the government’s argument. See 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. Comm. on the Judiciary, 110th Cong., 1st Sess. at 8 (Sept. 18, 2007) (statement of
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Rep. Forbes) (“would reverse 30 years of established intelligence gathering” and deprive the intelligence community of the flexibility needed to protect the country).
Defendant argues § 702 violates the Fourth Amendment because it permits the “widespread capture, retention, and later querying, dissemination, and use of the communications of American citizens” without the protection afforded by a warrant. Def.’s Mem. in Supp. of Alternative Mot. for Suppression of Evidence 13, ECF No. 503 [hereinafter Def.’s Brief]. Defendant notes the FISC’s statement that the NSA acquires more than 250 million Internet communications each year under § 702, including acquisitions from upstream and from Internet service providers. [Caption Redacted], 2011 WL 10945618, at *9. Defendant speculates that a significant number of those acquisitions would be communications with U.S. persons located in the United States and thus implicate their Fourth Amendment rights sufficiently that the court should apply a warrant requirement.
The government cites cases supporting its argument that applying a warrant requirement to incidental interception of U.S.-person communications during surveillance targeting non-U.S. persons overseas to obtain foreign intelligence is inconsistent with decades of foreign intelligence collection practice. See In re Terrorist Bombings of United States Embassies in East Africa, 552 F.3d 157, 167 (2nd Cir. 2008) (Fourth Amendment’s reasonableness requirement, not the Warrant Clause, governs extraterritorial searches of U.S. citizen’s home and telephone); United States v. Barona, 56 F.3d 1087, 1092 n.1 (9th Cir. 1995) (foreign searches historically have not been subject to the warrant procedure).
In addition, “incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.” In re Directives, 551 F.3d at 1015 (in the
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context of the PAA). The § 702 acquisition targeting a non-U.S. person overseas is constitutionally permissible, so, under the general rule, the incidental collection of defendant’s communications with the extraterritorial target would be lawful. The one distinguishing factor is the possible vast number of incidental communications collected under § 702. I stress the word “possible.” It is equally likely that § 702 surveillance of a non-U.S. person located outside the United States would acquire no incidental communications with a U.S. person. Consequently, I am unpersuaded incidental communications collected under § 702 differ sufficiently from previous foreign intelligence gathering to distinguish prior case law, and I hold that § 702 surveillance does not trigger the Warrant Clause.
Alternatively, as I explain in the next section, even if § 702 surveillance triggers the Warrant Clause, no warrant is required because § 702 surveillance falls within the foreign intelligence exception to the warrant requirement.
2. Foreign Intelligence Exception Assuming the incidental collection of U.S.-person communications under § 702 is subject to the same constitutional scrutiny as foreign intelligence collection targeting U.S. persons, the government contends the Fourth Amendment does not require a warrant for § 702 surveillance because it falls within the foreign intelligence exception. The Fourth Amendment’s warrant requirement applies to domestic national security surveillance. Keith, 407 U.S. at 320. Defendant argues that even if there is a foreign national security exception to the Warrant Clause, the exception’s scope is far narrower than the massive surveillance programs under § 702. Defendant claims the reasoning in Keith applies equally well to foreign national security surveillance, especially because of the First Amendment implications in the
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seizure of phone calls and emails. Citing several cases, defendant argues “[p]rogrammatic intrusions into privacy generally involve openly implemented safety programs that must be carefully confined to a ‘primary purpose’ other than law enforcement to guard against abuse.” Def.’s Reply 13. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386 (1995) (program requiring random urinalysis of school athletes to test for drug use, with the purpose of deterring drug use, was constitutional). Because § 702 requires obtaining foreign intelligence to be a significant purpose of an acquisition, not a primary purpose, defendant argues the bleed-over into criminal investigations is especially high and contends the special needs doctrine should not apply. Defendant is alarmed that the statutory definition of foreign intelligence information in 50 U.S.C. § 1801(e) includes information unrelated to any danger to the country. He also argues that even if the special needs doctrine covers the acquisition of the information, it should not also cover the retention and later querying of the information.
The government disagrees, arguing the special needs exceptions to the Warrant Clause include a foreign intelligence exception. The government cites numerous cases to support its argument and notes that, with the exception of In re Directives, the cases involved the collection of foreign intelligence information from persons inside the United States. Because § 702 targets nonU.S. persons reasonably believed to be outside the United States, the government contends the analysis in its cases applies even more strongly. The government agrees the amount of intrusiveness and executive discretion are relevant to the reasonableness of a government program designed to serve a special need, but claims those factors do not decide whether the doctrine applies as an exception to the Warrant Clause.
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Under this doctrine, the Court has approved exceptions to the Fourth Amendment’s warrant
requirement “when special needs, beyond the normal need for law enforcement, makes the warrant
and probable-cause requirement impracticable.” Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S. Ct.
3164 (1987) (internal quotation omitted). In those situations, the Court “employed a balancing test
that weighed the intrusion on the individual’s interest in privacy against the ‘special needs’ that
supported the program.” Ferguson v. City of Charleston, 532 U.S. 67, 78, 121 S. Ct. 1281 (2001)
(special needs doctrine did not apply; Fourth Amendment violated by hospital’s performance of
urine tests on patients to provide law enforcement evidence of criminal drug use). The Court has
approved warrantless searches under the special needs doctrine in various circumstances. See
Griffin, 484 U.S. 868 (warrantless searches of probationers’ homes to look for contraband);
Vernonia, 515 U.S. 646 (school’s warrantless drug tests of athletes to deter drug use); Von Raab, 489
U.S. 656 (warrantless drug testing of employees seeking promotion to positions that directly involve
the interdiction of illegal drugs or that require the employee to carry a firearm).
Several courts have analyzed and applied the foreign intelligence exception:
After Keith, several courts of appeals, including our own, have examined the Fourth Amendment’s application to electronic surveillance conducted under the guise of the President’s executive authority to collect foreign intelligence information. These courts 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. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908, 914 (4th Cir. 1980) (“[B]ecause of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance.”); United States v. Butenko, 494 F.2d 593, 605 (3d Cir. 1974) (en banc) (holding, in light of the “strong public interest” in uninterrupted foreign intelligence collection, that the Fourth Amendment does not require “prior judicial authorization” of surveillance “conducted and maintained solely for the purpose of gathering foreign
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intelligence information”). See generally [United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984)] (summarizing foreign intelligence exception cases). United States v. Duka, 671 F.3d 329, 341 (3rd Cir. 2011) (in analyzing convictions obtained pursuant to a traditional FISA warrant, holding FISA’s amended “significant purpose” requirement is reasonable under the Fourth Amendment). Notably, the FISA Court of Review applied a foreign intelligence exception “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.” In re Directives, 551 F.3d at 1012 (requiring a communications service provider to comply with a directive to assist in warrantless surveillance under the PAA). The court reasoned: (1) the purpose of the surveillance went well beyond any “garden-variety” law enforcement objective and involved the acquisition from overseas foreign agents of foreign intelligence to help protect national security; (2) the government’s interest was “particularly intense”; and (3) there was a “high degree of probability that requiring a warrant would hinder the government’s ability to collect timesensitive information and, thus, would impede the vital national security interests that are at stake.” Id. at 1011-12. Precisely on point with the case before me, the FISC held that the foreign intelligence exception also applies to § 702 surveillance, even though the court’s understanding of the technical situation underlying the surveillance changed after the government released more information:
The Court has previously concluded that the acquisition of foreign intelligence information pursuant to Section 702 falls within the “foreign intelligence exception” to the warrant requirement of the Fourth Amendment. See Docket No. [redacted]. The government’s recent revelations regarding NSA’s acquisition of MCTs [multicommunication transactions] do not alter that conclusion. To be sure, the Court now understands that, as a result of the transactional nature of the upstream collection,
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NSA acquires a substantially larger number of communications of or concerning United States persons and persons inside the United States than previously understood. Nevertheless, the collection as a whole is still directed at [redacted] conducted for the purpose of national security–a purpose going “‘well beyond any garden-variety law enforcement objective.’” Further, it remains true that the collection is undertaken in circumstances in which 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 are at stake.’” Id. at 36 (quoting In re Directives at 18). Accordingly, the government’s revelation that NSA acquires MCTs as part of its Section 702 upstream collection does not disturb the Court’s prior conclusion that the government is not required to obtain a warrant before conducting acquisitions under NSA’s targeting and minimization procedures.
[Caption Redacted], 2011 WL 10945618, at *24 (citation omitted) (granting in part and denying in
part the government’s requests for approval of § 702 certifications and procedures; one aspect of the
proposed upstream collection of Internet transactions containing MCTs is not reasonable under the
Fourth Amendment).
None of defendant’s arguments persuade me to stray from the FISC’s holding. I realize § 702
requires the significant purpose, not the primary purpose, of the acquisition be to obtain foreign
intelligence information. 50 U.S.C. § 1881a(g)(2)(A)(5). The cases discussing the special needs
doctrine do not use the phrase “primary purpose” as a term of art, and many do not even use it at all.
See, e.g., Vernonia, 515 U.S. 646. There is no reasonable argument the government’s need for the
acquisitions is merely routine law enforcement. The government’s need for speed and stealth have
not lessened since the FISC decided [Caption Redacted], which found that application of the warrant
requirement would be impracticable. When I balance the intrusion on the individual’s interest in
privacy, namely the incidental collection of U.S. persons’ communications, against these special
needs when the government targets a non-U.S. person believed to be outside the United States, I
conclude the foreign intelligence exception applies and no warrant is required.
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I will address defendant’s concerns about the dual nature of the statutory definition of foreign intelligence information, 50 U.S.C. § 1801(e), in the next section analyzing the reasonableness of the acquisitions.
3. Reasonableness Application of the foreign intelligence exception does not end the analysis: “even though the foreign intelligence exception applies in a given case, governmental action intruding on individual privacy interests must comport with the Fourth Amendment’s reasonableness requirement.” In re Directives, 551 F.3d at 1012. 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 (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, 133 S. Ct. 1958, 1970 (2013) (internal quotation omitted) (search using buccal swab inside the cheek to obtain DNA sample after arrest for serious offense is a legitimate police booking procedure that is reasonable under Fourth Amendment).
a. General Contentions Defendant claims § 702 is presumptively unreasonable because it does not require a warrant, even though the acquired telephone calls and emails are within the core zone of privacy protected from government intrusion. See United States v. Katz, 389 U.S. 347, 353, 88 S. Ct. 507 (1967) (FBI agents’ use of an electronic listening device attached to the outside of a phone booth to hear one side of a telephone conversation constituted a search and seizure under the Fourth Amendment); United
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States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (warrant requirement applied to emails sent through a commercial internet service provider).
Defendant claims the Warrant Clause is the key metric in determining reasonableness. He disputes that the programmatic authorizations and certifications from the FISC under Title VII offer the protections traditional warrants afford. Defendant lists several protections provided under the Warrant Clause which are missing from § 702 surveillance:
a) a warrant authorizing the search and seizure; b) based upon probable cause; c) particularly describing the place to be searched and the items to be seized; d) based on an affidavit under oath or affirmation; e) issued by a neutral and detached magistrate operating in a judicial capacity; f) with a return or other procedure assuring compliance with the terms of the warrant in its execution. Def.’s Brief 17-18. Because § 702 lacks these protections, defendant contends its use is either presumptively unreasonable or, alternatively, the extreme disconnect between § 702 procedures and basic Fourth Amendment warrant protections shows the unreasonableness of searches and seizures under § 702. Even though the FISC approves general programs and procedures under § 702, defendant argues the FISC does not review the government’s specific targeting decisions or its later access of seized communications. Defendant contends the government should not be allowed to read the contents of American citizens’ electronic communications without a judicial finding of probable cause. Further, defendant argues the government interest in acquiring “foreign intelligence information” is unreasonable under the Fourth Amendment because the term is so broadly defined under 50 U.S.C. § 1801(e), it goes well beyond threats to national security. According to the government, surveillance under § 702 satisfies the Fourth Amendment’s general reasonableness test. It claims the significant interest in national security, in light of FISA’s
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statutory safeguards, outweigh the privacy interests of U.S. persons whose communications are incidentally acquired. The government suggests U.S. persons have limited expectations of privacy in electronic communications with non-U.S. persons outside the United States.
The government relies heavily on In re Directives, in which the FISA Court of Review held the PAA, a statute which expired in 2008, was reasonable under the Fourth Amendment. Defendant notes the differences between § 702 and the PAA to argue it is not persuasive when analyzing § 702. First, programs under the PAA did not involve retaining a database of incidentally collected information from non-targeted U.S. persons which could be queried later. In re Directives, 551 F.3d at 1015. Second, because the PAA incorporated § 2.5 of Executive Order 12333, it required an executive determination of probable cause to believe the technique was directed against a foreign power or an agent of a foreign power. Id. at 1014.
I note, importantly, the PAA allowed the government to conduct warrantless foreign intelligence surveillance on targets reasonably believed to be located outside the United States, including U.S. persons. In re Directives, 551 F.3d at 1006. Section 702 prohibits targeting U.S. persons, even if they are outside the United States. 50 U.S.C. § 1881a(b)(3). In this respect, the PAA allowed much broader surveillance than § 702 does. I consider this difference significant and believe the analysis in In re Directives is particularly instructive.
b. Comparison of Section 702 to Protections Afforded by a Warrant I will first address defendant’s arguments comparing the protections provided by a warrant to those provided under § 702.
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The Fourth Amendment states, in part: “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In specifically addressing arguments about prior judicial review, probable cause, and particularity, the FISA Court of Review refused to “reincorporate into the foreign intelligence exception the same warrant requirements that we already have held inapplicable.” In re Directives, 551 F.3d at 1013. The court explained, “the 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.” Id. With this guidance in mind, I turn to the arguments.
Without the protections of the particularity requirement, defendant contends the communications of American citizens are swept up by § 702 surveillance in a dragnet fashion prohibited by the Fourth Amendment. Defendant also contrasts the Warrant Clause’s requirement of a supporting affidavit under oath with the § 702 procedures for authorization. Defendant is concerned the § 702 procedures fall far short of the oath or affirmation provision of the Warrant Clause, particularly because the certification does not deal with particular persons or events.
The government notes the Attorney General and DNI must certify that targeting and minimization procedures are in place which are consistent with the Fourth Amendment and that a significant purpose of the acquisition is to obtain foreign intelligence information. The government contends the certification requirement represents an important internal check on the actions of the Executive Branch. It claims defendant’s argument, that the government may target entire geographical areas or groups of people or read every American communication with a country of interest, is an accusation the government will not abide by the required procedures, despite extensive
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oversight. To the contrary, the government argues the targeting procedures determine that “the 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.
The lack of an oath requirement in § 702, as well as any argument the government will not follow the law, is unpersuasive. Absent evidence of fraud or misconduct, a presumption of regularity attaches to obtaining a warrant. The FISA Court of Review applied the same presumption to the government’s procurement of a directive to a communications service provider under the PAA. In re Directives, 551 F.3d at 1014-15. I have seen no evidence of government fraud or misconduct in this case, and the differences between the PAA and § 702 do not weigh against applying the same presumption of regularity here.
Turning to the particularity requirement, § 702 surveillance uses targeting and minimization procedures approved by the FISC. [Caption Redacted], 2011 WL 10945618, at *6 (“The Court found in those prior dockets that the targeting and minimization procedures [as applied to forms of to/from communications that have previously been described to the Court] were consistent with the requirements of 50 U.S.C.§ 1881a(d)(e) and with the Fourth Amendment.”).3 Section 702 limits surveillance only to non-U.S. persons reasonably believed to be located outside the United States. 50 U.S.C. § 1881a(b). A significant purpose of the acquisition must be to obtain foreign intelligence information. 50 U.S.C. § 1881a(g)(2)(A)(5).
3 Although [Caption Redacted] ultimately found the targeting and minimization procedures related to multi-communication transactions unreasonable under the Fourth Amendment, 2011 WL 10945618, at *28, the unconstitutional procedures were submitted to the FISC in April 2011, well after defendant was arrested. PAGE 36 - OPINION AND ORDER

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The FISA Court of Review concluded the PAA’s pre-surveillance procedures were sufficient to satisfy Fourth Amendment concerns. In re Directives, 551 F.3d at 1013. I am aware the PAA’s incorporation of Executive Order 12333 included a requirement that surveillance targeting U.S. persons reasonably believed to be outside the United States had to be based on a finding by the Attorney General of probable cause to believe the target was a foreign power or agent of a foreign power. Section 702 has no such probable cause requirement. Section 702, however, prohibits targeting a U.S. person under any circumstances, even if the person is located outside the United States and acting as a foreign power or agent of a foreign power. Consequently, I conclude this difference does not diminish the particularity to the point of making the collections unreasonable under the Fourth Amendment.
The warrant and an inventory of seized property are returned to the issuing judge under Rule 41, and there are provisions to convey this information to the person whose property was seized. Defendant observes there are no similar provisions for a § 702 seizure. He argues the lack of notice and accountability under § 702 mean the person is never notified of the seizure, the searchers get no guidance on the limits of what can be read, and there is no process by which the FISC can know if the search and seizure were within the scope of the authorization.
The same notice provisions under 50 U.S.C. § 1806(c) cover FISA Title I/III, under which courts have long held surveillance is constitutional, and § 702. Importantly, defendant has now had full notice, giving him the ability to challenge the search and seizure. Minimization procedures, discussed in more detail below, provide guidance about what can be read. The FAA has oversight provisions requiring the Attorney General and DNI to regularly report compliance with targeting and
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minimization procedures, as well as other data, to the FISC and congressional intelligence and judiciary committees. 50 U.S.C. § 1881a(l).
In sum, I do not find the lack of procedures associated with warrants make § 702 searches unreasonable under the Fourth Amendment.
c. Balancing the Governmental Interests Against the Intrusion on Privacy I will now turn to balancing the legitimate governmental interests against the intrusion on an individual’s privacy. It is undisputed the government’s interest in protecting the national security is compelling. “It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307, 101 S. Ct. 2766 (1981) (internal quotation omitted) (the President has authority to revoke a passport because the person’s activities in foreign countries are causing or are likely to cause serious damage to the national security or foreign policy of the United States). “[T]he Government’s interest in combating terrorism is an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S. Ct. 2705 (2010) (analyzing statute criminalizing providing material support to foreign terrorist organization). Defendant points to the statutory definition of foreign intelligence information to argue the government interest is too broadly defined, and thus intrudes on individual privacy too much, to justify the mass acquisition of Americans’ electronic communications. The statute states: (e) “Foreign intelligence information” means–
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against–
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
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(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to–
(A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States. 50 U.S.C. § 1801(e). The FISA Court of Review describes subsection (2) as “information referred to as ‘affirmative’ or ‘positive’ foreign intelligence information rather than . . . ‘protective’ or ‘counterintelligence’ information. In re Sealed Case, 310 F.3d at 723, n.9. Defendant is concerned the government could interpret the “conduct of the foreign affairs of the United States” broadly enough to cover such items as international trade, rather than just threats to national security. I note the discovery in this case all concerned protecting the country from a terrorist threat and did not stray into the broader category of the conduct of foreign affairs. I discuss this further in the classified opinion. Under § 702, the intrusion of an individual’s privacy is due to the incidental collection of the individual’s communications during the acquisition of the communications from a targeted non-U.S. person reasonably believed to be outside the United States.4 The government contends U.S. persons have limited expectations of privacy when communicating electronically with non-U.S. persons outside the United States. The government reasons the U.S. person assumes the risk that the foreign
4 Defendant does not argue he was mistakenly targeted. PAGE 39 - OPINION AND ORDER

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recipient will give the information to others, leave it freely accessible to others, or that the U.S. or foreign government will obtain the information.
The Fourth Amendment does not prohibit the government from obtaining information a person revealed to a third party, even if revealed in confidence. United States v. Miller, 425 U.S. 435, 444,96 S. Ct. 1619 (1976) (bank records). This concept also applies to electronic communications. “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) (internal quotation omitted).
Defendant offers the government cannot seize these communications without the consent of the recipient, which is an argument in favor of only the recipient’s expectation of privacy in the communication. The sender’s expectation of privacy has still been diminished.
Defendant also claims the minimization procedures for § 702 surveillance, as defined in 50 U.S.C. § 1801(h), provide no meaningful protection because the exclusions from the minimization procedures swallow the rule. As a result, the illusory minimization procedures make § 702 search and seizures unreasonable under the Fourth Amendment.
As I explain next, I conclude the minimization procedures contribute to the reasonableness of § 702 under the Fourth Amendment.
The government refers to a recently declassified document to support the reasonableness of § 702 minimization procedures.5 The government also notes the FISC has repeatedly found
5 Minimization Procedures Used by the National Security Agency in Connection with Acquisitions of Foreign Intelligence Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, as amended (dated October 31, 2011), available at http://www.dni.gov/files/documents/Minimization%20Procedures%20used%20by%20NSA%20i n%20Connection%20with%20FISA%20SECT%20702.pdf. PAGE 40 - OPINION AND ORDER

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materially equivalent minimization procedures sufficient in the context of traditional FISA electronic surveillance and physical search. Because these searches target U.S. persons in the United States, they are more likely to capture communications of non-targeted U.S. persons than the foreign communications captured under § 702. The government additionally relies on the FAA’s oversight provisions requiring regular reports to the FISC and congressional oversight committees on the implementation of minimization procedures and the FISC’s Rule of Procedure 13(b) which requires the government to report all instances of non-compliance.
The FISC has concluded the § 702 minimization procedures are consistent with the Fourth Amendment. [Caption Redacted], 2011 WL 10945618, at *6. In finding the PAA constitutional, the FISA Court of Review commented:
It is also significant that effective minimization procedures are in place. These procedures 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. The minimization procedures implemented here are almost identical to those used under FISA [Title I/III] to ensure the curtailment of both mistaken and incidental acquisitions. In re Directives, 551 F.3d at 1015. Section 6 of the declassified minimization procedures discusses the retention and dissemination of foreign communications of or concerning United States persons, putting limits on both. For example, the identity of the United States person is deleted in any dissemination of the information unless certain requirements are met. I do not agree with defendant that the minimization procedures provide no meaningful protection. On the contrary, I agree with the FISC that the minimization procedures contribute to the reasonableness of § 702 under the Fourth Amendment.
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d. Querying After Acquisition I now turn to defendant’s most persuasive argument. He argues that even if § 702 warrantless surveillance is lawful, subsequent querying of the information after acquisition is a search requiring a warrant under the Fourth Amendment. Defendant draws analogies to United States v. Sedaghaty, 728 F.3d 885, 910-13 (9th Cir. 2013) (in a computer search authorized by warrant, the court rejected expansion of the warrant’s expressly limited scope of items to be seized to include evidence related to background information providing a motive for the alleged crimes and stated in the affidavit supporting the warrant), United States v. Mulder, 808 F.2d 1346, 1348 (9th Cir. 1987) (pills lawfully in government possession could have been field tested for illegal drugs under a limited warrant exception, but laboratory testing to determine precise molecular structure required a warrant), and United States v. Young, 573 F.3d 711, 720-21 (9th Cir. 2009) (warrant required to search contents of a backpack taken by hotel security without evicting guest, and then given to police). The government strongly disagrees. It distinguishes defendant’s cases as analyzing government action beyond the scope of the warrant (or warrant exception). I agree with this characterization. Sedaghaty analyzed seizing evidence quite dissimilar from the items the warrant stated in its expressly limited list; Mulder and Young discussed whether to expand the private search warrant exception, as explained in United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652 (1984). As a result, I cannot draw analogies from these cases to support defendant’s arguments. Unfortunately, I do not find much assistance in most of the government’s analogies either. Law enforcement computer queries of license plates and driver’s licenses take place in a highly regulated arena and, in the case of license plates, are based on information displayed for all to see.
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United States v. Diaz-Castaneda, 494 F.3d 1146, 1151-53 (9th Cir. 2007) (no reasonable expectation of privacy in a license plate so querying government databases about it is not a Fourth Amendment search; police can ask for identification of people who are legitimately stopped without performing a Fourth Amendment search). DNA profiles retained in a database to allow later law enforcement searches are from people who have been arrested or convicted. Boroian v. Mueller, 616 F.3d 60, 6768 (1st Cir. 2010) (“government’s retention and matching of [former probationer’s] profile against [a DNA database] does not violate an expectation of privacy that society is prepared to recognize as reasonable, and thus does not constitute a separate search under the Fourth Amendment”). Neither of these limited invasions of privacy can be compared to the incidental acquisition of communications of U.S. persons.
The government also draws an analogy to minimization procedures under the Federal Wiretap Act which allow the government to use evidence from a wiretap to prove a crime unrelated to the original purpose for the wiretap. This analogy is more helpful because it addresses the use of communications obtained incidentally to those acquired by the wiretap. Specifically:
When an authorized wiretap intercepts communications relating to offenses other than those specified in the order of authorization, 18 U.S.C. § 2517(5), disclosure or use of those communications is permissible provided a subsequent application . . . made to a judge of competent jurisdiction [demonstrates] the good faith of the original application. Such subsequent application would include a showing that the original order was lawfully obtained, that it was sought in good faith and not as a subterfuge search, and that the communication was in fact incidentally intercepted during the course of a lawfully executed order. United States v. Goffer, 721 F.3d 113, 122-23 (2nd Cir. 2013) (internal quotations and citations omitted), pet. for cert. filed, No. 13-9973 13A777 (Apr. 2, 2014).
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Because the government complied with all § 702 procedures concerning targeting and minimization, the government contends its actions were within the scope of the relevant legal authority and are thus distinguishable from defendant’s cases. In its view, subsequent queries of information lawfully obtained, which do not implicate any reasonable expectation of privacy beyond that implicated in the initial lawful collection, do not constitute separate searches under the Fourth Amendment. The government claims this is true even if U.S. person identifiers are used in the querying.
The government notes the minimization procedures compel it to review information lawfully collected under § 702, which includes information about U.S. persons, to determine if the information should be retained or disseminated. According to the government:
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. Govt.’s Brief 57-58. In the government’s view, it must conduct such queries to fulfill its compelling interest to detect and disrupt terrorist attacks by discovering potential links between foreign terrorist groups and people within the United States. It is true, the FISC has approved minimization procedures which allow querying using U.S. person identifiers. [Caption Redacted], 2011 WL 10945618, at *8. While the procedures previously imposed a “wholesale bar” on such queries, the new approved procedures allowed queries with U.S. person identifiers “subject to approval pursuant to internal NSA procedures and oversight by the
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Department of Justice.” Id. The FISC reasoned it had approved FISA Title I applications targeting U.S. persons that used minimization procedures allowing queries with U.S. person identifiers.
It follows that the substantially-similar querying provision found at Section 3(b)(5) of 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. This is a very close question. On the one hand, why not require a warrant when using a U.S. person identifier to search a database of information already gathered? That is not the test, however–just because a practice might better protect Americans’ privacy rights does not mean the Fourth Amendment requires the practice. Indeed, as the government argues, it must review information lawfully collected to decide whether to retain or disseminate it under the minimization procedures. As the FISC reasoned, the § 702 collection, by being aimed at non-U.S. persons believed to be outside the United States, is less likely to acquire information about non-consenting U.S. persons than a FISA Title I collection. I do not find any significant additional intrusion past what must be done to apply minimization procedures. Thus, subsequent querying of a § 702 collection, even if U.S. person identifiers are used, is not a separate search and does not make § 702 surveillance unreasonable under the Fourth Amendment.
e. Summary To sum up, I must examine the totality of the circumstances and weigh the government’s compelling interest in protecting national security against the degree to which § 702 surveillance intrudes on an individual’s privacy. See Samson, 547 U.S. at 848; King, 133 S. Ct. at 1970.
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Section 702 has numerous safeguards built into the statute. Most importantly, § 702 is aimed at acquiring foreign intelligence information in electronic communications from non-U.S. persons located outside the United States. There are additional limitations, including that the statute cannot “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[.]” 50 U.S.C. § 1881a(b)(2). Minimization procedures protect the privacy of U.S. persons whose communications are incidentally acquired. The Attorney General and DNI must certify, among other things, that appropriate targeting and minimization procedures are in place and a significant purpose of the acquisition is to obtain foreign intelligence information. 50 U.S.C. § 1881a(g)(2)(A). The FISC must find the targeting and minimization procedures consistent with the Fourth Amendment. Congress and the FISC provide oversight based on specific reporting requirements.
Based on the statutory protections, I conclude the government’s compelling interest in protecting national security outweighs the intrusion of § 702 surveillance on an individual’s privacy. Accordingly, § 702, as applied to defendant, is reasonable under the Fourth Amendment.
E. Acquisition of Section 702 Materials in this Case Even if the court concludes § 702 is constitutional, defendant correctly notes that any acquisition, retention, accessing, dissemination, and use of the seized electronic communications which exceed the FISC authorizations are unlawful. Defendant’s concerns are heightened by declassified FISC opinions indicating that some § 702 surveillance might have exceeded the authorizations. Defendant asks the court to obtain extensive background material to assure the
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surveillance was lawfully conducted under the statute and, if not, to suppress all evidence derived from it.
The government contends once I perform an in camera, ex parte review of the relevant classified materials, I will conclude the § 702 acquisition was lawfully authorized and conducted.
I made a careful de novo, ex parte review of the § 702 applications and conclude the certification required by 50 U.S.C. § 1881a(g)(2)(A) was in place. I also find that the government agents followed appropriate targeting and minimization procedures. Thus, I conclude the § 702 surveillance at issue here was lawfully conducted.
F. Suppression Based on Other Alleged Surveillance Activities Defendant raises concerns about the collection of telephone metadata under § 215 of the Patriot Act, codified at 50 U.S.C. § 1861, and any other still-secret warrantless surveillance programs. He assumes there is a strong possibility that his telephone metadata has been collected, and he asks the court to address the lawfulness of these programs, conclude they violate the First and Fourth Amendments, and suppress all fruits of these other surveillance activities. I deny defendant’s arguments concerning § 215 for the reasons stated in the classified opinion. G. Good Faith Exception As an alternative argument, the government claims the good faith exception to the exclusionary rule, as set forth in United States v. Leon, 468 U.S. 897 (1984), provides an independent basis for denying defendant’s suppression motion. The government argues the exception applies here because the § 702 collection was authorized by a duly-enacted statute, law
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enforcement officers reasonably relied on orders of a neutral magistrate, namely the judges of the FISC, and the FISA Court of Review has upheld similar directives issued under the PAA.
Defendant contends the court should not attach a good faith exception to FISA because the statute, which preceded Leon, does not contain an exception in its statutory suppression provision, 50 U.S.C. § 1806(g). Defendant distinguishes the government’s other cases because they address situations where officers relied on an individualized FISA or other judicial order, which was not done here. See United States v. Ning Wen, 477 F.3d 896, 897-98 (7th Cir. 2007) (FISA warrant). Defendant further claims the government knew of the constitutional objections from the day of enactment of the FAA due to the immediate initiation of litigation in Clapper.
I will first address defendant’s last argument concerning the initiation of litigation against § 702. I see no reason for the government to assume all challenges to a statute will be successful; numerous warrants issued under FISA Title I/III have survived challenges. A statute is constitutional until a court declares otherwise. Moreover, even the defendant who succeeds in having a statute declared unconstitutional is not guaranteed application of the exclusionary rule. See Duka, 671 F.3d at 346 (quoted below).
Under the good faith exception to the exclusionary rule established in Leon, the government has the burden of demonstrating the officer acted “‘in objectively reasonable reliance’ on the warrant.” United States v. Underwood, 725 F.3d 1076, 1085 (9th Cir. 2013) (quoting Leon, 468 U.S. at 922)).6 “Exclusion is not a personal constitutional right, nor is it designed to redress the
6 There are four situations that per se fail to satisfy the good faith exception, as explained in Underwood, but they do not fit well into the issue before me because the situations assume the exception is being applied to a warrant.
In these situations, “the officer will have no reasonable grounds for believing that PAGE 48 - OPINION AND ORDER

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injury occasioned by an unconstitutional search.” Davis v. United States, 131 S. Ct. 2419, 2426
(2011) (internal quotations omitted) (refusing to apply exclusionary rule when police conduct a
search in objectively reasonable reliance on binding appellate precedent). Even if a court finds the
statute on which a warrant is based unconstitutional, the evidence is not automatically suppressed:
The Supreme Court has ruled categorically that “suppress[ing] evidence obtained by an officer acting in objectively reasonable reliance on a statute” would not further the purposes of the exclusionary rule, even if that statute is later declared unconstitutional. Illinois v. Krull, 480 U.S. 340, 349–50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987). Therefore, even a defendant who can establish that evidence against him or her was procured under a statute that violates the Fourth Amendment is not entitled to have such evidence excluded from his or her criminal trial unless he or she can establish that the officer’s reliance on the statute was not objectively reasonable.
Duka, 671 F.3d at 346 (after finding FISA’s amended “significant purpose” test was reasonable
under the Fourth Amendment, the Third Circuit alternatively held it would not apply the
exclusionary rule to evidence obtained under a FISA warrant, even if it had held FISA was
unconstitutional).
Defendant’s argument, based on the fact that there is no exception in FISA’s statutory
exclusion provision, draws an analogy to wiretaps under Title III. Some courts have held the good
faith exception to the warrant requirement does not apply to wiretap warrants under Title III. United
States v. Rice, 478 F.3d 704, 711 (6th Cir. 2007) (“the language in Title III provides that exclusion is
the warrant was properly issued.” 468 U.S. at 922–23, 104 S. Ct. 3405. The four situations are: (1) where the affiant recklessly or knowingly placed false information in the affidavit that misled the issuing judge; (2) where the judge “wholly abandon[s] his [or her] judicial role”; (3) where the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) where the warrant is “so facially deficient–i.e., in failing to particularize the place to be searched or the things to be seized–that the executing officers cannot reasonably presume it to be valid.” Id.
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the exclusive remedy for an illegally obtained warrant. In contrast to the law governing probable cause under the Fourth Amendment, the law governing electronic surveillance via wiretap is codified in a comprehensive statutory scheme providing explicit requirements, procedures, and protections.”). Other courts have held the opposite. United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994) (good faith exception can apply to warrants under Title III); United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir.1988) (same). The Ninth Circuit has not expressly analyzed application of the good faith exception to evidence obtained pursuant to a Title III wiretap. See United States v. Duran, 189 F.3d 1071, 1084-87 (9th Cir. 1999) (court did not exclude wiretap evidence after concluding Title III preconditions to judicial authorization of wiretap were satisfied even though the application did not cover the possibility the target might purchase a new cell phone; court did not address government’s proffered good faith exception). Defendant asks me to apply the Sixth Circuit holding to § 702.
With the split in the circuits and no Ninth Circuit precedent, little is to be gained from analogizing § 702 to Title III wiretaps. I will proceed instead to the policy reasons behind the exclusionary rule. I also must examine the policy reasons because there is no traditional warrant under § 702. That was the case in Krull, in which the Court expanded the Leon good faith exception and did not exclude evidence obtained by police acting in objectively reasonable reliance on a state vehicle code authorizing warrantless administrative searches, even though a court later held the statute violated the Fourth Amendment. Krull, 480 U.S. at 349-50, 356-57. The Court reasoned the prime purpose of the exclusionary rule was to “deter future unlawful police conduct”; it was not meant to punish judges or magistrates. Id. at 347, 348. In extending the good faith exception, the Court likened the role of a magistrate in issuing warrants to the role of a legislature in passing legislation:
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The approach used in Leon is equally applicable to the present case. The application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer’s actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written.
Id. at 349.
Addressing an argument that applies equally well to § 702 surveillance, the Court was also
unpersuaded by the fact that a “statute authorizing warrantless administrative searches affects an
entire industry and a large number of citizens, while the issuance of a defective warrant affects only
one person.” Id. at 350.
Real deterrent value is a “necessary condition for exclusion,” but it is not “a sufficient” one. Hudson v. Michigan, 547 U.S. 586, 596, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). The analysis must also account for the “substantial social costs” generated by the rule. Leon, supra, at 907, 104 S. Ct. 3405. Exclusion exacts a heavy toll on both the judicial system and society at large. Stone, 428 U.S., at 490–491, 96 S. Ct. 3037. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. Ibid. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. See Herring, supra, at 141, 129 S. Ct. 695. Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” Hudson, supra, at 591, 126 S. Ct. 2159. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. See Herring, supra, at 141, 129 S. Ct. 695; Leon, supra, at 910, 104 S. Ct. 3405.
Davis, 131 S. Ct. at 2427.
Here, the § 702 surveillance was based on a statute Congress enacted and a certification the
FISC approved. Law enforcement was only acting based on the FISC’s approval. The judicial
approval makes law enforcement’s reliance more objectively reasonable than the officer’s reliance in
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Krull, in which the administrative search took place under a statute that required no judicial approval of the programs based on it. Even if I found § 702 unconstitutional, exclusion of the evidence here would not deter unconstitutional actions by law enforcement. For these reasons, I conclude the good faith exception should apply.
H. Request for Franks Hearing Defendant seeks a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to challenge the validity of the representations made to the FISC to obtain the FISA warrants already considered by the court in this case. In Franks, the Supreme Court held that, under certain circumstances, a defendant is entitled to an evidentiary hearing in which he can attack the veracity of a search warrant affidavit or challenge the omission of material facts in the affidavit. When a defendant seeks a Franks hearing because of “allegations of material false statements or omissions in an affidavit supporting a search warrant, a defendant must make a substantial preliminary showing that false or misleading statements were (1) deliberately or recklessly included in an affidavit submitted in support of a search warrant; and (2) necessary to the finding of probable cause.” United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011) (internal quotations omitted). Defendant argues the existence of previously undisclosed surveillance under § 702 and telephone metadata collection programs raise serious questions on whether the government reported the entire story to the FISC in the applications. Defendant argues he is precluded from making the normal substantial preliminary showing to obtain a Franks hearing because the government and the court have refused to disclose the FISA warrant applications.
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The government responds that defendant’s lack of access to the FISA applications does not ease his burden to make a substantial preliminary showing of misrepresentations essential to the finding of probable cause or, in the case of § 702 surveillance, essential to support the certification from the Attorney General and DNI. Moreover, the government insists defendant’s allegations about the government’s lack of candor to the court in other federal cases involving national security issues cannot establish that any errors were made in this case.
I must agree with the government on the last point. If misrepresentations in one case were attributed to the government in unrelated cases, all defendants would be entitled to a Franks hearing without making the required preliminary showing.
Defendant’s position has not changed since the pretrial FISA suppression motion–he can only speculate about false statements or omissions. This is insufficient to qualify as a substantial preliminary showing. I realize the difficult position the defense team is in, but the denial of a Franks hearing is commonplace in the FISA context and goes hand-in-hand with the ex parte judicial review process. See United States v. Abu-Jihaad, 630 F.3d 102, 130 (2nd Cir. 2010); United States v. elMezain, 664 F.3d 467, 570 (5th Cir. 2011); United States v. Damrah, 412 F.3d 618, 624-25 (6th Cir. 2005). Cf. United States v. Daoud, No. 14-1284, 2014 WL 2696734 (7th Cir. June 16, 2014) (Rovner, J., concurring) (explaining difficulties defendants face in getting a Franks hearing in the FISA context).
I. Renewed Motion for Discovery Although FISA allows the court to make an in camera, ex parte review of materials when deciding a motion to suppress, the statute does allow the aggrieved person to receive discovery in certain circumstances. Specifically, “In making this determination, the court may disclose to the
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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).
Defendant renews his motion for discovery so he may hone his arguments. He insists the court should interpret the term “necessary” in § 1806(f) to mean something closer to “helpful” or “appropriate” and not “absolutely necessary” or “essential.”
I am aware of a single district court which granted defendant’s motion for disclosure of FISA materials to defense counsel with security clearances. United States v. Daoud, No. 12-CR-723, 2014 WL 321384 (N.D. Ill. Jan. 29, 2014) (order stayed pending appeal). The government’s only response to the motion was that disclosure had never been ordered. The court found the response inadequate to explain how national security would be harmed by disclosure to properly cleared defense counsel. Id. at *2. The Seventh Circuit just reversed the district court, however, holding the court cannot order disclosure of the classified materials without first finding that the “disclosure is necessary to make an accurate determination of the legality of the surveillance[,]” as provided in FISA. United States v. Daoud, 2014 WL 2696734. The Circuit further held that it was possible for the court to determine the legality of the investigation without disclosure of the classified materials to defense counsel, and that the investigation did not violate FISA. Id.
I am unconvinced by both defendant’s arguments and the district court in Daoud–classified material is at issue here. The Ninth Circuit has rejected the argument that FISA materials can be turned over if defense counsel has the appropriate security clearances:
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Case 3:10-cr-00475-KI Document 517 Filed 06/24/14 Page 55 of 56 Page ID#: 9194
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. We reject the notion that a defendant’s due process right to disclosure of FISA materials turns on the qualifications of his counsel. United States v. Ott, 827 F.2d 473, 477 (9th Cir. 1987) (holding FISA’s ex parte in camera proceedings do not violate due process, even though defense counsel had high security clearances). “[D]isclosure of FISA materials is the exception and ex parte, in camera determination is the rule.” Abu-Jihaad, 630 F.3d at 129 (internal quotation omitted); el-Mezain, 664 F.3d at 567 (same, quoting Abu-Jihaad). Obviously it would be helpful to the court to have defense counsel review the materials prior to making arguments. Congress, however, did not put “helpful” in the statute; it chose “necessary.” I interpret “necessary” to be much closer to “essential” than to “helpful.” And I do not find disclosure to the defense is necessary for me to make an accurate determination of the legality of the surveillance. Moreover, in my review of the FISA materials associated with this motion and the previous FISA suppression motion, I have seen “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” here. Ott, 827 F.2d at 476 (internal quotation omitted). Accordingly, I deny defendant’s motion for discovery.
CONCLUSION Defendant’s Motion for Vacation of Conviction and Alternative Remedies of Dismissal of the Indictment, Suppression of Evidence, and New Trial for the Government’s Violation of the
PAGE 55 - OPINION AND ORDER

Case 3:10-cr-00475-KI Document 517 Filed 06/24/14 Page 56 of 56 Page ID#: 9195 Pretrial Notice Statute [500], defendant’s Alternative Motion for Suppression of Evidence and a New Trial Based on the Government’s Introduction of Evidence at Trial and Other Uses of Information Derived from Unlawful Electronic Surveillance [502], and defendant’s Second Motion for a New Trial [504] are denied. IT IS SO ORDERED. Dated this 24th day of June, 2014. /s/ Garr M. King Garr M. King United States District Judge
PAGE 56 - OPINION AND ORDER

 
 U.S. District Court District of Oregon (Portland (3)) CRIMINAL DOCKET FOR CASE #: 3:10-cr-00475-HZ-1

Case title: USA v. Mohamud Related Case: 3:20-cv-00883-HZ Magistrate judge case number: 3:10-mj-00497

Date Filed: 11/29/2010 Date Terminated: 10/03/2014

Assigned to: Judge Marco A. Hernandez
Appeals court case numbers: 1430217 9th Circuit Court of Appeals, 14-30217 9th Circuit Court of Appeals
Defendant (1)
Mohamed Osman Mohamud 73079-065 TERMINATED: 10/03/2014

represented by Per C. Olson Hoevet Olson Howes, PC 1000 SW Broadway Suite 1740 Portland, OR 97205 503-228-0497 Fax: 503-228-7112 Email: per@hoevetlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment
Stephen R. Sady Office of the Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 503-326-2123 Fax: 503-326-5524 Email: steve_sady@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Public Defender or Community Defender Appointment
Steven T. Wax

Pending Counts 18:2332a(a)(2)(A) ATTEMPT TO USE A WEAPON OF MASS DESTRUCTION (1)
Highest Offense Level (Opening) Felony

618 NW Glisan St Ste 300 Portland, OR 97209 503-830-7785 Fax: 971-279-4748 Email: stwax@outlook.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment
Lisa Hay Office of the Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 503-326-2123 Fax: 503-326-5524 Email: lisa_hay@fd.org ATTORNEY TO BE NOTICED Designation: Public Defender or Community Defender Appointment
Steven T. Wax Federal Public Defender 101 SW Main Street Suite 1700 Portland, OR 97204 (503) 326-2123 Fax: (503) 326-5524 Email: steve_wax@fd.org TERMINATED: 10/01/2014 Designation: Public Defender or Community Defender Appointment
Disposition
SENTENCING DATE:10/1/14; IMPRISONMENT: thirty (30) years; SUPERVISED RELEASE: life; SPECIAL ASSESSMENT: $100.00

Terminated Counts None
Highest Offense Level (Terminated) None
Complaints 18:2332a(a)(2)(A) = Attempted Use of a Weapon of Mass Destruction

Disposition Disposition

Plaintiff USA

represented by Ethan D. Knight United States Attorney's Office District of Oregon 1000 S.W. Third Avenue Suite 600 Portland, OR 97204 (503) 727-1041 Fax: (503) 727-1117 Email: Ethan.Knight@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Jeffrey S. Sweet United States Attorney's Office 405 E. Eighth Avenue Suite 2400 Eugene, OR 97401 541-465-6771 Fax: 541-465-6917 Email: jeff.sweet@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Amy E. Potter United States Attorney's Office 405 E. 8th Avenue Suite 2400

Eugene, OR 97401 541-465-6771 Fax: 541-465-6917 Email: amy.potter@usdoj.gov ATTORNEY TO BE NOTICED
Jolie F, Zimmerman US Department of Justice Counterterrorism Section, National Security Division 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 514-1453 Fax: (202) 514-8714 Email: jolie.zimmerman@usdoj.gov ATTORNEY TO BE NOTICED Designation: Retained
Kelly Alexandre Zusman United States Attorney's Office 1000 SW Third Avenue Suite 600 Portland, OR 97204 (503) 727-1009 Fax: (503) 727-1117 Email: Kelly.zusman@usdoj.gov ATTORNEY TO BE NOTICED Designation: Retained
Pamala R. Holsinger United States Attorney's Office 1000 S.W. Third Avenue Suite 600 Portland, OR 97204-2902 503-727-1054 Fax: 503-727-1117 Email: pamala.holsinger@usdoj.gov Designation: Retained
Ryan W. Bounds U.S. Attorney's Office 1000 SW 3rd Ave Rm 600 Portland, OR 97204 (503) 727-1141 Fax: (503) 727-1117

Email: ryan.bounds@usdoj.gov ATTORNEY TO BE NOTICED Designation: Retained

Date Filed 11/29/2010 11/29/2010 11/29/2010 11/29/2010 11/29/2010
11/29/2010 11/30/2010

# Docket Text
1 Complaint signed by US Magistrate Judge John V. Acosta as to Defendant Mohamed Osman Mohamud (1); 18 USC 2332a(a)(2)(A) = Attempted Use of a Weapon of Mass Destruction. (kw) [3:10-mj-00497] (Entered: 11/29/2010)
2 Indictment as to Mohamed Osman Mohamud (1) count(s) 1, Attempt to Use a Weapon of Mass Destruction (schm) (Additional attachment(s) added on 3/30/2020: # 1 Attachment defendant information, # 2 Attachment indictment UNREDACTED) (Ferguson, Chloe). (Entered: 11/29/2010)
3 Notice of Case Assignment to Judge Garr M. King. (schm) (Entered: 11/29/2010)
4 Government's FISA Notification as to Mohamed Osman Mohamud, filed by USA (schm) (Entered: 11/29/2010)
5 Minutes of Proceedings: First Appearance, Arraignment, and Detention Hearing held before Magistrate Judge John V. Acosta as to Defendant Mohamed Osman Mohamud on 11/29/2010. Arraignment held for Defendant Mohamed Osman Mohamud(1) as to Count 1. Defendant waived reading of the Indictment. Defendant to proceeds as named. Defendant advised of rights. Not guilty plea entered. Order that Discovery is due in 14 days. Order appointing counsel Steve Wax and Steve Sady of the Federal Public Defender's Office to represent Mohamed Osman Mohamud. Detention Hearing held for Mohamed Osman Mohamud(1). Defendant's Location-Custody status is: Detained as to flight and danger. SETTING a 15-day Jury Trial for 2/1/2011 at 09:00AM in Portland before Judge Garr M. King. ORDER - DENYING defense counsel's request for a probable cause hearing. ORDER: An interim order directing plaintiff to preserve and hold in place all electronic media, devices and locations related to this matter is hereby entered. Defense counsel to submit a more formal order for the court's consideration. Counsel Present for Plaintiff: Ethan Knight, Jeff Sweet.Counsel Present for Defendant: Steve Sady, Steve Wax. (Court Reporter Dennis Apodaca) (peg) (Entered: 11/29/2010)
6 Order of Detention as to Mohamed Osman Mohamud by Magistrate Judge John V. Acosta signed on 11/29/10. (schm) (Entered: 11/30/2010)
7 Proposed Form of Order Submitted for Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 11/30/2010)

11/30/2010 11/30/2010 12/01/2010 12/08/2010 12/15/2010 12/15/2010 12/20/2010 12/30/2010 01/05/2011
01/05/2011

8 Arrest Warrant Returned Executed on 11/29/10 as to Defendant Mohamed Osman Mohamud; Defendant was arrested on 11/26/10. (kw) (Entered: 11/30/2010)
10 Trial Management Order as to Mohamed Osman Mohamud by Judge Garr M. King signed on 11/30/2010. (mja) (Entered: 12/01/2010)
9 ORDER FOR THE PRESERVATION OF EVIDENCE - Dated this 30th day of November, 2010, by U.S. Magistrate Judge John V. Acosta. (peg) (Entered: 12/01/2010)
11 Scheduling Order as to Mohamed Osman Mohamud. Order - Setting a Status Conference for 1/5/2011 at 09:30AM in Portland Courtroom 9A, before Judge Garr M. King. Ordered by Judge Garr M. King (mja) (Entered: 12/08/2010)
12 Motion for Protective Order filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 12/15/2010)
13 Protective Order as to Mohamed Osman Mohamud. Ordered by Judge Garr M. King (mja) (Entered: 12/16/2010)
14 Motion For Order Directing the Government to Cease and Desist From Inappropriate Pretrial Comment by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Exhibit A through F) (Sady, Stephen) (Entered: 12/20/2010)
15 Waiver of Appearance by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 12/30/2010)
16 Minutes of Status Conference before Judge Garr M. King as to Mohamed Osman Mohamud. The defendant waived his appearance. The parties' joint oral motion to designate this case as complex is granted. Government to provide formal order. The government's response to the defendant's Motion for Order Directing the Government to Cease and Desist From Inappropriate Pretrial Comment 14 is due by 1/10/2011. Defendant's reply is due by 1/14/2011. Discovery motions are due by 3/7/2011. Government's response is due by 4/7/2011. Defendant's reply is due by 4/18/2011. Setting a hearing on the motion for 5/10/2011 at 9:00AM in Portland, Courtroom 9A, before Judge Garr M. King. Setting a Scheduling Conference for 5/23/2011 at 09:30AM in Portland Courtroom 9A, before Judge Garr M. King.Counsel Present for Plaintiff: Ethan Knight.Counsel Present for Defendant: Stephen Sady and Steven Wax.(Court Reporter Nancy Walker) (mja) (Entered: 01/05/2011)
17 Scheduling Order as to Mohamed Osman Mohamud. Order - The 15-day trial date set for 2/1/2011 is STRICKEN. A new trial date will be set at a later date. Ordered by Judge Garr M. King (mja) (Entered: 01/05/2011)

01/05/2011 01/05/2011 01/10/2011 01/14/2011 01/16/2011
01/19/2011
02/23/2011

18 NOTE: THIS ORDER WAS AMENDED, SEE DOCUMENT # 19. Order for Excludable Delay as to Mohamed Osman Mohamud. IT IS ORDERED excludable delay is found to exist from February 7, 2011, to and including May 31, 2012, by Judge Garr M. King signed on 1/5/11. (schm) Modified on 1/6/2011 (schm). (Entered: 01/05/2011)
19 AMENDED Order for Excludable Delay as to Mohamed Osman Mohamud. IT IS ORDERED excludable delay is found to exist from February 7, 2011, to and including May 31, 2011,signed on 1/5/11, by Judge Garr M. King. See Order (schm) (Entered: 01/06/2011)
20 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Order 14 filed by Defendant Mohamed Osman Mohamud Directing the Government to Cease and Desist from Inappropriate Pretrial Comment (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Knight, Ethan) (Entered: 01/10/2011)
21 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion For Order Directing the Government to Cease and Desist From Inappropriate Pretrial Comment 14 (Attachments: # 1 Exhibit) (Sady, Stephen) (Entered: 01/14/2011)
22 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Arraignment as to Defendant Mohamed Osman Mohamud for date of November 29, 2010 before Judge John V. Acosta, Court Reporter Dennis W. Apodaca, telephone number (503) 326-8182. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/27/2011. Redaction Request due 2/10/2011. Redacted Transcript Deadline set for 2/22/2011. Release of Transcript Restriction set for 4/21/2011. (Apodaca, Dennis) (Entered: 01/16/2011)
23 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status conference as to Defendant Mohamed Osman Mohamud for date of January 5, 2011 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/31/2011. Redaction Request due 2/14/2011. Redacted Transcript Deadline set for 2/25/2011. Release of Transcript Restriction set for 4/22/2011. (Walker, Nancy) (Entered: 01/19/2011)
24 Opinion and Order - Defendants Motion for Order Directing the Government to Cease and Desist from Inappropriate Pretrial

03/07/2011 03/07/2011 03/07/2011 04/07/2011 04/08/2011
04/11/2011 04/12/2011 04/13/2011

Comment 14 is denied as explained in the above discussion concerning the Department of Justices Statements of Policy set forth in the Release of Information by Personnel of the Department of Justice Relating to Criminal and Civil Proceedings, 28 C.F.R.§ 50.2. Ordered by Judge Garr M. King (mja) (Entered: 02/23/2011)
25 Request for Discovery by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 03/07/2011)
26 First Motion to Compel Discovery by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 03/07/2011)
27 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding First Motion to Compel Discovery 26 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 03/07/2011)
28 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Compel 26 filed by Defendant Mohamed Osman Mohamud and Response to Defendant's Request for Discovery 25 (Knight, Ethan) (Entered: 04/07/2011)
29 Scheduling Order as to Mohamed Osman Mohamud. Order - Due to a conflict in the Court's schedule, the Court is resetting the Motion Hearing set for 5/9/2011 to 6/1/2011 at 09:00AM in Portland Courtroom 9A, before Judge Garr M. King. The 5/23/2011 Status Conference is STRICKEN. The court will discuss the case schedule at the 6/1/2011 Motion Hearing. Ordered by Judge Garr M. King (mja) (Entered: 04/08/2011)
30 Motion for Partial Sequestration of Witnesses and Preservation of Evidence by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 04/11/2011)
31 Order - The government's response to Defendant's Motion for Partial Sequestration of Witnesses and Preservation of Evidence 30 is due by 4/15/2011. Ordered by Judge Garr M. King (mja) (Entered: 04/12/2011)
32 Scheduling Order as to Mohamed Osman Mohamud. Order GRANTING Government's oral request to reset response deadline. Response to defendant's Motion for Partial Sequestration of Witnesses and Preservation of Evidence 30 is due by 4/29/2011. Pending the court's ruling on the motion, the court orders the government witnesses to the July 30, 2010 meeting with defendant to refrain from discussing the meeting with each other, directly or indirectly, to refrain from reviewing any documents generated by another person concerning that meeting, and to preserve all notes and documentation of the meeting. Ordered by Judge Garr M. King. (pc) (Entered: 04/13/2011)

04/13/2011 04/14/2011 04/18/2011 04/26/2011 04/27/2011
04/27/2011 04/29/2011 05/05/2011 05/06/2011 05/06/2011 05/09/2011

33 Unopposed Motion for Extension of Time by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 04/13/2011)
34 ORDER - Granting 33 Motion for Extension of Time as to Mohamed Osman Mohamud (1). Defendant's reply for Defendant's First Motion to Compel Discovery 26 is extended to April 27, 2011. Ordered by Judge Garr M. King. (pc) (Entered: 04/14/2011)
35 Notice by USA as to Mohamed Osman Mohamud Notification to Defendant of First In Camera, Ex Parte, Under Seal Filing by the United States Pursuant to the Classified Information Procedures Act (Knight, Ethan) (Entered: 04/18/2011)
36 Unopposed Motion for Extension of Time (Related Doc. 30 Motion for Order ) filed by USA as to Defendant Mohamed Osman Mohamud. (Knight, Ethan) (Entered: 04/26/2011)
37 ORDER - Granting Defendant's Motion for Extension of Time 36 as to Mohamed Osman Mohamud (1). The Government's response to Motion for Partial Sequestration of Witnesses and Preservation of Evidence 30 is due by by 5/6/2011. Ordered by Judge Garr M. King (mja) (Entered: 04/27/2011)
38 Unopposed Motion for Extension of Time to File Reply by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 04/27/2011)
39 ORDER - Granting Defendant's Motion for Extension of Time to File Reply 38 as to Mohamed Osman Mohamud (1). Reply to the government's response to the defendant's discovery motion 26 is due by 5/6/2011.Ordered by Judge Garr M. King (mja) (Entered: 04/29/2011)
40 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Order 30 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 05/05/2011)
41 Motion for Order to File Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 05/06/2011)
42 Reply to Response to Motion by Mohamed Osman Mohamud regarding First Motion to Compel Discovery 26 (Sady, Stephen) (Entered: 05/06/2011)
43 ORDER Granting 41 UNOPPOSED MOTION TO FILESTATEMENT ON THEORY OFDEFENSE IN SUPPORT OFDISCOVERY MOTIONS AND ACCESSTO CLASSIFIED MATERIAL UNDER SEAL AND EXPARTE as to Mohamed Osman Mohamud (1)Signed on 5/9/11. by Judge Garr M. King (schm) (Entered: 05/10/2011)

05/16/2011 05/19/2011 05/20/2011
05/24/2011 05/24/2011
05/27/2011 05/31/2011 06/01/2011

45 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion for Partial Sequestration of Witnesses and Preservation of Evidence 30 (Sady, Stephen) (Entered: 05/16/2011)
46 OPINION AND ORDER - Defendant's Motion for Partial Sequestration of Witnesses and Preservation of Evidence 30 is denied. Signed on 5/18/2011. Ordered by Judge Garr M. King. (pc) (Entered: 05/19/2011)
47 Notice by USA as to Mohamed Osman Mohamud Notification to Defendant of Supplemental In Camera, Ex Parte, Under Seal Filing by the United States Pursuant to the Classified Information Procedures Act (Knight, Ethan) (Entered: 05/20/2011)
48 Notice of Attorney Appearance by Jolie F, Zimmerman, appearing for USA. (mkk) (Entered: 05/24/2011)
49 Minutes of Proceedings: In Camera, ex parte under seal hearing held on May 24, 2011 before United States District Judge Garr M. King with the United States pursuant to Section 4 of the Classified Information Procedures Act, 18 U.S.C. App. III ("CIPA"). Formal order will be filed under seal. (Court Reporter Nancy Walker) (mja) (Entered: 05/24/2011)
50 Order - Defense counsel's letter request of May 26, 2011 is DENIED. Ordered by Judge Garr M. King (mja) (Entered: 05/27/2011)
51 Notice by USA as to Mohamed Osman Mohamud regarding Response to Motion 28 filed by Plaintiff USA (Knight, Ethan) (Entered: 05/31/2011)
52 Minutes of Motion Hearing before Judge Garr M. King as to Mohamed Osman Mohamud held on 6/1/2011. Order - Defendant's First Motion to Compel Discovery 26 is GRANTED in PART, DENIED in PART and DEFERRED in PART. Order - Setting a case schedule as follows: Motions to Suppress and FISA Motions are due by 6/21/2011; Government's Responses to Non-FISA Motions are due by 7/12/2011; Defendant's Replies to Non-FISA Responses are due by 7/19/2011; Setting a Hearing on Non-Fisa Motions to Suppress for 8/3/2011 at 09:00AM in Portland Courtroom 9A, before Judge Garr M. King; Government's Responses to FISA Motions are due by 9/7/2011. Dispositive Motions are due by 9/21/2011; Defendant's Replies to FISA Responses are due by 10/4/2011; Government's Responses to Dispositive Motions are due by 10/12/2011; Setting a Hearing on FISA Motions for 10/17/2011 at 9:00AM in Portland, Courtroom 9A, before Judge M. King; Defendant's Replies to Dispositive Responses are due by 10/25/2011; Setting a Hearing on Dispositve Motion for 11/15/2011 at 9:00AM in Portland, Courtroom 9A, before Judge Garr M. King; Pretrial Documents, Motions in Limine, and CIPA Motions are due by 1/17/2012; Responses to Pretrial Documents, Motions in Limine, and CIPA Motions are due 2/1/2012; Replies due by 2/14/2012; Setting a

06/01/2011 06/22/2011 06/22/2011 06/22/2011 06/22/2011 06/27/2011

Pretrial Conference for March 27, 2012 at 9:00AM in Courtroom 9A, before Judge Garr M. King, and a 15-day Jury Trial is set for 4/10/2012 at 09:00AM in Portland Courtroom 9A, before Judge Garr M. King.Counsel Present for Plaintiff: Ethan Knight, Jeffrey Sweet and Jolie Zimmerman.Counsel Present for Defendant: Stephen Sady, Steven Wax and Mark Ahlemeyer.(Court Reporter Nancy Walker) (mja) (Entered: 06/01/2011)
53 Scheduling Order as to Mohamed Osman Mohamud. Order - At the Government's request, the Court is resetting the Pretrial Conference set for 3/27/2012 is STRICKEN and RESET to 4/2/2012 at 09:00AM in Portland Courtroom 9A, before Judge Garr M. King. Ordered by Judge Garr M. King (mja) (Entered: 06/01/2011)
54 Motion for Disclosure of FISA-Related Material Necessary To Litigate Motions For Discovery And For Suppression Of The Fruits Of FISA Activity by Defendant Mohamed Osman Mohamud. (Wax, Steven) (Entered: 06/22/2011)
55 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Motion for Disclosure of FISA-Related Material Necessary To Litigate Motions For Discovery And For Suppression Of The Fruits Of FISA Activity 54 filed by Defendant Mohamed Osman Mohamud (Wax, Steven) (Entered: 06/22/2011)
56 Motion to Suppress the Products of Non-FISA Interrogations, Searches, and Seizures by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 06/22/2011)
57 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Motion to Suppress the Products of Non-FISA Interrogations, Searches, and Seizures 56 filed by Defendant Mohamed Osman Mohamud (Attachments: # 1 Exhibit A) (Sady, Stephen) (Entered: 06/22/2011)
58 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion hearing as to Defendant Mohamed Osman Mohamud for date of June 1, 2011 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 7/8/2011. Redaction Request due 7/21/2011. Redacted Transcript Deadline set for 8/1/2011. Release of Transcript Restriction set for 9/29/2011. (Walker, Nancy) (Entered: 06/27/2011)

07/11/2011 07/11/2011
09/15/2011 09/20/2011
11/16/2011 11/21/2011 01/11/2012

59 Unopposed Motion to Amend/Correct Schedule by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 07/11/2011)
60 Order - Granting Unopposed Motion to Amend/Correct Schedule 59 as to Mohamed Osman Mohamud (1). Government's Responses to NonFISA Motions are due by September 17, 2011; Defendant's Replies to Non-FISA Motions are due by September 30, 2011; Governments Responses to FISA Motions are due by September 28, 2011; and Defendant's Replies to FISA Motions are due by October 10, 2011. The Hearing on Non-Fisa Motions to Suppress set for 8/3/2011 is STRICKEN. The Hearing of FISA Motions and the Hearing on NonFISA Motions to Suppress are consolidated and will be heard on October 17, 2011 at 09:00AM. Ordered by Judge Garr M. King. (pc) (Entered: 07/11/2011)
61 Motion to Continue / Reset Trial and Amend Schedule filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 09/15/2011)
62 ORDER Granting 61 Motion to Continue / Reset Trial Date and Amending Schedule as to Mohamed Osman Mohamud (1). Dispositive Motions are due by 11/21/2011. Oral Argument on non-FISA and FISA motions is set for 12/19/2011 at 09:00AM in Judge King's Courtroom before Judge Garr M. King. Oral argument on dispositive motions is set for 1/30/2012 at 10:00AM in Judge King's Courtroom before Judge Garr M. King. Pretrial Conference is set for 5/2/2012 at 09:00AM in Judge King's Courtroom before Judge Garr M. King. 15-day Jury Trial is reset for 5/15/2012 at 09:00AM in Judge King's Courtroom before Judge Garr M. King. Excludable delay from 4/10/12, to and including 5/15/12. SEE FORMAL ORDER Signed on 9/19/11 by Judge Garr M. King (schm) Modified on 9/22/2011 to add excludable delay language(schm). Modified on 9/22/2011 (schm) adding additional text. Regenerated NEF. (Entered: 09/22/2011)
63 Unopposed Motion to Amend/Correct Schedule by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 11/16/2011)
64 ORDER Granting 63 Motion to Amend/Correct Schedule as to Mohamed Osman Mohamud (1).See order for amended scheduleSigned on 11/21/11 by Judge Garr M. King (schm) (Entered: 11/21/2011)
65 Notice by USA as to Mohamed Osman Mohamud Notification to Defendant of Second In Camera, Ex Parte, Under Seal Filing by the United States Pursuant to the Classified Information Procedures Act (Knight, Ethan) (Entered: 01/11/2012)

01/11/2012 01/12/2012
02/01/2012 02/02/2012
02/02/2012

66 Unopposed Motion to Amend/Correct Schedule filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 01/11/2012)
67 ORDER Granting 66 Motion to Amend Schedule as to Mohamed Osman Mohamud (1)Signed on 1/12/12, by Judge Michael W. Mosman for Judge Garr M. King. Based on the Unopposed Motion to Amend Schedule filed by the government,IT IS HEREBY ORDERED that the briefing schedule is amended as follows:Government's Responses to Non-FISA Motions extended to January 31, 2012;Dispositive Motions extended to February 7, 2012;Government's Responses to FISA Motions extended to February 14,2012;Defendant's Replies to FISA Responses extended to March 1,2012;Government's Responses to Dispositive Motions extended to March 1,2012;Defendant's Replies to Dispositive Responses extended to March 7, 2012.All other dates in the schedule of November 2 I, 2011, remain the same. (schm) (Entered: 01/12/2012)
68 Joint Motion to Amend/Correct Schedule and for Finding of Excludable Delay by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 02/01/2012)
69 ORDER - Granting Joint Motion to Amend/Correct Schedule and for Finding of Excludable Delay 68 as to Mohamed Osman Mohamud (1). IT IS HEREBY ORDERED that the pretrial and trial schedule is amended (SEE FORMAL ORDER). ORDER - The Hearing of the NonFISA Motion to Suppress is continued to 4/10/2012 at 09:30AM, The Hearing of the FISA Motions is continued to 4/17/2012 at 09:30AM, The Hearing on the Second Motion to Compel is set for 5/1/2012 at 09:30AM, The Parties' Preliminary Submission On Evidentiary Matters is set for 6/26/2012 at 09:30AM. The 5/8/2012 Pretrial Conference is STRICKEN, and re-set to 9/18/2012 at 09:30AM, and the 15-day jury trial now set for 5/15/2012 is STRICKEN, and re-set to 10/2/2012 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. Based upon the representations made in this case in the Joint Motion to Amend the Schedule and Finding Excludable Delay 68 , as well as the findings in this Court's order of January 5, 2011, and upon the request by the defendant through counsel and the United States, the Court finds excludable delay exists from 2/2/2012 to and including 10/2/2012.Signed on 2/2/2012. by Judge Garr M. King (pc) (Entered: 02/02/2012)
70 Scheduling Order as to Mohamed Osman Mohamud (1). The Hearing of the Non-FISA Motion to Suppress is continued to 4/10/2012 at 09:30AM, The Hearing of the FISA Motions is continued to 4/17/2012 at 09:30AM, The Hearing on the Second Motion to Compel is set for 5/1/2012 at 09:30AM, The Parties' Preliminary Submission On Evidentiary Matters is set for 6/26/2012. The Hearing on the Preliminary

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Submission is set for 7/10/2012 at 09:30AM. The 5/8/2012 Pretrial Conference is STRICKEN, and re-set to 9/18/2012 at 09:30AM, and the 15-day jury trial now set for 5/15/2012 is STRICKEN, and re-set to 10/2/2012 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. Ordered by Judge Garr M. King. (pc) Modified on 2/2/2012 (pc). (Entered: 02/02/2012)
71 Administrative Correction of the Record: A clerical error pursuant to Fed. R. Crim. P 36 has been discovered in the case record referencing document 70 and the Clerk is directed to make the following administrative corrections to the record and to notify all parties accordingly: The time of 09:30AM was deleted from the date of 6/26/2012 Parties' Preliminary Submission On Evidentiary Matters. Ordered by Judge Garr M. King. (pc) (Entered: 02/02/2012)
72 Supplemental Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Motion for Disclosure of FISA-Related Material Necessary To Litigate Motions For Discovery And For Suppression Of The Fruits Of FISA Activity 54 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 02/03/2012)
73 Notice by USA as to Mohamed Osman Mohamud of Additional Counsel for the Government (Holsinger, Pamala) (Entered: 02/07/2012)
74 Unopposed Motion for Order to Seal Second Statement in Support of Discovery Motions by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 02/21/2012)
75 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Suppress 56 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 02/21/2012)
76 Notice by USA as to Mohamed Osman Mohamud Notification to Defendant of Third In Camera, Ex Parte, Under Seal Filing by the United States Pursuant to the Classified Information Procedures Act (Knight, Ethan) (Entered: 02/21/2012)
77 Second Motion to Compel Discovery by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 02/21/2012)
78 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Second Motion to Compel Discovery 77 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 02/21/2012)
80 ORDER Granting 74 Motion to file Second Statement in Support of Discovery under seal and ex-parte as to Mohamed Osman Mohamud (1)Signed on 2/22/12. by Judge Garr M. King (schm) (Entered: 02/24/2012)

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81 Notice by USA as to Mohamed Osman Mohamud Notification to Defendant of Fourth In Camera, Ex Parte, Under Seal Filing by the United States (Knight, Ethan) (Entered: 02/28/2012)
87 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion to Suppress the Products of Non-FISA Interrogations, Searches, and Seizures 56 (Sady, Stephen) (Entered: 03/06/2012)
88 Amended Memorandum in Opposition to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Disclosure of FISARelated Material Necessary To Litigate Motions For Discovery And For Suppression Of The Fruits Of FISA Activity 54 filed by Defendant Mohamed Osman Mohamud (Attachments: # 1 Exhibit #1) (Knight, Ethan) (Entered: 03/08/2012)
89 Unopposed Motion for Extension of Time (Related Doc. 88 Memorandum in Opposition, ) by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 03/08/2012)
90 ORDER - Granting Unopposed Motion for Extension of Time (Related Doc. 88 Memorandum in Opposition) 89 as to Mohamed Osman Mohamud (1). Defendant's Reply to his Motion to Disclose FISARelated Material Necessary to Litigate Motions for Discovery and for Suppression of the Fruits of FISA Activity is due by March 27, 2012. Ordered by Judge Garr M. King. (pc) (Entered: 03/12/2012)
91 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Compel 77 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 03/15/2012)
92 Notice by USA as to Mohamed Osman Mohamud Notification to Defendant of Fifth In Camera, Ex Parte, Under Seal Filing by the United States (Knight, Ethan) (Entered: 03/16/2012)
93 Supplemental Motion to Suppress the Products of Non-FISA Interrogations, Searches, and Seizures by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 03/26/2012)
94 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion for Disclosure of FISA-Related Material Necessary To Litigate Motions For Discovery And For Suppression Of The Fruits Of FISA Activity 54 (Sady, Stephen) (Entered: 03/27/2012)
95 WITHDRAWN pursuant to the Court's Order 98 . Corrected reply docketed as # 99 . Modified on 3/30/2012 (kw). (Entered: 03/29/2012)
96 Unopposed Motion to Withdraw Document by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order, # 2 Proposed Document) (Sady, Stephen) (Entered: 03/30/2012)

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97 Exhibit by Mohamed Osman Mohamud regarding Unopposed Motion to Withdraw Document 96 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 03/30/2012)
98 ORDER TO WITHDRAW REPLY AND SUBSTITUTE CORRECTED REPLY; Granting 96 Defendant's Motion to Withdraw Document as to Defendant Mohamed Osman Mohamud (1); IT IS HEREBY ORDERED that the Defendant's Reply to Government's Response to Defendant's Second Motion to Compel Discovery [#95] be WITHDRAWN and the corrected reply be substituted; Signed on 3/30/12 by Judge Garr M. King. (kw) (Entered: 03/30/2012)
99 Corrected Reply to Response to Motion by Defendant Mohamed Osman Mohamud regarding Second Motion to Compel Discovery 77 . (Filed pursuant to the Court's Order 98 ) (kw) (Entered: 03/30/2012)
100 Scheduling Order as to Mohamed Osman Mohamud (1). At the request of the parties, the TIME of the 4/10/2012 Oral Argument is re-set from 09:30AM to 01:00PM in Portland Courtroom 9A before Judge Garr M. King. Ordered by Judge Garr M. King. (pc) (Entered: 04/02/2012)
101 Motion to Continue / Reset Order of Hearings by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 04/02/2012)
102 ORDER - Granting in Part Motion to Continue / Reset 101 as to Mohamed Osman Mohamud (1). Order - Striking the Hearing set for 4/10/2012 on the Motion to Suppress the Products of Non-FISA Interrogations 56 and re-setting it for 5/1/2012 at 09:30AM; Striking the 5/1/2012 Hearing on the Second Motion to Compel Discovery 77 and resetting it for 4/17/2012 at 09:30AM; The hearing on the Motion for Disclosure of FISA-Related Material 54 remains as previously scheduled on 4/17/12 at 01:00PM in Portland Courtroom before Judge Garr M. King. Ordered by Judge Garr M. King. (pc) (Entered: 04/04/2012)
105 Unopposed Motion to File Third Ex Parte Statement in Support of Discovery Motions Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 04/12/2012)
106 ORDER Granting 105 Motion to File Defendant's Third Ex Parte Statement in Support of Discovery Motion Under Seal as to Mohamed Osman Mohamud (1)Signed on 4/16/12 by Judge Garr M. King (schm) (Entered: 04/16/2012)
108 Minutes of Proceedings: Oral Argument held before Judge Garr M. King. The Court takes Under Advisement Motion for Disclosure 54 and Motion to Compel 77 as to Mohamed Osman Mohamud (1). Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Steven

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Sady and Steven Wax present as counsel for defendant(s). (Court Reporter Bonita Shumway.) (pc) (Entered: 04/17/2012)
109 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument as to Defendant Mohamed Osman Mohamud for date of 4/17/2012 before Judge Garr M. King, Court Reporter Bonita J. Shumway, telephone number 503-326-8188. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/30/2012. Redaction Request due 5/14/2012. Redacted Transcript Deadline set for 5/24/2012. Release of Transcript Restriction set for 7/23/2012. (Shumway, Bonita) (Entered: 04/20/2012)
110 Motion to Bifurcate Non-FISA Motion to Suppress Hearing by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 04/20/2012)
111 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Bifurcate 110 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 04/23/2012)
112 ORDER - The court denies defendant's Motion to Bifurcate Non-FISA Motion to Suppress Hearing 110 . The government does not intend to offer the disputed evidence. The court does not want to address whether the government violated defendant's Fourth and Fifth Amendment rights when obtaining the disputed evidence unless the court first determines that the subsequent investigation was tainted by evidence obtained through the Oregon State Police, and evidence obtained in the subsequent investigation did not have an independent source. If it is not clear that evidence obtained in the subsequent investigation is admissible, the court will schedule a second hearing to determine if the government violated defendant's Fourth and Fifth Amendment rights. Ordered by Judge Garr M. King. (pc) (Entered: 04/24/2012)
113 Scheduling Order as to Mohamed Osman Mohamud (1). ORDER - The TIME of the 5/1/2012 Oral Argument on the Motion to Suppress the Products of Non-FISA Interrogations 56 is re-set from 09:30M to 01:30PM in Portland Courtroom 9A before Judge Garr M. King. Ordered by Judge Garr M. King. (pc) (Entered: 04/24/2012)
114 Objections to 112 by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 04/25/2012)
115 Unopposed Motion to File Motion for Protective Order Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 04/26/2012)

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116 Notice by USA as to Mohamed Osman Mohamud of Procedures for Handling Classified Information at Pretrial Proceedings Pursuant to CIPA Section 8(c) (Knight, Ethan) (Entered: 04/30/2012)
118 PROTECTIVE ORDER - ORDER Granting 115 Unopposed Motion for Protection Order Under Seal as to Mohamed Osman Mohamud (1)Signed on 4/30/12, by Judge Garr M. King (schm) Modified on 4/30/2012 (schm). (Entered: 04/30/2012)
120 Response to 116 by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 04/30/2012)
121 Motion for Extension of Time to File Notice of Intent to Redact Transcript by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 04/30/2012)
122 ORDER - Granting Motion for Extension of Time to File Notice of Intent to Redact Transcript 121 as to Mohamed Osman Mohamud (1). Deadline extended to May 4, 2012. Ordered by Judge Garr M. King. (pc) (Entered: 05/01/2012)
123 Minutes of Proceedings: In Camera, ex parte under seal hearing held on May 1, 2012 before United States District Judge Garr M. King with the United States pursuant to Section 4 of the Classified Information Procedures Act, 18 U.S.C. App III ("CIPA"). Formal order will be filed under seal. (Court Reporter Nancy Walker) (pc) (Entered: 05/01/2012)
124 Minutes of Proceedings: Motion Hearing held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Order - Setting further Hearing for 5/2/2012 at 09:30AM in Courtroom 9A before Judge Garr M. King.Counsel Present for Plaintiff: Ethan D. Knight, Pamala Holsinger and Jolie F. Zimmerman.Counsel Present for Defendant: Steven T. Wax and Stephen R. Sady.(Court Reporter Nancy Walker) (pc) Modified on 5/8/2012 to correct date of hearing.(pc). (Entered: 05/02/2012)
125 Minutes of Proceedings: Motion Hearing held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witnesses sworn and evidence adduced (see attached List of Exhibits and Witnesses). Order Motion to Suppress the Products of Non-FISA Interrogations, Searches, and Seizures 56 is taken under advisement. Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Steven Sady and Steven Wax present as counsel for defendant(s). (Court Reporter Nancy Walker.) (pc) (Entered: 05/02/2012)
126 OPINION AND ORDER - Mohamud's Motion to Disclose FISARelated Material Necessary to Litigate Motions for Discovery and for

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Suppression of the Fruits of FISA Activity 54 is DENIED.Signed on 5/7/2012. by Judge Garr M. King (pc) (Entered: 05/07/2012)
127 ORDER - Defendant's Second Motion to Compel Discovery 77 is granted in part and denied in part as set forth in this Order. The rulings for this motion only concern information which is not classified. Signed on 5/8/2012. by Judge Garr M. King (pc) (Entered: 05/08/2012)
128 Notice by USA as to Mohamed Osman Mohamud Notification to Defendant of Sixth In Camera, Ex Parte, Under Seal Filing by the United States (Knight, Ethan) (Entered: 05/11/2012)
129 Supplemental Response to Motion by Mohamed Osman Mohamud regarding Motion to Suppress 56 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 05/15/2012)
130 Declaration by Josiah P. Roloff regarding Response to Motion 129 filed by Defendant Mohamed Osman Mohamud (Attachments: # 1 Exhibit) (Sady, Stephen) (Entered: 05/15/2012)
131 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion hearing as to Defendant Mohamed Osman Mohamud for date of May 1, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 5/29/2012. Redaction Request due 6/11/2012. Redacted Transcript Deadline set for 6/21/2012. Release of Transcript Restriction set for 8/20/2012. (Walker, Nancy) (Entered: 05/18/2012)
132 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Continued motion hearing as to Defendant Mohamed Osman Mohamud for date of May 2, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 5/29/2012. Redaction Request due 6/11/2012. Redacted Transcript Deadline set for 6/21/2012. Release of Transcript Restriction set for 8/20/2012. (Walker, Nancy) (Entered: 05/18/2012)
133 Memorandum in Opposition to Motion by USA as to Mohamed Osman Mohamud regarding Response to Motion 129 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 05/18/2012)

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134 Scheduling Order as to Mohamed Osman Mohamud (1). Order - Setting a deadline for Defendant's Reply in Defendant's Motion to Supplement the Record 129 for Tuesday, May 29, 2012 at 09:00AM. Ordered by Judge Garr M. King. (pc) (Entered: 05/21/2012)
136 Clerk's Notice of Mailing as to Mohamed Osman Mohamud regarding Sealed Order 135 . Order mailed to counsel for the government and counsel for the defendant on this date. (schm) (Entered: 05/22/2012)
137 Motion for Reconsideration re Order on Motion to Compel, 127 by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 05/23/2012)
138 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion to Suppress the Products of Non-FISA Interrogations, Searches, and Seizures 56 (Sady, Stephen) (Entered: 05/29/2012)
139 ORDER - The Court construes document 129 as a Motion to Supplement the Record on the Motion to Suppress the Products of NonFISA Interrogations, Searches, and Seizures, and the court hereby GRANTS that Motion as to Mohamed Osman Mohamud (1). The Court will reopen the record to take testimony on the computer issues defendant has raised in this motion. Counsel is asked to confer on a date for the hearing, and then contact the court. Ordered by Judge Garr M. King. (pc) (Entered: 05/29/2012)
140 Scheduling Order as to Mohamed Osman Mohamud (1). Order - Setting a Hearing to supplement the record on the Motion to Suppress the Products of Non-FISA Interrogations, Searches, and Seizures 56 for 6/26/2012 at 01:30PM in Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pc) (Entered: 06/05/2012)
141 Minutes of Proceedings: In Chambers Conference held before Judge Garr M. King as to Mohamed Osman Mohamud (1).Counsel Present for Plaintiff: Ethan Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax and Stephen R. Sady.(Court Reporter none) (pc) (Entered: 06/05/2012)
142 Second Motion for Order to Supplement the Record on The Motion to Suppress regarding Motion to Suppress 56 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) Modified on 6/19/12, to correct docket to read as the document reads. Document was filed as a Second Response to Motion (schm). Modified on 6/19/2012 to correct event type to motion (dkj). (Entered: 06/18/2012)
143 Motion for CIPA Rulings and Disclosures by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Exhibit) (Sady, Stephen) (Entered: 06/18/2012)

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144 Unopposed Motion to File Supplement to Motion for CIPA Rulings and Disclosures Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 06/18/2012)
145 Administrative Correction of the Record: A clerical error pursuant to Fed. R. Crim. P 36 has been discovered in the case record referencing document 142 and the Clerk is directed to make the following administrative corrections to the record and to notify all parties accordingly: Document #142 is a Motion for Order to Supplement the record and Not a Response. Clerk is directed to correct the docket accordingly by Judge Garr M. King (schm) (Entered: 06/19/2012)
146 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Reconsideration 137 filed by Defendant Mohamed Osman Mohamud (Holsinger, Pamala) (Entered: 06/19/2012)
147 ORDER Granting 144 Motion for CIPA Rulings and Disclosures to be filed under seal as to Mohamed Osman Mohamud (1)Signed on 6/19/12, by Judge Garr M. King (schm) (Entered: 06/20/2012)
148 Scheduling Order as to Mohamed Osman Mohamud (1). Order - Setting a Hearing on the Second Motion for Order to Supplement the Record on The Motion to Suppress 142 and Oral Argument on the Motion for CIPA Rulings and Disclosures 143 and on the production of unredacted transcripts of undercover meetings for 8/8/2012 at 01:30PM in Portland Courtroom 9A before Judge Garr M. King. Order - The 7/10/2012 Oral Argument is STRICKEN. Ordered by Judge Garr M. King. (pc) (Entered: 06/26/2012)
149 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion for Reconsideration re Order on Motion to Compel, 127 137 (Sady, Stephen) (Entered: 06/26/2012)
150 Minutes of Proceedings: Hearing to supplement the record on the Motion to Suppress the Products of Non-FISA Interrogations, Searches, and Seizures held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witnesses sworn and evidence adduced. See List of Exhibits and Witnesses. Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax and Stephen R. Sady.(Court Reporter Nancy Walker) (pc) Modified on 6/28/2012 (pc). (Modified on 6/28/2012 to correct file date to 6/26/2012). (Entered: 06/27/2012)
151 Minutes of Proceedings: In Camera, ex parte under seal hearing held on June 26, 2012 before United States District Judge Garr M. King with the United States pursuant to Section 8(c) of the Classified Information Procedures Act, 18 U.S.C. App III ("CIPA").Counsel Present for

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Plaintiff: Ethan D. Knight and Pamala Holsinger.(Court Reporter Nancy Walker) (pc) Modified on 6/28/2012 (pc). (Modified on 6/28/2012 to correct file date to 6/26/2012). (Entered: 06/27/2012)
152 Clerk's List of Witnesses and Exhibits as to Mohamed Osman Mohamud (1). (pc) Modified on 6/28/2012 (pc). (Modified on 6/28/2012 to correct file date to 6/26/2012). (Entered: 06/27/2012)
153 Scheduling Order as to Mohamed Osman Mohamud (1). Order - The TIME of the 8/8/2012 Oral Argument is re-set from 01:30PM to 10:00AM in Portland Courtroom 9A before Judge Garr M. King. Ordered by Judge Garr M. King. (pc) (Entered: 07/03/2012)
154 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Order, 142 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 07/06/2012)
155 Notice by USA as to Mohamed Osman Mohamud Notification to Defendant of Seventh In Camera, Ex Parte, Under Seal Filing by the United States (Knight, Ethan) (Entered: 07/06/2012)
156 Notice by USA as to Mohamed Osman Mohamud of Additional Counsel for the Government (Bounds, Ryan) (Entered: 07/10/2012)
157 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Order 143 filed by Defendant Mohamed Osman Mohamud (Bounds, Ryan) (Entered: 07/10/2012)
158 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion 142 (Sady, Stephen) (Entered: 07/16/2012)
159 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion hearing as to Defendant Mohamed Osman Mohamud for date of June 26, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be purchased from the Court Reporter at 503-326-8186 or obtained through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 7/27/2012. Redaction Request due 8/10/2012. Redacted Transcript Deadline set for 8/20/2012. Release of Transcript Restriction set for 10/18/2012. (Attachments: # 1 Index) (Walker, Nancy) (Entered: 07/17/2012)
160 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion for CIPA Rulings and Disclosures 143 (Sady, Stephen) (Entered: 07/17/2012)

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161 Unopposed Motion to File Supplement to Suppression and Discovery Motions Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 07/17/2012)
162 ORDER GRANTING 161 Motion as to Mohamed Osman Mohamud (1). IT IS HEREBY ORDERED that the defendants Supplement to Suppression and Discovery Motions shall be filed under seal. Ordered by Judge Michael W. Mosman. (dls) (Entered: 07/18/2012)
163 Joint Motion to Continue / Reset Time for Filing Trial Documents and Trial Date by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 07/19/2012)
164 Motion for Clarification of Discovery Order and Protection of Privileged Attorney-Client Communications and Attorney Work Product re Order on Motion to Compel, 127 filed by USA as to Defendant Mohamed Osman Mohamud. (Bounds, Ryan) (Entered: 07/20/2012)
165 Unopposed Motion for Order to File Under Seal Exhibits re Motion for Clarification of Discovery Order and Protection of Privileged AttorneyClient Communications and Attorney Work Product re Order on Motion to Compel, 127 164 filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Bounds, Ryan) (Entered: 07/20/2012)
166 ORDER - Granting Joint Motion to Continue / Reset Time for Filing Trial Documents and Trial Date 163 as to Mohamed Osman Mohamud (1). Order - Pretrial documents are to be filed by 8/21/2012; Responses are due by 9/4/2012; Replies are due by 9/18/2012. Order - The 9/18/2012 Pretrial Conference is STRICKEN, and re-set for 10/2/2012 at 09:30AM in Portland Courtroom 9A. The 15-day Jury Trial set for 10/2/2012 is STRICKEN and re-set to 10/16/2012 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. IT IS FURTHER ORDERED that this continuance constitutes excludable delay to 10/16/2012, pursuant to Title 18, United States Code, 3161(h)(7)(A). The Court specifically finds, in granting the motion, that the ends of justice are served by taking such action and outweigh the best interests of the public and the defendant in a speedy trial. In support of this finding, the Court further finds that the requested delay, for purposes of allowing sufficient time to litigate the pretrial motions, is reasonable and necessary such that the time is properly excludable according to law. Ordered by Judge Garr M. King. (pc) (Entered: 07/23/2012)
167 OPINION AND ORDER - Defendant's Motion for Reconsideration of Discovery Order Regarding Disclosure of Government Agent Bill Smiths True Identity 137 is granted to the extent the court will hold an in

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camera, ex parte ruling before making a final ruling. Signed on 7/23/2012. by Judge Garr M. King (pc) (Entered: 07/23/2012)
168 ORDER TO SEAL EXHIBITS TO MOTION FOR CLARIFICATION OF DISCOVERY ORDER AND PROTECTION OF PRIVILEGED ATTORNEY-CLIENT COMMUNICATIONS AND ATTORNEY WORK PRODUCT; Granting 165 USA's Motion to Seal Exhibits as to Defendant Mohamed Osman Mohamud (1); IT IS HEREBY ORDERED that the Government's Exhibits to its (#164) Motion for Clarification of Discovery Order and Protection of Privileged Attorney-Client Communications and Attorney Work Product be filed UNDER SEAL; Signed on 7/23/12 by Judge Garr M. King. (kw) (Entered: 07/24/2012)
169 Order for Production of Witness Statements as to Defendant Mohamed Osman Mohamud; IT IS HEREBY ORDERED that the Government shall produce the requested statements of any Government witness who has testified as soon as practicable; by Judge Garr M. King; signed on 7/23/12. (kw) (Entered: 07/24/2012)
171 Response to Motion by Mohamed Osman Mohamud regarding Motion for Order 164 filed by Plaintiff USA (Sady, Stephen) (Entered: 07/30/2012)
172 Scheduling Order as to Mohamed Osman Mohamud (1). Order Granting Counsel's joint oral request to cancel the 8/8/2012 Oral Argument. Order - The 8/8/2012 Oral Argument on the Motion to Suppress the Products of Non-FISA Interrogations, Searches, and Seizures is STRICKEN. This Oral Argument shall be rescheduled soon.Ordered by Judge Garr M. King. (pc) (Entered: 08/06/2012)
173 Joint Motion to Amend/Correct Schedule and for Finding of Excludable Delay by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 08/14/2012)
174 ORDER AMENDING SCHEDULE AND FINDING EXCLUDABLE DELAY; Granting 173 Joint Motion to Amend Schedule as to Defendant Mohamed Osman Mohamud (1); IT IS ORDERED the trial schedule is AMENDED as follows: Hearing on outstanding motions RESET to 9/24/12 at 9:30 am; Pretrial Documents and further motions date is EXTENDED to 10/23/12; Pretrial Conference is RESET to 12/6/12 at 9:30am; Trial is RESET to commence on 1/15/13 at 9:00 am; Excludable Delay exists from the date of this Order to and including 1/15/13; (See 2-page Order for full text); Signed on 8/20/12 by Judge Garr M. King. (kw) (Entered: 08/20/2012)
175 Scheduling Order as to Mohamed Osman Mohamud (1). Due to a conflict in the Court's schedule, the 12/6/2012 Pretrial Conference is STRICKEN, and re-set for 12/4/2012 at 01:30PM in Portland Courtroom

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9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pc) (Entered: 08/21/2012)
176 Notice by USA as to Mohamed Osman Mohamud Notification to Defendant of Eighth In Camera, Ex Parte, Under Seal Filing by the United States (Knight, Ethan) (Entered: 08/23/2012)
177 Scheduling Order as to Mohamed Osman Mohamud (1). Due to a conflict in the Court's schedule, the 12/4/2012 Pretrial Conference is STRICKEN, and re-set for 12/3/2012 at 01:30PM in Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pc) (Entered: 09/04/2012)
178 AMENDED Scheduling Order as to Mohamed Osman Mohamud (1). Order - The TIME of the 12/3/2012 Pretrial Conference is re-set from 01:30PM to 02:30PM in Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pc) (Entered: 09/04/2012)
180 Unopposed Motion to File Second Supplement to Suppression and Discovery Motions Under Seal by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 09/18/2012)
182 ORDER Granting 180 Motion to Seal Second Supplement to Suppression and Discovery Motions as to Mohamed Osman Mohamud (1)Signed on 9/18/12 by Judge Garr M. King (schm) (Entered: 09/19/2012)
183 Proposed Form of Order Submitted for Defendant Mohamed Osman Mohamud 35 (Knight, Ethan) (Entered: 09/19/2012)
184 Proposed Form of Order Submitted for Defendant Mohamed Osman Mohamud 65 (Knight, Ethan) (Entered: 09/19/2012)
185 Proposed Form of Order Submitted for Defendant Mohamed Osman Mohamud [92 & 176] (Knight, Ethan) (Entered: 09/19/2012)
186 Unopposed Motion to File Defendant's Second Supplement to Motion for CIPA Rulings and Disclosures Under Seal by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 09/20/2012)
187 Objections to 185 , 184 , 183 by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 09/20/2012)
188 Reply to Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Clarification of Discovery Order and Protection of Privileged Attorney-Client Communications and Attorney Work Product re Order on Motion to Compel, 127 164 (Bounds, Ryan) (Entered: 09/20/2012)

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189 ORDER Granting 186 Defendant's Second Supplement to Motion for CIPA Rulings and Disclosures filed Under Seal as to Mohamed Osman Mohamud (1)Signed on 9/21/12, by Judge Garr M. King (schm) (Entered: 09/21/2012)
190 THIS ORDER IS STRICKEN AS IT IS A DUPLICATE OF DOCUMENT #189. ORDER Granting 142 Second Supplement to Motion for CIPA rulings and disclosures be filed under seal as to Mohamed Osman Mohamud (1)Signed on 9/24/12. by Judge Garr M. King (schm) Modified on 9/26/2012 to strike (schm). (Entered: 09/25/2012)
192 Minutes of Proceedings: Motion Hearing held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witness Bradford C. Petrie sworn and evidence adduced. See Exhibit and Witness List. Order Taking Under Advisement Motions 137 , 142 and 143 ; Order - Denying Motion for Clarification of Discovery Order and Protection of Privileged Attorney-Client Communications and Attorney Work Product re Order on Motion to Compel, 127 164 . The government must produce the transcripts and audio recordings with the prosecutor's statements unredacted. The single-word redactions of names may remain as redacted. Ethan D. Knight, Pamala Holsinger and Jolie Zimmerman present as counsel for plaintiff(s). Steven Sady and Steven Wax present as counsel for defendant(s). (Court Reporter Amanda LeGore.) (pc) Modified on 9/25/2012 (pc). (Entered: 09/25/2012)
193 Clerk's List of Witnesses and Exhibits as to Mohamed Osman Mohamud (1). (pc) (Entered: 09/25/2012)
194 Motion to Produce by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 09/25/2012)
195 OPINION AND ORDER - Mohamud's request for disclosure of the true identity of Bill Smith is DENIED. Ordered by Judge Garr M. King signed on 9/26/2012. (pc) (Entered: 09/26/2012)
196 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Excerpt of Motions Hearing as to Defendant Mohamed Osman Mohamud for date of September 24, 2012 before Judge Garr M. King, Court Reporter Amanda M. LeGore, telephone number 503-3268184. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACERSee Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 10/9/2012. Redaction Request due 10/22/2012. Redacted Transcript Deadline set for 11/1/2012. Release of Transcript Restriction set for 12/31/2012. (LeGore, Amanda) (Entered: 09/26/2012)

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197 Minutes of Proceedings: Continuation of Motion Hearing held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witness Christopher Michael Henderson sworn and evidence adduced. See Clerk's Exhibit and Witness List. Order - Motion 142 continues to be under advisement. Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax and Stephen R. Sady.(Court Reporter Nancy Walker) (pc) Modified on 9/27/2012 (pc). (Entered: 09/27/2012)
198 Clerk's List of Witnesses and Exhibits as to Mohamed Osman Mohamud (1). (pc) (Entered: 09/27/2012)
199 Motion for Clarification of the Record re Opinion 195 by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 09/27/2012)
200 Motion to Clarify Order for Inspection of Recording, Transmitting, and Receiving Devices by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 10/01/2012)
201 Scheduling Order as to Mohamed Osman Mohamud (related document(s)): Order - Briefing schedule for Motion to Clarify Order for Inspection of Recording, Transmitting, and Receiving Devices 200 , and Motion to Produce 194 is as follows: Government Response is due by 10/12/2012; Defendant's Reply is due by 10/19/2012.Ordered by Judge Garr M. King. (pc) (Entered: 10/02/2012)
202 ORDER - Granting Motion for Clarification of the Record re Opinion 195 199 as to Mohamed Osman Mohamud (1).Signed on 10/2/2012. by Judge Garr M. King (pc) (Entered: 10/02/2012)
203 OPINION AND ORDER - Defendant's Motion for CIPA Rulings and Disclosures 143 is granted in part.Signed on 10/2/2012. by Judge Garr M. King (pc) (Entered: 10/02/2012)
204 Unclassified Order Deleting Information from Discovery Pursuant to CIPA 4 and Federal Rule Of Criminal Procedure 16(d)(1) as to Mohamed Osman Mohamud regarding Notice (Generic) 65 is granted filed by Plaintiff USA by Judge Garr M. King signed on 10/9/12. (schm) (Entered: 10/09/2012)
205 Unclassified Order Deleting Information from Discovery Pursuant to CIPA 4 and Federal Rule of Criminal Procedure 16(d)(10) as to Mohamed Osman Mohamud by Judge Garr M. King signed on 10/9/12. (schm) (Entered: 10/09/2012)
206 Unclassified Order Deleting Information From Discovery Pursuant to CIPA 4 and Federal Rule of Criminal Procedure 16(d)(1) as to Mohamed Osman Mohamud regarding Notice (Generic) 92 , is granted in part and denied in part filed by Plaintiff USA, Notice (Generic) 76 is

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granted filed by Plaintiff USA by Judge Garr M. King signed on 10/9/12. (schm) (Entered: 10/09/2012)
207 Unopposed Motion for Order to File Response to Defendant's Second Supplement to Suppression and Discovery Motions Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Holsinger, Pamala) (Entered: 10/09/2012)
208 ORDER Granting 207 Motion to Seal Government's Response to Defendant's Second Supplement to Suppression and Discovery Motions as to Mohamed Osman Mohamud (1)Signed on 10/10/12. by Judge Garr M. King (schm) (Entered: 10/11/2012)
210 Unopposed Motion to File Third Supplement to Suppression and Discovery Motions Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 10/11/2012)
211 ORDER Granting 210 Motion to file Third Supplement to Suppression and Discovery Motions - under seal as to Mohamed Osman Mohamud (1)Signed on 10/15/12, by Judge Garr M. King (schm) Modified on 10/15/2012 to change the judge from Judge Mosman to Judge King (schm). (Entered: 10/15/2012)
213 Motion for Order to File Response to Defendant's Motion to Clarify Order for Inspection of Recording Device Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Holsinger, Pamala) (Entered: 10/15/2012)
214 Scheduling Order as to Mohamed Osman Mohamud (1). ORDER - The 12/3/2012 Pretrial Conference is STRICKEN, and re-set for 12/4/2012 at 09:30AM in Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pc) (Entered: 10/16/2012)
215 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Continued motion hearing as to Defendant Mohamed Osman Mohamud for date of September 26, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 10/26/2012. Redaction Request due 11/9/2012. Redacted Transcript Deadline set for 11/19/2012. Release of Transcript Restriction set for 1/17/2013. (Walker, Nancy) (Entered: 10/16/2012)

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216 ORDER Granting 213 Motion to Seal Government's Response to Defendant's Motion to Clarify Order for Inspection of Recording Device as to Mohamed Osman Mohamud (1)Signed on 10/16/12, by Judge Garr M. King (schm) (Entered: 10/17/2012)
218 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Motion to Produce 194 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 10/17/2012)
219 Scheduling Order as to Mohamed Osman Mohamud (1). ORDER - Oral Argument on pending Motions 181 , 194 , and 200 is set for 11/14/2012 at 01:30PM in Portland Courtroom 15A before Judge Garr M. King. Ordered by Judge Garr M. King. (pc) (Entered: 10/18/2012)
220 Motion for Extension of Time (Related Doc. 213 Motion for Order ) by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 10/19/2012)
221 ORDER - Granting Motion for Extension of Time 220 as to Mohamed Osman Mohamud (1). Defense Reply to Motion to Clarify Order for Inspection of Recording, Transmitting, and Receiving Devices 200 is due by 10/26/2012.Ordered by Judge Garr M. King. (pc) (Entered: 10/22/2012)
223 Notification to Defendant - On October 22, 2012, the Court filed with the Classified Information Security Officer, pursuant to the Classified Information Procedures Act, 18 U.S.C. App. 3, an in camera, ex parte, and under seal, Opinion and Order. Ordered by Judge Garr M. King (pc) (Entered: 10/22/2012)
224 OPINION AND ORDER - Defendant's Motion and Second Motion to Suppress the Products of Non-FISA Interrogations, Searches, and Seizures [56, 142] are denied.Signed on 10/22/2012 by Judge Garr M. King (pc) (Entered: 10/22/2012)
225 Motion for Reconsideration re Order on Motion to Suppress 224 by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 10/22/2012)
226 ORDER - The court denies the Motion for Reconsideration 225 at this time. If the pending motion concerning Jencks material results in a ruling providing additional discovery to defendant, defendant may renew the motion to withdraw the October 22, 2012 Opinion and Order denying the non-FISA suppression motion, along with a motion to reopen testimony.Ordered by Judge Garr M. King. (pc) (Entered: 10/23/2012)

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227 Unopposed Motion to File Second Defense Motion in Limine Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 10/23/2012)
228 Trial Brief by USA as to Mohamed Osman Mohamud (Attachments: # 1 Exhibit 1) (Knight, Ethan) (Entered: 10/23/2012)
229 Proposed Jury Instructions by USA as to Mohamed Osman Mohamud (Knight, Ethan) (Entered: 10/23/2012)
230 Exhibit List by USA as to Mohamed Osman Mohamud (Knight, Ethan) (Entered: 10/23/2012)
231 Witness List by USA as to Mohamed Osman Mohamud (Knight, Ethan) (Entered: 10/23/2012)
232 Proposed Jury Verdict by USA as to Mohamed Osman Mohamud (Knight, Ethan) (Entered: 10/23/2012)
233 Motion for Protective Order Pertaining to the Testimony of Undercover Employees at Trial filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 10/23/2012)
234 Trial Brief by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 10/23/2012)
235 Witness List by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 10/23/2012)
236 Declaration by Andrew G. McCabe regarding Motion for Protective Order Pertaining to the Testimony of Undercover Employees at Trial 233 filed by Plaintiff USA (Knight, Ethan) (Entered: 10/23/2012)
237 First Motion in Limine by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 10/23/2012)
238 Proposed Jury Instructions by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 10/23/2012)
239 Exhibit List by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 10/23/2012)
240 Notice by USA as to Mohamed Osman Mohamud regarding Motion for Protective Order Pertaining to the Testimony of Undercover Employees at Trial 233 filed by Plaintiff USA Notification to Defendant of Ninth In Camera, Ex Parte, Under Seal Filing by the United States (Knight, Ethan) (Entered: 10/23/2012)

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241 Motion in Limine to Preclude Defendant from Arguing Impossibility As a Defense filed by USA as to Defendant Mohamed Osman Mohamud. (Knight, Ethan) (Entered: 10/23/2012)
242 Motion in Limine Regarding Cross-Examination on Issues Related to Recording Device filed by USA as to Defendant Mohamed Osman Mohamud. (Knight, Ethan) (Entered: 10/23/2012)
243 Motion in Limine Regarding Jury View of the Inert Bomb in the Van filed by USA as to Defendant Mohamed Osman Mohamud. (Knight, Ethan) (Entered: 10/23/2012)
244 Unopposed Motion for Order to File Government's Motion In Limine Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 10/23/2012)
246 ORDER Granting 227 Motion to File Second Defense Motion in Limine under seal as to Mohamed Osman Mohamud (1)Signed on 10/24/12, by Judge Garr M. King (schm) (Entered: 10/25/2012)
248 ORDER Granting 244 Motion To Seal Government's Motion in Limine as to Mohamed Osman Mohamud (1)Signed on 10/24/12, by Judge Garr M. King (schm) (Entered: 10/25/2012)
250 Unopposed Motion to file Reply to the Government's Response to Defendant's Motion to Clarify Order for Inspection of Recording, Transmitting, and Receiving Devices Used On July 30, 2010, Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 10/26/2012)
251 THIS DOCUMENT IS STRICKEN FROM THE RECORD, see administrative correction to the record document #252. ORDER Granting Unopposed Motion to file Reply to the Government's Response to Defendant's Motion to Clarify Order for Inspection of Recording, Transmitting, and Receiving Devices Used On July 30, 2010 250 as to Mohamed Osman Mohamud (1). Reply is due by 11/2/2012.Ordered by Judge Garr M. King. (pc) Modified on 10/30/2012 to add text. (schm). (Entered: 10/29/2012)
252 Administrative Correction of the Record: A clerical error pursuant to Fed. R. Crim. P 36 has been discovered in the case record and the Clerk is directed to make the following administrative corrections to the record and to notify all parties accordingly: Minute Order 251 was docketed in error and is STRICKEN from the record. Ordered by Judge Garr M. King. (pc) (Entered: 10/29/2012)

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253 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Produce 194 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 10/29/2012)
254 Order as to Mohamed Osman Mohamud Granting Unopposed Motion to file Reply to the Government's Response to Defendant's Motion to Clarify Order for Inspection of Recording, Transmitting, and Receiving Devices Used On July 30, 2010, 250 Under Seal 250 filed by Defendant Mohamed Osman Mohamud by Judge Garr M. King signed on 10/29/12. (schm) (Entered: 10/29/2012)
256 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion to Produce 194 (Sady, Stephen) (Entered: 10/31/2012)
257 Notice by USA as to Mohamed Osman Mohamud regarding Response to Motion 253 filed by Plaintiff USA Notification to Defendant of Tenth In Camera, Ex Parte, Under Seal Filing by the United States (Knight, Ethan) (Entered: 11/05/2012)
258 Notice by USA as to Mohamed Osman Mohamud Notification to Defendant of Eleventh In Camera, Ex Parte, Under Seal Filing by the United States (Knight, Ethan) (Entered: 11/05/2012)
259 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motions Hearing as to Defendant Mohamed Osman Mohamud for date of September 24, 2012 before Judge Garr M. King, Court Reporter Amanda M. LeGore, telephone number 503-326-8184. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 11/16/2012. Redaction Request due 11/29/2012. Redacted Transcript Deadline set for 12/10/2012. Release of Transcript Restriction set for 2/7/2013. (LeGore, Amanda) (Entered: 11/05/2012)
260 Unopposed Motion to File Fourth Supplement to Suppression and Discovery Motions Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 11/06/2012)
261 Unopposed Motion to File Response to Government's Motion In Limine Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 11/06/2012)
262 Objections to 234 filed by USA as to Mohamed Osman Mohamud (Government's Response and Opposition to Issues Raised in Defendant's Trial Memorandum) (Knight, Ethan) (Entered: 11/06/2012)

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263 Objections to 238 filed by USA as to Mohamed Osman Mohamud (Government's Objections to Defendant's Proposed Jury Instructions) (Knight, Ethan) (Entered: 11/06/2012)
264 Objections to 239 filed by USA as to Mohamed Osman Mohamud (Government's Objections to Defendant's Tentative Exhibits) (Knight, Ethan) (Entered: 11/06/2012)
265 Objections to 235 filed by USA as to Mohamed Osman Mohamud (Government's Objections to Defendant's Proffered Expert Witness Testimony) (Knight, Ethan) (Entered: 11/06/2012)
266 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion in Limine 237 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 11/06/2012)
267 Brief by Mohamed Osman Mohamud regarding Trial Brief 228 filed by Plaintiff USA (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Sady, Stephen) (Entered: 11/06/2012)
268 Response to Motion by Mohamed Osman Mohamud regarding Motion for Protective Order 233 filed by Plaintiff USA (Sady, Stephen) (Entered: 11/06/2012)
269 Response to Motion by Mohamed Osman Mohamud regarding Motion in Limine 241 filed by Plaintiff USA (Sady, Stephen) (Entered: 11/06/2012)
270 Response to Motion by Mohamed Osman Mohamud regarding Motion in Limine 242 filed by Plaintiff USA (Sady, Stephen) (Entered: 11/06/2012)
271 Response to Motion by Mohamed Osman Mohamud regarding Motion in Limine 243 filed by Plaintiff USA (Sady, Stephen) (Entered: 11/06/2012)
272 Scheduling Order as to Mohamed Osman Mohamud (1). A two-day Daubert Hearing is set for 11/28/2012 and 11/29/2012 at 09:00AM in Courtroom 15A before Judge Garr M. King. Ordered by Judge Garr M. King. (pc) (Entered: 11/07/2012)
273 ORDER Granting 261 Motion to file Under Seal Defendant's Response to Government's Motion in Limine as to Mohamed Osman Mohamud (1)Signed on 11/7/12, by Judge Garr M. King (schm) Modified on 11/8/2012, to change file date. (schm). (Entered: 11/08/2012)
275 ORDER Granting 260 Motion to file Fourth Supplement to Suppression and Discovery Motions Under Seal as to Mohamed Osman Mohamud (1)Signed on 11/7/12, by Judge Garr M. King (schm) (Entered: 11/08/2012)

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277 Unopposed Motion for Order to File Government's Response to Defendant's Reply to Government's Response to Defendant's Motion to Clarify Order for Inspection Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 11/13/2012)
278 Response to 262 by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 11/13/2012)
279 Response to 263 by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 11/13/2012)
280 Response to 264 by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 11/13/2012)
281 Response to 265 by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 11/13/2012)
282 Response to 266 by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 11/13/2012)
283 Motion to Take Daubert Hearing Testimony Remotely by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 11/13/2012)
284 Response to 267 by USA, Mohamed Osman Mohamud (Government's Reply to Defendant's Response to Government's Trial Documents) (Knight, Ethan) (Entered: 11/13/2012)
285 Motion for Order to File Exhibits to Government's Reply to Defendant's Response to Government's Trial Documents Under Seal re Response (Generic) 284 filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 11/13/2012)
286 Response to 267 , 269 by USA, Mohamed Osman Mohamud (Government's Reply with Respect to Parties' Proposed Jury Instructions) (Knight, Ethan) (Entered: 11/13/2012)
287 Response to 267 by USA, Mohamed Osman Mohamud (Government's Reply to Defendant's Objections to Expert Evan Kohlmann's Proffered Testimony) (Knight, Ethan) (Entered: 11/13/2012)
288 Reply to Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Protective Order Pertaining to the Testimony of Undercover Employees at Trial 233 (Knight, Ethan) (Entered: 11/13/2012)
289 Reply to Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion in Limine Regarding Jury View of the Inert Bomb in the Van 243 (Knight, Ethan) (Entered: 11/13/2012)

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290 Unopposed Motion for Order to File Government's Reply to Defendant's Response to Government's Motion In Limine Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 11/13/2012)
291 Minutes of Proceedings: In Camera, ex parte under seal hearing held on November 14, 2012 before United States District Judge Garr M. King with the United States pursuant to Section 4 of the Classified Information Procedures Act, 18 U.S.C. App III ("CIPA"). Counsel Present for Plaintiff: Ethan D. Knight, Pamala Holsinger, Jolie F. Zimmerman.(Court Reporter Nancy Walker) (pc) (Entered: 11/14/2012)
292 ORDER Granting 285 Motion to Seal Exhibits to Government's Reply to Defendant's Response to Government's Trial Documents as to Mohamed Osman Mohamud (1)Signed on 10/14/12, by Judge Garr M. King (schm) (Entered: 11/15/2012)
294 ORDER Granting 290 Government's Reply to Defendant's Response to Government's Motion in Limine filed under seal as to Mohamed Osman Mohamud (1).Signed on 11/14/12. by Judge Garr M. King (schm) (Entered: 11/15/2012)
296 ORDER Granting 277 Motion to Seal Government's Response to Defendant's Reply to Government's Response to Defendant's Motions to Clarify Order for Inspection as to Mohamed Osman Mohamud (1) filed by AUSA Ethan KnightSigned on 11/14/12. by Judge Garr M. King (schm) (Entered: 11/15/2012)
299 Minutes of Proceedings: Argument was held on Defendants Request for Production of Case File and Other Potential Jencks Act Material 194 . The court discussed the scope of Jencks statements. The motion is granted to the extent the government will finish reviewing emails for Jencks material and produce what falls within the courts ruling by November 28, 2012. The court was then cleared for the argument of some sealed motions. Ethan D. Knight, Pamala Holsinger and Kent Robinson present as counsel for plaintiff(s). Steven Sady and Steven Wax present as counsel for defendant(s). (Court Reporter Nancy Walker.) (pc) (Entered: 11/15/2012)
300 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Order 283 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 11/16/2012)
301 Motion to File First CIPA Notice Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 11/16/2012)

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303 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion to Take Daubert Hearing Testimony Remotely 283 (Sady, Stephen) (Entered: 11/19/2012)
304 Unopposed Motion for Order to File Government's Brief on Defense Investigation Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 11/19/2012)
306 ORDER Granting 301 Motion for First CIPA Notice to be Filed Under Seal as to Mohamed Osman Mohamud (1)Signed on 11/19/12, by Judge Garr M. King (schm) (Entered: 11/20/2012)
305 Minutes of Proceedings: Telephone Conference held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Status of case discussed as stated on the record. ORDER - Granting Motion to Take Daubert Hearing Testimony Remotely From Afghanistan 283 ; Setting further Pretrial Conference for 12/19/2012 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King; Setting a continued Daubert Hearing for 11/30/2012 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Steven Sady and Steven Wax present as counsel for defendant(s). (Court Reporter Nancy Walker.) (pc) (Entered: 11/20/2012)
310 ORDER Granting 304 Motion to Seal Government's Brief on Defense Investigation as to Mohamed Osman Mohamud (1)Signed on 11/20/12, by Judge Garr M. King (schm) (Entered: 11/26/2012)
308 Supplemental Notice as to Mohamed Osman Mohamud Supplement to Notice Re Defense Expert Witnesses and Summaries (Attachments: # 1 Attachment) (Sady, Stephen) (Entered: 11/21/2012)
309 Motion to Quash Defendant's Subpoena for Records of Evan Kohlmann filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Exhibit 1) (Knight, Ethan) (Entered: 11/26/2012)
312 Motion for Expert Witness Disclosures Under Rule 16(b)(1)(C) filed by USA as to Defendant Mohamed Osman Mohamud. (Knight, Ethan) (Entered: 11/26/2012)
315 Unclassified Order Approving Deletion of the Names of the Undercover Employees from Discovery Pursuant to CIPA Section 4 and Federal Rule of Criminal Procedure 16(d)(1) as to Mohamed Osman Mohamud by Judge Garr M. King signed on 11/27/12. (schm) (Entered: 11/27/2012)

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316 Response to Motion by Mohamed Osman Mohamud regarding Motion to Quash 309 filed by Plaintiff USA (Sady, Stephen) (Entered: 11/27/2012)
317 Motion to Preclude Testimony of Operatives or, in the Alternative, to Dismiss the Indictment Based on the Unclassified Order Approving Deletion of the Names of the Undercover Employees from Discovery by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 11/27/2012)
318 Scheduling Order as to Mohamed Osman Mohamud (1). Order - Setting a Daubert Hearing for 11/28/2012 at 09:00AM in Portland Courtroom 15A before Judge Garr M. King. Ordered by Judge Garr M. King. (pc) (Entered: 11/28/2012)
319 Minutes of Proceedings: Daubert Hearing held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witness Evan F. Kohlmann sworn and evidence adduced. Government's exhibits 1 and 2, and Defendant's exhibits 101 and 102 are received in evidence for the purposes of the Daubert Hearing. ORDER - Granting Motion to Quash Defendant's Subpoena for Records of Evan Kohlmann 309 ; Deferring Ruling on Motion for Expert Witness Disclosures Under Rule 16(b)(1)(C) 312 ; Denying Motion to Preclude Testimony of Operatives or, in the Alternative, to Dismiss the Indictment Based on the Unclassified Order Approving Deletion of the Names of the Undercover Employees from Discovery 317 ; ORDER - Daubert Hearing is continued to 11/29/2012 at 09:00AM in Portland Courtroom 15A before Judge Garr M. King. Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Steven Sady and Steven Wax present as counsel for defendant(s). (Court Reporter Nancy Walker.) (pc) (Entered: 11/28/2012)
320 Minutes of Proceedings: Daubert Hearing held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witnesses Dr. Vitaly Moghaddan and Dr. Elizabeth Cauffman sworn and evidence adduced. Defendant's exhibits 103, 104 and 105 marked and received in evidence for purposes of the Daubert Hearing. ORDER - Government's oral motion to have Dr. Moghaddan returned for further cross examination on his expertise in terrorism is granted. The parties are to confer and decide on a date for Dr. Moghaddan's return. ORDER - Continued Daubert Hearing set for 11/30/2012 at 08:30AM in Courtroom 15A. Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax and Stephen R. Sady.(Court Reporter Nancy Walker) (pc) (Entered: 11/29/2012)
321 Minutes of Proceedings: Daubert Hearing held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witness Mark S. Sageman

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sworn and evidence adduced. See Clerk's Exhibit and Witness List.. ORDER - Government's Motion 312 denied as Moot. All pending matters are under advisement this date. ORDER - The 12/4/2012 Pretrial Conference is STRICKEN. The 12/19/2012 Pretrial Conference will remain as set. With the agreement of the parties, the 15-day Jury trial is now set to begin 1/10/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King.Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax and Stephen R. Sady.(Court Reporter Nancy Walker) (pc) (Entered: 11/30/2012)
322 Clerk's List of Witnesses and Exhibits as to Mohamed Osman Mohamud (1). (pc) (Entered: 12/03/2012)
323 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion hearing as to Defendant Mohamed Osman Mohamud for date of November 14, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. NOTE: THIS DOCUMENT HAS BEEN FILED UNDER SEAL (Walker, Nancy) (Entered: 12/03/2012)
324 Unopposed Motion to File Supplement to Motion to Clarify Order for Inspection of Recording, Transmitting, and Receiving Devices Used on July 30, 2010, Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Sady, Stephen) (Entered: 12/05/2012)
325 ORDER Granting 324 Supplement to Motion to Clarify Order for Inspection of Recording, Transmitting, and Receiving Devices Used on July 30, 2010, filed under seal as to Mohamed Osman Mohamud (1)Signed on 12/6/12, by Judge Garr M. King (schm) (Entered: 12/06/2012)
327 Unopposed Motion for Order to File Government's Supplemental Response to Defendant's Motion to Clarify Order for Inspection of Recording and Transmitting Devices Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 12/11/2012)
328 Scheduling Order as to Mohamed Osman Mohamud (1). ORDER - A Continuance of the 11/30/2012 Daubert Hearing set for 1/3/2013 at 09:30AM in Portland Courtroom 9A before Judge Garr M. King. Ordered by Judge Garr M. King. (pc) (Entered: 12/11/2012)
329 ORDER Granting 327 Motion to Seal as to Mohamed Osman Mohamud (1). IT IS HEREBY ORDERED that the Government's Supplemental Response to Defendant's Motion to Clarify Order for Inspection of Recording and Transmitting Devices, declaration in support thereof, the

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proposed order, and any order issued therefrom, shall be filed under seal Signed on 12/11/12, by Judge Garr M. King (schm) (Entered: 12/12/2012)
332 Clerk's Notice of Mailing as to Mohamed Osman Mohamud regarding Sealed Order 331 .Copy of order sent to AUSA, Ethan Knight and AFPD, Stephen Sady on this date. (schm) (Entered: 12/12/2012)
333 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Daubert hearing, Day 1, as to Defendant Mohamed Osman Mohamud for date of November 28, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/26/2012. Redaction Request due 1/7/2013. Redacted Transcript Deadline set for 1/17/2013. Release of Transcript Restriction set for 3/18/2013. (Walker, Nancy) (Entered: 12/14/2012)
334 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Daubert hearing, Day 2, as to Defendant Mohamed Osman Mohamud for date of November 29, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-326-8186) through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/26/2012. Redaction Request due 1/7/2013. Redacted Transcript Deadline set for 1/17/2013. Release of Transcript Restriction set for 3/18/2013. (Walker, Nancy) (Entered: 12/14/2012)
335 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Daubert hearing, Day 3, as to Defendant Mohamed Osman Mohamud for date of November 30, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/26/2012. Redaction Request due 1/7/2013. Redacted Transcript Deadline set for 1/17/2013. Release of Transcript Restriction set for 3/18/2013. (Walker, Nancy) (Entered: 12/14/2012)

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336 Motion For Discovery Order And Renewed Motion To Withdraw The October 22, 2012, Opinion And Order Denying Non-FISA Suppression Motion Based On Violation Of Jencks And Brady Obligations by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 12/14/2012)
337 Brief by Mohamed Osman Mohamud Summarizing Evidence Objections (Attachments: # 1 Exhibit Gov't Exhibit List With Defense Objections) (Hay, Lisa) NOTE: The clerk's office has confirmed with defense counsel that the last two pages of the exhibits attached to this entry are intentionally blank. (eo) (Entered: 12/14/2012)
338 ORDER - Government's Response to First Defense CIPA Notice 301 is due by December 28, 2012; No Reply. Government's Response to defendant's Motion for Discovery Order, etc. 336 is due by December 28, 2012; No Reply. A second Pretrial Conference session is set for 1/8/2013 at 09:30AM in Portland Courtroom 9A before Judge Garr M. King. Ordered by Judge Garr M. King. (pc) (Entered: 12/17/2012)
339 Notice as to Mohamed Osman Mohamud Acknowledgment Regarding Protective Orders (Attachments: # 1 Attachment) (Sady, Stephen) (Entered: 12/18/2012)
340 Minutes of Proceedings:Pretrial Conference held before Judge Garr M. King as to Mohamed Osman Mohamud (1). ORDER - Granting Motion for Protective Order 233 ; Denying in Part Deferring in Part First Motion in Limine 237 ; Granting Motion in Limine 241 as stated on the record; Finding as Moot Motion in Limine 242 but may be renewed if necessary; Granting Motion in Limine 243 . Defendant's request for additional discovery concerning all of his phone calls, text messages, emails, government monitoring of defendant, additional government informants and operatives, and placement on the no-fly list is denied. The government will continue its Henthorne review. ORDER - This Pretrial Conference will continue as previously scheduled on 1/3/2012 at 09:30AM in Courtroom 9A before Judge Garr M. King. Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Stephen R. Sady and Steven T. Wax present as counsel for defendant(s). (Court Reporter Nancy Walker.) (pc) (Entered: 12/19/2012)
341 Protective Order Pertaining to the Testimony of Undercover Employees at Trial as to Mohamed Osman Mohamud by Judge Garr M. King signed on 12/19/12. (schm) (Entered: 12/21/2012)
343 Unopposed Motion for Order to File Government's Response to Defendant's CIPA Section 5 Notice Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 12/28/2012)

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344 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Order, 336 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 12/28/2012)
345 ORDER as to Mohamed Osman Mohamud. At the Government's request, the 1/3/2013 continued Daubert hearing is STRICKEN. Ordered by Judge Garr M. King. (mr) (Entered: 12/28/2012)
347 ORDER TO SEAL Government's Response to Defendant's CIPA § 5 Notice as to Mohamed Osman Mohamud (1). Signed on December 28, 2012 by Judge Garr M. King. (eo) (Entered: 12/31/2012)
348 Government's Response to Defendant's CIPA § 5 Notice. (FILED UNDER SEAL) (eo) (Entered: 12/31/2012)
346 Motion to Suppress the Fruits of Computer Searches Conducted After The Warrant's 120-Day Authorization To Search by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Exhibit Report, # 2 Exhibit Search Warrant and Attachment) (Sady, Stephen) (Entered: 12/29/2012)
349 Second Exhibit List by USA as to Mohamed Osman Mohamud (Knight, Ethan) (Entered: 12/31/2012)
350 Second Exhibit List by Mohamed Osman Mohamud (Hay, Lisa) (Entered: 01/01/2013)
352 Minute Order as to Mohamed Osman Mohamud. Information about courtroom logistics. Standing in Courtroom 9A will not be allowed. A limited number of media passes for Courtroom 9A will be available on a daily, first come first served basis at the entrance to the courtroom. During jury selection on the first day of trial, there will be no seats available in Courtroom 9A for anyone other than jurors. Audio and video of the trial will be available in an overflow courtroom, Courtroom 12A, which will be open to the public throughout the trial, including during jury selection. Ordered by Judge Garr M. King. (mja) (Entered: 01/03/2013)
353 Scheduling Order as to Mohamed Osman Mohamud. Order - Resetting the TIME set for the Pretrial Conference from 1/8/2013 at 9:30AM to 1/8/2013 at 9:00AM in Portland, Courtroom 9A, before Judge Garr M. King. Ordered by Judge Garr M. King. (mja) (Entered: 01/03/2013)
354 Objection to Trial Exhibit by Mohamed Osman Mohamud Objection To Government's Second Exhibit List (Attachments: # 1 Attachment Cross Reference of Gov't Old and New Exhibits) (Hay, Lisa) (Entered: 01/04/2013)

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355 Opinion and Order as to Mohamed Osman Mohamud signed on 1/4/13, by Judge Garr M. King. (schm) (Entered: 01/04/2013)
356 Objections to 350 filed by USA as to Mohamed Osman Mohamud (Government's Renewed Objection to Defendant's Introduction of Audio "Outtakes") (Knight, Ethan) (Entered: 01/07/2013)
357 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Suppress, 346 filed by Defendant Mohamed Osman Mohamud (Attachments: # 1 Exhibit 1) (Knight, Ethan) (Entered: 01/07/2013)
358 Declaration by Evan Kohlmann regarding Response to Motion 357 filed by Plaintiff USA (Knight, Ethan) (Entered: 01/07/2013)
359 Declaration by Jeremy Springer regarding Response to Motion 357 filed by Plaintiff USA (Knight, Ethan) (Entered: 01/07/2013)
360 Unopposed Motion for Order to File Under Seal Exhibit 1 to the Government's Response to Defendant's Motion to Suppress Fruits of Computer Searches filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 01/07/2013)
361 ORDER - Exhibits 1, 2, 101, and 102 from the Daubert hearings were returned to counsel to be retained for possible appeal. Ordered by Judge Garr M. King. (pc) (Entered: 01/07/2013)
362 Third Motion in Limine To Exclude "Course of the Investigation" Testimony by Defendant Mohamed Osman Mohamud. (Hay, Lisa) (Entered: 01/07/2013)
363 Minutes of Proceedings: Status Conference to discuss the jury selection process held before Judge Garr M. King as to Mohamed Osman Mohamud (1).Counsel Present for Plaintiff: Ethan D. Knight, Pamala Holsinger and Ryan Dwyer.Counsel Present for Defendant: Steven T. Wax, Lisa Hay and Stephen R. Sady.(Court Reporter Nancy Walker) (pc) Modified on 1/8/2013 to reflect the actual hearing date of 1/7/13. (pc). (Entered: 01/08/2013)
380 Order as to Mohamed Osman Mohamud granting Unopposed Motion for Order to File Under Seal Exhibit 1 to the Government's Response to Defendant's Motion to Suppress Fruits of Computer Searches 360 filed by Plaintiff USA signed on 1/7/13 by Judge Garr M. King. (schm) (Entered: 01/14/2013)
365 Scheduling Order as to Mohamed Osman Mohamud (1). A continuation of the 1/8/2013 Pretrial Conference is set for 1/9/2013 at 12:30PM in

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Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pc) (Entered: 01/08/2013)
366 Minutes of Proceedings: Continued Pretrial Conference held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Evidentiary issues discussed as stated on the record. ORDER - Denying Motion to Suppress 346 ; Denying Motion in Limine 362 ; and Denying Motion 336 as to Mohamed Osman Mohamud (1). ORDER - Pretrial Conference is continued to 1/9/2013 at 12:30PM in Courtroom 9A before Judge Garr M. King. Ethan D. Knight, Pamala Holsinger and Ryan Dwyer present as counsel for plaintiff(s). Stephen R. Sady and Steven T. Wax present as counsel for defendant(s). (Court Reporter Nancy Walker.) (pc) Modified on 1/9/2013 to correct the date of hearing to show 1/8/2013(pc). (Entered: 01/09/2013)
367 AMENDED Minutes of Proceedings: Continued Pretrial Conference held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Evidentiary issues discussed as stated on the record. ORDER - Denying Motion to Suppress 346 ; Denying Motion in Limine 362 ; and Denying Motion 336 as to Mohamed Osman Mohamud (1). ORDER - Pretrial Conference is continued to 1/9/2013 at 12:30PM in Courtroom 9A before Judge Garr M. King. Ethan D. Knight, Pamala Holsinger and Ryan Dwyer present as counsel for plaintiff(s). Stephen R. Sady, Lisa Hay and Steven T. Wax present as counsel for defendant(s). (Court Reporter Nancy Walker.) Ordered by Judge Garr M. King. (pc) (Entered: 01/09/2013)
368 Response by Mohamed Osman Mohamud to Government Objection to Exhibits (Hay, Lisa) (Entered: 01/09/2013)
369 Motion for Clarification of Ruling on Government Exhibit 80 and Further Objection by Defendant Mohamed Osman Mohamud. (Hay, Lisa) (Entered: 01/09/2013)
370 Minutes of Proceedings: Continued Pretrial Conference held before Judge Garr M. King as to Mohamed Osman Mohamud (1). ORDER Granting Motion for Clarification of Ruling on Government Exhibit 80 and Further Objection 369 as stated on the record. ORDER - Parties to arrive promptly at 9:00AM to Courtroom 9A on Thursday, 1/10/2013 to begin the 15-day Jury Trial before Judge Garr M. King. Ethan D. Knight and Ryan Bounds present as counsel for plaintiff(s). Stephen R. Sady, Lisa Hay, Steven T. Wax present as counsel for defendant(s). (Court Reporter Nancy Walker.) (pc) (Entered: 01/09/2013)
371 Notice of Attorney Appearance Kelly Alexandre Zusman appearing for USA (Zusman, Kelly) (Entered: 01/09/2013)

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372 Motion for Discovery Pursuant to Court Order of January 9, 2013 by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 01/10/2013)
373 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Pretrial conference as to Defendant Mohamed Osman Mohamud for date of December 19, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. NOTE: THIS DOCUMENT HAS BEEN FILED UNDER SEAL (Walker, Nancy) (Entered: 01/10/2013)
374 REDACTED TRANSCRIPT OF PROCEEDINGS FILED as to Defendant Mohamed Osman Mohamud for date of December 19, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. (Walker, Nancy) (Entered: 01/10/2013)
375 Minutes of Proceedings: Record of first day of Jury Trial held before Judge Garr M. King. Voir Dire conducted. ORDER - Voir Dire to continue on Friday, January 11, 2013 at 09:00AM in Courtroom 9A before Judge Garr M. King.Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax, Stephen R. Sady and Lisa Hay.(Court Reporter Jill Erwin (a.m.), Nancy Walker (p.m.)) (pc) (Entered: 01/10/2013)
376 Minutes of Proceedings: Jury Trial - Day 2 held before Judge Garr M. King. Voir Dire concluded. Written Challenges for Cause to be filed under seal. Twelve jurors and 4 alternate jurors empaneled and sworn. Jury Trial begins. Plaintiff's opening statement given. Defendant's opening statement given. Court adjourns. Jury excused. Court will reconvene on Monday, January 14, 2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. Juror coffee services provided by Cafe Today North LLC.Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax, Stephen R. Sady and Lisa Hay.(Court Reporter Nancy Walker) (pc) (Entered: 01/11/2013)
377 ORDER - Hotel and per diem are authorized for Alternate Juror #1 during the pendency of this trial. Ordered by Judge Garr M. King. (pc) (Entered: 01/11/2013)
378 Motion to Dismiss , Or, In the Alternative, Discovery Order Based on Brady Material Provided on January 12, 2013 by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 01/13/2013)

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379 Motion for Hearing on Preliminary Questions Pursuant To Rule 104 by Defendant Mohamed Osman Mohamud. (Hay, Lisa) (Entered: 01/14/2013)
382 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Sealed Proceedings as to Defendant Mohamed Osman Mohamud for date of September 24, 2012 before Judge Garr M. King, Court Reporter Amanda M. LeGore, telephone number 503-326-8184. NOTE: THIS DOCUMENT HAS BEEN FILED UNDER SEAL (LeGore, Amanda) (Entered: 01/14/2013)
383 Minutes of Proceedings: Jury Trial - Day 3 - held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witnesses sworn and evidence adduced. Jurors excused for the evening. ORDER - Jury Trial to continue Tuesday, 1/15/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King.Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax, Stephen R. Sady and Lisa Hay.(Court Reporter Nancy Walker (a.m.), Jill Erwin (p.m.)) (pc) (Entered: 01/14/2013)
384 Minutes of Proceedings: Jury Trial - Day 4 - held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Evidence adduced. ORDER - Finding as Moot, Motion for Hearing on Preliminary Questions Pursuant To Rule 104 379 based on the stipulation of the parties. Jury excused for the evening. Jury Trial will continue Wednesday, 1/16/2013 at 09:30AM in Courtroom 9A before Judge Garr M. King. Juror coffee services provided by Cafe Today North LLC. Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Stephen R. Sady, Steven T. Wax and Lisa Hay present as counsel for defendant(s). (Court Reporter Nancy Walker (a.m.), Jill Erwin (p.m.).) (pc) (Entered: 01/15/2013)
385 Motion for a Partial Closure Order filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Attachment USMS Report dated January 15, 2013) (Williams, Billy) (Entered: 01/16/2013)
386 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Dismiss 378 filed by Defendant Mohamed Osman Mohamud, Motion for Discovery 372 filed by Defendant Mohamed Osman Mohamud (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Knight, Ethan) (Entered: 01/16/2013)
387 Notice by USA as to Mohamed Osman Mohamud (Notification to Defendant of Twelfth In Camera, Ex Parte, Under Seal Filing by the United States) (Knight, Ethan) (Entered: 01/16/2013)
388 Supplemental Motion for Partial Closure Order re Motion for a Partial Closure Order 385 filed by USA as to Defendant Mohamed Osman

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Mohamud. (Attachments: # 1 Attachment USMS Revised Report (Incident 1-15-2013)) (Williams, Billy) (Entered: 01/16/2013)
389 Minutes of Proceedings: Jury Trial - Day 5 - held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witnesses sworn and evidence adduced.Jury excused for the evening. Jury Trial to continue 1/17/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. Juror coffee services provided by Cafe Today North LLC.Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax, Stephen R. Sady and Lisa Hay.(Court Reporter Nancy Walker (a.m.), Jill Erwin (p.m.)) (pc) (Entered: 01/16/2013)
393 PARTIAL CLOSURE ORDER regarding Ms. Saba Ahmed as to Mohamed Osman Mohamud (1)signed on 1/16/13 by Chief Judge Ann L. Aiken. (kf) Modified on 1/18/2013 file date to match signature date (kf). (Entered: 01/18/2013)
390 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion to Dismiss , Or, In the Alternative, Discovery Order Based on Brady Material Provided on January 12, 2013 378 (Sady, Stephen) (Entered: 01/17/2013)
391 Objections by Mohamed Osman Mohamud to Government Exhibit 22535 (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Sady, Stephen) (Entered: 01/17/2013)
392 Minutes of Proceedings: Jury Trial - Day 6 - held before Judge Garr M. King as to Mohamed Osman Mohamud (1); ORDER - Denying Motion for Discovery 372 and Motion to Dismiss 378 as stated on the record. Evidence adduced. Jury dismissed for the evening. Jury Trial to continue on Friday, 1/18/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. Juror coffee services provided by Cafe Today North LLC. Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Stephen R. Sady, Steven T. Wax and Lisa Hay present as counsel for defendant(s). (Court Reporter Jill Erwin (a.m.), Nancy Walker (p.m.).) (pc) (Entered: 01/17/2013)
394 Minutes of Proceedings: Jury Trial - Day 7 - held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Evidence adduced. Jury View conducted. Jury excused for the evening. ORDER - Jury Trial to continue Tuesday, 1/22/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. Juror coffee services provided by Cafe Today North LLC. Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax, and Stephen R. Sady and Lisa Hay.(Court Reporter Jill Erwin (a.m.), Nancy Walker (p.m.)) (pc) (Entered: 01/18/2013)

01/21/2013 01/22/2013 01/22/2013 01/22/2013 01/22/2013 01/22/2013 01/23/2013 01/23/2013

395 Motion for Ruling on Admissibility of Email Marked as both Government 225(10) and Defense Exhibit 1002 by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Attachment) (Sady, Stephen) (Entered: 01/21/2013)
396 Motion for Discovery Regarding Witness Testimony about Pre-Meeting and Post-Meeting Debriefings and any Instructions Regarding Termination of the Investigation by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 01/22/2013)
397 Scheduling Order as to Mohamed Osman Mohamud (1). With the agreement of the parties, trial for today, 1/22/2013, is canceled. The Jury Trial will reconvene on 1/23/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pc) (Entered: 01/22/2013)
398 ORDER - The court orders that the Juror Questionnaires be filed under seal, but are to remain electronically accessible to counsel of record and court staff only. Ordered by Judge Garr M. King. (pc) (Entered: 01/22/2013)
399 Unopposed Motion for Order to File Government's Motion In Limine Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 01/22/2013)
400 ORDER Granting 399 Motion to File Government's Motion in Limine Under Seal as to Mohamed Osman Mohamud (1)Signed on 1/22/13 by Judge Garr M. King. (schm) (Entered: 01/23/2013)
402 Juror Questionnaires A-B. (FILED UNDER SEAL) (Attachments: # 1 Questionnaires C-D, # 2 Questionnaires E-G, # 3 Questionnaires HJ, # 4 Questionnaires K-M, # 5 Questionnaires Mc-P, # 6 Questionnaires Q-R, # 7 Questionnaires S, # 8 Questionnaires T-Z) (sm) (Entered: 01/23/2013)
403 Minutes of Proceedings: Jury Trial - Day 8 - held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witnesses sworn and evidence adduced. Alternate Juror #1 excused. ORDER - Granting Motion for Ruling on Admissibility of Email Marked as both Government 225(10) and Defense Exhibit 1002 395 ; and Denying Motion for Discovery Regarding Witness Testimony about Pre-Meeting and Post-Meeting Debriefings and any Instructions Regarding Termination of the Investigation 396 . Jury excused for the evening. Jury Trial to continue Thursday, 1/24/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King.). Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Stephen R. Sady, Steven T. Wax and Lisa Hay present as counsel for defendant(s). (Court

01/24/2013 01/24/2013 01/25/2013 01/25/2013 01/25/2013
01/28/2013 01/28/2013
01/29/2013

Reporter Nancy Walker (a.m.), Jill Erwin (p.m.).) (pc) (Entered: 01/23/2013)
404 Motion to File Preliminary Response to Government's Motion In Limine Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Hay, Lisa) (Entered: 01/24/2013)
408 ORDER Granting 404 Motion to file Defendant's Preliminary Response to Government's Motion in Limine as to Mohamed Osman Mohamud (1)Signed on 1/24/13 by Judge Garr M. King. (schm) (Entered: 01/25/2013)
406 Motion for Reconsideration of Ruling on Admissibility of Defense Exhibit 1013 by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Attachment Defense Exhibit 1013) (Hay, Lisa) (Entered: 01/25/2013)
407 Motion For Limiting Instructions by Defendant Mohamed Osman Mohamud. (Hay, Lisa) (Entered: 01/25/2013)
410 Minutes of Proceedings: Jury Trial - Day 10 - held before Judge Garr M. King as to Mohamed Osman Mohamud (1); Witnesses sworn and evidence adduced. ORDER - Denying Motion for Reconsideration of Ruling on Admissibility of Defense Exhibit 1013 406 , and Granting Motion For Limiting Instructions 407 . Jury excused for the evening, Jury Trial to continue 1/28/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Stephen R. Sady, Steven T. Wax and Lisa Hay present as counsel for defendant(s). (Court Reporter Nancy Walker (a.m.), Jill Erwin (p.m.).) (pc) (Entered: 01/25/2013)
411 Motion for Offer of Proof for Defense Witness filed by USA as to Defendant Mohamed Osman Mohamud. (Knight, Ethan) (Entered: 01/28/2013)
412 Minutes of Proceedings: Jury Trial - Day 11 - held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witnesses sworn and evidence adduced. Government rests. Defense begins its case in chief; Jurors excused for the evening. Jury Trial to reconvene Tuesday, 1/29/2013 at 08:30AM in Portland Courtroom 9A before Judge Garr M. King.Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax, Stephen R. Sady and Lisa Hay.(Court Reporter Jill Erwin (a.m.), Nancy Walker (p.m.)) (pc) (Entered: 01/28/2013)
413 Proposed Jury Instructions by Mohamed Osman Mohamud (Attachments: # 1 Attachment) (Sady, Stephen) (Entered: 01/29/2013)

01/29/2013 01/29/2013 01/29/2013 01/29/2013 01/29/2013
01/29/2013 01/30/2013 01/30/2013

414 Motion Renewed Motion For Discovery and Motion for Remedial Action by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Wax, Steven) (Entered: 01/29/2013)
415 Motion to Permit Jury's Access During Deliberations to Recordings Admitted into Evidence filed by USA as to Defendant Mohamed Osman Mohamud. (Knight, Ethan) (Entered: 01/29/2013)
416 Memorandum in Opposition to Motion by USA as to Mohamed Osman Mohamud regarding Proposed Jury Instructions 413 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 01/29/2013)
417 Minutes of Proceedings: In Camera, ex parte under seal hearing held on January 29, 2013 before United States District Judge Garr M. King with the United States pursuant to Section 4 of the Classified Information Procedures Act, 18 U.S.C. App III ("CIPA"). Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.(Court Reporter Nancy Walker) (pc) (Entered: 01/29/2013)
418 Minutes of Proceedings: Jury Trial - Day 12 - held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Witnesses sworn and evidence adduced. The defendant's oral motion for Judgment of Acquittal is denied. ORDER - Motion for Offer of Proof for Defense Witness 411 is denied as moot based on defendant's written offer of proof provided on 1/29/2013; Renewed Motion for Discovery and Motion for Remedial Action 414 is denied; Motion to Permit Jury's Access During Deliberations to Recording Admitted into Evidence 415 is granted. Defense rests. The jury is excused for the evening. Jury Instructions and Closing Arguments to begin Wednesday, 1/30/2013 at 09:00AM in Courtroom 9A before Judge Garr M. King. Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Stephen R. Sady, Steven T. Wax and Lisa Hay present as counsel for defendant(s). (Court Reporter Jill Erwin (a.m.), Nancy Walker (p.m.).) (pc) (Entered: 01/29/2013)
426 Jury Instructions as to Mohamed Osman Mohamud (1). (pc) (Entered: 01/31/2013)
419 Motion To Admit Exhibits 1000 and 1003 by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Attachment Emails from 2009) (Hay, Lisa) (Entered: 01/30/2013)
420 Minutes of Proceedings: Jury Trial - Day 13 - held before Judge Garr M. King as to Mohamed Osman Mohamud (1). ORDER Denying Motion To Admit Exhibits 1000 and 1003 419 ; Jury instructed. Closing arguments given. Bailiff sworn. Alternate jurors discharged. Jury deliberations begin at 03:35PM. Jurors excused for the day. Jury

01/31/2013 01/31/2013 01/31/2013 01/31/2013
01/31/2013 01/31/2013 01/31/2013 01/31/2013 01/31/2013 02/14/2013

Deliberations to continue Thursday, 1/31/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. Ethan D. Knight and Pamala Holsinger present as counsel for plaintiff(s). Stephen R. Sady, Steven T. Wax and Lisa Hay present as counsel for defendant(s). (Court Reporter Jill Erwin (a.m.), Nancy Walker (p.m.).) (pc) (Entered: 01/30/2013)
421 Motion for Declaration of Mistrial by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 01/31/2013)
422 ORDER - Denying Motion for Declaration of Mistrial 421 as to Mohamed Osman Mohamud (1).Ordered by Judge Garr M. King. (pc) (Entered: 01/31/2013)
423 ORDER - The jury has informed the Court that they have reached a verdict in this case. The verdict will be read at 03:00PM in Courtroom 9A. Ordered by Judge Garr M. King. (pc) (Entered: 01/31/2013)
424 Minutes of Proceedings: Jury Trial - Day 14 - held before Judge Garr M. King as to Defendant Mohamed Osman Mohamud (1). Final day of jury deliberations. Twelve (12) juror lunches ordered from the Lotus Cafe. Jury advised Court that they have reached a verdict. The verdict of guilty read by the Court at 03:00PM. Jury members polled individually by the Court to confirm unanimous verdict. Jury discharged by the Court. (Verdict form and Jury Instructions to be filed separately.) ORDER: Sentencing is set for 5/14/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King. Counsel to retake possession of their own trial exhibits from the Court and to retain as necessary. Court adjourned. Counsel Present for Plaintiff: Ethan D. Knight and Pamala Holsinger.Counsel Present for Defendant: Steven T. Wax, Stephen R. Sady and Lisa Hay.(Court Reporter Nancy Walker) (pc) (Entered: 01/31/2013)
425 Clerk's List of Witnesses and Exhibits as to Mohamed Osman Mohamud (pc) (Entered: 01/31/2013)
427 Jury Verdict Unredacted Version Filed Under Seal as to Mohamed Osman Mohamud (pc) (Entered: 01/31/2013)
428 Jury Verdict as to Mohamed Osman Mohamud regarding Mohamed Osman Mohamud (1) Guilty on Count 1. (pc) (Entered: 01/31/2013)
429 Jury Notes Unredacted Version Filed Under Seal as to Mohamed Osman Mohamud (pc) (Entered: 01/31/2013)
430 Jury Notes as to Mohamed Osman Mohamud (1). (pc) (Entered: 01/31/2013)
431 Motion for Judgment of Acquittal by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 02/14/2013)

02/14/2013 02/20/2013 02/25/2013 03/12/2013 03/12/2013 03/14/2013 03/20/2013
03/20/2013

432 Motion for New Trial by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 02/14/2013)
433 Order rescinding the Partial Closure Order 393 signed on 1/16/2013 by Judge Aiken. (lg) (Entered: 02/20/2013)
434 ORDER - Responses to Motion for Judgment of Acquittal 431 , and Motion for New Trial 432 are due by 3/12/2013; Replies are due by 3/25/2013. The Court will schedule oral argument if necessary.Ordered by Judge Garr M. King. (pc) (Entered: 02/25/2013)
435 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Judgment of Acquittal 431 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 03/12/2013)
436 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for New Trial 432 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 03/12/2013)
437 Scheduling Order as to Mohamed Osman Mohamud (1). Due to a conflict in the Court's schedule, the 5/14/2013 Sentencing Hearing is STRICKEN, and re-set for 6/17/2013 at 09:00AM in Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pc) (Entered: 03/14/2013)
438 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Continued pretrial conference as to Defendant Mohamed Osman Mohamud for date of January 8, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-326-8186) through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
439 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 1 - Morning Session as to Defendant Mohamed Osman Mohamud for date of January 10, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript

03/20/2013 03/20/2013 03/20/2013 03/20/2013

Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)
440 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 3 - Afternoon Session as to Defendant Mohamed Osman Mohamud for date of January 14, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) Modified on 7/27/2015 (Erwin, Jill). (Entered: 03/20/2013)
441 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Continued pretrial conference as to Defendant Mohamed Osman Mohamud for date of January 9, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. NOTE: THIS DOCUMENT HAS BEEN FILED UNDER SEAL (Walker, Nancy) (Entered: 03/20/2013)
442 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 4 - Afternoon Session as to Defendant Mohamed Osman Mohamud for date of January 15, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)
443 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 5 - Afternoon Session as to Defendant Mohamed Osman Mohamud for date of January 16, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)

03/20/2013 03/20/2013 03/20/2013 03/20/2013

444 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 6 - Morning Session as to Defendant Mohamed Osman Mohamud for date of January 17, 2013 before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)
445 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 7 - Morning Session as to Defendant Mohamed Osman Mohamud for date of January 18, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)
446 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 8 - Afternoon Session as to Defendant Mohamed Osman Mohamud for date of January 23, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)
447 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 9 - Afternoon Session as to Defendant Mohamed Osman Mohamud for date of January 24, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)

03/20/2013 03/20/2013 03/20/2013 03/20/2013

448 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 10 - Afternoon Session as to Defendant Mohamed Osman Mohamud for date of January 25, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)3268191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)
449 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 11 - Morning Session as to Defendant Mohamed Osman Mohamud for date of January 28, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)
450 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 12 - Morning Session as to Defendant Mohamed Osman Mohamud for date of January 29, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)
451 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Redacted continued pretrial conference as to Defendant Mohamed Osman Mohamud for date of January 9, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-3268186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER-See Policy at ord.uscourts.gov., Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)

03/20/2013 03/20/2013 03/20/2013 03/20/2013

452 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 13 - Morning Session as to Defendant Mohamed Osman Mohamud for date of January 30, 2013, before Judge Garr M. King, Court Reporter Jill L. Erwin, telephone number (503)326-8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Erwin, Jill) (Entered: 03/20/2013)
453 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial, Day 1, afternoon session, as to Defendant Mohamed Osman Mohamud for date of January 10, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
454 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial, Day 2, morning session, as to Defendant Mohamed Osman Mohamud for date of January 11, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
455 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial, Day 2, afternoon session, as to Defendant Mohamed Osman Mohamud for date of January 11, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)

03/20/2013 03/20/2013 03/20/2013 03/20/2013

456 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 3, morning session, as to Defendant Mohamed Osman Mohamud for date of January 14, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-316-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
457 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 4, morning session, as to Defendant Mohamed Osman Mohamud for date of January 15, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporeter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
458 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 5, morning session, as to Defendant Mohamed Osman Mohamud for date of January 16, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
459 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 6, afternoon session, as to Defendant Mohamed Osman Mohamud for date of January 17, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)

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460 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 7, afternoon session, as to Defendant Mohamed Osman Mohamud for date of January 18, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
461 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 8, morning session, as to Defendant Mohamed Osman Mohamud for date of January 23, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Repoerter (503-326-81286) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
462 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 8, sealed proceedings, as to Defendant Mohamed Osman Mohamud for date of January 23, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. NOTE: THIS DOCUMENT HAS BEEN FILED UNDER SEAL (Walker, Nancy) (Entered: 03/20/2013)
463 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 9, morning session, as to Defendant Mohamed Osman Mohamud for date of January 24, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Repoerter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
464 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 10, morning session, as to Defendant Mohamed Osman Mohamud for date of January 25, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be

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viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
465 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 11, afternoon session, as to Defendant Mohamed Osman Mohamud for date of January 28, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
466 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 12, afternoon session, as to Defendant Mohamed Osman Mohamud for date of January 29, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
467 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 13, afternoon session, as to Defendant Mohamed Osman Mohamud for date of January 30, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporter (503-326-8186) or through PACER-See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
468 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Trial Day 14 as to Defendant Mohamed Osman Mohamud for date of January 31, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker,

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telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterward it may be obtained from the Court Reporter (503-326-8186) or through PACERSee Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/1/2013. Redaction Request due 4/15/2013. Redacted Transcript Deadline set for 4/25/2013. Release of Transcript Restriction set for 6/21/2013. (Walker, Nancy) (Entered: 03/20/2013)
469 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion for New Trial 432 (Sady, Stephen) (Entered: 03/25/2013)
470 OPINION AND ORDER - Defendant's Motion for Judgment of Acquittal After Jury Verdict 431 and Motion for a New Trial 432 are DENIED.Signed on 4/22/2013 by Judge Garr M. King. (pc) (Entered: 04/22/2013)
471 Scheduling Order as to Mohamed Osman Mohamud (1). ORDER - The 6/17/2013 Sentencing Hearing is STRICKEN, and re-set for 6/27/2013 at 09:30AM in Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pc) (Entered: 05/08/2013)
473 Motion to Continue / Reset Sentencing Date and Filing Deadline for Sentencing Memoranda filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 06/17/2013)
474 ORDER - Granting Motion to Continue / Reset Sentencing Date and Filing Deadline for Sentencing Memoranda 473 as to Mohamed Osman Mohamud (1). The 6/27/2013 Sentencing Hearing is STRICKEN, and re-set to 9/6/2013 at 09:30AM in Portland Courtroom 9A before Judge Garr M. King. Sentencing materials are due by 8/23/13. Ordered by Judge Garr M. King. (pc) (Entered: 06/24/2013)
475 Unopposed Motion for Order to File Government's Motion to Continue Sentencing Date Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Knight, Ethan) (Entered: 08/22/2013)
476 Amended Motion for Order to File Government's Motion to Continue Sentencing Date Under Seal filed by USA as to Defendant Mohamed Osman Mohamud. (Knight, Ethan) (Entered: 08/22/2013)
477 Sentencing Memorandum filed by USA as to Mohamed Osman Mohamud (Knight, Ethan) (Entered: 08/23/2013)
478 Sentencing Memorandum by Mohamed Osman Mohamud (Sady, Stephen) (Entered: 08/23/2013)

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479 ORDER Finding as Moot 475 Motion to Continue Sentencing Date as to Mohamed Osman Mohamud (1); Granting Under Seal Filing of 476 Motion to Continue Sentencing as to Mohamed Osman Mohamud (1)Signed on 8/26/13 by Judge Garr M. King. (schm) (Entered: 08/26/2013)
480 Notice by USA as to Mohamed Osman Mohamud (Notification to Defendant of Thirteenth In Camera, Ex Parte, Under Seal Filing by the United States) (Holsinger, Pamala) (Entered: 08/26/2013)
481 Unopposed Motion to File Response to Government's Motion to Continue Sentencing Date Under Seal by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 08/28/2013)
482 ORDER Granting 481 Motion to file Response to Government's Motion to Continue Sentencing Date Under Seal as to Mohamed Osman Mohamud (1) filed by Stephen Sady Signed on 8/28/13 by Judge Garr M. King. (schm) (Entered: 08/28/2013)
483 Response to Government's Motion to Continue Sentencing Date by Mohamed Osman Mohamud regarding Motion to Order 476 filed by Plaintiff USA, (FILED UNDER SEAL) (schm) (Entered: 08/28/2013)
485 Scheduling Order as to Mohamed Osman Mohamud (1). ORDER Granting Government's Motion to Reset Sentencing Date 484 . The 9/6/2013 Sentencing Hearing is STRICKEN, and reset for 12/18/2013 at 10:00AM in Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pc) (Entered: 08/28/2013)
486 Supplemental Notice by USA as to Mohamed Osman Mohamud FISA Notification (Knight, Ethan) (Entered: 11/19/2013)
487 Minutes of Proceedings: In Chambers Conference held before Judge Garr M. King as to Mohamed Osman Mohamud (1). The court anticipates motions to be filed based on the Government's Supplemental FISA Notification 486 . ORDER - the December 18, 2013 sentencing hearing is STRICKEN. A discovery motion may be filed by January 13, 2014, response by February 13, 2014 and reply by February 27, 2014. Substantive motions may be filed by April 4, 2014, responses by May 2, 2014 and replies by May 16, 2014. If sentencing remains appropriate, the court will reset the sentencing hearing after it rules on the anticipated motions. Counsel Present for Plaintiff: Ethan D. Knight, Pamala Holsinger and Kent Robinson.Counsel Present for Defendant: Steve Sady and Lisa Hay.(Court Reporter none) (pc) (Entered: 11/26/2013)
488 Motion for Discovery Regarding the Facts and Circumstances Underlying Surveillance by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 01/13/2014)

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489 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Motion for Discovery Regarding the Facts and Circumstances Underlying Surveillance 488 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 01/13/2014)
490 Supplemental Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Memorandum in Support 489 filed by Defendant Mohamed Osman Mohamud (Attachments: # 1 Attachment) (Sady, Stephen) (Entered: 01/31/2014)
491 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for Discovery 488 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 02/13/2014)
492 Notice by USA as to Mohamed Osman Mohamud (Notification to Defendant of Fourteenth In Camera, Ex Parte, Under Seal Filing by the United States) (Knight, Ethan) (Entered: 02/18/2014)
493 Motion to Compel Immediate Production to the Court of Classified Documents Related to Pending Post-Trial Discovery Motion - Expedited Consideration Requested by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 02/19/2014)
494 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Motion to Compel Immediate Production to the Court of Classified Documents Related to Pending Post-Trial Discovery Motion Expedited Consideration Requested 493 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 02/19/2014)
495 ORDER: The government is to respond to Motion to Compel Immediate Production to the Court of Classified Documents Related to Pending Post-Trial Discovery Motion - Expedited Consideration Requested 493 by 3/6/2014. Ordered by Judge Garr M. King. (pc) (Entered: 02/20/2014)
496 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion for Discovery Regarding the Facts and Circumstances Underlying Surveillance 488 (Attachments: # 1 Exhibit) (Sady, Stephen) (Entered: 02/27/2014)
497 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Compel 493 filed by Defendant Mohamed Osman Mohamud (for Immediate Production to the Court of Classified Documents) (Knight, Ethan) (Entered: 03/06/2014)
498 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion to Compel Immediate Production to the Court of Classified Documents Related to Pending Post-Trial Discovery Motion - Expedited Consideration Requested 493 (Sady, Stephen) (Entered: 03/07/2014)

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499 OPINION AND ORDER - Defendant's Motion for Full Discovery Regarding the Facts and Circumstances Underlying Surveillance 488 and Motion to Compel Immediate Production to the Court of Classified Documents Related to Pending Posttrial Discovery Motion 493 are DENIED.Signed on 3/19/2014 by Judge Garr M. King. (pc) (Entered: 03/19/2014)
500 Motion to Dismiss by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 04/04/2014)
501 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Motion to Dismiss 500 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 04/04/2014)
502 Motion to Suppress by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 04/04/2014)
503 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Motion to Suppress 502 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 04/04/2014)
504 Motion for New Trial by Defendant Mohamed Osman Mohamud. (Sady, Stephen) (Entered: 04/04/2014)
505 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Motion for New Trial 504 filed by Defendant Mohamed Osman Mohamud (Sady, Stephen) (Entered: 04/04/2014)
506 ORDER - Oral Argument on Motion to Dismiss 500 , Motion to Suppress 502 , and Motion for New Trial 504 is set for 6/4/2014 at 10:30AM in Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pg) (Entered: 04/08/2014)
507 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Dismiss 500 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 05/02/2014)
508 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion for New Trial 504 filed by Defendant Mohamed Osman Mohamud (Knight, Ethan) (Entered: 05/02/2014)
509 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Suppress 502 filed by Defendant Mohamed Osman Mohamud (Attachments: # 1 Exhibit 1) (Knight, Ethan) (Entered: 05/03/2014)
510 Notice by USA as to Mohamed Osman Mohamud (Notification to Defendant of Fifteenth In Camera, Ex Parte, Under Seal Filing by the United States) (Knight, Ethan) (Entered: 05/05/2014)

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511 Supplemental Response to 502 by USA, Mohamed Osman Mohamud (Table of Authorities to Government's Unclassified Response to Defendant's Alternative Motion for Suppression of Evidence and a New Trial) (Knight, Ethan) (Entered: 05/07/2014)
512 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion to Dismiss 500 (Attachments: # 1 Exhibit A) (Sady, Stephen) (Entered: 05/19/2014)
513 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion to Suppress 502 (Sady, Stephen) (Entered: 05/19/2014)
514 Reply to Response to Motion by Mohamed Osman Mohamud regarding Motion for New Trial 504 (Sady, Stephen) (Entered: 05/19/2014)
515 Minutes of Proceedings: Motion Hearing held before Judge Garr M. King as to Mohamed Osman Mohamud (1). Motions are taken under advisement as of 6/4/2014. Counsel Present for Plaintiff: Ethan D. Knight, Pamala R. Holsinger and Jolie F. Zimmerman.Counsel Present for Defendant: Stephen R. Sady, Steven T. Wax and Lisa Hay.(Court Reporter Nancy Walker) (pg) (Entered: 06/04/2014)
516 NOTICE by Judge Garr M. King to defendant Mohamed Osman Mohamud: On June 24, 2014, the Court filed with the Classified Information Security Officer, pursuant to the Classified Information Procedures Act, 18 U.S.C. App. 3, an in camera, ex parte, and under seal, Opinion and Order. (kb) (Entered: 06/24/2014)
517 OPINION AND ORDER: Defendant's Motion for Vacation of Conviction and Alternative Remedies of Dismissal of the Indictment, Suppression of Evidence, and New Trial for the Government's Violation of the Pretrial Notice Statute 500 , defendant's Alternative Motion for Suppression of Evidence and a NewTrial Based on the Government's Introduction of Evidence at Trial and Other Uses of Information Derived from Unlawful Electronic Surveillance 502 , and defendant's Second Motion for a New Trial 504 are denied. Signed on 6/24/14 by Judge Garr M. King. (kb) (Entered: 06/24/2014)
518 Scheduling Order as to Mohamed Osman Mohamud (1). ORDER Sentencing is set for 10/1/2014 at 10:00AM in Portland Courtroom 9A before Judge Garr M. King.Ordered by Judge Garr M. King. (pg) (Entered: 07/02/2014)
519 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion hearing as to Defendant Mohamed Osman Mohamud for date of June 4, 2014 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the

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deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-326-8186) or through PACERSee Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 7/28/2014. Redaction Request due 8/11/2014. Redacted Transcript Deadline set for 8/21/2014. Release of Transcript Restriction set for 10/17/2014. (Walker, Nancy) (Entered: 07/16/2014)
520 Response to Government's Sentencing Memorandum 477 by Mohamed Osman Mohamud (Sady, Stephen) Modified on 9/23/2014, to add title of document (schm). (Entered: 09/19/2014)
522 CJA 20 as to Mohamed Osman Mohamud, appointing Steven T. Wax as co-counsel for the defendant (CJA appointment) signed on 9/29/14 by Judge Garr M. King. (schm) (Entered: 09/29/2014)
523 Minutes of Proceedings: Sentencing Hearing held before Judge Garr M. King as to Defendant Mohamed Osman Mohamud (1). Defendant is committed to the Bureau of Prisons for confinement for a period of THIRTY (30) Years. Upon release from confinement, the defendant shall serve a life-term of supervised release, subject to the standard conditions of supervised release, and added special conditions as stated on the record. See Formal Judgment and Statement of Reasons. Defendant advised of right to appeal. Defendant returned to the custody of the U.S. Marshal.Counsel Present for Plaintiff: Ethan D. Knight and Pamala R. Holsinger.Counsel Present for Defendant: Steven T. Wax, Lisa Hay, and Stephen R. Sady.(Court Reporter Nancy Walker)(USM #73079-065) (pg) (Entered: 10/01/2014)
524 JUDGMENT AND COMMITMENT as to Mohamed Osman Mohamud (1), Count(s) 1, SENTENCING DATE:10/1/14; IMPRISONMENT: thirty (30) years; SUPERVISED RELEASE: life; SPECIAL ASSESSMENT: $100.00 signed on 10/3/14 by Judge Garr M. King. (schm) (Entered: 10/06/2014)
525 Statement of Reasons as to Mohamed Osman Mohamud (NOTE: This document is filed under seal and access is restricted to counsel of record) signed on 10/3/14 by Judge Garr M. King. (schm) (Entered: 10/06/2014)
526 Notice of Appeal to the USCA for the 9th Circuit by Mohamed Osman Mohamud (fee waiver status selected (IFP)) (Sady, Stephen) (Entered: 10/14/2014)
USCA-9th Circuit Case Number as to Mohamed Osman Mohamud 1430217 for Notice of Appeal 526 filed by Mohamed Osman Mohamud. (dsg) (Entered: 10/15/2014)

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527 Transcript Designation and Order Form by Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217. Transcript is due by 12/8/2014. (Attachments: # 1 Attachment) (Sady, Stephen) (Entered: 11/04/2014)
528 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Status conference as to Defendant Mohamed Osman Mohamud for date of January 7, 2013 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-326-8186) or through PACERSee Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/18/2014. Redaction Request due 1/2/2015. Redacted Transcript Deadline set for 1/12/2015. Release of Transcript Restriction set for 3/12/2015. (Walker, Nancy) (Entered: 12/08/2014)
529 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Sentencing as to Defendant Mohamed Osman Mohamud for date of October 1, 2014 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503-326-8186) or through PACERSee Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/18/2014. Redaction Request due 1/2/2015. Redacted Transcript Deadline set for 1/12/2015. Release of Transcript Restriction set for 3/12/2015. (Walker, Nancy) (Entered: 12/08/2014)
530 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephonic hearing as to Defendant Mohamed Osman Mohamud for date of November 20, 2012 before Judge Garr M. King, Court Reporter Nancy M. Walker, telephone number 503-326-8186. NOTE: THIS DOCUMENT HAS BEEN FILED UNDER SEAL (Walker, Nancy) (Entered: 12/08/2014)
531 Order of USCA-9th Circuit as to Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217. Appellants motion for leave to file an oversized opening brief of 230 pages is granted in part. Within 28 days after the date of this order, appellant shall file an opening brief not to exceed 180 pages using the same font and spacing. Appellees motion for an extension of time until December 7, 2015 to file the answering brief is granted. The optional reply brief is due within 21 days after service of the answering brief. Appellants motion for leave to file a supplement to the opening brief under seal is granted. The Clerk shall file under seal the supplemental opening brief submitted on May 29, 2015. (dsg) (Entered: 07/20/2015)

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532 Order of USCA-9th Circuit as to Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217. (dsg) (Entered: 08/18/2015)
533 Amended Order of USCA-9th Circuit as to Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217. Appellants unopposed motion for an extension of time to file the oversized opening brief is granted. The opening brief is due September 4, 2015. The answering brief is remains due December 7, 2015. The optional reply brief is due within 14 days after service of the answering brief. (dsg) (Entered: 08/21/2015)
534 Unopposed Motion to File Under Seal Stipulation to Supplement the Record Pursuant to Fed. R. App. P. 10(e) filed by USA as to Defendant Mohamed Osman Mohamud. (Knight, Ethan) (Entered: 11/24/2015)
535 ORDER - Granting Unopposed Motion to File Under Seal Stipulation to Supplement the Record Pursuant to Fed. R. App. P. 10(e) 534 as to Mohamed Osman Mohamud (1). Ordered by Judge Garr M. King. (pg) (Entered: 11/25/2015)
537 Order of USCA-9th Circuit as to Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217. Appellant's motion for an extension of time to file the reply brief is granted. The reply brief is now due on or before February 29, 2016. (jtj) (Entered: 12/21/2015)
538 Order of USCA-9th Circuit as to Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217. The appellant's unopposed motion for leave to file an oversized reply brief is granted. The Clerk shall file the brief. The appellant's unopposed motion for leave to file a supplemental reply brief under seal is granted. 9th Cir. R. 27-13(b). The Clerk shall file the supplemental reply brief under seal. (jtj) (Entered: 03/15/2016)
539 Order of USCA-9th Circuit as to Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217. For planning purposes, counsel are advised that the Court will hold oral argument in this case beginning at 11:00 am on July 6, 2016, in Portland, Oregon. At that time, the Court will proceed with oral argument on the unclassified briefs. The Court acknowledges receipt of the governments letter of May 5, 2016, and requests that government counsel cleared to access the classified brief and materials be available for argument in a separate, ex parte session. The time and place of such session will be communicated to government counsel by the Courts Classified Information Security Officer. (jtj) (Entered: 06/27/2016)
540 Order of USCA-9th Circuit as to Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217. Within 30 days of the date of this order, the parties and amici American Civil Liberties Union,

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American Civil Liberties Union of Oregon, and the Electronic Frontier Foundation, may file supplemental briefs of no more than 20 pages. The briefs should address the attached information, which the government recently filed with the court's Classified Information Security Officer, as it relates to Defendant-Appellant's constitutional challenge to § 702 of FISA, 50 U.S.C. § 1881a, including but not limited to: (1) whether Defendant-Appellant is raising a facial challenge to § 702, and if so, under what authority; and (2) the applicability, if any, of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), including its relevance to the location of the search. (jtj) (Entered: 09/06/2016)
541 Order of USCA-9th Circuit as to Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217. Defendant-appellant's Unopposed Motion for Extension of Time Within Which to File Petition for Panel Rehearing and Rehearing En Banc (Dkt. No. 124) is granted. The Petition for Panel Rehearing and Rehearing En Banc is due by February 17, 2017. (jtj) (Entered: 12/12/2016)
542 Order of USCA-9th Circuit as to Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217. The panel has voted to deny the petition for panel rehearing. Judges Bea and Owens voted to deny the petition for rehearing en banc, and Judge Pregerson so recommends. The full court has been advised of the suggestion for rehearing en banc, and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are therefore DENIED. (sss) (Entered: 03/16/2017)
543 MANDATE of USCA-9th Circuit as to Mohamed Osman Mohamud regarding Notice of Appeal 526 USCA # 14-30217 The decision of the District Court is: AFFIRMED (sss) (Entered: 03/24/2017)
544 Notice received from the Supreme Court: petition for certiorari filed on 6/14/2017. Supreme Court Case Number 17-5126. (jtj) (Entered: 07/13/2017)
545 The petition for writ of certiorari was denied on 1/8/2018. Supreme Court number 17-5126. (jtj) (Entered: 01/11/2018)
546 CJA 20 as to defendant Mohamed Osman Mohamud appointing Per C. Olson on a potential 28:2255 petition signed on 1/24/18 by Judge Michael W. Mosman. (schm) (Entered: 01/25/2018)
547 Notice of Case Reassignment: Case reassigned from Judge Garr M. King to Judge Marco A. Hernandez. Defendant name: Mohamed Osman Mohamud (USM #73079-065). (eo) (Entered: 06/08/2018)

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548 Order by Judge Marco A. Hernandez as to Mohamed Osman Mohamud. The Court orders that Defendant's appointed attorney, Per Olson, may have access to all documents previously filed under seal to which defendant's trial counsel has had access. This includes all pleadings and other documents filed by Defendant under seal, and all documents or pleadings filed by the government to which defendant's trial counsel has had access. (jp) (Entered: 06/08/2018)
549 Motion for Writ of Habeas Corpus ad testificandum by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Olson, Per) (Entered: 11/08/2018)
550 Declaration by Per C. Olson regarding Motion for Writ of Habeas Corpus ad testificandum 549 filed by Defendant Mohamed Osman Mohamud (Olson, Per) (Entered: 11/08/2018)
551 VACATED. See Order #555. Writ of Habeas Corpus ad Testificandum Issued as to Defendant Mohamed Osman Mohamud. No date to appear given in the Order. Original and two certified copies forwarded to U.S. Marshal on 11/9/18. (schm) Modified on 1/29/2020, Writ vacated 1/28/20. (schm). (Entered: 11/09/2018)
552 Stipulation as to Mohamed Osman Mohamud Government's Stipulation to Toll the Statute of Limitations for Motions Under 28 USC § 2255 by 90 Days (Olson, Per) (Entered: 12/26/2018)
553 Amended Stipulation as to Mohamed Osman Mohamud Government's Stipulation to Toll the Statute of Limitations by Nine Months (Olson, Per) (Entered: 01/07/2019)
554 Stipulation as to Mohamed Osman Mohamud Government's Second Stipulation to Toll the Statute of Limitations (Olson, Per) (Entered: 09/30/2019)
555 ORDER VACATING WRIT OF HABEAS CORPUS AD TESTIFICANDUM as to Mohamed Osman Mohamud (USM #73079065). Signed on 1/28/2020 by Judge Marco A. Hernandez. Original and two certified copies forwarded to U.S. Marshal on 1/29/2020. (jp) (Entered: 01/29/2020)
556 Final Stipulation as to Mohamed Osman Mohamud to Toll the Statute of Limitations for Motion Under 28 USC § 2255 (Olson, Per) (Entered: 02/17/2020)
557 Motion to Vacate or Correct Sentence under 28 U.S.C. 2255 by Defendant Mohamed Osman Mohamud. (Olson, Per) Civil case 3:20-cv-00883-HZ opened. (jp). (Entered: 06/01/2020)

06/01/2020 06/22/2020
07/28/2020 08/07/2020
09/01/2020 09/01/2020 09/01/2020 09/02/2020 10/29/2020 11/16/2020 11/18/2020

558 Notice as to Mohamed Osman Mohamud Defendant's Proposed Briefing Schedule (Olson, Per) (Entered: 06/01/2020)
559 ORDER: Adopting Defendant's Proposed Briefing Schedule 558 in connection with Defendant's Motion to Vacate or Correct Sentence under 28 U.S.C. 2255 557 . Defendant's Memorandum in Support of Motion and Exhibits will be due 8/1/20, Government's Response will be due 11/2/20, Defendant's Reply will be due 11/23/20. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 06/22/2020)
560 Unopposed Motion to Revise Briefing Schedule by Defendant Mohamed Osman Mohamud. (Olson, Per) (Entered: 07/28/2020)
561 Order by Judge Marco A. Hernandez as to Mohamed Osman Mohamud (USM #73079-065) granting unopposed motion 560 for a revised briefing schedule. Defendant's memorandum in support of 2255 petition is due by 9/1/2020. The Government's Response is due by 12/1/2020. Defendant's Reply is due by 12/22/2020. (related document(s)): Motion to Vacate or Correct Sentence under 28 U.S.C. 2255 557 By Judge Marco A. Hernandez. (cw) (Entered: 08/07/2020)
562 Memorandum in Support of Motion by Mohamed Osman Mohamud regarding Motion to Vacate or Correct Sentence under 28 U.S.C. 2255 557 filed by Defendant Mohamed Osman Mohamud (Olson, Per) (Entered: 09/01/2020)
563 Exhibit by Mohamed Osman Mohamud regarding Memorandum in Support 562 filed by Defendant Mohamed Osman Mohamud (Exhibits 1-27 - Volume 1) (Attachments: # 1 Exhibits 1-27 - Volume 2) (Olson, Per) (Entered: 09/01/2020)
564 Motion to File Exhibits 15, 17 and 18 Under Seal by Defendant Mohamed Osman Mohamud. (Attachments: # 1 Proposed Order) (Olson, Per) (Entered: 09/01/2020)
565 ORDER Granting 564 Motion to File Documents Under Seal as to Mohamed Osman Mohamud. Signed on 9/2/2020 by Judge Marco A. Hernandez. (jp) (Entered: 09/02/2020)
567 Notice of Attorney Appearance Amy E. Potter appearing for USA (Potter, Amy) (Entered: 10/29/2020)
568 Unopposed Motion for Extension of Time (Related Doc. 557 Motion to Vacate or Correct Sentence (2255), 562 Memorandum in Support ) to file response filed by USA as to Defendant Mohamed Osman Mohamud. (Knight, Ethan) (Entered: 11/16/2020)
569 ORDER: Granting 568 Motion for Extension of Time as to Mohamed Osman Mohamud). The Government's Response to Defendant's Motion

03/24/2021 03/26/2021 04/26/2021
04/30/2021 05/21/2021 05/26/2021 06/17/2021 06/24/2021

to Vacate or Correct Sentence under 28 U.S.C. 2255 is now due 3/31/2021. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 11/18/2020)
570 Unopposed Motion for Extension of Time 30-day extension to file government's response (Related Doc. 557 Motion to Vacate or Correct Sentence (2255) ) filed by USA as to Defendant Mohamed Osman Mohamud. (Potter, Amy) (Entered: 03/24/2021)
571 ORDER: Granting 570 Motion for Extension of Time as to Mohamed Osman Mohamud (1). Response is due by 4/30/2021. Reply is due by 5/21/2021. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 03/26/2021)
572 ORDER APPOINTING COUNSEL. CJA Panel attorney Per C. Olson is appointed pursuant to the provisions of the Criminal Justice Act, 18 U.S.C. 3006A, as counsel for Mr. Mohamud, effective April 23, 2021. Signed on 4/26/2021 by Judge Marco A. Hernandez. (jp) (Entered: 04/28/2021)
573 Response to Motion by USA as to Mohamed Osman Mohamud regarding Motion to Vacate or Correct Sentence (2255) 557 filed by Defendant Mohamed Osman Mohamud (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Potter, Amy) (Entered: 04/30/2021)
574 Unopposed Motion for Extension of Time to File Reply by Defendant Mohamed Osman Mohamud. (Olson, Per) (Entered: 05/21/2021)
575 ORDER Granting 574 Motion for Extension of Time as to Mohamed Osman Mohamud (1). Defendant's Reply is due by 6/21/2021. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 05/26/2021)
576 Unopposed Motion for Extension of Time to File Reply by Defendant Mohamed Osman Mohamud. (Olson, Per) (Entered: 06/17/2021)
577 ORDER Granting 576 Motion for Extension of Time as to Mohamed Osman Mohamud (1). The Reply to the Government's Response to the Motion to Vacate or Correct Sentence is due by 9/13/2021. Ordered by Judge Marco A. Hernandez. (jp) (Entered: 06/24/2021)

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 Case 3:10-cr-00475-KI Document 1 Filed 11/29/10 Page 1 of 37 Page ID#: 1

AO 91 (Rev.08/09) Criminal Complaint

UNITED STATES DISTRICT COURT

for the

United States of America
v.
MOHAMED OSMAN MOHAMUD
Defendant(s)

District of Oregon
) ) ) Case No. ) ) )

FILED'10~[IV 29 10:33U.SDC(JRP
'10-MJ-497

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(s) of

November 26,2010

in the county of

Multnomah

District of

Oregon

, the defendant(s) violated:

Code Section

Offense Description

18 U.S.C. § 2332a(a)(2)(A)

Attempted Use of a Weapon of Mass Destruction

in the

This criminal complaint is based on these facts: See attached Affidavit of FBI Special Agent Ryan Dwyer, incorporated herein by this reference.
~ Continued on the attached sheet.

Sworn to before me and signed in my presence.

Date:

11/26/2010

City and state:

Vancouver, Washington

Ryan Dwyer, Special Agent. FBI Printed name and title
7
.Jphn V. Acosta, U.S. Magistrate Judge v Printed name and title

Case 3:10-cr-00475-KI Document 1 Filed 11/29/10 Page 2 of 37 Page ID#: 2
AFFIDAVIT INTRODUCTION I, Ryan Dwyer, being duly sworn, depose and state as follows: 1. I an, a Special Agent ("SA") with the Federal Bureau of Investigation ("FBI"), where I have been employed since July 2002. I am currently assigned to the Portland Division. While employed by the FBI, I have investigated federal criminal violations related to international and domestic terrorism, as well as a number of other criminal offenses. I have also received training at the FBI Academy related to international terrorism. As a federal agent, I am authorized to investigate violations of United States laws and to execute warrants issued under the authority of the United States. 2. The information contained in this affidavit is based upon my training and experience, my personal knowledge of this investigation, and information provided to me by other agents and law enforcement officials who have assisted in this investigation and have experience investigating international terrorism. I have also spoken with agents assigned to the Joint Terrorism Task Force (JTTF) in Portland, Oregon regarding this and other investigations. This affidavit is intended to provide probable cause to support the issuance of the complaint and arrest warrant and does not set forth all of the information that I have acquired during the course of this investigation. Statements of individuals are set forth as summaries unless otherwise indicated. Additionally, the translation of Arabic words is set forth in brackets where the Arabic
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would otherwise appear. Finally, quotations of email are set forth in their original form except for redactions and Arabic translations, and may include grammatical or typographical errors.
3. This affidavit is being made in support of a criminal complaint and arrest warrant for MOHAMED OSMAN MOHAMUD (UMOHAMUD"), for the violation of Title 18, United States Code, Section 2332a(a)(2)(A), Attempted Use of a Weapon of Mass Destruction. MOHAMUD is a naturalized United States citizen who was born in 1991 in Mogadishu, Somalia. He currently resides in Corvallis, Oregon where he is a student at Oregon State University.
SUMMARY OF INVESTIGATION 4. The following affidavit describes an investigation of MOHAMUD that concluded on November 26, 2010. On that day, MOHAMUD attempted to detonate what he believed was a vehicle bomb (that he acquired from FBI undercover employees) at Portland's annual Christmas tree lighting ceremony in Pioneer Courthouse Square. 5. Court authorized surveillance obtained during this investigation showed that in August 2009 MOHAMUD was in email contact with Unindicted Associate One (UA1). In December of 2009, UA1 was located in the northwest frontier province of Pakistan, an area known to harbor terrorists. MOHAMUD and UA1 communicated regularly, and in December 2009 I believe, using coded language, they discussed the possibility of MOHAMUD traveling to Pakistan to prepare for violent jihad. In the
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months that followed this exchange, MOHAMUD made multiple efforts to contact Unindicted Associate Two (UA2), the individual he believed would help facilitate his travel overseas.
6. Because MOHAMUD used the wrong email address in his efforts to contact UA2, he never successfully contacted him to arrange to travel. An FBI Undercover Errlployee (UCE1) contacted MOHAMUD in June 2010 under the guise of being affiliated with UA1 and UA1's associates. MOHAMUD and UCE1 ultimately agreed to meet in Portland on July 30,2010. During this meeting UCE1 and MOHAMUD discussed MOHAMUD's devotion to violent jihad. MOHAMUD told UCE1 how he had previously written pieces for ".Jihad Recollections," an online publication supportive of violent jihad. These articles were published in 2009, and discuss violent jihad. In the course of this meeting, UCE1 asked MOHAMUD what he wanted to do for "the cause." UCE1 told MOHAMUD that there were a number of ways that he could help, ranging from simply praying five times a day to becoming a martyr. MOHAMUD said that he wanted to become "operationaL" Asked to elaborate, MOHAMUD stated he thought of putting an explosion together but that he needed help doing so. The two parted but remained in contact via email until their next meeting on August 19, 2010.
7. On August 19,2010, MOHAMUD met with UCE1 and a second FBI undercover employee (UCE2) in a Portland hotel. During this meeting, MOHAMUD explained how he had been thinking of committing some form of violent jihad since the age of fifteen. MOHAMUD then told UCE1 and UCE2 that he had identified a potential
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target for a bomb: the Christmas tree lighting ceremony in Portland's Pioneer Courthouse Square on November 26, 2010. UCE1 pointed out that there would be lots of children at such an event, to which MOHAMUD replied he was looking for a "huge nlass that wilL .. be attacked in their own element with their families celebrating the holidays."
8. The parties continued to discuss the attack. MOHAMUD dismissed concerns about law enforcement, explaining that" ... it's in Oregon; and Oregon like you know, nobody ever thinks about it." The UCEs continued to confront MOHAMUD about his proposal but he was undeterred. The parties then discussed the logistics involved with MOHAMUD's plan until they parted ways. After the meeting, UCE1 and MOHAMUD communicated byemail. In this exchange, UCE1 again told MOHAMUD that he wanted to make sure he was serious about what he was proposing to do. MOHAMUD replied that he was. They agreed to meet again on September 7,2010.
9. On September 7, 2010, the parties met again at a downtown Portland hotel. During this meeting, UCE1 again told MOHAMUD that this was his choice and that he should do "what's in your heart." MOHAMUD still continued to display his interest in carrying out the attack. The UCEs asked MOHAMUD to buy a number of bomb components and send them to UCE1, and they asked him to find a place to park the vehicle bomb. MOHAMUD agreed to do so and he also told the UCEs that he would also locate a place to put the bomb. The UCEs told MOHAMUD that the bonlb would be concealed in a van.
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10. On September 27,2010 and September 30,2010, UCE1 received the bomb components in the mail from MOHAMUD. On October 3, 2010, the parties met in a Corvallis hotel. During the meeting, MOHAMUD identified a location to park the bomb. The parties discussed additional logistical details, including the need to rent a storage unit for the van and a plan for MOHAMUD to leave the country after the bomb was remotely detonated.
11. On November 4, 2010, UCE1 and UCE2 met with MOHAMUD again in Corvallis. After meeting MOHAMUD in Corvallis, the three traveled to a remote location in Lincoln County, Oregon. During the drive to Lincoln County, MOHAMUD gave the UCEs a thumb drive that contained detailed maps and operational instructions for the attack. During the ride MOHAMUD also reiterated his enthusiasm for the planned attack and spoke about his thwarted efforts to travel overseas to commit violent jihad.
12. When the parties finally arrived at the location, UCE2 showed MOHAMUD an inert explosive device concealed in a backpack. MOHAMUD and UCE2 placed the backpack in a predetermined location and then drove to a location where they were going to detonate the bomb. While they drove, agents surreptitiously replaced the backpack with a live device. After the parties arrived at the location, MOHAMUD used a cellular phone (as he understood it) to remotely detonate the bomb, although the actual detonation was remotely controlled by the FBI. This remote detonation device was the same type MOHAMUD used on November 26, 2010. After the test borrlb was detonated, the UCEs and MOHAMUD returned to Corvallis. During the ride, the UCEs
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Case 3:10-cr-00475-KI Document 1 Filed 11/29/10 Page 7 of 37 Page ID#: 7
and MOHAMUD discussed the attack. MOHAMUD again made clear his vision for the attack: "I want whoever is attending that event to leave, to leave either dead or injured." The UCEs then recorded MOHAMUD as he read a written statement that said goodbye to his family and offered a final rationale for his attack.
13. On November 18,2010, UCEs picked up MOHAMUD in Corvallis and traveled to Portland to finalize the details of the attack. While they were in Portland, MOHAMUD showed the UCEs the locations he had identified to park the bomb, specifically identifying the spot that he thought would inflict the most casualties.
14. On November 26,2010, UCE1 picked up MOHAMUD and took him to a hotel in Portland to complete the attack. UCE2 arrived later, and the UCEs and MOHAMUD went and looked at the bomb which was in the back of a large, white van. When MOHAMUD saw the bomb, he told the UCEs it was "beautiful." The UCEs and MOHAMUD returned to the hotel where they stayed until approximately 4:45 p.m. at which time UCE2 and MOHAMUD drove the van to the parking spot that MOHAMUD had previously located. UCE2 parked the van and then UCE2 and MOHAMUD armed the inert device. UCE2 and MOHAMUD left the vehicle and met UCE1 at the predetermined rendezvous location. UCE1 was dropped off and UCE2 and MOHAMUD went to the location to detonate the device. MOHAMUD dialed the number, in an unsuccessful attempt to detonate the device. MOHAMUD exited the vehicle and dialed the number again, and was taken into custody. / / /
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STATEMENT OF PROBABLE CAUSE Contact With UA1
15. Results of a court authorized search obtained during this investigation showed that MOHAMUD was in email contactwithUA1inAugust2009.UA1was a student in the United States from August 2007 to July 2008. In an email sent August 31,2009, UA1 forwarded an email link regarding a religious school in Yemen to MOHAMUD at truthbespoken@gmaiLcom. A review of the IP address associated with this email shows that it was sent from Yemen.
16. According to court authorized surveillance, on Decerrlber 3, 2009, MOHAMUD received an email from UA1:
salamz bro it's me (UA1), i made it 2 OMRA, [praise be to god] if u wanna come, theres a bra that will contact u about the proper paperwork u need 2 come... i cant go online 4 a while" i hope 2 see u soon abu abdallah 17. I know that the term "OMRA" refers to a pilgrimage to the Ka'bah, a sacred Muslim site that is located in Mecca, Saudi Arabia. A review of the IP address associated with this email, however, shows that it was sent from the northwest frontier province of Pakistan. The northwest frontier province borders Afghanistan and Pakistan's Federally Administered Tribal Area (FATA). Islamic militants frequently reside and train in these areas. III
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18. Based on nly training, experience and discussions I have had with other agents experienced in investigating international terrorism, I know that it is common for individuals involved in terrorist related activities to speak in code to avoid detection. Because of this and the originating locations of this and subsequent emails from UA1, I do not believe the term "OMRA" as used in this email message referred to a location in Saudi Arabia. Additionally, based on the fact that this email was sent from the northwest frontier province of Pakistan, UA1's apparent effort to conceal his location, and statements made by MOHAMUD described more fully below, I believe that UA1 had traveled from Yemen to Pakistan between August and December 2009 and the email described above was sent to MOHAMUD to notify him that UA1 had joined others involved in terrorist activities. Furthermore, I believe this email was an invitation for MOHAMUD to join him.
19. On December 5, 2009, MOHAMUD replied to UA1: "yes that would be wonderful, just tell me what I need to do [God willing]. always wanted to see the ka'bah."
20. On December 12, 2009, MOHAMUD received a response from UA1: hey check this enlail jvjv003@hotmail.com pass is the same as the email except theres an =
between the name and numbers III
8

Case 3:10-cr-00475-KI Document 1 Filed 11/29/10 Page 10 of 37 Page ID#: 10
21. A few minutes later MOHAMUD received another email message from UA1 telling him to contact "abdulhadi." Both messages UA1 sent to MOHAMUD on December 12 were also sent from the northwest frontier region of Pakistan. Based on my training and experience I believe these emails indicate that UA1 was providing MOHAMUD instructions to establish a covert line of communication with an individual known as "abdulhadi." "Abulhadi" is UA2 initially described above. Based on the fact these emailsweresentfromthefrontierprovinceofPakistan.UA1.s efforts to conceal his location, and statements made by MOHAMUD described more fully below, I believe that UA1 was involved in terrorist activities.
Attempts by MOHAMUD to Communicate With UA2
22. On December 12,2009, MOHAMUD sent an email message from his truthbespoken@googlen1ail,com account to jvjv=003@hotmail.com as UA1 had instructed:
[peace be upon you (common Arabic greeting)] Abu Abdallah
how are yo brother abdulhadi, I was referred to you by a friend plz get back to me as soon as possible. 23. According to court authorized surveillance, MOHAMUD received an email in response indicating that the message was not delivered. I believe that MOHAMUD confused the email address.whichwasjvjv003@hotmail.com. with the password, which was likely jvjv=003@hotmail.com or jvjv=003. MOHAMUD attempted to send an email to the password, resulting in his email being undeliverable. As a result, MOHAMUD's
9

Case 3:10-cr-00475-KI Document 1 Filed 11/29/10 Page 11 of 37 Page ID#: 11
email never reached its intended recipient. From December 2009 through May 2010, MOHAMUD made what I believe are several unsuccessful attempts to contact UA2 through email.
24. During this period of tin1e, MOHAMUD also reiterated his commitment to violent jihad. On January 24, 2010, MOHAMUD sent an email to a friend who was living in Saudi Arabia. MOHAMUD, responding to his friend's statement that his friend was going to Makkah (the holy city of Mecca), wrote:
oh nice, make lots of [prayer] for me, make [prayer] that I will be the one to open AI Quds and make [prayer] that I will be a martyr in the highest chambers of paradise
June 14, 2010 Interview of MOHAMUD 25. On June 14, 2010, MOHAMUD was contacted at Portland, Oregon International Airport after he attempted to board a flight to Kodiak, Alaska. MOHAMUD was not allowed to board the aircraft. Shortly thereafter, MOHAMUD was interviewed by the FBI. During the interview, agents asked MOHAMUD about his planned trip to Alaska. MOHAMUD stated that he had secured a fishing job in Alaska through a friend and that he intended to stay with him through the sun1n1er. MOHAMUD said that he had previously intended to travel to Yemen, but had never obtained a ticket or a visa. When asked if he knew someone in Yemen, he stated that he did and had been in contact with UA1. III III
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Initial Contact Between UCE1 and MOHAMUD
26. Based in part on MOHAMUD's earlier, unsuccessful attempts to contact
UA2, UCE1 contacted MOHAMUD in June 2010. On June 23,2010, UCE1 sent an
email to MOHAMUD using the account JVJV003@live.com. This email address was
used due to its similarity to the email address that UA1 told MOHAMUD to use
uvjv003@hotmail.com}. UCE1 wrote:
[hello] bro...go to hushmail.com and set up an account. .. send a message to me at abab003@hushmail.com, I hope to hear from you soon.
27. MOHAMUD, using a hushmail account, responded on the same day as
follows:
assalaumu alaykum brother how are you,
28. On June 25, 2010, UCE1 responded to MOHAMUD:
[and peace be upon you]. [praise be to God] I am good brother thank you for asking. I'm sorry for the delay in our communication, we've been on the move. [may God reward you] for responding so soon. are you still able to help the brothers? in sh'allah, I'll hear from you soon.
29. On June 25,2010, MOHAMUD responded:
I have been betrayed by my family, I was supposed to travel last year but Allah had decreed that i stay here longer than my heart desired. I am trying to find a way to go. I do not think I will able to go for a while. I need to save up and also clear up somethings. look for my emails inshallah, i will contact you when i am able to travel. pray for me that allah will free my passage from the lands of the ploytheists, peace be upon the messenger of Allah, his family and his companions. and peace be to you, and God's mercy
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30. MOHAMUD and UCE1 continued to cornmunicate and agreed to n1eet in Portland in late July 2010. On July 26, 2010, MOHAMUD suggested a meeting location to UCE1; UCE1 emailed MOHAMUD that he did not want to meet at that location because of security concerns. MOHAMUD responded that he was concerned about UCE1 's identity:
and of course I will have a set of questions for you when we meet about your aqeeda to makes ure you are not a spy yourself. which of course leads me to ask, that only (UA1) could have given you my truthbespoken eamil or one or two other brothers. how did you get my email and if (UA1) did give you my ema.il then how do you know him and describe him to me if you really do know him. only as precaution brother no hard feelings. 31. On July 28,2010, UCE1 replied that a "brother from oregon who is now far away vouched for you," and that UCE1 would answer all of MOHAMUD's questions when they met. The reference to "a brother" was intended to convince MOHAMUD that UCE 1 was associated with UA1 or UA1's associates.
July 30, 2010 Meeting Between UCE1 and MOHAMUD 32. On July 30, 2010, the first face-to-face meeting between MOHAMUD and UCE1 took place in Portland. At approximately 11 :30 a.m., MOHAMUD met UCE1 in downtown Portland. They then walked a few blocks to a nearby hotel. As they walked, UCE1 asked MOHAMUD what he had done over the course of his life to prove himself as a good Muslim. MOHAMUD responded that he had written articles which had been published in "Jihad Recollections." UCE1 asked MOHAMUD to send him copies of the articles he had written.
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33. MOHAMUD asked UCE1 how he obtained MOHAMUD's "truthbespoken" email address. UCE1 stated that he received MOHAMUD's email address from the "ijtimeat," loosely translated from Arabic as "council." MOHAMUD asked if UCE1 had been in contact with UA1. UCE1 said he may have met UA1 overseas but that it was only in passing. UCE1 gave a general physical description of UA1, but stressed that he received MOHAMUD's contact information from the "ijtimeat." UCE1 asked MOHAMUD if he could travel and mentioned that it might be difficult for MOHAMUD to support the cause overseas if he was on the No-Fly list.
34. UCE1 asked what MOHAMUD would do "for the cause." MOHAMUD said he initially wanted to wage war in the U.S. Later on, MOHAMUD read one of the Hadiths and had a dream. In the dream, MOHAMUD said he traveled to Yemen and received training. Afterwards, he was sent to Afghanistan to lead an army against the infidels. UCE1 said this was a good dream, but that MOHAMUD must be careful. MOHAMUD said he wanted to introduce some brothers to UCE1. UCE1 said he should not tell anyone about him or this meeting to protect MOHAMUD and himself.
35. UCE1 again asked what MOHAMUD would do for the cause. MOHAMUD said he "could do anything." UCE1 said he could not tell him what to do, that it had to come from his own heart and Allah. UCE1 suggested the following options: (1) pray five times a day and spread Islam to others; (2) continue studying and get an engineering or medical degree so he could help the brothers overseas; (3) raise funds for the brothers overseas; (4) become "operational;" and (5) become a "shaheed" (martyr). MOHAMUD
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immediately said he wanted to be "operational," but noted he did not know how and he would need training.
36. When asked to elaborate on went he meant by being operational, MOHAMUD said he wanted to put an explosion together and went on to say he has heard of brothers putting stuff in a car, parking it by a target, and detonating it. UCE 1 indicated he would be able to help out with this type of operation by introducing MOHAMUD to a brother who was an expert in explosives.
37. UCE1 asked MOHAMUD to do some research about possible targets. UCE1 concluded the meeting by saying he would contact MOHAMUD via e-mail and see him again in approximately four weeks. UCE1 was equipped with audio equipnlent to record the meeting. However, due to technical problems the meeting was not recorded.
Articles Written by MOHAMUD for "Jihad Recollections" 38. On July 30, 2010, after their face-to-face meeting, MOHAMUD sent an email message to UCE1. In the email message MOHAMUD stated that he had come to a decision about their discussion and would discuss it in further detail the next time they met. MOHAMUD also explained that he had published articles in "Jihad Recollections" in 2009 under the name Ibnul Mubarak. He enclosed links to each of these issues of "Jihad Recollections" and described the articles. MOHAMUD added that he had planned to submit a fourth article to "Jihad Recollections." III
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39. I have reviewed the online versions of the first three issues of "Jihad Recollections" and I have confirmed that the articles described by MOHAMUD and the links to the articles sent to UCE1 were in fact published. In his April 2009 article, entitled "Getting in shape without weights," MOHAMUD offered tips on preparing for violent jihad. Preparing militarily, he said, includes the need to "exercise the body and to prepare it for war ...." MOHAMUD wrote that the "Mujahid ... must fulfill the obligation of preparing himself physically for jihad ... " and that it is necessary to train "in order to damage the enemies of Allah as much as possible." MOHAMUD also wrote that it terrorizes the enemy when the Mujahideen strike with speed and planning, and that the ability to carry on for a long period of time is especially helpful during raids on the enemy.
40. In addition to the "Jihad Recollections" articles, MOHAMUD included another article that he said he wrote and sent to "Inspire." "Inspire" is an extremist publication published by al Malahim media, the media arm of AI Queda of the Arabian Peninsula, a designated Foreign Terrorist Organization, which has included articles from OSAMA BIN LADEN and articles about committing violent jihadi attacks.
August 19,2010 Meeting Between UCE1, UCE2 and MOHAMUD 41. On August 19, 2010, the second face-to-face meeting between MOHAMUD and UCE1 took place in Portland. During this meeting UCE1 again met MOHAMUD downtown and walked to the hotel where they met on July 30, 2010. In the hotel room, UCE1 introduced MOHAMUD to a second FBI Undercover Employee
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(UCE2). UCE2 held himself out to be an experienced operative working with UCE1. The meeting was audio and video recorded by multiple recorders on the UCEs and placed in the hotel room where the n1eeting occurred. I have reviewed portions of these recordings.
42. After some preliminary discussion, MOHAMUD told UCE1 and UCE2 when he began thinking about violent jihad:
Well, when I was fifteen you know I had a, I was - I made [a special prayer for guidance] about whether I should you know ... should go you know and make jihad in a different country or to make like an operation here you know like, something like Mumbai. You know, it would be simple you know you could get some weapon you know. So I made [a special prayer for guidance] and it was like when I was fifteen so, I had a dream that night, and in my dream you know I saw the mountains of Yemen .... 43. UCE1 later asked MOHAMUD when he started thinking about the mujahideen. MOHAMUD said that it was when he turned fifteen, and he explained that during Ramadan someone told him about the martyrs and the virtues, and MOHAMUD "didn't even have to hear anything else." Elaborating, MOHAMUD said: "This is a decision that I made and if, if this [the truth], you know ... and if you don't sacrifice your own kids, when will victory come you know. There has to be sacrifice before you know any progress is n1ade anywhere; anything." 44. The parties continued to talk. MOHAMUD described the target he had indentified to UCE1 and UCE2: Basically it's [Pioneer Square] like, Portland is like the main meeting when they have events everybody comes up there
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you know? So they have a, on the 26th of Noven1ber . . . they have a Christmas lighting and some 25,000 people that come. You know the streets are packed. I thought, I thought if you could help me you know to have a, to have a you know a truck [if God will], you know so that they could you know refrain. If you understand what I'm saying to you?
45. The conversation continued:
UCE1: but um, and this, this is again, what's in your heart? So I'm just bringing it to your mind? You know there's gonna be a lot of children there?
MOHAMUD: Yeah I mean that's what I'm looking for.
UCE1: For kids?
MOHAMUD: No, just for, in general just a huge n1ass that will, you know like for them you know to be attacked in their own element with their families celebrating the holidays. And then for later to be saying, this was them for you to refrain from killing our children, women ... so when they hear all these families were killed in such a such a city they'll say you know what your actions you know they will stop you know. And it's not fair they should do that to people and not feeling it, The sheikh Usama you know (UI) he said [I swear to Allah the Great], you know he swore by Allah you know, [that America will not even dream of security ...]
46. UCE2 then told MOHAMUD that he loved his idea but that he could leave
anytime he wanted. UCE2 then asked MOHAMUD about the law enforcement
presence at the event, to which MOHAMUD replied:
Is that ... in Portland? Not really. They don't see it as a place where anything will happen. People say you know, why, anybody want to do something in Portland, you know. It's on the west coast, it's in Oregon; and Oregon's like you know, nobody ever thinks about it. If we're like LA or something that's different so ....
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47. UCE2 asked MOHAMUD if he thought about an attack when he was fifteen years old. MOHAMUD again mentioned that he had originally thought about conducting an attack similar to the Mumbai attack by teaming up with some "brothers." He said that because he had been a rapper, he could obtain a pistol or AK (AK47 assault rifle). MOHAMUD was seventeen, not fifteen at the time of the 2008 Mumbai attacks.
48. UCE1 asked MOHAMUD to further describe the tree lighting ceremony. MOHAMUD continued:
They bring a big Christmas tree and sit it in the middle of the square. And all the people gather ... the mayor give a big speech and you know all the people are there. And they bring their you know families you know. This is their holiday ... people come for this lighting at 5:30 sharp ... so I was thinking that would be the perfect time you know ... . 49. MOHAMUD explained his plans further, and UCE2 asked MOHAMUD: So are you telling me that you don't mind driving it and, and blowing it up while you in it? MOHAMUD: Yeah, I don't mind that. That, that, that I mean if, if I wasn't in it then you know then they'll look for me and I would have to have some way to leave the country you know[.] 50. A short time later, the UCEs confronted MOHAMUD about the significance of what he was suggesting, repeatedly reminding MOHAMUD how difficult the operation would be. Again, the UCEs asked him how long he had been thinking about this. MOHAMUD responded: III
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Since I was fifteen you know I, since I was fifteen I thought about all this things before .... UCE1: And you're not worried?
MOHAMUD: Because if you were to going to [Paradise] you wouldn't have to worry, right? 51. UCE1 asked MOHAMUD how long he had been thinking specifically of an attack on Pioneer Square, and MOHAMUD said since UCE1 and MOHAMUD had talked before. MOHAMUD said that he looked around at a couple of places, looked to see where a vehicle could be placed and where the most people were and he decided
that Pioneer Square was the best place. 52. In response to the UCEs describing how difficult the operation would be,
and specifically responding to the UCEs' statements regarding the presence of families and children at the attack location, MOHAMUD responded:
Yes, I will push the button because [my brother], every day we see ....
UCE1: Allah [UI] Allah is looking at you right now. MOHAMUD: Allah [may He be glorified and exalted] is always looking at me, but imagine every day we see you know in our, you know, newspapers and news you know our people are killed you know. So for us to see that you know it would be a smile from me to see them in the same ... you know, you know what I like, what makes me happy? You know, what I like to see? Is when I see the enemy of Allah then you know their bodies are torn everywhere. Like, like when I see the (UI). 53. The UCEs talked with MOHAMUD about whether he was committed to the attack he was planning, and UCE1 told MOHAMUD:
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We want to make sure that it's, you know, it's in your heart, you know. If we get all the way there and you're like, uh oh. Yeah, and even if that happens, we'll be disappointed but you always have a choice. You understand? With us you always have a choice. 54. MOHAMUD and the UCEs then left the hotel room after the meeting and drove to Pioneer Square. They walked around Pioneer Square and MOHAMUD explained where the people and the Christmas tree would be during the ceremony, where he was thinking about driving, and potential obstructions to the vehicle. UCE2 asked what MOHAMUD would have done if he had never met the UCEs. MOHAMUD explained that one of his plans was to leave the country without graduating and go visit his friend in Saudi Arabia. MOHAMUD implied that from Saudi Arabia he would then try to meet the right people. MOHAMUD also said that UA1 told MOHAMUD to come overseas and study, which would give MOHAMUD a legitimate reason to travel. MOHAMUD also discussed his plan to enter Yemen.
Email Exchange Between UCE1 and MOHAMUD 55. On August 21, 2010, UCE1 sent MOHAMUD an email in which he stated that he and UCE2 were going to discuss MOHAMUD's plan with the "council." Prior to doing so, however, UCE1 said that he wanted to make sure MOHAMUD was serious about his intention to commit this attack. He asked MOHAMUD to pray and "let me know how you feel. A bomb is very serious matter ... this attack must come from [his heart] ...." III
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56. On August 27, 2010, MOHAMUD replied to UCE1 that he had prayed for guidance and, when he woke up, his "[faith] was sky high for no apparent reason. so i see it as a sign [God willing] that the trafficl ight is green 101..."
September 7, 2010 Meeting Between UCE1, UCE2 and MOHAMUD 57. On September 7, 2010, MOHAMUD met with UCE1 and UCE2 for the third time. That evening, UCE1 picked up MOHAMUD and the two went to a hotel in Portland where they met UCE2. This meeting was audio and video recorded on multiple recording devices concealed on the UCEs, in the hotel room, and in the UCEs' vehicle. I have reviewed portions of these recordings. 58. UCE1 told MOHAMUD that he had showed the "council" MOHAMUD's work. He told him that they were impressed and did not want MOHAMUD to be a martyr yet because he had skills that would be useful to the brothers overseas. Rather, they suggested, MOHAMUD go through with his plan, but then leave the country after the attack instead of martyring himself. UCE1 again told MOHAMUD that his participation in the plan was solely his decision: "This is your choice, it's what in your heart, we can't tell you what's in your heart." 59. A short time later, UCE1 asked MOHAMUD which option would he chose if he were presented with the following two choices related to the operation that they had discussed: (1) MOHAMUD could become a martyr by driving a van to the attack site and completing the attack, or (2) MOHAMUD could park the vehicle, leave the area, make a cellular telephone call and "the same thing happens." According to UCE1,
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MOHAMUD and UCE1 would then travel someplace and stay for a few days before traveling overseas. MOHAMUD responded that he preferred the second option because he believed that martyrdom required the "highest level of faith." He was concerned that after living in the United States and attending college he may not have that "high faith."
60. The UCEs asked MOHAMUD to find the ideal place to park the truck informing him that it could be up to a block away and still be effective. They also told him that the bomb would be in a van. MOHAMUD stated that he would find a place to park it. When he found the parking spot, MOHAMUD said that he would send an email to UCE 1 stating that he "found his keys."
61. UCE2 also asked MOHAMUD if he was willing to purchase some components for the bomb. MOHAMUD agreed and the UCEs asked him to buy one Utiliteck Mechanical Programmable Timer, two Nokia prepaid cellular telephones, one heavy duty toggle switch and one heavy duty 9Volt snap connector. Additionally, following up an earlier phone call between UCE1 and MOHAMUD, the UCEs spoke with MOHAMUD about finding his own apartment where they could meet and "hide out" for a few days after the attack. The UCEs provided MOHAMUD with $2700 in United States currency to cover the cost of this apartment and $110 for the bomb components that UCE1 and UCE2 asked MOHAMUD to buy and send to them.
62. UCE2 then asked MOHAMUD how many people would be at the Christmas tree lighting event. MOHAMUD replied:
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Hm, they say 25,000 but I'm guessing more like 12,000, 15,000... a lot of people, and the streets are packed and also it's black Friday that day. So all the, it doesn't even have to be at Pioneer Square. The whole area uh is, is all gonna be packed. They're gonna be shopping at Pioneer Square, they're gonna be shopping, the, the whole place is, there's a mall. 63. The UCEs and MOHAMUD continued to discuss the plan. They then talked with MOHAMUD about UCE1 staying in Corvallis with MOHAMUD for a few days after the attack before leaving the country. UCE2 said that they will get papers for MOHAMUD to leave, and asked him again if he wanted to leave. MOHAMUD said that he always wanted to leave because he did not like living in the United States. MOHAMUD later explained that he was thinking about flying to join the brothers after finishing his job in Alaska during the preceding summer. However, MOHAMUD said that he was unable to travel to Alaska because he was on the "No-Fly" list. The meeting ended and UCE1 left the hotel with MOHAMUD. As they walked outside, UCE1 talked to MOHAMUD about the strength of the car bomb: And when you dial that phone number, I'm telling you, when you look at all of this you can park the car probably two blocks this way or this way, or that way, all of this is going to be gone. MOHAMUD: Really? UCE1: Yeah. It's, when you see, when you see what he builds. MOHAMUD: Wow, like two blocks?
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UCE1: Yeah. MOHAMUD: Wow, that's amazing.
MOHAMUD Mails Bomb Components to UCE1 64. On September 14,2010, MOHAMUD emailed UCE1 and asked for an address to mail the "birthday phone" that UCE1 wanted. UCE1 gave MOHAMUD a name and address to use to mail the telephones. On September 27,2010, UCE1 received two Nokia cellular telephones at the address he gave MOHAMUD. 65. On September 19,2010, MOHAMUD emailed UCE1 and asked him for the address where he should send the "other items." UCE1 sent him a new address. On September 30, 2010, UCE1 received one package of five 9Volt battery snap connectors, one package of two quarter inch stereo phone jacks, one heavy duty toggle switch, and one solderless right-angle phono plug. Each of these items was purchased from Radio Shack. Also included in the package was a pack of gum and a handwritten note stating "Good Luck with ur stereo system Sweetie. Enjoy the Gum." 66. On September 24, 2010, MOHAMUD emailed UCE1 stating "brother, finally found my keys! been lookin for a while. anyways see you soon [God willing]."
October 3,2010 Meeting Between UCE1, UCE2 and MOHAMUD 67. On October 3,2010, UCE1, UCE 2 and MOHAMUD met in Corvallis, Oregon. UCE1 picked up MOHAMUD and they traveled to a hotel where they met UCE2. This meeting was audio and video recorded on multiple recording devices III
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concealed on the UCEs, in the hotel room and in the UCE's vehicle. I have reviewed portions of these recordings.
68. MOHAMUD told UCE1 and UCE2 that he had picked a good location to park a vehicle near Pioneer Square. He then described a fifteen-minute parking spot near the square. He outlined a plan in which, if the space was taken, one of the UCEs could drive around the block until the spot opened up. MOHAMUD then used a piece of paper to describe the plan in better detail. UCE2 said that it seemed like MOHAMUD had chosen a good location, but that he should have three spots in mind in order to ensure a successful operation. UCE1 asked that MOHAMUD do some detailed research including photographs, marked maps and escape routes. UCE1 explained that the plan was for UCE2 and MOHAMUD to drive the van to the location. After they parked the vehicle, UCE1 would pick them up and drive them away. UCE2 asked MOHAMUD to rent a storage unit for them to hide the van and the bomb components.
69. UCE2 described the conditions in the area to which MOHAMUD would travel after the attack. He told MOHAMUD that these conditions would be harsh and that the studying and training would be difficult. UCE2 also told him that the trip there would be difficult, and he would not be able to contact his family. MOHAMUD stated that he still wanted to go.
70. The UCEs asked MOHAMUD to send them passport photographs to help in getting him out of the country. The UCEs asked MOHAMUD about what he was going to say to his family since he was going to be away for such a long time.
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MOHAMUD said that he was planning on not saying anything regarding traveling overseas. UCE1 told MOHAMUD that it would take three days to get him out of the country.
71. The parties continued to discuss planning for the attack. UCE2 asked MOHAMUD if he knew of a remote location to test the detonation mechanism of the explosive device. MOHAMUD said he had some locations in mind and asked about the detonation device. UCE2 told him that the device would be detonated using a cellular telephone. Towards the end of the meeting, MOHAMUD continued to show his enthusiasm for the planned attack: "it's gonna be a fireworks show... a spectacular show ... New York Times will give it two thumbs up ...."
MOHAMUD Mailed Passport Photographs to UCE1 72. On October 13, 2010, MOHAMUD mailed four passport photographs of himself to UCE1.
November 4,2010 Meeting Between UCE1, UCE2 and MOHAMUD 73. On November 4,2010, UCE1 and UCE2 met with MOHAMUD in Corvallis, Oregon. This meeting was recorded by audio recording equipment concealed on each UCE and audio and video recording equipment concealed in the UCE vehicle. I have reviewed portions of these recordings. After meeting in Corvallis, the UCEs and MOHAMUD traveled to a remote location in Lincoln County, Oregon. MOHAMUD was told that the purpose of this was to test the functioning of an explosive device. He was also told that the device he would use in his planned attack was similar to the one they
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were going to test but that it would be significantly larger and hundreds of times more powerful.
74. As they drove, MOHAMUD discussed the details of the planned attack. Using his cornputer, MOHAMUD showed UCE2 pictures of specific parking locations he had found for the van near Pioneer Square. He also provided the UCEs a computer thumb drive which he indicated contained information pertaining to the attack. The thumb drive was subsequently analyzed by the FBI's Portland forensics laboratory. The analysis determined that the drive contained a number of files including: Google streetview photographs of three areas near Pioneer Square, titled "parking 1.png," "parking2.png," and "parking_3.png;" a photograph titled "bikegallery_meetingarea.png;" highlighted Google maps images showing routes in and out of downtown Portland; and a document listing directions from Corvallis to Pioneer Square and from downtown Portland back to Corvallis. In this last document, detailed instructions were included about how they would ensure they were able to park in one of the spots.
75. UCE2 later viewed the photographs from the thumb drive described above and confirmed that they were the same images MOHAMUD had shown him on MOHAMUD's computer during this meeting.
76. In the car, MOHAMUD and the UCEs also discussed what MOHAMUD wanted to do after the attack and his past efforts to travel overseas for violent jihad. MOHAMUD told UCE2 that when he took a family trip to the United Kingdom he tried to
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obtain a visa to go to Pakistan, and he said that UA1 was in Pakistan at the time. MOHAMUD said,
I went there with family but I, my intention was to, I was trying to get a visa to Pakistan. And (UA1) was there at that time, I was trying to set something up, I was close, you know, but it didn't work out 'cause uh, my passport had not been valid for six months ... so I couldn't get the visa. MOHAMUD later talked more about the group of like minded brothers he was with, most of whom have since traveled overseas. MOHAMUD said that at that time, "UA1 was trying to get all of us to go to Yemen and I was telling everybody, let's, let's go there you know.. ." Later, MOHAMUD stated, "I tried like maybe three times to go to jihad ... " 77. When they arrived at the designated location, UCE2 showed MOHAMUD an inert explosive device. The device was concealed in a blue backpack. UCE2 explained that the device contained several of the components previously provided by MOHAMUD, including the cellular telephones he purchased in September. He and MOHAMUD then placed the inert device in a location previously arranged by law enforcement. While UCE1 and UCE2 drove MOHAMUD to the location where they planned on detonating the device, bomb technicians surreptitiously replaced the inert device with a live explosive device. The live explosive device was under the control of the bomb technicians. 78. Once MOHAMUD and the UCEs reached the location, the UCEs showed MOHAMUD how to detonate the device. MOHAMUD then used a cellular telephone to perform the actions he had been told would trigger the device. When law enforcement
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confirmed that he had taken the necessary steps with the phone to detonate the device, the bon,b technicians detonated the live device leading MOHAMUD to believe he had caused the device to explode. After the bomb exploded, the UCEs and MOHAMUD returned to Corvallis.
79. During the drive back to Corvallis, the UCEs and MOHAMUD discussed the attack. UCE1 asked MOHAMUD if he was capable of looking at the bodies of those who will be killed in the explosion. MOHAMUD replied, "Do you remember when 9-11 happened when those people were jumping from skyscrapers ... I thought that was awesome." UCE1 told MOHAMUD that he was going to see body parts and blood. MOHAMUD responded, "I want to see that, that's, that's what I want for these people." He continued, "I want whoever is attending that event to leave, toJeave either dead or injured."
80. When they arrived at MOHAMUD's apartment, MOHAMUD made a video. MOHAMUD changed his clothes, telling him he wanted to be "Sheik Osama style" and put on a white robe and a white and red headdress. He then put on a camouflage jacket. UCE1 then filmed MOHAMUD as he read a written statement on camera:
[I take refuge in Allah from Satan the accursed; in the name of Allah the merciful, the compassionate; all praise be to Allah, we praise him, we seek his assistance and forgiveness. We take refuge in Allah fron, the evil of our souls and from the sins of our acts. He who Allah guides there is none to lead him astray, he has none to guide him alright. I bear witness that there is no god but Allah alone, he has no associate. As for hereafter], This is a message [if God wills] to those who have wronged themselves and the rights of others. From the Americans and others. A dark day
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is coming your way [with the permission of Allah the glorified the exalted]. For as long as you threaten our security, your people will not remain safe. As your soldiers target our civilians, we will not help to do so. Did you think that you could invade a Muslim land, and we would not invade you, but Allah will have soldiers scattered everywhere across the globe. To those doubting the victory of Allah's [the glorified the exalted] then we say there's a lesson in the USSR for you, and also in the events going on in Afghanistan. Their power is not except propaganda and the tongues of people. To those Muslims who reside amongst the [infidels] we say to them, [What has stopped you from fighting in the cause of Allah] What has stopped you from fighting in the cause of Allah [and the raising of the banner of "no god but Allah"?]. Because living here is a sin ... To my parents, who held me back from Jihad in the cause of Allah. I say to them, [by Allah] if you-if you make allies with the enemy, then Allah's power [the glorified the exalted] will ask you about that on the day of judgment, and nothing that you do can hold me back except of the [predestiny] Allah's hand to Allah [the glorified the exalted], and [if God wills], you will see the victory of (UI) the victory of Islam, and I pray to Allah's [the glorified the exalted] you as well are guided .... And finally I wanted to finish with a-with a poem that I wrote for the Mujahadeen across the globe. It is from your brother to his brothers.
You stand in my eyes as a white distant pearls who have forsaken their desires and the life of this world. I sit here, cold cement numbing my feet. The world once (UI) honor under Allah and his rule. The Muslims most noble and a mujahid hold on to Jihad to continue our rule. When we fell into Dunia and united no more as the pagan's rejoiced invading our shores. Our honor merely memories of times before and the centuries raced on as our power regressed. While the humans fell in darkness, suicidal depressed, the Christians and Jews have finally established their rule. In the hot burning desserts, the wind still blew as a few bright faces looked up at the moon. When Ramadan had begun and their faith renewed. So carry on oh brothers, and march on ahead to meet your creator and lie on some beds, and the martyr's don't die, so don't say they're dead. Explode on
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(UI). Explode on these [infidels]. Alleviate our pain. Assassinate their leaders, commanders, and chiefs from your brother to his brothers (UI).
November 18, 2010 Meeting Between UCE1, UCE2 and MOHAMUD
81. On November 18, 2010, UCE1 and UCE2 met MOHAMUD for the sixth time. This meeting was audio and video recorded by multiple recording devices. I have reviewed portions of these recordings. The UCEs picked up MOHAMUD at his apartment and drove to a storage unit that MOHAMUD had rented. After they arrived, MOHAMUD gave UCE2 a key to the unit.
82. The UCEs and MOHAMUD then drove to a hotel in Portland. During the drive, UCE1 asked MOHAMUD what he would be doing if he had not met the UCEs. MOHAMUD replied that he had intended on traveling to Yemen after making money during his Alaska trip. When they arrived at the hotel, the UCEs and MOHAMUD continued to discuss his plan for the November 26, 2010 attack. Using his laptop computer, MOHAMUD showed UCE2 the parking spots for the bomb that were on the thumb drive he had given the UCEs. When they were done looking at the computer, they left the hotel room and drove to Pioneer Square.
83. At Pioneer Square, they again discussed MOHAMUD's proposed parking spots for the bomb. MOHAMUD told the UCEs that he did not like the parking spot in front of the watch shop as much as the others because it was a block away and the blast might not cause as much damage. He told the UCEs that he liked the parking spot in front of another nearby store because there was a light rail stop across the street
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from that location, and MOHAMUD told the UCEs that he could place a camera in the van with a view of the stop. MOHAMUD explained that the camera would feed live footage to his laptop and he would wait until a train arrived before detonating the bomb in order to cause more casualties. While at the square the UCEs and MOHAMUD timed the walk from the square to the rendezvous location that MOHAMUD had identified earlier. After leaving the square, the UCEs drove to Corvallis and dropped MOHAMUD off at his apartment.
November 23, 2010 Meeting Between UCE2 and MOHAMUD 84. On November 23,2010, UCE2 met MOHAMUD at his apartment in Corvallis and drove him to the storage unit MOHAMUD had rented. This meeting was audio and video recorded by multiple recording devices. To date, I have not reviewed these recordings. However, I spoke with the agent who received a full statement from UCE2 regarding this meeting and learned the information set forth below. 85. During this meeting MOHAMUD helped UCE2 load items from the storage unit into UCE2's vehicle. Included among these items were two barrels, a gasoline can, electrical wires and a large box of screws. UCE2 told MOHAMUD that these things would be used in the construction of the bomb (the items had previously been placed in the storage unit by FBI Agents). UCE2 asked MOHAMUD if he had selected a name for the passport they would use to get him out of the country. MOHAMUD stated that he wanted to use the name BEAU COLEMAN. III
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86. MOHAMUD also provided UCE2 reflective traffic markers, hard hats, safety glasses, reflective vest and reflective gloves which, during the November 18, 2010 meeting, UCE1 had requested MOHAMUD obtain for the planned attack. MOHAMUD told the UCEs that they would wear the reflective gear and use the traffic markers when they parked the van . If they were approached by anyone, MOHAMUD stated that he would talk on their behalf because he had previously worked at a "public works" company. As they walked from the square to meet up with UCE1, they would drop the reflective clothing in a garbage can. During the meeting, MOHAMUD stated that he felt "good" and "calm." At the conclusion of the meeting UCE2 drove MOHAMUD back to his apartment.
November 26,2010 87. At approximately noon on November 26, 2010, UCE1 picked up MOHAMUD in Beaverton, Oregon. UCE1 drove MOHAMUD to a Portland hotel. The two waited at the hotel until UCE2 arrived. After UCE2's arrival, MOHAMUD and the UCEs left the hotel to look at the bomb which was parked in a van at a nearby location. 88. The bomb was contained in the back of a late-model, white full-size van. The bomb was inert and constructed by FBI bomb technicians. It consisted of six 55 gallon drums containing inert material, inert detonation cord, inert blasting caps, and approximately one gallon of diesel fuel which gave off a strong odor. In the front seat of the van agents placed a detonation mechanism which consisted of a cellular telephone, III
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a 9volt battery, an arming switch and a phone-jack plug. After looking at the bQmb, MOHAMUD, smiling, stated that it was "beautifuL"
89. MOHAMUD and the UCEs then returned to the hotel. Before leaving, UCE2 asked MOHAMUD if he was sure he wanted to go through with the attack. MOHAMUD twice replied that he was sure he wanted to go ahead with the attack. While they were in the room, the television was on. Local news coverage reported that approximately 25,000 would be at the tree lighting event. MOHAMUD smiled and indicated he was pleased with the size of the crowd. At approximately 4:45 p.m., UCE2 left the hotel to wait for UCE1 and MOHAMUD. UCE1 and MOHAMUD got in an SUV, picked up UCE2 and all three drove to the van. UCE1 dropped UCE2 and MOHAMUD at the van and left the area. UCE2 drove the van and MOHAMUD was in the passenger seat.
90. UCE2 and MOHAMUD drove to the location at Yamhill and Sixth Street by Pioneer Courthouse Square that MOHAMUD had previously identified as a place to park the bomb. Unbeknownst to MOHAMUD, the FBI and Portland Police Bureau ensured that the street and parking spot were open as the van approached. UCE2 parked the van. MOHAMUD then attached the blasting cap to the device. UCE2 turned on the phone that was designed to detonate the bomb and asked MOHAMUD to flip the toggle switch, which he did. These are the same steps MOHAMUD was shown when he detonated the practice bomb on November 4,2010. III
34

Case 3:10-cr-00475-KI Document 1 Filed 11/29/10 Page 36 of 37 Page ID#: 36
91. UCE2 and MOHAMUD then got out of the van. MOHAMUD and UCE2 put on the hard hats MOHAMUD had purchased earlier and walked to meet UCE1 at Southwest 10th and Salmon, the rendezvous location that MOHAMUD had picked earlier. UCE1 picked up MOHAMUD and UCE2 and the three drove to Union Station, the train station, to drop off UCE1. UCE2 and MOHAMUD then drove to the predetermined arrest location, a parking lot near Union Station. UCE2 pulled into the lot, parked, and UCE2 gave MOHAMUD the phone that purportedly detonated the bomb. UCE2 started to read the phone number to MOHAMUD but MOHAMUD appeared so eager that he started to read and dial the number off the paper UCE2 was holding faster than UCE2 could recite it. After he dialed, the FBI confirmed that the call went through and that the inert bomb did not detonate. UCE2 then suggested that MOHAMUD step out of the car and try it again where the signal might be better. MOHAMUD called the number again. He was taken into custody shortly thereafter. As MOHAMUD was being transported from the arrest location, he yelled "Allahu Akhbar" and began violently kicking the agents and officer in the transport vehicle and had to be restrained.
CONCLUSION 92. Based upon the aforementioned facts and my training and experience, there is probable cause that on or about November 26, 2010, MOHAMED OSMAN MOHAMUD committed a violation of Title 18, United States Code, Section 2332a(a)(2)(A), Attempted Use of a Weapon of Mass Destruction.
35

Case 3:10-cr-00475-KI Document 1 Filed 11/29/10 Page 37 of 37 Page ID#: 37 93. This affidavit has been reviewed and approved for presentation by
Assistant United States Attorneys Ethan D. Knight and Jeffrey Sweet, who concur that there is probable cause that MOHAMED OSMAN MOHAMUD committed a violation of Title 18, United States Code, Section 2332a(a)(2)(A), Atternpted Use of a Weapon of Mass Destruction.
Swor~ arxf! ~abefore me this 26th day of November 2010.
. ATES MAGISTRATE JUDGE
36

 
 Case 3:10-cr-00475-KI Document 24 Filed 02/23/11 Page 1 of 10 Page ID#: 221

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 10-475-KI

Plaintiff, vs.

OPINION AND ORDER

MOHAMED OSMAN MOHAMUD,

Defendant.

Dwight C. Holton United States Attorney District of Oregon Ethan D. Knight Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204-2902

Jeffrey S. Sweet Assistant United States Attorney 405 East 8th Avenue, Suite 2400 Eugene, Oregon 97401-2708

Attorneys for Plaintiff

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Stephen R. Sady Chief Deputy Federal Public Defender Steven T. Wax Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204
Attorneys for Defendant
KING, Judge: Defendant Mohamed Osman Mohamud is charged with attempting to use a weapon of
mass destruction, specifically a destructive device or explosive bomb, against a person or property within the United States, in violation of 18 U.S.C. § 2332a(a)(2)(A). Concerned about statements on the merits of this case made by Attorney General Eric Holder, defendant asks the court to direct the government to cease and desist from making inappropriate pretrial comments.
BACKGROUND Defendant objects to two statements made by the Attorney General on November 29 and December 10, 2010. The Attorney General made the first statement in response to questions following his prepared remarks in a press conference about intellectual property rights enforcement actions.
FEMALE VOICE: With respect to the alleged bombing situation in Portland, is this a serious matter?
ATTORNEY GENERAL HOLDER: I’m sorry. Is it a? FEMALE VOICE: A serious matter. The bombing situation in Portland. ATTORNEY GENERAL HOLDER: It’s a very serious matter. We were able to thwart somebody who clearly had the intention by his own words and by his actions to harm a great many people, to do real serious damage to property, to put at risk the lives of American citizens, including children.
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This was an individual who was given a number of opportunities to desist from his course of action, but who at every turn decided that he wanted to continue, and but for the interaction that he had with the FBI he might have come in contact with somebody who in fact would have made his plans tragically real.
Government’s Resp. to Def.’s Mot. for Order Directing the Government to Cease and Desist
from Inappropriate Pretrial Comment Ex. 1, at 19-20.
MALE VOICE: Attorney General, on the Portland arrest some critics say that this is another case of entrapment by the FBI in these matters.
I’m just wondering if you can address that and also discuss why these sting operations are so important at this time. This is I think the fifth or sixth case–sting–in the last year.
ATTORNEY GENERAL HOLDER: Yes. This is an investigation that I have been familiar with through the course, throughout its course, and I am confident that there is no entrapment here. No entrapment claim will be found to be successful.
There were, as I said, a number of opportunities that the subject in this matter, the defendant in this matter, was given to retreat, to take a different path. He chose at every step to continue.
Id. at 24-25.
Later in the day on November 29, defense counsel issued a Media Statement which reads,
in part:
One area we will certainly look at involves the agents’ actions and entrapment. Entrapment is a complex area of the law, limiting the steps government agents can take in orchestrating an offense, and the agents may have exceeded those limits.
The issues this case raises regarding the proper balance between public safety and government-created crime are difficult and complex. The presumption of innocence is an American value that should not be sacrificed to fear and sensationalism. We urge the public to withhold judgment as this case goes through the judicial process and the facts are fully developed.
Def.’s Mot. for Order Directing the Government to Cease and Desist from Inappropriate Pretrial
Comment Ex. D.
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On December 10, 2010, Attorney General Holder spoke at the Muslim Advocates’
Annual Dinner in San Francisco. He spoke at length about civil rights enforcement and national
security and stated in part:
I make no apologies for the [sic] how the FBI agents handled their work in executing the operation that led to Mr. Mohamud’s arrest. Their efforts helped to identify a person who repeatedly expressed his desire and intention to kill innocent Americans. As you may have read–and as the affidavit alleges–Mr. Mohamud chose the target location months in advance; provided FBI operatives with bomb components and detailed operational instructions; and repeatedly refused to change course when he was reminded that a large crowd–including children–would be in harm’s way.
Because of law enforcement’s outstanding work, Mr. Mohamud is no longer plotting attacks. He is now behind bars. And he will be brought to justice. But you also have my word that the Justice Department will–just as vigorously–continue to pursue anyone who would target Muslims, or their houses of worship.
Those who characterize the FBI’s activities in this case as “entrapment” simply do not have their facts straight–or do not have a full understanding of the law.
Id. Ex. F, at 3, available at http://www.justice.gov/iso/opa/ag/speeches/2010/ag-speech-
1012101.html (last visited Feb. 22, 2011).
The general press reported both of the Attorney General’s comments.
The Department of Justice has Statements of Policy regarding such comments, as set
forth in the Release of Information by Personnel of the Department of Justice Relating to
Criminal and Civil Proceedings. Relevant portions of the Policy, also known as guidelines, are:
(2) While the release of information for the purpose of influencing a trial is, of course, always improper, there are valid reasons for making available to the public information about the administration of the law. The task of striking a fair balance between the protection of individuals accused of crime or involved in civil proceedings with the Government and public understandings of the problems of controlling crime and administering government depends largely on the
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exercise of sound judgment by those responsible for administering the law and by representatives of the press and other media.
28 C.F.R. § 50.2(a)(2).
(2) At no time shall personnel of the Department of Justice furnish any statement or information for the purpose of influencing the outcome of a defendant’s trial, nor shall personnel of the Department furnish any statement or information, which could reasonably be expected to be disseminated by means of public communication, if such a statement or information may reasonably be expected to influence the outcome of a pending or future trial.
Id. § 50.2(b)(2).
(3) Disclosures should include only incontrovertible, factual matters, and should not include subjective observations. In addition, where background information or information relating to the circumstances of an arrest or investigation would be highly prejudicial or where the release thereof would serve no law enforcement function, such information should not be made public.
Id. § 50.2(b)(3).
(6) The release of certain types of information generally tends to create dangers of prejudice without serving a significant law enforcement function. Therefore, personnel of the Department should refrain from making available the following:
(i) Observations about a defendant’s character.
(ii) Statements, admissions, confessions, or alibis attributable to a defendant, or the refusal or failure of the accused to make a statement.
(iii) Reference to investigative procedures such as fingerprints, polygraph examinations, ballistic tests, or laboratory tests, or to the refusal by the defendant to submit to such tests or examinations.
(iv) Statements concerning the identity, testimony, or credibility of prospective witnesses.
(v) Statements concerning evidence or argument in the case, whether or not it is anticipated that such evidence or argument will be used at trial.
(vi) Any opinion as to the accused’s guilt, or the possibility of a plea of guilty to the offense charged, or the possibility of a plea to a lesser offense.
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Id. § 50.2(b)(6). DISCUSSION
Defendant is concerned that his ability to obtain a fair trial by unbiased jurors is compromised by the comments of the Attorney General. Defendant argues that those comments exceed the spirit and the letter of the government’s policy about pretrial publicity. According to defendant, the court should prohibit additional comments by the Attorney General on the merits of the case for three reasons: (1) the case involves a high risk of pretrial prejudice and a polluted jury pool; (2) the statements suggest that government attorneys have special knowledge about actions taken by the government agents even though the attorneys were not present at the meetings with defendant, particularly the first encounter when the recording equipment failed; and (3) the statements do not account for the legal methodology adopted by the Supreme Court and the Ninth Circuit about entrapment.
Defendant claims the government fails to distinguish comments on law enforcement actions generally from comments on the merits of a specific pending criminal case. Moreover, defendant argues that by his comments the Attorney General suggests that a defense is unavailable, that defendant is guilty, and that anyone who disagrees does not know the facts or law. Because the defense considers prosecutorial statements prejudging the case to be inappropriate and harmful to the right to a fair trial, and because the media echoes those statements, defendant asks the court to proscribe any future violations of the Statements of Policy quoted above.
The government notes that defense counsel raised the issue of entrapment at defendant’s first appearance as well as in the Media Statement they issued on November 29. The government
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argues that these defense statements emphasized the entrapment defense. The government characterizes the Attorney General’s remarks as his response to concerns raised about undercover sting operations and claims of entrapment in this case as well as more generally. According to the government, as the country’s chief law enforcement official, the Attorney General has the responsibility to address criticism of law enforcement actions. Thus, the government argues the Attorney General’s comments were not inappropriate because they struck a proper balance between defendant’s due process rights and the need to inform the public about law enforcement actions.
The Attorney General’s comments on both occasions related to a high profile, pending criminal proceeding and thus are subject to the Policy Statement the Department of Justice adopted, as set forth in the Release of Information by Personnel of the Department of Justice Relating to Criminal and Civil Proceedings, which I quoted above. The Policy Statement “reflects and formalizes the standards to which representatives of the Department have adhered in the past. Nonetheless, it will be helpful in ensuring uniformity of practice to set forth the following guidelines for all personnel of the Department of Justice.” 28 C.F.R. § 50.2(a)(3). I note that the prohibitions set forth in the guidelines are generally recognized as basic protection of the presumption of innocence and a defendant’s right to a fair trial.
I recognize that the Attorney General’s comments on November 29 were in response to questions from the media following his prepared remarks on another subject. Further, his comments on December 10 formed a small part of his speech at the Muslim Advocate’s Annual Dinner in which he addressed the relationship between the Department of Justice and the Muslim and Arab-American communities. The setting and context of the statements on these two
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occasions mitigate against any finding that the information was released for the purpose of influencing the trial. The Attorney General’s comments on defendant’s case were primarily general statements supporting defendant’s arrest and the use of sting operations. I am concerned, however, about the statements regarding defendant’s state of mind and specific activities. These comments tended towards a discussion of evidence and legal conclusions, rather than what the government alleged or general information regarding the challenges of controlling crime.
I do not believe that the Attorney General made the comments to influence the outcome of the trial. In this high profile case, however, there are statements which I conclude constitute a breach of the Policy. The objectionable statements include:1
– The November 29 statement that the government was able to thwart somebody who clearly had the intention to harm a great many people, followed by a discussion of defendant’s state of mind. – The November 29 statement that the Attorney General was familiar with the investigation and was confident that there was no entrapment. – The December 10 statement that the FBI’s efforts helped identify a person who repeatedly expressed his intention to kill innocent Americans. These statements breach the guidelines’ direction that “disclosures should include only incontrovertible, factual matters, and should not include subjective observations.” Id. § 50.2(b)(3). Since the statements relate “to the circumstances of an arrest or investigation [that] would be highly prejudicial or where the release thereof would serve no law enforcement function,” id., the Attorney General should not have made them. Further, the Attorney General’s comments referenced “[s]tatements, admissions, confessions, or alibis attributable to a defendant” and gave an “opinion as to the accused’s guilt.” Id. § 50.2(b)(6).
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It is clear from a reading of the Statement of Policy, that while it is acceptable for Department of Justice personnel to make statements regarding general law enforcement policies, it is inappropriate for them to give personal opinions regarding the supposed facts of the case or to make available a defendant’s statements that could be construed as an indication of guilt.
The government contends that the provisions of the Policy are not binding. According to the government, the Attorney General’s comments struck a proper balance between defendant’s due process rights and the need to inform the public on law enforcement actions, and thus are consistent with the Policy. The government states, “Attorneys for the government will continue to adhere to the standards of professional responsibility when discussing the case and will continue to prosecute this case in this court, and not in the media.” Government’s Resp. to Def.’s Mot. for Order Directing the Government to Cease and Desist from Inappropriate Pretrial Comment 9.
Even if the Policy is not binding, I find that it falls within the standards of professional responsibility which the government intends to follow. I accept the representation of the United States Attorney’s Office that the government will adhere to those standards, including the Statements of Policy, when prosecuting this case. I expect this level of conduct from all personnel of the Department of Justice, including the Attorney General. The lawyers handling this case for the government and the defense are experienced and professional trial attorneys, and I am confident that all parties will take into consideration their professional responsibilities to strike a fair balance between the protection of individuals accused of a crime and the appropriate administration of government. Given that there is an applicable standard which must be adhered
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to, I do not believe the entry of a more specific order controlling future public comment is

necessary at this time.

CONCLUSION

Defendant’s Motion for Order Directing the Government to Cease and Desist from

Inappropriate Pretrial Comment (#14) is denied as explained in the above discussion concerning

the Department of Justice’s Statements of Policy set forth in the Release of Information by

Personnel of the Department of Justice Relating to Criminal and Civil Proceedings, 28 C.F.R.

§ 50.2.

IT IS SO ORDERED.

Dated this

23rd

day of February, 2011.

/s/ Garr M. King Garr M. King United States District Judge

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 Case 3:10-cr-00475-KI Document 126 Filed 05/07/12 Page 1 of 16 Page ID#: 1063

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 3:10-CR-00475-KI

Plaintiff, v.

OPINION AND ORDER

MOHAMED OSMAN MOHAMUD,

Defendant.

S. Amanda Marshall United States Attorney District of Oregon Ethan D. Knight Jolie F. Zimmerman Assistant United States Attorneys 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204
Attorneys for Plaintiff
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Steven T. Wax Federal Public Defender Stephen R. Sady Assistant Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204
Attorneys for Defendant
KING, Judge: Defendant Mohamed Osman Mohamud is charged with attempting to use a weapon of
mass destruction, specifically a destructive device or explosive bomb, against a person or property within the United States, in violation of 18 U.S.C. § 2332a(a)(2)(A). On November 29, 2010, the government filed a FISA Notification which gave Mohamud notice that the government intended to offer into evidence, or otherwise use or disclose in the case’s proceedings, information obtained and derived from electronic surveillance and a physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), as amended, 50 U.S.C. §§ 1801-1812, 1821-1829. Before the court is Mohamud’s Motion to Disclose FISARelated Material Necessary to Litigate Motions for Discovery and for Suppression of the Fruits of FISA Activity [54]. I deny the motion for the reasons explained below.
DISCUSSION Mohamud asks the court to: (1) disclose all FISA warrants, applications, and their fruits to defense counsel under the FISA provision calling for disclosure of information to an aggrieved person when necessary for litigation or pretrial motions or when required by due process; (2) review the FISA warrants under a de novo standard; (3) suppress all evidence and fruits of the evidence obtained through FISA, if the government violated any FISA provisions; and (4) find
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FISA unconstitutional under any of several theories and suppress all evidence and fruits of the evidence obtained through FISA.
The government asks the court to: (1) conduct an in camera, ex parte review of the FISA dockets and the government’s classified submission; (2) hold that the FISA surveillance was lawfully authorized and lawfully conducted in compliance with the Fourth Amendment; (3) hold that disclosure to the defense of the FISA dockets and the government’s classified submissions is not required because the court can make an accurate determination of the legality of the surveillance without disclosure; (4) find FISA constitutional; and (5) order the Classified Information Security Officer to maintain the FISA dockets and the government’s classified submissions under seal. I. Overview of FISA
FISA provides a procedure for the executive branch to obtain judicial orders allowing electronic surveillance or physical searches when a significant purpose of the requested surveillance is to obtain foreign intelligence information. United States v. Abu-Jihaad, 630 F.3d 102, 117-119 (2nd Cir. 2010) (FISA’s “significant purpose” requirement does not violate the Fourth Amendment), cert. denied, 131 S. Ct. 3062 (2011).
FISA requires the Chief Justice to designate eleven United States District Judges to sit as judges of the Foreign Intelligence Surveillance Court (“FISC”) to consider ex parte applications for electronic surveillance and physical searches when a significant purpose of the application is to obtain foreign intelligence information, as defined in FISA. 50 U.S.C. § 1803(a)(1). The Chief Justice also designates three United States District or Circuit Judges to sit on a court to review denials of FISA applications. 50 U.S.C. § 1803(b).
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The parties agree that Mohamud is a “United States person” as defined by FISA, and is thus entitled to certain additional protections. 50 U.S.C. § 1801(i).
FISA defines “Foreign intelligence information” as: (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against– (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities . . . ; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to– (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States.
50 U.S.C. § 1801(e).1 A. FISA Applications To obtain an order to conduct electronic surveillance under FISA, a federal officer must
apply to one of the FISC judges. The Attorney General must approve each application “based upon his finding that it satisfies the criteria and requirements” of FISA. 50 U.S.C. § 1804(a). The application must include:
(1) the identity of the Federal officer making the application;
1 I will generally cite only to the portion of FISA which pertains to electronic surveillance, 50 U.S.C. §§ 1801-1812. For the most part, there are similar provisions in the portions of FISA which pertain to physical searches, 50 U.S.C. §§ 1821-1829. The differences are not relevant to the analysis. Page 4 - OPINION AND ORDER

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(2) the identity, if known, or a description of the specific target of the electronic surveillance;
(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that–
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) 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;
(4) a statement of the proposed minimization procedures;
(5) a description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(6) a certification or certifications [from one of a list of high-ranking executive branch officials with national security responsibilities]–
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and
(E) including a statement of the basis for the certification that–
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
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(7) 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;
(8) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; and
(9) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter.
50 U.S.C. § 1804(a).
FISA requires minimization procedures, defined as:
(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[.]
50 U.S.C. § 1801(h)(1).
FISA allows evidence of a crime to be retained, with minimization procedures also
including “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)(3).
B. FISA Orders
A FISC judge enters an ex parte order approving an application only if the judge finds:
(1) the application was made by a federal officer and approved by the Attorney General;
(2) there is probable cause to believe “(A) the target of the electronic surveillance is a foreign
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power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and (B) 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;” (3) the proposed minimization procedures meet FISA’s requirements; and (4) the application contains all statements and certifications required by FISA and, if the target is a United States person, the certification or certifications are not clearly erroneous. 50 U.S.C. § 1805(a). In deciding whether probable cause exists, the FISC judge “may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.” 50 U.S.C. § 1805(b).
A FISA order must specify: (1) the identity, if known, or a description of the specific target; (2) the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known; (3) the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance; (4) the means by which the electronic surveillance will be effected and whether physical entry will be used; and (5) the time period during which the electronic surveillance is approved. 50 U.S.C. § 1805(c)(1). Moreover, the order must direct that the minimization procedures be followed. 50 U.S.C. § 1805(c)(2)(A). FISA orders can approve electronic surveillance and physical searches targeting a United States person for up to 90 days. 50 U.S.C. § 1805(d)(1). The FISC judge may assess compliance with the minimization procedures at or before the end of the approved time period. 50 U.S.C. § 1805(d)(3).
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C. Judicial Review of FISA Orders An aggrieved person may move to suppress evidence obtained under a FISA order on two grounds: (1) the information was unlawfully acquired under FISA; or (2) the surveillance was not performed in conformity with the FISA order. 50 U.S.C. § 1806(e). Attorney General Eric H. Holder, Jr., filed a Declaration and Claim of Privilege in which he states that “it would harm the national security of the United States to disclose or hold an adversarial hearing with respect to the FISA Materials.” Holder Decl. ¶ 3, filed as Government’s Am. Unclassified Mem. in Opp’n to Def.’s Mot. to Disclose FISA-Related Material, ECF No. 88, Ex. 1. If an aggrieved person files a motion to suppress or to obtain FISA applications or orders or evidence obtained through FISA orders, and the Attorney General files a declaration stating that disclosure or an adversary hearing would harm the national security of the United States, the district court shall review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance. 50 U.S.C. § 1806(f). Thus, the court cannot make a disclosure to defendant unless the court first concludes that the government’s filed materials are inadequate for the court to make an “accurate determination” of whether the FISA order was correctly obtained and the surveillance was in accord with the order. “[D]isclosure of FISA materials is the exception and ex parte, in camera
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determination is the rule.” Abu-Jihaad, 630 F.3d at 129 (internal quotation omitted); United States v. el-Mezain, 664 F.3d 467, 567 (5th Cir. 2011) (same, quoting Abu-Jihaad). The court is unaware of, and Mohamud has not directed me to, any case in which a court granted a defense motion to disclose FISA applications and orders.
If the district court “determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.” 50 U.S.C. § 1806(g). II. Constitutionality of FISA
A. Patriot Act of 2001 Amendments to FISA Mohamud contends that FISA, as amended by the Patriot Act, violates the Fourth Amendment’s prohibition on unreasonable searches and seizures. Further, Mohamud argues that even prior to the amendment, FISA violates the Fourth Amendment unless it is interpreted to require that the primary purpose of the surveillance is to obtain foreign intelligence information. As originally written in 1978, FISA required a national security officer to certify that “the purpose” of the surveillance is to obtain foreign intelligence information. 50 U.S.C. § 1804(a)(7)(B) (pre-2001 versions). Several circuits followed a pre-FISA case, United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), to read a “primary purpose” requirement into this language. See In re: Sealed Case, 310 F.3d 717, 725-728 (FISA Ct. Rev. 2002) (explaining history of the primary purpose test). The Patriot Act of 2001 amended FISA, changing “the purpose” to “a significant purpose.” USA Patriot Act of 2001, Pub. L. 107-56, § 218, 115 Stat. 291.
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Case 3:10-cr-00475-KI Document 126 Filed 05/07/12 Page 10 of 16 Page ID#: 1072
In Sealed Case, the FISA Court of Review addressed whether the Patriot Act amendment to FISA violated the Fourth Amendment. The court first held that, prior to the amendment, FISA “did not preclude or limit the government’s use or proposed use of foreign intelligence information, which included evidence of certain kinds of criminal activity, in a criminal prosecution.” Sealed Case, 310 F.3d at 727. This conclusion undermined the holdings of several courts of appeals that FISA could only be used if, in pursuing foreign intelligence information, the government’s primary purpose was not for a criminal prosecution. Id. at 722. The FISA Court of Review went on to consider the constitutionality of the Patriot Act amendment, which imposed the “significant purpose” requirement on obtaining foreign intelligence. The court compared FISA procedures with procedures to obtain an ordinary criminal wiretap under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-22. It also considered the “underlying rationale of the primary purpose test” which other courts had imposed as a constitutional requirement. Id. at 742. After a lengthy analysis, the court held:
[W]e think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from [United States v. United States District Court (Keith), 407 U.S. 297, 92 S. Ct. 2125, 2139 (1972)], that FISA as amended is constitutional because the surveillances it authorizes are reasonable. Id. at 746. Numerous other courts have held that FISA’s significant purpose requirement does not violate the Fourth Amendment. Abu-Jihaad, 630 F.3d at 128; El-Mezain, 664 F.3d at 568-70; United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005).
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Case 3:10-cr-00475-KI Document 126 Filed 05/07/12 Page 11 of 16 Page ID#: 1073
I see no error in these analyses and adopt the holding that the “significant purpose” requirement in FISA does not violate the Fourth Amendment.
B. Other Constitutional Issues Mohamud notes that FISA provides for the disclosure of FISA materials to the extent due process requires. 50 U.S.C. § 1806(g). He claims that the ex parte FISA procedures violate due process, his right to be present at all critical stages of the criminal process, and his right to the effective assistance of counsel. Numerous courts have held that FISA’s ex parte proceedings do not violate a defendant’s due process rights. United States v. Ott, 827 F.2d 473, 476-77 (9th Cir. 1987) (due process not violated by court’s reliance on Attorney General’s affidavit based on sealed exhibits, by lack of disclosure to defense counsel who had security clearances, or by failure to provide more liberal discovery normally permitted in military context); Abu-Jihaad, 630 F.3d at 129; El-Mezain, 664 F.3d at 566-68 (balancing test in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976), does not require disclosure of FISA materials because the court’s ex parte review adequately assured that defendant’s constitutional rights were not violated and, as a matter of national security, the government has a substantial interest in maintaining the secrecy of the materials); Damrah, 412 F.3d at 624 (defendant’s reliance on Mathews to argue that the Due Process Clause requires an evidentiary hearing is misplaced because FISA’s requirement that the district court conduct an ex parte review of FISA materials does not deprive a defendant of due process). Mohamud’s defense counsel provided me with ex parte filings in which they explain some of the theories of the defense. This information allows me to make better determinations of whether a particular piece of information might be exculpatory and discoverable under Brady. I
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Case 3:10-cr-00475-KI Document 126 Filed 05/07/12 Page 12 of 16 Page ID#: 1074
am not persuaded that due process requires disclosure of the materials here, even in light of the circumstances in Mohamud’s case.
The District of Columbia Circuit analyzed the argument that FISA’s failure to require disclosure and an adversary hearing violates a defendant’s Fifth and Sixth Amendment rights. The court reasoned that FISA is concerned with foreign intelligence surveillance.
The statute is meant to reconcile national intelligence and counterintelligence needs with constitutional principles in a way that is consistent with both national security and individual rights. In FISA the privacy rights of individuals are ensured not through mandatory disclosure, but through its provisions for in-depth oversight of FISA surveillance by all three branches of government and by a statutory scheme that to a large degree centers on an expanded conception of minimization that differs from that which governs law-enforcement surveillance. United States v. Belfield, 692 F.2d 141, 148 (D.C. Cir. 1982) (internal quotation omitted). I am unpersuaded that the Patriot Act amendments undermine the holding in Belfield. FISA still requires that a significant purpose of the surveillance is to obtain foreign intelligence. I am also unpersuaded that the judiciary must defer to the executive branch during a FISA ex parte review to the extent that the constitutional separation of powers is violated. United States v. Cavanagh, 807 F.2d 787, 791 (9th Cir. 1987) (FISA’s probable cause requirements provide ample judicial scrutiny of the government’s need for the intelligence information). Mohamud also contends the FISA applications “may” contain intentional or reckless material falsehoods or omissions significant enough for the surveillance to violate the principles in Franks v. Delaware, 438 U.S. 154 (1978). Mohamud claims this argument is sufficient to entitle him to a Franks hearing so he can inquire into the affiant’s statements on the FISA applications.
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Case 3:10-cr-00475-KI Document 126 Filed 05/07/12 Page 13 of 16 Page ID#: 1075
In Franks, the Supreme Court held that, under certain circumstances, a defendant is entitled to an evidentiary hearing in which he can attack the veracity of a search warrant affidavit or challenge the omission of material facts in the affidavit. When a defendant seeks a Franks hearing because of “allegations of material false statements or omissions in an affidavit supporting a search warrant, a defendant must make a substantial preliminary showing that false or misleading statements were (1) deliberately or recklessly included in an affidavit submitted in support of a search warrant; and (2) necessary to the finding of probable cause.” United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011) (internal quotations omitted).
Because Mohamud has not seen the FISA applications, he can only speculate that there may be false statements or omissions. This is insufficient to qualify as a substantial preliminary showing. I realize the difficult position Mohamud’s defense team is in, but the denial of a Franks hearing is commonplace and acceptable in the FISA context. See El-Mazain, 664 F.3d at 570; Damrah, 412 F.3d at 624-25; Abu-Jihaad, 630 F.3d at 130. III. Review of FISA Applications and Orders
A. Standard of Review The first issue is to determine the appropriate standard of review. Courts are split–some apply a deferential standard to the FISC’s probable cause determinations and others perform a de novo review. United States v. Hammoud, 381 F.3d 316, 332 (4th Cir. 2004), rev’d on other grounds, 543 U.S. 1097, opinion reinstated in pertinent part, 405 F.3d 1034 (4th Cir. 2005) (de novo); Abu-Jihaad, 630 F.3d at 130 (deferential). Without deciding the issue, I will make a de novo review.
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Case 3:10-cr-00475-KI Document 126 Filed 05/07/12 Page 14 of 16 Page ID#: 1076
FISA expressly obliges the court to give more deference to the certifications; “if the target is a United States person, [the court should ensure] the certification or certifications are not clearly erroneous.” 50 U.S.C. § 1805(a).
Concerning minimization, “Congress recognized that ‘no electronic surveillance can be so conducted that innocent conversations can be totally eliminated.’” Hammoud, 381 F.3d at 334 (quoting S. Rep. No. 95-701, at 39 (1978), reprinted in 1978 U.S.C.C.A.N. 3973, 4008). The test is whether the government made “a good faith effort to minimize the acquisition and retention of irrelevant information.” Id.
B. Results of the Court’s Ex Parte Review The court made a careful de novo ex parte review of the FISA applications and draws the following conclusions: (1) the applications contain all of the required information, as specified in 50 U.S.C. § 1804(a); (2) the applications contain the required certifications from an appropriate high-ranking official of the United States government, and the certifications are not clearly erroneous; (3) the applications contain sufficient information to support the FISC’s probable cause determinations; and (4) the proposed minimization procedures meet FISA’s requirements. I find that the FISA surveillance was lawfully authorized by the FISC. I also find that the government agents followed appropriate minimization procedures and conducted the surveillance within the time periods authorized by the FISA orders. Thus, I conclude the FISA surveillance was lawfully conducted.
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Case 3:10-cr-00475-KI Document 126 Filed 05/07/12 Page 15 of 16 Page ID#: 1077
C. The Court’s Ability to Make an Accurate Determination of Legality
Mohamud argues several reasons why this court cannot make an accurate determination
of the legality of the FISA surveillance without the assistance of defense counsel after disclosure
of the FISA applications and orders to the defense.
– Mohamud claims there are complex questions concerning whether he, as a United States person, fits within the FISA definition of an agent of a foreign power and that definition’s relationship to criminal activity.
– Because Mohamud became 18 years old on August 11, 2009, he contends that any surveillance prior to that date creates additional issues concerning the reasonableness of the surveillance.
– Noting the discovery the government provided to the defense includes material Mohamud read and wrote, he argues defense counsel’s assistance is necessary to enforce the protection of his First Amendment rights expressly contained in FISA.
– Mohamud claims defense involvement is needed to assist the court in determining if the applications met FISA’s necessity requirement.
– Mohamud is concerned that the apparent breadth of the surveillance raises potential minimization problems which require defense involvement to properly address.
– Mohamud notes federal agents’ involvement in the November 2009 state investigation into unfounded allegations of his sexual misconduct. He argues that without disclosure of the FISA materials, the defense cannot evaluate causation regarding state actions or any taint arising from searches going beyond his consent.
– Due to the length of the surveillance, Mohamud contends that the defense must examine all FISA orders to determine if there were any lapses of time between extensions and whether extensions were all obtained under appropriate FISA procedures.
– Mohamud speculates that the FISA applications may contain intentional or reckless material falsehoods or omissions and that the surveillance thus may violate the principles of Franks v. Delaware, 438 U.S. 154 (1978).
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Case 3:10-cr-00475-KI Document 126 Filed 05/07/12 Page 16 of 16 Page ID#: 1078

The government claims that most of these factors are present in any court’s review of

FISA applications and orders and, thus, this court is qualified to perform the ex parte review

without the assistance of defense counsel. I generally agree, but assure Mohamud that I kept his

arguments in mind during my review of the FISA materials. Moreover, I saw nothing during the

review that gave me cause for concern that false statements were made to support the FISA

application materials. I cannot comment on the content of the FISA applications, but note that

they were well-supported in great detail. I see no basis for a Franks hearing.

CONCLUSION

Mohamud’s Motion to Disclose FISA-Related Material Necessary to Litigate Motions for

Discovery and for Suppression of the Fruits of FISA Activity [54] is denied.

IT IS SO ORDERED.

Dated this 7th

day of May, 2012.

/s/ Garr M. King Garr M. King United States District Judge

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 UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 3:10-CR-00475-KI

Plaintiff, v.

OPINION AND ORDER

MOHAMED OSMAN MOHAMUD,

Defendant.

S. Amanda Marshall United States Attorney District of Oregon Ethan D. Knight Pamala R. Holsinger Jolie F. Zimmerman Assistant United States Attorneys 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204
Attorneys for Plaintiff

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Stephen R. Sady Chief Deputy Federal Public Defender Steven T. Wax Federal Public Defender Ellen C. Pitcher Assistant Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204
Attorneys for Defendant
KING, Judge: Defendant Mohamed Osman Mohamud is charged with attempting to use a weapon of mass
destruction, specifically a destructive device or explosive bomb, against a person or property within the United States, in violation of 18 U.S.C. § 2332a(a)(2)(A). Before the court is defendant’s Motion for CIPA Rulings and Disclosures [143]. This opinion discusses some of the general concerns raised by Mohamud and explains the standards the court is following. I will soon file several public orders explaining the court’s previous CIPA rulings. These orders have less specificity than Mohamud requests but should be specific enough to allow Mohamud to appeal them, if necessary.
DISCUSSION I. The Necessity of Public Orders
As background, the government explains that on April 18, 2011 and a few later dates, it moved ex parte and in camera for rulings that certain classified materials potentially discoverable by Mohamud either fail to meet the standard for disclosure because they are not relevant and helpful to the defense or are otherwise subject to deletion or substitution under Section 4 of the
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Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. III. § 4. The court ruled on the motions ex parte by filing classified orders but did not file any public orders.
Mohamud asks the court to enter public orders addressing any of the court’s prior or future rulings on the production of classified material. He asks the orders to be as broad and specific as possible, consistent with the need to avoid unnecessary disclosure of classified information, in the event appellate review is required. Additionally, Mohamud asks the court to include five elements: (1) a written order encompassing the correct standard for determining if information constitutes Brady material, including that doubts should be resolved in favor of disclosure; (2) the government should produce Brady material immediately and not when the government deems it to be in time for effective use at trial; (3) the government has a duty to learn of favorable evidence; (4) all government material should be reviewed under the correct Brady standard; and (5) the Brady obligation is continuing and the government should produce new Brady material as soon as it is discovered.
The government does not oppose the public filing of orders reflecting the fact of and the ultimate basis for the court’s rulings on the government’s prior or future motions to delete or substitute discovery under CIPA. The government does oppose Mohamud’s request for considerable specificity in the orders. Instead, the government intends to suggest rulings in generic terms, such as by indicating the court found certain information is discoverable notwithstanding the government’s privilege, but defendant’s need for the information will be satisfied by the production of redacted or substituted materials.
The court has been remiss in failing to file public orders reflecting, as much as possible, the rulings on the production of classified material. United States v. Gurolla, 333 F.3d 944, 951 n.7
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(9th Cir. 2003) (“it is essential that the prosecution and the defense, and especially the latter, be advised that the district court has made a ruling protecting classified information from disclosure, so that the order may be challenged on appeal”). The court will file orders for the prior rulings and any future rulings made in the case. The issue, then, is what can be disclosed in the public rulings and who will draft the orders.
The government submitted proposed unclassified orders relating to the prior CIPA rulings. Mohamud objects to the court entering an order drafted by the government. He argues the court must carefully write the orders to accurately reflect, to the extent permissible, what the court reviewed, the substance of the discovery rulings, and the information to which the rulings apply.
I am concerned about the inadvertent disclosure of classified information and appreciate the government’s proposed orders as examples of what information can be made public. I intend to use some of the language but will edit the orders to address some of the specific objections Mohamud made to them.
Mohamud objects that the proposed orders should include the dates of production and be easily correlated with the notification of CIPA filings. I agree this will make the record more understandable and will make these changes. Mohamud also objects to providing rulings for two motions in one order, but the government proposed this to more easily handle associated motions.
Mohamud objects to statements in the proposed orders which make factual findings on whether the government has conducted a thorough review of the classified information and has fully complied with any discovery obligations. I will limit findings to those items of which I have personal knowledge.
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Mohamud makes other requests which I cannot accommodate because to do so would provide too much information about the classified material. These requests include providing a general description of the material reviewed, the number of pages reviewed, and a correlation to any summaries or substitutions produced as a result of the ruling. Mohamud also asks for the defense team members who possess security clearances to play a role in determining the adequacy of any summaries or substitutions. CIPA, however, expressly provides for the government to make such requests ex parte. 18 U.S.C. app. III. § 4. II. Standards for Discovery
I will also address some other disputes about the discovery in this case. The parties dispute the standard concerning the disclosure of exculpatory evidence. The government cites Youngblood v. West Virginia, 547 U.S. 867, 126 S. Ct. 2188 (2006), for its statement that evidence is material under Brady “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 870 (internal quotation omitted). In Youngblood, the Court was analyzing whether a Brady violation had occurred. As I stated in court on April 17, 2012, I would use the pretrial standard as explained in United States v. Price, 566 F.3d 900, 913 n.14 (9th Cir. 2009) (quoting United States v. Acosta, 357 F.Supp.2d 1228, 1239-40 (D. Nev. 2005)):
[T]he ‘materiality’ standard usually associated with Brady . . . should not be applied to pretrial discovery of exculpatory materials. . . . [J]ust because a prosecutor’s failure to disclose evidence does not violate a defendant’s due process rights does not mean that the failure to disclose is proper. . . . [T]he absence of prejudice to the defendant does not condone the prosecutor’s suppression of exculpatory evidence . . . . [Rather,] the proper test for pretrial disclosure of exculpatory evidence should be an evaluation of whether the evidence is favorable
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to the defense, i.e., whether it is evidence that helps bolster the defense case or impeach the prosecutor’s witnesses. . . . [I]f doubt exists, it should be resolved in favor of the defendant and full disclosure made. . . . [T]he government [should therefore] disclose all evidence relating to guilt or punishment which might reasonably be considered favorable to the defendant’s case, even if the evidence is not admissible so long as it is reasonably likely to lead to admissible evidence. Mohamud is concerned the government may not have followed this standard when reviewing classified discovery prior to my ruling. The government states it has been complying with this broader discovery obligation. I accept the government’s representation. There is also a dispute on the correct standard to be used for the disclosure of classified information. Mohamud contends if the classified information is relevant and helpful to the defense, the court must order its disclosure in redacted, summary, or stipulated facts form. According to Mohamud, national security concerns do not allow the government to completely withhold the substance of the discovery from the defendant. The government reads the cases as first requiring the court to determine if the classified information is relevant and helpful to the defense. If so, the court must then balance the public interest against the defendant’s right to prepare his defense. According to the government, overriding national security concerns may outweigh the defendant’s need for the classified information–at least in its original form–even if the information is relevant and helpful to the defense. CIPA creates a pretrial procedure for ruling on the admissibility of classified information. United States v. Klimavicius-Viloria, 144 F.3d 1249, 1260 (9th Cir. 1998). The government must first formally claim that the state secret privilege protects the information. Id. at 1261. As shown
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in Klimavicius, Courts then use the test first explained in Roviaro v. United States, 353 U.S. 53, 77
S. Ct. 623 (1957):
In order to determine whether the government must disclose classified information, the court must determine whether the information is “relevant and helpful to the defense of an accused.” Yunis, 867 F.2d at 623 (quoting Roviaro v. United States, 353 U.S. 53, 60–61, 77 S. Ct. 623, 1 L. Ed.2 d 639 (1957)); see also Pringle, 751 F.2d at 428; cf. Sarkissian, 841 F.2d at 965 (the court can engage in balancing). Under this test, information meets the standard for disclosure “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).
Klimavicius, 144 F.3d at 1261.
Other courts have adopted a lower standard for disclosure:
If the evidence is discoverable but the information is privileged, the court must next decide whether the information is helpful or material to the defense, i.e., useful “to counter the government’s case or to bolster a defense.” United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir.1993) (interpreting materiality standard under Federal Rule of Criminal Procedure 16(a)(1)). 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, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), to disclose exculpatory information. See id. at 87, 83 S. Ct. 1194. “[I]nformation can be helpful without being ‘favorable’ in the Brady sense.” Mejia, 448 F.3d at 457 [United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006)].
United States v. Aref, 533 F.3d 72, 80 (2nd Cir. 2008).
The Aref standard is more in line with the pretrial discovery standard explained in Price.
As I explained above, we are following the Price standard here.
If a document meets the standard for disclosure but no substitution is adequate, the court
can then balance the defendant’s interests in preparing a defense against the national security
interest. As explained in United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988):
Defendants argue that CIPA forbids balancing national security concerns against defendant’s need for documents. Their argument is meritless. Congress
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intended section 4 [of CIPA] to clarify the court’s powers under Fed. R. Crim. P. 16(d)(1) to deny or restrict discovery in order to protect national security. S. Rep. No. 823, 96th Cong., 2d Sess. 6, reprinted in 1980 U.S. Code and Cong. News 4299-4300. On issues of discovery, the court can engage in balancing. Id. See also United States v. Pringle, 751 F.2d 419, 426-27 (1st Cir. 1984).
Roviaro approved balancing the various interests in the context of whether to identify a
confidential informant. The Court stated the following:
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.
Roviaro, 353 U.S. at 62.
The Ninth Circuit follows Roviaro in the CIPA context as well. Klimavicius, 144 F.3d at
1261. Thus, I agree with the government that national security interests can outweigh a
defendant’s need for classified information. I am making all efforts, however, to provide as much
information to the defense as possible and am well aware of CIPA’s use of redacted, summary, and
stipulated forms of information.
CONCLUSION
Defendant’s Motion for CIPA Rulings and Disclosures [143] is granted in part.
IT IS SO ORDERED.
Dated this 2nd day of October, 2012.
/s/ Garr M. King Garr M. King United States District Judge
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 UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 3:10-CR-00475-KI

Plaintiff, v.

OPINION AND ORDER

MOHAMED OSMAN MOHAMUD,

Defendant.

Amanda Marshall United States Attorney District of Oregon Ethan D. Knight Pamala Holsinger Jolie F. Zimmerman Assistant United States Attorneys 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204
Attorneys for Plaintiff
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Steven T. Wax Federal Public Defender Stephen R. Sady Assistant Federal Pubic Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204
Attorneys for Defendant
KING, Judge: Defendant Mohamed Osman Mohamud is charged with attempting to use a weapon of mass
destruction, specifically a destructive device or explosive bomb, against a person or property within the United States, in violation of 18 U.S.C. § 2332a(a)(2)(A).
Oregon State Police (“OSP”) investigated Mohamud after a student accused him of possible date rape. FBI agents were involved in the investigation. Mohamud moves to suppress the evidence seized, namely, statements he made and information from his computer and cell phone. Mohamud claims his consent for the search was not freely and voluntarily given, and the searches and seizures went beyond the scope of his consent. Mohamud also moves to suppress all evidence collected by the government in its parallel national security investigation because he claims all evidence obtained after the OSP investigation is the fruit of evidence obtained illegally in the OSP investigation.
Based on the government’s representation in the briefing that it did not intend to offer at trial any of the disputed evidence obtained during the OSP interview, I declined to determine as a first step if the government violated Mohamud’s constitutional rights. Instead, the court focused the parties on whether evidence the government obtained after the OSP investigation was fruit of
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the evidence obtained in that investigation. This inquiry has two parts: whether the FBI learned anything from the OSP investigation that tainted evidence gathered later and whether evidence gathered later had an independent source. The court assured the parties it would address whether Mohamud’s constitutional rights were violated if the “fruit” inquiry did not resolve the issue. For the reasons explained below, I conclude any taint has dissipated. Additionally, evidence obtained through the national security investigation has an independent source. Thus, there is no need to address the alleged constitutional violation. I also find Mohamud made the statements at the Portland airport voluntarily. Consequently, I deny Mohamud’s motion to suppress.
NATIONAL SECURITY OBJECTIONS During the evidentiary hearings, numerous questions from defense counsel drew national security objections from the government, along with a relevancy objection in some instances. None of the questions were answered in court. To comply with CIPA § 8(c), 18 U.S.C. app. III § 8(c), I used different procedures at the two hearings. At the first hearing on May 1, 2012, where most objections were raised, I asked counsel to confer. Defense counsel gave the government a list of questions which drew objections plus some additional questions defense counsel did not ask because they expected to draw an objection. The government provided a letter to the defense with unclassified answers for some of the questions. The government also provided classified answers to the court which addressed the remaining questions. On May 22, 2012, I filed a sealed Order, ECF No. 135, which ruled on these objections. At the second hearing on May 2, 2012, a single question to Special Agent (“SA”) Trousas drew a national security objection. After the public hearing, I held an in camera, ex parte hearing
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in which SA Trousas answered the question under oath. I sustained the objection, ruling the relevance was minimal and outweighed by the national security concerns. Again, the classified response would not be helpful to Mohamud.
FACTS These facts were adduced at evidentiary hearings. FBI SA Ryan Dwyer is the current case agent in Mohamud’s case. SA Dwyer was aware of the national security investigation into Mohamud’s activities in 2009 but was not directly involved until June 2010. He testified about activity before June 2010 based on his review of reports and discussions with people. In early November 2009, OSP1 began investigating rape accusations a student made against Mohamud. As part of the investigation, OSP found Mohamud’s name on one of the National Crime Information Center lists. OSP notified the FBI of the rape investigation on November 2, 2009. A. National Security Investigation On August 31, 2009, the FBI interviewed Mohamud’s father. His father called the FBI to report Mohamud’s intent to travel to Yemen to study. Mohamud’s father told the FBI of his fear of radical recruiters overseas, his fear for his son’s safety, and his fear his son would be brainwashed if he went overseas. Mohamud’s father had read about Somali youth being recruited for radical activity. He gave the FBI his son’s email address. The next day, Mohamud’s father called the FBI
1 It is not clear which OSP officers were involved in the investigation. I will refer to the officers generally as “OSP.” Page 4 - OPINION AND ORDER

back to report Mohamud did not have a visa or ticket to Yemen, and the father had taken Mohamud’s passport.
Before OSP notified the FBI of the rape investigation on November 2, 2009, the FBI had already begun a national security investigation into Mohamud’s activity. This investigation corroborated Mohamud’s father’s fear his son was being radicalized. Between February and August 2009, Mohamud and Samir Khan exchanged over 150 emails. The FBI considers Khan an Islamic extremist who promotes international terrorism and violent jihad. He administered fundamentalist pro-jihad blogs and ran online publications, such as Jihad Recollections and Inspire, the English language publication of al-Qaeda on the Arabian Peninsula.
The FBI knew of Mohamud’s email contacts with Khan prior to November 2, 2009. The email subjects included editing comments on Khan’s publications, Mohamud soliciting advice on how to lead a more Islamic life, how to find the best jihadi videos and mujahadeen pictures, downloading September 11 martyr videos, and lectures of Anwar al-Awlaki, a well-known al-Qaeda spokesperson.
Mohamud wrote four articles published under pen names in Jihad Recollections before November 2, 2009. SA Dwyer characterized Jihad Recollections as an anti-American, pro-violent jihad, extremist publication. The FBI was aware of the articles before November 2, 2009. SA Dodd tasked a confidential human source to contact Mohamud through email using the pen name “Bill Smith.” Although “Bill Smith” sent the first of many emails on November 9, 2009, SA Dodd tasked the informant before that date and did so because of Mohamud’s email contacts with Khan. According to SA Dwyer, the OSP investigation did not influence the decision to start the “Bill Smith” contacts in any way.
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SA Dwyer explained a series of emails between Mohamud and Amro Salaman Alali which the FBI obtained through court-authorized surveillance. Before November 2, 2009, the FBI obtained email Mohamud received from Alali about attending a religious school in Yemen. Alali, who had lived in Portland in 2007 and 2008, sent the email from Yemen. On December 3, 2009, Alali sent Mohamud an email to tell him about a brother who could help Mohamud with the necessary paperwork to come to Yemen. Alali sent the email from the North-West Frontier Province in Pakistan, an area where militants frequently train. Based on the emails, Dwyer thought Alali was inviting Mohamud to join him in violent jihad.
On December 5, 2009, Mohamud emailed Alali responding it would be wonderful to come, asking what he needs to do, and stating he always wanted to see the Kaaba. SA Dwyer thought this was code Mohamud used to conceal a location because the Kaaba is located in Saudi Arabia, not in Yemen.
On December 10, 2009, SA Trousas interviewed a community member who thought Mohamud was looking for guidance and easily influenced. SA Trousas did not consider this information relevant.
On December 12, 2009, Alali emailed Mohamud and gave him a hotmail email address and password to establish covert communication with Abdul Hadi. On the same day, Mohamud sent an email to the hotmail address and asked Abdul Hadi to get back to him. This email was never delivered because Mohamud typed the address incorrectly. Mohamud unsuccessfully tried to contact Abdul Hadi numerous times in December 2009, January 2010, and March 2010.
The Terrorism Working Group, including several FBI agents and OSP detectives with the appropriate security clearance, met on January 5, 2010 for operations planning. OSP Detective
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Ashenfelter, who does not have the appropriate clearance, had to leave the meeting when classified information was discussed. The subject matter of the meeting is classified. SA Dwyer, SA Burdick, and Analyst Tanton testified that nothing learned from the rape investigation was used to guide decisions at that meeting. SA Trousas did not attend the meeting.
In a January 24, 2010 email from Mohamud to a Saudi Arabian friend, Mohamud asked the friend to pray for him because he will be a martyr. SA Dwyer thought this email meant Mohamud was willing to die for jihad.
SA Trousas was assigned as co-case agent in the spring of 2010 to be in charge of the undercover operations. He was told a known terrorist overseas was in contact with Mohamud and the FBI had to assess what was going on. SA Trousas developed the plan to pretend to be one of the brothers and contact Mohamud online. Mohamud agreed to a meeting. SA Trousas was aware of the OSP investigation but was not involved. He never read any of the reports and did not look at anything from Mohamud’s cell phone or laptop. He never talked to others about information obtained from the OSP.
On June 14, 2010, SA Petrie and SA Henderson interviewed Mohamud at Portland International Airport after he was denied boarding a plan to Alaska to work at a fishery. The agents approached the family and identified themselves. Mohamud’s parents were quite upset that he could not fly and began asking the agents a lot of questions. SA Petrie offered that if the family had the time, they could go to a quiet conference room where the agents could answer questions. The family agreed and went with the agents to a Portland Police Bureau conference room in a secured part of the airport.
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The conversation was cordial, with the parents doing more talking than Mohamud. The father was concerned Mohamud was not allowed to fly because of the father’s call to the FBI. The agents explained that if the family provided some facts, the agents could possibly help by developing information. The agents never said Mohamud could fly if he spoke to them. Topics included that Mohamud wanted to travel to Yemen, that Mohamud never got a ticket or visa for Yemen, and that Mohamud’s interest in Yemen was from a Saudi national Mohamud knew as Amer but Mohamud did not know Amer’s full name. The agents believe Amer was actually Amro Alali.
SA Petrie asked Mohamud if he was involved in any activities that prevented him from flying, such as associates, online activity, or previous contact with law enforcement. Mohamud said he used the Internet mostly for sports interests and that he had no interest in Islamic extremists. He denied prior negative contact with law enforcement. Before the interview, SA Petrie knew of Mohamud’s Internet activity with Islamic extremists. The agents knew from the OSP interview that Mohamud was concerned his parents would learn of the rape investigation.
SA Petrie remembers the interview taking about 30 to 40 minutes. The FBI’s summary of the surveillance log indicates the agents contacted Mohamud and his parents at 8:57 p.m., and the family left the terminal at 9:40 p.m. The agents never gave Mohamud a Miranda warning and let the family decide when the interview would end. SA Petrie did not believe he had detained Mohamud because he would have let the family terminate the interview and leave at any time.
SA Dwyer explained that at some point in early 2010, the FBI decided to contact Mohamud undercover to assess his intent. Information from Mohamud’s computer, cell phone, and OSP interview did not enter into that decision. The FBI had already learned everything necessary to
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trigger the undercover operation from Alali’s recruitment of Mohamud. The FBI’s first undercover meeting with Mohamud was on July 30, 2010.
When FBI undercover employees met with Mohamud in the summer and fall of 2010, he confirmed he wanted to meet Alali and travel overseas. In the August 19, 2010 meeting, Mohamud explained Alali told him to come to study because it was a legitimate reason to travel to Yemen. In the November 4, 2010 undercover meeting, Mohamud said he wanted to travel from London to Pakistan. Alali was in London at the same time Mohamud was there with his family. Mohamud stated he had tried three times to go to jihad. In the November 18, 2010 undercover meeting, Mohamud stated he intended to go to Yemen from Alaska after making money working there. Alali frequently asked him to come. Mohamud planned to use school as an excuse but his parents took his passport from him.
B. OSP Investigation SA Burdick, SA Lew, and FBI Analyst Tanton went to Corvallis, Oregon on November 2, 2009 to coordinate with OSP to see if they could learn anything else about Mohamud. OSP had interviewed Mohamud as part of the rape investigation the day before and was planning to interview Mohamud again at the OSP office. The FBI agents asked OSP to ask Mohamud if he wanted to return to Somalia. The federal agents observed the interview without Mohamud’s knowledge. Most of the questions concerned the rape allegations. Mohamud also gave some background information, stating that he planned to stay in the United States after finishing school, that Somalia was a dangerous place, and admitting to marijuana and alcohol use, as well as his concern that his parents would find out about the rape investigation. Mohamud also took a polygraph examination.
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During the interview, Mohamud gave his cell phone to OSP. SA Burdick reviewed the cell phone and copied down the names and phone numbers it contained. According to SA Dwyer, the information from the cell phone was not used to further the national security investigation. Through court-authorized surveillance, the FBI had already obtained Mohamud’s telephone usage.
C. Contents of the Laptop Also during the interview, Mohamud gave his laptop computer to OSP, which turned the laptop over to the FBI. SA Lew and Analyst Tanton took the computer to Detective Williams, a forensic examiner with the Eugene Police Department, and asked him to make a mirror image and then await further instructions. Prior to delivering the computer, SA Lew and Analyst Tanton did not turn it on or open it up. Detective Williams made the mirror image on November 2, 2009 and returned the computer to Analyst Tanton the next day, who returned it to OSP, which returned it to Mohamud. Detective Williams next spoke to Analyst Tanton on December 29, 2009. The computer was a fairly new one, first used by Mohamud on October 19, 2009. Analyst Tanton asked Detective Williams to search for several terms: Yemen, music folder, @hotmail, and email. Detective Williams reported back that the computer had four readable files.2 Based on court authority, Analyst Tanton asked Detective Williams to make him a copy of those folders. They contained about 100 photos of a party scene, with Mohamud in some of them, about 40 other photos of people, about a half dozen audio files including some from extremists, and a video file. According to SA Dwyer and Analyst Tanton, none of the information from Mohamud’s computer
2 Based on Government Exhibit 1, more than four files were copied for the FBI. It appears four folders containing numerous files were copied. The difference is immaterial. Page 10 - OPINION AND ORDER

was used to further the national security investigation because there was nothing of significance on the computer. By December 29, 2009, the FBI already had significant information about Mohamud including his Internet activity and his email address.
Defense counsel retained a digital forensics examiner, Josiah Roloff. I granted the defense’s request to reopen the hearing after Roloff reported he had found additional material on the image of the laptop’s hard drive.
Roloff testified he found 13 readable, undeleted files which Detective Williams had not found on his examination. The files are: a 22 page Undergraduate Advising Guide from Oregon State University (“OSU”); a system file, desktop.ini; a 116-page The Rapper’s Handbook; contact information for Metropolitan Presort, Inc.; order details for downloading Windows 7; the first two pages of Moe’s Guide to Surviving College, apparently written by Mohamud; My Book of Rhymes, apparently a rap Mohamud was writing; the October schedule for the Islamic Center of Portland, Masjed As-Saber; OSU computer support login information; Rap Games; Rap Steps; a resume for Mohamud; and a list of songs to download.
Roloff also searched the image for the terms Yemen and hotmail and found 14,000 results. Most of the results were false positives from things like dictionaries but Roloff found more than 20 results indicating user activity for the term Yemen and several results indicating user activity for the term hotmail.
Roloff also concluded use of the laptop began on September 12, 2009, including logging onto the OSU website on that date. There was substantial use between that date and November 1, 2009. A default account named “valued customer” was created on September 12, 2009 and changed to a user account named “Mohamed” on October 19, 2009.
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SA Dwyer then testified to explain the difference between Exhibit 1 and Amended Exhibit 1, also known as Exhibit 2. Exhibit 1 was intended to be a copy of the CD Detective Williams gave Analyst Tanton. A discovery coordinator in the United States Attorney’s Office used a program to Bates stamp the files on the CD to create Exhibit 1, but some files did not get processed. These were the files Roloff found on the image of the laptop provided to the defense. The government did not figure out the error until it looked into the defense motion to reopen the hearing. According to SA Dwyer, no information from the recently located files was used to direct the national security investigation, even though those files were on the CD in the FBI’s possession as of December 29, 2009. In particular, the FBI already knew of Mohamud’s two significant email addresses from the national security investigation.
OSP Detective Ashenfelter testified that after Mohamud got his laptop back from the November 2, 2009 seizure, Detective Ashenfelter took the laptop from Mohamud a second time and gave it to an FBI agent. The laptop was later returned to Mohamud.
DISCUSSION I will consider two exceptions to the exclusionary rule: (1) the attenuated basis exception, which addresses whether evidence gathered earlier tainted evidence gathered afterwards; and (2) the independent source exception. I again stress that I have not drawn any conclusions about whether the government violated Mohamud’s constitutional rights. I will address the defense arguments about Mohamud’s statement at the airport in the final section below. I. Attenuated Basis Exception Mohamud moves to suppress all evidence gathered as part of the national intelligence investigation. He contends this evidence was tainted by information the FBI learned when its
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agents observed the OSP interview and polygraph and searched his cell phone and computer
obtained from OSP.
The Supreme Court has refused to adopt a “per se” or “but for” rule “that would make
inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to
light through a chain of causation that began with an illegal arrest.” United States v. Smith, 155
F.3d 1051, 1060 (9th Cir. 1998) (quoting United States v. Ceccolini, 435 U.S. 268, 276, 98 S. Ct.
1054 (1978)). The Ninth Circuit likens a taint inquiry to a proximate cause analysis. “[A]t some
point, even in the event of a direct and unbroken causal chain, the relationship between the
unlawful search or seizure and the challenged evidence becomes sufficiently weak to dissipate any
taint resulting from the original illegality.” Id.
[T]he baseline inquiry in evaluating taint is not whether an unlawful search was the impetus for the investigation or whether there exists an unbroken causal chain between the search and the incriminating evidence; rather, courts must determine whether anything seized illegally, or any leads gained from illegal activity, tend[ed] significantly to direct the investigation toward the specific evidence sought to be suppressed. And although it is by no means clear precisely what constitutes significant direction sufficient to trigger the exclusion remedy, courts have deemed it probative whether the initial illegality led directly to any of the evidence actually used against the defendant at trial, or, to put the matter slightly differently, whether the government’s evidence was the direct result of an unlawful search or seizure. On the other hand, it is not sufficient in demonstrating taint that an unlawful wiretap may have been a factor in the decision to target a specific defendant, or that an illegal search uncovers the alleged perpetrator’s identity, and therefore directs attention to a particular suspect. The nexus between the original illegality and the specific evidence subject to challenge must be a close one.
Id. at 1061 (internal quotations and citations omitted).
Mohamud argues anything learned in an investigation must have an effect on the direction
of the investigation, requiring suppression of all evidence obtained after an illegal search or
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seizure. To illustrate the argument, defense counsel asked witnesses several questions about the mosaic theory, explained as:
[T]he mosaic theory, . . . the concept that while some information in specific [documents] may appear harmless to disclose when read in isolation, such information may be very valuable as part of a mosaic of information gleaned from various sources, including multiple [documents] prepared over time. The Supreme Court endorsed the mosaic theory in Sims, commenting that “[B]its and pieces of data may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself. Thus, [what] may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.” Berman v. CIA, 501 F.3d 1136, 1143 (9th Cir. 2007) (internal quotations omitted in first paragraph) (quoting CIA v. Sims, 471 U.S. 159, 178, 105 S. Ct. 1881 (1985)). The mosaic theory is not the standard, however, when deciding if tainted evidence must be suppressed. The mosaic theory is generally discussed in cases involving the state secrets privilege or the Freedom of Information Act (“FOIA”) exemptions for intelligence sources and methods. See Berman, 501 F.3d 1136 (FOIA exemptions); Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1082 (9th Cir. 2010) (state secrets privilege), cert. denied, 131 S. Ct. 2442 (2011). In analyzing whether evidence is tainted, I will employ the standard explained in Smith, 155 F.3d 1051. Thus, I must consider whether anything the FBI seized from the OSP investigation, or any leads it gained there, tended “significantly to direct” the national security investigation toward all evidence the FBI collected after November 2, 2009. Smith, 155 F.3d at 1061. I conclude it did not.
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Through the OSP investigation, the FBI got three types of evidence. First, the federal agents observed Mohamud’s interview and polygraph. Specifically, they learned he planned to stay in the United States after finishing school, that he believed Somalia was a dangerous place, that he used marijuana and alcohol, and that he was concerned his parents would find out about the rape investigation. There is no evidence that any of this information significantly directed the national security investigation or, with one exception, that this information was implicated at all. The exception is that when the FBI interviewed Mohamud at the airport, they asked him in front of his parents if he had ever had negative police contact. Obviously, the FBI agents knew of Mohamud’s police contact and his concern that his parents would learn of it. That fear would be common in young college students, however. More importantly, there is no evidence the FBI used that fear in fashioning the undercover contacts with Mohamud.
Second, the FBI got the telephone numbers from Mohamud’s cell phone. There is no evidence of how the FBI used these numbers, if at all. The agents also testified they were already aware of Mohamud’s telephone use through the national security investigation.
Third, the FBI retrieved many files off Mohamud’s computer from the mirror image made on November 2, 2009.3 The majority of the files are pictures of Mohamud at a party with friends. Again, there is no evidence these pictures directed the national security investigation in any way. The computer also contained some audio files from extremists. Prior to the OSP investigation, however, the FBI was well aware of Mohamud’s interest in extremists through his emails to Khan and his publication of articles in Jihad Recollections. The files located by Roloff indicate
3 I will address the alleged second computer search below. Page 15 - OPINION AND ORDER

Mohamud’s interest in rap music and poetry. This is not unusual for a college student and had nothing to do with the national security investigation.
All witnesses testified that no evidence obtained through the OSP investigation was used to further the national security investigation because there was nothing of significance found from the OSP investigation that the FBI did not already know. There is no evidence, or even an inference, that any of the evidence the FBI obtained through the OSP investigation significantly directed the national security investigation or led directly to any of the evidence the government intends to use at trial. Much of the information, such as the pictures, appears irrelevant to the charges. The rest was already known to the FBI. Close timing of events in the two investigations does not demonstrate causation. I cannot find there is a close nexus between the evidence obtained through the OSP investigation and the evidence later obtained through the national security investigation. Thus, I conclude any taint has dissipated. II. Independent Source Exception
The independent source exception is explained in Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529 (1988). Based on information from informants, federal agents observed Murray and his co-conspirators drive two vehicles into a warehouse and leave soon thereafter. The agents found marijuana in the vehicles after lawfully seizing them, then forced entry into the warehouse without a warrant and observed numerous burlap-wrapped bales in plain view. The agents applied for a search warrant without mentioning the prior entry or observations made during it. After obtaining the warrant, the agents seized 270 bales of marijuana in the warehouse. Murray, 487 U.S. at 535-36.
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The Court considered the reasons behind the exclusionary rule and the independent source
rule:
The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, and of testimony concerning knowledge acquired during an unlawful search. Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, 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.”
Id. at 536 (citations omitted).
“‘[I]n the classic independent source situation, information which is received through an
illegal source is considered to be cleanly obtained when it arrives through an independent source.’”
Id. at 538-39 (quoting United States v. Silvestri, 787 F.2d 736, 739 (1st Cir. 1986)).
To apply what we have said to the present cases: Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply. Invoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one.
Id. at 541.
The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.
Id. at 542.
The district court found the agents did not reveal their warrantless entry to the Magistrate
when applying for the warrant and did not include in the application any recitation of their
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observations in the warehouse. But the district court did not “explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse[,]” so the Court remanded the case for the district court to make that determination. Id. at 543-44.
The “Bill Smith” emails have been discussed many times in my courtroom. The only evidence is that the FBI tasked the confidential human source to make email contact with Mohamud prior to the start of the OSP investigation.
The defense is very concerned the FBI used evidence learned during the OSP investigation at the January 5, 2010 Terrorism Working Group meeting to plan the upcoming operation. Three agents testified that nothing learned from the OSP investigation was used to guide decisions at that meeting. There is no evidence to the contrary.
The FBI gathered several types of information which triggered a national security investigation into Mohamud’s activity: (1) information the agents learned from his father; (2) Mohamud’s email contacts with Khan; (3) the articles Mohamud published in Jihad Recollections; and (4) Mohamud’s email contacts with Alali and Alali’s attempt to recruit Mohamud for jihad. The FBI began the national security investigation well before it ever heard of the OSP rape investigation.
I conclude all evidence gathered during the national security investigation after November 2, 2009, and all tactical decisions made after that date, had an independent source, namely the national security investigation underway prior to that date. There is no reason to invoke the exclusionary rule, and I deny Mohamud’s motion to suppress.
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III. Alleged Second Computer Search OSP Detective Ashenfelter testified that after Mohamud got his laptop back from the November 2, 2009 seizure, Detective Ashenfelter took the laptop from Mohamud a second time and gave it to an FBI agent. The laptop was later returned to Mohamud. Mohamud moves to suppress all evidence obtained from this second seizure of the laptop, contending the FBI must have performed a search at the time of the second seizure and this second seizure and search are unconstitutional for the same reasons as the first seizure and search. Mohamud cannot flesh out his argument of what evidence was derived from the fruits of the alleged unconstitutional second search because the government does not admit a second search took place. I deny the motion to suppress the evidence obtained during the alleged second computer search, if any was obtained. I will file a classified opinion with my reasoning. IV. Airport Statements
A. Voluntariness Mohamud argues the government cannot meet its burden of showing his statements at the airport were voluntary. According to Mohamud, when an American citizen is told immediately prior to boarding a plane that he cannot fly, he suffers a traumatic and jarring loss of freedom of movement our modern society takes for granted. The FBI agents that quickly appeared represented the very entity which prevented Mohamud from flying. Thus, Mohamud argues a reasonable person would believe talking with the FBI agents was required in order to regain flying privileges, making the statements involuntary.
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The government must establish the voluntariness of a confession by a preponderance of the evidence. United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003). When considering whether a confession is voluntary, the court determines whether, “considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect’s will was overborne.” United States v. Heller, 551 F.3d 1108, 1112 (9th Cir. 2009) (internal quotation omitted). The court should consider the length and location of the interrogation, the continuity of the interrogation, the maturity and education of the defendant, the physical and mental condition of the defendant, and whether the defendant was properly advised of his Miranda rights. Withrow v. Williams, 507 U.S. 680, 693-94, 113 S. Ct. 1745 (1993); Taylor v. Maddox, 366 F.3d 992, 1015 (9th Cir. 2004).
The government notes several facts in support of the argument that Mohamud’s statements were voluntary. The agents were in plain clothes and their firearms were concealed. Mohamud was never out of the presence of both parents during the interview. The agents asked the family if they had time to talk about the issue and did not insist on the interview taking place. The interview was in a conference room at the airport and lasted about 30 to 40 minutes. Mohamud’s parents did most of the talking. The family was free to leave whenever they wished, and they ended the interview in less than 45 minutes. There is no evidence the interview was anything but cordial on the part of the agents, even though the parents were quite upset. The agents did not promise Mohamud could fly if he spoke to them.
In Mohamud’s favor, the interview took place in a police conference room in a secure part of the airport. Mohamud is a young man. Also, the agents never gave a Miranda warning to Mohamud.
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In balancing these facts, I find the most telling to be that the interview was for a relatively short period of time, was not mandatory, and Mohamud never left the company of his parents. I am not persuaded by the argument that the airline’s refusal to board Mohamud traumatized him to the extent his will was overborne by a 30 to 40 minute nonmandatory interview in which his parents did most of the talking. It would be equally traumatizing, if not more so, to be brought to a police station for an interview about possible involvement with a crime. Courts routinely find confessions made at the police station to be voluntary. Thus, I conclude the government has established the voluntariness of Mohamud’s statement by a preponderance of the evidence.
B. “Fruit” Inquiry Mohamud claims the OSP interview and associated computer searches provided two pieces of information which the FBI agents used when questioning Mohamud at the Portland airport on June 14, 2010: (1) Mohamud was very concerned his parents would learn about the rape investigation and his use of drugs and alcohol; and (2) he used the Internet to communicate with an Islamic extremist and participate in fundamentalist pro-jihad blogs and online publications. Mohamud asks the court to suppress the statements he made at the airport. The government argues the ongoing national security investigation made the FBI well aware of Mohamud’s Internet activity well before the OSP investigation. I agree. The national security investigation is an independent source for the question about Internet usage. Turning to Mohamud’s fear his parents would learn about the rape investigation and his use of drugs and alcohol, the FBI agents did not ask about drug or alcohol use at the airport. They did ask Mohamud about prior negative contact with law enforcement, something Mohamud denied. The OSP investigation taking place is a fact by itself, apart from any statements Mohamud made
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during the interview with OSP officers. Moreover, Mohamud’s fear his parents would learn of the

investigation is likely shared by the vast majority of young college students who have been

investigated by police. The independent source is the fact the OSP rape investigation took place,

as well as human nature.

I conclude there is an independent source for the questions the FBI agents asked Mohamud

at the Portland airport. Accordingly, I deny the motion to suppress the statements Mohamud made

at the airport because they are not the fruit of an alleged unconstitutional search.

CONCLUSION

Defendant’s Motion and Second Motion to Suppress the Products of Non-FISA

Interrogations, Searches, and Seizures [56, 142] are denied.

IT IS SO ORDERED.

Dated this

22nd

day of October, 2012.

/s/ Garr M. King Garr M. King United States District Judge

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 UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 3:10-CR-00475-KI

Plaintiff,

OPINION AND ORDER

v.

MOHAMED OSMAN MOHAMUD,

Defendant.

Amanda Marshall United States Attorney District of Oregon Ethan D. Knight Pamala Holsinger Jolie F. Zimmerman Assistant United States Attorneys 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204

Attorneys for Plaintiff

Page 1 - OPINION AND ORDER

Steven T. Wax Federal Public Defender Stephen R. Sady Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204
Attorneys for Defendant
KING, Judge: Both the government and defendant plan to proffer expert witnesses on various subjects at
trial. The defense objects to government witness Evan Kohlmann. The government objects to defense witnesses Dr. Marc Sageman, Dr. Fathali Moghaddarn, and Dr. Elizabeth Cauffman. I held Daubert hearings over November 28-30, 2012. This opinion explains my rulings on the objections to the expert witness testimony.
LEGAL STANDARDS
Federal Rule ofEvidence 702 states: A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a fact in 1ssue;
(b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts ofthe case.
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The Court expounded on the application of Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The subject of expert testimony must be scientific knowledge which will assist the trier of fact to understand or determine a fact in issue. ld. at 592. The focus of the court's inquiry is on the expert's methodology, not on his conclusions. Id. at 595.
"Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden ofproof, not exclusion." Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (test under Daubert is the soundness of an expert's methodology and not the correctness of the expert's conclusions).
Factors to be considered when determining if the testimony is reliable scientific knowledge are whether the theory or technique is generally accepted in the relevant scientific community, whether it has been subjected to peer review and publication, whether it can be and has been tested, whether standards exist to control the technique's operations, and whether the known or potential rate of error is acceptable. Daubert, 509 U.S. at 593-94. The inquiry, however, is a flexible one. Other relevant factors may be considered and the factors listed in Daubert may not be reasonable measures ofthe reliability ofexpert testimony in a particular case. Id. at 594; Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147-153, 119 S. Ct. 1167 (1999). The court's "gatekeeping" obligation applies to technical and other specialized knowledge as well as scientific knowledge. Kumho, 526 U.S. at 147.
Under Daubert, we must engage in a difficult, two-part analysis. First, we must determine nothing less than whether the experts' testimony reflects "scientific knowledge," whether their findings are "derived by the scientific method," and whether their work product amounts to "good science." Second, we must ensure that the proposed expert testimony is "relevant to the task at hand," i.e., that it logically advances a material aspect of the proposing party's case. The Supreme Court referred to this second prong of the analysis as the "fit" requirement.
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Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir.) (internal citations

omitted), cert. denied, 516 U.S. 869 (1995).

DISCUSSION

I.

Inducement and Predisposition as Topics for Expert Witnesses

Several of the experts are prepared to opine on the two issues underlying the analysis of

whether defendant was entrapped by the government-inducement and predisposition. The

government argues that Rule 704(b) flatly prohibits opinions on this topic.

Federal Rule of Evidence 704(b) states:

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

The legislative history for the Amendment ofRule 704 states that the rationale for precluding

ultimate opinion psychiatric testimony extends beyond the insanity defense and includes the lack of

predisposition in entrapment. S. Rep. No. 98-225, at 230-31 (1985).

I agree with the government that the witnesses cannot opine on the ultimate issue of

entrapment or the subissues of inducement and predisposition.

Indeed, "an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion

on an ultimate issue oflaw." Elsayed Mukhtarv. Cal. State Univ. at Hayward, 299 F.3d 1053, 1065

n.10 (9th Cir. 2002) (citing United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994)), amended on

other grounds, 319 F.3d 1073 (9th Cir. 2003 ).

When an expert undertakes to tell the jury what result to reach, this does not aid the jury in making a decision, but rather attempts to substitute the expert's judgment for the jury's. When this occurs, the expert acts outside of his limited role of providing

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the groundwork in the form of an opinion to enable the jury to make its own informed determination.
Duncan, 42 F.3d at 101.
Defendant argues testimony about a mental condition is admissible as long as the testimony
allows the jury to make the final decision, citing US v. Sandoval-Mendoza, 472 F.3d 645, 655-56
(9th Cir. 2006) (internal citation excluded).
Predisposition or its absence is the focus ofan entrapment defense. Therefore, medical expert opinion testimony showing that a medical condition renders a person unusually vulnerable to inducement is highly relevant to an entrapment defense. If it is adequately supported by medical expert opinion, it is admissible. SandovalMendoza's experts were well qualified and had sufficient expertise in the neurology of brain tumors and his particular case to be useful to the jury. The district court's exclusion of medical expert opinion testimony prevented Sandoval-Mendoza from showing lack of predisposition, and thereby deprived him of a fair opportunity to defend himself. In this case, the foundation was sufficient. After hearing Drs. Mendius and Shore, the jury could have decided to disbelieve them. But SandovalMendoza was entitled to have the jury decide upon their credibility, rather than the judge. As it was, the jury was left with nothing but unpersuasive lay evidence on a medical matter beyond what laymen could usefully testify about.
I agree the expertise and analysis leading up to the prohibited conclusion is a proper subject
for testimony, particularly when it is beyond the knowledge ofa layjuror. I am concerned, however,
about experts repeatedly testifying that, for example, the average person of defendant's age is
particularly vulnerable to inducement when subjected to various behaviors. I think this type of
testimony comes too close to the ultimate issue. I am also concerned that the legal definition of
inducement and predisposition, on which I will instruct the jury, varies from definitions used in the
fields of the various experts. Dr. Moghaddam agreed he uses the definitions from his research and
leaves the legal definitions to lawyers. Thus, I prohibit the experts, or the attorneys when
questioning them, from using the terms inducement and predisposition. The experts can choose
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appropriate synonyms. I limit the use of the terms inducement and predisposition to counsel's opening statements and closing arguments.
As an example, an expert may opine that a person with a particular attribute typically is especially vulnerable to adult influence, and defendant had that attribute. Defense counsel can then argue defendant was especially vulnerable and this trait allowed him to be induced. The government can use cross examination and argument to poke holes in the theory. II. Terrorism Experts
A. Evan Kohlmann Mr. Kohlmann is the government's expert on terrorism. He has a law degree and has been an international terrorism consultant since 2003. Mr. Kohlmann's company collects everything it can find on the Internet about terrorism fundraising, communication, and recruitment, and organizes the information into a database. The company monitors websites, email addresses, chat rooms, video recordings, and social networks for information. He also interviews terrorists, some by phone and others in person. Mr. Kohlmann has written about 40 papers; he wrote a few of these papers when he worked for the Investigative Project, and they were peer-reviewed. The journals' editors carefully reviewed two other papers, including one on his homegrown terrorist theory, but they were not formally peer-reviewed. The United States retained Mr. Kohlmann as an expert witness in 24 criminal cases. He has also testified as an expert for several foreign governments. Mr. Kohlmann developed a list of principle factors as to whether a person might fit the profile of a homegrown terrorist, also known as a contemporary violent extremist. To develop the profile, he tracked online activity for hundreds of people as they progressed to violence. Certain
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factors emerged over and over in people who had become violent. The factors include, but are not limited to:
1. The formulation of self-selecting schemes aimed at traveling abroad to join foreign terrorist organizations, attending training camps, and/or achieving imminent acts of physical violence;
2. Pre-existing connections to known extremist groups and accused terrorists; 3. The adoption of a hardline sectarian religious perspective; 4. The use of coded language and attempts at logistical subterfuge; 5. The deliberative collection and/or redistribution of terrorist propaganda; and 6. The browsing of Internet websites run by or on behalf of international terrorist organizations. Mr. Kohlmann has not published the profile with the factors listed as bullet items in any of his published works. He explains that the factors are implicit in the published articles, due to the nature of the journals. Mr. Kohlmann has testified about this profile since 2009 and has used it in six criminal cases in the United States. Some ofthose cases do not use all six factors. Mr. Kohlman explained he focuses on the most germane factors and excludes factors which intersect with an element of the charged crime. Mr. Kohlmann admits there is no way to determine an error rate for people who visited certain websites but did not become violent. Similarly, there is no way to know if applying the profile captures all people who become violent. Mr. Kohlmann believes that because the pool of terrorists is statistically small, one or two aberrant results will throw off a statistical analysis. He claims comparative analysis is the only accurate way to analyze some terrorism issues. Mr. Kohlmann analyzes the source material he gathers for reliability and then compares it to draw out common narratives. Mr. Kohlmann also
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looks at extremists who are not violent. He claims certain Internet forums cater to people in this category. Mr. Kohlman tries to understand what distinguishes nonviolent extremists from extremists who become violent. His primary goal is to identify people before they become violent and enter the judicial system. He has never seen a person fitting the factors who does not eventually become a contemporary violent extremist. But he has seen lots ofpeople who fit only one or two factors and who never become a contemporary violent extremist.
In his report, Mr. Kohlmann noted many pieces ofevidence in this case which fall within his factors. Mr. Kohlmann concluded defendant closely fits the classic profile ofa contemporary violent extremist because the evidence demonstrates nearly all of the relevant factors.
Defendant objects that Mr. Kohlmann's testimony fails to meet the Daubert standards and, in addition, is biased, exaggerated, and inaccurate. Defendant contends that Mr. Kohlmann is not using comparative analysis because he has no control group of people who do not become violent but engage in the same activities and thus fit the profile. Defendant is also concerned about the changing nature of the factors from case to case. He claims Mr. Kohlmann works backwards after a person is arrested for a violent act. Other than bias, defendant does riot question Mr. Kohlmann's expertise on the history of terrorist organizations.
B. Dr. Marc Sageman Dr. Sageman is the defense expert in terrorism threat assessment. He is a forensic psychiatrist and has a Ph.D. in political sociology. Dr. Sageman has worked as a consultant with various United States agencies and many foreign governments. As one example, he consulted with the New York City Police Department to help identify which young Muslims in the City who were bragging as ifthey were violent, and thus consuming City resources, might actually become violent.
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Dr. Sageman testified via Skype from Afghanistan, where he is currently working as a special advisor to the Deputy Chief of Staff of the International Security Afghanistan Forces (intelligence) on the issue of Afghan soldiers killing NATO soldiers. Dr. Sageman interviewed defendant prior to drawing his conclusions.
Dr. Sageman testified generally about the distinctions between the large number of people who discuss jihad and Islamic fundamentalism in person and on the Internet and the few people who tum to violent acts. He studied violent terrorists and used their nonviolent families and friends as a control group of 400 people. Dr. Sageman developed a model with 65 indicators that are divided into stages ofan individual's tum to violence, which he believes is a process for an individual. Some of the indicators are joining a discursive political protest community, having an extreme view of Islam, participating in political protest online and offline, trying paramilitary training, and buying weapons. Dr. Sageman did not include FBI sting cases in his study because he does not consider those defendants to be real terrorists.
Dr. Sageman concluded that before any contact by an undercover employee; defendant had a low probability of turning to violence. Defendant fell in and out ofthe discursive political protest community. Some members of that community ultimately reject it and tum to violence because of moral outrage for the political killings. Those who tum to violence think political protests are ineffective. Dr. Sageman discounted several of defendant's activities which, to a lay person, would appear to fit one ofhis indicators. These included defendant writing the "Training without Weights" article for Jihad Recollections, having conservative Islam sermons on his computer, and owning a BB gun shaped like an AK47.
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In summary, Dr. Sageman concluded defendant's age and personal issues made him vulnerable to inducement, which spawned a turn to violence in defendant that would not have occurred without the inducement.
The government objects to Dr. Sageman' s opinion because it will not be helpful to the jury. The government argues jurors know the difference between writing and taking action. The government is concerned that rather than being objective, Dr. Sageman's analysis was informed by the law of entrapment. The government contends Dr. Sageman did not properly apply his methodology because he applied the 65 indicators without documenting the analysis.
C. Dr. Fathali Moghaddam Dr. Moghaddam is the defense expert in social psychology and the psychological changes involved in becoming a terrorist, a model he calls the staircase to terrorism. He is currently a professor of psychology at Georgetown University and the Director of the Conflict Resolution Program there. Dr. Moghaddam does research in his field and has written a long list of peerreviewed publications. The expert summary for Dr. Moghaddam states he will testify about the insights social psychology brings to the inducement that occurred in this case and how the government activity constituted inducement. More specifically, Dr. Moghaddam testified about several social psychology concepts: (1) the fundamental attribution error, the tendency for people to attribute causes to individual factors and discount situational factors; (2) authority and conformance, that normal people will conform to arbitrary norms, including harming others, if the situational factors are strong; (2) scaffolding, how behavior is shaped by teaching small steps toward the final goal; (3) cognitive dissonance, the internal pressure people have to act in accordance with previous ideas; (4)
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normalization and positioning theory, the way people use narratives to assign rights and duties to others and normalize behavior through positioning; and (5) that attitudes, such as the endorsement of terrorism, are a poor predictor of actual behavior, such as committing terrorist acts. Dr. Moghaddam applied these social psychology concepts to defendant's interactions with government agents to explain why defendant progressed to attempting to detonate a device. The concepts are counterintuitive to how people untrained in social psychology interpret situations such as defendant's.
Dr. Moghaddam published his staircase to terrorism model in a peer-reviewed journal, American Psychologist, in 2005. There was no testimony about how he tested his model or whether it is well-accepted by his peers. Dr. Moghaddam stated he accepted this case because it cries out for social psychology concepts to interpret the framework created around defendant as a situational constraint leading to a particular behavior.
The government claims Dr. Moghaddam' s testimony about general social psychology topics would be confusing and unhelpful to a jury because he did not apply the concepts to FBI sting cases when he did his research.
D. Analysis These three experts created what have been described as models or profiles which are meant to explain when, whether, why, and if a person has progressed from holding nonviolent political views to being capable of violent terrorism. Mr. Kohlmann applies the facts of a case to his factors; Dr. Sageman applies the facts to his indicators. I find that all three terrorism experts can provide insight into the terrorism community that would assist the jury. I do not believe the jury would have experience with the websites that will be
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brought into evidence in this case, or the content of the discussions therein. The social psychology concepts are also unknown territory for a lay person and are relevant to the issues to be decided. All three experts have published their work, although Mr. Kohlmann's latest publications have not been in peer-reviewed journals. This fact, along with no known error rate and no formal control group for Mr. Kohlmann's work, as well as Dr. Sageman's lack of documentation for his analysis of the 65 indicators, are issues that can be explored in cross examination. I also acknowledge that terrorism does not lead itself to strict scientific study that the court would expect in the testing of a new medication. I do not find that any ofthe issues raised by counsel on either side discredit the experts' methodologies to the point the court should exclude their testimony.
I am concerned, however, about an expert labeling defendant as a homegrown terrorist, a contemporary violent extremist, or on the flip side, a person who had not turned to violence or traversed the staircase to terrorism prior to government contact. These labels are code words for predisposition. Thus, I prohibit testimony on this ultimate mental state. The experts may explain the factors and indicators derived from their research; may explain whether people demonstrating these factors and indicators are violent or not, in the experts' experience; and may explain how well defendant fit the factors and indicators. But the experts may not testify on the ultimate label they would affix to defendant. V. Dr. Elizabeth Cauffman
Dr. Cauffman is the defense expert in developmental psychology and adolescent development. She is currently a professor at the University of California, Irvine, in the Departments ofPsychology and Social Behavior, and Education. Dr. Cauffman has extensive research experience
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and a lengthy list ofpeer-reviewed publications. The government does not challenge her credentials in adolescent brain development.
Based on the research and literature in her field, Dr. Cauffman will testify about the development of the adolescent brain and the maturity gap between cognitive and emotional development. She will explain how certain attributes of the interaction between defendant and the undercover employees affect typical adolescents. For example, according to Dr. Cauffman, adolescents are very sensitive to awards, particularly from older, respected adults. Dr. Cauffman will relate this psychological fact to comments the undercover employees made to defendant which she considers to be praise and flattery, and she will explain the effect on the typical adolescent.
The government objects to Dr. Cauffman's testimony because it contends she will only confuse the jury. Dr. Cauffman did not interview defendant, so she can only testify about typical adolescents. The government is concerned the jury will conclude that no one less than 25 years old should be held criminally accountable because the person's brain is not fully developed.
There is no evidence that Dr. Cauffman's testimony is based on anything other than generally accepted theories that have been peer-reviewed, published, and now taught at universities. I find her testimony to be good science under the Daubert factors. Due to the age of defendant when he interacted with the undercover employees and received the Bill Smith emails, Dr. Cauffman's testimony will help the jury understand the evidence when it is analyzing the entrapment defense. The government's fear about the application of the theory absolving younger defendants of all criminal liability is best resolved through cross examination.
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CONCLUSION

I will allow all of the expert witnesses who drew objection to testify at trial, but limit the

testimony as explained above.

IT IS SO ORDERED~

L{ DATED this

----cray of January, 2013.

('(arr M. King United States District Judge

PAGE 14 - OPINION AND ORDER

 
 UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 3:10-CR-00475-KI

Plaintiff, v.

OPINION AND ORDER

MOHAMED OSMAN MOHAMUD,

Defendant.

S. Amanda Marshall United States Attorney District of Oregon Ethan D. Knight Pamala R. Holsinger Ryan W. Bounds Assistant United States Attorneys 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204-2902
Attorneys for Plaintiff

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Stephen R. Sady Chief Deputy Federal Public Defender Steven T. Wax Federal Public Defender Lisa Hay Assistant Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204
Attorney for Defendant
KING, Judge:
A jury convicted defendant Mohamed Osman Mohamud of attempting to use a weapon of
mass destruction, specifically a destructive device or explosive bomb, against a person or
property within the United States, in violation of 18 U.S.C. § 2332a(a)(2)(A). Before the court
are defendant’s Motion for Judgment of Acquittal After Jury Verdict [431] and Motion for a New
Trial [432]. I deny both motions for the reasons stated below.
LEGAL STANDARDS
I. Motion for Judgment of Acquittal
In determining if sufficient evidence exists to support a verdict, the court
must first construe the evidence in the light most favorable to the [government], and . . . then determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. When viewing the evidence in the light most favorable to the government, we may not usurp the role of the finder of fact by considering how [we] would have resolved the conflicts, made the inferences, or considered the evidence at trial. Therefore, in a case involving factual disputes and credibility determinations, we must presume . . . that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.
United States v. H.B., 695 F.3d 931, 935 (9th Cir. 2012) (internal quotations and citations
omitted). A jury is entitled to disbelieve a witness. United States v. Nevils, 598 F.3d 1158, 1169
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(9th Cir. 2010). When a defendant pursues an entrapment defense, the court “should not disturb the jury’s finding unless, viewing the evidence in the light most favorable to the government, no reasonable jury could have concluded that the defendants were predisposed to commit the charged offenses.” United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994). II. Motion for a New Trial
In considering whether to grant a new trial, a district court is not required to view the evidence in the light most favorable to the verdict. The court may weigh the evidence and evaluate the credibility of the witnesses. United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 1206, 1211 (9th Cir. 1992). “If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred,” the court may set aside the verdict and grant a new trial. Id. at 1211-12 (internal quotation omitted).
DISCUSSION I. Motion for Judgment of Acquittal
Mohamud seeks a judgment of acquittal, arguing the evidence at trial was insufficient to negate entrapment beyond a reasonable doubt. The United States responds generally that Mohamud’s arguments rest on disputed facts or conflicting evidence the jury was entitled to discount or reject. Because the law requires the court to construe the evidence in the light most favorable to the government, the United States contends the court must deny the motion for judgment of acquittal.
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A. Analogy to Sherman v. United States, 356 U.S. 369 (1958) Mohamud argues that after his family intervened to prevent his overseas travel, the evidence establishes he agreed to complete college in the United States. According to Mohamud, the subsequent contact by undercover agents redirected Mohamud out of the college-based rehabilitative program his parents designed and toward committing terrorist acts in the United States. Mohamud claims the government contact is analogous to Sherman v. United States, 356 U.S. 369 (1958), making acquittal required. In Sherman, a government informant met the defendant at a doctor’s office where both were receiving treatment for narcotics addiction. The informant repeatedly asked the defendant for a narcotics source, explaining the treatment was not working and he was suffering. The defendant tried to avoid the issue at first but eventually acquiesced and purchased narcotics for each to use, charging the informant only for his share. Id. at 371. The Court reversed the conviction and found entrapment as a matter of law, based on the defendant’s efforts to end his addiction, the informant’s repeated requests to join in illegal activity, the informant’s use of sympathy, the defendant’s reluctance to provide narcotics, and the lack of evidence defendant was selling narcotics to anyone else. Id. at 373-75. The Court also concluded the defendant’s nine-year old narcotics sale conviction and five-year-old possession conviction were insufficient to prove the defendant’s predisposition to sell narcotics at the time the informant approached him, when the defendant was trying to overcome his addiction. Id. at 375-76. The jury is not required to believe Mohamud meant to complete college when he agreed to do so. Viewing the evidence in the light most favorable to the government, Mohamud began thinking of taking part in violent jihad at the age of 15. He originally planned to wage war in the
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United States until a dream refocused him on Yemen; he wrote three articles in 2009 for Jihad Recollections, an on-line magazine promoting violent jihad against Americans; and he had lengthy email conversations with two men the FBI believed promoted terrorism. Mohamud did these things before he was contacted by a government agent. Thirteen minutes after meeting undercover agent Youssef in person, Mohamud explained he wanted to become operational by using a car bomb; he did not demonstrate the reluctance shown by the defendant in Sherman.
Sherman is not analogous to Mohamud’s situation and is not a basis to grant a judgment of acquittal.
B. Overseas Versus Domestic Terrorism The defense contends the evidence establishes that prior to the first Bill Smith email contact on November 9, 2009, Mohamud had only expressed interest in travel and potential support for defensive jihad overseas, not domestically. Mohamud claims no rational jury could find he was predisposed, prior to government contact, to commit terrorism in the United States. As discussed to some extent above, Mohamud told Youssef he originally planned to wage war in the United States. As the government notes, Jihad Recollections was an English language magazine; the jury could infer the magazine was aimed at American jihadists who could act at home. There was evidence Mohamud was a fan of Osama Bin Laden and the September 11 attacks. The jury is entitled to accept this evidence and any inferences it can support, including that Mohamud was predisposed to commit domestic violent jihad prior to any government contact.
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C. Expert Testimony Mohamud claims the three defense expert witnesses established a reasonable doubt about his predisposition to commit the crime charged and the FBI’s lack of inducement. According to Mohamud, Dr. Sageman testified Mohamud had not turned away from the discursive community and towards violence before the Bill Smith emails fomented Mohamud’s frustration with the discursive community. Professor Cauffman and Professor Moghaddam provided additional testimony about inducement, particularly in a young man Mohamud’s age. Defense lay witnesses provided uniform testimony that Mohamud was busy with school activities and not predisposed to commit the crime charged. Considering all of this testimony together, Mohamud argues the government did not prove beyond a reasonable doubt that he was not entrapped. The jury could have accepted all of this testimony but it apparently did not. In analyzing a motion for judgment of acquittal, I must view the evidence in the light most favorable to the government. The jury was entitled to disregard the defense experts’ opinions and accept government expert Evan Kohlman’s view of Mohamud’s on-line activities. Moreover, the jury must consider the rest of the evidence brought forth at trial, including Mohamud’s lack of reluctance to commit the crime as shown by his comments early in the meeting with Youssef. A defendant’s reluctance to engage in criminal conduct is the most important factor when considering whether a defendant was predisposed to commit the crime. United States v. Williams, 547 F.3d 1187, 1198 (9th Cir. 2008). Thus, the defense expert testimony is not a sufficient basis to grant a motion of acquittal.
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D. Capability to Commit the Offense Although Mohamud concedes impossibility is not a defense, he argues his inability to commit the crime on his own, along with his failure to take any steps toward commission of the crime prior to contact by Youssef, establishes his lack of predisposition. For a jury to find a defendant is not entrapped, there is no requirement the defendant must be able to commit the crime alone or start planning the crime prior to government contact. See United States v. Thickstun, 110 F.3d 1394, 1398 (9th Cir. 1997) (“A person’s ability to commit a crime may illustrate her predisposition to do so, but should not become a separate element to be proven.”). The defense argument does not persuade me to grant a judgment of acquittal. E. Summary None of Mohamud’s arguments are persuasive. When viewed in the light most favorable to the government, the evidence is sufficient for a rational jury to conclude beyond a reasonable doubt that Mohamud was not entrapped. II. Motion for a New Trial Mohamud argues he is entitled to a new trial because the following issues, considered either separately or cumulatively, deprived him of a fair trial. The government disagrees, contending the court properly ruled against the defense when the issues arose earlier. Thus, the government argues Mohamud fails to establish that a serious miscarriage of justice occurred, and the court should deny the motion. A. Jury Instructions on Predisposition Prior to trial, I denied defense and government requests to change the language in the entrapment instruction. I decided to give the following Ninth Circuit form instruction 6.2:
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INSTRUCTION NO. 18

The defendant contends that he was entrapped by government agents. The government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped. The government must prove either:

1. the defendant was predisposed to commit the crime before being contacted by government agents, or

2. the defendant was not induced by the government agents to commit the crime.

When a person, independent of and before government contact, is predisposed to commit the crime, it is not entrapment if government agents merely provide an opportunity to commit the crime. In determining whether the defendant was predisposed to commit the crime before being approached by government agents, you may consider the following:

1. offense;

whether the defendant demonstrated reluctance to commit the

2. the defendant’s character and reputation;

3. activity;

whether government agents initially suggested the criminal

4. and

whether the defendant engaged in the criminal activity for profit;

5. the nature of the government’s inducement or persuasion.

In determining whether the defendant was induced by government agents to commit the offense, you may consider any government conduct creating a substantial risk that an otherwise innocent person would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.
ECF No. 426 at 19.1

After deliberations started, the jury sent out a note:

1 All ECF references are to the docket for United States v. Mohamud, No. 3:10-CR-00475-KI (D. Or.).
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We are looking for clarification on Instruction #18 if possible: Where it states “the crime”, [sic] does that refer strictly to the crime as stated in the indictment, or could it include “a similar” crime as stated by the prosecution in closing statements. ECF No. 430 at 6. I discussed the note with counsel and sent a written answer to the jury: The jury may consider evidence of similar conduct or willingness to engage in similar conduct, along with all the evidence, in deciding if the defendant was predisposed to commit the crime set forth in the indictment. Please review all of Instruction No. 18. Id. at 7. Mohamud argues the defense theory of the case depended on a narrow area of reasonable doubt: even though Mohamud may have thought about and planned to go overseas, he never planned or thought about terrorist action in the United States until the government agents induced the crime charged in the indictment. He claims the jury note shows the jury instructions failed to adequately communicate both the government’s burden and the defense theory of the case. He further argues the note shows at least one juror understood the difference between the crime charged and other similar conduct. Mohamud contends my response to the jury note instructed on a particular kind of predisposition evidence which I did not include in the original instructions–predisposition to commit similar crimes, a factor argued by the government–and did not clearly answer the jury’s question. Additionally, the response failed to instruct on the kind of predisposition evidence favored by the defense–the lack of wherewithal to commit the crime. Thus, Mohamud claims my response “communicated approval of the jury’s misunderstanding of
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the prosecution argument and disapproval of the strict standard advocated by the defense.” Mot. for a New Trial at 5.
The government argues my response to the jury’s note correctly told the jury it could consider Mohamud’s desire to commit crimes similar to the crime charged in the indictment when assessing if the government met its burden of negating the entrapment defense. According to the government, proof that Mohamud wanted to commit an act of violence against Americans in the United States or overseas is probative of predisposition, even if he did not have a clearly formed plan to bomb Pioneer Square prior to his contact with government agents. The government claims the evidence of predisposition was overwhelming, regardless of the instructions, because of Mohamud’s lack of reluctance when the agents attempted to impress upon him the gravity of what he proposed.
My response to the jury note reiterated a pretrial ruling I made concerning what evidence was admissible to prove or disprove entrapment. I am still convinced the ruling is a correct statement of the law. See Williams, 547 F.3d at 1198 (“The second factor also supports the conclusion that Williams was predisposed to commit the robbery. Although the government initially suggested the [drug] stash house robbery, it did so only after Williams told the agents of his plans to commit bank robbery, which he concocted entirely on his own. While the criminal schemes are not identical, they both involve stealing property with force as well as the use of firearms.”). I agree with Mohamud that the note indicates at least one juror understood the difference between the crime charged and other similar conduct, but I do not see the problem with this fact. It shows the juror was able to understand the entrapment instruction. I was careful to ask the jury to consider all the evidence and to review the entrapment instruction in its entirety.
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With these precautions, I do not think my response to the jury note unfairly favored the prosecution’s evidence and ignored the defense’s evidence.
I see no error and no serious miscarriage of justice concerning the response to this jury note.
B. Government’s Closing Argument At the beginning of the government’s closing argument, the prosecutor stated:
Ladies and gentlemen, this case, at its core, is about a choice; a single and remarkable choice by this defendant to take the lives of thousands of people he had never met before.
And before we talk in more detail about the facts, before we talk in more detail about the law, there is an element of common sense you should consider as you begin your deliberations, and that is this: An individual simply cannot be entrapped to commit an offense such as this.
There is nothing a government agent can do or did do to persuade someone to take the lives of these people. There is nothing the Government did do in this case to persuade or induce this defendant to take these steps, because this decision was made by this defendant long before the Government arrived. Tr. 2539, ECF No. 452. The defense waited until I called a recess and then objected that the prosecutor’s statement was improper under the law. I refused to give a corrective instruction as the defense requested. Mohamud claims the prosecutor’s statement directly contravened the jury instructions, nullified the legal authority on which the entire defense rested, and shifted the constitutional burden of proof. The government argues the prosecutor asked the jury to consider the gravity and enormity of the crime and neither suggested the entrapment defense was not a legally viable theory nor
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watered down the government’s burden of proof. Thus, the government contends the closing argument was persuasive and effective and not a misstatement of the law.
As the government noted, I had instructed the jury prior to closing arguments, including stating that the lawyers’ arguments are not evidence. Jury instructions carry more weight than an attorney’s argument. United States v. Begay, 673 F.3d 1038, 1146 (9th Cir. 2011). The cases the defense consider analogous concern prosecutors’ closing arguments which tread heavily and incorrectly on the burden of proof. See United States v. Sandoval-Gonzalez, 642 F.3d 717, 726-27 (9th Cir. 2011) (prosecutor misstated that a presumption of alienage existed and defendant had to establish derivative citizenship; actually, alienage is an element of the crime the government must prove); United States v. Perlaza, 439 F.3d 1149, 1169-73 (9th Cir. 2006) (prosecutor stated the presumption of guilt would take over the jury during deliberations); United States v. Segna, 555 F.2d 226, 230-32 (9th Cir.1977) (prosecutor misstated a presumption of sanity existed after defendant had mounted an insanity defense sufficient to overcome the presumption).
Here, the prosecutor spoke of the sole defense raised by Mohamud but I do not interpret the statement to shift the burden of proof impermissibly as in the cited cases. Instead, I see the statement as a comment on the gravity of the crime for the jury to consider when analyzing the entrapment factors. Moreover, the defense is objecting to two sentences in a trial lasting fourteen days; the prosecutor did not return to the point time and again during the argument. United States v. Moreland, 622 F.3d 1147, 1163 (9th Cir. 2010) (internal quotation omitted) (prosecutor referred to testifying defendant as a liar; “Put in proper context, the [two-sentence] statement was an isolated moment in a 34-day trial.”).
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In sum, the prosecutor did not go too far here. “[T]he prosecution must have reasonable
latitude to fashion closing arguments.” Id. at 1161 (internal quotation omitted). The statement
was well within the bounds for closing argument.
C. Status of Amro Al Ali
Evidence at trial showed Mohamud exchanged many emails with Amro Al Ali. An FBI
agent testified this was one of the factors which brought Mohamud to the attention of the FBI. I
admitted Exhibit 80 to allow the government to provide the jury some background on how the
investigation started; thus, I admitted Exhibit 80 for the FBI’s state of mind and not for the truth
of the information within it. Exhibit 80 is an INTERPOL Red Notice dated October 18, 2009
identifying a fugitive wanted for prosecution, Al Ali. The exhibit also states:
SUMMARY OF FACTS OF THE CASE: SAUDI ARABIA: On 13 October 2009, AL ALI was known to be connected to a fugitive wanted by Saudi Arabian authorities who is an expert in manufacturing explosives and who plays a coordinating role in facilitating the movement of extremists inside Saudi Arabia. He also helped AL Qaeda division in Yemen and other countries by providing them with foreign fighters to carry out terrorist attacks against western and tourist interests.
. . . .
CHARGE: Links to terrorist organizations and connection to a fugitive who is an expert in explosive manufacturing.
Ex. 80, at 2 (emphasis added).
During trial, I instructed the jury:
You heard evidence yesterday relating to an Interpol notice and Amro Al Ali. I instruct you that this evidence is admitted only for the limited purpose of what it means regarding the agents’ and the defendant’s mental state; and, therefore, you must consider it for that purpose and not for any other purpose.
Tr. 587, ECF No. 457.
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There was a lot of testimony about whether the pronoun “he” in the last sentence of the Red Notice summary referred to Al Ali or to the fugitive Al Ali knew. Government witnesses testified “he” referred to Al Ali, even if somewhat ambiguous; defense witnesses testified “he” referred to the fugitive.
Mohamud argues the government’s case depended on the truth of the FBI’s belief that Al Ali was an Al Qaeda recruiter when he was communicating with Mohamud. The defense insists this is a false premise which could have been corrected if I had allowed SA Johnson to testify to the jury about Exhibit 80. The defense also requests discovery of classified material to supplement the record about the government agents’ states of mind, whether the agents knew Al Ali was not a recruiter for Al Qaeda in October 2009, and the Saudi Arabian interrogations of Al Ali once he was in Saudi custody. Further, Mohamud contends the admission of Exhibit 80 to show the government agents’ states of mind requires a new trial because the agents’ states of mind were irrelevant and unfairly prejudicial.
The government argues the accuracy of the Red Notice’s information, and the FBI’s interpretation of it, is not at issue. According to the government, the important point is that the FBI believed Al Ali was a wanted terrorist, not whether he actually was at that time.
I disagree with the defense argument that the government’s case depended on whether Al Ali was an Al Qaeda recruiter when he was communicating with Mohamud. The truth about Al Ali’s status at the time is not relevant–the FBI was investigating Al Ali and, when he started communicating with Mohamud, the FBI concluded Mohamud might also be worth investigating. Even if Al Ali was a completely benign figure at the time, the only important point was the FBI’s opinion of him, right or wrong. That is why I instructed the jury to only consider the Red Notice
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for what it meant about the agents’ mental states and nothing more. A jury may hear some background information on why a criminal investigation began. I admitted the Red Notice and testimony about its effect on the FBI for that purpose.
The Ninth Circuit approved a similar situation in United States v. Wahchumwah, No. 11-30101, 2013 WL 811610 (9th Cir. Mar. 4, 2013), in which the court allowed two law enforcement officers to testify at trial about complaints from unnamed tribal members that the defendant was selling eagle parts. The Ninth Circuit held the testimony did not violate the Confrontation Clause and reasoned: “The anonymous complaints were not offered to prove that Wahchumwah was selling eagle parts, but merely to explain why the federal agents began investigating him.” Id., slip. op. at 17. That is indistinguishable from the purpose of the Red Notice but here, the government’s discussion of the Red Notice was much more limited. The defense kept the Red Notice in the jury’s attention for a much longer period by prolonged questioning about whether the pronoun “he” referred to Al Ali or the fugitive.
I conclude admission of the Red Notice does not require a new trial and the defense was not entitled to additional discovery to try to determine the true status of Al Ali when he was emailing Mohamud.
D. Replaying Recordings During Jury Deliberation During the investigation, the government made video or audio recordings of all but the first face-to-face meeting between Mohamud and the undercover agents, as well as many phone calls. At trial, I admitted numerous government and defense exhibits in the form of portions of these tapes with a transcript of the audio scrolling at the bottom of the screen. The transcripts were helpful because they contained translations of the Arabic phrases sprinkled throughout the
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conversations, identified the speakers, and allowed the jury to read transcriptions of conversations which could not be understood without listening to the conversations numerous times. Unfortunately, it was not technically possible to play the tapes with the transcripts on the equipment available in the jury room; I was unaware of this when I admitted the tapes. Thus, I did not discuss with counsel or rule prior to jury deliberations whether the exhibits consisted of only the audio/video or whether the exhibits also included the transcripts. After discussions with counsel, and changes of heart on both sides, I decided to send the tapes to the jury room during deliberations without separate paper transcripts.
Mohamud raises a few objections to my decision. First, he argues the Ninth Circuit prohibits sending recordings to be played unsupervised in the jury room. Mohamud characterizes the exhibits as testimonial evidence which cannot be reviewed by the jury without judicial supervision. He claims my decision allowed the jury to place undue emphasis on a portion of the testimony. Instead, I should have advised the jury it could ask for an exhibit to be replayed for them in the courtroom, with defendant present and proper judicial oversight to provide appropriate limiting instructions. Failure to do so violated the law of the Circuit and Mohamud’s constitutional right to be present at all stages of the trial. Mohamud also argues the recordings in the jury room were not in the form admitted at trial, thus compounding the problem.
The government argues jurors are entitled to examine documents properly admitted in evidence, and no federal court limits this general rule to paper documents as opposed to audio and video recordings. The government distinguishes the case law relied on by the defense as only applying to tapes never received in evidence or tapes replayed for the jury in the presence of outsiders.
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I will first address the fact that the recordings in the jury room did not include the transcripts at the bottom. It is unfortunate that I could not address this issue with counsel prior to trial–technology outpaced us. When the issue arose just prior to jury deliberations, the government argued the transcripts were demonstrative only and not included as part of the exhibits. This theory is in accord with the way recordings and associated paper transcripts are traditionally handled by courts. See United States v. Delgado, 357 F.3d 1061, 1070-71 (9th Cir. 2004) (discussion of use of transcripts as an aid to listening to recordings; “court specifically instructed the jury that the recordings only–and not the transcripts–constituted evidence”). Although I could not instruct the jury as such, I see no significant difference between reading a transcript at the bottom of the screen and reading a transcript from papers held in the jurors’ hands. Consequently, I find the exhibits consisted of the recordings only, and not the transcripts. Thus, no error occurred because the recordings in the jury room differed from those in the courtroom in this respect.
The remaining issue is whether I erred by sending the recordings to the jury room for possible unsupervised listening. As a threshold matter, I disagree with Mohamud’s contention that the recordings are testimonial evidence. In the context of Fifth Amendment protection, testimonial evidence includes trial or deposition testimony, affidavits, questioning by law enforcement, and required production of documents for investigative bodies. United States v. Sideman & Bancroft, LLP, 704 F.3d 1197, 1201 (9th Cir. 2013) (oral statements and production of documents); United States v. Anekwu, 695 F.3d 967, 973-74 (9th Cir. 2012) (in-court testimony, affidavits, and depositions); Delgadillo v. Woodford, 527 F.3d 919, 926 (9th Cir. 2008) (statements responding to police questioning). These recordings of conversations between
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Mohamud and the undercover employees are far removed from traditional categories of testimonial evidence.
Generally, jurors are entitled to examine all documents properly admitted into evidence. The court has discretion to send admitted exhibits to the jury room for deliberations. United States v. DeCoito, 764 F.2d 690, 695 (9th Cir. 1985). Mohamud relies on cases which are distinguishable.2 In United States v. Noushfar, 78 F.3d 1442, 144-45. (9th Cir. 1996), amended on other grounds, 140 F.3d 1244 (1998), the court reversed convictions because the trial court sent fourteen tapes to the jury room for deliberations when the tapes had never been played during the trial. Although Noushfar contains broader language concerning a defendant’s right to be present when the tapes are played, it is dicta. Noushfar relied on the following three cases.
In United States v. Felix-Rodriguez, 22 F.3d 964 (9th Cir. 1994), the government played to the jury a recording of a Spanish-language phone conversation between the defendant and a cooperating witness. The cooperating witness then read the English transcript to the jury. During deliberations, the jury asked for the transcript. The judge brought the jury back to the courtroom and replayed the Spanish recording while the jury read along with the English transcript. The courtroom contained the jury, judge, and court staff, but the judge excluded the defendant and defense and prosecution teams. The jury then returned to the jury room without the transcript. Id. at 966. Using an analysis for rereading/replaying testimony, the court held that replaying the recording, with the assistance of the transcripts, did not cause undue emphasis of that testimony. Id. The court further held it was harmless error to replay the recorded
2 I do not think the state law cases cited by Mohamud are of assistance in this question. The Ninth Circuit cases rely on the Federal Rules of Criminal Procedure, obviously inapplicable in state court. Thus, I decline to address the state law cases. Page 18 - OPINION AND ORDER

conversations without defendant present, a violation of Federal Rule of Criminal Procedure 43. Id. at 967-68.
In United States v. Brown, 832 F.2d 128 (9th Cir. 1987), the deliberating jurors twice asked to have a recording replayed for them which had been played during trial but not received as an exhibit. Each time, the judge had the case agent, who had operated the recording equipment during trial, replay the recording for the jurors in the courtroom with only the jurors, the case agent, and the court clerk present. Id. at 129. The court reversed the conviction and remanded the case for a new trial because replaying the recording without the presence of the defendants, their counsel, and the judge violated Rule 43 and the error was not harmless beyond a reasonable doubt. The court was concerned about the possibility of prejudicial contact between the case agent and the jury, even if unintended by the case agent. Id. at 130.
In United States v. Kupau, 781 F.2d 740 (9th Cir. 1986), the deliberating jury asked to rehear recorded conversations between the defendant and a cooperating witness. Over a limited defense objection, the judge twice had an FBI agent play the recordings for the jury in an otherwise empty courtroom. Prior to the replaying, the judge explained the agent was only to operate the equipment and would not answer questions or make any comments. Id. at 741-42. The appellate court was concerned about outside contact with the jury by the FBI agent who was part of the prosecution team. Although the preferable procedure would have been replaying the recordings in open court with the reporter, judge, counsel, and defendant present, the appellate court did not reverse on this ground because the defense had not objected to the jury being alone with the agent. The court erred, however, in replaying the tapes without the defendant present but the error was harmless beyond a reasonable doubt. Id. at 742-43.
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The government distinguishes these last three cases as limited to instances in which the trial court allowed recordings to be replayed for a jury in the presence of outsiders, as opposed to the jurors having all the recordings which were admitted into evidence and replaying whatever they wished, with no outsiders present.
In another case, the Ninth Circuit found no error in sending recorded exhibits into the jury room. United States v. Doyle, 786 F.2d 1440, 1442 (9th Cir. 1986) (in a case addressing whether the court reporter must report the content of tapes played at trial, “tapes were taken into the jury room, where the jury had the opportunity to listen to all or any portion of each tape because each was admitted in evidence in its entirety”).
It is apparent that the district court viewed the tape playing as merely mechanical assistance to enable the jury to hear the evidence as a part of the jury's deliberation and not as “a stage of the trial” under Fed. R. Crim. P. 43, at which the presence of the defendant was required. However, the procedure is more properly viewed as a stage of the trial at which the presence of the defendant is required. It differs from the kind of technical assistance rendered by the marshals in dealing with the physical needs of the jury, because it involves the crucial jury function of reviewing the evidence. Kupau, 781 F.2d at 743 (emphasis added). Obviously, the jury reviews evidence alone in the jury room all the time. Paper exhibits and even physical exhibits are routinely brought into the jury room for a criminal jury to review during deliberations. I cannot discern any difference between recorded exhibits and paper exhibits which would require different procedures. As explained above, the recorded exhibits here are not testimonial. The jury did not have tapes of depositions or trial testimony to review at leisure and possibly give undue emphasis to one witness over another. The recordings are admitted exhibits. I see no problem with giving them to the jury during deliberations, to be
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played in the jury room without anyone else in attendance. I agree with the government that the defense cases are distinguishable from our situation, and I find no error in the procedures I used.
E. Failure to Order Discovery of the Identities of the Undercover Employees After reviewing classified documents about the undercover employees (“UCEs”), Youssef and Hussein, I filed an unclassified order approving the deletion of their true names from discovery. ECF No. 315. Mohamud notes he had direct contact with the UCEs over a prolonged period during which all critical events in the case took place. Moreover, the FBI did not record the critical first meeting between Mohamud and Youssef due to equipment failure. Mohamud claims he did not have a fair opportunity to cross-examine the UCEs because he could not undertake a full investigation into their backgrounds. Because all of Hussein’s contact with Mohamud was recorded, Mohamud argues Hussein’s live testimony was superfluous and should have been excluded completely if Mohamud could not investigate him. Finally, Mohamud contends the lack of effective cross-examination was exacerbated by the UCEs using false names at trial, thus communicating to the jury that testifying put the UCEs in danger, possibly from the defendant. The government notes there was no impeachment information about the UCEs to disclose under Giglio and Henthorn. The government did provide information about the UCEs’ background, training, and experience, as well as extensive recordings of their interactions with Mohamud. The defense and jury could observe the UCEs in person when they testified, thus allowing a credibility assessment. The government contends the defense had adequate material to conduct a meaningful cross-examination.
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“[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431 (1986). Here, the defense team had information about the UCEs’ background, training, and experience, along with the bias inherent in the testimony of a government agent, from which to fashion crossexamination questions. Moreover, the defense based much of the cross-examination on its theory the agents exploited Mohamud’s vulnerability in their frequent religious references and compliments about his poetry, as two examples. The recordings of nearly all meetings and phone calls allowed the defense to plow this ground easily.
The government filed an ex parte classified motion giving multiple solid reasons for keeping the UCEs’ identities secret from the defense team, as well as from the public during trial. I cannot discuss the information here, but the motion is available for appellate review. True identities of trial witnesses have been withheld from the defense before, particularly when national security is at issue. United States v. El-Mezain, 664 F.3d 467, 493 (5th Cir. 2011) (in a trial concerning providing material aid and support to a designated terrorist organization, the district court did not violate defendant’s confrontation rights by withholding the identities of two Israeli government employees; “although the defense could not verify the witnesses’ credentials, the district court correctly observed that the defendants had access to significant information regarding the witnesses’ employment, nationalities and backgrounds in order to conduct meaningful cross-examination”), cert. denied, 133 S. Ct. 525 (2012). The cross-examination of Youssef and Hussein, although not as extensive as the defense would like, was effective. The use of pseudonyms at trial did not compound the problem. United States v. Rangel, 534 F.2d
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147, 148 (9th Cir. 1976) (informant not required to divulge true name on the witness stand because of threats against his personal safety).
F. Denial of Discovery and Testimony from “Bill Smith” Under FBI supervision, an operative known as “Bill Smith” exchanged many emails with Mohamud prior to Youssef’s first contact. The defense requested the operative’s true identity well before trial. After a few false starts, I eventually held an ex parte hearing in which I questioned Bill Smith and concluded his identity was neither relevant nor helpful to the defense because the emails could speak for themselves. Bill Smith had no contact with Mohamud other than through email. The defense argues the denial of Bill Smith’s true identity violated Mohamud’s right to compulsory process, confrontation, and presentation of the defense theory about the emails. He contends the testimony about the emails from SA Dodd, Bill Smith’s FBI handler, provided a government spin which the defense could not challenge due to the lack of full discovery. Mohamud claims testimony from Bill Smith was essential to either contradict SA Dodd, provide an inconsistent explanation, or demonstrate incredible testimony from both witnesses which would provide a reason to distrust all government testimony. The government notes I ruled “Mohamud can argue any meaning to the jury, including the beginning of an entrapment scheme, which he thinks the emails support.” ECF No. 195, at 4. According to the government, the jury did not share the defense’s interpretation of the Bill Smith emails in the context of all the evidence presented. Testimony from Bill Smith would not have changed the jury’s analysis.
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SA Dodd not only kept a close watch on Bill Smith’s email contacts with Mohamud, SA Dodd helped draft all of the emails Bill Smith sent. During the government’s questioning of SA Dodd, I sustained a defense objection to questions asking what SA Dodd believes Bill Smith was thinking in composing the emails. I redirected the government’s questions to what was said in the emails and what SA Dodd thought about the content. Tr. 1507. The defense extensively cross-examined SA Dodd about the content of the emails, although I did sustain government objections to questions about whether SA Dodd implanted ideas in Mohamud’s thinking. Tr. 1529. At the end of the day, Mohamud could only be entrapped by what was said in the emails, not by what the FBI intended. Moreover, since all contact was by email, there was no issue on whether the informant was truthful about what was said during the contacts.
Mohamud’s confrontation rights were not violated because he had the opportunity for effective cross-examination, even without discovery or testimony from Bill Smith, due to the limited nature of the contacts. Delaware, 475 U.S. at. 679.
A criminal defendant has a constitutional right to present a complete defense, including the testimony of witnesses. Jackson v. Nevada, 688 F.3d 1091, 1096 (9th Cir. 2012), pet. for cert. filed, 81 U.S.L.W. 3349 (Dec. 3, 2012). The right has limitations, however.
[A] defendant does not have an absolute right to present evidence, no matter how minimal its significance or doubtful its source. United States v. Scheffer, 523 U.S. 303, 309-11, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998). Rather, the right itself is only implicated when the evidence the defendant seeks to admit is “relevant and material, and . . . vital to the defense.” [Washington v. Texas, 388 U.S. 14, 16, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).] Jackson, 688 F.3d at 1096.
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Again, the importance of Bill Smith is in the content of the emails he sent to Mohamud, which were all presented to the jury. Mohamud has not persuaded me that testimony from Bill Smith was vital to the defense, particularly in light of the information I learned from Bill Smith in the ex parte hearing. When weighed against the government’s reasons not to disclose Bill Smith’s identity, the lack of Bill Smith’s testimony did not violate Mohamud’s compulsory process rights.
Thus, I find the lack of information on Bill Smith’s true identity did not violate any of Mohamud’s constitutional rights.
G. State of Mind Testimony Mohamud contends he did not receive a fair trial due to my rulings on several types of “state of mind” evidence. He argues the admission of evidence on why the FBI agents took particular actions during the course of the investigation was irrelevant. The error was compounded when I allowed the government to withhold evidence from discovery that would have allowed the defense to demonstrate alternative motivations for government action. Further error occurred when I refused to admit evidence of Mohamud’s state of mind. The government argues Mohamud made the agents’ motivations and beliefs an issue from the start of the trial when the defense focused on Mohamud’s inner conflict, vulnerability, and ability to be manipulated. The government also notes instances when the defense introduced evidence of Mohamud’s own state of mind. Well before trial, it became clear Mohamud would rely on an entrapment defense based on his youth and vulnerability. The defense opening statement characterized Mohamud several times as manipulable and conflicted. I decided that prohibiting FBI agents from explaining why
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they initially targeted Mohamud and took various actions during the investigation would have been highly unreasonable. Lack of this testimony would have left the jury with the impression the FBI pounced on Mohamud for no reason, something I knew was untrue from pretrial proceedings. I wanted to allow both sides the chance to give a balanced presentation.
The Supreme Court has discussed the need for the government to present its case in a forceful way:
Thus, the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant’s legal fault. Old Chief v. United States, 519 U.S. 172, 188, 117 S. Ct. 644 (1997) (analyzing when the government must accept defendant’s offer to admit to a prior conviction, when that is an element of the crime, especially if the nature of the prior conviction raises the risk of a verdict tainted by improper considerations). Moreover, the Ninth Circuit has approved background testimony from case agents. See United States v. Decoud, 456 F.3d 996, 1011-12 (9th Cir. 2006) (finding unfounded the defense hearsay and foundation objections to case agent’s trial testimony about the background of the drug investigation and the roles of co-conspirators). I did allow some testimony about Mohamud’s state of mind. His friends testified about Mohamud’s campus activities and his desire to study religion abroad. I allowed a jail nurse to testify about Mohamud’s statements to her when he was booked into the jail after his arrest. Mohamud’s parents testified about his response to them when they were concerned he was trying to go abroad. Government Exhibit 18 was Mohamud’s notebook containing his music lyrics, to
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do lists, plans for making money, and self-imposed rules for his behavior. Defense Exhibit 1012 was another of Mohamud’s to do lists.
The rules of evidence prohibited the admission of much of Mohamud’s state of mind evidence in the form of his own statements. When offered by the government, Mohamud’s own statements were not hearsay under Rule 801(d)(2) because they were offered by the opposing party. If Mohamud offered his own statement, however, it was hearsay and could not come in unless the statement fell within a hearsay exception in Rule 803 or was not offered for the truth. United States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007) (defendant’s exculpatory statements made during interviews with law enforcement were inadmissible hearsay because they were not party-opponent admissions and did not fall within the statement against interest hearsay exception). I did admit a few of Mohamud’s statements that made it past the hearsay rules–for example, Exhibit 1049 is an email chain between Mohamud and his friend Beau Stuart–but not many.
All in all, I see no error in how I received, or refused to receive, state of mind evidence. H. Selective Declassification of Documents Many times during discovery, Mohamud objected to the government’s selective declassification of material. He raises this objection again, claiming the selectiveness skewed the fact-finding process and requires a new trial to rectify the error. Mohamud claims the selectiveness made it impossible to show that the overwhelming majority of his communications and daily activities were those of a normal, teenaged college student. He was also unable to show the jury most of his communications around critical events, such as the time of the first Bill
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Smith email, the Beau Stuart “martyr” email of January 24, 2010, and the no-fly incident at the Portland airport.
The government counters it never disputed that the vast majority of Mohamud’s communications and daily activities were normal for a college student and did not relate to violent jihad. The government also notes the evidence Mohamud did offer at trial to show this, including testimony from many friends and older acquaintances at college, photos of activities with friends, and his college transcript. According to the government, this was more than sufficient to prove Mohamud’s point that he spent most of his time in benign activities.
I generally agree with the government’s arguments, and I believe the government fulfilled all of its discovery obligations, even though it did not follow the typical policy in this district of providing everything to the defense. The Ninth Circuit can review my decisions which limited discovery as a result of motions filed under the Classified Information Procedures Act. I do not think a serious miscarriage of justice occurred because of selective declassification of materials.
I. First Amendment Rights I did not give the defense’s requested jury instruction concerning the First Amendment, and I prohibited arguments about the First Amendment because I was concerned they were irrelevant and confusing to the jury. Mohamud claims he was denied a fair trial by my refusal to instruct on explicit First Amendment rights because issues on speech, the press, association, and religion were at the heart of his participation in a discursive community. According to Mohamud, the distinction between acts and talking was central to his defense. He also argues my prohibition on arguments about the First Amendment erroneously precluded him from arguing his theory of defense.
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The government notes it never disputed that Mohamud’s opinions, reading material, and writings pertaining to violent jihad were protected by the First Amendment. The government contends, however, the First Amendment was not a defense to the charge brought against Mohamud–attempted use of a weapon of mass destruction–because the offense conduct contains no element of activity protected by the First Amendment.
An accused has the right to make a closing argument on the theory of the defense. Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 1999). But the “right is not unlimited, and a court may limit closing arguments to ensure that they ‘do[ ] not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial.’” United States v. Doe, 705 F.3d 1134, 1149 (9th Cir. 2013 (quoting Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550 (1975)). Mohamud was not prosecuted for what he said or wrote; he was prosecuted for attempting to explode a bomb. I allowed the defense to argue its entrapment theory at closing argument.
Mohamud relies on United States v. Freeman, 761 F.2d 549 (9th Cir. 1985), in which the court held the defendant was entitled to a First Amendment defense instruction on twelve of the fourteen counts of aiding, abetting, and counseling violations of the tax code, something the defendant allegedly did at seminars he taught. In the twelve reversed counts, there was some evidence “that the purpose of the speaker or the tendency of his words [were] directed to ideas or consequences remote from the commission of the criminal act,” making the defendant entitled to an instruction based on the First Amendment. Id. at 551. In the other two counts, the defendant directly participated in preparing the people’s returns based on his advice. Because these two counts contained no element of protected First Amendment activity, the defendant could not have a First Amendment defense to them. Id. at 552.
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“The First Amendment. . . does not prohibit the evidentiary use of speech to establish the

elements of a crime or to prove motive or intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489, 113

S. Ct. 2194 (1993). Here, Mohamud was not prosecuted for engaging in protected First

Amendment activity. He did not just discuss the possibility of violent jihad in the United States,

he attempted to engage in it directly. Thus, he was not entitled to a First Amendment defense or

jury instruction.

J. Summary

I conclude that no serious miscarriage of justice occurred during the trial, even when I

view the issues raised by the defense cumulatively.

CONCLUSION

Defendant’s Motion for Judgment of Acquittal After Jury Verdict [431] and Motion for a

New Trial [432] are denied.

IT IS SO ORDERED.

Dated this 22nd

day of April, 2013.

/s/ Garr M. King Garr M. King United States District Judge

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 Case 3:10-cr-00475-KI Document 499 Filed 03/19/14 Page 1 of 9 Page ID#: 8807

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 3:10-CR-00475-KI-1

Plaintiff, v.

OPINION AND ORDER

MOHAMED OSMAN MOHAMUD,

Defendant.

S. Amanda Marshall United States Attorney District of Oregon Ethan D. Knight Pamala R. Holsinger Kent Robinson United States Attorney's Office 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204

Attorneys for Plaintiff

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Case 3:10-cr-00475-KI Document 499 Filed 03/19/14 Page 2 of 9 Page ID#: 8808
Steven T. Wax Federal Public Defender Stephen R. Sady Lisa Hay Office of the Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204
Attorneys for Defendant
KING, Judge:
Title I and Title III of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C.
§§ 1801-1812, 1821-1829, allow electronic surveillance and physical search after obtaining a FISA
warrant from the Foreign Intelligence Surveillance Court (“FISC”). The government provided a
FISA notification to defendant at his first appearance, advising him it intended to use evidence
obtained under Title I and Title III. The jury convicted defendant in January 2013.
On November 19, 2013, the government filed a Supplemental FISA Notification:
This supplemental notice is being filed as a result of the government’s determination that information obtained or derived from Title I FISA collection may, in particular cases, also be “derived from” prior Title VII FISA collection. Based upon that determination and a recent review of the proceedings in this case, the United States hereby provides notice to this Court and the defense, 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 the above-captioned matter information derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. § 1881a.
Title VII of the FISA Amendments Act of 2008 (“FAA”), 50 U.S.C. §§ 1881a to 1881g,
permits, with some limitations, targeting of electronic communications of non-United States persons
located outside the United States.
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Case 3:10-cr-00475-KI Document 499 Filed 03/19/14 Page 3 of 9 Page ID#: 8809
Unlike traditional FISA surveillance, § 1881a does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power. And, unlike traditional FISA, § 1881a does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur. . . . .
Section 1881a mandates that the Government obtain the Foreign Intelligence Surveillance Court’s approval of “targeting” procedures, “minimization” procedures, and a governmental certification regarding proposed surveillance. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1144-45 (2013) (internal citations omitted). Before the court is defendant’s Motion for Full Discovery Regarding the Facts and Circumstances Underlying Surveillance [488]. Defendant claims he needs broad discovery to provide the court with the full factual context surrounding the legal issues, which will be decided in a future motion. The anticipated legal issues include whether the FAA is constitutional, whether the government followed its provisions, and whether any evidence needs to be suppressed.
DISCUSSION Defendant claims two interrelated issues exist– violation of the notice statute and unlawful use of Title VII surveillance. Under 50 U.S.C. § 1881e(a), information acquired under Title VII is deemed information acquired from an electronic surveillance and is subject to the notice requirement in § 1806(c). Defendant argues the government violated the notice statute by failing to provide notice of Title VII surveillance in the original FISA notification. If the defense eventually prevails on its expected arguments that the FAA is unconstitutional and the government did not follow its provisions, the Title VII collection would be unlawful. To decide both issues, defendant insists the court needs full information culled from the additional discovery defendant seeks. Defendant argues the court can base available remedies on the
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Case 3:10-cr-00475-KI Document 499 Filed 03/19/14 Page 4 of 9 Page ID#: 8810
court’s supervisory power or Rule 16(d)(2), not just FISA, and available remedies include dismissal of the indictment.
Defendant seeks information in four general categories with numerous subsections. The four general categories are:
(1) the government’s decision to provide the original and supplemental FISA notices; (2) material documenting all Title VII surveillance of defendant, derivative use of it, and all programs and procedures under which it was gathered; (3) material documenting all other surveillance, under the FISA warrants or other secret surveillance programs recently made known, which was not previously disclosed to the defense; and (4) Brady material showing government over-reaching and unlawful action in other cases, including classified judicial opinions making such findings. Defendant first addresses the recent disclosures about the extent of government surveillance. Defendant bases his argument, in part, on events concerning Clapper, 133 S. Ct. 1138. The Solicitor General argued to the Court that the government provided notice to defendants when evidence was derived from § 1881a surveillance. Plaintiffs had not received such notice, so the Court ruled plaintiffs had no standing to challenge the constitutionality of the FAA. Id. at 1143, 1148. Newspapers began to speculate about an internal Justice Department debate on providing notice in these circumstances. Defendant received his Supplemental Notification thereafter. Defendant interprets the newspaper accounts as demonstrating a secret and deliberate policy that led to the routine practice of violating the statute’s notice requirement. He seeks full disclosure of the circumstances behind this violation so the court has information necessary to determine the
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appropriate remedy for the violation. Furthermore, defendant claims the circumstances might lead to evidence relevant at retrial concerning the government’s over-reaching and unreliability.
Defendant points to a cascade of disclosures about government surveillance, generally instigated by former NSA contractor Edward Snowden. Defendant argues the court cannot determine the proper remedy without understanding the extent of the government’s surveillance against all targets when it was investigating defendant. Noting recently declassified FISC opinions revealing some agency violations of court orders, defendant seeks access to all FISC decisions, classified or not, that found problems with the conduct of surveillance under procedures in effect from 2007 to 2010.
Defendant seeks all material on the government’s seizure of internet and telephone metadata and all communications of defendant because: (1) the patterns revealed in the records are potential Brady material in that they can corroborate facts favorable to the theory of defense; and (2) defendant needs to analyze if the government violated statutory targeting protocols, constitutional protections, or minimization and dissemination procedures.
Defendant also raises concerns over the ex parte procedures provided in FISA. Defendant argues the cases concerning traditional Title I/III FISA collections, which approve the ex parte nature of the procedure, do not apply here because: (1) courts have upheld the constitutionality of Title I/III, but not Title VII; and (2) Title VII collections involve programmatic surveillance, as opposed to Title I/III, which involve individual probable cause determinations. Defendant seeks full disclosure to security-cleared counsel and full defense participation in adversary proceedings, contending the balance of interests has tilted sharply toward transparency and inclusion of both parties in all litigation. After considering the anticipated complexity and volume of
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information, defendant argues a defense perspective is needed to properly analyze it. Defendant
notes the legislative history in which the Senate committee stated that “indications of possible
misrepresentation of fact” could lead to the court deciding disclosure to the defense is necessary for
the court to make an accurate determination of the legality of the surveillance. S. Rep. 95-701, at 64
(1978); 50 U.S.C. § 1806(f). Defendant argues the failure to disclose the Title VII surveillance and
the lack of candor in the national security establishment constitute possible misrepresentations of
fact, making defense participation desirable. Defendant further argues if the prosecution failed to
disclose to the court the then-classified FISC opinions expressing concerns on the reliability of the
government representations in other cases, the failure alone would be a Franks violation for omitting
material information reasonably necessary for the court’s evaluation of the government’s
submissions.
In response, the government explains:
The Department has always understood that notice pursuant to Sections 1806(c), 1825(d) and 1881e(a) must be provided when the government intends to use evidence directly collected pursuant to Title I, III, or VII. Such evidence would be evidence that was “obtained from” such FISA collection. Likewise, the Department has always recognized that notice pursuant to those provisions must be provided when the government intends to use evidence obtained through ordinary criminal process (such as a Rule 41 search warrant) that was itself based directly on information obtained pursuant to Title I, III, or VII. Such evidence would be evidence that was “derived from” such FISA collection.
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 VII. After conducting a review of the issue, the Department has determined that information obtained or derived from Title I or Title III FISA 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.
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In November 2010, at the time the original notice was filed, the government knew that some of the evidence to be used in the case had been obtained or derived from Title I and Title III FISA collection. It did not consider whether that same evidence was also “derived,” as a matter of law, from prior FISA collection pursuant to Titles I, III, or VII. Based on the Department’s recent determination, the government reviewed the proceedings in this case and determined that some of the evidence obtained and derived from Title I and Title III collection was also derived from Title VII collection as a matter of law. As a result, the government provided the Supplemental Notification to inform the defense and the Court that Title VII derived information had been used against defendant in this case. Government’s Resp. to Def.’s Mot. for Full Disc. re Surveillance at 7-8, ECF No. 491 (footnote deleted) (hereinafter “Govt’s Resp.). The government notes the FAA allows a defendant, under 50 U.S.C. § 1881e(a), to challenge the use of evidence derived from collection under Title VII using the same procedures as a challenge to evidence obtained or derived from a Title I or Title III collection. These are the procedures specified in 50 U.S.C. § 1806, allowing a defendant to file a motion to suppress and the court to conduct an in camera and ex parte review if the Attorney General files an affidavit that disclosure or an adversary hearing would harm the national security of the country. The court is allowed to disclose to the defense team materials relating to the surveillance only if the disclosure “is necessary to make an accurate determination of the legality of the surveillance.” § 1806(f). I followed § 1806 when ruling on defendant’s previous FISA suppression motion. The government argues: “Since defendant has not yet submitted a substantive motion challenging the Title VII collection and the issue of the legality of the collection is not before the Court for decision, there is no basis for the Court to find that it is unable to make an accurate determination of legality.” Govt’s Resp. at 4. The government thus argues there is no basis for the court to order discovery. It contends § 1806(f) is the appropriate standard, even if the requested
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discovery would allow defendant to effectively formulate his arguments. The government contends discovery is not necessary for this court to formulate a remedy for the untimeliness of the Supplemental Notification because FISA specifies the remedy for any illegality surrounding the evidence derived from the Title VII collection–suppression.
The government insists there was no deliberate government misconduct because the government had never considered whether information obtained under Title I/III could also be considered to be derived from prior collection under Title VII. After deciding this could be the case, the government reviewed these proceedings, determined the situation arose in this case, and provided the Supplemental Notification. The government argues this is indicative of good faith, not bad faith, but concedes it is solely responsible for the untimely notice.
My goal is to resolve the criminal prosecution against defendant, whether that means I proceed to sentencing, I grant a new trial, or I dismiss the indictment. I have carefully considered defendant’s arguments for broad discovery, and I understand and acknowledge defendant’s arguments explaining how broad discovery relates to this prosecution and the entrapment defense. Defendant has argued numerous times during this prosecution, and does so again in this motion, that I should discard the FISA ex parte procedures in favor of adversarial proceedings. Defendant raises strong policy reasons to support this request. But I am not persuaded there is a need to go beyond the procedures outlined in FISA’s § 1806, or that I have the authority to do so. Thus, I conclude that I will not order disclosure to the defense team of any materials relating to the surveillance unless, after reviewing the upcoming motion to suppress, I decide the disclosure “is necessary to make an accurate determination of the legality of the surveillance.” § 1806(f). For this reason, I deny defendant’s motion for full discovery.
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Defendant also filed a motion to compel immediate production to the court of all material

related to the Title VII collection. The government explains it intends to provide these materials

when it responds to the substantive motion to suppress; it argues the court cannot learn much from

these materials until they are placed in proper context. I also deny this motion.

CONCLUSION

Defendant’s Motion for Full Discovery Regarding the Facts and Circumstances Underlying

Surveillance [488] and Motion to Compel Immediate Production to the Court of Classified

Documents Related to Pending Posttrial Discovery Motion [493] are denied.

IT IS SO ORDERED.

Dated this 19th

day of March, 2014.

/s/ Garr M. King Garr M. King United States District Judge

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Stephen R. Sady Chief Deputy Federal Public Defender steve_sady@fd.org Steven T. Wax Federal Public Defender steve_wax@fd.org Ruben L. Iñiguez Assistant Federal Public Defender ruben_iniguez@fd.org 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 503-326-2123 Telephone 503-326-5524 Facsimile Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. MOHAMED OSMAN MOHAMUD,
Defendant.

No. CR 10-475-KI
MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS THE PRODUCTS OF NON-FISA INTERROGATIONS, SEARCHES, AND SEIZURES

Introduction This case involves unique applications of standard law regarding the scope and voluntariness
of consent to searches and seizures of Mr. Mohamud’s electronic stored information, as well as the voluntariness of statements made on November 2, 2009. Prior to that time, the government surveilled Mr. Mohamud, apparently pursuant to the Foreign Intelligence Surveillance Act (FISA),

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so in the chronology and causation necessary to Fourth and Fifth Amendment analyses, this motion is inextricably intertwined with the separately filed FISA motions. Another unique aspect of the intrusions on privacy in this case is the parallel involvement of the federal government, which surreptitiously participated in the interrogations, searches, and seizures conducted by state and local authorities. Essentially, the non-federal actors contacted Mr. Mohamud regarding an investigation into a potential crime, of which Mr. Mohamud was completely innocent. Instead of simply investigating the allegations and exonerating him, the non-federal actors contacted federal agents who, unbeknownst to Mr. Mohamud, became involved in the interrogation and took possession of and searched Mr. Mohamud’s computer and cell phone, which had been handed over solely to establish his innocence of the state offense. Under the circumstances of this case, the government cannot establish that the interrogations, searches, and seizures were within the scope of any valid consent or otherwise lawful. This Court should therefore order the suppression of all fruits of the constitutional violations. Relevant Facts From Discovery Regarding Interrogations And Warrantless Searches And Seizures Of Mr. Mohamud’s Laptop Computer And Cell Phone.
Based in part on FISA electronic surveillance, the government began non-FISA visual surveillance of Mr. Mohamud on the campus of Oregon State University from at least October 4, 2009. On November 1, 2009, the campus station of the Oregon State Police received information that resulted in an investigation regarding a sexual encounter the previous night. After a Halloween party, Mr. Mohamud became intimate with a fellow student: the pair were seen together dancing, flirting, and talking; they were both drinking but not to apparent incapacitation; and he walked her home afterwards. However, the next day she reported being concerned that she had been given drugs
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in a beer handed to her by a stranger, not Mr. Mohamud, and not remembering the sexual encounter. The police tested her for drugs and, eventually, received negative results for any date rape drugs. The investigation corroborated Mr. Mohamud’s account of a consensual encounter, resulting in notification to Mr. Mohamud on January 14, 2010, that the investigation cleared him.
The non-FISA investigation regarding the drug issue would not be controversial except for the federal involvement: Mr. Mohamud met with state officers and told them fully and truthfully that he had not given her any drugs and that the sex was completely consensual. However, the police reports, incomplete as they appear to be, indicate that the federal agents used the state officers to mask the separate and undisclosed federal investigation.
On the evening of November 1, 2010, Oregon State Police officers called Mr. Mohamud and asked him to meet with them. Shortly thereafter, Mr. Mohamud met the officers at his dorm room. The officers asked him to accompany them in a police car to the campus police station, which he did. After reading Miranda rights, the officers asked Mr. Mohamud whether he had drugged his companion and to tell them what occurred from Saturday night to Sunday morning. Mr. Mohamud explained that he did no such thing and described his activities during the relevant time, also providing a written statement explaining his activities and that he only engaged in consensual sex.
The next day, the state officer called Mr. Mohamud and again set up a time for him to come to the station. At around 1:00 p.m. on November 2, 2010, Mr. Mohamud appeared at the campus office of the Oregon State Police. This time, federal agents were present and monitored the questioning from a concealed location. Mr. Mohamud, after being reminded of Miranda rights, submitted to a polygraph examination in which he repeatedly denied providing any drugs or being aware of any drugs being provided to the woman. The federal “agents were permitted to observe the
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[state officer’s] polygraph interview/examination from an adjacent room.” Although not described in the state officer’s report, the federal report establishes that this interview expanded substantially beyond the subjects covered in the first interview. From the interview, the federal officers obtained information about Mr. Mohamud’s personal background, including his educational plans, family constellation, and attitude toward Somalia. The federal officers also noted Mr. Mohamud’s admitted use of drugs and alcohol and that “Mohamud is very concerned that his parents will freak out if they find out about the investigation or his use of drugs and alcohol.”
The state officer questioned Mr. Mohamud regarding his computer, asking if it would reflect searches for date rape drugs. The officer’s report states that Mr. Mohamud “offered for me to look at his computer to make sure he was not researching date rape drugs” (emphasis added). Both the context and the explicit words only anticipated a limited search to determine whether sites had been accessed relative to certain drugs. Mr. Mohamud provided a hand-written “permission” for “the Oregon State Police” to seize and to search his laptop computer and his cell phone; he also provided his password (Exhibit A). The state officers seized the computer and then, unbeknownst to Mr. Mohamud, provided the laptop and cell phone to the Federal Bureau of Investigation. The federal agents then gave the computer to the Eugene Police Department Computer Crimes unit, which made a mirror image of the hard drive at about 5:13 p.m. on November 2, 2009.
The federal and state accounts of the relevant events regarding the seizure and search of electronic stored data vary because the contemporaneous state reports omit federal involvement. The state reports do not reflect the personal information adduced at the second interview that was irrelevant to the state investigation. Further, the reports are inconsistent regarding federal involvement in the seizure and search. For example, the state officer asserts, “I seized the computer
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and had the hard drive imaged by the Eugene Police Department Computer Crimes unit.” In contrast, the Eugene police department computer specialist stated, “A computer under this case was originally submitted to me on November 2, 2009, by FBI Analyst Bill Tanton and Special Agent Chris Luh.” The computer specialist also stated, “I was asked to make a forensic image of this computer and wait for further instructions.”
From the reports, there is no indication that the computer was ever searched to determine whether date rape drugs were researched, nor does the computer specialist indicate he was even asked to do so. The state computer expert imaged the computer and copied four folders and their contents onto a disk, which he then provided to a federal agent. The federal agents also copied out three pages of information from Mr. Mohamud’s cell phone.
The discovery does not clearly set out all subsequent searches of material from the computer. Although the state investigation was closed, the federal agents obtained further images at other times and conducted general searches of the electronically stored information unrelated to whether Mr. Mohamud accessed information regarding date rape drugs. For example, the state computer specialist stated, “I was later requested to copy some specific information from the computer on 12/29/09 which I provided to [FBI Analyst] Tanton.” The discovery does not indicate that the Oregon State Police, the only entity authorized to search, ever performed any task other than handing it over to the federal agents.
Within seven days of the federal agents’ search and seizures, the Bill Smith emails from a federal agent to Mr. Mohamud began, encouraging him to do violence in the United States. The government knew from the second interview that Mr. Mohamud planned to complete his studies at Oregon State University and could base its communications on information obtained regarding his
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personal life. The distribution and use of the products of the searches and seizures of electronic information have not been provided in discovery. A. The Federal Government’s Searches And Seizures Of Mr. Mohamud’s Computer And
Cell Phone Exceeded The Scope Of Any Consent And Were Unlawful. The warrantless searches and seizures in this case are per se unreasonable, subject only “to a few specifically established and well delineated exceptions.” Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). The exception to the warrant requirement for consent must be “jealously and carefully drawn.” Georgia v. Randolph, 547 U.S. 103, 109 (2006) (citing Jones v. United States, 357 U.S. 493 (1958)); see Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008) (noting the “narrow scope” of the consent exception). While consensual searches are permissible without a warrant, the government must establish that the search and seizure is within the scope of the consent given by the defendant, which “is generally defined by its expressed object.” Florida v. Jimeno, 500 U.S. 248, 251 (1991) (citing United States v. Ross, 456 U.S. 78 (1982)). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness – what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. Under Jimeno’s objective standard, this is an easy case. The exchange at the state police office between the state officer and the student described the consent in unmistakably clear and limited terms: the officer could “look” at the computer “to make sure [Mr. Mohamud] was not researching date rape drugs.” Given the context in which the state officers obtained the purported consent, no reasonable person would consider it permission to authorize either 1) imaging and repeated imaging of the computer, 2) providing computer images to federal authorities (especially
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where the written permission specified “the Oregon State Police”), or 3) rummaging through the stored data a) that had nothing to do with whether the computer was used to research date rape drugs and b) that occurred at times far attenuated from the initial contact. Because the search exceeded the scope of any consent, the products of such searches and seizures must be suppressed. Randolph, 547 U.S. at 123; United States v. Washington, 739 F.Supp. 546, 550-51 (D.Or.1990). Further, the officers’ deception forecloses a finding of a voluntary consent to the search and seizure of the electronic information. United States v. Bosse, 898 F.2d 113, 115 (9th Cir. 1990)
1. The General Search And Seizure Of Electronic Storage Devices Far Exceeded The Reasonable Scope Of Any Consent, Especially Given The Privacy Protections Recognized For Personal Computers And Other Electronic Communication Storage Devices.
Courts have directly applied Jimeno to require suppression of the products of computer searches that are beyond the stated purpose of the request for consent. For example, in United States v. Richardson, 583 F.Supp. 2d. 694 (W.D. Pa. 2008), several federal customs agents represented that they were investigating identity thieves who were purportedly targeting the defendant. For this purpose, the defendant gave oral and written consent for a search of his computer. In reality, the federal agents were investigating the defendant regarding child pornography. The court suppressed the products of the search as beyond the scope of the consent, stating: “Government agents may not obtain consent to search on the representation that they intend to look only for certain specified items and subsequently use that consent as a license to conduct a general exploratory search.” Id. at 715 (quoting United States v. Dichiarinte, 445 F.2d 126, 129 (7th Cir.1971)). The court specifically noted that the general written consent did not expand the scope of the search beyond the oral reason for the search. Id. at 718-19.
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Similarly, in People v. Prinzing, 389 Ill.App.3d 923, 907 N.E. 2d 87 (2009), the Illinois Supreme Court held that the police exceeded the scope of a computer search by going beyond its articulated purpose. The police requested access to the computer in order to determine whether the defendant’s system had been compromised, resulting in fraudulent use of his credit card number by others. Agreeing with Richardson, the court held that the consent only applied to the search for viruses, not the search for images that occurred. Prinzing, 907 N.E.2d at 99-100. Even though – unlike the present case – the defendant was present during the search, the court held that the products of the search that were beyond the scope of consent had to be suppressed. Accord State v. Bailey, 898 A.2d 716 (Me. 2010) (search of video files suppressed because beyond the scope of consent to search computer to determine whether he was accessing his neighbor’s wireless router without permission); United States v. Parsons, 599 F.Supp.2d 592, 609-10 (W.D. Pa. 2009) (where police claimed they were investigating whether defendant was the victim of identity theft, search of computer for pornography exceeded the scope of the consent given).
Upholding the limited scope of a consent is especially important in light of judicial recognition of the substantial privacy interest in electronically stored data. In the context of warranted searches of electronic storage devices, the Ninth Circuit en banc has noted the central role of computers as repositories for material within core zones of privacy, requiring careful limitations to avoid unlawful general searches. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1177 (9th Cir. 2010) (en banc). Where there is no neutral magistrate interposed between the citizen and the government, the need to enforce the Jimeno limitation regarding the scope of consent for a computer search is especially important given the highly personal data maintained on computers. United States v. Andrus, 483 F.3d 711, 718 (10th Cir. 2007) (“For most people, their
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computers are their most private spaces.”); see generally Orin S. Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 569 (2005) (“[C]omputers are playing an ever greater role in daily life and are recording a growing proportion of it . . . . [T]hey are postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more.”).
The holding of Jimeno has been directly applied to computer searches under circumstances indistinguishable from the present case. The repeated seizures of the computer and its images, as well as the searches of the electronic data, far exceeded the articulated purpose of looking to see if there was research of date rape drugs. The Court should find a violation of the Fourth Amendment, requiring suppression of the products of the searches and seizures.
2. The Searches And Seizures Were Also Unlawful Because The Government Cannot Establish That The Officers Obtained A Voluntary Consent.
The officers’ ruse to obtain and to search Mr. Mohamud’s electronic data also forecloses the government from carrying its burden of proving a free and voluntary consent. Bumper v. North Carolina, 391 U.S. 543, 548 (1968); see United States v. Bosse, 898 F.2d 113, 115 (9th Cir. 1990) (“[A]ccess gained by a government agent, known to be such by the person with whom the agent is dealing, violates the fourth amendment’s bar against unreasonable searches and seizures if such entry was acquired by affirmative or deliberate misrepresentation of the nature of the government’s investigation.”) (quoting United States v. Little, 753 F.2d 1420, 1438 (9th Cir. 1984)). “Where consent is obtained through a misrepresentation by the government . . . such consent is not voluntary.” United States v. Rothman, 492 F.2d 1260, 1265 (9th Cir. 1973) (citations omitted); see also United States v. Garcia, 997 F.2d 1273, 1280 (9th Cir. 1993) (“Nor can a government agent
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obtain entry ‘by misrepresenting the scope, nature, or purpose of the investigation.’”) (quoting Bosse, 898 F.2d at 115). Although “not all deceit and trickery” by government agents is improper, “when the police misrepresentation of purpose is so extreme that it deprives the individual of the ability to make a fair assessment of the need to surrender his privacy . . . the consent should not be considered valid.” United States v. Harrison, 639 F.3d 1273, 1280 (10th Cir. 2011) (quoting 2 Wayne R. LeFave et al., CRIMINAL PROCEDURE, § 3.10(c) (3d ed. 2007)).
The Ninth Circuit provided the basic rules on ruse consents in Bosse. In that case, a gun dealer consented to a search by state officers who purported to be conducting a state firearms regulatory inspection. Unbeknownst to the gun dealer, an agent of the federal Bureau of Alcohol, Tobacco, and Firearms accompanied the state officers, intent upon investigating the gun dealer’s alleged violation of federal weapons laws. A state officer said the BATF agent “is with me,” pursuant to which the gun dealer allowed the federal agent access to the premises. “In these circumstances, [the federal agent’s] silence amounted to a deliberate representation that his purpose was that announced by [the state officer], and a deliberate misrepresentation of his true purpose.” Bosse, 898 F.2d at 115. Therefore, the surreptitious entry was illegal. Id.; accord Commonwealth v. Slaton, 530 Pa. 207, 217, 608 A.2d 5, 10 (1992) (undisclosed shift in purpose of investigation rendered consent constitutionally invalid).
The present case is indistinguishable: the federal agents silently and surreptitiously permitted the state officers’ explanation of their purpose to disguise the true purpose of the federal intrusion of the protected zone of privacy. As held in Bosse, the federal activity “must be limited to the purposes contemplated by the suspect.” 898 F.2d at 115. “A ruse entry when the suspect is informed that the person seeking entry is a government agent but is misinformed as to the purpose for which
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the agent seeks entry cannot be justified by consent.” Id. (citing United States v. Phillips, 497 F.2d 1131, 1134-35 (9th Cir. 1974)).
While government investigators need not disclose their every purpose and motivation, the gap between the state officers’ declared purpose of establishing no research of drugs and the federal government’s undisclosed purpose of learning every private fact about Mr. Mohamud’s personal life rendered any consent involuntary. Mr. Mohamud agreed to give his computer to the “Oregon State Police” to “look” at it for the purpose of “mak[ing] sure he was not researching date rape drugs.” The officers immediately turned over the computer to federal agents, who proceeded to have the hard drive imaged within a few hours. Federal law enforcement continued to image and to access the imaged computer on subsequent occasions for purposes unrelated to the state investigation.
The rationale for the Bosse rule fully applies to the present case: When the government seeks a citizen’s cooperation based on governmental authority, the citizen should be able to rely on the officers’ representations. “We think it clearly improper for a government agent to gain access to records which would otherwise be unavailable to him by invoking the private individual’s trust in his government, only to betray that trust.” Id. (quoting SEC v. ESM Government Securities, Inc., 645 F.2d 310, 316 (5th Cir. 1981)). “If people can’t trust the representations of government officials, the phrase ‘I’m from the government and I’m here to help’ will become even more terrifying.” United States v. Alverez-Tejeda, 491 F.3d 1013, 1017 (9th Cir. 2007). This concern reaches its zenith “when government officials lie in order to gain access to places and things they would otherwise have no legal authority to reach.” Id. As in Bosse, the federal officer’s silence “amounted to a deliberate representation that his purpose was that announced [by the state officer], and a deliberate misrepresentation of his true purpose.” 898 F.2d at 115. The “widely shared social expectations,”
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Randolph, 547 U.S. at 111, that provide the touchstone for reasonableness include that the government will not deceive its citizens into surrendering privacy rights. See also David A. Harris, The War on Terror, Local Police, and Immigration Enforcement: A Curious Tale of Police Power in Post-9/11 America, 38 RUTGERS L. J. 1, 40 (2006) ( “If legal or illegal immigrants in these communities fear the police, whether for good reasons or bad, they will avoid the police in every way possible, going out of their way to steer clear of officers.”).
3. Because The Statements On November 2 Were Obtained Based On Material Omissions And False Pretenses, The Government Cannot Carry Its Burden Of Proving They Were Made Knowingly, Intelligently, And Voluntarily.
The police interrogation on November 2, which apparently led to the electronic data seizure and search, suffers the same type of invalidity as the purported consent. See Doody v. Ryan, 2011 WL 1663551, *18 (9th Cir. May 4, 2011) (en banc) (citing Schneckloth for the proposition that a suspect’s statement must be suppressed as involuntary because, “if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”). The government bears the burden of proving, at least by a preponderance of the evidence, the voluntariness of any Miranda waiver and the voluntariness of the statement itself. Missouri v. Seibert, 542 U.S. 600, 608 n.1 (2004); Lego v. Twomey, 404 U.S. 477, 489 (1972). While some police misdirection is tolerated, an important factor is whether the statement was “obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.” See Brady v. United States, 397 U.S. 742, 753 (1970) (quoting Bram v. United States, 168 U.S. 532, 542543 (1897)).
Based on the reasoning of Bosse, the degree of deception in the present case forecloses a finding of a knowing, intelligent, and voluntary waiver of Fifth Amendment rights. See Pollard v.
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Case 3:10-cr-00475-KI Document 57 Filed 06/22/11 Page 13 of 16 Page ID#: 470
Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002) (finding statement voluntary in part because the officer “did not misrepresent the nature or purpose of the interview.”); United States v. McCrary, 643 F.2d 323, 328 (5th Cir. 1981) (“It is difficult to discern how a waiver of these rights could be knowing, intelligent and voluntary where the suspect is totally unaware of the offense upon which the questioning is based.”); United States v. Schenk, 293 F.Supp. 26, 29 (D.Mont. 1968) (“Certainly it stands to reason that a suspect cannot intelligently make the decision as to whether he wants counsel if knowledge of the crime suspected is withheld from him.”). In determining whether the government carries its burden of establishing voluntariness, the Court should also consider Mr. Mohamud’s known vulnerabilities because, for example, the federal agents knew he had just turned 18 the previous August and was considered immature for his age. Compare Colorado v. Connelly, 479 U.S. 157, 165-67 (1986) (because police were unaware of suspect’s mental illness, psychological vulnerability did not render statement involuntary), with Blackburn v. Alabama, 361 U.S. 199, 20708 (1960) (exploitation of known psychological vulnerability led to suppression of statement and its fruits). Because the government cannot carry its burden given the deception of a teenager, the statements beyond the scope of the state investigation should be suppressed, as well as any fruit of those statements including the purported consent. B. The Court Should Order The Suppression Of All Evidence And Investigative Actions
That The Government Cannot Prove Were Not The Products Of Unlawful Interrogations, Seizures, And Searches. To serve the exclusionary rule’s function of deterring unlawful police conduct, the “fruit of the poisonous tree doctrine” expands the exclusionary rule to the use of evidence derived indirectly from illegal conduct. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920), the Supreme Court stated: “The essence of
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a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all” (emphasis added). The exclusionary rule should put the prosecution in the same position as it would have been in if the illegality had never transpired, neither better nor worse. Nix v. Williams, 467 U.S. 431, 443 (1984) (“[T]he prosecution is not to be put in a better position than it would have been if no illegality had transpired.”).
This principle that the prosecution should not benefit, and the defendant should not suffer, from constitutional violations applies to official actions taken in reliance on the products of illegal conduct. Murray v. United States, 487 U.S. 533, 542 (1988). In Murray, the Court held that the decision to seek a warrant must be free from the taint of prior unlawful conduct. Id. In that case, government agents conducted an unlawful search during which they saw bales of marijuana. Id. at 535. They then obtained a warrant to search the area where they had discovered the drugs, without mentioning the prior search or observations made during the search. Id. at 536. The Court held that, on remand, the district court must inquire whether the government would have acted as it did absent the illegal search. Id. at 542. If not, then the evidence must be suppressed. Id.
Justice Scalia made clear that the exclusionary rule applied to the decision to seek a warrant and that the government bore the burden of establishing the independent basis for its action:
The ultimate question, therefore, is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry . . . . Id. In a footnote, the Court emphasized that the critical question was how to assure that the government did not obtain an advantage from its illegal conduct:
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To determine whether the warrant was independent of the illegal entry, one must ask whether it would have been sought even if what actually happened had not occurred . . . . [W]hat counts is whether the actual illegal search had any effect in producing the warrant . . . Only that much is needed to assure that what comes before the court is not the product of illegality. Id. at 543 n.3. To the same extent, this Court must determine whether the unlawfully obtained statements, seizures, and searches “had any effect in producing” the direct contacts by federal agents with Mr. Mohamud, in which the government encouraged him to engage in violence against his country. In this case, state and federal officials violated Mr. Mohamud’s Fourth and Fifth Amendment rights to be free from unreasonable searches and seizures and from encroachments on the privilege against self-incrimination. They then exploited the violation of Mr. Mohamud’s constitutional rights by using the information as part of the formulation of a sting operation against Mr. Mohamud. The causation is remarkably apparent: within seven days of the intrusions, government agent Bill Smith initiated his communication with Mr. Mohamud. The communication utilized information about Mr. Mohamud’s personal life, which was later refined by the second team of agents with direct contact
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Case 3:10-cr-00475-KI Document 57 Filed 06/22/11 Page 16 of 16 Page ID#: 473 with Mr. Mohamud. Under Wong Sun and Murray, the Court should enter an order suppressing all evidentiary and investigative products of the unlawful interrogations, seizures, and searches.
Dated this 22nd day of June, 2011. /s/ Stephen R. Sady Stephen R. Sady Chief Deputy Federal Public Defender Steven T. Wax Federal Public Defender Ruben Iñiguez Assistant Federal Public Defender
PAGE 16 MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS THE PRODUCTS OF NON-FISA INTERROGATIONS, SEARCHES, AND SEIZURES

 
 Case 3:10-cr-00475-KI Document 491 Filed 02/13/14 Page 1 of 36 Page ID#: 8709

S. AMANDA MARSHALL, OSB #95347 United States Attorney District of Oregon ETHAN D. KNIGHT, OSB #99298 PAMALA R. HOLSINGER, OSB #89263 Assistant United States Attorneys ethan.knight@usdoj.gov pamala.holsinger@usdoj.gov 1000 SW Third, Suite 600 Portland, OR 97204-2902 Telephone: (503) 727-1000 Facsimile: (503) 727-1117 JOLIE F. ZIMMERMAN, DCB #465110 Trial Attorney Counterterrorism Section National Security Division Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA

Case No. 3:10-CR-00475-KI

v. MOHAMED OSMAN MOHAMUD,
Defendant.

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION FOR FULL
DISCOVERY REGARDING SURVEILLANCE

The United States of America, by S. Amanda Marshall, United States Attorney for the District of Oregon, and through Ethan D. Knight and Pamala R. Holsinger, Assistant United States Attorneys, and Jolie F. Zimmerman, Trial Attorney, United States Department of Justice, hereby responds to defendant’s Motion for Full Discovery Regarding the Facts and Circumstances Underlying Surveillance (ECF No. 488).

Case 3:10-cr-00475-KI Document 491 Filed 02/13/14 Page 2 of 36 Page ID#: 8710
TABLE OF CONTENTS Page
I. Introduction..........................................................................................................................1 II. The Defendant is Not Entitled to Discovery Regarding the Provision of the
Supplemental Notification ...................................................................................................5 A. No Deliberate Government Misconduct Occurred in this Case...............................6 B. Discovery is Unwarranted because there is No Remedy to which
Defendant is Entitled Other than the Opportunity to Seek Suppression of the Title VII-Derived Evidence in this Case............................................................9 III. This is No Basis to Order Discovery of Classified Materials Relating to the Authorization or Conduct of the Title VII Collection from which Evidence in this Case was Derived...............................................................................................................15 IV. Defendant is Not Entitled to Discovery of the Use of Other “Surveillance Activities” Not at Issue in this Case.....................................................................................................24 V. Defendant is Not Entitled to Any Additional Discovery in this Case ...............................26 A. The Government has Consistently Complied with the Rules Governing Discovery and this Court’s Discovery Orders .......................................................27 B. Government Actors Did Not Fail to Communicate Discoverable Material to Local Prosecutors...................................................................................................28 C. The Government is Not Obligated to Disclose the Origin of the Criminal Investigation Outside the Rules of Discovery .......................................................30 VI. Conclusion .........................................................................................................................31
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TABLE OF AUTHORITIES FEDERAL CASES
ACLU Foundation of Southern California v. Barr, 952 F.2d 457 (D.C. Cir. 1991)......................18 Alderman v. United States, 394 U.S. 165 (1969).....................................................................21, 23 Bloate v. United States, 130 S. Ct. 1345 (2010) ............................................................................22 Brady v. Maryland, 373 U.S. 83 (1963) ......................................................................13, 26, 27, 28 Brock v. United States, 573 F.3d 497 (7th Cir. 2009)....................................................................12 [Caption Redacted], 2011 WL 10945618 (Foreign Intel. Surv. Ct. Oct. 3, 2011)........................20 C.I.A. v. Sims, 471 U.S. 159 (1985) ...............................................................................................25 Clapper v. Amnesty Inti’l USA, 133 S. Ct. 1138 (2013) ..................................................................8 Davis v. United States, 131 S. Ct. 2419 (2011) .......................................................................10, 14 Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013) ...........................................................................12 Gozlon-Peretz v. United States, 498 U.S. 395 (1991) ...................................................................22 Herring v. United States, 555 U.S. 135 (2009)..............................................................................14 Hudson v. Michigan, 547 U.S. 586 (2006) ....................................................................................14 Hussong v. Warden, 623 F.2d 1185 (7th Cir. 1980) ......................................................................13 In re Grand Jury Proceedings, 347 F.3d 197 (7th Cir. 2003) .................................................19, 21 In re Grand Jury Subpoena (T-112), 597 F.3d 189 (4th Cir. 2010) ........................................11, 22 In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)................................................................... 14-15 Taglianetti v. United States, 394 U.S. 316 (1969) .........................................................................23 United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010)......................................................17, 21
ii

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TABLE OF AUTHORITIES FEDERAL CASES
United States v. Arenas-Ortiz, 339 F.3d 1066 (9th Cir. 2003) ........................................................9 United States v. Armstrong, 517 U.S. 456 (1996) ...........................................................................9 United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) ..................................................17, 18, 21 United States v. Bissell, 634 F.2d 1228 (9th Cir. 1981).................................................................23 United States v. Damrah, 412 F.3d 618 (6th Cir. 2005) ..........................................................11, 23 United States v. Donovan, 429 U.S. 413 (1977) ............................................................................11 United States v. Duggan, 743 F.2d 59 (2d Cir. 1984) ...................................................................17 United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011).......................................................17, 25 United States v. Fernandez, 231 F.3d 1240 (9th Cir. 2000) ..........................................................14 United States v. Hernandez-Meza, 720 F.3d 760 (9th Cir. 2013)......................................12, 13, 14 United States v. Juvenile Male, 670 F.3d 999 (9th Cir.), cert. denied, 133 S. Ct. 234 (2012) ......22 United States v. Michaels, 796 F.2d 1112 (9th Cir. 1986).............................................................26 United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013) .........................................................10 United States v. Olsen, 737 F.3d 625 (9th Cir. 2013) ....................................................................13 United States v. Ott, 827 F.2d 473 (9th Cir. 1987) ............................................................11, 19, 25 United States v. Robinson, 513 F. Supp. 2d 169 (M.D. Pa. 2007).................................................11 United States v. Wong, 431 U.S. 174 (1977) .................................................................................14
DOCKETED CASE United States v. Daoud, No. 12-cr-723, 2014 WL 321384 (N.D. Ill. Jan. 29, 2014)
(unpublished) ...............................................................................................................17, 25
iii

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TABLE OF AUTHORITIES FEDERAL STATUTES, LAWS AND RULES Title III of the Omnibus Crime Control and Safe Streets Act of 1968 18 U.S.C. § 2510–2522........................................................................................................7 Jencks Act, 18 U.S.C. § 3500 ..................................................................................................26, 29 18 U.S.C. § 3504......................................................................................................................22, 23 Foreign Intelligence Surveillance Act of 1978 (“FISA”), as amended, 50 U.S.C. §§ 1801-1812, 1821-1829 ...................................................................................1 50 U.S.C. §§ 1801, 1804-1805, 1821, 1823-1824 ...........................................................................1 50 U.S.C. § 1806.................................................................................................................... passim 50 U.S.C. § 1825(d) .....................................................................................................................6, 7 50 U.S.C. § 1881a ................................................................................................................2, 16, 20 50 U.S.C. § 1881e(a)..................................................................................................3, 4, 6, 7, 8, 16 Pub. L. 91-452, Title VII, § 702(a), Oct. 15, 1970 ........................................................................22 Federal Rules of Criminal Procedure 16..................................................................................26, 28
OTHER MATERIAL Comments of the Judiciary on Proposals Regarding the Foreign Intelligence
Surveillance Act (Jan. 10, 2014) at 5, 7 available at www.judiciary.senate.gov/resources/documents/113thCongressDocuments/upload/01141 3RecordSub-Grassley.pdf (last visited Feb. 13, 2014). .....................................................20 H. Conf. Rep. No. 95-1720, 95th Cong. 2d Sess., at 31 (1978) ....................................................12
iv

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I. Introduction On November 19, 2013, the United States filed its “Supplemental FISA Notification,”
which supplemented the government’s original FISA notification that had been filed three years earlier on the day defendant was indicted and first appeared in court. (ECF No. 486.) The original FISA notification advised defendant that the government intended to use in evidence or otherwise use or disclose in the criminal case “information obtained and derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (‘FISA’), as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829.”1 (ECF No. 4.) The statutes cited in that first notice permit electronic surveillance and physical search, provided that the government establishes to the satisfaction of the Foreign Intelligence Surveillance Court (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.
The Supplemental Notification was filed based on a recent determination by the government that certain evidence referenced in the original FISA notification, obtained or derived from Title I and Title III collection, was itself also derived from Title VII collection as to which defendant was aggrieved. Title VII of the FISA Amendments Act (FAA) permits the targeting of electronic communications of non-U.S. persons located outside the United States,
1 Prompted by this notice, the defense challenged the government’s use of evidence obtained or derived from Title I and Title III FISA collection. After a careful ex parte, in camera review of the relevant material, the Court denied defendant’s legal challenges.

Government’s Response to Defendant’s Motion for Full Discovery Regarding Surveillance

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subject to certain statutory requirements. See 50 U.S.C. § 1881a. Specifically, the Supplemental Notification explained that the government had determined that “information obtained or derived from Title I FISA collection may, in particular cases, also be ‘derived from’ prior Title VII FISA collection” and that the government had recently reviewed the proceedings in this case prior to its filing. The Notification then stated that certain evidence and information used in this case was “derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §1881a.” (ECF No. 486.)
In response to the Supplemental Notification, defendant has filed a motion seeking discovery of records and information relating to four topics: (1) internal Department deliberations regarding the provision of the original notice and the Supplemental Notification; (2) the legality and conduct of the Title VII collection from which certain of the evidence used at trial was derived, including the applicable procedures; (3) the use of other “surveillance activities” against defendant, including those that have been the subject of recent public debate due to the unauthorized disclosure of classified information; and (4) additional evidence or other information that he speculates may have been withheld from discovery. Defendant also asks the Court to reconsider various pretrial rulings related to the last topic. For the reasons explained herein, defendant’s motion should be denied.
While defendant’s motion seeks broad discovery over a wide range of issues, the Supplemental Notification and its implications in this case are actually quite narrow. The Supplemental Notification raises at most only two relevant legal issues:
1. Whether the Title VII collection from which certain of the evidence used against defendant was derived was lawfully authorized and conducted; and,

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2. Whether defendant is entitled to any relief other than the opportunity to litigate whether the underlying Title VII collection was lawfully authorized and conducted.

These legal issues may well present important questions, but they will be the basis of

motions to be filed in the coming months. The only issue before the Court at the moment is

whether defendant is entitled to discovery to litigate these two legal issues.

Defendant’s request for internal deliberative documents regarding the provision of the

original and supplemental notifications in this case should be rejected because, as explained

herein, the government did not act in bad faith when filing the Supplemental Notification post-

trial. Moreover, insofar as defendant seeks discovery in support of a claim for additional relief

due to the government’s post-trial notice, such a claim fails because he has received the only

remedy to which he is entitled – the opportunity to litigate suppression of the Title VII-derived

evidence.

The Court should deny defendant’s request for disclosure of classified documents relating

to the legality and conduct of the underlying FAA collection, subject to its ex parte, in camera

review of the government’s submission in response to the suppression motion that defendant

states he intends to file. The Supplemental Notification acknowledges that defendant has

standing to challenge the government’s use of evidence derived from collection under Title VII.

The procedures that apply to such a challenge are outlined in 50 U.S.C. § 1806 – the same

provision which governed defendant’s pretrial challenge to the government’s use of evidence

obtained or derived from Title I and Title III FISA collection. See 50 U.S.C. § 1881e(a). Those

procedures permit the government to submit the classified orders and other materials related to

the challenged Title VII collection for the Court’s ex parte and in camera review upon the filing

Government’s Response to Defendant’s Motion for Full Discovery Regarding Surveillance

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of a declaration by the Attorney General that disclosure or an adversary hearing would harm the national security of the United States. Pursuant to the statute, disclosure of such materials to the defense may only be ordered if the court, after an ex parte, in camera review, determines that disclosure is necessary to make an accurate determination of the legality of the collection. See 50 U.S.C. §§ 1806(f), 1881e(a). Since defendant has not yet submitted a substantive motion challenging the Title VII collection and the issue of the legality of the collection is not before the Court for decision, there is no basis for the Court to find that it is unable to make an accurate determination of legality. Defendant’s motion with respect to these materials is therefore premature and must be denied at this stage.
Defendant’s remaining requests – for discovery of additional evidence or information related to other investigative techniques that he believes may have been used in his case – should be rejected. There is no new evidence in this case. The Supplemental Notification was provided based on a recent determination that some of the evidence used in this case – namely certain information that was collected pursuant to the Title I and III FISA collection referenced in the original FISA notice – was itself also derived from prior Title VII collection. This evidence is the same evidence that has been previously addressed during the course of the litigation. Thus, the provision of the Supplemental Notification does nothing to change the discovery obligations with which the government has steadfastly complied for more than three years. There is no basis for the Court to reconsider any of its prior rulings. 2

2 Certain discovery issues were resolved through litigation involving the Classified Information Procedures Act (“CIPA”). The classified addendum will address the discovery

Government’s Response to Defendant’s Motion for Full Discovery Regarding Surveillance

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Likewise, none of the other legal authorities or investigative activities raised in defendant’s motion is relevant to this case. The Supplemental Notification properly raises legal issues related to Title VII collection, but it has nothing to do with the “seizure and accessing of internet and telephone metadata” (Def. Memo., pp. 20-23), or any undisclosed “secret surveillance” programs (Def. Memo, pp. 23-25) that defendant cites throughout his motion. Thus, defendant’s motion with respect to these issues is without merit. II. The Defendant is Not Entitled to Discovery Regarding the Provision of the
Supplemental Notification Defendant first contends that he is entitled to discovery of internal records related to the government’s decision to provide the Supplemental Notification in this case, alleging that the government, pursuant to a “secret policy,” has “routinely and deliberately” failed to provide adequate notice of surveillance pursuant to Title VII, and that the sequence of events surrounding the filing of the Supplemental Notification demonstrates willful misconduct by the government. (Def. Memo., pp. 3-15, 56.) To support his request, defendant asserts that discovery is needed to support a forthcoming motion seeking some type of remedy for the post-trial provision of the Supplemental Notification. This Court should both deny defendant’s request and reject its underlying premise that defendant is entitled to any remedy other than the one currently afforded to him, namely, to seek suppression of the Title VII-derived evidence.

orders issued by the Court as a result of that litigation, as well as other classified information provided to the Court during the course of this case.

Government’s Response to Defendant’s Motion for Full Discovery Regarding Surveillance

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A. No Deliberate Government Misconduct Occurred in this Case

At the outset, defendant’s assertion regarding the existence of a “secret policy” and claim

that the government engaged in deliberate misconduct to conceal the use of Title VII-derived

evidence are unfounded. 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), 1881e(a). The Department’s determination,

however, that information obtained or derived from Title I or Title III collection may, in

particular cases, also be derived from prior Title VII collection is a relatively recent development

(and one that occurred after trial of defendant). The Supplemental Notification filed in this case,

which the government provided based on its own review, resulted from that determination and

demonstrates good faith, not misconduct.

As this Court knows, pursuant to Title I of FISA, the government must notify any

“aggrieved person” of its intent to “enter into evidence or otherwise use or disclose,” in a

proceeding against such person, “any information obtained or derived from [FISA authorized]

electronic surveillance of that aggrieved person.” 50 U.S.C. § 1806(c); see also 50 U.S.C.

§ 1825(d) (requiring notice to an aggrieved person of the intent to use evidence against such

person obtained or derived from a physical search conducted pursuant to FISA). The FAA

provides that information acquired from Title VII collection “is deemed to be” information

acquired pursuant to Title I for, among other things, the purposes of the applicability of the

statutory notice requirement and the suppression and discovery provisions in Section 1806 of

Title I. See 50 U.S.C. § 1881e(a).

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The Department has always understood that notice pursuant to Sections 1806(c), 1825(d) and 1881e(a) must be provided when the government intends to use evidence directly collected pursuant to Title I, III, or VII. Such evidence would be evidence that was “obtained from” such FISA collection. Likewise, the Department has always recognized that notice pursuant to those provisions must be provided when the government intends to use evidence obtained through ordinary criminal process (such as a Rule 41 search warrant) that was itself based directly on information obtained pursuant to Title I, III, or VII. Such evidence would be evidence that was “derived from” such FISA collection.
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 VII. After conducting a review of the issue, the Department has determined that information obtained or derived from Title I or Title III FISA 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.3
In November 2010, at the time the original notice was filed, the government knew that some of the evidence to be used in the case had been obtained or derived from Title I and Title
3 The Department has concluded that in determining whether information is "obtained or derived from" FISA-authorized surveillance, the appropriate standards and analyses are similar to those appropriate in the context of surveillance conducted pursuant to Title III (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522).

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III FISA collection. It did not consider whether that same evidence was also “derived,” as a
matter of law, from prior FISA collection pursuant to Titles I, III, or VII. Based on the
Department’s recent determination, the government reviewed the proceedings in this case and
determined that some of the evidence obtained and derived from Title I and Title III collection
was also derived from Title VII collection as a matter of law. As a result, the government
provided the Supplemental Notification to inform the defense and the Court that Title VII-
derived information had been used against defendant in this case.
As this Court’s subsequent scheduling order contemplates, defendant will now have the
opportunity to challenge the constitutionality of Title VII and the lawfulness of the acquisitions
through a suppression motion adjudicated according to the procedures outlined in FISA. See 50
U.S.C. §§ 1806(e), 1881e(a). The prosecutors in this case acted in accordance with the
Department’s then-current standard practice and under a good-faith understanding that the initial
notice of the use of Title I and Title III FISA evidence fully satisfied the government’s notice
obligations.4 Once the Department made the determination that information obtained or derived
4 Defendant’s claim that the Department’s statements to the U.S. Supreme Court in Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013), were inconsistent with existing Department policy is baseless. The Department informed the U.S. Supreme Court in that case, that “[i]f the government intends to use or disclose any information obtained or derived from its acquisition of a person’s communications under [Title VII] in judicial or administrative proceedings against that person, it must provide advance notice of its intent to the tribunal and the person, whether or not the person was targeted for surveillance under [Title VII].” US Gov’t Br. at 8. This is an accurate statement of both the law and the government’s previous and current understanding that FISA imposes an obligation on the government to provide notice of its intent to use or disclose information that was derived from Title VII collection as well as information that was obtained from Title VII collection. The issue before the Court in Clapper did not involve the precise circumstances in which information is properly considered to be derived from Title VII collection, and as such that case has no bearing here.

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from Title I or Title III FISA collection may, in particular cases, also be derived from prior Title
VII collection, the government moved forward with reviewing this case and provided notice to
defendant and this Court. While the government understands that it is solely responsible for the
untimeliness of the notice, the post-trial filing of the Supplemental Notification does not reflect
any bad faith or willful misconduct. Rather, it is simply the result of a careful review of the
range of circumstances in which information obtained or derived from Title I or Title III
collection should also be considered as a matter of law to be derived from prior Title VII
collection, such that the government should give notice of both Title I/III and Title VII
surveillance in those cases.5
B. Discovery is Unwarranted because there is No Remedy to which Defendant is Entitled Other than the Opportunity to Seek Suppression of the Title VII-Derived Evidence in this Case.
The disclosure defendant seeks cannot be necessary to “formulate a remedy” for the
untimeliness of the Supplemental Notification because this Court’s scheduling order has already
provided a remedy that will fulfill the purpose of FISA’s notice provisions, which is to enable
5 Defendant’s allegation that the government deliberately violated FISA’s notice requirement (Def. Memo., pp. 6-10) amounts to an allegation of prosecutorial misconduct. In order to obtain discovery based on a claim of prosecutorial misconduct, the defendant must present a threshold showing of some evidence that the alleged prosecutorial misconduct occurred to rebut the required presumption that prosecutors have acted in good faith. See, e.g., United States v. Armstrong, 517 U.S. 456, 464, 468-89 (1996) (holding that, because “courts presume that [prosecutors] have properly discharged their official duties,” defendants seeking discovery in support of a selective prosecution claim must make a “threshold showing”); United States v. Arenas-Ortiz, 339 F.3d 1066, 1069 (9th Cir. 2003) (describing Armstrong standard as “rigorous”). Defendant has not made such a showing in this case. Although the government does not dispute that the notice was untimely, defendant has not otherwise produced evidence to overcome the presumption that the government in this case acted in good faith.

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defendants to move to suppress. That remedy completely cures any prejudice arising from the delayed Supplemental Notification. As the Court’s order recognizes, defendant will now have the opportunity to challenge, pursuant to the procedures of FISA, the use of evidence in the case that was derived from Title VII, with the same result as if the motion to suppress had been adjudicated before trial. If the court, in accordance with the procedures established in FISA, conducts its in camera, ex parte review and finds that the surveillance was lawful, defendant will have suffered no prejudice by the delayed notice. Conversely, if the court finds that suppression of the Title VII-derived evidence is warranted, and if the government cannot show that admission of the relevant evidence was harmless, then defendant will be entitled to vacatur of his conviction and a new trial at which the evidence would be inadmissible. In such a circumstance, the post-trial remedy would put defendant in a similar position as if the Supplemental Notification had been provided before trial.
Contrary to defendant’s claim, there is no need for any additional remedies to deter future government misconduct. (Def. Memo., pp. 11-12, 15.) There has been no intentional misconduct in this case. And, in any event, the potential for post-trial suppression of evidence provides sufficient deterrence of any potential government misconduct. See Davis v. United States, 131 S. Ct. 2419, 2429 (2011) (noting that exclusion of illegally obtained evidence is a “harsh sanction”); United States v. Nicholson, 721 F.3d 1236, 1256 (10th Cir. 2013) (“[E]xclusion is an especially potent remedy” in deterring official misconduct, but “not one individuals may insist on as a matter of personal constitutional right.”) (internal quotation marks

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omitted).6 Moreover, as set forth more fully below, litigation of the suppression issue pursuant
to FISA’s in camera and ex parte procedures is fully consistent with a defendant’s due process
rights. See United States v. Ott, 827 F.2d 473, 476 (9th Cir. 1987); United States v. Damrah, 412
F.3d 618, 624 (6th Cir. 2005) (“FISA’s requirement that the district court conduct an ex parte, in
camera review of FISA materials does not deprive a defendant of due process.”). Accordingly,
defendant cannot show that he has sustained any prejudicial statutory or constitutional violation
here, and there is no need for the discovery he now seeks.
Indeed, FISA provides for after-the-fact motions to suppress, pursuant to FISA’s
procedures, as a remedy in these circumstances. See 50 U.S.C. § 1806(e) (providing that
suppression motion must be brought before the proceeding in which the information will be
used, “unless there was no opportunity to make such a motion or the person was not aware of the
grounds of the motion”). That provision indicates that affording an opportunity for the aggrieved
person to bring a motion after the proceeding is the appropriate and exclusive remedy for
6 At least one court of appeals has suggested that exclusion of evidence, even if it were lawfully obtained, might be an appropriate remedy when the government provides an outright denial that it has conducted surveillance pursuant to Title III or FISA. See In re Grand Jury Subpoena (T-112), 597 F.3d 189, 201 (4th Cir. 2010) (noting that the “proper remedy” for a false denial of electronic surveillance would be “exclusion under Title III or FISA”). However, such a remedy is inapplicable here. The government did not deny the existence of FISA collection in this case. In fact it has now provided notice of collection under Title I, Title III, and Title VII. The fact that the Title VII-specific notice was not provided until after trial does not justify the automatic exclusion remedy suggested in T-112. See United States v. Donovan, 429 U.S. 413, 434 (1977) (failure to comply with statutory notice requirement in Title III did not warrant suppression in the absence of any indication that Congress intended to impose suppression as a sanction for noncompliance); United States v. Robinson, 513 F. Supp. 2d 169, 187-88 (M.D. Pa. 2007) (delay in providing Title III notice did not warrant suppression where the government did not “deliberately and advertently” flout the notice requirement and delay was not prejudicial to defendant).

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circumstances where the person lacked an “opportunity” to challenge the FAA because he was

“not aware of the grounds” of such a challenge. See H. Conf. Rep. No. 95-1720, 95th Cong. 2d

Sess., at 31 (1978) (the purpose of FISA’s notice requirement is to “allow for the disposition of

any motions concerning evidence derived from electronic surveillance.”). Where, as here, the

remedy of a post-trial suppression motion is available, defendant is not entitled to discovery of

internal government records based on speculation that such discovery might support his

argument for other remedies that Congress chose not to provide.

Defendant’s reliance on United States v. Hernandez-Meza, 720 F.3d 760 (9th Cir. 2013),

is misplaced. (Def. Memo., pp. 12-13.) In that case, the Ninth Circuit held that the

government’s failure to disclose the defendant’s mother’s naturalization certificate, which the

court found to be material to the defense, violated the government’s discovery obligations, and

the court remanded for a determination of whether the government’s failure was willful and what

the appropriate remedy should be. Id. at 769-70. The court expressed concern that the

government may have “deliberately withheld the naturalization certificate from Hernandez–

Meza” in order to induce him into presenting a particular defense theory that the government

could then refute with the certificate. Id. at 769. By contrast, the deficiency in this case – the

government’s failure to give timely notice of one of the particular types of FISA collection from

which evidence used at trial was derived– had no bearing on the fairness or reliability of the trial

as a vehicle for adjudicating the defendant’s guilt or innocence, because it affected only the

defendant’s ability to raise a challenge to Title VII as a basis for suppression. See Good v.

Berghuis, 729 F.3d 636, 640-41 (6th Cir. 2013) (“Evidence remains just as reliable” even when it

is the fruit of an illegal search or seizure); Brock v. United States, 573 F.3d 497, 499–501 (7th

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Cir. 2009) (noting that the use at trial of illegally obtained evidence “work[s] no new Fourth Amendment wrong” and does not bear on the fairness or constitutionality of the trial); see also Hussong v. Warden, 623 F.2d 1185, 1187-91 (7th Cir. 1980) (holding claim of unlawful surveillance under Title III was not cognizable on collateral review because the alleged Title III errors did not indicate that petitioner was factually innocent or that the evidence was inherently unreliable). In contrast, Hernandez-Meza and other cases involving Brady and other criminal discovery provisions potentially implicate the defendant’s factual guilt or innocence or the reliability of the evidence against him. For that reason, courts in the Brady context have at times permitted inquiry into the willfulness of government conduct and consideration of a broader range of remedies than they have in cases involving claims of unlawful surveillance.7
In addition, the discovery rules at issue in Hernandez-Meza expressly authorize the district court to “take such remedial measures as it deems appropriate, including continuing the trial or declaring a mistrial.” 720 F.3d at 769 (citing Fed. R. Crim. P. 16(d)(2)). FISA, on the other hand, does not specifically provide for “remedial measures” for untimely notice, other than permitting a post-trial suppression motion. See 50 U.S.C. § 1806(e). For these reasons, Hernandez-Meza and other Brady-related cases do not support defendant’s request for discovery

7 The defense attempts to further buttress his argument by citing language regarding Brady violations from the Chief Judge’s recent dissent from a denial of rehearing en banc in United States v. Olsen, 737 F.3d 625, 630 (9th Cir. 2013). Notwithstanding its factual inaccuracy, as a dissent, this opinion has no precedential value.

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to explore remedies beyond the suppression proceeding that Congress and this Court’s order have provided. 8
Furthermore, unlike in Hernandez-Meza where the court specifically held that the
defendant had been prejudiced by the prosecution’s failure to provide discovery, the defendant in
this case has not made any showing that his opportunity to file a suppression motion has been
prejudiced by the post-trial filing of the Supplemental Notification. If this Court finds that the
surveillance at issue was lawfully authorized and conducted or otherwise denies the defendant’s
motion, then any deficiency related to the notice would necessarily be harmless. In these
circumstances, defendant’s request for discovery related to remedies at this time – before he has
established that he was prejudiced by any unlawful surveillance – is, at best, premature.
Finally, most, if not all, of the government records defendant seeks would be protected
from disclosure by attorney work product and deliberative process privileges. See United States
v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000) (holding that death penalty evaluation form
and prosecution memorandum were protected by the deliberative process and work product
privileges). Although a defendant alleging government misconduct can overcome the
deliberative process privilege based on a sufficient showing of necessity, see In re Sealed Case,
8 Even assuming the untimely notice amounted to a due process violation, there is no reason why such a violation would require a remedy beyond providing defendant with the opportunity to litigate his suppression motion now. No further remedy is necessary where the alleged violation was neither intentional, flagrant, or prejudicial. See, e.g., Davis v. United States, 131 S. Ct. 2419 (2011); Herring v. United States, 555 U.S. 135 (2009); Hudson v. Michigan, 547 U.S. 586 (2006); United States v. Wong, 431 U.S. 174, 179 n.6 (1977) (questioning whether suppression would be the proper remedy even assuming a due process violation).

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121 F.3d 729, 737-738 (D.C. Cir. 1997), defendant can make no showing here, in the absence of any indication of willful misconduct, prejudice to defendant, or relevance of the material to the merits of defendant’s anticipated suppression motion. Likewise, while defendant correctly points out that these privileges would not prevent disclosure to a criminal defendant of otherwise discoverable evidence material to his defense (Def. Memo., pp. 14), defendant cannot show that the internal government deliberative records he seeks, which have nothing to do with whether he committed the offense for which he was convicted, are material in the relevant sense.9 III. There Is No Basis to Order Discovery of Classified Materials Relating to the
Authorization or Conduct of the Title VII Collection from which Evidence in this Case was Derived Defendant next asks the Court to order immediate disclosure of the classified certifications, opinions and orders, targeting and minimization procedures, and other materials that may be submitted by the government to establish the legality of the underlying Title VII collection at issue, as well as permit a full adversarial hearing thereon during the adjudication of his motion to suppress. (Def. Memo., pp. 16.) Defendant’s request should be denied as

9 Defendant’s argument that discovery of internal deliberative documents is necessary to “determine the extent to which the products of unlawful activity were improperly before the jury” is similarly meritless. (Def. Memo., pp. 14-15.) Such records are irrelevant to the only proper question raised by a defendant’s request for suppression of the Title VII-derived evidence – that is, whether the collection of the underlying Title VII information was lawful. That issue is not before the court at this time and no determination as to the legality of that collection has been made. Nor would discovery of internal deliberative documents regarding the provision of notice be appropriate even if the court eventually held that the underlying Title VII collection was unlawful. In such a circumstance, the government would make arguments as necessary to the court as to which evidence in the case would be affected by such a ruling, which the court could evaluate at that time.

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premature because there is no basis for the Court at this time to make the findings required under
the FISA statute to justify such 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(f). This same procedure applies to motions related to Title VII
collection, which is deemed to be Title I surveillance for purposes of such motions. 50 U.S.C.
§ 1881e(a). As the Court is aware, such a certification is filed in conjunction with the
government’s substantive response to a defendant’s motion to suppress FISA evidence.
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.”10 50 U.S.C. § 1806(f).
10 Title VII in general provides that upon the issuance of an order by the FISC approving a certification by the Attorney General and the Director of National Intelligence and the use of specified targeting and minimization procedures for an acquisition, the Attorney General and Director of National Intelligence may jointly authorize, for up to one year from the date of the authorization, the targeting of persons reasonably believed to be outside the United States to acquire foreign intelligence information from or with the assistance of an electronic communications service provider as defined in the statute. See 50 U.S.C. § 1881a. Thus, in the Title VII context, the analogous “materials relating to the surveillance” could include classified certifications, targeting procedures, minimization procedures, and/or orders relating to the pertinent Title VII collection.

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Accordingly, under the statute, the court may not disclose any portion of the materials covered
by the Attorney General’s certification to the defense unless and until the court has first
concluded that it is unable to make an accurate determination of the legality of the collection by
reviewing the government’s submissions (and any supplemental materials that the court may
request) in camera and ex parte.11 United States v. El-Mezain, 664 F.3d 467, 566 (5th Cir.
2011); United States v. Abu-Jihaad, 630 F.3d 102, 129 (2d Cir. 2010); United States v. Belfield,
692 F.2d 141, 147 (D.C. Cir. 1982). If the district court is able to accurately determine the
legality of the surveillance based on its in camera, ex parte review of the materials the
government submits, then the FISA statute prohibits disclosure of any of those materials to the
defense, unless otherwise required by due process. El-Mezain, 664 F.3d at 566; United States v.
Duggan, 743 F.2d 59, 78 (2d Cir. 1984).
This is the same standard that this Court applied when it resolved defendant’s first motion
to suppress evidence obtained or derived from Title I and III FISA collection. (ECF No. 126.)
11 Courts have consistently held that FISA “anticipates that an in camera, ex parte determination is to be the rule,” and disclosure and an adversary hearing are to be the “exception, occurring only when necessary.” Belfield, 692 F.2d at 147; see also El-Mezain, 664 F.3d at 567 (“[D]isclosure of FISA materials is the exception and ex parte, in camera determination is the rule.”). 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 to be done to a criminal defendant.” Belfield, 692 F.2d at 149 (internal quotation marks omitted). Until recently, no court had ever ordered disclosure of FISA materials to the defense after an ex parte, in camera review of the government’s submissions. 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 FISA materials to defense counsel with security clearance). That decision has been appealed and the district court has stayed its order pending appeal.

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Likewise, if this Court is able to determine the legality of the Title VII collection from which certain of the evidence in the 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.12 It is premature for this Court to order discovery now, however, before it has had the opportunity to review the government’s responsive submission in camera and ex parte and to decide, based on that review, whether disclosure any portion of the underlying classified materials is necessary to make an accurate determination of the lawfulness of the collection. See ACLU Foundation of Southern California v. Barr, 952 F.2d 457, 469 (D.C. Cir. 1991) (noting in a civil case challenging FISA that plaintiffs “would not be entitled to obtain any of the materials relating to the authorization of the surveillance or the evidence derived from it unless the district court, in an ex parte, in camera proceeding, first determined that the surveillance was not ‘lawfully authorized and conducted.’ While this could mean that the ultimate issue in the case would be decided before discovery, that is the necessary consequence of the procedure outlined in [FISA]”).
The Court should reject defendant’s arguments to the contrary because they contravene the clear statutory standard, and the process set forth in FISA for review of such claims. Defendant contends that discovery of “all targeting and minimization procedures, including interpretive instructions” and other “writings that guided implementation of the procedures,” as
12 Nor would it be appropriate, in such a circumstance, to hold an adversarial hearing with disclosure on defendant’s motion: “The demand for an adversary hearing must fall with the demand for disclosure of the in camera Exhibit . . . [When] disclosure is not necessary . . . no purpose would be served by an evidentiary hearing.” Belfield, 692 F.2d at 147.

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well as “all decisions” of the FISC, will enable the defendant to “effectively formulate [his]
arguments.” (Def. Memo., pp.17-21.) However, as noted above, whether the materials might
assist the defendant in persuasively presenting his claims is not the relevant standard. FISA
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); c.f. In re Grand Jury Proceedings, 347 F.3d 197, 203 (7th Cir. 2003)
(suggesting that there could hypothetically be a “one-in-a-million case where disclosure is
necessary,” but that otherwise “a review of FISA wiretaps must be conducted in camera and ex
parte”) (quotation marks omitted). That finding cannot be made until after the court has
considered the government’s ex parte submission of the relevant FAA-related materials. 13
Nor do defendant’s citations to various authorized and unauthorized public disclosures,
most of which do not involve Title VII, justify ordering the disclosure of materials related to the
Title VII collection at issue at this time. Apart from the fact that these disclosures have virtually
13 Defendant notes that courts have suggested that factors such as “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,” indicate that an adversary hearing may be warranted. (Def. Memo., pp. 36-37.) He further contends that the “systematic lack of candor” on the part of the government as reflected in declassified FISC opinions and media reports establishes the presence of those factors. (Def. Memo., pp.30, 3742.) However, defendant fails 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 ex parte, in camera 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). Because no such finding has been or could properly be made with respect to the Title VII collection at issue here at this time, defendant’s motion for discovery should be rejected.

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no relevance to defendant’s case, they underscore a more significant fact: the government takes
its obligations under FISA and the Constitution seriously and candidly acknowledges and
corrects inevitable 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/011413Recor
dSub-Grassley.pdf. To the extent that there are any issues concerning the lawfulness of the Title
VII collection at issue, as raised in FISC opinions, those will be addressed in the first instance as
part of the government’s ex parte, in camera submission. Defendant’s speculation cannot
overcome the statutory presumption favoring a court’s ex parte review.14
14 Defendant cites several opinions issued by the FISC to argue that discovery of all FISC decisions that “find problems with the conduct of surveillance under the procedure in effect from 2007 to 2010” and an adversarial proceeding as to the legality of the underlying 702 surveillance are necessary. (See Def. Memo., pp. 18 & 41-42.) To the contrary, none of the opinions cited by defendant has any bearing on the issues surrounding the use of information derived from the acquisition of foreign intelligence information conducted pursuant to Section 1881a in this case. Only one FISC opinion cited by defendant relates in any way to the acquisition of foreign intelligence information pursuant to Title VII. See [Caption Redacted], 2011 WL 10945618 (Foreign Intel. Surv. Ct. Oct. 3, 2011) (Def. Memo., pp.38-39 & 40). Defendant’s reliance on that opinion, however, is misplaced. (Def. Memo., pp. 38-40.) That opinion does not alter Section 1806’s requirement that the district court first conduct an ex parte, in camera review of the government’s submissions and only order disclosure if necessary to determine the legality of the Title VII collection at issue. Moreover, the concerns expressed in that opinion applied to only one particular collection technique under Title VII, not to Title VII 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 Title VII collection is constitutional.

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As with defendant’s invocation of general allegations of government wrongdoing, defendant’s reliance on the general advantages of the adversary system does nothing to establish a basis for this Court to find at this time that it cannot resolve the legality of the specific collection at issue in an ex parte and in camera proceeding. If a defendant could obtain disclosure by pointing to the general benefits of adversarial proceedings, then such proceedings would be the norm and there would be no basis for ex parte, in camera review in any case. 15 Belfield, 692 F.2d at 147 (rejecting an argument implying that disclosure and adversary proceedings would be necessary “in every case,” because such an “absolutist view” could not be correct in light of clear congressional intent favoring in camera, ex parte process). However, as FISA and the case law make clear, “disclosure of FISA materials is the exception and ex parte, in camera determination is the rule.” United States v. Abu-Jihaad, 630 F.3d 102, 129 (2d Cir. 2010); In re Grand Jury Proceedings, 347 F.3d at 203.
Finally, defendant repeats an argument that this Court has previously rejected: that the Supreme Court’s decision in Alderman mandates disclosure to the defense of classified information for discovery purposes despite the contrary and plain language of the governing statute, 50 U.S.C. § 1806(f). As discussed below, the Ninth Circuit has also already rejected the defendant’s expansive reading of Alderman.

15 Defendant’s argument that he is entitled to a Franks hearing suffers from the same weakness. A defendant cannot establish entitlement to a Franks hearing based on evidence of misrepresentations in some other case. If that 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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The government provided notice pursuant to 50 U.S.C. § 1806(c), which is the more
specific notice provision that applies in this case. No court has held that when the government
must provide notice under Section 1806(c), this obligation triggers an additional notice
requirement under 18 U.S.C. § 3504 (a separate statute that typically is applied in other contexts)
or that the disclosure of FISA materials must be provided outside of FISA’s statutory scheme.16
A specific statutory provision normally controls over one of more general application.17 Bloate
v. United States, 130 S. Ct. 1345, 1353-54 (2010); Gozlon-Peretz v. United States, 498 U.S. 395,
407 (1991). Within Section 1806, Congress specified the circumstances under which a district
court may disclose information that forms the basis for the government’s notice. After an in
camera and ex parte review, “the court may disclose to the aggrieved person, under appropriate
security procedures and protective orders, portions of the application, order, or other materials
16 Defendant implies that a Fourth Circuit judge, in a dissenting opinion, would hold that Section 3504 governs disclosure of FISA-authorized surveillance. (Def. Memo., p.27, citing In re Grand Jury Subpoena, 597 F.3d 189 (4th Cir. 2010)). The issue before the Fourth Circuit initially was whether a claimed FISA notice violation was even cognizable when challenging a grand jury subpoena; the court held that it was not. In reaching this conclusion, the court described (without expressly holding) 18 U.S.C. § 3504 as a statute applicable only to Title III surveillance. Id. at 200. Judge Traxler dissented from the majority’s conclusion that the government had met its obligations under Section 3504 to provide notice relative to any potential Title III violations; he would have concluded that the government’s answer was inadequate because it should have specified whether the client was subjected to electronic surveillance “in violation” of Title III. Id. at 209. Judge Traxler expressly declined to consider whether Section 3504 applied to FISA collection at all. Id. at 209, nn.8–9, 211.
17 Moreover, FISA’s Section 1806 was enacted in 1978, approximately seven years after Section 3504 was adopted in 1970. See Pub. L. 91-452, Title VII, § 702(a), Oct. 15, 1970. “Where two statutes conflict, the later-enacted, more specific provision generally governs.” United States v. Juvenile Male, 670 F.3d 999, 1008 (9th Cir.), cert. denied, 133 S. Ct. 234 (2012). Thus, there is no basis for holding that Section 3504 trumps FISA’s “later-enacted, more specific” notice provision.

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relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” 50 U.S.C. § 1806(f) (emphasis added). Thus, it is the specific disclosure provision of Section 1806(f) that controls if, when, and whether this Court may disclose any materials relating to surveillance to the defense.18
Defendant’s argument for additional discovery in light of the government’s supplemental Section 1806(c) notice rests on the premise that Alderman v. United States, 394 U.S. 165 (1969), constitutionally mandates disclosure to the defense. This premise is faulty. The Ninth Circuit has recognized that whether disclosure to the defense of materials related to allegedly illegal intercepts is necessary is a matter within the trial court’s sound discretion. United States v. Bissell, 634 F.2d 1228, 1232-33 (9th Cir. 1981). “While the Court in Alderman emphasized the importance of full disclosure and adversary proceedings nothing in Alderman requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance.” Id. (citations omitted), citing Taglianetti v. United States, 394 U.S. 316, 317 (1969). Thus, the Ninth Circuit has specifically rejected the argument advanced by the defense that Alderman should be read to mean that the defense is entitled to additional discovery whenever the government provides notice that it has relied either directly or derivatively on the products of electronic surveillance. See also Damrah, 412 F.3d at 624 (concluding that Alderman did not support disclosure of FISA materials or an adversary hearing because in that
18 Even though Section 3504 does not apply to FISA collection, a remedy for untimely notice exists under FISA: the defendant will be given the opportunity to challenge evidence obtained or derived from FISA collection in a suppression hearing governed by the procedures set forth in FISA. Defendant has such an opportunity here with his motion that is due on April 4, 2014.

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case “the prosecution planned to use evidence from surveillance that had already been deemed unlawful”). The controlling principle is that set forth in the statute, 50 U.S.C. § 1806(f).19
IV. Defendant is Not Entitled to Discovery of the Use of Other “Surveillance Activities” Not at Issue in this Case
In his motion, defendant, again, seeks disclosure of “all surveillance activities” related to
his case. (Def. Memo., p. 16.) His requests for information reflect conjecture about
“surveillance activities” ranging from the collection of internet and telephone metadata to
installation of malware and remote activation of a laptop camera, and from surveillance of
conversations by individuals playing video games to surveillance to determine the use of
pornography. (Def. Memo., pp. 20-25.) Defendant’s motion in fact raises no new unresolved
issues that support his request that the Court order the production of additional discovery.
The alleged activities to which defendant cites are unrelated to the Supplemental
Notification and have nothing to do with the ongoing litigation in defendant’s case. To the
extent that defendant argues that discovery should be ordered because various authorized and
unauthorized disclosures of information related to government surveillance pursuant to FISA
have reduced the government’s interest in protecting sensitive classified information related to
such surveillance, (Def. Memo., p. 31), his claim is without merit. It is simply not the case that,
19 A district court order requiring the disclosure of FISA materials is a final order for purposes of appeal. See 50 U.S.C. § 1806(h). In the unlikely event that the Court concludes that disclosure of the classified FAA-related information that defendant requests may be required, given the significant national security consequences that would result from such disclosure, the government would expect to pursue an appeal. Accordingly, the government respectfully requests that the Court indicate its intent to do so before issuing any order, or that any such order be issued in such a manner that the United States has sufficient notice to file an appeal prior to any actual disclosure.

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because some classified information has been disclosed, the government could have no valid interest in protecting from disclosure other related classified information, as well as classified information that was disclosed without authorization and not officially confirmed. Moreover, as the courts have consistently held, the government has a substantial interest in protecting intelligence information from disclosure. See C.I.A. v. Sims, 471 U.S. 159, 175 (1985) (“If potentially valuable intelligence sources come to think that the Agency will be unable to maintain the confidentiality of its relationship to them, many could well refuse to supply information to the Agency in the first place.”); see also El-Mezain, 664 F.3d at 567-68 (recognizing the government’s “substantial interest in maintaining the secrecy of the [FISA] materials,” and that this interest “extends not only to the contents of the materials but also to the appearance of confidentiality in the operation of the intelligence services”). In addition, courts, including the Ninth Circuit, have consistently rejected the argument that the government’s interest in protecting against disclosure of FISA materials, or other classified information, is diminished where defense counsel have security clearances. Ott, 827 F.2d at 477 (“Congress has a legitimate interest in authorizing the Attorney General to invoke procedures designed to ensure that sensitive security information is not unnecessarily disseminated to anyone not involved in the surveillance operation in question, whether or not she happens for unrelated reasons to enjoy security clearance.”); see also El-Mezain, 664 F.3d at 568.20

20 But see Mem. Op. and Order dated 1/29/14, Daoud, No. 12-cr-723 (N.D. Ill.) (granting motion for disclosure of FISA materials to defense counsel with security clearance). That decision has been appealed and the district court has stayed its order pending appeal.

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V. Defendant is Not Entitled to Any Additional Discovery in This Case. As explained earlier, the Supplemental Notification did not signal that any new evidence
exists in this case. Thus, the government’s discovery obligations, to which it has consistently adhered, have not changed since the government filed its Supplemental Notification: discovery in criminal cases generally is controlled by Rule 16 of the Federal Rules of Criminal Procedure, the Jencks Act (18 U.S.C. § 3500), and Brady v. Maryland, 373 U.S. 83 (1963), along with cases decided thereunder. The law does not permit discovery based on defense speculation. See United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986) (“[M]ere speculation about materials in the government’s files [does not require] the district court . . . under Brady to make the materials available for [defendant’s] inspection.) (citation omitted). Because the evidence referenced in the Supplemental Notice is a subset of the same evidence that has already been addressed throughout this case, defendant’s remaining arguments are speculative and without merit. They should be rejected.21

21 Defendant claims that his argument for additional discovery is supported by “several pleadings” that he filed ex parte and that demonstrated that the government was in possession of “evidence” that it had failed to produce. (Def. Memo., p.47.) The government has not seen these pleadings so it cannot respond substantively to their allegations; however, the government stands by its representations to the Court that it has complied with the rules of discovery. Defendant further argues that his requests for additional discovery are supported by the “troubling limitations” the government placed on its representations to the Court in a public hearing, specifically that its comments related only to “unclassified material.” (Def. Memo., p.48). These representations were entirely appropriate: the government was complying with CIPA, which provides a set of procedures for the handling of classified information in criminal cases. Moreover, the government cannot make specific public representations regarding classified material.

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A. The Government has Consistently Complied with the Rules Governing Discovery and this Court’s Discovery Orders.
The government has applied the rules of discovery broadly throughout defendant’s case. Defendant, however, claims that the government has consistently viewed its obligations narrowly. (Def. Memo., p.46). Defendant claims that the government’s “insistence” that the post-trial Brady standard—requiring a showing of “materiality”—be applied pre-trial illustrates its inability to comply with the rules of discovery. (Def. Memo., p.55). This inaccurately characterizes the government’s position. While the government did argue that the pre- and posttrial Brady standard is materiality, it embraced and adhered to the broader “favorability” standard adopted by the Court as a “reasonable aspirational standard” and stated that it provided to the defense information that is “favorable” and beyond what is required by law. (ECF No. 109, p.9, lines 5-16; 18-19).
Notwithstanding this effort, defendant has made a number of unsubstantiated allegations regarding the government’s failure to comply with these rules and its general ethical obligations. In this pleading alone, defendant alleges that the government intentionally misled the Court (Def. Memo., pp.1, 14, 15, 28, 37, 48); intentionally withheld evidence (Def. Memo., pp.2, 15); engaged in “over-reaching” (Def. Memo., pp.1, 3); misrepresented its position (Def. Memo., pp.10, 30, 41); engaged in illegal activity (Def. Memo., p.14); and, failed to meets its general legal obligations (Def. Memo., pp.14, 48, 53). Defendant has made similar claims in the three years since his arraignment. The Court has ruled on defendant’s numerous motions and, early in the case, explicitly rejected defendant’s repeated claims that the government has provided only

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the “minimum” under Rule 16 and no Brady material. (ECF No. 58, p.28). For the reasons stated
above and below, these allegations lack merit and should be rejected.
B. Government Actors Did Not Fail to Communicate Discoverable Material to Local Prosecutors
Defendant argues that unnamed government actors failed to communicate discoverable material to local prosecutors.22 (Def. Memo., p.49). This allegation arises from pre-trial
testimony about the contents of defendant’s computer. Defendant’s claim is inaccurate.
Defendant argues that government’s Exhibit 1—a copy of files taken from defendant’s
computer—did not contain all of the files on the computer from which the files originated. (Def.
Memo., p.49). This discrepancy was identified by defendant’s expert and explained by FBI
Special Agent Dwyer. Defendant claims, however, that this discrepancy proves that the
government “improperly relied on assertions that had apparently been made by a third party.”
(Def. Memo., p.49).
The record does not support this claim. First, even if the Court accepts defendant’s
recitation of the facts, this is not a discovery issue—the defense had the imaged drive that they
claim contained files the government failed to include in Exhibit 1. (ECF No. 159, pp.15-18).
Second, the reason for the discrepancy—as Agent Dwyer explained in his testimony on June 26,
22 Defendant also suggests that the Supplemental Notification illustrates that the government failed to adequately inquire of relevant investigative agencies regarding discovery. (Def. Memo., p.48). This issue has already been addressed in the pre-trial discovery litigation. Defendant’s only new argument is that the Supplemental Notification, on its face, demonstrates that “the government engaged in investigation and gathered evidence . . . that was not disclosed to the defense.” (Def. Memo., p.48). Again, the government has already complied with its discovery obligations – the Supplemental Notification does not change this fact.

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2012—was that the individual employed by the United States Attorney’s Office responsible for producing the government’s discovery accidentally printed only a portion of the images that were contained in Exhibit 1, instead of the entire set of files. (ECF No. 131, pp.51-53). This individual is the “third party” or “government actor” defendant identified in his motion. These facts clearly do not support defendant’s claim that the government was not getting discovery from “government actors.”
Defendant also complains about the “late” production of FBI emails. The emails described by defendant are not investigative reports or documents generated during the course of the criminal investigation. They are email communications between agents about the case.23 The production of this material was not “late.” While the material was produced later than other material produced during the discovery phase of the case because it arose from a Jencks review of internal agency emails, it was not late as that term is understood by the Ninth Circuit or the plain language of the Jencks Act (which states that material should be disclosed after the witness testifies). Finally, there is no evidence that that process is indicative of a failure to provide material to prosecutors from the FBI. /////

23 Defendant suggests that these emails constituted “important evidence” that was known to the agents and left out of the case file. (Def. Memo., p.50). The case file consists of investigative material. These emails were not investigative material of the type that would ever be stored in a case file. Nor were they evidence gathered in the investigation. They were internal communications.

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C. The Government is Not Obligated to Disclose the Origin of the Criminal Investigation Outside the Rules of Discovery
Defendant makes the troubling allegation that the government “actively impeded defense efforts to learn the truth about the origins of the investigation.” (Def. Memo., p.50). This allegation is untrue, and defendant’s recitation of the facts is incorrect. Defendant’s arguments are based on the juxtaposition of pre-trial testimony and trial testimony, as well as the creative use of deductive reasoning. He claims that the government created the impression that “all the information on which the government was relying had been obtained on or after August 31, 2009.” (Def. Memo., p.51). What defendant fails to acknowledge is that the emails between him and Samir Khan began in February 2009, and that this fact was relied upon in the government’s recitation of facts in the pre-trial hearings as well as at trial. Defendant further claims that government objections about the origin of the investigation somehow support this argument. (Def. Memo., p.51). These objections were timely made and, as the Court is aware, arise out of the government’s legal obligations to protect classified information.
Even if defendant’s allegation were accurate, it is irrelevant: the government is obligated to provide defendant discovery; it is not obligated to present to him an agreed-upon narrative about the origin of the criminal investigation in his case. Quite simply, there is no rule of discovery that requires the government to provide defendant with a clear, concise narrative regarding the origins of the criminal investigation that led to his arrest. Rather, the rules require the government to provide the defense with all discoverable material. The government has done so, and the defense may then argue the inferences that it believes are warranted from those facts. (ECF No. 420).

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Defendant also attempts to bootstrap this argument to another issue that was resolved by

this Court–the protection of the true identities of the undercover agents. (CR ruling). Defendant

claims that at trial “the Court and defense made decisions with inadequate and faulty

information” (Def. Memo., p.52) and that the “the non-disclosed indicia of governmental

unreliability may have affected the discretionary decisions of the Court.” (Def. Memo., p.53).

This is also inaccurate. There is no evidence that the Court did not receive information either in

Court or ex parte in relation to any pending motion—it is pure speculation by defendant. Again,

the only new information is the Supplemental Notification that has been provided to defendant.

There is no new evidence, only an additional source from which certain evidence was derived.

To that end, his arguments should be rejected.

VI. Conclusion

For the reasons stated above the defendant’s motion to compel and all associated

arguments should be denied and rejected, and his request for additional discovery likewise

should be denied.

Dated this 13th day of February 2014.

Respectfully submitted,

S. AMANDA MARSHALL United States Attorney

s/ Ethan D. Knight ETHAN D. KNIGHT, OSB #99298 PAMALA R. HOLSINGER, OSB #89263 Assistant United States Attorneys JOLIE F. ZIMMERMAN, DCB #465110 Trial Attorney, Counterterrorism Section National Security Division (503) 727-1000

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S. AMANDA MARSHALL, OSB #95347 United States Attorney District of Oregon ETHAN D. KNIGHT, OSB #99298 PAMALA R. HOLSINGER, OSB # 89263 Assistant United States Attorneys ethan.knight(iuusdoj .gov pamala.holsinger(musdoj .gov 1000 SW Third Ave., Ste. 600 Portland, OR 97204-2902 Telephone: (503) 727-1000 Facsimile: (503) 727-1117 JOHNP. CARLIN Assistant Attorney General for National Security GEORGE Z. TOSCAS J. BRADFORD WIEGMANN TASHINAGAUHAR Deputy Assistant Attorneys General National Security Division JOLIE F. ZIMMERMAN, DCB #465110 Trial Attorney Counterterrorism Section National Security Division United States Department of Justice
Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Case No. 3:10-cr-00475-KI

v.

MOHAMED OSMAN MOHAMUD,

Defendant.

GOVERNMENT'S UNCLASSIFIED RESPONSE TO DEFENDANT'S ALTERNATIVE MOTION FOR SUPPRESSION OF EVIDENCE AND A NEW TRIAL

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TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................... 1 A. OVERVIEW .................................................................................................................. 1 B. SUMMARY OF THE ARGUMENT ............................................................................3 1. Section 702 Is Constitutional ................................................................................... 3 2. The Collection in This Case Was Lawfully Authorized and Conducted ...................................................................................... 5 3. Defendant's Motion for Discovery of the Section 702 Materials Should Be Denied ................................................................ 5 4. Defendant's Motion to Suppress Evidence Based on the Collection of Telephony Metadata and Other Alleged Surveillance Activities Should Be Rejected..............................6 5. No Franks Hearing Should Be Held ........................................................................6
II. BACKGROUND .................................................................................................................6 A. THE FBI'S INVESTIGATION OF DEFENDANT ......................................................6 B. PROCEDURAL HISTORY ........................................................................................... 7 C. [CLASSIFIED MATERIAL REDACTED] ...................................................................7 1. Section 702-Acquired Communications .................................................................. 8 2. [CLASSIFIED MATERIAL REDACTED] ........................................................... 8
III. OVERVIEW OF FISA AND THE FISA AMENDMENTS ACT ...................................... 8 A. THE FOREIGN INTELLIGENCE SURVEILLANCE ACT........................................ 8 B. THE PROTECT AMERICA ACT AND THE FISA AMENDMENTS ACT OF 2008 ................................................................................. 12 C. SECTION 702 OF THE FAA ...................................................................................... 16 1. The Government's Submission to the FISC .......................................................... 18 2. The FISC's Order................................................................................................... 19 3. Implementation of Section 702 Authority ............................................................ .20 4. Targeting and Minimization Procedures ................................................................20 a. Targeting Procedures .......................................................................................21 b. [CLASSIFIED MATERIAL REDACTED] ....................................................21 c. [CLASSIFIED MATERIAL REDACTED] ................................................... 21 d. Minimization Procedures .................................................................................21 5. Oversight ................................................................................................................22 6. District Court Review of FISC Orders and Section 702 Collection ......................23
IV. DEFENDANT'S CONSTITUTIONAL ARGUMENTS LACK MERIT .........................25 A. THE ACQUISTION OF FOREIGN INTELLIGENCE INFORMATION UNDER SECTION 702 IS LAWFUL UNDER THE FOURTH AMENDMENT ...................................................................25 1. There Is No Judicial Warrant Requirement Applicable to Foreign Intelligence Collection Targeted at Foreign Persons Abroad ......................................................................................................27 a. The Fourth Amendment Generally Does Not Apply to Non-U.S. Persons Abroad ..............................................................................27

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b. Incidental Collection of U.S. Person Communications Pursuant to Intelligence Collection Lawfully Targeting Non-United States Persons Located Outside the United States Does Not Trigger a Warrant Requirement.. .....................................................28
c. The Location of the Search Does Not Trigger a Warrant Requirement .....................................................................................................31
2. The Foreign Intelligence Exception Applies .........................................................32 a. The "Special Needs" Doctrine .........................................................................32 b. The Foreign Intelligence Exception.................................................................34 c. The Government's Purpose in Section 702 Collection Goes Beyond Ordinary Crime Control ............................................................37 d. A Warrant or Probable Cause Requirement Would Be Impracticable .................................................................................. 38 e. A Warrant Requirement Would Inappropriately Interfere with Executive Branch Discretion in the Collection ofForeign Intelligence .....................................................................................40
3. The Government's Collection of Foreign Intelligence Information Pursuant to Section 702 Is Constitutional Under the Fourth Amendment's General Reasonableness Test ........................... .41 a. Acquisitions Under Section 702 Advance the Government's Compelling Interest in Obtaining Foreign Intelligence Information to Protect National Security ........................................................ .45 b. U.S. Persons Have Limited Expectations of Privacy in Electronic Communications with Non-U.S. Persons Outside the United States .................................................................................47 c. The Privacy Interests of U.S. Persons Are Protected by Stringent Safeguards and Procedures ............................................................... 50 1. Senior officials certify that the government's procedures satisfy statutory requirements ........................................ ,...........................50 11. Targeting procedures ensure that the government targets only non-U.S. persons reasonably believed to be outside the United States ........................................................................................ 51 iii. Minimization procedures protect the privacy of U.S. persons whose communications are acquired ........................................................ ,52 iv. A significant purpose of the acquisition must be to obtain foreign intelligence information ............................................................................. 59 v. Executive Branch, Congressional, and Judicial Oversight ........................60 vi. Prior Judicial review ..................................................................................61 d. Collection Under Section 702 Has Sufficient Particularity .............................62
B. SECTION 702 DOES NOT AUTHORIZE THE FISC TO ISSUE "ADVISORY OPINIONS," NOR DOES IT VIOLATE THE NONDELEGATION DOCTRINE ..............................................................................65
C. SECTION 702 DOES NOT VIOLATE THE FIRST AMENDMENT .......................69 D. THE GOOD-FAITH EXCEPTION APPLIES ............................................................72
11

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V. THE FAA INFORMATION WAS LAWFULLY ACQUIRED AND CONDUCTED IN CONFORMITY WITH AN ORDER OF AUTHORIZATION OR APPROVAL ..............................................................................74 A. [CLASSIFIED MATERIAL REDACTED] ................................................................74 B. THE APPLICABLE TARGETING PROCEDURES MET THESTATUTORY REQUIREMENTS ......................................................................75 C. THE APPLICABLE MINIMIZATION PROCEDURES MET THE STATUTORY REQUIREMENTS ..............................................................................75 D. [CLASSIFIED MATERIAL REDACTED] ................................................................75 1. Relevant Facts ........................................................................................................75 a. [CLASSIFIED MATERIAL REDACTED] ....................................................75 b. [CLASSIFIED MATERIAL REDACTED] ....................................................76 c. [CLASSIFIED MATERIAL REDACTED] ....................................................76 d. [CLASSIFIED MATERIAL REDACTED] ....................................................76 e. [CLASSIFIED MATERIAL REDACTED] ....................................................76 f. [CLASSIFIED MATERIAL REDACTED] ....................................................76 g. [CLASSIFIED MATERIAL REDACTED] ....................................................76 2. [CLASSIFIED MATERIAL REDACTED] ..........................................................76
a. [CLASSIFIED MATERIAL REDACTED] ....................................................76
b. [CLASSIFIED MATERIAL REDACTED] ....................................................76 c. [CLASSIFIED MATERIAL REDACTED] ....................................................76 d. [CLASSIFIED MATERIAL REDACTED ......................................................76 3. [CLASSIFIED MATERIAL REDACTED] ..........................................................76 a. [CLASSIFIED MATERIAL REDACTED] ....................................................77 b. [CLASSIFIED MATERIAL REDACTED] ....................................................77 c. [CLASSIFIED MATERIAL REDACTED] ....................................................77 d. [CLASSIFIED MATERIAL REDACTED] ....................................................77 4. [CLASSIFIED MATERIAL REDACTED] ..........................................................77 a. [CLASSIFIED MATERIAL REDACTED] ....................................................77 b. [CLASSIFIED MATERIAL REDACTED ......................................................77 5. [CLASSIFIED MATERIAL REDACTED] ..........................................................77 a. [CLASSIFIED MATERIAL REDACTED] ....................................................77 b. [CLASSIFIED MATERIAL REDACTED] ....................................................77 c. [CLASSIFIED MATERIAL REDACTED] ....................................................77 6. [CLASSIFIED MATERIAL REDACTED] ......................................................... 78 VI. [CLASSIFIED MATERIAL REDACTED] ......................................................................78 A. [CLASSIFIED MATERIAL REDACTED] ................................................................78 B. [CLASSIFIED MATERIAL REDACTED] ................................................................78 1. [CLASSIFIED MATERIAL REDACTED] ..........................................................78 a. [CLASSIFIED MATERIAL REDACTED] ....................................................78 b. [CLASSIFIED MATERIAL REDACTED] ....................................................78 c. [CLASSIFIED MATERIAL REDACTED] ....................................................78 2. [CLASSIFIED MATERIAL REDACTED] ..........................................................78 C. [CLASSIFIED MATERIAL REDACTED] ............................................................... 78 1. [CLASSIFIED MATERIAL REDACTED] ..........................................................78 2. [CLASSIFIED MATERIAL REDACTED] ..........................................................78
111

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VII.
VIII. IX. X.

3. [CLASSIFIED MATERIAL REDACTED] ..........................................................79 D. [CLASSIFIED MATERIAL REDACTED] ................................................................79 E. [CLASSIFIED MATERIAL REDACTED] ................................................................79
1. Legal Standard .......................................................................................................79 2. [CLASSIFIED MATERIAL REDACTED] ..........................................................79 3. [CLASSIFIED MATERIAL REDACTED] ..........................................................79 4. [CLASSIFIED MATERIAL REDACTED] ..........................................................79 5. [CLASSIFIED MATERIAL REDACTED] ..........................................................79 6. [CLASSIFIED MATERIAL REDACTED] ..........................................................79 7. [CLASSIFIED MATERIAL REDACTED] ......................................................... 79 8. [CLASSIFIED MATERIAL REDACTED] .......................................................... 79 F. [CLASSIFIED MATERIAL REDACTED] ................................................................ 80 G. CONCLUSION ............................................................................................................ 80
DEFENDANT'S DISCOVERY MOTION SHOULD BE DENIED ................................80 A. FISA PROVISIONS GOVERNING REVIEW AND DISCLOSURE........................80 B. IN CAMERA, EX PARTE REVIEW OF
FISA MATERIALS IS THE RULE ............................................................................ 81 C. DEFENSE PARTICIPATION IS NOT NECESSARY
FOR THIS COURT'S REVIEW .................................................................................83 D. DEFENDANT'S ARGUMENTS IN SUPPORT OF
DISCLOSURE CONTRAVENE FISA'S STANDARDS AND OTHERWISE LACK MERIT ........................................................................... 83
DEFENDANT IS NOT ENTITLED TO A HEARING UNDER FRANKS V DELAWARE ................................................................................................... 87 DEFENDANT IS NOT ENTITLED TO SUPPRESSION OF ANY EVIDENCE BASED ON COLLECTION OF TELEPHONY METADATA PURSUANT TO SECTION 215 OF THE PATRIOT ACT ......................90 CONCLUSION ..................................................................................................................91

IV

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I. INTRODUCTION A. OVERVIEW On April4, 2014, defendant Mohamed Osman Mohamud ("defendant") filed his
Alternative Motion for Suppression of Evidence and a New Trial Based on the Government's Introduction of Evidence at Trial and Other Uses oflnformation Derived from Unlawful Electronic Surveillance ("Def.'s Supp. Mot.," ECF No. 502), along with a supporting memorandum oflaw ("Def. 's Supp. Mem.," ECF No. 503). In his motion, defendant seeks: (1) suppression of any evidence obtained through warrantless surveillance used in his case; (2) vacation of his conviction; (3) a new trial; and (4) suppression of all evidence and other derivative uses of alleged unlawful surveillance, including any fruits of any action taken or decisions based on such surveillance. (Def.'s Supp. Mem., p. 52). On January 13, 2014, defendant filed his Motion for Full Discovery Regarding the Facts and Circumstances Underlying Surveillance ("Def.'s Discovery Mot.," ECF No. 488), along with a supporting memorandum oflaw ("Def.'s Discovery Mem.," ECF No. 489). Defendant's Discovery Motion seeks discovery of records and information relating to, among other things, the legality and conduct of the Section 702 of the FISA Amendments Act of 2008 ("FAA") collection from which cetiain of the evidence used at defendant's trial was derived, including the applicable procedures (collectively, "the Section 702 materials"). For the reasons set forth below, the Court should deny defendant's motions in their entirety. 1
Defendant's motions for discovery and suppression were filed in response to the government's Supplemental FISA Notification, filed on November 19, 2013, which provided "notice to defendant and the Court, pursuant to 50 U.S.C. §§ 1806(c) and 1881e(a), that the
1 [CLASSIFIED MATERIAL REDACTED] 1

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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 Supplemental Notification," ECF No. 486). The Supplemental Notification was filed based on a recent determination by the government that cetiain evidence referenced in the original FISA notification, filed on November 29, 2010 (ECF No.4), obtained or derived from Title I and Title III collection, was itself also derived from Title VII collection as to which defendant was aggrieved. Section 702 ofthe FAA (part ofTitle VII of FISA and codified at Section 1881a ofFISA) permits the targeting of non-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. Defendant seeks suppression of the Section 702-derived evidence used in this case, as well as the other relief detailed above.
Defendant's motions have triggered this Court's review ofthe relevant Section 702 materials pursuant to 50 U.S.C. §§ 1806(±) and 1881e(a) to determine whether the Section 702 intelligence collection was lawfully authorized and conducted. In particular, Section 1806(±) provides that, where the Attorney General certifies that "disclosure [ofFISA 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 of the aggrieved person as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." 50 U.S.C. § 1806(±). This same procedure applies to motions to disclose Section 702-related materials or to suppress information obtained or derived from Section 702
2

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acquisition, which is deemed to be electronic surveillance 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. See Declaration and Claim of Privilege of the Attorney General of the United States (Exhibit 1).
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 defendant's motion, in accordance with the provisions of 50 U.S.C. § 1806(±) and§ 1881(e)(a). See also 50 U.S.C. § 1825(g). [CLASSIFIED MATERIAL REDACTED]
In opposition to defendant's 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.2 [CLASSIFIED MATERIAL REDACTED]
B. SUMMARY OF THE ARGUMENT [CLASSIFIED MATERIAL REDACTED]
1. Section 702 Is Constitutional In his motion to suppress evidence derived from Section 702 foreign intelligence acquisition, defendant argues that Section 702 of the FAA violates the Fourth Amendment, Article III, and the First Amendment of the United States Constitution. As an initial matter, this 2 As a result of the redactions, the pagination and footnote numbering of the classified memorandum and the unclassified memorandum are different.
3

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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, 551 F.3d 1004, 1010 (FISC 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"); United States v. Posey, 864 F.2d 1487, 1491 (9th Cir. 1989). As applied to the acquisition at issue here, Section 702 is constitutional. See infra at Part IV.
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 national security interests at stake and the extensive procedural safeguards that protect the privacy interests of U.S. persons. See infra at Part IV.A.3.
Second, Section 702, in requiring the FISC to review the government's proposed certifications 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 comis 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 IV.B.
Third, defendant fails to show that Section 702 violates the First Amendment by "chilling" the expressive activities ofthird parties. (Def.'s Mem., pp. 37-39). Defendant's claim that the statute has an unconstitutional chilling effect on Americans generally and on various
4

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specific third parties does not provide a basis for exclusion of evidence in a criminal case. Additionally, the Supreme Court and Ninth Circuit have held that when the government's investigative activities have an effect on individuals' First Amendment interests, those interests are safeguarded by adherence to Fourth Amendment standards. See infra at Part IV.C. Finally, even if defendant's constitutional arguments had merit, the good-faith exception would preclude exclusion of the evidence. See infra at Part IV.D.
2. The Collection in This Case Was Lawfully Authorized and Conducted In addition to challenging the general constitutionality of Section 702, defendant also questions 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 certifications 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 certifications and procedures. See infra at Part
v.
[CLASSIFIED MATERIAL REDACTED] 3. Defendant's 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 ofthe legality ofthe surveillance [or search]." 50 U.S.C. § 1806(±) (emphasis
5

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added). Here, the government submits that the Comi will be able to determine the legality of the Section 702 collection at issue 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 defendant's allegations to the contrary may be considered, and rejected, based on an examination of the classified record. Contrary to defendant's 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. See infra at Part VII.
4. Defendant's Motion to Suppress Evidence Based on the Collection of Telephony Metadata and Other Alleged Surveillance Activities Should Be Rejected
[CLASSIFIED MATERIAL REDACTED] 5. No Franks Hearing Should Be Held
Finally, defendant is not entitled to a hearing under Franks v. Delaware, 438 U.S. 154 (1978), because of alleged material omissions from the FISA applications that were the subject of the pre-trial litigation. There were no material omissions or misrepresentations of fact. Rather, the relevant information regarding the prior surveillance was made available to the FISC and this Court. Moreover, defendant's 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. [CLASSIFIED MATERIAL REDACTED]
II. BACKGROUND A. THE FBI'S INVESTIGATION OF DEFENDANT
[CLASSIFIED MATERIAL REDACTED] 6

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B. PROCEDURAL HISTORY On November 26, 2010, defendant was arrested on a criminal complaint filed in the District of Oregon charging him with attempted use of a weapon of mass destruction, in violation of 18 U.S.C. § 2332a(a)(2)(A). He was indicted on November 29, 2010, by a Portland federal grand jury on the same charge. On November 29, 2010, the government notified this Court and defendant, pursuant to 50 U.S.C. §§ 1806(c) and 1825(d), that the government intended to introduce at trial or otherwise use against defendant information obtained and derived from electronic surveillance and physical searches conducted pursuant to FISA Titles I and III, 50 U.S.C. §§ 1801-1812 and 1821-1829. On June 22, 2011, defendant filed his Motion for Disclosure ofFISA-Related Material Necessary to Litigate Motions for Discovery and for Suppression ofthe Fruits ofFISA Activity (ECF No. 54), along with a supporting memorandum oflaw (ECF No. 55). The government filed its response to defendant's motion on March 8, 2012 ("FISA Suppression Motion Response," ECF No. 81). On May 7, 2012, this Court denied defendant's motion. (Opinion and Order, May 7, 2012, ECF No. 126). On January 31, 2013, defendant was found guilty of attempting to use a weapon of mass destruction after a 13-day jury trial. On November 19, 2013, the government filed the Supplemental Notification. (ECF No. 486). On January 13, 2014, defendant filed his motion for discovery of Section 702 materials (ECF No. 488). On April4, 2014, defendant filed the instant motion to suppress (ECF No. 502). Oral argument on defendant's motions has been set for June 4, 2014. C. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED] Ill
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1. Section 702-Acquired Communications [CLASSIFIED MATERIAL REDACTED]
In the memorandum filed in support of defendant's Motion for Vacation of Conviction and Alternative Remedies of Dismissal of the Indictment, Suppression of Evidence, and New Trial for the Government's Violation of the Pretrial Notice Statute (ECF No. 501) (Def.'s New Trial Mem.), defendant suggests that the Court "determine if the communication[s] introduced at trial or otherwise used is the same as the communication[s] acquired by the§ 702 warrantless surveillance." (Def.'s New Trial Mem., p. 14). Defendant seems to believe that, ifthis were the case, the government's Supplemental Notification and its expressed reasons for why the notice of the use of Section 702-derived information was delayed would be rendered misleading. (Id.). [CLASSIFIED MATERIAL REDACTED]
2. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED] III. OVERVIEW OF FISA AND THE FISA AMENDMENTS ACT
A. 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 national security and foreign affairs, with methods of surveillance evolving over time in light of developing technologies. Presidents have authorized warrantless wiretaps for foreign intelligence purposes since at least 1940. See, e.g., United States v. United States Dist. Court, 444 F.2d 651,669-71 (6th Cir. 1971) (reproducing as an appendix memoranda from Presidents Roosevelt, Truman, and Johnson).
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In 1978, Congress enacted FISA "to regulate the use of electronic surveillance within the United States for foreign intelligence purposes." SeeS. Rep. No. 95-604, at 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.
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, 1809(a)(1); 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 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 ofthe 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, produce, and disseminate foreign intelligence information. See 50 U.S.C. §§ 1801(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(£). Specifically, Congress defined "electronic surveillance" to mean (1) the acquisition of the contents of a wire or radio communication obtained by "intentionally
9

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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 certain radio communications when the "sender and all intended recipients are located within the 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 ofthe 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. SeeS. Rep. No. 95-701, 2d Sess. 7 & n.2, 34-35 & n.16 (1978).3 Congress was told in the hearing leading to FISA's enactment that the acquisition of 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
3 Executive Order No. 12,333, as amended, addresses, inter alia, the government's "human and technical collection techniques ... undertaken abroad." Exec. Order No. 12,333, § 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-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. §§ 1.3(b)(4), 1.7(a)(l), (5) and (c)(l).
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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 et seq.) ("Mar. 29, 1976 FISA Hrg.").4 Congress heard similar testimony from other witnesses.5
Accordingly, at the time FISA was enacted, Congress understood that most foreign-to-foreign
and international communications fell outside the definition of"electronic surveillance." SeeS.
Rep. No. 95-701, at 71 (1978) ("[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
surveillance, or wire surveillance of transoceanic cables offshore or on foreign soil, outside the
statute's regulatory framework.
Ill
Ill
4 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., at 180-81 (Jun. 29, 1976 et seq.).
5 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. at 8 (Apr. 12, 1976 et seq.) (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. At 31 testimony of Morton Halperin) (stating that "ifi 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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B. 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. (Jul. 19, 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 tenorist organization. S. Rep. No. 110-209 (2007), at 2-5. The TSP was not canied out under FISA or with the authorization ofthe 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." !d. at 2. Ill
Ill Ill Ill Ill Ill
Ill
Ill
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The Director ofNational 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., 11 Oth Cong., 1st Sess. (May 1, 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]." !d.
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. !d. 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.
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. at 19; see 50 U.S.C. § 1801(±)(2). The DNI explained that technological advances had rendered this distinction outmoded as well: "Legislators in 1978
6 Compare 50 U.S.C. § 1801(±)(2) (defining wire communication as "electronic surveillance" if, inter alia, 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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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 Modemization Hrg. at 19. In this environment, regulating communications differently
based on the location of collection arbitrarily limits the govemment'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 communication 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 pmiicular communication * * * is 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. (Jul. 26, 2006) (statement ofthen-NSA Director General Michael V. Hayden).
Although FISA was originally crafted to accommodate the government's collection of
foreign and intemational 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.7 The fix
7 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. Modemizing FISA would greatly improve that process and relieve the massive amounts of analytic resources currently being used to craft FISA applications.
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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. at 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. 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 heightened tenorist threat environment" that resulted from FISA's "requirement of a couti order to collect foreign intelligence about foreign targets located overseas." S. Rep. No. 110209, at 5-6 (2007). 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)(1)-(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
May 1, 2007 FISA Modernization Hrg. at 18. 15

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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)(1)(A), and to appeal an adverse decision to the Foreign Intelligence Surveillance Court of Review ("FISA Court of Review"), id. § 1805b(i).8 One private party brought such a challenge, and both the FISC and the FISA Court of Review upheld the PAA. See In re Directives Pursuant to Section 105B ofthe Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISC Ct. Rev. 2008) (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).
C. SECTION 702 OF THE FAA 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. 2436.9 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'l USA, 133 S. Ct. 1138, 1144 (2013). 10 Section 702 provides that, "upon the issuance" of an order from the FISC, the Attorney General and DNI may jointly authorize the "targeting of persons reasonably believed to Ill
8 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). 9 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. 10 The FAA enacted other amendments to FISA, including provisions not at issue in this case that govern the targeting ofUnited States persons outside the United States. See 50 U.S.C. §§ 1881b, 1881c.
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be located outside the United States" for a period of up to one year to acquire "foreign intelligence information." 50 U.S.C. § 1881a(a). 11
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)(1).
(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. § 1881a(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. § 1881a(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. § 1881a(b)(4).
(5) The acquisition must be "conducted in a manner consistent with the [F]ourth [A]mendment." 50 U.S.C. § 1881a(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.
11 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). Ifthat 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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1. 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. § 1881a(a), (c)(1), (i)(2), (3);
see 50 U.S.C. § 1881a(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. §§ 1801(h), 1821(4)) and have been or will be submitted for approval by the FISC;
(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). 12
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
12 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.
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required to identify the specific facilities, places, premises, or property at which an acquisition authorized under [section 188la(a)] will be directed or conducted." 50 U.S.C. § 1881a(g)(4). 13
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. § 188la(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. § 188la(g)(2)(D)(i). [CLASSIFIED MATERIAL REDACTED]
2. The FISC's Order The FISC must review the certification, targeting and minimization procedures, and any amendments thereto. 50 U.S.C. § 188la(i)(l) and (2). Ifthe 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. § 1881a(i)(3)(A). If the 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]
13 [CLASSIFIED MATERIAL REDACTED] 19

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3. 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. § 1881a(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 of FISC-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 cetiification 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 compelled to assist [the government] in acquiring the communications associated with those identifiers." Id. 14 [CLASSIFIED MATERIAL REDACTED]
4. 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 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), (d)(l) and (f)(l)(A), the minimization procedures also must be 14 [CLASSIFIED MATERIAL REDACTED]
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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. §§ 1801(h)(l), 1821(4)(A); see 50 U.S.C. § 1881a(e)(1). 15 The FISC, in turn, must 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. § 1881a(i)(2)(B), (C) and (3)(A). [CLASSIFIED MATERIAL REDACTED]
a. Targeting Procedures [CLASSIFIED MATERIAL REDACTED]
b. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED]
c. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED]
d. 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)(1). FISAcompliant 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
15 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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surveillance, to mm1m1ze 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]
5. 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)(1); 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."). 16
16 Rule 13(b) of the Rules of Procedures for the FISC requires the government to report, in writing, all instances of non-compliance. FISA Ct. R. ofP. 13(b). The government reports Section 702 compliance incidents to the FISC via individual notices and quarterly repmis. See
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6. 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 ofFISA for, among other things, the purposes of the applicability of the statutory notice requirement and the suppression and discovery provisions of Section 1806. Under Section 1806(c), the government's notice obligation applies only if the 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 ofthe 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). 17 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
(
NSA, Civil Liberties and Privacy Office 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. Id. at 3. 17 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. § 1801(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).
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"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 (f), 1881 e(a). 18 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(f), 1825(g).
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. Ill Ill
18 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. § 1881a(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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IV. DEFENDANT'S CONSTITUTIONAL ARGUMENTS LACK MERIT Defendant moves for suppression of evidence derived from the acquisition of foreign
intelligence information under Section 702 on the ground that Section 702 is unconstitutional. (Def. 's Mem., pp. 13-39). For the reasons set forth below, defendant's motion should be denied.
A. THE ACQUISTION 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 certifications and targeting and minimization procedures, was consistent with the Fourth Amendment.
The Fomih 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 Fomih Amendment analysis "is always 'the reasonableness in all the circumstances ofthe 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,
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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 warrant requirement because (1) the govemment' s purpose - protecting against terrorist attacks and other extemal 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 1004, 1010-11 (FISC Ct. Rev. 2008).
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 intemational communications are significantly diminished 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) targeting procedures that reasonably confine acquisitions to targets who are non-U.S. persons located outside the United States; (2) minimization procedures that serve to limit the acquisition, retention, and dissemination of information about U.S. persons and that closely resemble minimization procedures that have been used for decades in the context of foreign intelligence surveillance to protect the privacy interests of U.S. persons; and (3) guidelines adopted by the Attomey General to ensure compliance with the statutory limits on acquisitions. In light of these and other safeguards
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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.
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-US. 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. VerdugoUrquidez, 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 ofthe United States territory," id. at 266. "If there are to be restrictions on searches and seizures which 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 States. Accordingly, under Verdugo- Urquidez; the Fourth Amendment generally is inapplicable to persons who are targeted for collection in accordance with the requirements of
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the statute. 19 For that reason, to the extent defendant attempts a facial challenge to Section 702, the challenge fails, because the statute has a "plainly legitimate sweep" in its intended application to persons unprotected by the Fourth Amendment. See Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (citation omitted).20
b. Incidental Collection of US. Person Communications Pursuant to Intelligence Collection Lawfully Targeting Non-US. Persons Located Outside the United States Does Not Trigger a Warrant Requirement
Defendant, as a U.S. citizen, was not targeted under Section 702. Nevertheless, he is an "aggrieved person" under FISA because his communications were collected incidentally under Section 702, in the course of intelligence collection targeted at one or more non-U.S. persons outside the United States. However, in general, "incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful." In re Directives, 551 F.3d at 1015; 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. 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); United States v. Martin, 599 F.2d 880, 884-85
\
(9th Cir. 1979), overruled 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 III on the ground that it allows interception of conversations of unknown third
19 The head of each element of the intelligence community must report annually to the FISC concerning, inter alia, how many persons the element targeted under Section 1881a (based on the 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(l)(3)(A)(iii). 20 In any event, as noted supra at Part I.B.1., 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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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.").
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 Verdugo- Urquidez 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 III.C.4.d. 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").
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
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inconsistent with decades of foreign-intelligence collection practice. See In re Terrorist Bombings of US. 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.l (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").21 Before initiating surveillance of a foreign target, the government cannot know the identities of all those with whom the target will communicate, and there will generally be at least some possibility 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 will record."). Imposition of a warrant requirement for any incidental interception of U.S. 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 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)
21 While defendant cites a number of cases recognizing a warrant requirement for electronic surveillance in the domestic context (Def. 's Mem., p. 13), he does 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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Hearing Before the H Judiciary Comm., llOth Cong., 1st Sess. at 8 (2007) (statement ofRep. 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 ofthe 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 originally intended to protect "the people of the United States" rather than "aliens outside of the United States territory." !d. 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 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
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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." Yonn, 702 F.2d at 1347.
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}, 2011 WL 10945618, *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, 118-19 (2001). In many contexts, a search or surveillance is impermissible without a warrant or other individualized court order. See Vernonia School Dist. 47J v. 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 wan·ant."). 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. FloresMontano, 541 U.S. 149, 153 (2004) (The government has "plenary authority to conduct routine
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searches and seizures at the border, without probable cause or a wanant."). The Supreme Court has recognized exceptions to the Foutih Amendment's warrant
requirement "when special needs, beyond the normal need for law enforcement, make the wanant 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 wanant 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 wanantless search ofprobationer's home); Vernonia School Dist., 515 U.S. at 653 (upholding wanantless drug testing of studentathletes 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 ofIndianapolis 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 wan·ant 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 ofCharleston, 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. Martinez-Fuerte, 428 U.S. 543 (1976), warrantless searches ofthe homes of probationers to ensure compliance with probation conditions, see Griffin, 483 U.S. at
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872, and warrantless searches of public school students to enforce school rules, see T.L. 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. Buck, 548 F.2d 871, 875 (9th Cir. 1977) ("Foreign security wiretaps are a recognized exception to the general warrant requirement."); 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 reSealed 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); 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");22 but see Zweibon v. Mitchell, 516 F.2d 594, 618-20 (D.C. Cir. 1975) (en bane)
22 Except for In 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
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(plurality opinion suggesting in dicta that a warrant may be required even in a foreign intelligence investigation).23 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 vJould 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, defendant contends (Def.'s Mem., pp. 30-3 5) 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 Mac Wade 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 waiTant 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). Ill
acquisition in this case, which targeted non-United States person(s) reasonably believed to be outside the United States. 23 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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Defendant relies extensively 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 the FISA Court 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 v. Amnesty Int'l USA, 133 S. Ct. 1138, 1143 (2013) (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 fmstrate' 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."). The 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. In re Directives, 551 F.3d at 1010; In reSealed 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
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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], 2011 WL 10945618, at *24 (FISC Oct. 3, 2011) ("The Comi has previously concluded that the acquisition of 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 reSealed 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 Cassidy v. Chertojf, 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 collection "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?4
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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 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 intelligence threats, and increase the chance of leaks regarding sensitive executive operations")?5 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 124 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
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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 develop 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 1011-12 (Because ofthe govemment'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 Verdugo-Urquidez, 494 U.S. at 273-74 ("Application ofthe 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. Railway Labor Executives' 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 Amendment rights. 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"); 0 '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 govemment' 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
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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 and the law contains robust safeguards that protect the interests ofU.S. persons whose communications might be incidentally collected. See United States v. Abu-Jihaad, 630 F.3d 102, 121-22 (2d Cir. 2010) ("[T]he Constitution's warrant requirement is flexible, so that different standards may be compatible with the Fomih Amendment in light of the different purposes and practical considerations at issue.") (internal quotation marks and citation omitted).26
e. A Warrant Requirement Would Inappropriately Interfere with Executive Branch Discretion in the Collection ofForeign 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.27
26 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 reSealed Case, 310 F.3d at 742; Duka, 671 F.3d at 341; [Caption Redacted], 2011 WL 10945618, at *24. 27 Defendant contends (Def.'s Mem., p. 33) that application of the foreign intelligence exception here would "undermine the FISA's purpose of curbing 'the practice by which the Executive
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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 IV.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." Maryland v. King, 133 S. Ct. at 1970; see id. ("To say that no wan-ant is required is merely to acknowledge that rather than employing a per 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 11 7-19 (describing balancing as "general Fourth Amendment approach"); T L. 0., 469 U.S. at 337 (stating that "[t]he determination ofthe standard of reasonableness" requires balancing).
Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it." (quoting S. Rep. No. 95-604(1) at 8). But Section 702 does not authorize "unilateral" Executive Branch surveillance, as the Supreme Court has recognized. See Clapper, 133 S. Ct. at 1144 ("Surveillance under§ 1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment."). In any event, even if defendant were conect that Section 1881 a is inconsistent with statements in the legislative history of a previous version of FISA, the plain terms of the subsequent statute would prevail.
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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 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, where the search involves modest intrusions on the individual's privacy, and where alternative safeguards restrain the government within reasonable limits. See, e.g., Illinois 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 watTant 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); Skinner, 489 U.S. at 623-33.
The Supreme Court recently engaged in this kind of balancing in King, which involved warrantless searches of arrestees to obtain DNA samples. 133 S. Ct. at 1968-69. The Court examined the totality of the circumstances, weighed the various interests at stake, and concluded,
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in light of the government's "substantial interest" in the "identification of arrestees," the diminished 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. !d. 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).
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 1012-15.28 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. !d. 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
28 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 Attomey 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.
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provided for Executive Branch and congressional oversight of "compliance with the targeting procedures," id. The FISA Court 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?9
The FAA provisions, certifications, 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 FISA Court of Review considered in holding that the directives issued under the PAA were constitutional.30 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 Fomih Amendment. 50 U.S.C. § 1881a(i). The FAA, unlike the PAA, also expressly prohibits "reverse targeting" ofU.S. persons. 50 U.S.C. § 1881a(b)(2). The FAA thus stands on an even firmer constitutional foundation than the PAA, and the FISA Court ofReview's analysis upholding the latter applies also to the former. Defendant's motion does not distinguish, or even cite, the FISA 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 (FISC Oct. 3, 2011) ("The Comi found in those prior dockets that the targeting and minimization procedures
29 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. In re Directives, 551 F.3d at 1008. 30 [CLASSIFIED MATERIAL REDACTED]
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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 ofthe highest order of magnitude." In re Directives, 551 F.3d at 1012; see also [Caption Redacted], 2011 WL 10945618, at *25 (FISC Oct. 3, 2011); Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is 'obvious and 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 govemment'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 largescale 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
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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 re-authorization 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 (June 7, 2012); see also id. at 17 (noting that Section 702, in addition to "provid[ing] information about the plans and identities of 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. 112-645 (II) 112th Cong., 2nd Sess. 3 (August 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 expetis 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 often·orist 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
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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 "[S]ection 702 has clearly served an important function in helping the United States to uncover and prevent tenorist 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 702.31
b. US. Persons Have Limited Expectations ofPrivacy in Electronic Communications with Non-US. Persons Outside the United States
Because surveillance under Section 702 must target non-U.S. persons reasonably believed to be located outside the United States (who generally lack Fourth Amendment rights), the only constitutional interests at stake are those of persons protected by the Fourth Amendment who were either mistakenly targeted under Section 702, or whose communications were incidentally collected in the course of the government's targeting of another person reasonably believed to be a non-U.S. person outside the United States. In the context of incidental collection, the privacy interests of U.S. persons in communications are significantly diminished when those communications have been transmitted to or obtained from non-U.S. persons located abroad.
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
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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 information, the sender loses any cognizable Fourth Amendment rights with respect to that information. That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the information. to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information.32
This rule applies to physical mail, even within the United States: Although, as defendant notes (Def. 's Mem. 17), 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 1222, 1228 (lOth Cir. 1999) (quoting United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995)). The same rule 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. Heckencamp, 482 F.3d 1142, 1146 (9th Cir. 2007) (An "expectation of privacy may be diminished" for "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).33
32 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. 33 Moreover, any expectation of privacy of defendant in his electronic communications with a non-U.S. person overseas is also diminished by the prospect that his foreign correspondent could
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[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. Courts 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 ofthe "border search"
doctrine, courts have 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
be a target 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 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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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 cmTespondence 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.
c. The Privacy Interests of US. 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 comis 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 certify that the government's procedures satisfy statutory requirements
Section 702 requires the DNI and the Attorney General to cetiify that procedures are in
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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 guidelines adopted by the government are consistent with the Fourth Amendment. 50 U.S.C. § 188la(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 reSealed Case, 310 F.3d at 739.
n. Targeting procedures ensure that the government targets only non-U.S. 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], 2011 WL 10945618, at *6 (FISC Oct. 3, 2011) ("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]
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These detailed procedures refute defendant's contention that collection under Section 702 is umeasonably broad because the government "may target entire geographical areas or groups of people," or that the government could "intercept and read every American communication with a country of interest." (Def.'s Mem., p. 20-21 ). 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 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 V.D., there is no indication of any non-compliance by the government that would rebut that presumption.34 [CLASSIFIED MATERIAL REDACTED]
iii. Minimization procedures protect the privacy of U.S. 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. § 1801(h)(l). Section 702 further requires that the FISC review those procedures and determine that acquisitions in accordance with such procedures are consistent with the FAA and the Fourth Amendment. 50 U.S.C. § 1881a(i)(1) 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
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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 (dated October 31, 2011 ), dated October 31, 2011 ), available at www.dni.gov/files/documents/Minimization%20Procedures%20used%20 by%20NSA%20in%20Connection%20with%20FISA%20SECT%20702.pdf ("NSA 2011 Minimization Procedures")?5 The 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. !d. § 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 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 reSealed 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 enors as well as a means of reducing the impact of incidental intrusions into the privacy of non-targeted United States persons."). 36 Ill
35 [CLASSIFIED MATERIAL REDACTED] 36 [CLASSIFIED MATERIAL REDACTED]
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Defendant contends (Def.'s Mem., pp. 36-37) that the minimization procedures "ha[ve] no substantive content" and "provide no meaningful protection." However, the procedures employed here provide materially equivalent protection to the procedures employed for FISA Title I and III collection, and courts have found that these procedures sufficiently protect the privacy interests ofU.S. persons whose communications are incidentally acquired. In reSealed 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 "effective 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 in the context of traditional FISA electronic surveillance and physical search, 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 (FISC Oct. 3, 2011).
The FISC has authority to supervise the government's compliance with minimization procedures. The FAA's oversight provisions require regular reporting to the FISC concerning the government's implementation ofminimizationprocedures. 50 U.S.C. § 1881a(l). In addition, Rule 13(b) of the FISC's Rules of Procedures requires the government to report, in writing, all instances of non-compliance.37 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. 38
37 FISA Ct. R. ofP. 13(b). 38 In [Caption Redacted], 2011 WL 10945618, at *1 (FISC Oct. 3, 2011), the FISC found that the government's minimization procedures, as applied to certain electronic communications acquired at "upstream" points on the internet backbone networks, did not comply with Section
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Defendant further contends (Def. 's Mem., pp. 28-29) that, even assuming the government has lawfully acquired information pursuant to Section 702, any subsequent querying of a database containing that information (including queries using identifiers associated with U.S.persons) amounts to a distinct Fourth Amendment "search" that requires a separate warrant.39 Defendant is 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, those queries do not constitute separate "searches" under the Fourth Amendment. See United States v. Diaz-Castaneda, 494 F.3d 1146, 1151-53 (9th Cir. 2007) (running computer query of individual's lawfully obtained license plate and driver's license identification numbers in government databases, which revealed information about subject's car ownership, driver status, and criminal record, was not a search under the Fourth Amendment); 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 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
702 or the Con~titution, due to technical limits on the government's ability to isolate targeted communications that were transmitted as part of a multi-communication batch. The government revised its procedures, and the FISC held that the amended procedures were consistent with the statute and the Fourth Amendment. [Caption Redacted], 2011 WL 10947772, at *1 (FISC Nov. 30, 2011). [CLASSIFIED MATERIAL REDACTED] 39 [CLASSIFIED MATERIAL REDACTED]
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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 ofprivacy).40
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 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"); see also Haskell v. Harris, 2014 WL 1063399 at *4 (9th Cir. Mar. 20, 2014) (Smith, J, concurring) (noting that, under King, the differences between California's DNA statute and the Maryland statute at issue
40 Defendant's contention (Def.'s Mem., pp.29-30) that "each stage of the process" including "retention, query, dissemination, use, and so forth" amounts to a separate search under the Fourth Amendment not only is contrary to these cases but also is 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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in King regarding when police may analyze DNA samples they had already obtained were "not constitutionally relevant"). 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.
Defendant's reliance on cases holding that searches beyond the scope of consent, a warrant, or an initial private search require a separate warrant (Def.' s Mem., p. 29) is misplaced. In this case, as set forth in detail infra at Part V.D., the government complied with all applicable requirements in Section 702 and the FISC-authorized targeting and minimization procedures. The government's actions thus were within the scope of the relevant legal authority. For that reason, the cases defendant cites regarding circumstances where the government took actions beyond the scope of the warrant (or warrant exception) at issue are inapplicable here.
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 court-approved minimization procedures. It would be perverse to
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authorize the umestricted review of lawfully collected information but then to restrict the targeted review of the same infotmation 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.
On the other side of the balance, the government has a compelling 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 IV.A.3.a.41 Similarly, the govemment'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 often will have some ancillary criminal-law purpose" because, for example, the "apprehension of terrorism suspects ... is inextricably intertwined with the national security concems 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], 2011 WL 10945618, at *7 (FISC Oct. 3, 2011 ). In approving such queries in the context of Section 702 collection, the FISC noted that the minimization procedures applicable to certain other FISA-acquired 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
41 Such queries also help the government counteract an operational security measure like hiding operational communications in large amounts of non-operational communications in the hope of delaying the government's detection of those communications.
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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. 42
In other words, 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 the individual is either an agent of a foreign power or engaged in criminal activity. 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 umelated to the original purpose for the wiretap. See 18 U.S.C. § 2517(5); see also, e.g., United States v. Gaffer, 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.
iv. A significant purpose of the 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. § 1881a(g)(2)(A)(v). That requirement precludes the government from using directives issued under Section 702 "as a device to investigate wholly umelated ordinary crimes." In reSealed Case, 310 F.3d at 736. [CLASSIFIED MATERIAL REDACTED] 42 [CLASSIFIED MATERIAL REDACTED]
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v. 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 acquisitions referring to the identity of a U.S. person. See 50 U.S.C. § 1881a(l). They must submit those assessments both to the FISC and to congressional oversight committees. !d. The Attorney General must also keep the relevant oversight committees "fully inform[ed]" concerning the implementation of Section 702. 50 U.S.C. § 1881f(a) and (b)(1); see also Clapper, 133 S. Ct. at 1144 ("Surveillance under§ 1881a 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 (June 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
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willful failure to comply with statutory requirements or Executive Branch policies and procedures."). Under the FAA, as in traditional FISA, the "in-depth oversight ofFISA 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).
vi. 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], 2011 WL 10945618 (FISC Oct. 3, 2011).
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d. Collection Under Section 702 Has Sufficient Particularity
Defendant's 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. (Def.'s Mem., pp. 16-28). In doing so,
defendant describes Section 702-authorized collection as "dragnet" surveillance that collects
communications in "bulk." (See, e.g., id. at 8). However, collection under Section 702 is not
bulk collection. 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 (FISC Oct. 3, 2011); and (2) the
collection is designed to obtain foreign intelligence information within the scope of the certification approved by the court.43
43 Indeed, a review ofthe various "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 U.S. government requests for customer data" (Feb. 3, 2014), available at, http:/lblogs.technet.com/b/microsoft_on_the_issues/archive/2014/02/03/providing-additionaltransparency-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
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[CLASSIFIED MATERIAL REDACTED]
Moreover, defendant's 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 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 1013.44
Ill
short, this means that we have not received the type of bulk data requests that are commonly discussed publicly regarding telephone records." !d. 44 Defendant also contends (Def.'s Mem., pp. 26-28) that Section 702 violates the Fourth Amendment's notice requirement because targets need not be notified of the surveillance or search unless and until fruits of the surveillance or search are to be used in criminal prosecutions. This argument is meritless because FISA's Title I and Title III provisions have the same notice standards as Section 702 and courts have held that those provisions are reasonable. See Belfield, 692 F.2d at 145 n.8 ("[N]otice that the surveillance has been conducted, even years after the event, may destroy a valuable intelligence advantage."); In reSealed Case, 310 F.3d at 741-42, 746 (FISA's notice provisions are reasonable and do not violate the Fourth Amendment). In any event, defendant has now received notice and has not alleged any prejudice caused by his not receiving notice earlier. See Government's Response to Defendant's Motion for Vacation of Conviction and Alternative Remedies, pp. 14-15.
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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 Sawyer, 343 U.S. at 635-37 (Jackson, J., concurring); In 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 ofU.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 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- this Court should hold that the government's acquisition pursuant to Section 702 of the foreign intelligence information challenged by defendant meets the Fourth Amendment's central requirement of reasonableness.
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B. SECTION 702 DOES NOT AUTHORIZE THE FISC TO ISSUE "ADVISORY OPINIONS," NOR DOES IT VIOLATE THE NONDELEGATION DOCTRINE
Defendant contends (Def.'s Mem., pp. 24-26) 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. Defendant further maintains that review at this level of generality does not present a "case or controversy" within the meaning of Article III and also violates the non-delegation doctrine. 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 gove11111ient 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 reSealed 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 couti are inconsistent with Article III case and controversy responsibilities of federal judges because of the secret, non-adversary process."); Matter ofKevork, 634 F. Supp. 1002, 1014 (C.D. Cal. 1985) ("The ex parte nature of FISC proceedings is ... consistent with Article III."), aff'd, 788 F.2d 566 (9th Cir. 1986).45
45 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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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 reApplication ofthe US. for an Order Pursuant to 18 US. C.§ 2703(d), 830 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 ofthese 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 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
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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§ 1881a surveillance may challenge the lawfulness of that directive before the FISC.").
Defendant is also incorrect in claiming that the FISC's ex parte review of the government's certification violates the nondelegation doctrine and generally renders the issue inappropriate for resolution by an Article III judge. The nondelegation doctrine is satisfied when the challenged statute sets forth an "intelligible principle" that "clearly delineates" the boundaries ofth[e] delegated authority." Mistretta, 488 U.S. at 372-73.46 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. Those are "intelligible principles." Moreover, that review is not conducted in the abstract; rather, the FISC must review the minimization procedures "in light of the purpose and technique of the particular surveillance." 50 U.S.C. § 1801(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 ofthe purpose and technique of the particular physical search") (emphasis added). Accordingly, the FISC's review must consider the particular "purpose," as set forth in the certification, of the acquisitions, as well as the particular "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
46 As the Supreme Court has repeatedly observed, it has found only two statutes that lacked the necessary "intelligible principle"- and it has not found any in the last 70 years. Whitman v. Am. TruckingAss'ns, 531 U.S. 457,474 (2001).
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tools through which the government implements Section 702. See [Caption Redacted], 2011 WL 10945618, at *9 (FISC Oct. 3, 2011) ("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.47 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, 537-38 (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 Fomih Amendment or Title III requires more particularity in those contextsnot because of anything in Article III.
C. SECTION 702 DOES NOT VIOLATE THE FIRST AMENDMENT Defendant contends (Def.'s Mem., pp. 37-39) that Section 702 violates the First Amendment because it has "deeply chilled" Americans' exercise of First Amendment rights through communications on the internet. That claim should be rejected. First, defendant does not claim that Section 702 has had any effect on his own First Amendment rights. Instead, he claims (Def. 's Mem., p. 38) that the statute has an unconstitutional chilling effect on Americans generally and on various specific third parties, including his attorney and former President Jimmy Carter. Such claims do not provide a basis for exclusion of evidence. Although the Supreme Court has fashioned exclusionary rules for evidence obtained in violation of defendants' Fourth Amendment rights or Fifth Amendment Miranda rights, defendant cites no case in which a court has excluded evidence on the ground that it was obtained under a statute that unconstitutionally chills the First Amendment rights of third parties. See United States v. Aguilar, 883 F.2d 662, 697 (9th Cir. 1989) (noting that defendant's claim that evidence should be suppressed "is a Fourth Amendment claim, rather than a First") (citation omitted); Abell v. Raines, 640 F.2d 1085, 1088 (9th Cir. 1981) (rejecting
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suppression claim based on alleged First Amendment violations in government investigation because "the Fourth Amendment (and the exclusionary rule) provide the only basis" upon which the evidence could have been excluded); cf United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007) ("We have not found any cases where an indictment was dismissed because the preceding investigation allegedly violated the First Amendment rights of a third party.").
Further, the Supreme Court and Ninth Circuit have held that when the government's investigative activities have an effect on individuals' First Amendment interests, those interests are safeguarded by adherence to Fourth Amendment standards. Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (requiring only that the Fourth Amendment be applied with "scrupulous exactitude" where First Amendment interests are implicated by a search); Mayer, 503 F.3d at 747-48 (noting that the "Fourth Amendment provides the relevant benchmark" for a challenge to a criminal investigation on First Amendment grounds); see also Redd v. City ofEnterprise, 140 F.3d 1378, 1383-84 (11th Cir. 1998); Reporters Comm. For Freedom ofthe Press v. AT&T, 593 F.2d 1030, 1054-59 (D.C. Cir. 1978); Jabara v. Kelley, 476 F. Supp. 561, 572 (E.D. Mich. 1979) ("[T]he first amendment and the fourth amendment provide coextensive zones of privacy in the context of a good faith criminal investigation," including warrantless electronic surveillance by NSA and FBI), vacated on other grounds, 691 F.2d 272 (6th Cir. 1982).
Accordingly, "surveillance consistent with Fourth Amendment protections in connection with a good faith law enforcement investigation does not violate First Amendment rights, even though it may be directed at communicative or associative activities." Gordon v. Warren Consol. Bd. ofEduc., 706 F.2d 778, 781 n.3 (6th Cir. 1983) (collecting cases); see Mayer, 503 F.3d at 750 (explaining that undercover surveillance lawful under the Fourth Amendment does not violate First Amendment rights); ACLU Found. ofS. Cal. v. Barr, 952 F.2d 457, 471 (D.C.
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Cir. 1991) (same in context ofFISA surveillance); cf Ramsey, 431 U.S. at 623-24 (customs officers' inspection of international mail, without reading the correspondence, did not violate the First Amendment). As set forth above, the government's collection of foreign intelligence information under Section 702 does not violate the Fourth Amendment. And because defendant does not allege, and cannot show, that the government has conducted such collection with any purpose to suppress expressive or associative activity, the collection at issue does not violate the First Amendment.
Even if defendant could properly bring an independent First Amendment overbreadth claim in this context, he must show that the statute's "overbreadth [is] substantial, not only in an absolute sense, but also relative to [its] plainly legitimate sweep." United States v. Williams, 553 U.S. 285, 292 (2008); see also id. (noting that this requirement is "vigorously enforced"). Defendant has not made such a showing. To the contrary, defendant's overbreadth claim relies on the same allegation- that people will alter their behavior because they fear the possibility that their communications will be incidentally acquired under Section 702 -that the Supreme Court found to be too speculative to establish a cognizable injury. See Clapper, 133 S. Ct. at 1152 (plaintiffs could not bring constitutional challenge to Section 702 based on allegations that subjective fear of surveillance under Section 702 would deter plaintiffs from "conducting constitutionally protected activities") (citation omitted). Moreover, as the Supreme Court recognized, the self-censorship and countermeasures that defendant claims are caused by fear of Section 702 surveillance are "not fairly traceable" to that statute because "[t]he government has numerous other methods of conducting surveillance" of non-U.S. persons overseas in addition to Section 702. Id. at 1149, 1151.
Finally, although "constitutional violations may arise from the chilling effect of
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regulations that fall short of a direct prohibition against the exercise of First Amendment rights," id. at 1152 (internal quotation marks omitted), the Court has not recognized constitutional violations based on chilling effects that allegedly "aris[e] merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual." Id. at 1152 (quoting Laird v. Tatum, 408 U.S. 1, 11 (1972)). Because Section 702 does not "regulate, constrain, or compel any action" by an individual, id. at 1153, the mere subjective fear of surveillance under that statute does not amount to a constitutionally significant burden on the exercise of First Amendment rights.
D. 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 defendant's 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, Illinois v. Krull, 480 U.S. 340, 349-50 (1987), when law enforcement officers reasonably rely on the probablecause determination of a neutral magistrate, see Leon, 468 U.S. at 920, and when law enforcement officers reasonably rely on then-binding 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.
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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; 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 [FISA]"); 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 General's approval under Executive Order 12,333- 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 fmiher 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 FISA orders"). Finally, the agents reasonably relied on appellate precedent from the FISA Court of Review that upheld similar directives issued under the PAA. See Davis, 131 S. Ct. at 243334; In re Directives, 551 F.3d at 1016.
Defendant 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 he 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
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collection would not be subject to exclusion.48
V. THE FAA 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, defendant also
questions the government's compliance with the applicable targeting and minimization
procedures with respect to the specific information used in his case. (Def.'s Mem., pp. 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 certifications, targeting procedures, and minimization procedures, all of which were
reviewed and approved by the FISC, complied with the requirements for such certifications and
procedures set forth in Section 702. Second, the Section 702 collection at issue in this case was
conducted in accordance with those approved certifications and procedures.
A. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED]
Ill
48 In the related context of Title III of the Wiretap Act, the weight of the precedent establishes that Title III's statutory suppression remedy for criminal wiretap orders incorporates the goodfaith 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 (11th 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 ofthe 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 catTied 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 walTanting application of the exclusionary rule, defendant's 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 information 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.§§ 180l(h)(l), (3), 1821(4)(A), (C), 1881a(e)(l). [CLASSIFIED MATERIAL REDACTED]
D. [CLASSFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED]
1. Relevant Facts a. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED]
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b. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED]
c. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED]
d. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED]
e. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED]
f [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED] g. [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]
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[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] 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] c. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED]
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6. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED] VI. [CLASSIFIED MATERIAL REDACTED] [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]
C. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED]
1. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED]
2. [CLASSIFIED MATERIAL REDACTED]
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[CLASSIFIED MATERIAL REDACTED] 3. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED] D. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED] E. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED] 1. Legal Standard
[CLASSIFIED MATERIAL REDACTED] 2. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED] 3. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED] 4. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED] 5. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED] 6. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED] 7. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED] 8. [CLASSIFIED MATERIAL REDACTED]
[CLASSIFIED MATERIAL REDACTED]
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F. [CLASSIFIED MATERIAL REDACTED] [CLASSIFIED MATERIAL REDACTED]
G. CONCLUSION [CLASSIFIED MATERIAL REDACTED] VII. DEFENDANT'S DISCOVERY MOTION SHOULD BE DENIED
Defendant renews (Def. 's Mem., p. 47) his previously-filed motion for "full discovery" of the classified materials relating to the authorization and conduct of the Section 702 collection from which evidence in this case was denied. For the reasons set forth below and in the government's original response to defendant's discovery motion, defendant's 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(:£). This same procedure applies to motions related to Section 702 collection, which is deemed to be Title I FISA electronic surveillance for purposes of such motions. 50 U.S.C. § 1881e(a). Ifthe 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 ofthe legality ofthe surveillance [or search]." 50 U.S.C. § 1806(f) (emphasis added).
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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); United States v. Abu-Jihaad, 630 F.3d 102, 129 (2d Cir. 2010); United States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005); United States v. Squillacote, 221 F.3d 542 (4th Cir. 2000); United States v. Badia, 827 F.2d 1458, 1464 (11th Cir. 1987); United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982). A court may order disclosure 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 FISA MATERIALS IS THE RULE In light of these requirements, courts consistently have 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 comi 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 April2002 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 &
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Wilson, National Security Investigations§ 29:3 n.l (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 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 ofFISA materials to defense counsel with security clearance).49 Even where defendants have alleged specific errors or misrepresentations in the FISA applications, based on their analysis of the evidence in the case, courts have deemed disclosure unnecessary because they were able to adjudicate the surveillance in light of the alleged errors through in camera, ex parte review. See, e.g., El-Mezain, 664 F.3d at 566; AbuJihaad, 630 F.3d at 130; Rosen, 447 F. Supp. 2d at 552 (denying disclosure despite minimization errors that were inadvertent, disclosed to the FISC, and promptly rectified). Accordingly, if this Court is able to determine the legality of the Section 702 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. Ill Ill Ill
49 The government appealed the district court's order in Daoud, and the district court stayed its order pending appeal.
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C. DEFENSE PARTICIPATION IS NOT NECESSARY FOR 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 govemment' s submissions make clear, the Section 702 collection was lawful and the defendant's allegations to the contrary may be considered, and rejected, based on an examination of the classified record. Contrary to defendant's 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 F.2d 473, 476 (9th Cir. 1987).
D. DEFENDANT'S ARGUMENTS IN SUPPORT OF DISCLOSURE CONTRAVENE FISA'S STANDARDS AND OTHERWISE LACK MERIT
The government's response to defendant's discovery motion addresses defendant's arguments in support of disclosure. See ECF 491 at 15-24. As explained in the government's response and summarized below, defendant's arguments lack merit because they are contrary to the standard set forth in FISA.
Defendant contends (Def.'s Discovery Mem., p. 31 ), in reliance on various authorized and unauthorized disclosures of information related to Section 702 collection, that the govemment has no further interest in protecting the classified materials at issue here. However, as set forth in the unclassified Declaration and Claim of Privilege of the Attorney General of the United States, attached hereto as Exhibit 1 and the classified declarations in support thereof, the Executive Branch has determined that disclosure of the materials would harm the national
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security of the United States. FISA does not authorize district courts to second-guess the Executive Branch's judgment that disclosure would harm national security. Those judgments, appropriately entrusted to the Executive Branch, "are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility." Chicago & S. Airlines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, Ill (1948). A district court judge has "little or no background in the delicate business of intelligence gathering," leaving it ill-equipped to understand the significance of disclosing sensitive information and the repercussions for intelligence gathering and United States foreign policy. C.IA. v. Sims, 471 U.S. 159, 176 (1985); see also id. at 180 ("[I]t is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence-gathering process"); United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) ("Things that did not make sense to the District Judge would make all too much sense to a foreign counter-intelligence specialist who could learn much about this nation's intelligence-gathering capabilities from what these documents revealed about sources and methods."). In light of these concerns, FISA envisions an inquiry more limited and suitable for a non-specialist court: an ex parte, in camera review to determine whether the Section 702 collection at issue was lawful.
Defendant contends (Def.'s Discovery Reply, p. 20; see also Def.'s Discovery Mem., pp. 33-35)) that the Court should grant disclosure because "the issues presented by the FAA are novel, complex, previously umeviewed by district or appellate courts, and ... highly controversial."50 Those arguments provide no basis for disclosure under the applicable standard.
50 In asserting the lack of any helpful precedent, defendant again fails to mention the decision of the FISA Court of Review in In re Directives. Moreover, defendant's assertion that "[t]here was, of course, no informed advocate in place to challenge the government's interpretation and
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An order granting disclosure based simply on the assertion that a FISA claim raises complex issues that have not previously been adjudicated would be inconsistent with the statutory scheme. 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, and in camera, with disclosure being the exception. Courts have been following that procedure for decades. E.g., El-Mezain, 664 F.3d at 567; Abu-Jihaad, 630 F.3d at 129; In re Grand Jury Proceedings, 347 F.3d at 203; Duggan, 743 F.2d at 78. Moreover, the statute requires that courts review the FISA applications and orders in camera and ex parte first, before even contemplating disclosure. 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 the issues he raises are novel and complex.
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 ofFISA issues would apply in every case, and therefore disclosure would always be "necessary." Id. That view, the Court declared, "cannot be correct" because "[t]he language of section 1806(f) clearly anticipates that an ex parte, in camera determination is to be the rule. Disclosure and an adversary hearing are the exception, occurring only when necessary." Id. (emphasis in original). Thus, defendant's argument that the alleged novelty and complexity Ill
application of the FAA before the FISC" ignores that 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. In re Directives, 551 F.3d at 1008.
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of his motion requires disclosure conflicts with Belfield, the clear statutory standard governing disclosure, and the process set forth in FISA for review of FISA suppression claims.
Defendant further relies (Def.'s Discovery Mem., pp. 31-33) on the advantages of adversarial procedures that our justice system generally recognizes. Again, however, that argument is contrary to Congress's judgment, embodied in FISA's text, that courts are to review FISA applications and orders ex parte and in camera except in unusual circumstances. Defendant's reliance on policy judgments are unavailing because they run 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." Senate Report at 57; see also Belfield, 692 F.2d at 148 (noting that Congress was "aware" of the difficulties of ex parte procedures, but that Congress made a "thoroughly reasonable attempt to balance the competing concerns of individual privacy and foreign intelligence."). If a defendant could obtain disclosure merely by pointing out that adversary procedures are generally beneficial and that such procedures 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 procedures" of§ 1806(f) were not to be "bypassed by the inventive litigant using a new ... judicial construction") (citing Senate Report at 63).
Finally, defendant contends (Def.'s Discovery Mem., pp. 36-43) that alleged government misrepresentations in various other national security-related cases support ordering disclosure based on "possible misrepresentations of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of non-foreign intelligence
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information." However, defendant fails 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 ex parte, in camera 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"). 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. VIII. DEFENDANT IS NOT ENTITLED TO A HEARING UNDER FRANKS V.
DELAWARE Defendant has renewed his request for a Franks hearing relating to the Title I and III FISA applications that were the subject of his pre-trial FISA suppression motion. (Def. 's Mem. 44-47). As explained below, there is no basis for the Court to conduct a Franks hearing. 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, in the FISA applications 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); United States v. Ning Wen, 477 F.3d 896, 897 (7th Cir. 2007). To merit a Franks hearing, the defendant first must make a "concrete and substantial preliminary showing" that: (1) the affiant deliberately or
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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); United States v. Duggan, 743 F.2d 59, 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; United States v. Mubayyid, 521 F. Supp. 2d 125, 130-31 (D. Mass. 2007).
The defendant's 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, contrary to defendant's contention (see Def.'s Mem., p. 45), 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 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 the 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 assetiion. 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
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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. United States v. Belfield, 692 F.2d 141, 148 (D.C. Cir 1982); see also Kashmiri, 2010 WL 4705159, at *6: Nevetiheless, 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. Defendant 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. To the contrary, the relevant information regarding the prior Section 702 collection was made available to the FISC and the Court. [CLASSIFIED MATERIAL REDACTED] Defendant also alleges that "the government's recent conduct in terms of candor to the court in federal cases involving national security issues" provides the basis for a Franks hearing. (Def.'s Mem., p. 46). Such allegations cannot establish that the particular FISA applications at issue in this case include material misstatements that were deliberately or recklessly made, or that they contain material omissions, nor can such allegations establish that there were eTI'ors of that type that were essential to the FISC's probable cause findings. 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
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its ex parte, in camera review"); United States v. Abu-Jihaad, 531 F.Supp.2d 299, 310 (D.Conn. 2008), aff'd 630 F.3d 102 (2d Cir. 2010)); 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 defendant's attempt to hold a Franks hearing in this case without making the proper showing. IX. DEFENDANT IS NOT ENTITLED TO SUPPRESSION OF ANY EVIDENCE
BASED ON COLLECTION OF TELEPHONY METADATA PURSUANT TO SECTION 215 OF THE PATRIOT ACT Defendant has moved for suppression of all fruits of additional alleged surveillance programs he believes likely were used in the government's investigation of him. He also argues that the Court should address the lawfulness of the telephony metadata program, which is conducted pursuant to Section 215 of the Patriot Act (codified at 50 U.S.C. § 1861) and which defendant believes likely was used to collect his telephony metadata. (Def.'s Mem., pp. 40-41 ). Defendant's arguments are meritless. There is no reason for the Court to address the lawfulness of this program, and defendant is not entitled to suppression of any evidence based on the collection of telephony metadata pursuant to Section 215 of the Patriot Act or any other surveillance activities defendant alleges occurred. [CLASSIFIED MATERIAL REDACTED] Ill Ill Ill Ill Ill Ill
90

Case 3:10-cr-00475-KI Document 509 Filed 05/03/14 Page 96 of 96 Page ID#: 9031
X. CONCLUSION Based on the above discussion and analysis, the government requests that the Court deny
defendant's Alternative Motion for Suppression of Evidence and aNew Trial Based on the Government's Introduction of Evidence at Trial and Other Uses oflnformation Derived from Unlawful Electronic Surveillance and his Motion for Full Discovery Regarding the Facts and Circumstances Underlying Surveillance.
Respectfully submitted this 2nd day of May 2014. S. AMANDA'MARSHALL United States Attorney
s/ Ethan D. Knight ETHAN D. KNIGHT, OSB #99298 PAMALA R. HOLSINGER, OSB #89263 Assistant United States Attorneys (503) 727-1000 JOHN P. CARLIN Assistant Attorney General for National Security GEORGE Z. TOSCAS J. BRADFORD WIEGMANN TASHINA GAUHAR Deputy Assistant Attorneys General National Security Division JOLIE F. ZIMMERMAN, DCB #465110 Trial Attorney Counterterrorism Section National Security Division United States Department of Justice
91

Case 3:10-cr-00475-KI Document 509-1 Filed 05/03/14 Page 1 of 3 Page ID#: 9032

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

v.

)

)

)

MOHAMED OSMAN MOHAMUD,

)

)

Defendant.

)

_____________ )

No. 10-CR-475-KI
DECLARATION AND CLAIM OF PRIVILEGE

DECLARATION ANI) 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 United States Department of Justice, an Executive Depatiment 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), 1825(g), and 188lc(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 Govew!llent used information derived from eleetronir, surveillance, physical searches, and the targeting of non-U.S. persons outside the United States, all conducted pursuant to FISA, in the criminal proceeding against the Defendant. See 50 U.S.C. §§ 1806(c), 1825(d), and 188le(a).

Case 3:10-cr-00475-KI Document 509-1 Filed 05/03/14 Page 2 of 3 Page ID#: 9033
Accordingly, the Defendant, by and through his attorney, has filed motions seeking disclosure and suppression ofFISA~related materials (hereinafter the "Defendant's Motions"). The Govenm1ent will file an opposition to the Defendant's Motions. For the reasons set forth in the Government's Opposition, it is necessary to provide this Court with the applications and certifications submitted to, and the 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 classilled 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 1he Government may file in connection with this litigation and to any oral representations that may be made by the Govemment 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 Declarations of James R. Clapper, Director ofNational Intelligence, and John Giacalone, Assistant Director, Counte1:terrorism Division, Federal Bureau oflnves1igation. The Declarations of Mr. Clapper and Mr. Giacalone set forth, in detail, the specif1c nwts on which my Claim of Privilege is based. The Declarations of Mr. Clapper and Mr. Giacalone are classified at the 11TOP SECRET" level.
2

Case 3:10-cr-00475-KI Document 509-1 Filed 05/03/14 Page 3 of 3 Page ID#: 9034
5. Relying on the f~lCts set forth in the Declarations of Mr. Clapper and Mr. Giacalone, 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 United States. I further certify that the unuuthorized 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 classilied 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 arc conducted. As a result, the unauthorized disclosure of the information could harm the national security interests ofthe 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 Defendant's Motions. 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 ofpe1jury that the foregoing is true and correct. Executed on _11._,_a=y-'--=------' 2014.
:<-ric H. Holder, Attorney General
3

 
 Case 3:10-cr-00475-KI Document 496 Filed 02/27/14 Page 1 of 35 Page ID#: 8758
Stephen R. Sady Chief Deputy Federal Public Defender steve_sady@fd.org Steven T. Wax Federal Public Defender steve_wax@fd.org Lisa Hay Assistant Federal Public Defender lisa_hay@fd.org 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 503-326-2123 Telephone 503-326-5524 Facsimile
Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. MOHAMED OSMAN MOHAMUD,
Defendant.

Case No. 3:10-cr-00475-KI
REPLY TO GOVERNMENT’S RESPONSE TO MOTION FOR FULL DISCOVERY REGARDING THE FACTS AND CIRCUMSTANCES UNDERLYING SURVEILLANCE

Case 3:10-cr-00475-KI Document 496 Filed 02/27/14 Page 2 of 35 Page ID#: 8759

TABLE OF CONTENTS

Page

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. In Order For The Defense To Present To The Court The Grounds For Remedial Action, And For The Court To Formulate Its Ruling, The Substantive Motions Need To Be Based On Discovery Of The Underlying Non-Classified And Classified Material Related To The Government’s Failure To File The Required Pretrial Notice .......................................................................2

1. The Government’s Vague Claims Regarding The Failure To Provide Pretrial FAA Notice Are Conclusory, Contradictory, And Inconsistent With Reported Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. The Government’s Injection Of Prosecutorial Misconduct And Bad Faith As The Relevant Standards For Discovery Is Inconsistent With The Defense Motion And Puts The Cart Before The Horse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3. The Court Should Order Broad Discovery To Provide The Answers To Predicate Questions Necessary To The Formulation Of The Motions The Court Must Eventually Decide Based On Facts, Not Conclusory And Unsupported Assertions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

4. The Court Should Presume From The Statutory Violation That The Government Acted Knowingly And Deliberately, Which Is Not Rebutted By The Briefing Of Trial Lawyers Who Provide No Information Under Oath, Under Penalty Of Perjury, Based On Actual Knowledge. . . . . . . . . . . . . . . . . . . 13

5. The Public Interest Favors Full Discovery Given The Government’s Extrajudicial Use Of Its Vague, Conclusory, And Inconsistent Brief. . . . . . . . . . 15

B. The Government Has Not Denied The Derivative Use Of Material Gathered Through Collection Of Telephone And Internet Metadata, So The Court Should Order The Production Of Discovery Regarding Such Surveillance Or Sworn Statements Denying Its Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. The Court Should Order Security-Cleared Defense Counsel To Participate In Discovery And Full Adversarial Litigation Regarding The Notice And Electronic Surveillance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

i

Case 3:10-cr-00475-KI Document 496 Filed 02/27/14 Page 3 of 35 Page ID#: 8760 D. The Failure To Make The Required Statutory Disclosure Implicates Other Aspects
Of Discovery And Trial Requiring Full Production Of Material Previously Withheld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 E. The Government’s Account Of Its History Of Compliance Is Inaccurate And, At Times, Misconstrues The Purpose Of Citations In The Defense Motion. . . . . . . . . . . . . 25 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ii

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TABLE OF AUTHORITIES

Page

FEDERAL CASES

Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Alderman v. United States, 394 U.S. 165 (1969).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Berger v. United States, 295 U.S. 78 (1935).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Coolidge v. New Hampshire, 403 U.S. 443 (1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Davis v. United States, 131 S. Ct. 2419 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Frank v. Delaware, 438 U.S. 154 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Gates v. Illinois, 462 U.S. 213 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

In re Grand Jury Subpoena (T-112), 597 F.3d 189 (4th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Hamling v. United States, 418 U.S. 87 (1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iii

Case 3:10-cr-00475-KI Document 496 Filed 02/27/14 Page 5 of 35 Page ID#: 8762
Islamic Shura Council of S. Cal. v. FBI, 779 F. Supp. 2d 1114 (C.D. Cal. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1981).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Armstrong, 517 U.S. 456 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
United States v. Davis, 244 F.3d 666 (8th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Giordano, 416 U.S. 505 (1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
United States v. Hernandez-Meza, 720 F.3d 760 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 15
United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Petri, 731 F.3d 833 (9th Cir.2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Wicker, 848 F.2d 1059 (10th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Wilkerson, 208 F.3d 794 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
iv

Case 3:10-cr-00475-KI Document 496 Filed 02/27/14 Page 6 of 35 Page ID#: 8763
Wong Sun v. United States, 371 U.S. 471 (1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATE CASES
Mathis v. State, 112 N.M. 744, 819 P.2d 1302 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
State v. Fuentes, No. 88422-6, 2014 WL 465563 (Wash. Feb. 6, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . 12 FEDERAL STATUTES
18 U.S.C. § 3504. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 50 U.S.C. § 1806(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15 50 U.S.C. § 1806(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 50 U.S.C. § 1881a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
v

Case 3:10-cr-00475-KI Document 496 Filed 02/27/14 Page 7 of 35 Page ID#: 8764
Introduction The government’s response fails to appreciate the seriousness and breadth of the issues raised
by its violation of the pretrial notice statute. On the first page of its response, the government asserts that this Court’s original decision on the defense FISA motion was based on a “review of the relevant material.” Resp. 1 n.1. But that’s not accurate. The government’s supplemental notice effectively admits that the Court should have received before trial the FISA Amendment Act (FAA) evidence that still has not been produced to the Court. The incomplete pretrial notice resulted in incomplete production to the Court of the material relevant to ruling on the pretrial motions to suppress. Throughout its response, the government evades the issues of great magnitude raised by its conduct by attempting to redefine the scope of yet-to-be-filed motions, while at the same time seeking to avoid providing the non-classified and classified material necessary for the defense to assess the scope and bases for substantive motions. The government asks the Court to deny discovery based on vague, conclusory, and contradictory statements unsupported by any factual rebuttal of the powerful prima facie case that the government intentionally withheld from the Court and the defense the use of FAA-derived evidence. This Court correctly bifurcated the post-trial motions – discovery first, then substantive motions – so the litigants would have a common basis in fact for the important issues the Court must now resolve. The Court should reject the government’s crimped view of its failure to comply with the law, follow the outline of discovery issues in the defense memorandum – much of which is not disputed – and order the requested discovery.
PAGE 1 REPLY TO GOVERNMENT'S RESPONSE TO MOTION FOR FULL DISCOVERY REGARDING THE FACTS AND CIRCUMSTANCES UNDERLYING SURVEILLANCE

Case 3:10-cr-00475-KI Document 496 Filed 02/27/14 Page 8 of 35 Page ID#: 8765

A. In Order For The Defense To Present To The Court The Grounds For Remedial Action, And For The Court To Formulate Its Ruling, The Substantive Motions Need To Be Based On Discovery Of The Underlying Non-Classified And Classified Material Related To The Government’s Failure To File The Required Pretrial Notice.

In order to formulate the scope and bases for defense substantive motions for sanctions,

suppression, and new trial related to the lack of pretrial notice, the defense moved, among other

things, for disclosure of the following:

• Material documenting the government’s failure to provide pretrial notice of surveillance pursuant to 50 U.S.C. § 1881a, including, but not limited to, all communications manifesting any policy of non-disclosure and all communications underlying the decision to provide no notice and the decision to provide the supplemental notice. This material should at least answer the following questions:

•

Who had knowledge that § 1881a surveillance was implicated in this

case and when was such knowledge gained;

•

Who was involved in any decision not to provide pretrial notice of

§ 1881a surveillance and when was such a decision made;

•

What justification, if any, was relied upon in any decision not to

provide pretrial notice of § 1881a surveillance and what led to the

filing of the supplemental notice;

•

What, if any, notice was this Court given about § 1881a surveillance

relative to Mohamed (or other persons relevant to this case) prior to

trial.

In telling the Court that no discovery should be provided addressing any of these questions, the

government relies on vague, conclusory, and contradictory statements, unsupported by any affidavits

or declarations, that are inconsistent with reported statements to the press apparently from

individuals within the Department of Justice (DOJ). The Court should reject these attempts to avoid

accountability for a serious violation of the statutory notice requirement, the Rule 16 obligation to

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provide documents “material to preparing the defense,” and the constitutional Brady obligation to provide material favorable to the defense.
1. The Government’s Vague Claims Regarding The Failure To Provide Pretrial FAA Notice Are Conclusory, Contradictory, And Inconsistent With Reported Statements.
The core of the government’s claim regarding its failure to provide statutorily required notice is that “the Department” had never thought of warrantless FAA surveillance under Title VII leading to Title I and Title III surveillance: “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 derived from prior collection under Title VII.” Resp. at 7 (emphasis added).1 The government’s claim that it was unaware that the “fruit of the poisonous tree” doctrine applied to warrantless Title VII surveillance strains credulity. See United States v. Giordano, 416 U.S. 505, 533 (1974) (suppressing later electronic surveillance derived from earlier illegal wiretapping); Wong Sun v. United States, 371 U.S. 471, 488 (1963) (requiring suppression of evidence “come at by the exploitation” of a primary illegality); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (insulation of the government’s use of knowledge gained from an unlawful search would reduce the Fourth Amendment to a mere “form of words.”). But in this specific case, the defense placed the government on notice of this precise issue, both by citing to § 1881a and by asserting concern that earlier warrantless surveillance led to the FISA surveillance. CR 489 at 45-46.
1 Curiously, the government injects a new label of “the Department” at this stage of the brief, instead of “the government,” as was used in most of the brief and throughout this case. The Court should reject any attempt to artificially separate government agencies, especially given that they all work in tandem on national security issues and, in fact, are all part of the definition of “intelligence community” under FISA. 50 U.S.C. § 1885(7).
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Case 3:10-cr-00475-KI Document 496 Filed 02/27/14 Page 10 of 35 Page ID#: 8767
The government’s artful drafting regarding the Title VII surveillance avoids giving the Court and the defense (and the public) the true facts of the case. After stating that “the Department” had not considered the question of derivative use of Title VII surveillance, and deriding reference to a “secret policy” on such surveillance, the government asserts that the prosecutors “acted in accordance with the Department’s then-current standard practice” that only Title I and III notice need be given. Resp. at 8. Is the government asserting that there is a meaningful difference between a non-public “standard practice” and a “secret policy”? Does this mean the prosecutors were aware of the Title VII surveillance but made an intentional decision not to provide notice under the “standard practice”? Or did the NSA or other intelligence agency fail to provide Title VII information to prosecutors in accordance with the agency’s internal policy and practice? And how does the government not have pretrial notice that Title I and III surveillance “could also be considered to be derived from prior collection under Title VII” when the defense FISA motion explicitly referenced warrantless surveillance leading to FISA warrants? Even if the government did not independently consider the derivative use of FAA surveillance to generate FISA warrants, the defense explicitly put the question into the case.
The government’s claim of a “standard practice” is inconsistent with its claim that the question being “not considered.” A standard practice cannot be formulated without considering the question at issue. The government provides no response to the public reports that contradict its denial it ever “considered” whether the fruit of the poisonous tree doctrine applies to Title VII. Media reports assert that there was indeed a governmental policy of non-disclosure regarding FAA surveillance that led to FISA warrants. CR 489 at 9-10. Whether the policy of non-disclosure
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extended to the Court is not explicitly addressed.2 The prima facie case that the media reports are true comes from both the statements attributed to “several Obama administration officials familiar with the deliberations” and the chronology of public events that led to the post-trial notice.
The government appears to deny that the post-trial notice resulted from the fallout after Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138 (2013), affirmatively asserting that the “case has no bearing here.” Resp. at 8 n.4. But in discussing Clapper, the government states that its “previous and current understanding” is that the statute requires notice of the intent “to use or disclose information that was derived from Title VII collection as well as information that was obtained from Title VII collection.” Id. This statement contradicts the assertion that the fruit of the poisonous tree doctrine and Title VII were not “considered” (Resp. at 7) and the claim that the prosecution acted “in accordance with the Department’s then-current standard practice” (Resp. at 8).
The government’s confusing, contradictory, and inconsistent positions demonstrate why discovery and review of the actual facts is appropriate. There are non-classified and classified materials that answer the questions that discovery should answer. If there is a claim of privilege or classification for some material, procedures are available for the Court to access the material and allow its production to the defense under appropriate protective orders or under the safeguards set
2 Because the government’s response to the pretrial FISA motion was heavily redacted, the defense had no way of knowing if the Title VII issue was addressed in ex parte and in camera filings. The government’s response to the post-trial discovery motion appears to concede for the first time that the government withheld the FAA notice from the Court as well as the defense. Resp. at 3-4, 15-18. Before trial, in the unclassified context, the government asserted that, other than the nonFISA computer search, “the defense is aware of all the court-authorized search and surveillance that occurred in this case,” then added, “if the question is information about warrantless searches or surveillance, again, they have everything.” CR 58 at 63-64. The requested discovery should disclose whether the Court received similar assurances in the classified context.
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out in the Classified Information Procedures Act. Just as the Supreme Court has long rejected reliance on “conclusory” statements, even with an affidavit, to support probable cause determinations,3 the Court should insist on the underlying facts in the form of documents demonstrating who knew what when. CR 489 at 13 (“The Court should not accept selective or summary accounts of the underlying facts: the primary sources and the inferences to be drawn from them should be subject to full adversary proceedings, whether or not the proceedings are sealed.”). Rather than accepting conclusory assertions, the Court should rely on sworn affidavits and primary source documents providing complete and detailed accounts of the circumstances surrounding the statutory and constitutional violations. To the extent material is controverted, the Court should resolve factual disputes with testimony subject to cross-examination and full discovery of the relevant underlying information.
2. The Government’s Injection Of Prosecutorial Misconduct And Bad Faith As The Relevant Standards For Discovery Is Inconsistent With The Defense Motion And Puts The Cart Before The Horse.
The government seeks to bootstrap its discovery response by claiming that the discovery motion asserts “prosecutorial misconduct” and, therefore, the Court should apply the restrictive discovery standard for selective prosecution claims based on the equal protection clause. Resp. 9 n.5. The discovery motion never used the term “prosecutorial misconduct.” Instead, the motion pointed out the critical importance of knowing who did what when and why in order to determine the potential bases for substantive motions. CR 489 at 10-16. This litigation implicates the
3 See Gates v. Illinois, 462 U.S. 213, 239 (1983) (“a mere conclusory statement” without sufficient underlying facts for the judge to make an independent determination is insufficient to establish probable cause) (citing Nathanson v. United States, 290 U.S. 41 (1933)).
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fundamental rule of law regarding the disclosure of governmental conduct and its evaluation by the independent judiciary through adversary proceedings. As President Obama stated,
Given the unique power of the state, it is not enough for leaders to say: Trust us, we won’t abuse the data we collect. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power. The White House, Remarks by the President on Review of Signals Intelligence, Jan. 17, 2014 (emphasis added).4 Our liberties cannot be safeguarded if the independent judiciary – the only effective check on executive power in the context of the individual – depends on conclusory claims of good intentions to foreclose the disclosure of information necessary to assert individual rights. First, the government is putting the cart before the horse: the defense asserts the sequence of events and the reported facts are troubling, but requests discovery “in order to allow the arguments to be based on facts rather than speculation.” CR 489 at 1. Once the facts are known, the defense can formulate its arguments on the substantive motions, including what inferences should be drawn from the evidence. The government’s attempt to conflate the discovery motion and the substantive issues should be rejected. First discovery of facts, then motions based on the evidence produced. Second, the government’s reliance on selective prosecution law in United States v. Armstrong, 517 U.S. 456 (1996), is misplaced because that case deals with prosecutorial discretion, not a prosecutorial obligation. In Armstrong, the defense asserted that the prosecution was racially motivated and that the defendant should receive discovery regarding charging practices in support of a claim of selective prosecution. The Court relied strictly on cases involving the wide berth given
4 Available at http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-presidentreview-signals-intelligence
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to prosecutorial decisions regarding charging and disposition, requiring a showing of “clear evidence” that an improper ground for the prosecutorial decision existed. In contrast, this case involves a statutory (and constitutional) duty of the prosecution to both the Court and the defense. There is no discretion at issue: the statute is mandatory, and the government concedes the Title VII surveillance triggered the mandatory notice provision. Unlike Armstrong, no separation of powers requires deference to the executive branch. To the contrary, the separation of powers interests require judicial action to address the executive branch’s failure to follow the legislative directive, which impaired the judicial prerogatives in deciding the pretrial motion based on the full facts. While Armstrong is irrelevant, the Court should be guided by the well-developed precedent in the Ninth Circuit requiring a full inquiry where the government fails to abide by its discovery obligations, whether those obligations have their roots in statute, the Constitution, or – as in this case – both. CR 489 at 12-14.
3. The Court Should Order Broad Discovery To Provide The Answers To Predicate Questions Necessary To The Formulation Of The Motions The Court Must Eventually Decide Based On Facts, Not Conclusory And Unsupported Assertions.
The government claims that, because there is no remedy other than a motion to suppress, no discovery should be ordered. Resp. 9-15. The government conflates two distinct harms in failing to recognize that the Court needs full information to decide independently the interrelated issues arising from the violation of the notice statute and those arising from the unlawful use of warrantless FAA electronic surveillance.
The government relies on Davis v. United States, 131 S.Ct. 2419 (2011), to claim suppression is a “harsh sanction.” Resp. at 10. But context matters. The police in Davis violated no statutory rules precedent to a motion to suppress. And the police conduct in Davis, at the time it occurred,
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was lawful under governing Supreme Court authority. Only in the context of a change in the Supreme Court’s view did the search become unlawful. Therefore, application of the exclusionary rule would be a “harsh sanction” that should not be applied.
In contrast, the government in this case violated the notice statute, thereby preventing the Court from making a knowing and fully informed ruling on the pretrial suppression motions. The same obligation applied before and after the trial.5 As the government noted, the Fourth Circuit recognized that, apart from the lawfulness of the electronic surveillance, the violation of the notice statute would itself generate a potential remedy of suppression of evidence. See In re Grand Jury Subpoena (T-112), 597 F.3d 189, 201 (4th Cir. 2010) (“Rather, the proper remedy [for failure to comply with notice provision] is exclusion under Title III or FISA, a remedy which is triggered when the government seeks to introduce evidence into a covered proceeding.”). The government’s attempt to distinguish T-112 illustrates exactly why discovery must precede the substantive motions: the government disclaims “deliberately and advertently” flouting the notice requirement, while at the same time asserting that the government acted consistently with “then-standard practice.” The government also claims it “did not deny the existence” of FISA surveillance, despite the
5 Because the government seeks delay in ruling on discovery based on its continued failure to provide documents to this Court, the defense moved separately for immediately production to the Court of the relevant documents. CR 493. For the reasons set out in the memorandum in support of the motion for discovery and in this brief, the defense should receive those documents as part of the discovery order.
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government’s failure to provide the Court with FAA information explicitly sought in the defense FISA discovery and suppression motions.6 Discovery is the only way for the Court to know the reliable facts from which to make determinations regarding the levels of negligence, recklessness, knowledge, intention, and purpose that would guide the formulation of consequences for the statutory violation.
Not only does the government ignore the Court’s supervisory power to remedy statutory and constitutional violations (CR 489 at 11-15), the government’s response provides further support for dismissal as one of the options available to the Court. In United States v. Chapman, 524 F.3d 1073, 1084-88 (9th Cir. 2008), the court upheld an order dismissing the indictment for failure to comply with discovery obligations under the supervisory powers previously briefed by the defense. Finding that the withholding of material was not intentional, the court held that “flagrant misbehavior” sufficient for dismissal as a remedy can “embrace reckless disregard for the prosecution’s constitutional obligations.” Id. at 1085. In Chapman, as here, the government repeatedly assured the Court that the government understood and was in full compliance with discovery obligations, permitting a finding of “‘flagrant’ prosecutorial misconduct even if the documents themselves were not intentionally withheld from the defense.” Id. If the Department never “considered” the fruit of the poisonous tree doctrine, such a failure should be considered at least “reckless disregard” for the notice obligation.
6 In failing to disclose the surveillance, the government violated both 50 U.S.C. § 1806(c), which requires notice regardless of request, and the separate statute requiring that the government confirm or deny surveillance under 18 U.S.C. § 3504, which is triggered by a request for disclosure.
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A factor the Chapman court also considered was the government’s “lack of contrition on appeal” and attempts “to minimize the extent of the prosecutorial misconduct.” Id. at 1088. The government’s response minimizes the significance of its violation of the statute and Constitution. The response fails to even attempt to provide any accountability by any individual for the failure to comply with the law, asking the Court to accept representations by trial attorneys, with no apparent first-hand knowledge of the events involving the Solicitor General, and no sworn statement of their own knowledge, that derivative use of FAA surveillance to obtain warrants was never “considered,” even though the lawyers acted pursuant to the “then-standard practice.” A standard practice is simply irreconcilable with never considering the question. The Court should order full discovery to allow informed litigation regarding the consequences for the violation of the defendant’s statutory and constitutional rights.
In addition to the Court’s inherent supervisory power, the Court also has authority to formulate a remedy under Rule 16(d)(2) of the Federal Rules of Criminal Procedure. As previously briefed, the failure to provide notice violated not only constitutional discovery obligations, but also Rule 16 because the defendant’s statements were at issue and, under Rule 16(a)(1)(E)(i), the documents should have been provided as documents or things that “are material to preparing the defense.” CR 489 at 12-14. As in United States v. Hernandez-Meza, 720 F.3d 760, 768-69 (9th Cir. 2013), discovery is appropriate to aid the Court in deciding how to address a party’s violation of a discovery rule, a question that in many ways parallels the exercise of supervisory power. See also United States v. Davis, 244 F.3d 666, 671 (8th Cir. 2001) (upholding exclusion of evidence as a sanction for the “obvious discovery violation” of failing to comply with the discovery deadline); United States v. Wicker, 848 F.2d 1059, 1061-62 (10th Cir. 1988) (government expert excluded
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where report was not forwarded due to negligence and the prosecutor’s failure to follow-up on a request for the report); United States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975) (new trial ordered for discovery violation); Mathis v. State, 112 N.M. 744, 819 P.2d 1302, 1305 (1991) (upholding dismissal where prosecutor’s affidavit failed to establish that it acted in good faith in failing to provide timely discovery).7
The Court should reject the government’s argument that a post-trial suppression hearing constitutes the sole available remedy for the statutory and constitutional violations. Resp. at 9-15. The plain language of the statute permitting a post-trial suppression motion says nothing about restricting the Court’s discretion to formulate a remedy depending on the facts surrounding the statutory and constitutional violation. 50 U.S.C. § 1806(e) (“Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.”). Nothing in that sentence purports to limit the Court’s authority under its inherent supervisory power, Rule 16(d)(2), or the Constitution to formulate remedies up to and including dismissal of the indictment. The government’s construction would lead to the absurd result that the government could deliberately and for tactical advantage misrepresent its compliance with statutory and constitutional obligations with no meaningful consequences (especially given that most federal criminal cases result in guilty pleas, which the
7 See also State v. Fuentes, No. 88422-6, 2014 WL 465563 (Wash. Feb. 6, 2014) (en banc) (finding the state bears the burden of establishing lack of prejudice beyond a reasonable doubt when an officer intruded post-trial on attorney-client conversations, even though the prosecutor immediately disclosed the intrusion to both the defense and the court, and remanding for discovery regarding prejudice, rejecting as insufficient the “representations as to the prosecutor’s knowledge of the content of the eavesdropped conversation.”).
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government can then assert waived any rights to complain about the violation).8 Such a construction would also undermine the statute’s purpose, which was part of the FISA legislation’s effort to rein in governmental extra-legal abuses.9 Even if there were a textual basis for the government’s position – which there is not – the lack of a clear statement of intent to foreclose remedies would defeat the government’s position.10
4. The Court Should Presume From The Statutory Violation That The Government Acted Knowingly And Deliberately, Which Is Not Rebutted By The Briefing Of Trial Lawyers Who Provide No Information Under Oath, Under Penalty Of Perjury, Based On Actual Knowledge.
Ironically, the government invokes a presumption of regularity even while admitting the statutory violation. Resp. at 9 n.5. Under the applicable case law, such a presumption applies to discretionary decisions within the executive branch’s exclusive authority, such as the decision to investigate, to prosecute, to plea bargain, and to charge. United States v. Wilkerson, 208 F.3d 794, 799-800 (9th Cir. 2000). There is no discretion to which the Court can defer in the context of a mandatory notice statute. The government does not dispute that the statute applied and that it was mandatory. Further, the government cites no case applying a presumption of regularity where the government violated a statute. Under these circumstances, and in light of the existing record, the
8 See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) ( “[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.”).
9 “When interpreting a statute, words and phrases must not be read in isolation, but with an eye toward the ‘purpose and context of the statute.’” United States v. Petri, 731 F.3d 833, 839 (9th Cir.2013) (quoting Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)).
10 See Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012) (statute must contain a particularly clear statement to be construed to repeal the historic remedy of the writ of habeas corpus).
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presumption should be that the government acted knowingly and unlawfully and for a bad purpose in the absence of strong rebuttal, based in affirmatively established facts. Such a presumption from the law violation should be subject to testing by both discovery and by an adversary proceeding in which the government’s sworn facts can be challenged or conceded. Nothing approaching that level of governmental accountability has occurred to date.
Once the defendant establishes a prima facie case that the government violated a statute, the burden should shift to the government to rebut the presumption that the government acted wrongfully to the prejudice of the defendant. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1981) (once prima facie case of discrimination established, burden shifts to employer to establish absence of discrimination); Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (searches conducted outside the judicial process are per se unreasonable subject to the government bearing the burden of establishing a “jealously and carefully drawn” exception). Based on the notion that the law is definite and knowable, the common law presumption that every person knows the law has been applied to defendants in construing criminal statutes. See, e.g., United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558 (1971); Hamling v. United States, 418 U.S. 87, 119-124 (1974); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952). Such a presumption is especially appropriate when applied to the government, with its special responsibility to execute the laws. See Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”).
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The government’s response is utterly inadequate to establish any meaningful account of the statutory violation. Not only is the brief vague, conclusory, and contradictory; there is no sworn statement or declaration by a person with knowledge regarding what happened. The brief is signed by three trial attorneys, none of whom purports to have first-hand knowledge of why the Solicitor General said what he said, and why the Attorney General conducted a review of cases involving Title VII. And the trial attorneys provide no indication of who knew what when about the Title VII electronic surveillance in this case. The Court should reject the government’s invitation to proceed in secret, based on a presumption of regularity, without the type of actual inquiry into the underlying facts required by Ninth Circuit law. See Hernandez-Meza, 720 F.3d at 768-69 (remanding for a hearing on facts and reasons behind failure to comply with Rule 16 obligation to produce exhibit pretrial to the defense).
5. The Public Interest Favors Full Discovery Given The Government’s Extrajudicial Use Of Its Vague, Conclusory, And Inconsistent Brief.
The government has apparently used its brief on this motion extrajudicially to respond to a letter from United States Senators regarding representations by the Solicitor General about notice of FAA surveillance under 50 U.S.C. § 1806(c). Charlie Savage, Justice Dept. Informs Inmate of Pre-Arrest Surveillance, Feb. 25, 2014 (the acting chief of the National Security Division “pointed to a recent filing in the Oregon case in which the department explained the revised policy, telling Senator Martin Heinrich, Democrat of New Mexico, that he would distribute it to prosecutors across the country ‘so they know exactly what our position is on that issue.’”).11 The government’s use of
11 Letter from Senators Udall, Wyden & Heinrich to Solicitor General Verrilli (Nov. 20, 2013), available at https://www.documentcloud.org/documents/837839-112013-clapper-v-amnestyletter-1.html (attached as Exhibit A).
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its response emphasizes the need for transparency, discovery, and adversary proceedings regarding the belated notice in this case. Who knew what when? Those questions have never been answered. The brief, signed by three trial level attorneys, purports to provide the Court with the assurance that the Solicitor General’s representations dealt with a different issue. Resp. at 8 n.4. But without sworn statements of persons with knowledge, the Court (and the Senators and public) have no basis for accepting the vague, conclusory, and inconsistent statements in the brief.
Are there post hoc rationalizations formulated after the exposure of the undeclared policy of providing no notice when warrantless Title VII surveillance led to warranted Title I surveillance? Was the Solicitor General misled but – retrospectively – lawyers in Washington have formulated a correct line that the statement could be justified by a highly technical rejiggering of the rationale, even though it would require ignoring generations of law under the fruit of the poisonous tree doctrine? What was the policy and practice at the relevant times prior to the trial? In this particular case, who knew about the Title VII surveillance? What was done with that information? Who decided not to provide the notice? How did the government deal with the defense’s specific requests for warrantless surveillance that led to warranted surveillance? the requests for information regarding the origins of the investigation in the pretrial non-FISA motion to suppress? the testimony at trial from agents providing the background for the investigation?
The government’s response, which is now publicly offered as an explanation of “exactly what our position is,” provides nothing more than a whitewash. If the background in this case is important enough for the government to be holding it out to Senators and prosecutors nationwide as “exactly our position,” it is important enough to be subject to real discovery and a real adversary proceeding.
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B. The Government Has Not Denied The Derivative Use Of Material Gathered Through Collection Of Telephone And Internet Metadata, So The Court Should Order The Production Of Discovery Regarding Such Surveillance Or Sworn Statements Denying Its Existence. In asking the Court to deny discovery regarding section 215 mass collection of data, the
government has carefully avoided saying whether or not such electronic surveillance occurred in this case. Resp. at 24-25. An Executive Branch organization has just released a report finding that the telephone metadata collection program violates both the FISA statute and the constitutional protections afforded by the First and Fourth Amendments. Privacy and Civil Liberties Oversight Board (PCLOB), 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, at 10-11 (Jan. 23, 2014). If such surveillance occurred, the Court should order production of discovery necessary to the filing of a motion to suppress. Although the government asks that any section 215 discovery order be delayed until the filing of substantive motions, the material should already have been produced to the Court. CR 494 at 2. In any event, the products of such metadata collection regarding the defendant should be produced as Brady material, as asserted without rebuttal in the initial discovery motion. C. The Court Should Order Security-Cleared Defense Counsel To Participate In
Discovery And Full Adversarial Litigation Regarding The Notice And Electronic Surveillance. The government’s argument against the participation of informed security-cleared defense counsel suffers from two critical and interrelated shortcomings: first, the conflation of traditional FISA (Titles I and III) surveillance with that of the new programs under the FAA (Title VII); and
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second, the mischaracterization of defense arguments related to the importance of the adversarial function in our system of jurisprudence.
With respect to the first issue, the government rehashes the same argument it makes in essentially every case involving traditional FISA surveillance under Titles I and III: courts have almost unanimously denied defense requests for discovery and suppression in the FISA context so this Court should too. Compare CR 88 at 15-16 (pretrial FISA motion arguing that no court has ever disclosed FISA material) with Resp. at 17 & n.11 (post-trial FISA motion arguing that “[u]ntil recently, no court had ever ordered disclosure of FISA materials”).12 While that may be true, for the current litigation, there is little precedential value in those cases because of fundamental differences between traditional FISA and the FAA.
Traditional FISA review by a district court involves review of individualized probable cause in the context of a statute whose constitutionality has been upheld. The government relied on both of those factors in arguing that defense participation was unnecessary to this Court’s review of the Title I and III surveillance. CR 88 at 3, 16-18. However, while citing the same cases now, the government fails to note that neither circumstance is present here – due to the previous failures to provide criminal defendants notice of Title VII surveillance, no district or appellate court has ever ruled on the constitutionality of the FAA, and, rather than reviewing a single probable cause
12 The “until recently” qualification reflects that one month ago a district court granted disclosure of traditional Title I and III FISA material in United States v. Daoud, No. 12-cr-723, 2014 WL 321384 (N.D. Ill. Jan. 29, 2014) (unpublished) (finding no persuasive national security concerns where defense counsel held security clearances). The government is quick to point out that it has appealed that decision, and, furthermore, tells this Court in no uncertain terms that it will do the same here – without knowing the Court’s reasoning – in “the unlikely event” the Court rules against the government. Resp. at 24 n.19.
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determination, this Court is likely to be asked to approve programmatic surveillance as applied to the case at bar. Whatever merit may exist in the government’s argument about defense participation in traditional FISA review, it is wholly inapplicable to the FAA context.
The fundamental difference between traditional FISA and the FAA was highlighted by former FISC Judge James Robertson in testimony before the Privacy and Civil Liberties Oversight Board (PCLOB). Judge Robertson characterized the “ex parte FISA process” as judicial “approval” rather than “adjudication” given the lack of an adversarial party, with secret proceedings working fine in the context of traditional Title I and III surveillance. PCLOB Hearing at 35 (July 9, 2013).13 However, Judge Robertson rejected the government’s failure to distinguish between individual probable cause determinations and challenges to programmatic intrusions on all Americans:
First, the FISA process is ex parte, which means it’s one sided, and that’s not a good thing. And secondly, under the FISA Amendment Act, the FISA Court now approves programmatic surveillance, and that I submit and will discuss for a few minutes, I do not consider to be a judicial function. Id. at 34. According to Judge Robertson, the programmatic reviews are fundamentally different from probable cause determinations:: [T]hat’s not the bailiwick of judges. Judges don’t make policy. They review policy determinations for compliance with statutory law but they do so in the context once again of adversary process.
13 Available at: http://www.pclob.gov/All%20Documents/July%209,%202013%20Work shop%20Transcript.pdf
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Id. at 36. Because “approval” of FAA programs is so different than the “approval” of individual warrants under Titles I and III, Judge Robertson concluded that “this process needs an adversary.” Id. at 37.
There was, of course, no informed advocate in place to challenge the government’s interpretation and application of the FAA before the FISC. The government now seeks to prevent an informed advocate from challenging the FAA before any court. This argument upends the very foundation of our system of jurisprudence and gives unprecedented – and unchecked – power to the executive branch. While the government correctly cites precedent that approves of the ex parte process with respect to reviewing individual warrants and probable cause under Titles I and III of FISA, it provides no precedent to support the expansion of that secret process into the review of programmatic surveillance under the FAA. In fact, a key rationale for approving the ex parte process for traditional FISA warrants is that the materials are “straightforward and readily understood” and the issues are “uncontroversial” and “not complex.” CR 88 at 17 (case law quotations cited by the government to support exclusion of defense from review of Title I and III surveillance materials). In contrast, the issues presented by the FAA are novel, complex, previously unreviewed by district or appellate courts, and, as the recent media attention has shown, highly controversial. Informed advocacy is necessary as a basic requisite of our rule of law.
The government’s remaining argument against informed advocacy requires little response as it simply mischaracterizes the defense position. The government states that: “Defendant’s argument for additional discovery . . . rests on the premise that Alderman v. United States, 394 U.S. 165 (1969), constitutionally mandates disclosure to the defense. This premise is faulty.” Resp. at
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23; see also Resp. at 21 (same “mandates disclosure” phrase). That premise is indeed faulty, which is why the defense actually argued the following:
The defense has repeatedly cited Alderman v. United States, for the proposition that counsel should have the opportunity to review classified material because of the importance of the defense perspective in determining the significance of surveillance activity. CR 489 at 25. While the government spends significant time refuting that Alderman “constitutionally mandates disclosure,” it fails to address the point that the Supreme Court (and the defense) actually make: that the defense is in a unique position to assess the significance of surveillance activity and can “substantially reduce” the incidence of error through the adversary process. This is hardly a new-found or controversial proposition, but rather a basic recognition of the role of criminal defense counsel in an adversarial system. Moreover, as the above discussion of the fundamental change from traditional Title I and III surveillance to Title VII surveillance makes clear, the role of an advocate opposing the government has become even more critical in light of the shift from individual warrants to programmatic surveillance. An informed advocate will provide this Court with an alternate view that the government simply cannot provide in an ex parte setting, which, in turn, will result in a better presentation of the issues and will instill more public confidence in the ultimate outcome. “It’s quite common, in fact it’s the norm to read one side’s brief or hear one side’s argument and think, hmm, that sounds, right, until we read the other side.” PCLOB Hearing at 3 (comment of Judge Robertson). The government also attempts to avoid informed opposition advocacy by referring to the numerous FISC decisions that have highlighted government violations as either irrelevant or as proof
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that the government can be trusted to make the appropriate disclosures to this Court. Resp. at 20 & n.14. First, the surveillance violations are all relevant because they show, among other things, that the government has failed to follow its own rules in implementing FISA’s provisions. Second, the defense does not know if the government was completely candid with this Court and disclosed these violations during the pretrial FISA litigation, but in other national security cases, the government has apparently been less than candid. See, e.g., David Kravets, How Obama Officials Cried ‘Terrorism’ to Cover Up a Paperwork Error, Wired, Feb. 11, 2014 (discussing Ibrahim v. Dep’t of Homeland Sec., No. C 06-545 (N.D. Cal. Jan. 14, 20140), where government invoked national security, insisted on ex parte processes, and litigated for years before finally admitting that the plaintiff had been put on the No-Fly list due to a clerical error by an FBI agent). Third, just because the government acts in good faith in other of its dealings with courts does not dispel the need for informed advocacy; nobody suggests that the role of a criminal defense attorney should be abolished by entrusting the prosecutor to tell the court both sides of the story. D. The Failure To Make The Required Statutory Disclosure Implicates Other Aspects Of
Discovery And Trial Requiring Full Production Of Material Previously Withheld. The government’s failure to provide notice of FAA surveillance – and likely other surveillance pursuant to FISA or other authority – raises the question of whether the Court was provided with full and accurate information when making all discretionary pretrial rulings. The government’s answer, that “the Supplemental Notification did not signal that any new evidence exists in this case” (Resp. at 26), misses the point. First, to the extent that additional surveillance of Mohamed was done, that fact – in and of itself – is new evidence. Specifically, in an entrapment case, where the government’s conduct is an
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explicit factor under the predisposition analysis and the crux of the inducement prong, additional
surveillance of a target prior to instigating a sting operation is highly relevant.14 Moreover, in this
particular case, questions related to exactly when the government began surveilling Mohamed
pervaded pretrial and trial litigation: the genesis of the investigation was critical to the non-FISA
motion to suppress as well as the trial argument that the government had been watching Mohamed
for a significant amount of time and he never made any efforts to engage in the crime charged.
Further, government agents specifically testified at trial that Mohamed was not being investigated
as a juvenile, a claim that could potentially have been challenged based on earlier, undisclosed
surveillance. See, e.g., CR 456 at 407 (Agent Trousas testified that “we didn’t have an open
investigation at that time [during the Samir Khan email exchanges] for Mr. Mohamud. So we were
not – we weren’t trying to figure out who Mr. Mohamud was.”). For those reasons, the record
establishes that “new evidence” does exist in this case.”15
14 Government conduct would also be relevant to dismissal motions based on outrageous government conduct and potential arguments, instructions, or evidence regarding government overreaching. The admitted failure to provide the required statutory notice adds even more weight to these arguments.
15 What the government may intend to impart is that the Title VII evidence is not “new” in the sense that the evidence – whether emails, texts, phone calls, or other material – has already been made public, linked to FISA only through Title I and III, and used by the government in its prosecution. See Resp. at 26 (Title VII evidence “is a subset of the same evidence that has already been addressed throughout this case”). This makes the government’s refusal to disclose what evidence is at issue particularly troubling because there are no legitimate national security concerns where the material is already public: the fact of FISA surveillance is public; the contents and form of the surveillance products is public (and has been used to the government’s advantage); and the fact that the government intercepts such products under the FAA is public knowledge. See AlHaramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1197-98 (9th Cir. 2007) (affirming this Court’s decision that the state secrets privilege does not bar litigation of a subject matter upon which the government has “lifted the veil of secrecy”). Even more troubling, however, is that the government’s refusal to identify the evidence at issue signals the intent to expand the ex parte
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In addition, the government apparently did not provide this Court with the FAA information prior to trial, which means that the initial FISA suppression motion was decided without all the relevant facts. As noted above, this was also the case with the non-FISA motion to suppress. FAA surveillance, as well as other surveillance programs recently made public, would likely have generated material responsive to numerous pretrial discovery requests. Given the government’s seeming acknowledgment that it withheld material from this Court, the ex parte process (whether pursuant to FISA or CIPA) apparently resulted in less than complete information being presented to the Court.16 Disclosure of previously withheld material regarding surveillance should now be ordered to allow the defense 1) to assess the impact of that information on previously litigated issues; 2) to inform the Court of potential gaps suggesting more material has been withheld; and 3) to formulate arguments regarding remedy.17 Whatever benefit-of-the-doubt this Court gave the government’s representation before trial in terms of completeness of material and good faith presentation should now be tempered by the reality that the government failed to fulfill its statutory and constitutional obligations.
process into new areas, such as the post-trial litigation of the harm from the statutory violation. Resp. at 10.
16 The government’s claim that the defense relied on ex parte submissions is incorrect: both documents were served on the government, one on the public docket, the other sealed but provided to opposing counsel. Compare Resp. at 26 n.21 with CR 489 at 47.
17 The government does not even try to suggest how the Court can consider without discovery the issues regarding the reckless or intentional omission of the material fact of FAA surveillance from FISA applications under Frank v. Delaware, 438 U.S. 154 (1978). CR 489 at 34, 41, 45-46.
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E. The Government’s Account Of Its History Of Compliance Is Inaccurate And, At Times, Misconstrues The Purpose Of Citations In The Defense Motion. The government’s response regarding assertions and arguments during the course of this
litigation needs to be contextualized because the government misapprehends the purpose and significance of the reference in the memorandum to discovery issues.
The defense discussed the presentation and testimony about exhibit one at the pretrial hearing on the motion to suppress (CR 489 at 49) for several reasons. First, the government presented the court with sworn testimony and argument about the exhibit that asserted that it was something that it was not. See CR 489 at 49; CR 132 at 212, CR 131 at 22-24. The government’s later explanation of the reason for its submission of an incomplete exhibit is irrelevant. Resp. at 28-29. The relevant fact is, rather, that this mistake supports the defense arguments that no presumption of regularity should attach to the government’s actions or assertions in this case. The second relevant aspect of the exhibit issue is the manner in which it illustrates the importance of adversarial proceedings. The problem with the exhibit was brought to light only because the defense was provided access to the exhibit and because defense counsel were able to play the role assigned to them under the Sixth Amendment.
The government’s discussion of the “late” production of the FBI emails is similarly off the mark. Resp. at 29. Indeed, it supports Mr. Mohamud’s arguments for three reasons. First, the government seeks to justify the timing of its disclosure of the emails on the ground that they “are not investigative reports or documents generated during the course of the criminal investigation.” Id. That is precisely one of the points the defense made in its memorandum: the government viewed its discovery obligation far too narrowly. CR 489 at 46-48. The defense repeatedly expressed
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concern that the prosecutors were not searching for, or being provided, information in the possession of government agents or agencies outside of the narrowly defined investigation. See, e.g., CR 42 at 10-11; CR 78 at 2-3; CR 109 at 72-74. The defense repeatedly sought remedial action for discovery violations. See, e.g., CR 378; CR 414. The defense believed during the pretrial and trial phases of the case that relevant and helpful information about Mohamed existed in a number of places in the government. Id.; see also CR 234 at 28-29. The government’s assertion in its response should be taken by the Court as an admission that such evidence did exist and that the government did not seek it out when it was responding to discovery motions.
The second weakness in the government’s argument is its failure to recognize that the Court ordered disclosure of the emails, not because they were required to be produced under the Jencks Act, but because they were discoverable under the Brady doctrine. CR 451 at 80-81. The defense continues to have no confidence that the government has adequately searched outside of the “case file” for Brady material, especially information from the intelligence agencies that would contradict basic pieces of the government’s evidence such as those related to Amro al-Ali. Nor do we believe that the Court should have such confidence.
The information contained in the government’s footnote 23 provides additional evidence of the need for a broad discovery order at this time. Resp. at 29. In that footnote, the government seeks to justify its actions by arguing that the emails in question “were not investigative material of the type that would ever be stored in a case file.” Again, that argument demonstrates how the record in this case dovetails with the statements cited from the FISC and other decisions about the manner in which the government has failed repeatedly to understand and fulfill its obligations to search for and produce exculpatory material.
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Finally, the government’s assertions about the emails underscore the defense concerns about the potential lack of, or incomplete, communication between government agents and prosecutors. The emails in question, which have been held to be Brady material by this Court (CR 451 at 80), deal with a central aspect of the entrapment defense and were contemporaneously written and read by FBI agents involved in the investigation and prosecution of this case. Thus, the agents should be presumed to have been aware of their contents. The Court should also presume the agents knew about the breadth of their obligation to produce exculpatory material, both from the trial prosecutors and from their experience as federal agents. The fact that the emails were apparently not considered for disclosure until a pretrial Jencks review raises a number of questions. Were the agents advised of the need to search beyond the “case file” for exculpatory material? If so, what directions were they given? If so, did they search? If so, did they disclose these emails to the prosecutor? If not, why not? Whatever the answers, these circumstances strongly support a broad discovery order resolving the same types of questions regarding the Title VII surveillance.
In its response to arguments based on the difference between some of the pretrial and trial testimony regarding the origin of the investigation, the government seeks to write them off as “creative use of deductive reasoning” and points out that the defense knew all along that the government was using emails dated prior to August 31, 2009. Resp. at 30. This argument misses the point. To be sure, the government had provided emails between Mohamed and Samir Khan dated from February 2009 and thereafter. The questions at issue, however, were when, how, and why the government came into possession of those emails. They could have been the product of the government’s search of Mohamed’s computer or internet service providers after the government
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asserted that its investigation began in September 2009. Or they could have been the product of earlier investigation including warrantless electronic surveillance.
At the hearing on the motion to suppress, the government’s invocation of the state secret (or FISA) privilege to cut off questioning left the defense with the impression that the emails were obtained by the government after September 1, 2009. See CR 489 at 49-50. At trial, however, the government witnesses provided some of the information the defense had earlier sought without invoking any privilege. See CR 489 at 49-50. These facts provide further support for broad discovery at this time and for inclusion of security-cleared counsel in any review of discoverable material.
First, whatever interests are served by the state secrets privilege, it cannot be used to mislead a defendant and the Court or to cut off legitimate inquiry into the legality of the government’s actions and suppressibility of evidence. See Islamic Shura Council of S. Cal. v. FBI, 779 F. Supp. 2d 1114, 1117 (C.D. Cal. 2011) (the government “provided false and misleading information” to the court regarding the existence of documents, then asserted the “untenable” position that misleading the court was permissible “to avoid compromising national security”). It may be that the answers to the questions the defense sought to ask at the suppression hearing relate to the new FAA notice. Regardless, discovery is needed so that any such issues can be properly formulated.
Second, the stark difference between the answers at the hearing and the trial underscore the defense’s concerns about the manner in which the government used the declassification process to its advantage and to the defendant’s detriment. CR 234 at 28, CR 432 at 17-19. Full development of the testimony at trial would have been most useful to the defense in presenting the portion of the entrapment defense related to the government’s over-reaching.
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Conclusion For the foregoing reasons and those stated in the memorandum in support of the motion for
full discovery regarding surveillance, as well as those stated in the motion and memorandum to compel immediate production to the court of classified documents, the Court should order the requested discovery.
Dated this 27th day of February, 2014. /s/ Stephen R. Sady Stephen R. Sady Chief Deputy Federal Public Defender /s/ Steven T. Wax Steven T. Wax Federal Public Defender /s/ Lisa Hay Lisa Hay Assistant Federal Public Defender
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 Case 3:10-cr-00475-KI Document 489 Filed 01/13/14 Page 1 of 66 Page ID#: 8636
Stephen R. Sady Chief Deputy Federal Public Defender steve_sady@fd.org Steven T. Wax Federal Public Defender steve_wax@fd.org Lisa Hay Assistant Federal Public Defender lisa_hay@fd.org 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 503-326-2123 Telephone 503-326-5524 Facsimile
Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. MOHAMED OSMAN MOHAMUD,
Defendant.

Case No. 3:10-cr-00475-KI
MEMORANDUM IN SUPPORT OF MOTION FOR FULL DISCOVERY REGARDING THE FACTS AND CIRCUMSTANCES UNDERLYING SURVEILLANCE

Case 3:10-cr-00475-KI Document 489 Filed 01/13/14 Page 2 of 66 Page ID#: 8637

TABLE OF CONTENTS

Page

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Because The Government Violated A Mandatory Notice Obligation To The Court And To The Defense, The Starting Point For This Court’s Discovery Order Should Be Full Disclosure Of The Circumstances Behind The Violation Of The Requirement Of Pretrial Notice Under 50 U.S.C. § 1806(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. The Mandatory Language Of § 1806(c) Required That The Government Provide The Notice Of The Use Of Material Derived From FAA Surveillance Prior To Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. The Representations To The Supreme Court That Led To The Late Notice Establish That The Government’s Suppression Of Discoverable Information Was Knowing And Intentional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3. The Full Circumstances Behind The Government’s Violation Of The Notice Statute Are Relevant To Forthcoming Defense Motions Regarding Remedy, Suppression, and New Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. Because The Belated Notice Is Part Of A Cascade Of Disclosures Relevant To This Case, The Court’s Discovery Order Should Require Disclosure Of All Surveillance Activities Including But Not Limited To FAA Electronic Surveillance Under 50 U.S.C. § 1881a, Collection Of Internet And Telephone Metadata And Any Subsequent Accessing Of That Material, And Application Of Other Surveillance Programs Revealed Since The Trial Of This Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1. The Details Of The FAA Electronic Surveillance Should Be Produced Because Motions Based On The FAA’s Unconstitutionality And The Scope Of Authorized Surveillance Require Full Factual Development. . . . . . . . . . . . . . 16

2. The Court Should Order The Production Of All Material Relating To The Government’s Seizure And Accessing Of Internet And Telephone Metadata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

3. The Court Should Order The Government to Produce Material Relevant To Application Of Secret Surveillance Programs To This Case.. . . . . . . . . . . . . . . . 23

i

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C. The Government’s Violation Of The Obligation To “Confirm Or Deny” Surveillance Activity Under 18 U.S.C. § 3504 Exacerbates The Government’s Failure To Disclose In This Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
D. The Court’s Discovery Order Should Direct Full Disclosure To Security-Cleared Counsel And Full Defense Participation In Adversary Proceedings Regarding The Lawfulness Of The Government’s Surveillance Activities Because The Balance Of Interests Has Tilted Sharply Toward Transparency And Inclusion Of Both Parties In All Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. The Complexity And The Need For Accurate Factual Determinations Strongly Support Full Defense Access To Surveillance Material And Advocacy Regarding Its Significance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2. The Balance Of The Factors This Court Considers In Determining Defense Participation Requires Full Defense Access And Advocacy. . . . . . . . . . . . . . . . . 30
i. The Need For Secrecy Has Been Reduced By The Snowden Disclosures.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ii. The Benefits Of Adversarial Proceedings Are Now Recognized By The President’s Review Group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
iii. The Complexity Of The Legal Issues Warrants Defense Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
iv. The Voluminous Factual Materials Favor Defense Participation. . . . . . . 35
v. Congress Anticipated That Evidence Of Misrepresentation And Other Over-Reaching Would Favor Disclosure And Defense Participation. . . . 36
E. The History Of Specific Defense Requests For Discovery Of All Forms Of Surveillance Provides Compelling Support For A Broad Discovery Order. . . . . . . . . . . 43
1. Defense Discovery Requests Focused On The Exact Types Of Surveillance That Are Now Known To Have Been Utilized By The Government. . . . . . . . . . 44
2. The Government’s Assurances Regarding Discovery Inadequately Responded To The Discovery Requirements In This Case. . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3. The Record Reflects That Government Actors Failed To Adequately Communicate Discoverable Material To Local Prosecutors. . . . . . . . . . . . . . . . . 49
ii

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4. Throughout The Pretrial Phase Of The Case, The Government Obscured The Extent Of Its Knowledge About Mohamed Through Investigative Activity That Occurred Prior To September 2009.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
F. The Court Should Order Full Discovery Because The Origins Of This Investigation Permeated The Court’s Pretrial And Trial Rulings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
G. The Court Should Grant The Broadest Discovery Because Litigation Regarding The Lawfulness Of Governmental Surveillance Activity Accomplishes Important Societal Purposes Of Transparency And Deterrence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
H. The Language Of The Court’s Discovery Order Should Explicitly Require Broad Production And Incorporate Inclusive Language Regarding The Scope Of “Material,” The Obligation To Inquire Regarding All Primary Sources, And The Use Of The Pretrial Brady Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
iii

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TABLE OF AUTHORITIES

Page

ACLU v. Clapper, No. 13 Civ. 3994, 2013 WL 6819708 (S.D.N.Y. Dec. 27, 2013). . . . . . . . . . . . . . . . . . 34

ACLU Found. of S. Cal. v. Barr, 952 F.2d 457 (D.C. Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Alabama v. Bozeman, 533 U.S. 146 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Alderman v.United States, 394 U.S.165 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 25, 26, 30, 36

In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (FISC 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 46

Anderson v. Yungkau, 329 U.S. 482 (1947).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

In re Application of the FBI for an Order Requiring the Production of Tangible Things from [redacted], No. B.R. 09-06 (FISC June 22, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

In re Application of the FBI for an Order Requiring the Production of Tangible Things from [redacted], No. B.R. 09-13, 2009 WL 9150896 (FISC Sept. 25, 2009).. . . . . . . . . . . . . . . . . . . 19, 40

Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 8, 16, 30, 33, 46

Franks v. Delaware, 438 U.S. 154 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 41, 45, 46

Gelbard v. United States, 408 U.S. 41 (1972).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Goldberg v. Kelly, 397 U.S. 254 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

In re Grand Jury Subpoena (T-112), 597 F.3d 189 (4th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iv

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Islamic Shura Council of S. Cal. v. FBI, 779 F. Supp. 2d 1114 (C.D. Cal. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Jencks v.United States, 353 U.S.657 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Klayman v. Obama, No. 13-0851, 2013 WL 6571596 (D.D.C. Dec. 16, 2013).. . . . . . . . . . . . . . . . . 20, 21, 34
Mathews v. Eldridge, 424 U.S. 319 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Murray v. United States, 487 U.S. 533 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 34
Nardone v. United States, 308 U.S. 338 (1939).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
In re Production of Tangible Things from [redacted], No. B.R. 08-13, 2009 WL 9150913 (FISC Mar. 2, 2009) (declassified Sept. 10, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 40
Roviaro v. United States, 353 U.S. 53 (1957).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
In re Sealed Case, 310 F.3d 717 (FISC Rev. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 46
United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
United States v. Apple, 915 F.2d 899 (4th Cir.1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
United States v. Barton, 995 F.2d 931 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 39
United States v. Blanco, 392 F.3d 382 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
v

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United States v. Coplon, 185 F.2d 629 (2d Cir. 1950).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
United States v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Grandstaff, 813 F.2d 1353 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
United States v. Hamide, 914 F.2d 1147 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
United States v. Hernandez-Meza, 720 F.3d 760 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 55
United States v. Ippolito, 774 F.2d 1482 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
United States v. Jacobs, 986 F.2d 1231 (8th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
United States v. Jones, 132 S. Ct. 945 (2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Nerber, 222 F.3d 597 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Nixon, 418 U.S. 683 (1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
United States v. Olsen, 737 F.3d 625 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Ott, 827 F.2d 473 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
vi

Case 3:10-cr-00475-KI Document 489 Filed 01/13/14 Page 8 of 66 Page ID#: 8643 United States v. Reynolds,
345 U.S. 1 (1953).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 United States v. Simpson,
927 F.2d 1088 (9th Cir.1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 United States v. Stanert,
762 F.2d 775 (9th Cir. 1985), amended by 769 F.2d 1410 (9th Cir. 1985). . . . . . . . 37, 41 United States v. W.R. Grace,
526 F.3d 499 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Wong Sun v. United States,
371 U.S. 471 (1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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Introduction On November 19, 2013, the government filed a supplemental notice admitting that it
introduced at trial and otherwise used the products of surveillance conducted pursuant to the 2008 FISA Amendments Act (FAA). The notice purports to be pursuant to 50 U.S.C.§ 1806(c), but that statute specifically requires that notice be provided “prior to trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence” (emphasis added). Even though the defense specifically requested pretrial discovery regarding surveillance that led to the Foreign Intelligence Surveillance Act (FISA) warrants, the government did not timely disclose information to the defense or – apparently – to the Court. The notice raises a wide range of serious issues regarding suppression of unlawfully or unconstitutionally obtained evidence, dismissal or other sanctions based on the government’s intentional violation of governing rules, and, at least, a new trial based on new evidence of governmental over-reaching. The Court should now order discovery of previously withheld information so a full and open analysis of the government’s actions can occur.
As a result of the government’s belated notice that it used evidence derived from surveillance under the FAA at trial, at least four areas of legal challenge arise:
• Whether the FAA is unconstitutional on its face and as applied. Before the notice was provided, Mohamed did not know he was an “aggrieved party” with standing to challenge the constitutionality of the FAA, because he did not know that this statute was used to gather information about him. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1154-55 (2013) (plaintiff did not have standing to challenge the FAA’s constitutionality, but a person charged in a criminal case who received notice could do so). Mohamed intends to raise constitutional challenges to the statute. Discovery on precisely how the statute has been applied is required in advance of that pleading in order to allow the arguments to be based on facts rather than speculation.
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• Whether the government complied with statutory requirements of the FAA. Even if constitutional, surveillance under the FAA may have been unlawful – and the fruits subject to suppression – if the government failed to follow the strict procedural requirements of the statute. Discovery is required concerning the specific procedures (e.g., “targeting” and “minimization”) in place at the time of the surveillance of Mohamed, the government’s compliance with those procedures, and other factual issues, including access to and analysis of the information captured under the FAA. Any assurances of local prosecutors that “all procedures were followed” should not be considered sufficient in this case, given the recent disclosures of National Security Agency (NSA) wrong-doing, including recently declassified Foreign Intelligence Surveillance Court (FISC) opinions and statements from the Executive Branch that some of the procedures in effect during the course of surveillance on Mohamed were either not followed or unconstitutional.
• Whether the withheld surveillance evidence tainted pretrial motions or defenses at trial, and what consequences should flow from the intentional withholding of such evidence. The new notice that the government engaged in surveillance of Mohamed under the FAA requires reconsideration of earlier pretrial rulings and decisions. The defense repeatedly argued that the government likely possessed statements by and facts about Mohamed that would be exculpatory or material to pretrial motions and trial issues. Now that public disclosures of government surveillance programs, along with the notice in this case, conclusively establish that the government possessed more information than it produced, all of these pretrial and trial rulings, and the effect of the withheld material on defense decisions, must be revisited. Discovery is necessary first, however, to establish what information the government possessed, how the information was obtained, and how that information was accessed and used.
• Whether evidence of government over-reaching, misrepresentations, or misconduct was relevant to pretrial or trial issues, and what consequences should flow from the unavailability of that evidence to the defense until after trial. The government notice discloses several apparently intentional rule violations by the government, including violation of the notice requirements under 50 U.S.C. § 1806(c) and 18 U.S.C. § 3504. The existence of other misrepresentations or overreaching is strongly supported by the record. Discovery is required into these areas in order to determine the full scope of the conduct and its effect on previous proceedings and the appropriate consequences.
As set out in detail below, broad discovery on these topics in advance of the defense motions
to suppress, for a new trial, and for remedial action is essential in order to provide the Court with the
full factual context in which these legal issues arise. FISA provides for in camera, ex parte
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consideration of materials relevant to these motions if certain national security conditions exist. 50 U.S.C. § 1806(f). The statute also provides, however, that the Court may disclose to the defense these needed discovery materials under appropriate procedures and protective orders if the issues are complex or other factors exist. Id. Given that certain of the defense counsel have security clearances, and that the balance of other factors now strongly favors defense involvement in assessing and analyzing these complex issues, the Court should not resort to ex parte proceedings to review and assess the discovery. A. Because The Government Violated A Mandatory Notice Obligation To The
Court And To The Defense, The Starting Point For This Court’s Discovery Order Should Be Full Disclosure Of The Circumstances Behind The Violation Of The Requirement Of Pretrial Notice Under 50 U.S.C. § 1806(c). The government violated the statutory requirement that pretrial notice be provided of FAA surveillance to both the Court and the defense. The Court should conclude that, based on the apparent provenance of the government’s belated disclosure, the government’s failure to comply with the FAA notice requirement resulted from knowing and intentional conduct by government actors. The deliberate violation of the notice statute, which also implicates Brady and due process, requires discovery for litigation regarding the remedy for the statutory violation, the grounds for suppression of derivative, and potentially other, uses of FAA surveillance, and the disclosure of potential evidence of governmental over-reaching that may be introduced at a new trial.
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1. The Mandatory Language Of § 1806(c) Required That The Government Provide The Notice Of The Use Of Material Derived From FAA Surveillance Prior To Trial.
The notice statute is mandatory in requiring that notice be provided to “the aggrieved person
and the court” prior to trial where evidence derived from FAA surveillance is used in any way:
(c) Notification by United States Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.
50 U.S.C. § 1806(c) (emphasis added). The defendant in this case is an “aggrieved person” within
the plain meaning of the statute. 50 U.S.C. § 1801(k) (“‘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.”). The “electronic surveillance” under “this subchapter” refers to
subchapter I of the FISA, which is entitled “Electronic Surveillance” and codified between 50 U.S.C.
§§ 1801 and 1812. The statute broadly defines electronic surveillance in 50 U.S.C. § 1801(f).
The FAA explicitly incorporates the § 1806(c) mandatory notice requirement to cover
surveillance activity under Title VII, which is codified at 50 U.S.C. §§ 1881a to 1881g. The cross-
reference on notice is explicit and mandatory: “Information acquired from an acquisition conducted
under section 1881a of this title shall be deemed to be information acquired from an electronic
surveillance pursuant to subchapter I of this chapter for purposes of section 1806 of this title.” 50
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U.S.C. § 1881e(a). Congress’s use of “shall” leaves no room for the government to fail to give notice: “The word ‘shall’ is ordinarily ‘the language of command.’” Alabama v. Bozeman, 533 U.S. 146, 153 (2001) (quoting Anderson v. Yungkau, 329 U.S. 482, 485 (1947)).
Despite the mandatory notice statute, the initial notice in this case provided no reference to FAA surveillance: “pursuant to Title 50, United States Code, Sections 1806(c) and 1825(d), the United States 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 (‘FISA’), as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829.” CR 4. The new notice explicitly concedes that the products of FAA surveillance – 50 U.S.C. § 1881a – were introduced at trial and otherwise used:
This supplemental notice is being filed as a result of the government’s determination that information obtained or derived from Title I FISA collection may, in particular cases, also be “derived from” prior Title VII FISA collection. Based upon that determination and a recent review of the proceedings in this case, the United States hereby provides notice to this Court and the defense, 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 the above-captioned matter information derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. § 1881a. CR 486. Where evidence is “derived” from surveillance that was “not lawfully authorized or conducted,” the Court must suppress the evidence. 50 U.S.C. § 1806(g). Derivative evidence includes statements and tangible evidence that are the “fruit of the poisonous tree.” Murray v. United States, 487 U.S. 533, 536-37 (1988) (“the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or
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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’”) (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)) (citing Wong Sun v. United States, 371 U.S. 471, 484-85 (1963)). The Supreme Court found in Murray that law enforcement decisions could be derived from – or fruits of – the primary illegality, where “the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry,” 487 U.S. at 542, or, here, for example, if the decision not to intervene and coopt Mohamed before the sting began, or the decision to engage in a sting operation, was prompted by the results of illegal surveillance.
2. The Representations To The Supreme Court That Led To The Late Notice Establish That The Government’s Suppression Of Discoverable Information Was Knowing And Intentional.
Based on public information that preceded the supplemental notice in this case, government actors made a conscious decision to conceal the fact that evidence presented at trial was derived from FAA surveillance. The Solicitor General, in response to finding out that he had misrepresented to the Supreme Court the government’s notice practice, put into motion the events leading to the revelation that national security lawyers and other government operatives routinely and deliberately failed to provide notice of FAA surveillance to criminal defendants. This revelation appears to have led directly to the post-trial notice in this case.
On the day the FAA was enacted in 2008, the American Civil Liberties Union (ACLU) filed suit on behalf of individuals who believed they were subjected to FAA surveillance. They challenged the statute’s broadening of electronic surveillance authority under FAA to eliminate much of the specificity and other protections traditionally required by the Fourth Amendment:
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• excision of the requirement that the government describe to the FISC each specific target and identify each facility at which its surveillance would be directed, thus permitting surveillance on a programmatic, rather than individualized, basis (18 U.S.C. § 1881a(g));
• removal of the requirement that a target be a “foreign power or an agent of a foreign power” (id.); and
• diminution of the FISA court’s authority to insist upon, and elimination of its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the government still must use court-approved general minimization procedures) (18 U.S.C. § 1881a(e)).
Before reaching these constitutional questions, the initial FAA litigation focused on the question of
standing: could the plaintiffs establish that they were subjected to secret surveillance when the
government refused to disclose whether they were being watched? After the Second Circuit found
the plaintiffs had standing, the Supreme Court granted certiorari.
In the Supreme Court briefing, Solicitor General Donald Verrilli argued that, contrary to the
ACLU’s argument that no one could prove standing because the surveillance was secret, criminal
defendants received notice of FAA surveillance and would therefore have standing to challenge the
surveillance program:
If the government intends to use or disclose any information obtained or derived from its acquisition of a person’s communications under Section 1881a in judicial or administrative proceedings against that person, it must provide advance notice of its intent to the tribunal and the person, whether or not the person was targeted for surveillance under Section 1881a. 50 U.S.C. 1881e(a); see 50 U.S.C. 1801(k), 1806(c). That person may then challenge the use of that information in district court by challenging the lawfulness of the Section 1881a acquisition. 50 U.S.C. 1806(e) and (f), 1881e(a).
Brief for Petitioners at 8, Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) (No. 11-1025)
(emphasis added). During the oral argument in Clapper on October 29, 2012, the government
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continued to represent that it provided notice to criminal defendants as required by statute. Transcript of Oral Argument at 4-5, Clapper, 133 S. Ct. 1138 (2013) (No. 11-1025).
On February 26, 2013, the Supreme Court reversed the Second Circuit’s finding of standing by a five to four vote. Writing for the majority, Justice Alito relied on the provision of notice “if the Government intends to use or disclose information obtained or derived from a § 1881a acquisition in judicial or administrative proceedings.” Clapper, 133 S. Ct. at 1154. The Court rejected the argument that the FAA would be insulated from constitutional challenge because, if an individual who had been surveilled were prosecuted, “the Government would be required to make a disclosure.” Id.
After the Supreme Court ruled, it became apparent that the Solicitor General’s representations to the Court were wrong: prosecutors routinely and deliberately failed to provide notice in cases where the derivatives of FAA surveillance were to be used at trial or other proceedings. The exposure of the government’s secret policy that kept the defense and the courts in the dark apparently stemmed from the statement by Senator Dianne Feinstein, the Chair of the Senate’s intelligence oversight committee, on December 27, 2012, that the FAA had been used to thwart terrorist attacks in Chicago and Ft. Lauderdale in claiming. 158 Cong. Rec. S8393 (daily ed. Dec. 27, 2012). Subsequent inquiry determined that the lawyers in the named cases had received no notice regarding FAA-derived evidence, establishing that either Senator Feinstein was mistaken or the Solicitor General had misinformed the Supreme Court. Adam Liptak, A Secret Surveillance Program Proves Challengeable in Theory Only, N.Y. Times, July 15, 2013.1
1 Senator Feinstein later asserted her statements were not intended to convey FAA involvement in those cases. Motion for Discovery in Support of Defendant’s Previously Filed
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Solicitor General Verrilli reportedly made his representations about notice because national security lawyers had reviewed and approved the Solicitor General’s brief prior to filing. Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. Times, Oct. 16, 2013. The Solicitor General later discovered that, with no legal basis, the notice requirement had been construed in such a restrictive manner that no notice was ever provided: “The move [to begin disclosing FAA surveillance] comes after an internal Justice Department debate in which Solicitor General Donald B. Verrilli Jr. argued that there was no legal basis for a previous practice of not disclosing links to such surveillance, several Obama administration officials familiar with the deliberations said.” Id. The Solicitor General apparently determined there was not “any persuasive legal basis for failing to clearly notify defendants that they faced evidence linked to the 2008 warrantless surveillance law.” Id.
On October 25, 2013, the government for the first time disclosed the intention to use evidence derived from FAA electronic surveillance in the prosecution of Jamshid Muhtorov in Colorado. Devlin Barrett, U.S. Tells Suspect for First Time It Used NSA Surveillance Program in Criminal Case, Wall St. J., Oct. 25, 2013. Shortly thereafter, Attorney General Eric Holder stated that the Department of Justice was reviewing cases to determine whether they should be “providing defendants with information that they should have” in order for them to decide what steps to take. Sari Horwitz, Justice is reviewing criminal cases that used surveillance evidence gathered under FISA, Wash. Post, Nov. 15, 2013. Several days later, the government filed the notice in the present
Motion for Notice of FISA Amendments Act Evidence at Exhibit B, United States v. Daoud, No. 12-cr-00723 (Sept. 18, 2013), ECF No. 70-2 at 3-4 (letter from Office of Senate Legal Counsel).
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case, which according to reports resulted from a review of deliberate decisions by national security prosecutors to withhold the information:
But it has since emerged that it was not the practice of National Security Division prosecutors to tell defendants when warrantless wiretapping had led to evidence in a case, something Mr. Verrilli had not known at the time of the Supreme Court case, even though his briefs and arguments assuring the justices otherwise had been vetted by the division. After the discrepancy came to light, Mr. Verrilli fought an internal battle to bring department policy in line with what he had told the court, ultimately prevailing. Charlie Savage, Warrantless Surveillance Continues to Cause Fallout, N.Y. Times, Nov. 20, 2013. Thus, the public record strongly demonstrates that the failure to provide the statutorily required pretrial notice in the present case resulted from a secret and deliberate policy that led to the routine practice of violating the statute. 3. The Full Circumstances Behind The Government’s Violation Of The Notice
Statute Are Relevant To Forthcoming Defense Motions Regarding Remedy, Suppression, and New Trial. The contrast between the initial FISA notice and the post-trial FAA notice, in the context of the reporting on the government’s change in notice practices, demonstrates that an intentional violation of the FISA notice statute occurred in this case. This Court should order complete discovery regarding the full circumstances surrounding the withholding of the FAA notice because such information is necessary to calibrate the remedy for the statutory violation, to provide the bases for suppression of evidence, and to disclose any Brady material that should be available for a new trial as evidence of governmental over-reaching in support of the entrapment defense. While the statutory violation provides the Court with remedial authority, the government’s deliberate suppression of notice also violates due process because the notice requirement codified by § 1806(c) embodies the constitutional requirement of notice, given the Brady obligation, Rule 16, and the
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balance of procedural due process interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976); Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970).2
Although press reports provide the background, the Court needs primary source information regarding the policies and practices that led to the violation of the notice requirement in this case. The Court should find that, if the notice violation was intentional, the case must be dismissed because Congress enacted the notice statute in the context of Supreme Court decisions that required the government to choose in national security cases between disclosure and dismissal.3 To the extent dismissal is not mandatory, the Court should require discovery in support of the remedial factors identified by the Ninth Circuit. Under its inherent supervisory powers, this Court has the authority to fashion consequences up to and including dismissal: “(1) to implement a remedy for the violation of a recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and (3) to deter future illegal
2 Under 50 U.S.C. §1881e, the government is required to give notice of use of §§ 1881a and 1881b. Section 1881e does not require notice if the government has utilized § 1881c. For all of the reasons discussed in this pleading, a defendant in a criminal case is entitled to notice of the intended use of information derived from surveillance conducted pursuant to § 1881c. The defense motion for discovery includes discovery of all material derived from all surveillance including §§ 1881a, b and c.
3 See Alderman v.United States, 394 U.S.165, 184 (1969) (dismiss or disclose surveillance reports); Jencks v.United States, 353 U.S.657, 672 (1957) (dismiss or disclose witness statements); Roviaro v. United States, 353 U.S. 53, 61 & 65 n.15 (1957) (dismiss or disclose informant); see United States v. Coplon, 185 F.2d 629, 638 (2d Cir. 1950) (Hand, J.) (“the prosecution must decide whether the public prejudice of allowing the crime to go unpunished was greater than the disclosure of such ‘state secrets’ as might be relevant to the defence.”).
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conduct.” United States v. Matta-Ballesteros, 71 F.3d 754, 763 (9th Cir. 1995) (citing United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir.1991)).4 Each of these factors is implicated by this case. • Full discovery is needed to formulate a remedy for the violation of the notice
requirement. Where there is a right to pretrial notice, there must be a remedy for the violation of that right. For the defense to effectively advocate for a certain remedy, and for the Court to make an informed exercise of its authority, the facts should be fully developed. United States v. Hernandez-Meza, 720 F.3d 760, 768-69 (9th Cir. 2013). Facts favorable or helpful to the defense in the context of suppression motions constitute Brady material that must be produced pretrial. United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000); United States v. Barton, 995 F.2d 931, 934-35 (9th Cir. 1993) (rationale of Brady applies to suppression motions). In developing the facts, the Court should order complete and unrestricted access to the materials that reflect the formulation and implementation of the policies and practices that led to the statutory and constitutional violation. The questions of who knew what when, as well as the level of knowledge and intention, should be fully explored by the Court with the assistance of the defense. In Hernandez-Meza, the Ninth Circuit vacated a conviction because the government failed to disclose an immigration document used in an illegal reentry prosecution. The court emphasized that the Rule 16(a)(1)(E)(i) obligation to provide documents or things that “are material to preparing the defense” is categorical and unconditional including even material that would discourage the
4 The Court’s inherent powers are not limited to these three areas. United States v. W.R. Grace, 526 F.3d 499, 511 n.9 (9th Cir. 2008) (en banc).
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presentation of a certain line of defense. Hernandez-Meza, 720 F.3d at 768. “Lack of knowledge or even a showing of due diligence won’t excuse non-compliance.” Id.
Most importantly for discovery purposes, the court remanded for a determination of whether the government’s action was deliberate. Because the record suggested “that the government may have deliberately withheld” the naturalization document from the defendant, the court remanded the case for the district court to determine if the government acted willfully, which should warrant preclusion of evidence from retrial and perhaps dismissal of the indictment:
We infer this from the record as a whole and particularly from the fact that the prosecution knew the date of Hernandez–Meza’s mother’s naturalization and its relevance to the case, yet didn’t produce the certificate even after defense counsel pointed out the lacuna. However, this is a factual finding that must be made by a district court in the first instance. If the government willfully withheld the certificate, then it should be precluded from introducing the document at any retrial of Hernandez–Meza, or perhaps even suffer a dismissal of the indictment with prejudice. See Kojayan, 8 F.3d at 1325 (remanding for a decision as to whether indictment should be dismissed with or without prejudice). Hernandez-Meza, 720 F.3d at 769 (emphasis added) (internal citation omitted). Under the holding and reasoning of Hernandez-Meza, this Court should allow full discovery and open litigation regarding all documents underlying the government’s withholding of the required notice and the content of the material that is the subject of the supplemental notice. The Court should not accept selective or summary accounts of the underlying facts: the primary sources and the inferences to be drawn from them should be subject to full adversary proceedings, whether or not the proceedings are sealed. To the extent the government would seek to claim such information is privileged, the Court should reject such contentions. First, the public interest is very much served by disclosure of executive efforts to thwart congressional requirements of notice. Second, the material can hardly be treated as confidential when, according to the media,
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“several Obama administration officials familiar with the deliberations” have already made selective disclosures to the press on the subject of the institutional failure to comply with notice requirements. Third, the policies of privilege generally do apply to prevent exposure of law violations. Lastly, because once the decision is made to prosecute the government “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). • The Court needs to determine the extent to which the products of unlawful activity
were improperly before the jury. Discovery regarding materials reflecting the hiding of surveillance and its eventual exposure will help to determine the extent to which the derivatives of unlawful activity were before the jury. This is a three-step analysis. First, the government, by giving notice only after trial, admits that derivative evidence was not validly before the jury because, although derivative evidence was introduced, the government failed to give the required § 1806(c) notice. So evidence regarding the notice violation alone provides information relevant to the exercise of this Court’s supervisory power as well as to whether discovery violations occurred that should be addressed under Rule 16(d)(C) and (D). Second, the lawfulness of the underlying surveillance activity may be informed by information regarding efforts to keep it clandestine. Given the massive tools available in national security cases, the government’s efforts to keep this surveillance secret from the Court as well as the defense may reflect on the legality of the derivative evidence presented to the jury. Third, the facts that underlie the notice violation may provide or lead to evidence that is relevant at retrial regarding the government’s over-reaching and unreliability.
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• The Court needs the factual bases to deter unlawful conduct. The Chief Judge of the Ninth Circuit recently observed that the government’s withholding
of evidence – as here, notice of FAA surveillance – virtually never has meaningful consequences: “In the rare event that the suppressed evidence does surface, the consequences usually leave the prosecution no worse than had it complied with Brady from the outset.” United States v. Olsen, 737 F.3d 625, 630 (9th Cir. 2013) (Kozinski, C.J., dissenting from denial of rehearing en banc). As a result, “[t]here is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” Id. at 626. This Court should not accept assurances from the government without first obtaining the complete factual underpinnings of the notice violation. This is especially important, where the government may have provided materially incomplete or incorrect information to the Court. See Islamic Shura Council of S. Cal. v. FBI, 779 F. Supp. 2d 1114, 1117 (C.D. Cal. 2011) (the government “provided false and misleading information” to the court regarding the existence of documents, then asserted the “untenable” position that misleading the court was permissible “to avoid compromising national security”). The Court’s exercise of supervisory power includes a strong interest in deterring the withholding of information that should have been disclosed. In order to determine how to exercise its authority, the Court should order complete discovery not only to protect the interests of the accused, but to preserve “the public’s trust in our justice system” and prevent erosion of “the foundational premises of the rule of law.” Olsen, 737 F.3d at 632.
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B. Because The Belated Notice Is Part Of A Cascade Of Disclosures Relevant To This Case, The Court’s Discovery Order Should Require Disclosure Of All Surveillance Activities Including But Not Limited To FAA Electronic Surveillance Under 50 U.S.C. § 1881a, Collection Of Internet And Telephone Metadata And Any Subsequent Accessing Of That Material, And Application Of Other Surveillance Programs Revealed Since The Trial Of This Case. The government’s late notice in this case and the relevant disclosures about governmental
practices stemming from the Clapper situation arose at the same time as disclosures about the extent of government surveillance by former NSA contractor Edward Snowden. The Snowden disclosures provide additional support for the discovery that should be ordered regarding surveillance programs not previously disclosed to the defense and the products of those programs.
1. The Details Of The FAA Electronic Surveillance Should Be Produced Because Motions Based On The FAA’s Unconstitutionality And The Scope Of Authorized Surveillance Require Full Factual Development.
The government’s notice that it used the products of § 1881a surveillance at trial and in other ways is only the starting point for consideration of the appropriate remedy that can only be determined after it is fully understood how extensive the government’s surveillance was and its timing. There is no question that the defense will challenge the constitutionality of the FAA as part of the substantive motions following completion of discovery: the Court should find that the statute’s lack of judicial warrants, specificity of individuals and locations, and judicial supervision render it constitutionally invalid.
The present case involves the types of communications involving a statutory “United States person” – American citizen Mohamed – that have been subject to electronic surveillance: • Foreign with foreign communication where one party is a United States citizen (e.g.,
Mohamed’s email as a juvenile from London to others, some of whom were also overseas);
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• Foreign with domestic communication where one party is a United States citizen (e.g., Mohamed’s email from Beaverton, Oregon, with Amro al-Ali overseas);
• Domestic with domestic communication where at least one party is a United States citizen (e.g., Mohamed’s email from Beaverton, Oregon, with United States citizen Samir Khan in North Carolina).
The FBI appeared to have information on Mohamed prior to obtaining a FISA warrant specifically directed at him or opening a formal investigation on him. What the government had and how it was obtained must be disclosed in order for any meaningful analysis to occur. Full discovery regarding the targeting, scope, manner, authorizations, limitations, and mitigation of the intrusions (or lack thereof) are needed to effectively formulate the arguments regarding the legality and derivative use of the surveillance under the statute. The defense should have full access to the relevant facts to inform the legal arguments regarding the FAA’s constitutionality.
The discovery order should include all targeting and minimization procedures, including interpretive instructions, that were in effect at all times the government conducted surveillance of Mohamed. The Snowden disclosures include purported FAA targeting and minimization procedures under FISA and the FAA – 50 U.S.C. §§ 1801(h)(1) and 1881a (d) & (e). Glenn Greenwald & James Ball, The top secret rules that allow NSA to use US data without a warrant, The Guardian, June 20, 2013. Since the initial revelations, some of the disclosed rules have been declassified, others remain classified, and still others are likely classified but not publicly disclosed. See Press Release, DNI Declassifies Intelligence Community Documents Regarding Collection Under Section 702 of the Foreign Intelligence Surveillance Act (FISA) (Aug. 21, 2013). This Court’s order should require specification of which procedures were in effect on all dates that Mohamed was subject to surveillance because the Director of National Intelligence (DNI) has acknowledged that rules during
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that rough time frame violated the Fourth Amendment. In a letter from the Director’s office to Senator Wyden, the DNI included the admissions that • “on at least one occasion the Foreign Intelligence Surveillance Court held that some
collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment,” and • the agency believed “the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.” Letter from the Office of the DNI to Senator Ron Wyden, July 20, 2012.5 See also Charlie Savage, N.S.A. Said to Search Content of Messages To and From U.S., N.Y. Times, Aug. 8, 2013. The Court’s order should include not only the complete targeting and minimization procedures in effect at the relevant times, but also any interpretive directives, memoranda, letters, transcripts of instructions, and other writings that guided the implementation of the procedures. For example, the initial Snowden disclosure included a “transcript of a 2008 briefing on FAA from the NSA’s general counsel” that “sets out how much discretion NSA analysts possess when it comes to the specifics of targeting, and making decisions on who they believe is a non-US person.” Glenn Greenwald & James Ball, The top secret rules that allow NSA to use US data without a warrant, The Guardian, June 20, 2013. Further, because recent declassified FISC decisions have found that historical government conduct from the outset of the FAA was unlawful, the Court should order that the defense have access to all decisions, classified or not, that find problems with the conduct of surveillance under the procedures in effect from 2007 to 2010.
5 Available at http://www.wired.com/images_blogs/dangerroom/2012/07/2012-07-20-OLALtr-to-Senator-Wyden-ref-Declassification-Request.pdf.
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Aside from facial and as-applied challenges to the statute, full factual development and
access to the relevant protocols will enable the defense to present arguments regarding the second
half of the statutory suppression standard: whether the government acted within the scope of the
authorizations and orders. Even assuming the FAA is valid, suppression is warranted if the
“surveillance was not made in conformity with an order of authorization or approval.” 50 U.S.C.
§ 1806(e)(2) & (g). Recently declassified FISC opinions reveal that the relevant agencies have a
long and persistent history of violating the limitations in court orders. For example:
• the “NSA exceeded the scope of authorized acquisition continuously during the more than [redacted] years of acquisition” ([Case Name Redacted], PR/TT No. [docket redacted], at 3, (FISC [date redacted]) (declassified Nov. 18, 2013));
• “the NSA has on a daily basis, accessed the BR [business records] metadata for purposes of comparing thousands of non-RAS [reasonable articulable suspicion] approved telephone identifiers on its alert list against the BR metadata in order to identify any matches,” which was a violation of the earlier court order that was compounded by the government’s repeated inaccurate descriptions to the FISC (In re Production of Tangible Things from [redacted], No. BR 08-13, 2009 WL 9150913, at *2-8 (FISC Mar. 2, 2009) (declassified Sept. 10, 2013));
• “NSA’s placement of unminimized metadata [redacted] into databases accessible by outside agencies, which, as the government has acknowledged, violates not only the Court’s orders, but also NSA’s minimization and dissemination procedures set forth in [United States Signal Intelligence Directive] 18” (In re Application of the FBI for an Order Requiring the Production of Tangible Things from [redacted], No. BR 09-06, at 6-7 (FISC June 22, 2009) (order requiring government to report and explain instances of unauthorized sharing of metadata) (declassified Sep. 10, 2013));
• the court was “deeply troubled” by previous compliance incidents that occurred shortly after the completion of NSA’s “end to end review” of the processes for handling 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 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) (declassified on Sep. 10, 2013)).
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Without full discovery regarding all the surrounding factual and legal circumstances of the surveillance, the defense cannot effectively present to the Court the arguments for suppression based on lack of compliance with authorizations. Further, even if the motion were to be denied, the full discovery would be necessary for the defense and the Court to have the opportunity to review the products of the surveillance to determine the existence of material useful to the defense at trial. 50 U.S.C. § 1806(g) (“If the court determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.”) (emphasis added).
2. The Court Should Order The Production Of All Material Relating To The Government’s Seizure And Accessing Of Internet And Telephone Metadata.
Six months ago, the world learned the NSA was collecting massive amounts of Americans’ telephone information and Internet activity from former NSA contract employee Snowden. Glenn Greenwald, NSA collecting phone records of millions of Verizon customers daily, The Guardian, June 5, 2013; Glenn Greenwald & Ewen MacAskill, NSA Prism program taps in to user data of Apple, Google and others, The Guardian, June 6, 2013. Since that time, the government has acknowledged the program, and the legal debate regarding its lawfulness has begun. Part of the debate rests on the reality that, just as Global Positioning Systems can provide intimate details of an individual’s life, the same can occur with phone and Internet metadata. Compare United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”) with Klayman v. Obama, No. 13-0851, 2013 WL 6571596 (D.D.C. Dec. 16, 2013) (in the context of telephone metadata,
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“[r]ecords that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic – a vibrant and constantly updating picture of the person’s life.”). Based on the mass collection of metadata, the government apparently maps the social connections of American citizens. James Risen & Laura Poitras, N.S.A. Gathers Data on Social Connections of U.S. Citizens, N.Y. Times, Sept. 28, 2013.
The scope and complexity of the government’s metadata surveillance programs require discovery to unravel the role they played in the investigation and prosecution of Mohamed, the way these programs operate in practice, and their purported statutory bases. For instance, for at least seven years, the NSA has collected the phone records of virtually every call made or received within the United States, relying on authority purportedly conferred in 50 U.S.C. § 1861. Klayman v. Obama, No. 13-0851, 2013 WL 6571596, *3-4 (D.D.C. Dec. 16, 2013). The government’s collection of Internet metadata appears to be even more intrusive than traditional telephone metadata. See James Ball, NSA stores metadata of millions of web users for up to a year, secret files show, The Guardian, Sept. 30, 2013 (“Metadata provides a record of almost anything a user does online, from browsing history – such as map searches and websites visited – to account details, email activity, and even some account passwords.”). These widespread intrusions on digital privacy have been conducted, at least in part, under the anemic procedural provisions for pen registers and trap-andtrace devices in 50 U.S.C. § 1842.
The metadata programs directly affect this case in at least three ways that require notice and discovery as a matter of procedural due process and under Brady. First, the surveillance almost certainly involved the seizure of Mohamed’s telephone information and Internet activity during the relevant time. Mohamed had accounts with the relevant service providers and, in any event, the
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NSA was collecting and searching data as it traveled across cables linking service providers and/or their data storage centers. Ewen MacAskill, et al., GCHQ taps fibre-optic cables for secret access to world’s communications, The Guardian, June 21, 2013. The patterns revealed by the telephone and computer records are potential Brady material because the defense can use it to corroborate facts favorable to the theory of defense. The Court should order the government to disclose the bulk metadata relating to the telephone and Internet communications of the defendant, especially where the defense’s limited access to communications records established gaps in the government’s production of records before trial.
Second, if telephone records were collected as “tangible things” under 50 U.S.C. § 1861(a), or if Internet metadata was collected pursuant to 50 U.S.C. § 1842, discovery is needed to establish whether the taking of material regarding Mohamed violated the statutory targeting protocols or constitutional protections. At the time of the seizure, the government would have had to show “that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) . . . .” 50 U.S.C. § 1861(b)(2)(A). This is important because the government repeatedly asserted that, until well after the first face-to-face meeting, the agents were engaged in “threat assessment” regarding Mohamed. See, e.g., CR 440 at 505, 567; CR 443 at 804, 813; CR 444 at 899. To the extent metadata was accessed outside of § 1861, the targeting procedures or the lack thereof should be subject to disclosure. Discovery is needed to determine whether the telephone and Internet information was lawfully authorized and whether the surveillance lawfully conducted. Only with full discovery can violation of the targeting provisions be effectively brought to the Court’s attention.
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Third, given some of the numbers called and Internet sites visited, the government may well have accessed the metadata as it pertains to the defendant’s social connections. FISA includes significant restrictions on accessing the contents of records pertaining to American citizens in the statute’s minimization procedures. 50 U.S.C. § 1861(g). Because Mohamed is an “unconsenting United States person[]” (and was likely a minor during much of the surveillance), the discovery must include the minimization and dissemination procedures for Americans adopted pursuant to § 1861(g) as well as whether and how those procedures applied to the collection and use of Mohamed’s telephone and Internet metadata. The discovery in this area is especially important given the recent declassification of opinions in which the FISC criticized the intelligence agencies’ failure to follow statutory requirements and to adhere to limitations in court authorizations. The Court should order full disclosure of all the material related to any accessing and use of Mohamed’s telephone and Internet metadata and content.
3. The Court Should Order The Government to Produce Material Relevant To Application Of Secret Surveillance Programs To This Case.
The Snowden disclosures have established that the types, times, and intrusiveness of the surveillance are much greater than would otherwise have been known. As the new disclosures mount, a number of them correlate closely to situations in this case. The Court’s discovery order should include all material pertaining to secret surveillance programs to the extent they applied to Mohamed.
Installation Of Malware And Remote Activation Of Laptop Cameras: Last month, based on warrant application material filed by a Texas judge, the FBI’s ability to secretly activate a target’s laptop camera “without triggering the light that lets users know it is recording” has become public
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knowledge. Craig Timberg & Ellen Nakashima, FBI’s search for ‘Mo,’ suspect in bomb threats, highlights use of malware for surveillance, Wash. Post, Dec. 6, 2013; see also Jennifer Valentino-DeVries & Danny Yadron, FBI Taps Hacker Tactics to Spy on Suspects, Wall St. J., Aug 3, 2013. The defense provided the Court with substantial indications that the FBI accessed Mohamed’s personal laptop computer under circumstances indicating that malware had been installed, such as CIPAV (computer and internet protocol address verifier). CR 142 at 2-3; see Richard Lyon, Is FBI Contractor Planting Malware? Daily Kos, Aug. 5, 2013.6 In sealed pleadings, the defense presented compelling evidence that the FBI had visually spied on Mohamed while he was in the privacy of his home. Supplement to Suppression and Discovery Motions at 4-5. Given that these programs have been widely exposed, the balance of interests strongly favor disclosure to the defense in order for the Court to receive advocacy regarding the lawfulness and authority for such intrusions, which the Ninth Circuit has held are among the most extreme forms of privacy violations. See United States v. Nerber, 222 F.3d 597, 603 (9th Cir. 2000) (“Hidden video surveillance is one of the most intrusive investigative mechanisms available to law enforcement.”).
Surveillance Of Conversations By Individuals Playing Video Games: The Snowden disclosures have also exposed the practice of sending agents to record conversations within video games played by Americans and others online. Mark Mazzetti & Justin Elliott, Spies Infiltrate a Fantasy Realm of Online Games, N.Y. Times, Dec. 9, 2013. As reflected in the discovery and testimony, Mohamed played a number of video games such as Halo that have the capacity for conversations among groups of players. Any online statements by Mohamed that were surveilled
6 Available at http://www.dailykos.com/story/2013/08/05/1229082/-Is-FBI-ContractorPlanting-Malware#.
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by the government are required discovery as statements of the accused under Rule 16(a)(1)(B). Only by obtaining the primary source statements can the Court, with appropriate input from the defense, determine whether the material was lawfully accessed and used and, further, whether any statements disclosed are useful to the defense.
Surveillance To Determine Use Of Pornography: The Snowden disclosures revealed that the government surveilled the accessing of online pornography sites to compromise certain persons of interest. Glenn Greenwald, et al., Top-Secret Document Reveals NSA Spied On Porn Habits As Part Of Plan To Discredit ‘Radicalizers,’ Huffington Post, Dec. 2, 2013. Given his writings for Jihad Recollections while he was a minor, Mohamed may have been labeled as a radicalizer. The government should be required to disclose whether Mohamed’s computer use was surveilled to obtain potentially embarrassing information about the use of pornography. The material would assist in determining the legality of that type of accessing and use of surveillance authority and in establishing the existence of potential Brady evidence regarding governmental over-reaching. C. The Government’s Violation Of The Obligation To “Confirm Or Deny”
Surveillance Activity Under 18 U.S.C. § 3504 Exacerbates The Government’s Failure To Disclose In This Case. The defense has repeatedly cited Alderman v. United States, for the proposition that counsel should have the opportunity to review classified material because of the importance of the defense perspective in determining the significance of surveillance activity. 394 U.S. 165 (1969). Ironically, the procedural posture of Alderman is remarkably similar to what has now occurred in this case. In the consolidated cases in Alderman, both defendants were on appeal when they discovered that the government had wiretapped them. The Court had to determine what procedure should occur on the remand and, after discussing the importance of the Fourth Amendment and the requirement of
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standing, the Court remanded with the strong language about defense participation: “As 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.” Alderman, 394 U.S.
at 183-84.
The scope of defense review and cross-examination was left to the trial judge on remand:
Adversary proceedings will not magically eliminate all error, but they will substantially reduce its incidence by guarding against the possibility that the trial judge, through lack of time or unfamiliarity with the information contained in and suggested by the materials, will be unable to provide the scrutiny which the Fourth Amendment exclusionary rule demands. It may be that the prospect of disclosure will compel the Government to dismiss some prosecutions in deference to national security authorized party interests. But this is a choice the Government concededly faces with respect to material which it has obtained illegally and which it admits, or which a judge would find, is arguably relevant to the evidence offered against the defendant.
Alderman, 394 U.S. at 184. In response to Alderman, Congress included 18 U.S.C. § 3504 as part
of the Organized Crime Control Act of 1970. The statute requires that the government “affirm or
deny” in the event an aggrieved party claims unlawful surveillance:
Litigation concerning sources of evidence
(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States--
(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;
. . . .
(b) As used in this section “unlawful act” means any act the use of any electronic, mechanical, or other device (as defined in section 2510(5) of this title) in violation
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of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto. 18 U.S.C. § 3504. The legislative history establishes several things about the scope of the statute. First, by citing Wong Sun v. United States, 371 U.S. 471 (1963), Congress made clear that the “exploitation” language is coextensive with the fruit of the poisonous tree doctrine. 1970 U.S.C.C.A.N. at 4027 (“Section 3504(a) establishes procedures for the disposition of claims based upon allegations that evidence is the primary product of an unlawful act or has been derived from the ‘exploitation’ of an unlawful act.”). Second, “upon a charge by the defendant with standing to challenge the alleged unlawful conduct, the Government would be required to affirm or deny that an unlawful act involving electronic surveillance had in fact occurred.” Id. Prior to FISA, the Supreme Court, in holding that the unlawfulness of surveillance provided a defense to contempt charges, found that § 3504 and its legislative history established the duty to affirm or deny whenever an aggrieved party claims that evidence is inadmissible because it is derived from an illegal interception. Gelbard v. United States, 408 U.S. 41, 58 (1972). Not many recent cases involve § 3504 beyond the grand jury stage, where it generally does not apply.7 In the Fourth Circuit, the government argued in a grand jury case that FISA supplanted § 3504, but the court did not resolve the question. In re Grand Jury Subpoena (T-112), 597 F.3d 189, 201 (4th Cir. 2010) (“The broader claims advanced as to NSA surveillance are not necessary to the disposition of this appeal, and they must await another day.”). Dissenting Judge Traxler would have reached the surveillance claim and found that § 3504 applied:
7 In United States v. Hamide, 914 F.2d 1147 (9th Cir. 1990), the government disclosed FISA surveillance in response to a discovery request in the deportation context, but the interlocutory appeal was dismissed on unrelated grounds.
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To serve its purpose, § 3504(a)(1) requires an answer that is “factual, unambiguous, [and] unequivocal,” United States v. Apple, 915 F.2d 899, 911 (4th Cir.1990). Thus, in my view, when the government refuses to deny the illegal surveillance or provides an answer that is evasive, the aggrieved party has just cause to refuse to comply with the subpoena. 597 F.3d at 203. Based on the plain language of the statute, Judge Traxler found the notice requirement applicable to foreign intelligence surveillance. Id. at 203-06. Given the repeated and explicit requests for material derived from electronic surveillance of all kinds, the government’s failure to provide notice, as well as evasions regarding the existence of the surveillance, violated the plain requirements of the statute. The violation of § 3504 militates strongly in favor of full discovery and full defense participation in litigation based on the discovery. D. The Court’s Discovery Order Should Direct Full Disclosure To Security-Cleared Counsel And Full Defense Participation In Adversary Proceedings Regarding The Lawfulness Of The Government’s Surveillance Activities Because The Balance Of Interests Has Tilted Sharply Toward Transparency And Inclusion Of Both Parties In All Litigation. In the initial FISA motion, the defense described circumstances that, more than in any other reported national security case, militate in favor of defense participation: sophisticated and extensive government surveillance of an American citizen in the United States – at least in part while the citizen was a minor – who had committed no crime, whose troublesome expressions were protected by the First Amendment, and who worked for no foreign power. CR 55. The Court now has a strong indication the government’s ex parte disclosures to the Court were incomplete, given that the text of the FAA notice is directed to both the Court and the defense. In the context of the disclosures over the past six months, the Court should order full participation by security-cleared defense counsel.
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1. The Complexity And The Need For Accurate Factual Determinations Strongly Support Full Defense Access To Surveillance Material And Advocacy Regarding Its Significance.
The scope of appropriate disclosure to the defense corresponds to the depth and complexity of the potential motions to suppress as well as to the potential for disclosing Brady material. The statute provides for an aggrieved person to file a motion for suppression where the information was either unlawfully acquired or acquisition was conducted outside the scope of an order of authorization or approval. 50 U.S.C. § 1806(f). Information is unlawfully acquired if the statute is unconstitutional. ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 465 (D.C. Cir. 1991) (“Section 1806(f) requires the court to decide whether the surveillance was ‘lawfully authorized and conducted.’ The Constitution is law.”). The government’s failure to adhere to limitations on the scope of surveillance also supports defense motions to suppress, requiring suppression of both direct and derivative evidence:
If the United States district court pursuant to subsection (f) of this section determines that the surveillance was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion of the aggrieved person. 50 U.S.C. § 1806(g). Even if the motion is denied, the Court must review the information to determine whether material considered on the motion, assuming it was reviewed ex parte, requires production as Brady material: “If the court determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.” Id. The statute confers authority on this Court to order disclosure to defense counsel “where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” 50
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U.S.C. § 1806(f). In this provision, Congress intended to strike “a reasonable balance between an entirely in camera proceeding which might adversely affect the defendant’s ability to defend himself, and mandatory disclosure, which might occasionally result in the wholesale revelation of sensitive foreign intelligence information.” S. Rep. No. 95-701 at 64 (1978). The developments since the Snowden disclosures and the institutionalized suppression of notice revealed after Clapper establish that this case – even if it is the only case – fits exactly what Congress thought should trigger full defense participation: disclosure may be “necessary” when there are “indications of possible misrepresentation of fact” and other problems indicating the need for adversarial review. Id.
Courts have explained that disclosure to the defense is warranted if the legal and factual issues involved in reviewing the surveillance are “complex,” and where “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.’” United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982) (quoting S. Rep. No. 95-701 at 64 (1978)); accord United States v. Ott, 827 F.2d 473, 476 (9th Cir. 1987). These factors must be assessed in light of Alderman’s recognition that valuable defense input is lost when review of the legality of electronic surveillance is conducted ex parte. 394 U.S. at 184.
2. The Balance Of The Factors This Court Considers In Determining Defense Participation Requires Full Defense Access And Advocacy.
Under the present circumstances, the balance strongly favors disclosure: the need for government secrecy has been radically reduced by the public disclosures of previously secret
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programs; the need for adversary proceedings has been recognized by a presidential study group; the legal and factual complexity of the issues in this case favor full defense participation; and there are reasonable grounds to question the candor and completeness of the security apparatus’s representations.
i. The Need For Secrecy Has Been Reduced By The Snowden Disclosures.
The government has either publicly acknowledged or failed to deny the broad range of electronic surveillance now attributed to the government. Prior to trial, the mass collection of telephone and Internet content and metadata was speculative; now it is fact. As a result of the Snowden disclosures and other revelations, there are no longer compelling reasons for secrecy. If the government used malware to activate Mohamed’s computer to video him in his home, the existence of that capability is now public knowledge. The gathering up of all Mohamed’s telephone call and Internet metadata (along with everyone else’s metadata) was not previously known, but now the secret is out. The government likely has records of every one of Mohamed’s calls and Internet communications prior to any FISA warrant. The only questions remaining are whether and under what circumstances the government obtained and accessed surveillance, the lawfulness of the authority or conduct of the surveillance, and how the patterns of communication can be helpful to the defense. The government need for ex parte proceedings has collapsed now that the secrets this Court was balancing against disclosure are part of general public discourse.
ii. The Benefits Of Adversarial Proceedings Are Now Recognized By The President’s Review Group.
The public debate surrounding the Snowden disclosures has exposed the serious flaws that ex parte proceedings import into the structure of our country’s legal system. President Obama’s
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national security review recognized that our adversary system is compromised, and the benefits of
defense advocacy are lost, in a system that does not include an advocate for individual privacy. The
President’s Review Group on Intelligence and Communications Technologies, Liberty and Security
in a Changing World, Recommendation 28 (Dec. 12, 2013). The rationale for an advocate before
the Foreign Intelligence Surveillance Court (FISC) applies equally to the need for security-cleared
counsel in this case to provide technological and legal perspectives to balance against the
government’s one-sided presentations in proceedings before the district court:
Our legal tradition is committed to the adversary system. When the government initiates a proceeding against a person, that person is usually entitled to representation by an advocate who is committed to protecting her interests. If it is functioning well, the adversary system is an engine of truth. It is built on the assumption that judges are in a better position to find the right answer on questions of law and fact when they hear competing views. When the FISC was created, it was assumed that it would resolve routine and individualized questions of fact, akin to those involved when the government seeks a search warrant. It was not anticipated that the FISC would address the kinds of questions that benefit from, or require, an adversary presentation. When the government applies for a warrant, it must establish “probable cause,” but an adversary proceeding is not involved. As both technology and the law have evolved over time, however, the FISC is sometimes presented with novel and complex issues of law. The resolution of such issues would benefit from an adversary proceeding.
Review Group Report at 203. In our system of justice, defense counsel standing for the rights of the
accused traditionally provides competing arguments needed by a neutral decision-maker.
We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.
United States v. Nixon, 418 U.S. 683, 709 (1974). While recognizing that secrecy is sometimes
permissible, this Court acts in the best traditions of our justice system by recognizing the benefits
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of full adversary participation where, as here, the circumstances call for careful scrutiny of complex
legal issues based on voluminous material.
iii. The Complexity Of The Legal Issues Warrants Defense Participation.
Substantial issues exist regarding the constitutionality of the FAA as well as the application
of the FAA and other surveillance programs to Mohamed. These concerns were readily evident from
the colloquies with several of the Justices during the Clapper oral argument. Justice Kagan noted
that the FAA “greatly expands the government’s surveillance power. Nobody denies that.”
Transcript of Oral Argument at 17, Clapper, 133 S. Ct. 1138 (2013) (No. 11-1025). Similarly,
Justice Ginsburg noted that certain checks required for traditional FISA surveillance do not exist in
the FAA:
JUSTICE GINSBURG: Mr. Jaffer, could you be clear on the expanded authority under the FAA? As I understood it, it’s not like in [FISA], where a target was identified and . . . the court decided whether there was probable cause. Under this new statute, the government doesn’t say who the particular person or the particular location. So, there isn’t that check. There isn’t that check.
MR. JAFFER: That’s absolutely right, Justice Ginsburg…the whole point of the statute was to remove those tests, to remove the probable cause requirement, and to remove . . . the requirement that the government identify to the court the facilities to be monitored. So those are gone.
That’s why we use the phrase “dragnet surveillance.” I know the government doesn’t accept that label, but it concedes that the statute allows what it calls categorical surveillance, which . . . is essentially the surveillance the plaintiffs here are concerned about.
Id. at 32-33. Justice Breyer stated that the program is not limited to wiretapping alleged terrorists
or foreign agents, noting that any conversation touching on “foreign intelligence” information could
be implicated: “the definition of foreign intelligence information . . . defines it to include information
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with respect to a foreign power or foreign territory that relates to the conduct of foreign affairs. It’s very general.” Id. at 43.
The competing privacy and national security interests are the subject of current judicial debate upon which the defense perspective is essential to a fair disposition. Compare Klayman v. Obama, No. 13-0851, 2013 WL 6571596 (D.D.C. Dec. 16, 2013) (the metadata collection program likely unconstitutional) with ACLU v. Clapper, No. 13 Civ. 3994, 2013 WL 6819708 (S.D.N.Y. Dec. 27, 2013) (upholding the metadata collection program). The President’s Review Group used collection of telephone metadata under section 215 of FISA as a “good example” of the “serious and difficult questions of statutory and constitutional interpretation about which reasonable lawyers and judges could certainly differ,” finding that better decisions result from adversary presentations:
On such a question, an adversary presentation of the competing arguments is likely to result in a better decision. Hearing only the government’s side of the question leaves the judge without a researched and informed presentation of an opposing view. Review Group Report at 203-04. The complexity of the legal questions increase with the casefactual analysis of retention, accessing, and use of information. In addition to debating the scope and lawfulness of surveillance, a defense advocate is necessary to present the legal arguments on the inclusion of false statements or material omissions within the meaning of Franks v. Delaware, 438 U.S. 154 (1978); on the use of evidence derived from earlier unlawful surveillance to make decisions (such as deciding not to follow the case agent’s recommendation to neutralize Mohamed by arrest or cooptation) under Murray v. United States, 487 U.S. 533, 542-43 (1988); and determining whether the use of any such derivative evidence in subsequent FISA applications requires suppression under United States v. Grandstaff, 813 F.2d 1353, 1355 (9th Cir. 1987).
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Further, compliance with complicated statutes upon which there is little precedent militates in favor of defense participation. The simple determination of probable cause in the standard FISA case is often “relatively straightforward and not complex.” United States v. Abu-Jihaad, 630 F.3d 102, 129 (2d Cir. 2010). Although the FISA issues in the present case have their own share of novelty and complexity, the complicated legal issues under the FAA receive little guidance from the courts of appeals or other districts about how to evaluate the constitutionality of orders granting applications for FAA surveillance or actual execution of the surveillance. Defense advocacy is reasonable and necessary given the serious and difficult questions this case presents.
iv. The Voluminous Factual Materials Favor Defense Participation. The electronic surveillance generated in the national security context is far more extensive than that produced under the minimization procedures in cases investigated with Article III wiretaps. Jennifer Granick, FISA Amendments Act Is Way Worse for Privacy Than Title III, Center for Internet and Society of Stanford Law School, Nov. 13, 2012.8 In contrast to Article III wiretaps, a greater volume of telephone conversations and Internet communications in national security cases are generally recorded and preserved. David S. Kris & J. Douglas Wilson, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS, 276-77 (2d ed. 2012). Minimization in national security cases generally occurs when there is a retrospective examination of bulk data and a decision is made to index and log conversations, not by contemporaneous decisions not to record conversations in compliance with Article III minimization. Id. National security communications that are not indexed and logged are not routinely destroyed, as with Article III material, but may still be available
8 Available at http://cyberlaw.stanford.edu/blog/2012/11/fisa-amendments-act-way-worseprivacy-title-iii.
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for defense review. Id. at 277. The decision of agents to treat communications as not pertinent to
the foreign intelligence investigation is irrelevant to the defense assessment of whether the
communication is favorable to the defense or discoverable under Rule 16 as the defendant’s
statement, evidence material to the defense, or otherwise subject to production. Id. at 278.
In this case, there is a voluminous amount of communications recorded and metadata
gathered that the Court is not in a reasonable position to review. The defense is perfectly suited to
review material with the full adversarial perspective, identifying potential Brady material, both for
suppression and as trial material. In a case involving the post-trial disclosure of wiretapping, the
Supreme Court noted the unique perspective of the defense in assessing the potential value of the
products of government surveillance:
An 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 may have special significance to one who knows the more intimate facts of an accused’s life. And yet that information may be wholly colorless and devoid of meaning to one less well acquainted with all relevant circumstances. Unavoidably, this is a matter of judgment, but in our view the task is too complex, and the margin for 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.
Alderman, 394 U.S. at 182. The need to parse out from extensive data the information that the Court
should hear is a core function of the defense that should fully apply in this case.
v. Congress Anticipated That Evidence Of Misrepresentation And Other Over-Reaching Would Favor Disclosure And Defense Participation.
The legislative history of FISA specifically stated that “indications of possible
misrepresentation of fact” could establish the necessity for defense participation in discovery and
suppression proceedings. S. Rep. 95-701 at 64. Congress set an intentionally low bar for favoring
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defense participation: “indications” and “possible.” Under this standard, which requires no finding of actual misreprentation, there are a number of factors the Court should consider as favoring defense participation.
First, the Court knows whether the government provided previous notice in chambers of which the defense is unaware due to redactions in pleadings and exclusion from chambers conferences. But it appears that, assuming the Court did not know that the derivatives of FAA surveillance were used at trial, the failure to advise the Court before trial, especially where the origins of the investigation were at issue in the non-FISA motion to suppress, constituted a serious omission. The omission of material facts, under Ninth Circuit law, constitutes the functional equivalent of a material misrepresentation for the purposes of suppression. United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985), amended by 769 F.2d 1410 (9th Cir. 1985). The violation of the notice statute alone should trigger full defense participation.
Second, the circumstances of the disclosure involve lack of candor high in the national security establishment. The apparent reluctance of national security lawyers to permit Solicitor General Verrilli to correct the misrepresentation to the Supreme Court reflects the kind of questionable dealings that Congress saw as favoring disclosure. Similarly, the Director of National Intelligence admitted that he provided testimony that constituted the “least untruthful” answer regarding surveillance practices before a congressional hearing. Mollie Reilly, James Clapper: I Gave ‘Least Untruthful’ Answer Possible On NSA Surveillance, Huffington Post, June 11, 2013. On March 12, 2013, Senator Ron Wyden posed the following question to NDI Clapper during a hearing of the Senate Intelligence Committee: “Does the N.S.A. collect any type of data at all on millions or hundreds of millions of Americans?” Ryan Lizza, State of Deception, The New Yorker,
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Dec. 16, 2013. Director Clapper replied, “No, sir,” explaining that no such witting activity could occur given the restrictions on CIA and NSA surveillance of Americans. After the Snowden revelations, Director Clapper submitted to the Committee a formal retraction admitting that his response was “clearly erroneous.” Id. As Senator Wyden later stated, “There is not a shred of evidence that the statement ever would’ve been corrected absent the Snowden disclosures.” Id. The erroneous testimony to Congress apparently was not an isolated incident. Kimberly Dozier, Clapper Apologizes For “Erroneous” Answer On NSA, Associated Press, July 2, 2013 (“Sen. Wyden is deeply troubled by a number of misleading statements senior officials have made about domestic surveillance in the past several years.”).
But this type of high level deception only scratched the surface of the systematic lack of candor revealed by previously classified court decisions that the Administration released in response to the Snowden disclosures. On August 21, 2013, the government declassified the opinion of District Judge John Bates holding that aspects of the surveillance authorized by 1881a – the statute of which the government provided notice in this case – was unconstitutional. [Case Name Redacted], No. [docket number redacted], 2011 WL 10945618 (FISC Oct. 3, 2011). While ultimately continuing surveillance authorizations, Judge Bates made a record of serious concerns regarding the legal authority and agency actions in carrying out that authority.
The opinion detailed 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 NSA “might lack confidence in the effectiveness” of procedures for ensuring that persons targeted with FAA surveillance of their
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Internet transactions are actually located overseas. Id. at *2. In other words, the government “advised the Court that the volume and nature of the information it has been collecting is 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 the collection conducted pursuant to Section 702,” which had previously been based on erroneous representations that “acquisition of Internet communications under Section 702 would be limited to discrete ‘to/from’ communications between or among individual account users and to ‘about’ communications falling within [redacted] specific categories that had been first described to the Court in prior proceedings.” Id. at *5.9
The government’s applications for authorization to conduct FAA surveillance thus contained all of 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 question compliance with the minimization standards” contained in past orders. Belfield, 692 F.2d at 147. These problems appear to coincide temporally with the period of FAA surveillance in this case, which likely occurred between 2008 and 2010, or under earlier precursor programs.
In another opinion, Judge Bates expressed concern that, for a third time, the government acknowledged “a substantial misrepresentation” regarding surveillance:
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 misrepresentation regarding the scope of a major collection program.
9 Section 702 was codified as 50 U.S.C. § 1881a, the statute referenced in the government’s supplemental FISA notice.
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In March, 2009, the Court concluded that its authorization of NSA’s bulk acquisition of telephone call detail records from [redacted] in the so-called “big business records” matter “ha[d] been premised on a flawed depiction of how the NSA uses [the acquired] metadata,” and that “[t]his misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and Court-mandated oversight regime.” Docket [redacted]. Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been “so frequently and systemically violated that it can fairly be said that this critical element of the overall . . . regime has never functioned effectively.” Id. [Case Name Redacted], No. [docket number redacted], 2011 WL 10945618, at *5 n.14 (FISC Oct. 3, 2011) (declassified on Aug. 21, 2013) (alterations in original). Other FISC judges, some in recently declassified opinions, expressed similar concerns. 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) (declassified Sept. 10, 2013) (the court was “deeply troubled” whether the NSA had addressed and corrected the issues giving rise to the history of serious and widespread compliance problems and had taken the necessary steps to ensure compliance going forward.); In re Production of Tangible Things from [redacted], No. BR 08-13, 2009 WL 9150913, at *2 (FISC Mar. 2, 2009) (declassified Sept. 10, 2013) (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) (declassified Sept. 10, 2013) (“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 the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 620–21 (FISC 2002) (explaining government’s “errors related to misstatements and omissions of material
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facts” in FISA applications), abrogated on other grounds by In re Sealed Case, 310 F.3d 717 (FISC Rev. 2002).
The errors in the government’s applications to the FISC, including its applications for FAA surveillance authorization, are not merely “typographical or clerical in nature.” United States v. ElMezain, 664 F.3d 467, 566 (5th Cir. 2011) (internal quotation marks omitted). Rather, “the errors [are] . . . 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 (internal quotation marks omitted). Moreover, because numerous FISC opinions – including opinions authorizing FAA surveillance – remain classified, the defense has no way to know the full extent of the government’s misrepresentations to the FISC and noncompliance with its orders. Disclosure under § 1806(f) is necessary to permit the robust adversarial testing that accurate review of these issues requires.
These misrepresentations also provide the grounds for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). 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 or material omissions. United States v. Jacobs, 986 F.2d 1231, 1234-35 (8th Cir. 1993); Stanert, 762 F.2d at 781. Franks applies to applications for electronic surveillance orders as well as those seeking Rule 41 warrants. United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985). If the prosecution failed to disclose to the Court the thenclassified FISC opinions expressing concerns regarding the reliability of the government representations, such a failure alone would be a Franks violation because the government omitted
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material information reasonably necessary for the Court’s evaluation of the government’s submissions. Given the record of affirmative misrepresentations and omissions made by the government in its applications for § 1881a authorizations (as well as its misrepresentations and omissions in applications for orders authorizing other forms of FISA surveillance), full discovery is required for an adversarial hearing to assess whether the fruits of those authorizations must be suppressed.
In a separate disclosure, it has been revealed that government agents have been laundering intelligence from NSA electronic intercepts to disguise their origins: “[L]aw enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.” John Shiffman & Kristina Cooke, U.S. directs agents to cover up program used to investigate Americans, Reuters, Aug. 5, 2013. The governmental units that distributed information include the FBI, the CIA, and the NSA, all of which were likely involved in the present case. Although the Reuters documents are undated, they “show that federal agents are trained to ‘recreate’ the investigative trail to effectively cover up where information originated.” Id. Interviews with law enforcement personnel showed the practice is widespread to protect sources, but “employing the practice as a means of disguising how an investigation began may violate pretrial discovery rules by burying evidence that could prove useful to criminal defendants.” Id.
The defense has expressed concerns that local prosecutors were insulated from full knowledge of surveillance and tactics used in the present case. E.g., CR 42 at 10-11; CR 78 at 2-3. One of the most serious problems with Brady in this case apparently involved exactly this type of insulation. Long after the close of discovery, local prosecutors began discovering FBI emails, a
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process that continued to the day of trial. CR 451 at 82. The emails were obvious Brady material, including the characterization by the FBI that Mohamed was a “conflicted/manipulable kid.” CR 446 at 1466. Despite the Court’s discovery orders, the prosecutor advised the Court that the tardy production occurred in part because the material was not in the case file he received. CR 451 at 88. But the existence of the emails had to have been known by the agents: the case agent and others who were on the emails themselves testified at pretrial proceedings and knew or should have known of the emails’ existence and the obligation to produce them. Only at the last minute, apparently due to the prosecutor’s prodding, did crucial emails, some of which became trial exhibits, surface.
The discovery order should include any material reflecting policies and practices of any agency involved in this case that insulate evidence from prosecutors and courts, including but not limited to those underlying the Reuters report. E. The History Of Specific Defense Requests For Discovery Of All Forms Of
Surveillance Provides Compelling Support For A Broad Discovery Order. The government’s failure to provide statutory notice is aggravated because the defense explicitly requested the type of electronic surveillance material that was never received. Under Brady, the government obligation to provide disclosure of helpful material does not depend on a defense request. United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004). However, in assessing the appropriate discovery orders, the Court should consider the degree to which the government received notice from the defense that this type of material was considered helpful and the need for prosecutors to make the appropriate inquiries to all agencies actually conducting or otherwise involved in such surveillance to determine the existence of such material.
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1. Defense Discovery Requests Focused On The Exact Types Of Surveillance That Are Now Known To Have Been Utilized By The Government.
Given that the existence of many of the government’s electronic surveillance programs were
not known at the outset of the case, the defense requested broad production of electronic
surveillance. On March 7, 2011, in the initial discovery request, the defense requested material
relating to “any eavesdropping, wiretapping, or electronic recording of any kind.” CR 25 at 8. In
the discovery memorandum, the materials were defined “as broadly as possible and without
limitation.” CR 27 at 10. The memorandum explicitly addressed the possibility that government
evidence was “derived from” earlier investigative activity:
The redacted discovery regarding emails after Mohamed attained the age of majority appear to indicate that the emails were “derived from” earlier investigative activity dating at least to early 2008. The degree to which the government monitored Mohamed while he was a juvenile, as well as any decisions related to whether to advise his parents, take a different course, or otherwise intervene, are important to provide context for the government’s subsequent activities. Further, any information related to monitoring would raise potential issues regarding the legal basis for such surveillance.
CR 27 at 11 (emphasis added). Anticipating the disclosures related to mass seizure of metadata, the
defense requested “all materials obtained by the government from any service provider, including
Comcast, relative to Mohamed’s use of the Internet should be produced.” CR 27 at 16.
The discovery request broadly applied to all types of electronic surveillance that have now
been disclosed both through the belated notice and the Snowden disclosures:
The government should produce all materials connected to authorizations for monitoring, surveillance, or other investigative activity in this case. The order should encompass the application for the order, any denials of authorization, the action taken pursuant to the authorization, the products of the activity, and the uses made of the products. The order should apply to any and all uses of the FISA in addition to non-FISA activity. The FISA permits electronic surveillance (50 U.S.C. §§ 1801-11); physical searches (50 U.S.C. §§ 1821-29); pen registers and trap and
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trace devices (50 U.S.C. §§ 1841-46); and access to certain business records (50 U.S.C. §§ 1861-62). To the extent material is classified, the Court should order production under appropriate protective orders but with no limit on the access of the defense to materials that are necessary to evaluate potential suppression issues and exculpatory uses.
CR 27 at 17-18. These requests were elaborated in the FISA motion, including explicit references
to potential Franks violations and warrantless surveillance from which the FISA warrants were
derived. CR 55.
Most explicitly for the FAA notice, the defense FISA discovery request included the exact
scenario that is now apparently being disclosed: the government obtained information without
disclosing that it was derived from earlier warrantless activity. The defense requested that discovery
regarding prior warrantless surveillance that may have generated FISA warrants: “the existence of
any pre-FISA surveillance must be determined in order to litigate any FISA procedures as fruits of
potential warrantless intrusions.” CR 55 at 17. The defense even referenced the history of such
surveillance:
[T]here is at least some history of using warrantless surveillance as the basis for FISA requests. See James Bamford, THE SHADOW FACTORY, (Doubleday 2008) at 117 (“By the time the [National Security Agency] operation was up and running in the fall of 2001, between 10 and 20 percent of all the requests coming to the FISA court were tainted by what is known in the legal profession as ‘the fruit of the poisonous tree,’ that is, the warrantless program.”).
CR 55 at 18. On Franks, the defense pointed to the need for discovery of potential
misrepresentations and material omissions in FISA applications, which now appear to have omitted
the FAA surveillance:
The FISA applications may contain intentional or reckless material falsehoods or omissions, and the surveillance therefore may violate the principles of Franks v. Delaware, 438 U.S. 154 (1978). In other cases, the government has confessed error relating to “misstatements and omissions of material facts” that it had made in its
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FISA applications. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 620-21 (FISC 2002), abrogated on other grounds, In re Sealed Case, supra. Disclosure is, therefore, necessary so that, based on defense analysis, this Court can conduct a Franks hearing at which Mohamed will have the opportunity to inquire into whether the affiants before the FISA court intentionally or recklessly made materially false statements or omitted material information from the FISA applications. In this regard, significant questions are likely to exist regarding the extent to which Mohamed was portrayed as an agent of a foreign power, whether the primary purpose of the electronic surveillance was to obtain evidence of domestic criminal activity or foreign intelligence information, whether the government made the required certifications in the FISA application, and whether it properly obtained extensions of FISA orders.
CR 55 at 17-18.
Several months later, the defense filed a supplemental memorandum advising the Court
regarding concerns about use of the 2008 FISA amendments for broad surveillance activity. In this
pleading the defense expressly stated:
In the present case, the Court should consider Clapper as expanding the potential for facial and as applied challenges to the FAA to the extent that surveillance of Mohamed – who is unquestionably a United States person – occurred during the course of FAA-authorized operations involving non-United States persons. The discovery indicates a high likelihood that such surveillance occurred.
CR 72 at 3. Further, the defendant argued repeatedly that the trial prosecutors had an obligation to
inquire broadly of all government agencies that could reasonably be believed to be in possession of
relevant information. E.g., CR 42 at 10; CR 58 at 44.
2. The Government’s Assurances Regarding Discovery Inadequately Responded To The Discovery Requirements In This Case.
Throughout this case, the trial prosecutors told the Court that they understood their discovery
obligations. E.g., CR 58 at 44; CR 109 at 64; CR 159 at 70. They viewed their obligations
narrowly, however, in terms of their understanding of what constituted discoverable exculpatory
material and their obligation to seek out such material from other government entities. For example,
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they defined their obligations under Fed. R. Crim. P. 16 as limited to material in their possession or that of “any other law enforcement agencies that are part of the prosecution team.” CR 28 at 5. With respect to statements made by Mohamed, the trial prosecutors stated: “The government has complied with and will continue to comply with its obligation to produce all relevant, recorded statements of defendant.” CR 28 at 18. But, the prosecutors went on to limit what they would provide stating: “as will be addressed in the government’s CIPA motion, there is a national security interest in protecting much of the material from disclosure.” Id. Later they stated:
The government has provided, and will continue to provide, defendant with pretrial discovery in accordance with and beyond what is required by these discovery standards. Indeed, the government continues to go beyond its statutory and constitutional discovery obligations and provided the defense with a broad range of information that is not, in fact, discoverable. CR 91 at 2. In responding to specific requests in that pleading, the government advised the Court that, with respect to the request for all materials related to the government’s monitoring of statements as well as of computer activity (CR 78 at 5): “The government does not have any additional information responsive to this request.” CR 91 at 7. With respect to the request for all materials relative to the search and seizure of computers, cell phones, or other electronic media, the government stated: The government has provided all such materials in its possession to defendant. If and when the government conducts any further analysis or searches of seized electronic material, it will be provided to defendant in accordance with the rules of discovery. Id. at 13. In replying to the government assertions that it had provided all material in its possession, the defense provided the Court with several pleadings that described material in his possession that demonstrated that the government was in fact in possession of evidence that it had not turned over. E.g., CR 99 at 5; Defendant’s Third Supplement To Suppression And Discovery Motions at 4-7.
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The defense requests for discovery, and government’s assertions that it understood its obligations and had complied, were made not only in the pleadings, as set out above, but also in open court. Some of these statements contained troubling limitations. For example, in responding to the defense request for all of his statements, the trial prosecutor stated that he would provide all “unclassified” statements of Mohamed gathered “in conjunction” with this case. CR 58 at 18-19. These limitations appear to have been attempts to take off the table all statements gathered through undefined “other investigations” that had produced statements made by Mohamed, statements about which various agents later testified. E.g., CR 446 at 1437-38. The discovery obligations of the government include no such limitations.
In responding to defense arguments about the obligation to seek out information from all government agencies, the trial prosecutor again placed a limitation on what he would do. He advised the Court that he would only make inquiries of “all associated agencies investigating the case.” CR 58 at 44. When arguing a year later about provision of all website monitoring and surveillance tools on the computer, he responded that the government had no additional information. CR 109 at 20. Six months later, the trial prosecutor made similar representations in response to further defense requests for information about surreptitious investigation, stating that the government had complied with its obligations. CR 323 at 40. In addition to other apparent shortcomings in the government’s statements, the provision of the new, post-trial FISA notice reveals that the government apparently had not made all the relevant inquiries or disclosures that it had repeatedly indicated to the Court that it had made. The existence of the supplemental FISA notice make clear that the government engaged in investigation and gathered evidence that it utilized in some way at trial and otherwise that was not disclosed to the defense.
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3. The Record Reflects That Government Actors Failed To Adequately Communicate Discoverable Material To Local Prosecutors.
One of the points that Mohamed has been pressing throughout this litigation has been the reasonable likelihood that information was withheld from the trial prosecutors by other actors within the government. E.g., CR 42 at 10-11; CR 78 at 2-3. One example of this, and the importance of an adversary process to ferret out the truth, occurred during the non-FISA suppression hearing.
In the non-FISA context, the defense established a prima facie case that, by a subterfuge, the FBI conducted an unconstitutional non-consensual search of Mohamed’s laptop computer. CR 57. In arguing that the Court should not rule on the Fourth Amendment issue, the trial prosecutor offered an exhibit through the case agent to support the claim that the product of the search was not used. The agent testified that Exhibit 1 contained all of the information that Lt. Williams had obtained during his search of the computer taken from Mohamed and mirror-imaged on November 2, 2009. CR 131 at 22-24. In argument, the prosecutor made the same representation. CR 132 at 212. But both the prosecutor and the agent were wrong. Both improperly relied on assertions that had apparently been made to them by a third party. This was learned only because the defense had access to a mirror image of the hard drive, was able to examine the drive itself, and then test the government’s assertions through the adversarial process. CR 159 at 16.10
10 During the suppression hearing, the government made another inaccurate statement about the computer, asserting that it had only been in use for two weeks prior to its seizure on November 2. CR 131 at 23. Because this representation was able to be tested through the adversarial process, the Court learned that the computer had, in fact, been in use since September 12, 2009. CR 159 at 25. The length of time was material because it contradicted the scope of information on the computer that the government argued.
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Similarly, the late production of the FBI emails should cause the Court significant concern regarding communication of discoverable materials. Although the trial prosecutors continually assured the Court that they were viewing their discovery obligations broadly, they were also making statements about limits on where they were seeking information. As was revealed with respect to the FBI emails, important evidence known to the agents was not in the case file. CR 451 at 87-88. They were, however, exculpatory, as this Court found. Id. at 80-81. When the government made its various ex parte CIPA filings with the Court long before December 2012, these exculpatory emails should have been produced for the Court’s review. It appears that they were not. These facts underscore the danger of relying on the government’s assertions when the pressures weighing against full disclosure in a national security situation are so strong.
4. Throughout The Pretrial Phase Of The Case, The Government Obscured The Extent Of Its Knowledge About Mohamed Through Investigative Activity That Occurred Prior To September 2009.
In addition to the problems with the government’s response to discovery requests, the government appears to have actively impeded defense efforts to learn the truth about the origins of its investigation and the manner in which that investigation may have been derived from prior unlawful activity. In its pretrial pleadings and arguments, the government repeatedly sought to portray the origin of the investigation into Mohamed as linked solely to the call his father made to the FBI on August 31, 2009, the Khan emails, and the email Mohamed forwarded to his father that he had received from Amro al-Ali. At trial, however, the government agents were permitted to testify about the government’s knowledge of Mohamed prior to September 2009 and the existence of information about him in its databases.
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During the suppression hearing, when Mohamed attempted to explore the sources of the information that led to the decision to set up the undercover operation, the government repeatedly objected to questions about the origin of the investigation. For example, when asked about names on the phone taken from Mohamed on November 2, 2009, Agent Dwyer responded, “I can’t answer that.” CR 131 at 90. When asked whether there were further requests for authorization to search the computer taken from Mohamed on November 2, 2009, the agent again responded that he could not answer. Id. at 94. When asked whether the full investigation of Mohamed commenced on September 3, 2009, the agent again said that he could not answer. Id. at 98.
During Analyst Tanton’s testimony, he was asked whether he had specific knowledge about Mohamed accessing al-Awlaki information prior to review of the computer that had been seized on November 2, 2009. CR 132 at 187-88. The government objected that this called for classified information, and its objection was sustained. Id. at 188. In arguing at the conclusion of the testimony on May 2, 2012, that the investigation was not tainted by the police activity on November 2, 2009, the trial prosecutor referred to three pieces of evidence that led to the investigation: the call from Mohamed’s father, the Samir Khan emails, and email from Amro al-Ali. Id. at 216-217. He made the same argument after the reconvened hearing on June 26, 2012. CR 159 at 121. Given the discovery provided, and the truncation of testimony based on the assertion that the answers would call for classified evidence, the impression was left that all of the information on which the government was relying had been obtained on or after August 31, 2009. But those were not the facts. In contrast to the suppression hearing testimony, the trial testimony revealed some further facts about the earlier investigation. Agents Trousas and DeLong both testifed that, from government monitoring and accessing emails through another investigation, the government knew and had
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information about Mohamed prior to September 2009. CR 456 at 402, 406-07; CR 446 at 1439-40, 1456-57.
The public record about the scope of government surveillance, the public record about the intelligence community’s failure to be forthcoming with courts or trial prosecutors, and the public record of this case raise serious concerns about the fairness of the proceedings that led to Mohamed’s conviction. These facts underscore that full adversary proceedings with participation by securitycleared counsel are needed to determine the nature and scope of surveillance and the extent to which the government’s case and investigation were tainted by the previously undisclosed surveillance. F. The Court Should Order Full Discovery Because The Origins Of This
Investigation Permeated The Court’s Pretrial And Trial Rulings. The full factual background of this case should be produced to the defense because issues related to surveillance permeated the case. For example, the non-FISA motion to suppress turned upon the government’s claim of independent sources for the investigation, but now we know that the government’s representations regarding the reasons for governmental action were materially incomplete. Similarly, the FISA motion involved the Court’s investment of trust in the completeness and candor of representations made in ex parte proceedings, and assurances that the government knew and adhered to its responsibilities, but now it appears the representations were incomplete and prevented the Court from conducting both legal analyses and discretionary decision-making regarding classified material with the full story and background facts. At trial, the Court and the defense made decisions with inadequate and faulty information. The Court indicated its understanding of the importance to the defense of all evidence regarding the degree of government surveillance: “part of the emphasis from the defense in this case is that the
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undercover individuals, the individuals who are running the undercover program, needed to put together information for a profile, that this is a way that they approach these things, they learn all they can about the individual, and that this material assisted them in putting together a profile.” CR 159 at 121-22. The Court and the defense did not have information regarding the real origin and extent of the investigation; the Court and the defense did not know that, for whatever reason, the government was intentionally withholding notice that it was statutorily required to provide. Such information irremediably skewed the tactical decisions of counsel and goes to the core of the defense: not that there was no reason for governmental concern, but that the government went too far in prompting the offense.
Further, the non-disclosed indicia of governmental unreliability may have affected the discretionary decisions of the Court. For example, the Court relied on the government’s ex parte representations in allowing the undercover operatives to testify under fake names and without defense investigation of their real identity. The Court also may have relied on ex parte representations in denying production of the original Arabic Interpol notice that – the defense believes – allowed the government to cast Amro al-Ali in a false light. Full discovery and defense advocacy is needed to review the potential effect of the failure to disclose on a wide range of in limine, evidentiary, and instructional rulings.
The defense will be filing substantive motions upon completion of discovery. The pervasiveness of questions regarding the origins and conduct of surveillance on Mohamed strongly militates in favor of complete full discovery to allow full development of the arguments regarding the effects of the withholding of notice regarding the extent and types of surveillance utilized in this case. Discovery that reflects on the government’s reliability should be fully explored.
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G. The Court Should Grant The Broadest Discovery Because Litigation Regarding The Lawfulness Of Governmental Surveillance Activity Accomplishes Important Societal Purposes Of Transparency And Deterrence. Meaningful review regarding the government’s violation of the statutory notice requirement
and potential grounds for suppression of evidence accomplishes essential societal functions beyond protection of the defendant’s individual rights. Constitutions and statutes are merely a collection of toothless platitudes in some countries. In the United States, transparency and deterrence of governmental misconduct are essential to the rule of law that sets us apart by giving the promise of justice meaning in the real world. Preservation of the results of a tainted three-week trial do not outweigh the strong societal interests in assuring fairness for the individual accused and assuring that the rules regarding pretrial notice and judicial review of surveillance on American citizens are protected. The public interest strongly favors full discovery and defense participation in all proceedings. H. The Language Of The Court’s Discovery Order Should Explicitly Require
Broad Production And Incorporate Inclusive Language Regarding The Scope Of “Material,” The Obligation To Inquire Regarding All Primary Sources, And The Use Of The Pretrial Brady Standard. In the initial discovery motion, the defense requested that the Court order discovery with a number of specifications to assure complete production. The “material” sought was defined broadly: “As used herein, the term ‘materials’ should be construed as broadly as possible and without limitation. It includes all items in any form or medium, whether physical (e.g., papers, notes, reports), or electronic (e.g., e-mail, texts, or chats), analog or digital (e.g., audio or video), and however created, produced, or reproduced.” CR 27 at 10. The defense requested that the appropriate originating agencies be accessed to assure completeness. CR 27 at 8-9. The Court’s discovery order
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should include the broad definition of “material” and direction that all governmental agencies and actors be contacted and directed to produce discovery.
The Court’s discovery order should require adherence to a broad interpretation of Rule 16 and the pretrial Brady standard. In Hernandez-Meza, the court indicated that, in fulfilling the discovery order on remand, it “behooves the government to interpret the disclosure requirements broadly and turn over whatever evidence it has pertaining to the case.” 720 F.3d at 768-69. The same breadth is appropriate here. Further, compliance with Brady has been an issue throughout the case, from the failure to timely disclose that online agitator “Bill Smith” was a government agent, to the late disclosure of the FBI emails, to the failure to disclose the FAA surveillance. These problems came in the context of the government’s insistence that the post-trial Brady standard – which requires proof of “materiality” – applied to discovery prior to trial. Over the government’s objection, the Court held that materiality was not part of the standard limiting evidence favorable to the defense. But even after the Court’s ruling, the government cited to the post-trial standard, relegating the Court’s decision to a footnote. CR 157 at 6-7; CR 160 at 2. Given the deliberate violation of the notice statute, and the type of discovery issues precedent to the substantive motions, the Court should require that all evidence favorable to the defense or otherwise useful to the presentation of motions should be provided regardless of whether the government deems the evidence to be material. The pretrial Brady standard insures fairness to the defense, provides the Court with the appropriate information for decision-making, and prevents the government from benefitting from its notice violation.
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Conclusion
For the foregoing reasons, the Court should order that, with full disclosure to the defense and
participation in any hearings, material should be produced as follows:
• Material documenting the government’s failure to provide pretrial notice of surveillance pursuant to 50 U.S.C. § 1881a, including, but not limited to, all communications manifesting any policy of non-disclosure and all communications underlying the decision to provide no notice and the decision to provide the supplemental notice. This material should at least answer the following questions:
* Who had knowledge that § 1881a surveillance was implicated in this case and when was such knowledge gained;
* Who was involved in any decision not to provide pretrial notice of § 1881a surveillance and when was such a decision made;
* What justification, if any, was relied upon in any decision not to provide pretrial notice of § 1881a surveillance and what led to the filing of the supplemental notice;
* What, if any, notice was this Court given about § 1881a surveillance relative to Mohamed (or other persons relevant to this case) prior to trial.
• Material documenting all surveillance of Mohamed and derivative use of the products of surveillance pursuant to 50 U.S.C. § 1881a. This material should at least answer the following questions:
* What evidence or information was gathered through surveillance about Mohamed;
* When was such evidence or information gathered;
* Under what programs and authorizations was such evidence or information gathered;
* What minimization and targeting procedures and interpretive instructions were in effect at the time any such evidence or information was gathered, and how were those procedures implemented (i.e., who was being targeted, what was the basis for that targeting, and what minimization procedures were used during that targeting);
* How, when, and to or by whom was such evidence or information disseminated, accessed, or otherwise used;
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* What dissemination procedures and interpretive instructions were in effect at the time any such evidence or information was gathered, accessed, and disseminated or otherwise used, and how were those procedures implemented relative to evidence or information gathered related to Mohamed;
* What justification was relied upon in conducting § 1881a surveillance, including but not limited to any FISC decisions relative to such surveillance;
* What, if anything, was this Court told about § 1881a surveillance relative to Mohamed (or other persons relevant to this case) in deciding pretrial discovery and suppression motions and trial evidentiary rulings;
* What, if anything, was the FISC told about § 1881a surveillance relative to Mohamed (or other persons relevant to this case) in approving any FISA warrants in this case.
• Material documenting all surveillance of Mohamed (other than pursuant to § 1881a) and derivative use of the products of surveillance that has not been disclosed to the defense. This material should at least answer the following questions:
* What evidence or information was gathered pursuant to other sections of FISA, including but not limited to §§ 1842, 1861, 1881b, and 1881c;
* What evidence or information was gathered pursuant to other surveillance or information gathering programs implemented by any government agency that has not been disclosed to the defense, including but not limited to the use of malware or spyware to access and exploit Mohamed’s computer, and any other surveillance activities conducted by any government agency;
* How was any such evidence or information identified, collected, and retained;
* How, when, and to or by whom, was any such evidence or information disseminated, accessed, or otherwise used;
* What was the legal justification, if any, related to the collection and use of such evidence or information;
* What were any minimization, targeting, retention, and dissemination procedures and interpretive instructions in place relative to any surveillance described above and how were those procedures implemented relative to Mohamed;
* What, if anything, was this Court told about such evidence or information (and the means by which it was obtained) in deciding pretrial discovery and suppression motions and trial evidentiary rulings;
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* What, if anything, was the FISC told about such evidence or information (and the means by which it was obtained) in approving any FISA warrants in this case.
• Material favorable to the defense under the pretrial Brady standard, statements of the defendant, and evidence material to the preparation of the defense, both as to motions and trial. This material should at least answer the following questions:
* What classified judicial opinions included findings that government surveillance policies and practices were conducted beyond the scope of authorizations or were otherwise unlawful;
* What evidence demonstrates government over-reaching during national security investigations, such as unlawful searches, intrusions into privacy, false statements, material omissions, and violations of statutory or other rules;
* What evidence shows programs or practices that discouraged or barred disclosure to prosecutors and courts of information that is discoverable under rules, statutes, or the Constitution, including but not limited to government policies and training to cover up the source of NSA-obtained information.
The government’s violation of the statutory notice requirement and the pervasive overall
surveillance issues raise serious legal issues on which full factual development is warranted. This
discovery motion seeks to identify for the Court the areas on which discovery is required so legal
briefing can proceed on a complete factual record. For all of the foregoing reasons, the discovery
motion should be granted.
Dated this 13th day of January, 2014.
/s/ Stephen R. Sady Stephen R. Sady Chief Deputy Federal Public Defender
/s/ Steven T. Wax Steven T. Wax Federal Public Defender
/s/ Lisa Hay Lisa Hay Assistant Federal Public Defender
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 Case 3:10-cr-00475-KI Document 488 Filed 01/13/14 Page 1 of 2 Page ID#: 8634
Stephen R. Sady Chief Deputy Federal Public Defender steve_sady@fd.org Steven T. Wax Federal Public Defender steve_wax@fd.org Lisa Hay Assistant Federal Public Defender lisa_hay@fd.org 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 503-326-2123 Telephone 503-326-5524 Facsimile
Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. MOHAMED OSMAN MOHAMUD,
Defendant.

Case No. 3:10-cr-00475-KI
MOTION FOR FULL DISCOVERY REGARDING THE FACTS AND CIRCUMSTANCES UNDERLYING SURVEILLANCE

PAGE 1 MOTION FOR FULL DISCOVERY REGARDING THE FACTS AND CIRCUMSTANCES UNDERLYING SURVEILLANCE

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The defendant, Mohamed Osman Mohamud, through his attorneys, respectfully moves this Court for an order requiring full discovery regarding the facts and circumstances underlying surveillance as elaborated in the supporting memorandum filed contemporaneously with this motion.
Dated this 13th day of January, 2014. /s/ Stephen R. Sady Stephen R. Sady Chief Deputy Federal Public Defender /s/ Steven T. Wax Steven T. Wax Federal Public Defender /s/ Lisa Hay Lisa Hay Assistant Federal Public Defender
PAGE 2 MOTION FOR FULL DISCOVERY REGARDING THE FACTS AND CIRCUMSTANCES UNDERLYING SURVEILLANCE

 
 Case 3:10-cr-00475-KI Document 486 Filed 11/19/13 Page 1 of 2 Page ID#: 8632
S. AMANDA MARSHALL, OSB #95347 United States Attorney District of Oregon ETHAN D. KNIGHT, OSB #99298 PAMALA R. HOLSINGER, OSB #89263 Assistant United States Attorneys ethan.knight@usdoj.gov pamala.holsinger@usdoj.gov 1000 SW Third, Suite 600 Portland, OR 97204-2902 Telephone: (503) 727-1000 Facsimile: (503) 727-1117 Attorneys for United States of America

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA v.
MOHAMED OSMAN MOHAMUD, Defendant.

Case No. 3:10-CR-00475-KI
GOVERNMENT=S SUPPLEMENTAL FISA NOTIFICATION

This supplemental notice is being filed as a result of the government’s determination that information obtained or derived from Title I FISA collection may, in particular cases, also be “derived from” prior Title VII FISA collection. Based upon that determination and a recent review of the proceedings in this case, the United States hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. §§ 1806(c) and 1881e(a), that the government has offered into

Case 3:10-cr-00475-KI Document 486 Filed 11/19/13 Page 2 of 2 Page ID#: 8633
evidence or otherwise used or disclosed in proceedings, including at trial, in the above-captioned matter information 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 19th day of November 2013. Respectfully submitted, S. AMANDA MARSHALL United States Attorney
s/ Ethan D. Knight ETHAN D. KNIGHT, OSB #99298 PAMALA R. HOLSINGER, OSB #89263 Assistant United States Attorneys

Government=s Supplemental FISA Notification

Page 2

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.

No. 14-30217
D.C. No. 3:10-cr-00475-KI-1

MOHAMED OSMAN MOHAMUD, Defendant-Appellant.

OPINION

Appeal from the United States District Court for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted July 6, 2016 Portland, Oregon
Filed December 5, 2016
Before: Harry Pregerson, Carlos T. Bea, and John B. Owens, Circuit Judges.
Opinion by Judge Owens

2

UNITED STATES V. MOHAMUD

SUMMARY*

Criminal Law
The panel affirmed Mohamed Osman Mohamud’s conviction for attempting to detonate a large bomb during the annual Christmas Tree Lighting Ceremony in downtown Portland, Oregon, in violation of 18 U.S.C. § 2332a(a)(2)(A).
The panel held that the district court properly rejected Mohamud’s defense of entrapment as a matter of law. The panel could not say that no reasonable jury could have concluded that Mohamud was predisposed to commit the charged offense. Rejecting Mohamud’s alternative argument that the case should be dismissed because the government overreached in its “sting,” the panel wrote that while the government’s conduct was quite aggressive at times, it fell short of a due process violation.
The panel held that, under the circumstances of this case, the district court did not err in denying Mohamud’s motion to suppress, based on tardy disclosure, information collected pursuant to § 702 of the Foreign Intelligence Surveillance Act of 1978. The panel wrote that Mohamud cannot demonstrate prejudice, and that the district court did not err in finding that the late disclosure was not due to prosecutorial misconduct.
The panel held that the § 702 acquisition of Mohamud’s email communications did not violate the Fourth Amendment. The panel noted that all this case involved was
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

UNITED STATES V. MOHAMUD

3

the targeting of an overseas foreign national under § 702, through which Mohamud’s email communications were incidentally collected. The panel held that no warrant was required to intercept the overseas foreign national’s communications or to intercept a U.S. person’s communications incidentally. Assuming that Mohamud had a Fourth Amendment right in the incidentally collected communications, the panel held that the search was reasonable under the Fourth Amendment. The panel wrote that declassified facts foreclosed the argument that the discovery in this case strayed from protecting the country from a terrorist threat into the conduct of foreign affairs. Because no retention and querying of the incidentallycollected communications is at issue in this case, an argument regarding reasonableness was outside the scope of this court’s review. The panel held that under the third-party doctrine, Mohamud had a reduced expectation of privacy in his communications to third parties. The panel held that Foreign Intelligence Surveillance Court-approved targeting and minimization procedures, which were followed in practice, sufficiently protected Mohamud’s privacy interest, in light of the government’s compelling interest in national security.

COUNSEL
Stephen R. Sady (argued), Chief Deputy Federal Public Defender; Mark Ahlemeyer, Assistant Federal Public Defender; Lisa C. Hay, Federal Public Defender; Office of the Federal Public Defender, Portland, Oregon; Steven Toby Wax, Portland, Oregon; for Defendant-Appellant.

4

UNITED STATES V. MOHAMUD

Kelly A. Zusman (argued), Appellate Chief; Ethan D. Knight, Pamala R. Holsinger, and Ryan W. Bounds, Assistant United States Attorneys; Billy J. Williams, Acting Assistant United States Attorney; United States Attorney’s Office, Portland, Oregon; Joseph F. Palmer, Attorney, Appellate Unit; John P. Carlin, Assistant Attorney General; National Security Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

Patrick C. Toomey (argued) and Alex Abdo, New York, New York; Andrew Crocker and Mark Rumold, San Francisco, California; Mathew W. dos Santos, Portland, Oregon; as and for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Oregon, and Electronic Frontier Foundation.

Joshua L. Dratel, Law Offices of Joshua L. Dratel P.C., New York, New York; John D. Cline, Law Office of John D. Cline, San Francisco, California; for Amicus Curiae National Association of Criminal Defense Lawyers.

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OPINION

OWENS, Circuit Judge:

Mohamed Osman Mohamud appeals from his conviction for attempting to detonate a large bomb during the annual Christmas Tree Lighting Ceremony in Pioneer Courthouse Square in downtown Portland, Oregon, in violation of 18 U.S.C. § 2332a(a)(2)(A). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

I. FACTUAL BACKGROUND

A. Mohamud’s Activities Before Contact with the FBI

In many respects, Mohamud was like any other American teenager. He liked music, the Los Angeles Lakers, and hanging out with his friends. Born in Somalia, he immigrated to the United States at the age of three, and grew up in the Portland area.

But after a December 2008 incident at London’s Heathrow Airport, things changed. Believing that airport security racially profiled him, Mohamud wrote an email in London stating that it is “the evil zionist-crusader lobbyists who control the world,” and calling on Allah to send fighters against them. He also created a new email account while in London—truthbespoken@googlemail.com. That email account would play a significant role in the prosecution’s case.

1 We resolve several of Mohamud’s arguments in a concurrently filed memorandum disposition.

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UNITED STATES V. MOHAMUD

In 2009, Mohamud began communicating over the Internet with Samir Khan, a United States citizen then living in North Carolina.2 Khan published Jihad Recollections, an online magazine aimed at English-speaking al-Qaeda supporters. From February to August 2009, Mohamud and Khan exchanged roughly 150 emails, with Mohamud using his truthbespoken email account. Topics included Islamic law and advice about personal relationships. They also outlined Mohamud’s support for Osama bin Laden.

During this time period, Mohamud wrote four articles for Jihad Recollections.3 Among other things, the articles recommended physical exercise to prepare for war with the West and analyzed Europe’s vulnerability to a jihadi attack. Mohamud’s initial drafts of these articles contained more incendiary content. For example, Mohamud praised the proficiency of the September 11, 2001, hijackers who “hit them so fast the Americans became dumbfounded,” the 2008 Mumbai attackers, who were “a great display of quickly entering the arena of battle and just decimating the kuffar [unbelievers],” and the fighters in Afghanistan who attacked landing American helicopters and then “finish[ed] off the wounded American soldiers.” Mohamud also prayed for Allah to help the reader “prepar[e] you to meet Allah as a martyr” and included a photograph of the Twin Towers burning during the September 11th attacks. Khan removed

2 The September 2011 drone strike in Yemen that killed Anwar alAwlaki, an al-Qaeda leader, also killed Khan.
3 Three of the articles were published under the pen name Ibn alMubarak. Mohamud was not credited with publishing the fourth article, which appeared in Jihad Recollections under a different pseudonym, Abu Talha.

UNITED STATES V. MOHAMUD

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this more inflammatory material from the final versions of Mohamud’s articles. On August 15, 2009, Mohamud informed Khan that he would no longer write for Jihad Recollections because he was “going through alot [sic] of things and i have a lot of things to do.”4

Mohamud also struck up a relationship with Amro Al-Ali, a Saudi citizen who Mohamud met at a Portland mosque and who subsequently left the United States.5 On August 31, 2009, Al-Ali sent information to Mohamud at his truthbespoken email account about an Islamic school in Yemen. That same day, Mohamud called his father to say that he was leaving the country. His father begged him to stay in the United States, but Mohamud told him it was too late—he had his passport, visa, and ticket ready to go. When his parents confirmed that his passport was missing, they feared that Mohamud might return to Somalia, his place of

4 Mohamud also engaged in other pro-jihadi Internet activities. In June 2009, for example, he posted on a website that he was working on an “Islam’s [M]ost Wanted List,” which would be a “Black list” of people who had “offended Allah.”
5 Saudi officials suspected Al-Ali had links to terrorist groups, and requested an Interpol Red Notice for his arrest. A Red Notice serves as an international wanted notice and provides information on the identification of fugitives charged with or convicted of serious crimes. Although Interpol will not publish requested Red Notices that violate Interpol’s Constitution, which prohibits the organization from undertaking any activities of a political, military, religious or racial character, see Interpol Const., art. 3, Interpol does not independently vet the governmental request for a Red Notice for its factual and legal justification. The Red Notice led the FBI to consider Al-Ali a “dangerous [person] overseas” and to view Mohamud’s communications with Al-Ali with concern. There was no evidence at trial that Mohamud knew of the Red Notice, which was non-public, or the FBI’s interest in Al-Ali.

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UNITED STATES V. MOHAMUD

birth. And when they could not reach Mohamud, they called the FBI and asked an agent to stop their son from leaving the country. Eventually, Mohamud’s mother got in touch with her son, scolded him, and brought him home. Mohamud did not actually have a visa or plane ticket, and he returned his passport to his parents. A few days later, Mohamud’s father called the FBI agent back and told him that Mohamud had agreed to finish college and would not leave the country until he graduated. He also explained that his son had wanted to go to Yemen to study Arabic and Islam. Mohamud’s father forwarded the FBI an email from his son about a school in Yemen, which allowed the FBI to identify Mohamud as the user of the truthbespoken email account.

B. Mohamud Attends College and the FBI Initiates Its Investigation

In September 2009, Mohamud began studying engineering at Oregon State University in Corvallis, where he had a “typical” college experience: he had a roommate, made friends, and attended parties (where he drank alcohol and used marijuana). His activities and religious principles often clashed, and in November 2009 he sought advice from a Muslim website on the difficulties of living a pious life on a college campus.

After the urgent August 31, 2009 call from Mohamud’s father, the FBI opened an investigation into Mohamud. Agents conducted physical and electronic surveillance of Mohamud, but did not identify any overtly dangerous communications. The case agent believed that Mohamud’s communications lacked “the same radical speak that he had espoused early on when he was communicating with Samir Khan.” The agent opined that Mohamud had “left behind his

UNITED STATES V. MOHAMUD

9

radical thinking” and was a “pretty manipula[ble], conflicted kid.”

C. The FBI’s First Direct Contacts with Mohamud

In November 2009, a contractor working undercover for the FBI—using the alias “Bill Smith”—emailed Mohamud at his truthbespoken account. Pretending to be an isolated Muslim in eastern Idaho, the contractor asked Mohamud for advice on how to get more involved in “the fight” for the Islamic community, and he stated that he wanted “to help rid the occupiers from [P]alestine.” Although Mohamud gave some general advice to move to a community with more Muslims, take care when talking about such issues online, and look out for “spies,” he never openly encouraged the contractor to commit acts of violence. By May 2010, their email communications had ended.

Mohamud planned to work in Alaska with his college roommate during the summer of 2010. But when his parents brought him to the Portland airport, he was not permitted to fly to Alaska. Instead, FBI agents met with Mohamud and his parents at the airport and questioned them. When asked, Mohamud denied having a ticket or visa to travel to Yemen, or having any interest in jihadi websites. When asked if he knew anyone in Yemen, he said “Amr,” but provided little detail. Mohamud made no mention of his Jihad Recollections articles or similar writings. When Mohamud returned home, he drafted a “To do list” which included “Find a job,” “Work till September,” get help from his parents for food and rent, and “you might have to take less classes” at Oregon State.

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UNITED STATES V. MOHAMUD

D. Introduction to FBI Undercover Agent “Youssef”

1. The Initial Email Contacts

On June 23, 2010, an FBI undercover agent, using the alias “Youssef,” emailed Mohamud at his truthbespoken account and instructed him to set up a new “hushmail” email account that would be secure and encrypted. Mohamud responded later that same day: “assalamu alaykum [God be with you] brother how are you[?]” Two days later, Youssef emailed Mohamud again:

Wa alaikoom salem. hamdullah i am good brother thank you for asking. i’m sorry for the delay in our communication, we’ve been on the move. jazakallah khairan for responding so soon. are you still able to help the brothers? in sha’allah, i’ll hear from you soon. Salem, Youssef.

Mohamud responded the same day that he was unable to travel:

i have been betrayed by my family, i was supposed to travel last year but Allah had decreed that i stay here longer than my heart desired. i am trying to find a way to go. i do not think i will be able to go for a while. i need to save up and also clear up somethings [sic]. look for my emails inshallah, i will contact you when i am able to travel. pray for me that allah will free my passage from the lands of the polytheists, peace be upon the

UNITED STATES V. MOHAMUD

11

messenger of Allah, his family and his companions.

Three days later, on June 28, 2010, Youssef replied that “Allah (SWT) i’m sure has good reason for you to stay where you are” and asked to meet Mohamud. About two weeks later, when Mohamud had still not responded, Youssef sent a follow-up email. A week later, on July 16, 2010, Mohamud responded and agreed to meet.

Youssef declined Mohamud’s suggestion to meet at the local mosque because he wanted to meet privately and “the kuffar [unbelievers] have eyes and ears in almost all masjids in the US.” Mohamud responded that he would “have a set of questions for you when we meet” to “make [s]ure you are not a spy yourself.” Mohamud also wrote that “amr” (as in Amro Al-Ali) was the only person who could have given Youssef his email address, so he would want to know how Youssef knew Al-Ali as a “precaution.” Youssef praised Mohamud for thinking about security.

2. The First Meeting with Youssef

On July 30, 2010, Youssef met Mohamud for the first time in downtown Portland.6 Youssef told Mohamud he was from an “ihataa” (a religious “council”) and was interviewing seven people in the United States and Canada for possible

6 Although Youssef was wearing a transmitter and a recording device, the meeting was not recorded because the battery accidentally had been drained. An FBI agent listened to their conversation and summarized it in a report. The agent could not hear the first ten minutes, so he relied on Youssef to tell him what occurred. Every other in-person meeting between Mohamud and undercover agents was recorded and proffered as evidence at trial.

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UNITED STATES V. MOHAMUD

inclusion in a council project.7 Youssef asked Mohamud “what he had been doing lately to continue being a good Muslim.” Mohamud said that he had been writing poetry and articles for Jihad Recollections. Mohamud asked Youssef how he got his email address, and Youssef explained that the council had forwarded it to him.

When asked about travel, Mohamud described his unsuccessful attempt to go to Alaska. And when asked what he was “willing to do for the cause,” Youssef testified that Mohamud said that “originally he had planned to wage war within the United States,” but then he dreamt that he traveled to Yemen, received training, and “went to Afghanistan where he led an army against the kuffar or the unbelievers.”

Youssef asked Mohamud again what he would do for the cause, and Mohamud responded, “anything.” When offered five ways to be a good Muslim—(1) pray five times a day; (2) go to school to learn something that would help the brothers overseas, such as engineering or medicine; (3) raise money for the brothers; (4) become operational; or (5) become a martyr—Mohamud almost immediately picked “become operational.” Mohamud explained “operational” meant “doing like the other brothers do when they get a car, fill it with explosives, park it near a target location, and detonate the vehicle.” When asked about targets, Mohamud said he had thought about Washington, D.C., because of all the government buildings, but admitted he was not familiar with the area. Youssef told Mohamud to research possible

7 The FBI invented this “council” to serve as a fictional intermediary between Al-Ali and Youssef because Youssef would not be able to answer many questions about Al-Ali.

UNITED STATES V. MOHAMUD

13

targets in Portland, and that he had a “brother that could help him with explosives.”

About four hours after their meeting, Mohamud sent
Youssef an unprompted email with copies of his three articles published in Jihad Recollections.8 Youssef replied that Mohamud was “talented.”9

E. Meeting with “Hussein”

A few weeks later, on August 19, 2010, Youssef met with Mohamud again in downtown Portland and introduced him to “Hussein,” an undercover FBI agent posing as an al-Qaeda explosives expert. Youssef described Mohamud as a “jewel in the rough.” During the meeting, Mohamud told the agents he admired the Mumbai terrorist attack (in which ten men stormed buildings in Mumbai, India, and killed 164 people).

About thirty-four minutes into the meeting, Mohamud told the agents that he wanted to detonate a bomb in Pioneer Courthouse Square during the annual Christmas Tree Lighting Ceremony on November 26, 2010, the day after Thanksgiving. Mohamud explained that he had researched other potential targets, but this was the best option because:

8 Mohamud also sent Youssef an article he had recently submitted to Inspire, the successor to Jihad Recollections, observing that: “Much can be done to hurt the enemy or prepare for Jihad. According to your circumstances you could perform Jihad against the enemy where you are currently living by Mumbai style attacks, but my article is directed towards those brothers waiting to travel to the lands of Jihad rather than touch upon the issue of attacks within the Western nations.”
9 The undercover agents frequently flattered and praised Mohamud for his good writing or behavior.

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UNITED STATES V. MOHAMUD

(1) he could drive a car right into the Square from the street; (2) many people would be there; (3) nobody expected an attack in Portland; and (4) security would be light. Mohamud said that he planned on being in the car when it blew up. The agents (who were not familiar with Portland) had no input into Mohamud’s chosen target.

Youssef wanted Mohamud to realize the seriousness of what he was saying. Mohamud assured them he did. He said that “since I was fifteen I thought about all this things before,” and explained:

[I]magine every day we see you know in Arab, you know, newspapers and news you know our people are killed you know. So for us to see that you know it would be a smile from me to see them in the same. You know, you know what I like, what makes me happy? You know, what I like to see? Is when I see the enemy of Allah then they are you know their bodies are torn everywhere. . . . That gives me you know like high hope and happiness you know.

When Youssef pointed out that there would many women and children at the event, Mohamud responded:

[I]n general just a huge mass that will, you know like for them you know to be attacked in their own element with their families celebrating their holidays. And then for later on to be saying this was done for you to refrain from killing our children, women.

UNITED STATES V. MOHAMUD

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The agents told Mohamud there was “no shame” in not going through with his plan. They reminded him that “[w]ith us you always have a choice.” When asked what he would have done if he had not met the agents, Mohamud said that he had planned to leave the country, “find the right people,” “be somewhere they cannot capture you,” and meet up with AlAli. The three then walked to Pioneer Courthouse Square, where Mohamud detailed the proposed attack.

Two days later, Youssef emailed Mohamud that he and Hussein would present Mohamud’s plan to the “council.” He also asked Mohamud to explain his rationale for the attack, as “a bomb is a very serious matter.” Mohamud replied that he had prayed for guidance and that his faith “was sky high for no apparent reason,” which he saw as a sign “that the traffic[] [l]ight is green lol.”

F. Youssef and Hussein Test Mohamud’s Resolve

On September 7, 2010, Youssef and Hussein met again with Mohamud. They convinced Mohamud not to martyr himself (i.e., to detonate the bomb remotely), and offered to help him leave the country after the bombing. They also advised that he did not have to go forward with the plan. The agents showed Mohamud an FBI-produced mock jihadi training video, which included an explosion being triggered by cell phone. Mohamud said the video was “beautiful.”

To test his resolve, the agents gave Mohamud $2,800 to carry out specific tasks: purchase a list of bomb components, decide where to park the van with the bomb, and rent his own

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UNITED STATES V. MOHAMUD

apartment.10 On October 3, 2010, they again met with Mohamud and told him to rent a storage unit for the van. Mohamud completed these tasks.

G. The Test Bomb

On November 4, 2010, Mohamud, Youssef, and Hussein drove to the Oregon countryside to explode a test bomb. On the drive, when asked what he wanted to do once he was overseas, Mohamud first said he wanted to learn Arabic, and later that he wanted to learn “the inside and out of weaponry” and “bomb-making.” When asked whether he saw himself teaching, he said he also wanted to teach “special operations,” and specialize in “making the enemies you know afraid.” During this conversation, Mohamud stated that “these people who live in this country are the most evil people on earth.”

Hussein again advised that Mohamud did not have to go through with the bombing. Mohamud ignored him, instead commenting on the irony of the term “Black Friday,” the day after Thanksgiving. When asked if he had told anybody about the plan, Mohamud responded that his image was “just a college student” and “nobody even knows that I have you know, that I’m inclined toward jihad, or even towards even like being Islamic.”

To test the bomb, Mohamud pushed buttons on a cell phone, which appeared to trigger an explosion, though an FBI agent actually detonated the bomb. After the explosion, Mohamud said “God is great” in Arabic, that he felt “good,”

10 Youssef explained that the FBI did not want Mohamud to have a roommate because it would be easier to maintain surveillance and reduce the chance that Mohamud would take matters into his own hands.

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and that the bomb test was “just motivation for me.” When Youssef and Hussein asked if he had ever seen dead bodies, Mohamud responded that he thought it was “awesome” when people were jumping from skyscrapers during the September 11th attacks.

On the ride home, Youssef suggested that Mohamud make a “good-bye” video to explain his actions because it could be “inspirational.”11 Mohamud ultimately agreed and wrote a script for the video using topics Youssef suggested.

Mohamud made the video later that day, and explained that this is a “message . . . to those who have wronged themselves.” He described the “dark day” that was coming, and said that no one would be safe “for as long as you threaten our security.” He said that living in the United States “is a sin,” and urged that Muslim parents living in the West not do what his did to him—that is, not “hold others back from completing their obligation” to Allah. Mohamud finished by reading his own poem that extolled the virtues of Muslims and jihad, and ended with a call to:

Carry on oh brothers, and march on ahead to meet your creator and lie on silk beds, and the martyrs don’t die, so don’t say they’re dead. . . . Explode on these kuffar [unbelievers]. Alleviate our pain. Assassinate their leaders, commanders, and chiefs. From your brother to his brother a poem in brief.

11 On cross-examination, Youssef agreed that he had his “finger on the scale” and was trying to influence Mohamud to make the video, and that Mohamud initially wanted to wait to make the video until he was abroad.

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H. The Final Countdown

About a week after the test bomb, Mohamud exchanged emails with a friend in Afghanistan. On November 13, 2010, the friend asked Mohamud to “investigate” predator and reaper strike drones to figure out “how to down them.” On November 17, 2010, Mohamud responded: “[D]on’t worry, brother, I will find you something inshallah. Please do not email this email any longer. If someone replies from now on from this e-mail is not me, Remember that. I hope we meet again soon inshallah.”

On November 18, 2010, an excited Mohamud met with Youssef and Hussein for six hours. They went to the storage unit Mohamud had rented, which he had selected in part because there were no surveillance cameras. The three then drove to a hotel in Portland, where Mohamud showed the agents potential parking spots he had researched on his computer. Next, they walked to Pioneer Courthouse Square to discuss the plan further.

During the November 18th meeting, Youssef asked: “What’s a victory gonna be for you?” Mohamud replied: “Try to get most, the most casualties.” Mohamud thought the bombing would get a lot of publicity because “America’s boasting it so ‘oh we haven’t been attacked since 9/11.’” Hussein asked Mohamud if he had any doubts about the bombing. He did not.

On November 23, 2010, Mohamud and Hussein went to the storage unit to see the bomb parts. Mohamud helped load purported bomb parts into Hussein’s car, including barrels, wires, and nails. Mohamud also provided Hussein with items for their disguises to pose as water workers.

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On November 25, 2010, Thanksgiving Day, Mohamud drove to Portland and spent the day with friends. His friends said he seemed “happy,” although at dinner he became “reserved.” They all went shopping at an outlet mall that night.

I. “Black Friday”—November 26, 2010

Early the next morning, on November 26th, Mohamud ran into a friend and told him that “I’m having the greatest morning of my life.” Around noon, Youssef picked up Mohamud and they drove to a store to buy reflective vests as part of their disguises. Then they met up with Hussein in downtown Portland. Mohamud appeared “happy” and “excited.”

The three drove about a mile to the parked van. When shown the “bomb” in the back of the van (which an FBI agent had constructed to look real but which was, in fact, inert), Mohamud said it was “beautiful.” They returned to their hotel, ate, talked, and prayed. Shortly before 5:00 p.m., the three drove to the van. Youssef dropped off Mohamud and Hussein, then drove to a pre-arranged meeting location a few blocks west of Pioneer Courthouse Square.

Hussein and Mohamud drove the van to Pioneer Courthouse Square. Before exiting the van, Hussein told Mohamud to connect the wires for the detonator to work. Mohamud did so, and then they walked several blocks to join Youssef in his car. The three drove toward a train station, dropped off Youssef, and then Hussein and Mohamud parked a few blocks from the station.

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Mohamud pulled out the cell phone and Hussein read him the number to dial to detonate the bomb. When Mohamud dialed the number and nothing happened, Hussein suggested that they step out of the car for better reception—the arrest signal. Mohamud was dialing the number into the cell phone a second time when FBI agents arrested them both. Hussein was shouting “Allahu Akbar! [God is great]” as he was being arrested. Mohamud was quiet initially, but during transport he began to kick and had to be restrained. Later, when speaking with the jail’s psychiatric nurse, Mohamud cried and said he could not understand “how he had gotten from just being a student to being labeled a terrorist in jail.”

Agents found an undated email printout from Al-Ali in Mohamud’s wallet. A search of Mohamud’s computer revealed videos of the 2007 and 2008 Portland Christmas Tree Lighting Ceremonies, as well as an al-Qaeda video, an audio file titled “No Peace with the Jews,” and numerous references to the word “jihad.” In a notebook found in his apartment, Mohamud had written: “Non Muslims are the eternal enemies of Islam and they must be subdued and humiliated.” He also described the need to “mistrust” everyone and to act normal “to secure myself from the FBI.”

II. PROCEDURAL HISTORY

A. Indictment and Trial

A one-count indictment charged Mohamud with attempted use of a weapon of mass destruction in violation of 18 U.S.C. § 2332a(a)(2)(A). After several years of pretrial litigation and review of immense discovery (including considerable litigation under the Classified Information Procedures Act, 18 U.S.C. app. 3), trial began in January

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2013 and lasted thirteen days. Both sides called numerous witnesses, and the cross-examinations were sharp and thorough.

There was no dispute that Mohamud had tried to blow up Pioneer Courthouse Square while it was filled with people. The spirited (and supportable) defense was entrapment— Mohamud, a teenager with no criminal record, had neither the means nor the intent to commit domestic terrorism until he became involved with the undercover FBI contractor (Bill Smith) and FBI agents (Youssef and Hussein). The government countered that Mohamud’s actions before any contact with the FBI—including his Jihad Recollections articles—as well as his readiness to commit such a horrific act of violence proved that he had the necessary predisposition to commit the crime. After the close of evidence and argument, the jury returned a guilty verdict, rejecting the entrapment defense.

B. Post-Trial Motions

Mohamud challenged his conviction on numerous grounds. He cited Sherman v. United States, 356 U.S. 369 (1958), to argue that the government had entrapped him as a matter of law. Mohamud contended that he had intended to complete college in the United States, and only the FBI’s aggressive and coercive actions had led him down the bombing path. The district court rejected that argument, pointing to evidence that before any contact with the FBI, Mohamud: (1) originally planned to wage war in the United States until a dream refocused him on Yemen; (2) wrote articles for Jihad Recollections which advised how best to prepare to carry out “jihad” on non-believers; and (3) had lengthy email conversations with men that the FBI believed

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promoted terrorism. The court also highlighted that Mohamud never showed any reluctance (unlike the defendant in Sherman), and only thirteen minutes after meeting Youssef in person, he said that he wanted to become “operational” by using a car bomb.

After the verdict (but before sentencing), the government filed a supplemental notice that it had “offered into evidence or otherwise used or disclosed in proceedings, including at trial” information derived from information collected pursuant to § 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C. § 1881a (hereinafter referred to as “§ 702”).12 Mohamud argued that this late notice warranted suppression of this evidence (and any fruits thereof). The government countered that FISA did not provide for suppression in these circumstances, and in any case, there was no substantial prejudice, as the district court could conduct a post-trial suppression analysis. The district court agreed, finding no misconduct in the late disclosure, and that Mohamud had suffered no prejudice from the delayed disclosure.

Mohamud also argued that suppression was warranted
because § 702 violates the First and Fourth Amendments, as well as the separation of powers doctrine.13 As a threshold

12 Section 702 was added to by the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436, and was amended by the USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268.
13 Here, Mohamud contended that U.S. Foreign Intelligence Surveillance Court (“FISC”) review of targeting and minimization procedures under § 702 amounts to “providing a non-judicial advisory opinion” and authorizes a rule-making role for judges in violation of the non-delegation doctrine.

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matter, the district court first held that § 702 did not “interfere[] with the prerogatives of another branch of government beyond requiring the executive branch to conform to the statute.” It also reasoned that because the FISC either approves or denies the requested acquisition (and electronic communication service providers must follow the directives or challenge them), its opinions are not advisory. The court then explained that Mohamud had not raised an independent First Amendment claim, because motions to suppress based on First Amendment violations are analyzed under the Fourth Amendment.

Finally, the district court held that § 702 does not violate the Fourth Amendment. The court reasoned that § 702 surveillance does not trigger the Fourth Amendment’s warrant requirement because U.S. persons’ data is collected only incidentally, but even if it did, no warrant would be required because the foreign intelligence exception would apply.14 The court then balanced the government’s interests in the search against the intrusions on Mohamud’s privacy, and held that the § 702 collection here was reasonable under the Fourth Amendment.

C. Sentencing

The Sentencing Guidelines called for a life sentence. The government recommended a sentence of forty years’ imprisonment, whereas Mohamud urged a sentence of ten years’ imprisonment.

14 The district court further held that subsequent querying of § 702acquired data, without obtaining an additional search warrant, would also be constitutional, though it was “a very close question.”

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During the sentencing hearing, the district court acknowledged that, although the jury had rejected the entrapment defense, Youssef and Hussein “imperfect[ly]” entrapped Mohamud through their frequent praise and religious references, especially considering his youth. But the “horrific” nature of the intended crime, which would have resulted “in a great deal of death and mutilation,” still warranted a sentence of thirty years’ imprisonment.

III. DISCUSSION

A. Standard of Review

We review the district court’s ruling on a motion for acquittal de novo. See United States v. Sanchez, 639 F.3d 1201, 1203 (9th Cir. 2011). When a defendant pursues an entrapment defense, we “should not disturb the jury’s finding unless, viewing the evidence in the light most favorable to the government, no reasonable jury could have concluded that the defendant[] [was] predisposed to commit the charged offenses.” United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994). We review the denial of a motion to dismiss based on a violation of constitutional rights de novo. United States v. Brobst, 558 F.3d 982, 994 (9th Cir. 2009).

We review de novo the denial of a motion to suppress evidence, but underlying factual findings are reviewed for clear error. United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc). We review for an abuse of discretion a district court’s decision whether to use its supervisory powers—in this case, the supervisory power to decide whether to suppress evidence as a sanction for the government’s late supplemental FISA notice. United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011). Discovery

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rulings and the denial of an evidentiary hearing are also reviewed for an abuse of discretion. United States v. Mazzarella, 784 F.3d 532, 537 (9th Cir. 2015).

We review de novo the constitutionality of a statute. United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010).

B. Entrapment as a Matter of Law

As the district court stated at sentencing, the defense made a solid case for entrapment. But the jury rejected that defense, and found Mohamud guilty despite the actions and encouragement of Youssef and Hussein and the communications (and attempted communications) from other government agents. And in light of that verdict, Mohamud has a steep hill to climb. “To establish entrapment as a matter of law, the defendant must point to undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act by trickery, persuasion, or fraud of a government agent.” United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986); see also United States v. Williams, 547 F.3d 1187, 1197 (9th Cir. 2008).

To avoid a finding of entrapment, the government must prove that: (1) Mohamud was predisposed to commit the crime before government agents contacted him, or (2) government agents did not induce him to commit the crime. United States v. McClelland, 72 F.3d 717, 722 (9th Cir. 1995). We focus our inquiry on Mohamud’s predisposition.

When evaluating predisposition, we often analyze five factors: (1) the character and reputation of the defendant;

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(2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement. Id. “Although none of these factors is controlling, the defendant’s reluctance to engage in the criminal activity is the most important.” Id.

We can assume that factors (1), (3), and (5) are in Mohamud’s favor. The second factor—whether the government made the initial suggestion of criminal activity— weighs against Mohamud. Although Youssef discussed with Mohamud five options of how to be a good Muslim, including the option to become “operational,” Mohamud— not Youssef—made the initial suggestion to fill a car with explosives near a target location. Mohamud also told Youssef that he wanted to “wage war” within the United States before Youssef mentioned the possibility of an “operational” role. The government can rely upon Mohamud’s statements to prove predisposition even though he made them after the initial contact by the government. United States v. Tucker, 133 F.3d 1208, 1217 (9th Cir. 1998).15 Here, Mohamud discussed placing explosives in vehicles near target locations after the government’s initial

15 In Tucker, a jury convicted the defendant of extortion and filing false tax returns. This court affirmed his conviction and sentence, and rejected his argument that the evidence proved entrapment as a matter of law. This court considered statements made by the defendant even after the initial contact between the defendant and the government, noting that “[t]o prove the defendant’s predisposition, the government can rely upon evidence occurring after the initial contact with a government agent.” Tucker, 133 F.3d at 1217.

UNITED STATES V. MOHAMUD

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contact with him but before Youssef suggested criminal activity. The second factor therefore weighs against Mohamud.

The fourth and “most important” factor also weighs overwhelmingly in the government’s favor. The government initiated its contact with Mohamud in November 2009 with the Bill Smith emails, and the more aggressive Youssef and Hussein operation began in June 2010. Despite being provided numerous opportunities to deviate from or terminate the plan, Mohamud never displayed any reluctance in going through with a horrific attack that would have killed and maimed countless people, including young children. Indeed, he expressed great enthusiasm in seeing it through. He picked the target—the Pioneer Courthouse Square Christmas Tree Lighting Ceremony—and planned where the van containing the explosives would be parked. He praised the terror attack in Mumbai, described the victims jumping from the Twin Towers on September 11th as “awesome,” and stated that he would be “happy” to see the bodies of “enemies of Allah” torn apart.

The complete lack of reluctance on Mohamud’s part to participate in the bombing—indeed, his immediate zeal to see it through—separates this case from those in which courts have found defendants entrapped as a matter of law. For example, in Jacobson v. United States, 503 U.S. 540, 553 (1992), Jacobson was not predisposed in part because “[t]he evidence that [Jacobson] was ready and willing to commit the offense came only after the Government had devoted 2 ½ years to convincing him that he had or should have the right to engage in the very behavior proscribed by law.” In Sherman, a government informant approached the defendant, a recovering drug addict, and asked for narcotics, ostensibly

28

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because the informant was not responding to treatment. 356 U.S. at 371. The defendant resisted—“[f]rom the first, [he] tried to avoid the issue.” Id. Only “after a number of repetitions of the request, predicated on [the informant’s] presumed suffering, did [the defendant] finally acquiesce.” Id.; see also id. at 373 (“One request was not enough, for . . . additional ones were necessary to overcome, first, [the defendant’s] refusal, then his evasiveness, and then his hesitancy in order to achieve capitulation.”). And in United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000), the government agent aggressively pushed the idea of sexual activities with children on an uninterested defendant until eventually he gave in:

While Poehlman’s reluctance might have been borne of caution . . . the fact remains that Poehlman’s earliest messages (which would be most indicative of his pre-existing state of mind) provide no support for the government’s case on predisposition. To the contrary, Poehlman’s reluctance forced [the agent] to become more aggressive in her suggestions . . . .

Id. at 704; see also id. at 695–97. At least as to this factor, this case is more akin to Williams, in which we held that the defendant was not entrapped as a matter of law in part because “[t]here is no evidence that [the defendant] expressed any reluctance about the robbery that needed to be ‘overcome by repeated government inducement or persuasion.’ The evidence indicated that [he] was ready and willing at all times to participate in the robbery.” 547 F.3d at 1198 (citation omitted).

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Mohamud argues that his actions after the Bill Smith emails are irrelevant for entrapment purposes, as they were tainted by the government’s overwhelming inducement. And with those post-Bill Smith actions set aside, the argument goes, there was insufficient evidence for the jury to conclude that he had the necessary predisposition to commit this crime. This is wrong for two reasons.

First, although “only those statements that indicate a state of mind untainted by the inducement are relevant to show predisposition,” statements made after the inducement which make “clear that [Mohamud] would have committed the offense even without the inducement” are evidence of predisposition. Poehlman, 217 F.3d at 704–05. This would include Mohamud’s statements that he made about the “awesome” terrorist attacks in Mumbai and on September 11th, and that he had been thinking about these “things” since he was fifteen years old. And a reasonable jury could infer that his decisions to become “operational” and blow something up the first time he met Youssef (and later, to choose Pioneer Courthouse Square at its most crowded time) were evidence that his predisposition existed long before FBI contractor Bill Smith emailed him.

Second, even if there were a rigid wall between pre- and post-inducement, there was sufficient evidence for a reasonable jury to reject the entrapment defense. Mohamud’s Jihad Recollections articles—both the draft and final versions—provided ample evidence of his predisposition to carry out the charged crime. In those articles, he, among other things, coached people on how to prepare themselves physically to attack and kill their Western enemies, and saluted those in Afghanistan who “finish[ed] off” wounded American soldiers. Although these articles may come across

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as a teenager trying to talk tough, they were enough to support the jury’s finding, and for us to conclude that Mohamud was not the “otherwise innocent person” that the entrapment-as-a-matter-of-law doctrine requires. Smith, 802 F.2d at 1124; cf. United States v. Cromitie, 727 F.3d 194, 207–08 (2d Cir. 2013) (holding that the defendant in a similar case was not entrapped as a matter of law, and observing that “potential terrorists who are available to be recruited by Al Qaeda or similar groups” may not have necessarily already formed a specific plan, but “[t]heir predisposition is to have a state of mind that inclines them to inflict harm on the United States, be willing to die like a martyr, be receptive to a recruiter’s presentation, . . . and welcome an invitation to participate”).

In addition, the jury learned of Mohamud’s correspondence with Al-Ali, which began months before the first contact from Bill Smith. The jury also learned of Mohamud’s desire to go abroad and study at the Islamic school in Yemen that Al-Ali recommended to him. A government expert testified that this school was founded by a Muslim cleric who supported jihad and that it served as a “stepping stone” to violent jihad, especially for people from the West. As detailed above, the same day that Al-Ali told Mohamud about the school in Yemen, Mohamud apparently made plans to leave the United States. Though Mohamud ultimately remained in the country, the jury could have reasonably interpreted his attempt as evidence of a predisposition to commit the crime charged. Further, Mohamud continued to demonstrate interest in attending the school in his December 2009 emails to Al-Ali, which occurred after the Bill Smith emails.

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In sum, viewing the evidence in the light most favorable to the government, we cannot say that “no reasonable jury could have concluded that [Mohamud was] predisposed to commit the charged offense[].” Davis, 36 F.3d at 1430. We therefore conclude that the district court properly rejected his defense of entrapment as a matter of law.

Mohamud’s alternative argument that we should dismiss this case because the government overreached in its “sting” and violated due process also fails. While the government’s conduct in this case was quite aggressive at times, it fell short of a due process violation.

In United States v. Black, we made clear that “[d]ismissing an indictment for outrageous government conduct . . . is limited to extreme cases in which the defendant can demonstrate that the government’s conduct violates fundamental fairness and is so grossly shocking and so outrageous as to violate the universal sense of justice.” 733 F.3d 294, 302 (9th Cir. 2013) (citation and internal quotation marks omitted). This is an “extremely high standard.” Id.; see also United States v. Pedrin, 797 F.3d 792, 797 (9th Cir. 2015) (“[I]n assessing whether the government’s conduct was ‘outrageous,’ the relevant question is what the government knew when it was setting up the sting, not what it learned later.”). For example, we have denied challenges to sting operations involving armed robberies of phony drug stash houses which necessarily put law enforcement and the defendant in grave peril. See Black, 733 F.3d at 302; Williams, 547 F.3d at 1200–01. Mohamud argues that the six factors for evaluating outrageous

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government conduct set out in Black favor dismissal of the indictment.16 We disagree.

In Cromitie, a comparable Second Circuit case, the defendant was convicted of planning and attempting to carry out domestic terrorism offenses. 727 F.3d at 199–204. The defendant claimed that the government’s conduct in persuading him to commit the charged offenses violated due process. Id. at 217. The Second Circuit held that it did not. Even though the government “invented all of the details of the scheme,” the defendant’s express desire to “do something to America” and “die like a martyr” was sufficient to justify the government’s testing of how far he would go. Id. at 219. Like Mohamud, Cromitie argued that the government took advantage of his religious affiliation, but the court explained that a government agent “is entitled to probe the attitudes” of an individual who “volunteers that he wants to ‘do something to America’ . . . to learn whether his religious views have impelled him toward the violent brand of radical Islam that poses a dire threat to the United States.” Id. at 219–20.

16 These factors are analyzed collectively in determining whether government conduct is outrageous: “(1) known criminal characteristics of the defendants; (2) individualized suspicion of the defendants; (3) the government’s role in creating the crime of conviction; (4) the government’s encouragement of the defendants to commit the offense conduct; (5) the nature of the government’s participation in the offense conduct; and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue.” Black, 733 F.3d at 303. The first three are relevant to how the government set up the sting, the fourth and fifth analyze the government’s role in the sting, and the last relates to the justification for the operation. Id. at 303–04.

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Cromitie further claimed that the government had violated due process because a government informant had exploited his relationship with Cromitie to “manipulate Cromitie into agreeing to the planned attacks”; the court cited our precedent indicating that “the ‘illusory cultivation of emotional intimacy’ does not exceed due process limits.” Id. at 220 (quoting United States v. Simpson, 813 F.2d 1462, 1467 (9th Cir. 1987)). Even considering certain monetary benefits offered by the government informant—including $250,000 cash, a barbershop valued at $70,000, a new BMW, and a two-week vacation—the court held that the overall operation did not rise to the level of a due process violation. Id. Although Mohamud may have been more vulnerable than Cromitie, the government’s questionable actions in that case far exceeded anything here.

In light of the extremely high standard set out in Black, we hold that the government’s conduct here did not violate due process.

C. Late Notice Of § 702-Derived Evidence

FISA requires the government to “notify the aggrieved person and the court” prior to trial when it intends to use at trial evidence “obtained or derived from electronic surveillance” pursuant to FISA. 50 U.S.C. § 1806(c); see also 50 U.S.C. § 1881e(a) (stating that information acquired under § 702 is subject to the notice requirement in § 1806(c)). The government provided a supplemental notice regarding evidence derived under § 702 after the trial concluded. Mohamud argues that this late disclosure mandates suppression, or at a minimum, discovery and an evidentiary hearing to explore the tardy disclosure.

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In answering this question, we must keep two principles in mind. First, “[s]uppression of evidence . . . has always been our last resort, not our first impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006); see also Davis v. United States, 564 U.S. 229, 237 (2011) (“For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.”); Sanchez-Llamas v. Oregon, 548 U.S. 331, 347 (2006) (“[T]he exclusionary rule is not a remedy we apply lightly.”). Second, Congress has the power to authorize suppression for statutory violations, as it has done elsewhere in FISA. See 50 U.S.C. §§ 1806(g), 1825(h), 1845(g) (FISA); see also 18 U.S.C. § 2518(10)(a) (Title III wiretap). However, Congress has not mandated suppression as a remedy for late disclosure of a FISA notice, and, indeed, it apparently anticipated the possibility of post-trial notification. See 50 U.S.C. § 1806(e) (providing that a motion to suppress “unlawfully acquired” or nonconforming information “shall be made before the trial . . . unless . . . the person was not aware of the grounds of the motion”). These two principles strongly suggest that automatic suppression is not a required remedy for delayed FISA disclosure.

And in any case, Mohamud cannot demonstrate how the late disclosure prejudiced him. As the district court explained, it fully evaluated the § 702-derived evidence as if the motion had been brought before trial. This put Mohamud in the same position he would have been in if the government had provided timely notice.

Moreover, the district court found that the late disclosure was not due to “prosecutorial misconduct.” Rather, the government had changed its legal opinion about when evidence could be considered “derived from” § 702 surveillance, performed another review of this case, and

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provided the late supplemental notice on its own initiative. Our review of the unclassified and classified record supports that the district court did not clearly err in finding no prosecutorial misconduct.17

As the district court recognized, it had the power to suppress evidence, or even dismiss the indictment or grant a new trial, under its supervisory and statutory authority. See Stinson, 647 F.3d at 1210 (stating that a court may exercise its supervisory powers “to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; or to deter future illegal conduct” (citation omitted)); see also Fed. R. Crim. P. 16(d)(2). However, the district court determined that suppression as a sanction for the late supplemental FISA notice was not warranted here, and we agree.

We conclude that, under the circumstances of this case,
the district court did not err in denying Mohamud’s motion to suppress premised on the late supplemental FISA notice.18

17 We do not reach whether suppression is necessary as a deterrent in light of the government’s apparent self-correction of its practices. See United States v. Dreyer, 804 F.3d 1266, 1280 (9th Cir. 2015) (en banc).
18 We also conclude that the district court did not abuse its discretion in denying discovery and an evidentiary hearing to explore the government’s late disclosure. Mohamud’s reliance on United States v. Hernandez-Meza, 720 F.3d 760, 769 (9th Cir. 2013), is misplaced because the record here does not “suggest[] that the government may have deliberately withheld” the supplemental FISA notice. Therefore, we decline Mohamud’s alternative request to remand for further fact finding.

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D. Section 702 Collection of Mohamud’s Email Communications

1. Legal Background

In 1978, Congress enacted FISA “to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013) (citing 50 U.S.C. § 1801 et seq.). To do so, the government must obtain a FISA warrant from the FISC. Id. The FISA Court of Review assesses any denials by the FISC of applications for electronic surveillance. Id.

Thirty years later, Congress enacted § 702 as part of the FISA Amendments Act of 2008. 50 U.S.C. § 1881a. Section 702 “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 the communications of non-U.S. persons located abroad.” Clapper, 133 S. Ct. at 1144. “Unlike traditional FISA surveillance, § [702] does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power.” Id. “And, unlike traditional FISA, § [702] does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur.” Id. Instead, § 702 mandates that the government obtain the FISC’s “approval of ‘targeting’ procedures, ‘minimization’ procedures, and a governmental certification regarding proposed surveillance.” Id. at 1145 (quoting 50 U.S.C. § 1881a(a), (c)(1), (i)(2), (i)(3)).

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2. No Fourth Amendment Violation

Although § 702 potentially raises complex statutory and constitutional issues, this case does not. As explained below, the initial collection of Mohamud’s email communications did not involve so-called “upstreaming” or targeting of Mohamud under § 702, more controversial methods of collecting information.19 It also did not involve the retention and querying of incidentally collected communications. All this case involved was the targeting of a foreign national under § 702, through which Mohamud’s email communications were incidentally collected. Confined to the particular facts of this case, we hold that the § 702 acquisition of Mohamud’s email communications did not violate the Fourth Amendment.20

At our request post-argument, the government declassified certain facts about Mohamud’s surveillance. Through the monitoring of a foreign national’s email account,

19 Under “upstream” collection, entire streams of Internet traffic flowing across major U.S. networks are acquired and searched, as opposed to “PRISM” collection, under which particular user accounts are monitored, and communications to or from those accounts are collected, including communications with U.S. persons. See, e.g., Privacy & Civil Liberties Oversight Board (“PCLOB”), Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (July 2, 2014), at 7 (hereinafter “PCLOB Report”); see also id. at 33–41 (comparing PRISM and upstream collection).
20 In light of our holding, we do not reach the question of whether the good faith exception to the exclusionary rule provides an independent basis to affirm the district court’s denial of Mohamud’s motion to suppress. See generally Davis, 564 U.S. at 240–42; Illinois v. Krull, 480 U.S. 340, 349–55 (1987); United States v. Leon, 468 U.S. 897, 925 (1984).

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the United States government learned that Mohamud was in contact with that foreign national, who was located overseas. This contact—a limited number of emails between Mohamud and the foreign national—was used to obtain a FISA warrant to surveil Mohamud and his activities. None of these emails was introduced at trial.21 We permitted the parties to file supplemental briefs to address the facts offered in the postargument disclosure.

a. No Warrant Required to Intercept Overseas Foreign National’s Communications or to Intercept U.S. Person’s Communications Incidentally

As a threshold matter, “the Fourth Amendment does not apply to searches and seizures by the United States against a non-resident alien in a foreign country.” United States v.

21 We address only Mohamud’s as-applied challenge. See United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). Though he also purports to challenge § 702 facially, citing City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451 (2015), Mohamud does not explain why techniques not employed in this case would require suppression of the evidence gathered here. We do not read Patel to permit courts, in a criminal prosecution, to suppress evidence based on a Fourth Amendment challenge to techniques not employed in a particular case. See, e.g., United States v. Posey, 864 F.2d 1487, 1491 (9th Cir. 1989) (“[W]e think it clear that appellant may not make a facial challenge to the FISA without arguing that the particular surveillance against him violated the Fourth Amendment. . . . Even if he is correct that the FISA’s language might be applied in ways that violate the Fourth Amendment, he must show that the particular search in his case violated the Fourth Amendment. Appellant cannot invalidate his own conviction on the argument that others’ rights are threatened by FISA.” (emphasis in original)).

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39

Zakharov, 468 F.3d 1171, 1179 (9th Cir. 2006) (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 274–75 (1990)); see also Verdugo-Urquidez, 494 U.S. at 274–75 (“At the time of the search, [respondent] was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application.”). Thus, the government’s monitoring of the overseas foreign national’s email fell outside the Fourth Amendment.

Mohamud argues that under Verdugo-Urquidez, the location of the search matters, and that here, the searches took place in the United States.22 Indeed, the government acknowledges that “collection from service providers under Section 702 takes place within the United States.” Yet, as one court put it, “what matters here is the location of the target,” and not where the government literally obtained the electronic data. United States v. Hasbajrami, No. 11-CR623, 2016 WL 1029500, at *9 n.15 (E.D.N.Y. Mar. 8, 2016) (emphasis in original); see also Kris & Wilson, National Security Investigations & Prosecutions § 17:3 (2016) (“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.”).

Consistent with Verdugo-Urquidez and our precedent, we hold that this particular type of non-upstream collection—

22 Mohamud also argues that the targeted foreign national may have had sufficient “voluntary connection[s]” to the United States for the Fourth Amendment to apply. See Verdugo-Urquidez, 494 U.S. at 271, 273. We have reviewed the classified record, and are satisfied that is not the case here.

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where a search was not directed at a U.S. person’s communications, though some were incidentally swept up in it—does not require a warrant, because the search was targeted at a non-U.S. person with no Fourth Amendment right.

The FISA Review Court in In re Directives Pursuant to Section 105B of FISA, similarly applied this principle, holding that “incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.” 551 F.3d 1004, 1015 (FISA Ct. Rev. 2008); see also United States v. Donovan, 429 U.S. 413, 436 n.24 (1977) (holding that a Title III wiretap warrant is not made unconstitutional by “failure to identify every individual who could be expected to be overheard,” but “the complete absence of prior judicial authorization would make an intercept unlawful”); United States v. Bin Laden, 126 F. Supp. 2d 264, 280 (S.D.N.Y 2000) (explaining that “in the Title III context, incidental interception of a person’s conversations during an otherwise lawful surveillance” does not violate the Fourth Amendment).

Mohamud and Amici23 urge us not to apply this “incidental overhear” approach. First, Amici contend that surveillance of U.S. persons’ communications under § 702 is not “incidental” because the monitoring of communications between foreign targets and U.S. persons was specifically contemplated and to some degree desired. We agree that such communications were anticipated. As the Privacy and Civil Liberties Oversight Board found with respect to PRISM collection, “[t]he collection of communications to and from

23 Amici are the American Civil Liberties Union, American Civil Liberties Union of Oregon, and the Electronic Frontier Foundation.

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a target inevitably returns communications in which nontargets are on the other end, some of whom will be U.S. persons. Such ‘incidental’ collection of communications is not accidental, nor is it inadvertent.” PCLOB Report at 82; see also Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content, 38 Harv. J.L. & Pub. Pol’y 117, 159–64, 259–62 (2015) (discussing the relative volume and intrusiveness of surveillance authorized under § 702). The fact that the government knew some U.S. persons’ communications would be swept up during foreign intelligence gathering does not make such collection any more unlawful in this context than in the Title III or traditional FISA context.

Mohamud and Amici also contend that the “sheer amount of ‘incidental’ collection” separates § 702 from prior cases where courts have found such collection permissible. We agree with the district court’s observation that the most troubling aspect of this “incidental” collection is not whether such collection was anticipated, but rather its volume, which is vast, not de minimis. See PCLOB Report at 114 (“The term ‘incidental’ is appropriate because such collection is not accidental or inadvertent, but rather is an anticipated collateral result of monitoring an overseas target. But the term should not be understood to suggest that such collection is infrequent or that it is an inconsequential part of the Section 702 program.”). This quantity distinguishes § 702 collection from Title III and traditional FISA interceptions. However, the mere fact that more communications are being collected incidentally does not make it unconstitutional to apply the same approach to § 702 collection, though it does

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increase the importance of minimization procedures once the communications are collected.24

Additionally, Mohamud and Amici contend that prior cases upholding incidental collection involved prior judicial review or a “narrowly drawn exception to the warrant requirement,” as opposed to the collection here. See, e.g., United States v. Kahn, 415 U.S. 143, 156–57 (1974) (upholding interception of communications of a woman that were incidentally collected under a wiretap order targeting her husband); United States v. Figueroa, 757 F.2d 466, 473–75 (2d Cir. 1985) (holding that wiretap order was not made unconstitutional by permitting interception of conversations of “others as yet unknown”); see also United States v. Martin, 599 F.2d 880, 884–85 (9th Cir. 1979) (holding that the Fourth Amendment does not require wiretap application to show probable cause that non-targeted individual named as a “probable converser” committed a crime), overruled on other grounds by United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc). However, the searches in those cases targeted United States citizens and took place within the United States, so a warrant was required for the initial search to be constitutionally permissible. But “the guiding principle behind them applies with equal force here: when surveillance is lawful in the first place—whether it is the domestic surveillance of U.S. persons pursuant to a warrant, or the warrantless surveillance of non-U.S. persons who are abroad—the incidental interception of non-targeted U.S. persons’ communications with the targeted persons is also lawful.” Hasbajrami, 2016 WL 1029500, at *9.

24 To the extent that Amici argue that the incidental overhear doctrine permits the unconstitutional and widespread retention and querying of the incidentally collected information, that issue is not before us.

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For these reasons, and because the target of the surveillance was a non-U.S. person located outside of the United States at the time of the surveillance, the government was not required to obtain a search warrant to collect Mohamud’s email communications with the overseas foreign national as an incident to its lawful search of the foreign national’s email.25

b. Collection of Mohamud’s Emails was Reasonable

Assuming that Mohamud had a Fourth Amendment right
in the incidentally collected communications, the search at issue was reasonable under the Fourth Amendment.26

“Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution.” Maryland v. King, 133 S.

25 Because the incidental collection excepts this search from the Fourth Amendment’s warrant requirement, we need not address any “foreign intelligence exception.”
26 It is unclear whether Mohamud had a right to bar use of these incidentally-collected communications in evidence against him on the basis that the communications were seized in violation of the Fourth Amendment. Commentators suggest that he does, so we will assume that here. See, e.g., Orin S. Kerr, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 285, 313–14 (2015) (“Communicating with a person who lacks Fourth Amendment rights should not waive the rights of the person who has those rights. The Fourth Amendment should continue to fully protect the U.S. person who communicates with those lacking Fourth Amendment rights.”); PCLOB Report at 94 (“The government has acknowledged that the Fourth Amendment rights of U.S. persons are affected when their communications are acquired under Section 702 incidentally or otherwise[.]”).

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Ct. 1958, 1970 (2013). In deciding reasonableness, we examine the totality of the circumstances and weigh “‘the promotion of legitimate governmental interests’ against ‘the degree to which [the search] intrudes upon an individual’s privacy.’” Id. (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). We agree with the district court that under these circumstances, the search was reasonable under the Fourth Amendment.

i. Government Interest

“[T]he Government’s interest in combating terrorism is an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010). Neither Mohamud nor Amici challenge this. Instead, they argue that (1) the statutory definition of “foreign intelligence information” in § 702 is overbroad because it is not confined to national security information but also includes “the conduct of [] foreign affairs”27; and (2) even if national security justifies the initial acquisition, it is unreasonable to then retain and later search U.S. persons’ § 702-acquired communications without a warrant.

The declassified facts foreclose both arguments. First, as the district court observed, “the discovery in this case all concerned protecting the country from a terrorist threat and did not stray into the broader category of the conduct of foreign affairs.” Thus, we need not determine whether the collection of foreign affairs communications is reasonable. Similarly, the second argument is also outside the scope of our review, as no such retention and querying is at issue in this case.

27 See 50 U.S.C. §§ 1801(e)(2)(b), 1881(a).

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45

ii. Mohamud’s Privacy Interest

The parties agree that Mohamud had some expectation of privacy in his electronic communications, but disagree as to the strength of his interest. The government argues that U.S. persons have a limited expectation of privacy when communicating electronically with non-U.S. persons located outside the United States because of the Fourth Amendment’s “third-party” doctrine—that a person’s privacy interest is diminished where he or she reveals information to a third party, even in confidence. Mohamud contends that the voluntary disclosure of information to third parties does not reduce the expectation of privacy. The district court determined that under the third-party doctrine, Mohamud had a reduced expectation of privacy in his communications to third parties. We agree.

With respect to a U.S. person’s privacy interest, we treat emails as letters. See, e.g., [Redacted], 2011 WL 10945618, at *26 (FISA Ct. Oct. 3, 2011) (“Whether they are transmitted by letter, telephone or e-mail, a person’s private communications are akin to personal papers.”); United States v. Warshak, 631 F.3d 266, 285–86 (6th Cir. 2010) (“Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.”). Accordingly, until electronic communications reach the recipient, they retain the same level of privacy interest as if they were still in the home. See, e.g., United States v. Van Leeuwen, 397 U.S. 249, 251 (1970).

But as with letters, “[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.’”

46

UNITED STATES V. MOHAMUD

United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007) (quoting United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (citing Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001))); see also Guest, 255 F.3d at 333 (“[Users] would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose ‘expectation of privacy ordinarily terminates upon delivery’ of the letter.” (citation omitted)).

It is true that prior case law contemplates a diminished expectation of privacy due to the risk that the recipient will reveal the communication, not that the government will be monitoring the communication unbeknownst to the third party. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976); United States v. White, 401 U.S. 745, 752 (1971); Hoffa v. United States, 385 U.S. 293, 302 (1966). While these cases do not address the question of government interception, the communications at issue here had been sent to a third party, which reduces Mohamud’s privacy interest at least somewhat, if perhaps not as much as if the foreign national had turned them over to the government voluntarily. See also Hasbajrami, 2016 WL 1029500 at *11 & n.18 (observing same distinction).

Thus, Mohamud’s interest in the privacy of his communications received by the overseas foreign national is diminished.

iii. Privacy Protecting Measures

An important component of the reasonableness inquiry is whether the FISC-approved targeting and minimization measures sufficiently protect the privacy interests of U.S.

UNITED STATES V. MOHAMUD

47

persons. Targeting and minimization procedures govern, respectively, who may be targeted for surveillance and how intercepted communications are to be retained and disseminated.

In brief, 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.” 50 U.S.C. § 1881a(d)(1). Among other requirements, minimization procedures must be “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)(1), 1881a(e)(1).

After evaluating the protections detailed in § 702 and the classified minimization procedures, the district court concluded that as applied to Mohamud, § 702 is reasonable under the Fourth Amendment. Based on our review of the classified record, we agree that the applicable targeting and minimization procedures, which were followed in practice, sufficiently protected Mohamud’s privacy interest.

The government also contends that certain oversight procedures provide an important check on Executive Branch actions. For example, § 702 requires the Attorney General (“AG”) and Director of National Intelligence (“DNI”) to certify, among other things, that (1) a significant purpose of

48

UNITED STATES V. MOHAMUD

the acquisition is to obtain foreign intelligence information, (2) they have adopted guidelines to ensure compliance with the statutory limitations in § 702(b), and (3) the targeting and minimization procedures and guidelines are consistent with the Fourth Amendment. 50 U.S.C § 1881a(g)(2)(A); see also id. § 1881a(g)(1)(B) (providing that if the AG and DNI determine that “time does not permit the submission of a certification under this subsection prior to the implementation of an authorization under subsection (a)” they shall submit the certification “as soon as practicable but in no event later than 7 days after such determination is made”). Further, the AG and DNI must periodically assess whether the government is complying with FISC-approved targeting and minimization procedures and guidelines, which adds further oversight and privacy protections. See 50 U.S.C. § 1881a(i).

While Executive Branch certification contributes some degree of further protection, it does not weigh heavily. Typically in the Fourth Amendment context, review from a neutral magistrate is considered the appropriate check on the Executive, which otherwise may be motivated by its interest in carrying out its duties. See, e.g., Leon, 468 U.S. at 913–14 (explaining that in obtaining a search warrant, a neutral magistrate is “a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime’” (citation omitted)). Under these circumstances, where the only judicial review comes in the form of the FISC reviewing the adequacy of procedures, this type of internal oversight does not provide a robust safeguard. The government notes that in In re Sealed Case, 310 F.3d 717, 739 (FISA Ct. Rev. 2002), the FISA Review Court observed that Congress recognized that certification by the AG in the traditional FISA context would “‘assure [ ] written

UNITED STATES V. MOHAMUD

49

accountability within the Executive Branch’ and provide ‘an internal check on Executive Branch arbitrariness.’” (citation omitted). However, as described above, § 702 differs in important ways from traditional FISA, and a mechanism that might provide additional protections above and beyond those already employed in a traditional FISA context provides far less assurance and accountability in the § 702 context, which lacks those baseline protections. See also Clapper, 133 S. Ct. at 1144–45.

Accordingly, although we do not place great weight on the oversight procedures, under the totality of the circumstances, we conclude that the applied targeting and minimization procedures adequately protected Mohamud’s diminished privacy interest, in light of the government’s compelling interest in national security.

In sum, even assuming Mohamud had a Fourth Amendment right in the incidentally collected communications, the search was reasonable. Thus, we hold that the application of § 702 did not violate the Fourth Amendment under the particular facts of this case.28

28 We also agree with the district court that the FISC survives separation of powers and non-delegation challenges, as FISC review of § 702 surveillance applications does not “interfere[] with the prerogatives of another branch of government beyond requiring the executive branch to conform to the statute,” and is “central to the mission of the judiciary” as it is similar to “the review of search warrants and wiretap applications.” See Mistretta v. United States, 488 U.S. 361, 388 (1989). Further, we agree with the district court that FISC opinions are not advisory because the FISC either approves or denies the requested acquisition (and electronic communication service providers must follow the directives or challenge them). See 50 U.S.C. § 1881a(h), (i)(2). Finally, the district court correctly rejected Mohamud’s First Amendment challenge, as motions to suppress based on First Amendment violations are analyzed

50

UNITED STATES V. MOHAMUD

IV. CONCLUSION

Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements.

AFFIRMED.

under the Fourth Amendment. See, e.g., United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007) (where a party alleges that a criminal investigation violated the First Amendment rights of a third party, “we have held that the Fourth Amendment provides the relevant benchmark” (emphasis in original)); United States v. Aguilar, 883 F.2d 662, 697 (9th Cir. 1989).

 
 Case 3:10-cr-00475-KI Document 524 Filed 10/03/14 Page 1 of 7

AO 245B

(Rev. 09/11) Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED 11/2011 Sheet 1

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

V.

Case Number: 3:10-CR-00475-KI

USM Number: 73079-065

MOHAMED OSMAN MOHAMUD

Steven T. Wax, Lisa Hay and Stephen R. Sady Defendant’s Attorney

Ethan D. Knight and Pamala R. Holsinger Assistant U.S. Attorney

THE DEFENDANT:

[ ] pleaded guilty to count(s)

[ ] pleaded nolo contendere to count(s)

W hich was accepted by the court.

[X] was found guilty on count ONE (1) of the Indictment after a plea of not guilty.

The defendant is adjudicated guilty of the following offense(s):

Title & Section

Nature of Offense

Date Offense Concluded

Count Number(s)

18 USC § 2332a(a)(2)(A) Attempt to Use a Weapon of Mass Destruction

On or about

ONE

November 26, 2010

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.

[ ] The defendant has been found not guilty on count(s)

, an d is discharged as to such count(s).

[ ] Count(s)

Is/are d ismissed on the motion of the United States.

[X] The defendant shall pay a special assessment in the amount of $100.00 for Count ONE (1) payable immediately to the Clerk of

the U.S. District Court. (See also the Criminal Monetary Penalties sheet.)

IT IS ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant shall notify the court and the United States Attorney of any material change in the defendant’s economic circumstances.

October 1, 2014 Date of Imposition of Sentence

/s/ Garr M. King Signature of Judicial Officer

GARR M. KING, UNITED STATES DISTRICT JUDGE Name and Title of Judicial Officer

October 3, 2014 Date

Case 3:10-cr-00475-KI Document 524 Filed 10/03/14 Page 2 of 7

AO 245B

(Rev. 09/11) Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED 11/2011 Sheet 2 – Imprisonment

DEFENDANT: MOHAMUD, MOHAMED OSMAN CASE NUMBER: 3:10-CR-00475-KI

Judgment–Page 2 of 7

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of: THIRTY (30) Years.

[X] The court makes the following recommendations to the Bureau of Prisons: Because of the defendant’s family ties, the Court strongly recommends the defendant be designated to FCI Sheridan or in the alternative USP Atwater or USP Victorville. The court further recommends the defendant be afforded drug treatment at this facility pursuant to 18 USC § 3621.

[X] The defendant is remanded to the custody of the United States Marshal.

[ ] The defendant shall surrender to the United States Marshal for this district:

[ ] at

[ ] a.m . [ ] p.m. on

.

[ ] as notified by the United States Marshal.

[ ] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

[ ] before 2:00 p.m. on

.

[ ] as notified by the United States Marshal and/or Pretrial Services.

The Bureau of Prisons will determine the amount of prior custody that may be credited towards the service of sentence as authorized by Title 18 USC §3585(b) and the policies of the Bureau of Prisons.

I have executed this judgment as follows:

RETURN

Defendant delivered on at

To , w ith a certified copy of this judgment.
UNITED STATES MARSHAL
BY DEPUTY UNITED STATES MARSHAL

Case 3:10-cr-00475-KI Document 524 Filed 10/03/14 Page 3 of 7

AO 245B

(Rev. 09/11) Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED 11/2011 Sheet 3 – Supervised Release

DEFENDANT: MOHAMUD, MOHAMED OSMAN CASE NUMBER: 3:10-CR-00475-KI

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of LIFE .

Judgment–Page 3 of 7

The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter.
[ ] The above drug testing condition is suspended, based on the court’s determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.)
If this judgment imposes a fine or restitution obligation, it shall be a condition of supervised release that the defendant pay any such fine or restitution that remains unpaid at the commencement of the term of supervised release in accordance with the Schedule of Payments set forth in the Criminal Monetary Penalties section of this judgment.
The defendant shall comply with the Standard Conditions of Supervised Release that have been adopted by this court as set forth in this judgment. The defendant shall also comply with the Special Conditions of Supervision as set forth below and any additional conditions attached to this judgment.
SPECIAL CONDITIONS OF SUPERVISION
1. The defendant shall cooperate in the collection of DNA as directed by the probation officer, if required by law.
2. The defendant shall have no contact with individuals located outside the United States (by telephone, through online or other correspondence, or through a third party), unless approved in advance by the probation officer.
3. The defendant is prohibited from accessing any online computer service at any location (including employment or education) without the prior written approval of the U.S. Probation Officer.
4. The defendant is prohibited from using or possessing any computer(s) (including any handheld computing device, any electronic device capable of connecting to any on-line service, or any data storage media) without the prior written approval of the U.S. Probation Officer. This includes, but is not limited to, computers at public libraries, Internet cafes, or the defendant’s place of employment or education.
5. The defendant shall participate in the U.S. Probation Office’s Computer Monitoring Program. Participation in the Program may include installation of software or hardware on the defendant’s computer that allows random or regular monitoring of the defendant’s computer use; periodic inspection of defendant’s computer (including retrieval, copying, and review of its electronic contents) to determine defendant’s compliance with the Program; and restriction of the defendant’s computer use to those computers, software programs, and electronic services approved by the U.S. Probation Officer.
6. The defendant shall provide the U.S. Probation Officer with truthful and complete information regarding all computer hardware, software, electronic services, and data storage media to which the defendant has access.
7. The defendant shall submit to a search of defendant’s computer (including any handheld computing device, any electronic device capable of connecting to any online service, or any data storage media) conducted by a U.S. Probation Officer, at a reasonable time and in a reasonable manner, based upon reasonable suspicion of a violation of a condition of supervision. Failure to submit to a search may be grounds for revocation. The defendant shall warn all individuals that have access to defendant’s computer that it is subject to search and/or seizure.

Case 3:10-cr-00475-KI Document 524 Filed 10/03/14 Page 4 of 7

AO 245B

(Rev. 09/11) Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED 11/2011 Sheet 3 – Supervised Release

DEFENDANT: MOHAMUD, MOHAMED OSMAN CASE NUMBER: 3:10-CR-00475-KI

Judgment–Page 4 of 7

8. Defendant shall not possess or consume alcohol or frequent an establishment where alcohol is the primary item for sale.

9. The defendant shall participate in a mental health treatment program approved by the probation officer.

Case 3:10-cr-00475-KI Document 524 Filed 10/03/14 Page 5 of 7

AO 245B

(Rev. 09/11) Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED 11/2011 Sheet 5 – Supervised Release

DEFENDANT: MOHAMUD, MOHAMED OSMAN CASE NUMBER: 3:10-CR-00475-KI

Judgment–Page 5 of 7

STANDARD CONDITIONS OF PROBATION AND SUPERVISED RELEASE

The Judges of the District of Oregon adopt the following standard conditions of probation and supervised release to apply in every case in which probation and/or supervised release is imposed upon a defendant. The individual judge may impose other conditions deemed advisable in individual cases of probation or supervised release supervision, as consistent with existing or future law.
1. The defendant shall report in person to the probation office for the district to which he or she is released within 72 hours of release from the custody of the Bureau of Prisons.
2. The defendant shall not commit another federal, state, or local crime and shall not illegally possess a controlled substance. Revocation of probation or supervised release is mandatory for illegal possession of a controlled substance.
3. The defendant shall not possess a firearm, destructive, or dangerous device. 4. If the defendant illegally uses drugs or abuses alcohol, has a history of drug or alcohol abuse, or drug use or possession is
determined to be an element of the defendant’s criminal history or instant offense, the defendant shall participate in a substance abuse treatment program as directed by the probation officer which may include urinalysis testing to determine if the defendant has used drugs or alcohol. In addition to urinalysis testing that may be part of a formal drug treatment program, the defendant shall submit up to eight (8) urinalysis tests per month. 5. The defendant shall submit to a search of his/her person, residence, office or vehicle, when conducted by a United States Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of supervision. Failure to submit to a search may be grounds for revocation. The defendant shall warn other residents that the premises may be subject to searches pursuant to this condition. 6. The defendant shall not leave the judicial district without the permission of the court or probation officer. 7. The defendant shall report to the probation officer as directed by the court or probation officer, and shall submit a truthful and complete written report within the first five days of each month. 8. The defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer. The defendant may decline to answer inquiries if a truthful response would tend to incriminate him/her. Such a refusal to answer may constitute grounds for revocation. 9. The defendant shall support his or her dependents and meet other family responsibilities to the best of his or her financial ability. 10. The defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons. 11. The defendant shall notify the probation officer within 72 hours of any change in residence or employment. 12. The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician. If, at any time, the probation officer has reasonable cause to believe the defendant is using illegal drugs or is abusing alcohol, the defendant shall submit to urinalysis testing, breathalyzer testing, or reasonable examination of the arms, neck, face, and lower legs. 13. The defendant shall not knowingly frequent places where controlled substances are illegally sold, used, distributed, or administered. 14. The defendant shall not knowingly associate with any persons engaged in criminal activity, and shall not knowingly associate with any person convicted of a felony, unless granted permission to do so by the probation officer. 15. The defendant shall permit a probation officer to visit him or her at any reasonable time at home or elsewhere, and shall permit confiscation of any contraband observed in plain view by the probation officer. 16. The defendant shall notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer. 17. The defendant shall not enter into any agreement to act as an informant or special agent of a law enforcement agency without the permission of the court. 18. As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by his or her criminal record or personal history and characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such a notification requirement. This requirement will be exercised only when the probation officer believes a reasonably foreseeable risk exists or a law mandates such notice. Unless the probation officer believes the defendant presents an immediate threat to the safety of an identifiable individual, notice shall be delayed so the probation officer can arrange for a court hearing and the defendant can obtain legal counsel.

Case 3:10-cr-00475-KI Document 524 Filed 10/03/14 Page 6 of 7

AO 245B

(Rev. 09/11) Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED 11/2011 Sheet 6 – Criminal Monetary Penalties

DEFENDANT: MOHAMUD, MOHAMED OSMAN CASE NUMBER: 3:10-CR-00475-KI

Judgment–Page 6 of 7

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal monetary penalties in accordance with the Schedule of Payments set forth in this Judgment:

Assessment (as noted on Sheet 1)

Fine

Restitution

TOTAL

TOTALS

$100.00

$0.00

$0.00

$100.00

[ ] The determination of restitution is deferred until entered after such determination.

. An Amended Judgment in a Criminal Case will be

[ ] The defendant shall make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(I), all nonfederal victims must be paid in full prior to the United States receiving payment.

Name of Payee

Total Amount of Loss* $

Amount of Restitution Ordered
$

Priority Order or Percentage of Payment

TOTALS

$

$

[ ] If applicable, restitution amount ordered pursuant to plea agreement $

.

[ ] The defendant shall pay interest on any fine or restitution of more than $2,500, unless the fine or restitution is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on the Schedule of Payments may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

[ ] The court determined that the defendant does not have the ability to pay interest and it is ordered that:

[ ] the interest requirement is waived for the [ ] fine and/or [ ] restitution.

[ ] the interest requirement for the [ ] fine and/or [ ] restitution is modified as follows:

Any payment shall be divided proportionately among the payees named unless otherwise specified.

*Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18, United States Code, for offenses committed on or after September 13, 1994, but before April 23, 1996.

Case 3:10-cr-00475-KI Document 524 Filed 10/03/14 Page 7 of 7

AO 245B

(Rev. 09/11) Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED 11/2011 Sheet 7 – Schedule of Payments

DEFENDANT: MOHAMUD, MOHAMED OSMAN CASE NUMBER: 3:10-CR-00475-KI

Judgment–Page 7 of 7

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties shall be due as follows:

A. [X] Lump sum payment of $100.00 due immediately in full.

[ ] not later than

, or

[ ] in accordance with [ ] C or [ ] D below; or

B. [X] Payment to begin immediately (may be combined with C below), or

C. [ ]

If there is any unpaid balance at the time of defendant’s release from custody, it shall be paid in monthly installments of

not less than $

Until paid in full to commence immediately upon release from imprisonment.

D. [ ]

Special instructions regarding the payment of criminal monetary penalties:

[ ] Payment of criminal monetary penalties, including restitution, shall be due during the period of imprisonment as follows: (1) 50% of wages earned if the defendant is participating in a prison industries program; (2) $25 per quarter if the defendant is not working in a prison industries program.

It is ordered that resources received from any source, including inheritance, settlement, or any other judgment, shall be applied to any restitution or fine still owed, pursuant to 18 USC § 3664(n).

All criminal monetary penalties, including restitution, except those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the Clerk of Court at the address below, unless otherwise directed by the Court, the Probation Officer, or the United States Attorney.

[X] Clerk of Court US District Court - Oregon 1000 SW Third Avenue Suite 740 Portland, OR 97204

[ ] Clerk of Court US District Court - Oregon 405 East 8th Avenue Suite 2100 Eugene, OR 97401

[ ] Clerk of Court US District Court - Oregon 310 West Sixth Street Room 201 Medford, OR 97501

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

[ ] Joint and Several Case Number Defendant and Co-Defendant Names (including defendant number)

Total Amount

Joint and Several Amount

Corresponding Payee, if appropriate

[ ] The defendant shall pay the cost of prosecution. [ ] The defendant shall pay the following court cost(s): [ ] The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.

 
 Case 3:10-cr-00475-KI Document 542 Filed 03/16/17 Page 1 of 1

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No. 14-30217

FILED
MAR 16 2017
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Plaintiff-Appellee,

D.C. No. 3:10-cr-00475-KI-1

District of Oregon,

v.

Portland

MOHAMED OSMAN MOHAMUD,

ORDER

Defendant-Appellant.

Before: PREGERSON, BEA, and OWENS, Circuit Judges. The panel has voted to deny the petition for panel rehearing. Judges Bea
and Owens voted to deny the petition for rehearing en banc, and Judge Pregerson so recommends.
The full court has been advised of the suggestion for rehearing en banc, and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc are therefore DENIED.

 
 Case 3:10-cr-00475-HZ Document 46 Filed 05/19/11 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 10-475-KI

Plaintiff, vs.

OPINION AND ORDER

MOHAMED OSMAN MOHAMUD,

Defendant.

Dwight C. Holton United States Attorney District of Oregon Ethan D. Knight Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204

Jeffrey S. Sweet Assistant United States Attorney 405 East 8th Avenue, Suite 2400 Eugene, Oregon 97401

Attorneys for Plaintiff

Page 1 - OPINION AND ORDER

Case 3:10-cr-00475-HZ Document 46 Filed 05/19/11 Page 2 of 5
Stephen R. Sady Chief Deputy Federal Public Defender Steven T. Wax Ruben L. Iniguez Assistant Federal Public Defenders 101 SW Main Street, Suite 1700 Portland, Oregon 97204
Attorneys for Defendant
KING, Judge: Defendant’s Motion for Partial Sequestration of Witnesses and Preservation of Evidence
[30] is before the court. Defendant asks for an order prohibiting government witnesses involved in the July 30, 2010 meeting with him from discussing any aspect of that incident with each other, directly or indirectly, or reviewing any documents generated in connection with that meeting, and directing that all notes and other documentation of the meeting be preserved.
DISCUSSION An undercover government agent met with defendant for the first time on July 30, 2010. Defendant considers this first face-to-face meeting with a government agent critical to his defense. Although the government attempted to record this meeting, the equipment failed and no recording was made. Other government agents overheard the meeting, and two drafted reports documenting what they heard. Defendant is concerned that the government witnesses to the first meeting may be improperly influenced by other government witnesses, either through reading their reports or discussing the event with them. Based on the government’s response to a pending motion to compel, defendant concludes that the handwritten notes of one witness have been destroyed and
Page 2 - OPINION AND ORDER

Case 3:10-cr-00475-HZ Document 46 Filed 05/19/11 Page 3 of 5
another witness has not yet written a report. Defendant asks me to take immediate action to prevent any further contamination of witnesses and to preserve evidence.
The government states that it has taken steps to preserve any remaining notes or other documentation of the July 30, 2010 meeting. Although defendant argues that the government violated the Jencks Act when one agent destroyed his notes after completing a typewritten report, the Jencks Act only applies once a witness has testified at trial. 18 U.S.C. § 3500(a), (b) (“no statement . . . in the possession of the United States which was made by a Government witness . . . shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial”; “After a witness called by the United States has testified on direct examination, the court shall . . . order the United States to produce any statement . . . [on] the subject matter as to which the witness has testified.”). I will address any Jencks Act violations when and if they arise.
The government also assures the court that the government witnesses understand that they may not discuss the substance of their trial testimony prior to trial. The government argues that defendant’s concern about contamination of testimony or coached witnesses is best addressed by vigorous cross-examination at trial. Moreover, the government contends that the order defendant requests would severely limit the government’s further investigation and compliance with discovery obligations, which are ongoing. Finally, the government claims that no legal precedent supports defendant’s request to sequester witnesses during the pretrial phase of the case, which could be lengthy.
I am unaware of legal precedent directly on point which addresses this issue. In Gerders v. United States, 425 U.S. 80, 82, 91, 96 S. Ct. 1330 (1976), the Court held that the trial court’s
Page 3 - OPINION AND ORDER

Case 3:10-cr-00475-HZ Document 46 Filed 05/19/11 Page 4 of 5
order preventing a criminal defendant from speaking to his attorney “about anything” during a 17-hour overnight recess in the trial, which occurred between his direct and cross-examination, deprived the defendant of his Sixth Amendment right to counsel. Although the Court noted a judge’s power to control the shape of the trial by sequestering witnesses “before, during, and after their testimony,” the Court limited its holding: “We need not reach, and we do not deal with limitations imposed in other circumstances.” Id. at 87, 91. Most importantly, the Court was focused on the fact that the trial court issued the order during the trial and not months before.
Even assuming that I have authority to grant defendant’s request, I would only consider doing so in a very unusual situation. I do not see circumstances here which require me to interfere with the government’s ability to prosecute this case. I take the government at its word when counsel assures me that the agents are preserving all remaining notes about the meeting, and witnesses will not discuss with each other the substance of their testimony before trial. The defense can rely on effective cross-examination to determine if any government witness has changed his testimony to conform to the testimony of another witness. United States v. Sayakhom, 186 F.3d 928, 945 (9th Cir. 1999) (“Cross-examination and argument are the primary tools for addressing improper witness coaching.”). Discovery is an on-going and arduous task. The government needs its usual flexibility to be able to complete the task within a reasonable time frame.
For these reasons, I deny defendant’s request to sequester government witnesses involved in the July 30, 2010 meeting.
Page 4 - OPINION AND ORDER

Case 3:10-cr-00475-HZ Document 46 Filed 05/19/11 Page 5 of 5
CONCLUSION Defendant’s Motion for Partial Sequestration of Witnesses and Preservation of Evidence [30] is denied. I also vacate my April 13, 2011 interim order [32] that “government witnesses to the July 30, 2010 meeting with defendant . . . refrain from discussing the meeting with each other, directly or indirectly, . . . refrain from reviewing any documents generated by another person concerning that meeting, and . . . preserve all notes and documentation of the meeting.” IT IS SO ORDERED. Dated this 18th day of May, 2011.
/s/ Garr M. King Garr M. King United States District Judge
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 Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 1 of 11

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 3:10-CR-00475-KI

Plaintiff, v.

OPINION AND ORDER

MOHAMED OSMAN MOHAMUD,

Defendant.

S. Amanda Marshall United States Attorney District of Oregon Ethan D. Knight Pamala R. Holsinger Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204-2902
Attorneys for Plaintiff
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Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 2 of 11
Stephen R. Sady Chief Deputy Federal Public Defender Steven T. Wax Federal Public Defender Ellen C. Pitcher Assistant Federal Public Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204
Attorneys for Defendant
KING, Judge: Defendant Mohamed Osman Mohamud is charged with attempting to use a weapon of mass
destruction, specifically a destructive device or explosive bomb, against a person or property within the United States, in violation of 18 U.S.C. § 2332a(a)(2)(A).
As part of a national security investigation, FBI Special Agent (“SA”) Jason Dodd tasked a government informant known as “Bill Smith” to establish email contact with the person using the email address truthbespoken@gmail.com. This person turned out to be Mohamud. The email correspondence took place between November 2009 and April 2010. The government states the emails it produced to the defense constitute all of the communications between Bill Smith and Mohamud. The government also: (1) provided internal FBI reports documenting the email contacts between the two individuals; (2) informed the defense that it was SA Dodd who tasked Bill Smith concerning Mohamud; and (3) complied with a court order to produce payments the government made to Bill Smith for this case. Mohamud also sought the true identity of Bill Smith.
The court filed a discovery Order on May 8, 2012, which stated in part: A5–contact with defendant by “Bill Smith.” The court orders the
government to produce payments made to “Bill Smith” which are related to this case.
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Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 3 of 11
After further thought, the court changes its ruling concerning the identity of the agent. The government has a limited privilege to withhold the identity of a confidential informant. United States v. Henderson, 241 F.3d 638, 645 (9th Cir. 2000). The court must balance the defendant’s right to prepare a defense against the public interest in protecting the flow of information to preserve law enforcement objectives. To obtain the informant’s identity, the defendant must demonstrate that the identity is relevant and helpful to the defense or is essential to a fair trial. A “mere suspicion” that the information will prove helpful is insufficient to require disclosure of an informant’s identity. Id. Three factors are examined to balance the interests of society with the interests of the individual under the Confrontation Clause: (1) the degree of the informant’s involvement in the criminal activity; (2) how helpful the informant’s testimony would be to the defendant; and (3) the government’s interest in nondisclosure. United States v. Gil, 58 F.3d 1414, 1421 (9th Cir. 1995). The court concludes the balance supports withholding the agent’s identity. If the government intends to call “Bill Smith” as a witness, it must disclose his identity before trial.
Order 2, May 8, 2012, ECF No. 127.
Mohamud asks the court to reconsider and order the government to disclose Bill Smith’s
true identity.
DISCUSSION
I. Whether the Confidential Informant Privilege Applies
Mohamud argues the informant’s privilege does not apply to Bill Smith because he is not a
traditional informant who provides information about the commission of crimes of which the
informant is personally aware. Mohamud notes Bill Smith did not report a crime and did not use a
personal connection to connect undercover agents with a targeted person. Instead, the FBI directed
Bill Smith to contact Mohamud by email. Mohamud claims there is nothing about Bill Smith’s
actions that need to be protected.
The government maintains the FBI’s relationship with Bill Smith is arguably more
significant to protect than a relationship with a mere tipster. According to the government, Bill
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Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 4 of 11
Smith’s personal safety would be compromised if the court publically reveals that he is paid by the FBI. Moreover, the government is concerned that disclosure of the true identity could jeopardize matters related to Bill Smith’s undercover work.
The seminal case about the informant’s privilege is Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623 (1957). It explains the reason for the privilege:
What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. Id. at 59 (internal citations omitted). The informant in Roviaro was neither a tipster nor an innocent bystander who learned of a crime. Instead, the informant was described as a “special employee” who had been known to the federal agents for several years. On the night of the drug transaction, a police officer hid in the trunk of the informant’s car, with the informant’s knowledge, while the informant picked up the suspect and drove to a drug transaction. Id. at 56-57. The informant did not testify at trial. The Court explained the analysis: Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. Id. at 60-61. The Court reversed the conviction:
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Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 5 of 11
The circumstances of this case demonstrate that John Doe’s possible testimony was highly relevant and might have been helpful to the defense. So far as petitioner knew, he and John Doe were alone and unobserved during the crucial occurrence for which he was indicted. Unless petitioner waived his constitutional right not to take the stand in his own defense, John Doe was his one material witness. Petitioner’s opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction. Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner’s identity or on the identity of the package. He was the only witness who might have testified to petitioner’s possible lack of knowledge of the contents of the package that he ‘transported’ from the tree to John Doe’s car. The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.
Finally, the Government’s use against petitioner of his conversation with John Doe while riding in Doe’s car particularly emphasizes the unfairness of the nondisclosure in this case. The only person, other than petitioner himself, who could controvert, explain or amplify Bryson’s report of this important conversation was John Doe. Contradiction or amplification might have borne upon petitioner’s knowledge of the contents of the package or might have tended to show an entrapment.
Id. at 63-64.
Roviaro does not support Mohamud’s argument that the privilege is inapplicable to Bill
Smith. Bill Smith was paid to send Mohamud emails. The Roviaro informant, described as a
special employee, was presumably paid to drive the suspect to the drug deal with a police officer
hidden in the trunk. The government did not want to disclose the identity of the Roviaro informant
because he was working on other cases. The government raises the same interest here. I find the
privilege could apply to protect Bill Smith’s true identity.
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Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 6 of 11
II. Analysis of the Privilege The government interprets Roviaro to require balancing the public interest in protecting the
flow of information with the defendant’s right to prepare his defense. Mohamud disputes the government’s interpretation. Mohamud argues the cases do not weigh public safety concerns against the relevancy and helpfulness of the information to the defense. In support, Mohamud cites United States v. Ordonez, 737 F.2d 793, 809 (9th Cir. 1984):
If the district court believed that disclosure would have been “highly relevant and might have been helpful to the defense” ([Roviaro], 353 U.S. at 63–64, 77 S. Ct. at 629–630) of the appellants, it was error of constitutional dimension to deny disclosure solely because of the potential danger to the informer. If disclosure is essential to a fair determination of the case “the trial court may require disclosure, and, if the government withholds the information, dismiss the action.” [Roviaro], 353 U.S. at 61, 77 S. Ct. at 628. The defense fails to acknowledge that the issue is not black and white. Roviaro stated the following:
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. Roviaro, 353 U.S. at 62. Thus, I must balance the factors here. Moreover, the defendant bears the burden of showing the need for disclosure. United States v. Decoud, 456 F.3d 996, 1009 (9th Cir. 2006). The government argues Bill Smith had no involvement with Mohamud’s plan to detonate a bomb at the tree lighting ceremony, and that the email contact ceased well before any undercover
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Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 7 of 11
contact began which led to the charged conduct. As a result, the government contends his identity is not necessary to Mohamud’s defense.
Mohamud argues the balance of interests favors disclosure of Bill Smith’s identity. According to Mohamud, Bill Smith’s identity is highly relevant to Mohamud’s entrapment defense because Bill Smith is a witness to the first six months of the government’s contact with Mohamud. Mohamud characterizes the Bill Smith emails as the first government contact that invoked political, social, and religious themes, thus beginning the process of normalizing the idea in Mohamud’s mind of violent action within the United States. Mohamud claims the court should not artificially segment the various government contacts into discrete phases because the entire course of the government’s conduct is at issue in the entrapment defense. I agree that contacts by all government actors are relevant to the defense.
Mohamud contends the following testimony from Bill Smith would be relevant to proving both government inducement and lack of predisposition: (1) communications he sent; (2) his status as a government agent; (3) use of insider information about Mohamud; (4) how the varied inducement tactics shifted over time as the government refined its approach; (5) whether he interacted with Mohamud outside his role as Bill Smith; and (6) any contacts with Mohamud that Bill Smith did not report to his FBI handlers. Mohamud also seeks the true identity to subpoena payment vouchers, checks, and receipts to prove the nature and scope of the government agency.
The government’s main response is that the emails speak for themselves. According to the government, Bill Smith’s intent when choosing the language he used in the emails is not relevant, and the defense can argue an interpretation of the emails to the jury which supports the entrapment
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Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 8 of 11
defense. If Mohamud wants to claim the emails demonstrate an institutional determination to entrap him, the government argues Mohamud can question SA Dodd about the issue at trial.
Mohamud is unaware of any evidence that would suggest Bill Smith would be imperilled if his identity is disclosed. Mohamud acknowledges he does not know if the government seeks to shield Bill Smith to preserve other ongoing investigations or sting operations. If Bill Smith is engaging in other work similar to the emails in this case, however, Mohamud notes that Bill Smith is merely a stranger on the internet and could still communicate with unseen strangers after his true identity is revealed. Further, Mohamud argues the FBI chose to risk Bill Smith’s identity when it decided to use him rather than an FBI agent. Mohamud contends that SA Dodd cannot provide competent testimony as a proxy for Bill Smith because SA Dodd has admitted that he lacks good recall about the tasking of Bill Smith and there are no detailed, contemporaneous reports. Finally, Mohamud claims that concerns about public disclosure of Bill Smith’s identity could be alleviated with a protective order.
The current record is inadequate for me to decide whether to require disclosure of Bill Smith’s true identity. Accordingly, I will hold a hearing to supplement the record in the format I describe next. III. Type of Hearing
If the court does not find the current record sufficient to grant the motion to disclose Bill Smith’s identity, Mohamud argues the court must grant an in camera adversarial hearing to assess the relevance and helpfulness of Bill Smith’s potential testimony. Mohamud contends he has made more than a minimal threshold showing of relevance and is entitled to an in camera hearing.
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Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 9 of 11
The government does not believe the court must provide an in camera hearing, but if the
court disagrees, the government will make Bill Smith available for questioning in camera and ex
parte, with the government and the court asking questions submitted by defense counsel.
Balancing the defendant’s and the government’s interests, a district court must hold an in camera hearing whenever the defendant makes a minimal threshold showing that disclosure would be relevant to at least one defense. Such an in camera hearing is advantageous because it poses little risk of disclosing the identity of the informant and may provide many of the same benefits as disclosure itself, especially when defense counsel may participate under an order not to reveal any information disclosed during the hearing.
Henderson, 241 F.3d at 645 (internal quotation omitted).
I conclude Mohamud has made the minimal showing entitling him to an in camera hearing
because the current record is insufficient for me to make a decision. The final issue is whether the
defense team also participates.
Mohamud objects to the proposed ex parte hearing. He notes the defense team cannot
predict required follow-up questions or whether questions which expose the defense trial strategy
would become unnecessary as the hearing unfolds. In support of an ex parte hearing,
the government cites United States v. Anderson, 509 F.2d 724 (9th Cir. 1974), which analyzed
whether there was probable cause for a search, based on information from an informant.
Thus, rather than establishing a fixed rule that either requires or precludes disclosure of the informant’s identity when probable cause is in issue, we hold that the responsibility for striking the proper balance in each case rests with the trial judge. In striking that balance the trial judge, in the exercise of his discretion, can conduct an in camera hearing to which the defense counsel, but not the defendant, is admitted. The defense counsel could then be permitted to participate in the in camera proceedings and to cross-examine the in camera witness or witnesses. When defense counsel has been admitted to the in camera hearing for this limited purpose, the district court can and should, when appropriate, place defense counsel under enforceable orders against unwarranted disclosure of the evidence that he has heard. Cf. Alderman v. United States, 394 U.S. 165, 185, 89 S. Ct. 961, 22 L.
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Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 10 of 11
Ed.2d 176 (1969). If the trial judge is satisfied that an in camera hearing in which neither the defendant nor his attorney participates is adequate to explore the foundations of the informant’s information, then no disclosure is necessary. The trial court’s determination will be reversed only if it constitutes an abuse of discretion or constitutional error.
. . . The court accommodated the competing interest of the defendant in a fair trial through the use of an in camera hearing closed to the defendant and his attorney. We cannot say that the accommodation reached was an abuse of discretion. Nor can we say that the procedure infringed the defendant's rights under the Fifth and Sixth Amendments. See McCray v. Illinois, 386 U.S. at 313-314, 87 S. Ct. 1056. Moreover, having reviewed the transcript of the in camera proceedings, we affirm as not clearly erroneous the trial court’s finding that the informant’s conclusions were based upon sufficiently reliable information. Id. at 729-30. Although Anderson addresses a different issue–the existence of probable cause–it is sufficiently analogous to support my decision to hold an in camera, ex parte hearing over Mohamud’s objection. The hearing will be reported under seal to preserve the record for any appeal. I would like to hold the hearing as the first issue on August 8, 2012, a day set aside for several other matters in this case. I am willing to hold the hearing either in my chambers or, if the government prefers for security reasons, in the United States Attorney’s Office. Bill Smith should appear in person and not by telephone. Counsel should confer and let the court know if they want this hearing to be the first or the last matter addressed on that day. Defense counsel should submit questions they wish me to ask by August 6. Defense counsel should also be available by telephone during the hearing in case I wish to discuss the need for follow-up questions. The government may also ask questions of Bill Smith to make a record about the adverse effect of revealing his identity. I also ask the government to send me by August 6 an in camera copy of all the Bill Smith emails to allow me to prepare for the hearing.
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Case 3:10-cr-00475-HZ Document 167 Filed 07/23/12 Page 11 of 11

CONCLUSION

Defendant’s Motion for Reconsideration of Discovery Order Regarding Disclosure of

Government Agent Bill Smith’s True Identity [137] is granted to the extent the court will hold an

in camera, ex parte ruling before making a final ruling.

IT IS SO ORDERED.

Dated this 23rd

day of July, 2012.

/s/ Garr M. King Garr M. King United States District Judge

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 UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Criminal Case No. 3:10-CR-000475-KI

Plaintiff, v.

OPINION AND ORDER

MOHAMED OSMAN MOHAMUD,

Defendant.

Amanda Marshall United States Attorney District of Oregon Ethan D. Knight Pamala Holsinger Jolie F, Zimmerman Assistant United States Attorneys 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204
Attorneys for Plaintiff

Page 1 - OPINION AND ORDER

Steven T. Wax Federal Public Defender Stephen R. Sady Assistant Federal Pubic Defender 101 SW Main Street, Suite 1700 Portland, Oregon 97204
Attorneys for Defendant
KING, Judge: Defendant Mohamed Osman Mohamud is charged with attempting to use a weapon of mass
destruction, specifically a destructive device or explosive bomb, against a person or property within the United States, in violation of 18 U.S.C. § 2332a(a)(2)(A).
As part of a national security investigation, FBI Special Agent (“SA”) Jason Dodd tasked a government informant known as “Bill Smith” to establish email contact with the person using the email address truthbespoken@gmail.com. This person turned out to be Mohamud. The email correspondence took place between November 2009 and April 2010. The government has produced: (1) all emails between Bill Smith and Mohamud; (2) internal FBI reports documenting the email contacts between the two individuals; (3) a letter explaining SA Dodd tasked Bill Smith with contacting Mohamud; and (4) information on payments the government made to Bill Smith for this case. Mohamud also seeks the true identity of Bill Smith.
DISCUSSION In an Opinion and Order filed on July 23, 2012, ECF No. 167, I concluded the informant privilege could apply to protect Bill Smith’s true identity. I also concluded the record at the time was inadequate for me to decide whether to require disclosure of Bill Smith’s true identity. Accordingly,
Page 2 - OPINION AND ORDER

I held an in camera hearing on September 24, 2012 to supplement the record. Bill Smith attended the hearing and answered all questions under oath. The transcript of the hearing is sealed.
Over defense objections, I allowed the prosecutors to attend the hearing and question Bill Smith to make a record on the adverse effect of revealing his identity. I then questioned Bill Smith using questions supplied by defense counsel. The defense’s questions would have revealed evidence relevant to Mohamud’s entrapment defense, specifically concerning government inducement and Mohamud’s lack of predisposition.
As explained in the Opinion, the government has a limited privilege to withhold the identity of a confidential informant. United States v. Henderson, 241 F.3d 638, 645 (9th Cir. 2000). The court must balance the defendant’s right to prepare a defense against the public interest in protecting the flow of information to preserve law enforcement objectives. To obtain the informant’s identity, the defendant must demonstrate the identity is relevant and helpful to the defense or is essential to a fair trial. A “mere suspicion” the information will prove helpful is insufficient to require disclosure of an informant’s identity. Id. The court examines three factors to balance the interests of society with the interests of the individual under the Confrontation Clause: (1) the degree of the informant’s involvement in the criminal activity; (2) how helpful the informant’s testimony would be to the defendant; and (3) the government’s interest in nondisclosure. United States v. Gil, 58 F.3d 1414, 1421 (9th Cir. 1995).
I will discuss one aspect of Bill Smith’s testimony. As the government had previously represented, all of Bill Smith’s contacts with Mohamud were through the emails produced in discovery. Bill Smith never met Mohamud and had no other type of contact through telephone calls, text messages, regular mail, or other method. Thus, it is undisputed Bill Smith broke off contact
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with Mohamud in April 2010 and had no part in the scheme to explode a bomb at the tree lighting ceremony. There is no evidence to the contrary.
Since all of Bill Smith’s contacts are through email, and the government produced all the emails to the defense, I do not see how Bill Smith’s identity or testimony at trial would be helpful to Mohamud, including regarding his entrapment defense. I agree with the defense argument that Bill Smith’s contacts should be considered along with contacts by the undercover employees who met Mohamud in person. Contacts by all these actors are government contacts and not discrete events to be considered separately. But Bill Smith’s contacts are in writing. Mohamud can argue any meaning to the jury, including the beginning of an entrapment scheme, which he thinks the emails support. There is no issue of whether a face-to-face meeting is being remembered correctly by another participant. No matter who directed Bill Smith when he prepared the emails, or what strategy was involved, or whether Bill Smith followed orders or deviated from them, the emails were sent as produced to the defense. Whatever effect the emails had on Mohamud, the words in them are not in dispute.
Lastly, without going into any detail, the government established a solid and compelling interest in not disclosing Bill Smith’s true identity. If an appeal becomes necessary, the Ninth Circuit can review the sealed transcript.
After balancing the three factors, I conclude the balance supports withholding Bill Smith’s true identity. His identity is neither relevant nor helpful to the defense and is not essential to a fair trial. The emails speak for themselves.
I also wish to clarify whether I expect the government to provide any additional discovery concerning Bill Smith. Defense counsel quoted from the transcript of a previous court proceeding to
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argue I had ordered the government to produce more information. I accept the government’s

representation that it has produced the materials I listed at the beginning of this Opinion and that no

other material of that nature exists. I do not expect the government to produce any additional

discovery concerning Bill Smith.

CONCLUSION

I deny Mohamud’s request for disclosure of the true identity of Bill Smith.

IT IS SO ORDERED.

Dated this

26th

day of September, 2012.

/s/ Garr M. King Garr M. King United States District Judge

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 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.

No. 14-30217
D.C. No. 3:10-cr-00475-KI-1

MOHAMED OSMAN MOHAMUD, Defendant-Appellant.

OPINION

Appeal from the United States District Court for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted July 6, 2016 Portland, Oregon
Filed December 5, 2016
Before: Harry Pregerson, Carlos T. Bea, and John B. Owens, Circuit Judges.
Opinion by Judge Owens

2

UNITED STATES V. MOHAMUD

SUMMARY*

Criminal Law
The panel affirmed Mohamed Osman Mohamud’s conviction for attempting to detonate a large bomb during the annual Christmas Tree Lighting Ceremony in downtown Portland, Oregon, in violation of 18 U.S.C. § 2332a(a)(2)(A).
The panel held that the district court properly rejected Mohamud’s defense of entrapment as a matter of law. The panel could not say that no reasonable jury could have concluded that Mohamud was predisposed to commit the charged offense. Rejecting Mohamud’s alternative argument that the case should be dismissed because the government overreached in its “sting,” the panel wrote that while the government’s conduct was quite aggressive at times, it fell short of a due process violation.
The panel held that, under the circumstances of this case, the district court did not err in denying Mohamud’s motion to suppress, based on tardy disclosure, information collected pursuant to § 702 of the Foreign Intelligence Surveillance Act of 1978. The panel wrote that Mohamud cannot demonstrate prejudice, and that the district court did not err in finding that the late disclosure was not due to prosecutorial misconduct.
The panel held that the § 702 acquisition of Mohamud’s email communications did not violate the Fourth Amendment. The panel noted that all this case involved was
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

UNITED STATES V. MOHAMUD

3

the targeting of an overseas foreign national under § 702, through which Mohamud’s email communications were incidentally collected. The panel held that no warrant was required to intercept the overseas foreign national’s communications or to intercept a U.S. person’s communications incidentally. Assuming that Mohamud had a Fourth Amendment right in the incidentally collected communications, the panel held that the search was reasonable under the Fourth Amendment. The panel wrote that declassified facts foreclosed the argument that the discovery in this case strayed from protecting the country from a terrorist threat into the conduct of foreign affairs. Because no retention and querying of the incidentallycollected communications is at issue in this case, an argument regarding reasonableness was outside the scope of this court’s review. The panel held that under the third-party doctrine, Mohamud had a reduced expectation of privacy in his communications to third parties. The panel held that Foreign Intelligence Surveillance Court-approved targeting and minimization procedures, which were followed in practice, sufficiently protected Mohamud’s privacy interest, in light of the government’s compelling interest in national security.

COUNSEL
Stephen R. Sady (argued), Chief Deputy Federal Public Defender; Mark Ahlemeyer, Assistant Federal Public Defender; Lisa C. Hay, Federal Public Defender; Office of the Federal Public Defender, Portland, Oregon; Steven Toby Wax, Portland, Oregon; for Defendant-Appellant.

4

UNITED STATES V. MOHAMUD

Kelly A. Zusman (argued), Appellate Chief; Ethan D. Knight, Pamala R. Holsinger, and Ryan W. Bounds, Assistant United States Attorneys; Billy J. Williams, Acting Assistant United States Attorney; United States Attorney’s Office, Portland, Oregon; Joseph F. Palmer, Attorney, Appellate Unit; John P. Carlin, Assistant Attorney General; National Security Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

Patrick C. Toomey (argued) and Alex Abdo, New York, New York; Andrew Crocker and Mark Rumold, San Francisco, California; Mathew W. dos Santos, Portland, Oregon; as and for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Oregon, and Electronic Frontier Foundation.

Joshua L. Dratel, Law Offices of Joshua L. Dratel P.C., New York, New York; John D. Cline, Law Office of John D. Cline, San Francisco, California; for Amicus Curiae National Association of Criminal Defense Lawyers.

UNITED STATES V. MOHAMUD

5

OPINION

OWENS, Circuit Judge:

Mohamed Osman Mohamud appeals from his conviction for attempting to detonate a large bomb during the annual Christmas Tree Lighting Ceremony in Pioneer Courthouse Square in downtown Portland, Oregon, in violation of 18 U.S.C. § 2332a(a)(2)(A). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

I. FACTUAL BACKGROUND

A. Mohamud’s Activities Before Contact with the FBI

In many respects, Mohamud was like any other American teenager. He liked music, the Los Angeles Lakers, and hanging out with his friends. Born in Somalia, he immigrated to the United States at the age of three, and grew up in the Portland area.

But after a December 2008 incident at London’s Heathrow Airport, things changed. Believing that airport security racially profiled him, Mohamud wrote an email in London stating that it is “the evil zionist-crusader lobbyists who control the world,” and calling on Allah to send fighters against them. He also created a new email account while in London—truthbespoken@googlemail.com. That email account would play a significant role in the prosecution’s case.

1 We resolve several of Mohamud’s arguments in a concurrently filed memorandum disposition.

6

UNITED STATES V. MOHAMUD

In 2009, Mohamud began communicating over the Internet with Samir Khan, a United States citizen then living in North Carolina.2 Khan published Jihad Recollections, an online magazine aimed at English-speaking al-Qaeda supporters. From February to August 2009, Mohamud and Khan exchanged roughly 150 emails, with Mohamud using his truthbespoken email account. Topics included Islamic law and advice about personal relationships. They also outlined Mohamud’s support for Osama bin Laden.

During this time period, Mohamud wrote four articles for Jihad Recollections.3 Among other things, the articles recommended physical exercise to prepare for war with the West and analyzed Europe’s vulnerability to a jihadi attack. Mohamud’s initial drafts of these articles contained more incendiary content. For example, Mohamud praised the proficiency of the September 11, 2001, hijackers who “hit them so fast the Americans became dumbfounded,” the 2008 Mumbai attackers, who were “a great display of quickly entering the arena of battle and just decimating the kuffar [unbelievers],” and the fighters in Afghanistan who attacked landing American helicopters and then “finish[ed] off the wounded American soldiers.” Mohamud also prayed for Allah to help the reader “prepar[e] you to meet Allah as a martyr” and included a photograph of the Twin Towers burning during the September 11th attacks. Khan removed

2 The September 2011 drone strike in Yemen that killed Anwar alAwlaki, an al-Qaeda leader, also killed Khan.
3 Three of the articles were published under the pen name Ibn alMubarak. Mohamud was not credited with publishing the fourth article, which appeared in Jihad Recollections under a different pseudonym, Abu Talha.

UNITED STATES V. MOHAMUD

7

this more inflammatory material from the final versions of Mohamud’s articles. On August 15, 2009, Mohamud informed Khan that he would no longer write for Jihad Recollections because he was “going through alot [sic] of things and i have a lot of things to do.”4

Mohamud also struck up a relationship with Amro Al-Ali, a Saudi citizen who Mohamud met at a Portland mosque and who subsequently left the United States.5 On August 31, 2009, Al-Ali sent information to Mohamud at his truthbespoken email account about an Islamic school in Yemen. That same day, Mohamud called his father to say that he was leaving the country. His father begged him to stay in the United States, but Mohamud told him it was too late—he had his passport, visa, and ticket ready to go. When his parents confirmed that his passport was missing, they feared that Mohamud might return to Somalia, his place of

4 Mohamud also engaged in other pro-jihadi Internet activities. In June 2009, for example, he posted on a website that he was working on an “Islam’s [M]ost Wanted List,” which would be a “Black list” of people who had “offended Allah.”
5 Saudi officials suspected Al-Ali had links to terrorist groups, and requested an Interpol Red Notice for his arrest. A Red Notice serves as an international wanted notice and provides information on the identification of fugitives charged with or convicted of serious crimes. Although Interpol will not publish requested Red Notices that violate Interpol’s Constitution, which prohibits the organization from undertaking any activities of a political, military, religious or racial character, see Interpol Const., art. 3, Interpol does not independently vet the governmental request for a Red Notice for its factual and legal justification. The Red Notice led the FBI to consider Al-Ali a “dangerous [person] overseas” and to view Mohamud’s communications with Al-Ali with concern. There was no evidence at trial that Mohamud knew of the Red Notice, which was non-public, or the FBI’s interest in Al-Ali.

8

UNITED STATES V. MOHAMUD

birth. And when they could not reach Mohamud, they called the FBI and asked an agent to stop their son from leaving the country. Eventually, Mohamud’s mother got in touch with her son, scolded him, and brought him home. Mohamud did not actually have a visa or plane ticket, and he returned his passport to his parents. A few days later, Mohamud’s father called the FBI agent back and told him that Mohamud had agreed to finish college and would not leave the country until he graduated. He also explained that his son had wanted to go to Yemen to study Arabic and Islam. Mohamud’s father forwarded the FBI an email from his son about a school in Yemen, which allowed the FBI to identify Mohamud as the user of the truthbespoken email account.

B. Mohamud Attends College and the FBI Initiates Its Investigation

In September 2009, Mohamud began studying engineering at Oregon State University in Corvallis, where he had a “typical” college experience: he had a roommate, made friends, and attended parties (where he drank alcohol and used marijuana). His activities and religious principles often clashed, and in November 2009 he sought advice from a Muslim website on the difficulties of living a pious life on a college campus.

After the urgent August 31, 2009 call from Mohamud’s father, the FBI opened an investigation into Mohamud. Agents conducted physical and electronic surveillance of Mohamud, but did not identify any overtly dangerous communications. The case agent believed that Mohamud’s communications lacked “the same radical speak that he had espoused early on when he was communicating with Samir Khan.” The agent opined that Mohamud had “left behind his

UNITED STATES V. MOHAMUD

9

radical thinking” and was a “pretty manipula[ble], conflicted kid.”

C. The FBI’s First Direct Contacts with Mohamud

In November 2009, a contractor working undercover for the FBI—using the alias “Bill Smith”—emailed Mohamud at his truthbespoken account. Pretending to be an isolated Muslim in eastern Idaho, the contractor asked Mohamud for advice on how to get more involved in “the fight” for the Islamic community, and he stated that he wanted “to help rid the occupiers from [P]alestine.” Although Mohamud gave some general advice to move to a community with more Muslims, take care when talking about such issues online, and look out for “spies,” he never openly encouraged the contractor to commit acts of violence. By May 2010, their email communications had ended.

Mohamud planned to work in Alaska with his college roommate during the summer of 2010. But when his parents brought him to the Portland airport, he was not permitted to fly to Alaska. Instead, FBI agents met with Mohamud and his parents at the airport and questioned them. When asked, Mohamud denied having a ticket or visa to travel to Yemen, or having any interest in jihadi websites. When asked if he knew anyone in Yemen, he said “Amr,” but provided little detail. Mohamud made no mention of his Jihad Recollections articles or similar writings. When Mohamud returned home, he drafted a “To do list” which included “Find a job,” “Work till September,” get help from his parents for food and rent, and “you might have to take less classes” at Oregon State.

10

UNITED STATES V. MOHAMUD

D. Introduction to FBI Undercover Agent “Youssef”

1. The Initial Email Contacts

On June 23, 2010, an FBI undercover agent, using the alias “Youssef,” emailed Mohamud at his truthbespoken account and instructed him to set up a new “hushmail” email account that would be secure and encrypted. Mohamud responded later that same day: “assalamu alaykum [God be with you] brother how are you[?]” Two days later, Youssef emailed Mohamud again:

Wa alaikoom salem. hamdullah i am good brother thank you for asking. i’m sorry for the delay in our communication, we’ve been on the move. jazakallah khairan for responding so soon. are you still able to help the brothers? in sha’allah, i’ll hear from you soon. Salem, Youssef.

Mohamud responded the same day that he was unable to travel:

i have been betrayed by my family, i was supposed to travel last year but Allah had decreed that i stay here longer than my heart desired. i am trying to find a way to go. i do not think i will be able to go for a while. i need to save up and also clear up somethings [sic]. look for my emails inshallah, i will contact you when i am able to travel. pray for me that allah will free my passage from the lands of the polytheists, peace be upon the

UNITED STATES V. MOHAMUD

11

messenger of Allah, his family and his companions.

Three days later, on June 28, 2010, Youssef replied that “Allah (SWT) i’m sure has good reason for you to stay where you are” and asked to meet Mohamud. About two weeks later, when Mohamud had still not responded, Youssef sent a follow-up email. A week later, on July 16, 2010, Mohamud responded and agreed to meet.

Youssef declined Mohamud’s suggestion to meet at the local mosque because he wanted to meet privately and “the kuffar [unbelievers] have eyes and ears in almost all masjids in the US.” Mohamud responded that he would “have a set of questions for you when we meet” to “make [s]ure you are not a spy yourself.” Mohamud also wrote that “amr” (as in Amro Al-Ali) was the only person who could have given Youssef his email address, so he would want to know how Youssef knew Al-Ali as a “precaution.” Youssef praised Mohamud for thinking about security.

2. The First Meeting with Youssef

On July 30, 2010, Youssef met Mohamud for the first time in downtown Portland.6 Youssef told Mohamud he was from an “ihataa” (a religious “council”) and was interviewing seven people in the United States and Canada for possible

6 Although Youssef was wearing a transmitter and a recording device, the meeting was not recorded because the battery accidentally had been drained. An FBI agent listened to their conversation and summarized it in a report. The agent could not hear the first ten minutes, so he relied on Youssef to tell him what occurred. Every other in-person meeting between Mohamud and undercover agents was recorded and proffered as evidence at trial.

12

UNITED STATES V. MOHAMUD

inclusion in a council project.7 Youssef asked Mohamud “what he had been doing lately to continue being a good Muslim.” Mohamud said that he had been writing poetry and articles for Jihad Recollections. Mohamud asked Youssef how he got his email address, and Youssef explained that the council had forwarded it to him.

When asked about travel, Mohamud described his unsuccessful attempt to go to Alaska. And when asked what he was “willing to do for the cause,” Youssef testified that Mohamud said that “originally he had planned to wage war within the United States,” but then he dreamt that he traveled to Yemen, received training, and “went to Afghanistan where he led an army against the kuffar or the unbelievers.”

Youssef asked Mohamud again what he would do for the cause, and Mohamud responded, “anything.” When offered five ways to be a good Muslim—(1) pray five times a day; (2) go to school to learn something that would help the brothers overseas, such as engineering or medicine; (3) raise money for the brothers; (4) become operational; or (5) become a martyr—Mohamud almost immediately picked “become operational.” Mohamud explained “operational” meant “doing like the other brothers do when they get a car, fill it with explosives, park it near a target location, and detonate the vehicle.” When asked about targets, Mohamud said he had thought about Washington, D.C., because of all the government buildings, but admitted he was not familiar with the area. Youssef told Mohamud to research possible

7 The FBI invented this “council” to serve as a fictional intermediary between Al-Ali and Youssef because Youssef would not be able to answer many questions about Al-Ali.

UNITED STATES V. MOHAMUD

13

targets in Portland, and that he had a “brother that could help him with explosives.”

About four hours after their meeting, Mohamud sent
Youssef an unprompted email with copies of his three articles published in Jihad Recollections.8 Youssef replied that Mohamud was “talented.”9

E. Meeting with “Hussein”

A few weeks later, on August 19, 2010, Youssef met with Mohamud again in downtown Portland and introduced him to “Hussein,” an undercover FBI agent posing as an al-Qaeda explosives expert. Youssef described Mohamud as a “jewel in the rough.” During the meeting, Mohamud told the agents he admired the Mumbai terrorist attack (in which ten men stormed buildings in Mumbai, India, and killed 164 people).

About thirty-four minutes into the meeting, Mohamud told the agents that he wanted to detonate a bomb in Pioneer Courthouse Square during the annual Christmas Tree Lighting Ceremony on November 26, 2010, the day after Thanksgiving. Mohamud explained that he had researched other potential targets, but this was the best option because:

8 Mohamud also sent Youssef an article he had recently submitted to Inspire, the successor to Jihad Recollections, observing that: “Much can be done to hurt the enemy or prepare for Jihad. According to your circumstances you could perform Jihad against the enemy where you are currently living by Mumbai style attacks, but my article is directed towards those brothers waiting to travel to the lands of Jihad rather than touch upon the issue of attacks within the Western nations.”
9 The undercover agents frequently flattered and praised Mohamud for his good writing or behavior.

14

UNITED STATES V. MOHAMUD

(1) he could drive a car right into the Square from the street; (2) many people would be there; (3) nobody expected an attack in Portland; and (4) security would be light. Mohamud said that he planned on being in the car when it blew up. The agents (who were not familiar with Portland) had no input into Mohamud’s chosen target.

Youssef wanted Mohamud to realize the seriousness of what he was saying. Mohamud assured them he did. He said that “since I was fifteen I thought about all this things before,” and explained:

[I]magine every day we see you know in Arab, you know, newspapers and news you know our people are killed you know. So for us to see that you know it would be a smile from me to see them in the same. You know, you know what I like, what makes me happy? You know, what I like to see? Is when I see the enemy of Allah then they are you know their bodies are torn everywhere. . . . That gives me you know like high hope and happiness you know.

When Youssef pointed out that there would many women and children at the event, Mohamud responded:

[I]n general just a huge mass that will, you know like for them you know to be attacked in their own element with their families celebrating their holidays. And then for later on to be saying this was done for you to refrain from killing our children, women.

UNITED STATES V. MOHAMUD

15

The agents told Mohamud there was “no shame” in not going through with his plan. They reminded him that “[w]ith us you always have a choice.” When asked what he would have done if he had not met the agents, Mohamud said that he had planned to leave the country, “find the right people,” “be somewhere they cannot capture you,” and meet up with AlAli. The three then walked to Pioneer Courthouse Square, where Mohamud detailed the proposed attack.

Two days later, Youssef emailed Mohamud that he and Hussein would present Mohamud’s plan to the “council.” He also asked Mohamud to explain his rationale for the attack, as “a bomb is a very serious matter.” Mohamud replied that he had prayed for guidance and that his faith “was sky high for no apparent reason,” which he saw as a sign “that the traffic[] [l]ight is green lol.”

F. Youssef and Hussein Test Mohamud’s Resolve

On September 7, 2010, Youssef and Hussein met again with Mohamud. They convinced Mohamud not to martyr himself (i.e., to detonate the bomb remotely), and offered to help him leave the country after the bombing. They also advised that he did not have to go forward with the plan. The agents showed Mohamud an FBI-produced mock jihadi training video, which included an explosion being triggered by cell phone. Mohamud said the video was “beautiful.”

To test his resolve, the agents gave Mohamud $2,800 to carry out specific tasks: purchase a list of bomb components, decide where to park the van with the bomb, and rent his own

16

UNITED STATES V. MOHAMUD

apartment.10 On October 3, 2010, they again met with Mohamud and told him to rent a storage unit for the van. Mohamud completed these tasks.

G. The Test Bomb

On November 4, 2010, Mohamud, Youssef, and Hussein drove to the Oregon countryside to explode a test bomb. On the drive, when asked what he wanted to do once he was overseas, Mohamud first said he wanted to learn Arabic, and later that he wanted to learn “the inside and out of weaponry” and “bomb-making.” When asked whether he saw himself teaching, he said he also wanted to teach “special operations,” and specialize in “making the enemies you know afraid.” During this conversation, Mohamud stated that “these people who live in this country are the most evil people on earth.”

Hussein again advised that Mohamud did not have to go through with the bombing. Mohamud ignored him, instead commenting on the irony of the term “Black Friday,” the day after Thanksgiving. When asked if he had told anybody about the plan, Mohamud responded that his image was “just a college student” and “nobody even knows that I have you know, that I’m inclined toward jihad, or even towards even like being Islamic.”

To test the bomb, Mohamud pushed buttons on a cell phone, which appeared to trigger an explosion, though an FBI agent actually detonated the bomb. After the explosion, Mohamud said “God is great” in Arabic, that he felt “good,”

10 Youssef explained that the FBI did not want Mohamud to have a roommate because it would be easier to maintain surveillance and reduce the chance that Mohamud would take matters into his own hands.

UNITED STATES V. MOHAMUD

17

and that the bomb test was “just motivation for me.” When Youssef and Hussein asked if he had ever seen dead bodies, Mohamud responded that he thought it was “awesome” when people were jumping from skyscrapers during the September 11th attacks.

On the ride home, Youssef suggested that Mohamud make a “good-bye” video to explain his actions because it could be “inspirational.”11 Mohamud ultimately agreed and wrote a script for the video using topics Youssef suggested.

Mohamud made the video later that day, and explained that this is a “message . . . to those who have wronged themselves.” He described the “dark day” that was coming, and said that no one would be safe “for as long as you threaten our security.” He said that living in the United States “is a sin,” and urged that Muslim parents living in the West not do what his did to him—that is, not “hold others back from completing their obligation” to Allah. Mohamud finished by reading his own poem that extolled the virtues of Muslims and jihad, and ended with a call to:

Carry on oh brothers, and march on ahead to meet your creator and lie on silk beds, and the martyrs don’t die, so don’t say they’re dead. . . . Explode on these kuffar [unbelievers]. Alleviate our pain. Assassinate their leaders, commanders, and chiefs. From your brother to his brother a poem in brief.

11 On cross-examination, Youssef agreed that he had his “finger on the scale” and was trying to influence Mohamud to make the video, and that Mohamud initially wanted to wait to make the video until he was abroad.

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UNITED STATES V. MOHAMUD

H. The Final Countdown

About a week after the test bomb, Mohamud exchanged emails with a friend in Afghanistan. On November 13, 2010, the friend asked Mohamud to “investigate” predator and reaper strike drones to figure out “how to down them.” On November 17, 2010, Mohamud responded: “[D]on’t worry, brother, I will find you something inshallah. Please do not email this email any longer. If someone replies from now on from this e-mail is not me, Remember that. I hope we meet again soon inshallah.”

On November 18, 2010, an excited Mohamud met with Youssef and Hussein for six hours. They went to the storage unit Mohamud had rented, which he had selected in part because there were no surveillance cameras. The three then drove to a hotel in Portland, where Mohamud showed the agents potential parking spots he had researched on his computer. Next, they walked to Pioneer Courthouse Square to discuss the plan further.

During the November 18th meeting, Youssef asked: “What’s a victory gonna be for you?” Mohamud replied: “Try to get most, the most casualties.” Mohamud thought the bombing would get a lot of publicity because “America’s boasting it so ‘oh we haven’t been attacked since 9/11.’” Hussein asked Mohamud if he had any doubts about the bombing. He did not.

On November 23, 2010, Mohamud and Hussein went to the storage unit to see the bomb parts. Mohamud helped load purported bomb parts into Hussein’s car, including barrels, wires, and nails. Mohamud also provided Hussein with items for their disguises to pose as water workers.

UNITED STATES V. MOHAMUD

19

On November 25, 2010, Thanksgiving Day, Mohamud drove to Portland and spent the day with friends. His friends said he seemed “happy,” although at dinner he became “reserved.” They all went shopping at an outlet mall that night.

I. “Black Friday”—November 26, 2010

Early the next morning, on November 26th, Mohamud ran into a friend and told him that “I’m having the greatest morning of my life.” Around noon, Youssef picked up Mohamud and they drove to a store to buy reflective vests as part of their disguises. Then they met up with Hussein in downtown Portland. Mohamud appeared “happy” and “excited.”

The three drove about a mile to the parked van. When shown the “bomb” in the back of the van (which an FBI agent had constructed to look real but which was, in fact, inert), Mohamud said it was “beautiful.” They returned to their hotel, ate, talked, and prayed. Shortly before 5:00 p.m., the three drove to the van. Youssef dropped off Mohamud and Hussein, then drove to a pre-arranged meeting location a few blocks west of Pioneer Courthouse Square.

Hussein and Mohamud drove the van to Pioneer Courthouse Square. Before exiting the van, Hussein told Mohamud to connect the wires for the detonator to work. Mohamud did so, and then they walked several blocks to join Youssef in his car. The three drove toward a train station, dropped off Youssef, and then Hussein and Mohamud parked a few blocks from the station.

20

UNITED STATES V. MOHAMUD

Mohamud pulled out the cell phone and Hussein read him the number to dial to detonate the bomb. When Mohamud dialed the number and nothing happened, Hussein suggested that they step out of the car for better reception—the arrest signal. Mohamud was dialing the number into the cell phone a second time when FBI agents arrested them both. Hussein was shouting “Allahu Akbar! [God is great]” as he was being arrested. Mohamud was quiet initially, but during transport he began to kick and had to be restrained. Later, when speaking with the jail’s psychiatric nurse, Mohamud cried and said he could not understand “how he had gotten from just being a student to being labeled a terrorist in jail.”

Agents found an undated email printout from Al-Ali in Mohamud’s wallet. A search of Mohamud’s computer revealed videos of the 2007 and 2008 Portland Christmas Tree Lighting Ceremonies, as well as an al-Qaeda video, an audio file titled “No Peace with the Jews,” and numerous references to the word “jihad.” In a notebook found in his apartment, Mohamud had written: “Non Muslims are the eternal enemies of Islam and they must be subdued and humiliated.” He also described the need to “mistrust” everyone and to act normal “to secure myself from the FBI.”

II. PROCEDURAL HISTORY

A. Indictment and Trial

A one-count indictment charged Mohamud with attempted use of a weapon of mass destruction in violation of 18 U.S.C. § 2332a(a)(2)(A). After several years of pretrial litigation and review of immense discovery (including considerable litigation under the Classified Information Procedures Act, 18 U.S.C. app. 3), trial began in January

UNITED STATES V. MOHAMUD

21

2013 and lasted thirteen days. Both sides called numerous witnesses, and the cross-examinations were sharp and thorough.

There was no dispute that Mohamud had tried to blow up Pioneer Courthouse Square while it was filled with people. The spirited (and supportable) defense was entrapment— Mohamud, a teenager with no criminal record, had neither the means nor the intent to commit domestic terrorism until he became involved with the undercover FBI contractor (Bill Smith) and FBI agents (Youssef and Hussein). The government countered that Mohamud’s actions before any contact with the FBI—including his Jihad Recollections articles—as well as his readiness to commit such a horrific act of violence proved that he had the necessary predisposition to commit the crime. After the close of evidence and argument, the jury returned a guilty verdict, rejecting the entrapment defense.

B. Post-Trial Motions

Mohamud challenged his conviction on numerous grounds. He cited Sherman v. United States, 356 U.S. 369 (1958), to argue that the government had entrapped him as a matter of law. Mohamud contended that he had intended to complete college in the United States, and only the FBI’s aggressive and coercive actions had led him down the bombing path. The district court rejected that argument, pointing to evidence that before any contact with the FBI, Mohamud: (1) originally planned to wage war in the United States until a dream refocused him on Yemen; (2) wrote articles for Jihad Recollections which advised how best to prepare to carry out “jihad” on non-believers; and (3) had lengthy email conversations with men that the FBI believed

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UNITED STATES V. MOHAMUD

promoted terrorism. The court also highlighted that Mohamud never showed any reluctance (unlike the defendant in Sherman), and only thirteen minutes after meeting Youssef in person, he said that he wanted to become “operational” by using a car bomb.

After the verdict (but before sentencing), the government filed a supplemental notice that it had “offered into evidence or otherwise used or disclosed in proceedings, including at trial” information derived from information collected pursuant to § 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C. § 1881a (hereinafter referred to as “§ 702”).12 Mohamud argued that this late notice warranted suppression of this evidence (and any fruits thereof). The government countered that FISA did not provide for suppression in these circumstances, and in any case, there was no substantial prejudice, as the district court could conduct a post-trial suppression analysis. The district court agreed, finding no misconduct in the late disclosure, and that Mohamud had suffered no prejudice from the delayed disclosure.

Mohamud also argued that suppression was warranted
because § 702 violates the First and Fourth Amendments, as well as the separation of powers doctrine.13 As a threshold

12 Section 702 was added to by the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436, and was amended by the USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268.
13 Here, Mohamud contended that U.S. Foreign Intelligence Surveillance Court (“FISC”) review of targeting and minimization procedures under § 702 amounts to “providing a non-judicial advisory opinion” and authorizes a rule-making role for judges in violation of the non-delegation doctrine.

UNITED STATES V. MOHAMUD

23

matter, the district court first held that § 702 did not “interfere[] with the prerogatives of another branch of government beyond requiring the executive branch to conform to the statute.” It also reasoned that because the FISC either approves or denies the requested acquisition (and electronic communication service providers must follow the directives or challenge them), its opinions are not advisory. The court then explained that Mohamud had not raised an independent First Amendment claim, because motions to suppress based on First Amendment violations are analyzed under the Fourth Amendment.

Finally, the district court held that § 702 does not violate the Fourth Amendment. The court reasoned that § 702 surveillance does not trigger the Fourth Amendment’s warrant requirement because U.S. persons’ data is collected only incidentally, but even if it did, no warrant would be required because the foreign intelligence exception would apply.14 The court then balanced the government’s interests in the search against the intrusions on Mohamud’s privacy, and held that the § 702 collection here was reasonable under the Fourth Amendment.

C. Sentencing

The Sentencing Guidelines called for a life sentence. The government recommended a sentence of forty years’ imprisonment, whereas Mohamud urged a sentence of ten years’ imprisonment.

14 The district court further held that subsequent querying of § 702acquired data, without obtaining an additional search warrant, would also be constitutional, though it was “a very close question.”

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UNITED STATES V. MOHAMUD

During the sentencing hearing, the district court acknowledged that, although the jury had rejected the entrapment defense, Youssef and Hussein “imperfect[ly]” entrapped Mohamud through their frequent praise and religious references, especially considering his youth. But the “horrific” nature of the intended crime, which would have resulted “in a great deal of death and mutilation,” still warranted a sentence of thirty years’ imprisonment.

III. DISCUSSION

A. Standard of Review

We review the district court’s ruling on a motion for acquittal de novo. See United States v. Sanchez, 639 F.3d 1201, 1203 (9th Cir. 2011). When a defendant pursues an entrapment defense, we “should not disturb the jury’s finding unless, viewing the evidence in the light most favorable to the government, no reasonable jury could have concluded that the defendant[] [was] predisposed to commit the charged offenses.” United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994). We review the denial of a motion to dismiss based on a violation of constitutional rights de novo. United States v. Brobst, 558 F.3d 982, 994 (9th Cir. 2009).

We review de novo the denial of a motion to suppress evidence, but underlying factual findings are reviewed for clear error. United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc). We review for an abuse of discretion a district court’s decision whether to use its supervisory powers—in this case, the supervisory power to decide whether to suppress evidence as a sanction for the government’s late supplemental FISA notice. United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011). Discovery

UNITED STATES V. MOHAMUD

25

rulings and the denial of an evidentiary hearing are also reviewed for an abuse of discretion. United States v. Mazzarella, 784 F.3d 532, 537 (9th Cir. 2015).

We review de novo the constitutionality of a statute. United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010).

B. Entrapment as a Matter of Law

As the district court stated at sentencing, the defense made a solid case for entrapment. But the jury rejected that defense, and found Mohamud guilty despite the actions and encouragement of Youssef and Hussein and the communications (and attempted communications) from other government agents. And in light of that verdict, Mohamud has a steep hill to climb. “To establish entrapment as a matter of law, the defendant must point to undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act by trickery, persuasion, or fraud of a government agent.” United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986); see also United States v. Williams, 547 F.3d 1187, 1197 (9th Cir. 2008).

To avoid a finding of entrapment, the government must prove that: (1) Mohamud was predisposed to commit the crime before government agents contacted him, or (2) government agents did not induce him to commit the crime. United States v. McClelland, 72 F.3d 717, 722 (9th Cir. 1995). We focus our inquiry on Mohamud’s predisposition.

When evaluating predisposition, we often analyze five factors: (1) the character and reputation of the defendant;

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UNITED STATES V. MOHAMUD

(2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement. Id. “Although none of these factors is controlling, the defendant’s reluctance to engage in the criminal activity is the most important.” Id.

We can assume that factors (1), (3), and (5) are in Mohamud’s favor. The second factor—whether the government made the initial suggestion of criminal activity— weighs against Mohamud. Although Youssef discussed with Mohamud five options of how to be a good Muslim, including the option to become “operational,” Mohamud— not Youssef—made the initial suggestion to fill a car with explosives near a target location. Mohamud also told Youssef that he wanted to “wage war” within the United States before Youssef mentioned the possibility of an “operational” role. The government can rely upon Mohamud’s statements to prove predisposition even though he made them after the initial contact by the government. United States v. Tucker, 133 F.3d 1208, 1217 (9th Cir. 1998).15 Here, Mohamud discussed placing explosives in vehicles near target locations after the government’s initial

15 In Tucker, a jury convicted the defendant of extortion and filing false tax returns. This court affirmed his conviction and sentence, and rejected his argument that the evidence proved entrapment as a matter of law. This court considered statements made by the defendant even after the initial contact between the defendant and the government, noting that “[t]o prove the defendant’s predisposition, the government can rely upon evidence occurring after the initial contact with a government agent.” Tucker, 133 F.3d at 1217.

UNITED STATES V. MOHAMUD

27

contact with him but before Youssef suggested criminal activity. The second factor therefore weighs against Mohamud.

The fourth and “most important” factor also weighs overwhelmingly in the government’s favor. The government initiated its contact with Mohamud in November 2009 with the Bill Smith emails, and the more aggressive Youssef and Hussein operation began in June 2010. Despite being provided numerous opportunities to deviate from or terminate the plan, Mohamud never displayed any reluctance in going through with a horrific attack that would have killed and maimed countless people, including young children. Indeed, he expressed great enthusiasm in seeing it through. He picked the target—the Pioneer Courthouse Square Christmas Tree Lighting Ceremony—and planned where the van containing the explosives would be parked. He praised the terror attack in Mumbai, described the victims jumping from the Twin Towers on September 11th as “awesome,” and stated that he would be “happy” to see the bodies of “enemies of Allah” torn apart.

The complete lack of reluctance on Mohamud’s part to participate in the bombing—indeed, his immediate zeal to see it through—separates this case from those in which courts have found defendants entrapped as a matter of law. For example, in Jacobson v. United States, 503 U.S. 540, 553 (1992), Jacobson was not predisposed in part because “[t]he evidence that [Jacobson] was ready and willing to commit the offense came only after the Government had devoted 2 ½ years to convincing him that he had or should have the right to engage in the very behavior proscribed by law.” In Sherman, a government informant approached the defendant, a recovering drug addict, and asked for narcotics, ostensibly

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because the informant was not responding to treatment. 356 U.S. at 371. The defendant resisted—“[f]rom the first, [he] tried to avoid the issue.” Id. Only “after a number of repetitions of the request, predicated on [the informant’s] presumed suffering, did [the defendant] finally acquiesce.” Id.; see also id. at 373 (“One request was not enough, for . . . additional ones were necessary to overcome, first, [the defendant’s] refusal, then his evasiveness, and then his hesitancy in order to achieve capitulation.”). And in United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000), the government agent aggressively pushed the idea of sexual activities with children on an uninterested defendant until eventually he gave in:

While Poehlman’s reluctance might have been borne of caution . . . the fact remains that Poehlman’s earliest messages (which would be most indicative of his pre-existing state of mind) provide no support for the government’s case on predisposition. To the contrary, Poehlman’s reluctance forced [the agent] to become more aggressive in her suggestions . . . .

Id. at 704; see also id. at 695–97. At least as to this factor, this case is more akin to Williams, in which we held that the defendant was not entrapped as a matter of law in part because “[t]here is no evidence that [the defendant] expressed any reluctance about the robbery that needed to be ‘overcome by repeated government inducement or persuasion.’ The evidence indicated that [he] was ready and willing at all times to participate in the robbery.” 547 F.3d at 1198 (citation omitted).

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Mohamud argues that his actions after the Bill Smith emails are irrelevant for entrapment purposes, as they were tainted by the government’s overwhelming inducement. And with those post-Bill Smith actions set aside, the argument goes, there was insufficient evidence for the jury to conclude that he had the necessary predisposition to commit this crime. This is wrong for two reasons.

First, although “only those statements that indicate a state of mind untainted by the inducement are relevant to show predisposition,” statements made after the inducement which make “clear that [Mohamud] would have committed the offense even without the inducement” are evidence of predisposition. Poehlman, 217 F.3d at 704–05. This would include Mohamud’s statements that he made about the “awesome” terrorist attacks in Mumbai and on September 11th, and that he had been thinking about these “things” since he was fifteen years old. And a reasonable jury could infer that his decisions to become “operational” and blow something up the first time he met Youssef (and later, to choose Pioneer Courthouse Square at its most crowded time) were evidence that his predisposition existed long before FBI contractor Bill Smith emailed him.

Second, even if there were a rigid wall between pre- and post-inducement, there was sufficient evidence for a reasonable jury to reject the entrapment defense. Mohamud’s Jihad Recollections articles—both the draft and final versions—provided ample evidence of his predisposition to carry out the charged crime. In those articles, he, among other things, coached people on how to prepare themselves physically to attack and kill their Western enemies, and saluted those in Afghanistan who “finish[ed] off” wounded American soldiers. Although these articles may come across

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as a teenager trying to talk tough, they were enough to support the jury’s finding, and for us to conclude that Mohamud was not the “otherwise innocent person” that the entrapment-as-a-matter-of-law doctrine requires. Smith, 802 F.2d at 1124; cf. United States v. Cromitie, 727 F.3d 194, 207–08 (2d Cir. 2013) (holding that the defendant in a similar case was not entrapped as a matter of law, and observing that “potential terrorists who are available to be recruited by Al Qaeda or similar groups” may not have necessarily already formed a specific plan, but “[t]heir predisposition is to have a state of mind that inclines them to inflict harm on the United States, be willing to die like a martyr, be receptive to a recruiter’s presentation, . . . and welcome an invitation to participate”).

In addition, the jury learned of Mohamud’s correspondence with Al-Ali, which began months before the first contact from Bill Smith. The jury also learned of Mohamud’s desire to go abroad and study at the Islamic school in Yemen that Al-Ali recommended to him. A government expert testified that this school was founded by a Muslim cleric who supported jihad and that it served as a “stepping stone” to violent jihad, especially for people from the West. As detailed above, the same day that Al-Ali told Mohamud about the school in Yemen, Mohamud apparently made plans to leave the United States. Though Mohamud ultimately remained in the country, the jury could have reasonably interpreted his attempt as evidence of a predisposition to commit the crime charged. Further, Mohamud continued to demonstrate interest in attending the school in his December 2009 emails to Al-Ali, which occurred after the Bill Smith emails.

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In sum, viewing the evidence in the light most favorable to the government, we cannot say that “no reasonable jury could have concluded that [Mohamud was] predisposed to commit the charged offense[].” Davis, 36 F.3d at 1430. We therefore conclude that the district court properly rejected his defense of entrapment as a matter of law.

Mohamud’s alternative argument that we should dismiss this case because the government overreached in its “sting” and violated due process also fails. While the government’s conduct in this case was quite aggressive at times, it fell short of a due process violation.

In United States v. Black, we made clear that “[d]ismissing an indictment for outrageous government conduct . . . is limited to extreme cases in which the defendant can demonstrate that the government’s conduct violates fundamental fairness and is so grossly shocking and so outrageous as to violate the universal sense of justice.” 733 F.3d 294, 302 (9th Cir. 2013) (citation and internal quotation marks omitted). This is an “extremely high standard.” Id.; see also United States v. Pedrin, 797 F.3d 792, 797 (9th Cir. 2015) (“[I]n assessing whether the government’s conduct was ‘outrageous,’ the relevant question is what the government knew when it was setting up the sting, not what it learned later.”). For example, we have denied challenges to sting operations involving armed robberies of phony drug stash houses which necessarily put law enforcement and the defendant in grave peril. See Black, 733 F.3d at 302; Williams, 547 F.3d at 1200–01. Mohamud argues that the six factors for evaluating outrageous

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government conduct set out in Black favor dismissal of the indictment.16 We disagree.

In Cromitie, a comparable Second Circuit case, the defendant was convicted of planning and attempting to carry out domestic terrorism offenses. 727 F.3d at 199–204. The defendant claimed that the government’s conduct in persuading him to commit the charged offenses violated due process. Id. at 217. The Second Circuit held that it did not. Even though the government “invented all of the details of the scheme,” the defendant’s express desire to “do something to America” and “die like a martyr” was sufficient to justify the government’s testing of how far he would go. Id. at 219. Like Mohamud, Cromitie argued that the government took advantage of his religious affiliation, but the court explained that a government agent “is entitled to probe the attitudes” of an individual who “volunteers that he wants to ‘do something to America’ . . . to learn whether his religious views have impelled him toward the violent brand of radical Islam that poses a dire threat to the United States.” Id. at 219–20.

16 These factors are analyzed collectively in determining whether government conduct is outrageous: “(1) known criminal characteristics of the defendants; (2) individualized suspicion of the defendants; (3) the government’s role in creating the crime of conviction; (4) the government’s encouragement of the defendants to commit the offense conduct; (5) the nature of the government’s participation in the offense conduct; and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue.” Black, 733 F.3d at 303. The first three are relevant to how the government set up the sting, the fourth and fifth analyze the government’s role in the sting, and the last relates to the justification for the operation. Id. at 303–04.

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Cromitie further claimed that the government had violated due process because a government informant had exploited his relationship with Cromitie to “manipulate Cromitie into agreeing to the planned attacks”; the court cited our precedent indicating that “the ‘illusory cultivation of emotional intimacy’ does not exceed due process limits.” Id. at 220 (quoting United States v. Simpson, 813 F.2d 1462, 1467 (9th Cir. 1987)). Even considering certain monetary benefits offered by the government informant—including $250,000 cash, a barbershop valued at $70,000, a new BMW, and a two-week vacation—the court held that the overall operation did not rise to the level of a due process violation. Id. Although Mohamud may have been more vulnerable than Cromitie, the government’s questionable actions in that case far exceeded anything here.

In light of the extremely high standard set out in Black, we hold that the government’s conduct here did not violate due process.

C. Late Notice Of § 702-Derived Evidence

FISA requires the government to “notify the aggrieved person and the court” prior to trial when it intends to use at trial evidence “obtained or derived from electronic surveillance” pursuant to FISA. 50 U.S.C. § 1806(c); see also 50 U.S.C. § 1881e(a) (stating that information acquired under § 702 is subject to the notice requirement in § 1806(c)). The government provided a supplemental notice regarding evidence derived under § 702 after the trial concluded. Mohamud argues that this late disclosure mandates suppression, or at a minimum, discovery and an evidentiary hearing to explore the tardy disclosure.

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In answering this question, we must keep two principles in mind. First, “[s]uppression of evidence . . . has always been our last resort, not our first impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006); see also Davis v. United States, 564 U.S. 229, 237 (2011) (“For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.”); Sanchez-Llamas v. Oregon, 548 U.S. 331, 347 (2006) (“[T]he exclusionary rule is not a remedy we apply lightly.”). Second, Congress has the power to authorize suppression for statutory violations, as it has done elsewhere in FISA. See 50 U.S.C. §§ 1806(g), 1825(h), 1845(g) (FISA); see also 18 U.S.C. § 2518(10)(a) (Title III wiretap). However, Congress has not mandated suppression as a remedy for late disclosure of a FISA notice, and, indeed, it apparently anticipated the possibility of post-trial notification. See 50 U.S.C. § 1806(e) (providing that a motion to suppress “unlawfully acquired” or nonconforming information “shall be made before the trial . . . unless . . . the person was not aware of the grounds of the motion”). These two principles strongly suggest that automatic suppression is not a required remedy for delayed FISA disclosure.

And in any case, Mohamud cannot demonstrate how the late disclosure prejudiced him. As the district court explained, it fully evaluated the § 702-derived evidence as if the motion had been brought before trial. This put Mohamud in the same position he would have been in if the government had provided timely notice.

Moreover, the district court found that the late disclosure was not due to “prosecutorial misconduct.” Rather, the government had changed its legal opinion about when evidence could be considered “derived from” § 702 surveillance, performed another review of this case, and

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provided the late supplemental notice on its own initiative. Our review of the unclassified and classified record supports that the district court did not clearly err in finding no prosecutorial misconduct.17

As the district court recognized, it had the power to suppress evidence, or even dismiss the indictment or grant a new trial, under its supervisory and statutory authority. See Stinson, 647 F.3d at 1210 (stating that a court may exercise its supervisory powers “to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; or to deter future illegal conduct” (citation omitted)); see also Fed. R. Crim. P. 16(d)(2). However, the district court determined that suppression as a sanction for the late supplemental FISA notice was not warranted here, and we agree.

We conclude that, under the circumstances of this case,
the district court did not err in denying Mohamud’s motion to suppress premised on the late supplemental FISA notice.18

17 We do not reach whether suppression is necessary as a deterrent in light of the government’s apparent self-correction of its practices. See United States v. Dreyer, 804 F.3d 1266, 1280 (9th Cir. 2015) (en banc).
18 We also conclude that the district court did not abuse its discretion in denying discovery and an evidentiary hearing to explore the government’s late disclosure. Mohamud’s reliance on United States v. Hernandez-Meza, 720 F.3d 760, 769 (9th Cir. 2013), is misplaced because the record here does not “suggest[] that the government may have deliberately withheld” the supplemental FISA notice. Therefore, we decline Mohamud’s alternative request to remand for further fact finding.

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D. Section 702 Collection of Mohamud’s Email Communications

1. Legal Background

In 1978, Congress enacted FISA “to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013) (citing 50 U.S.C. § 1801 et seq.). To do so, the government must obtain a FISA warrant from the FISC. Id. The FISA Court of Review assesses any denials by the FISC of applications for electronic surveillance. Id.

Thirty years later, Congress enacted § 702 as part of the FISA Amendments Act of 2008. 50 U.S.C. § 1881a. Section 702 “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 the communications of non-U.S. persons located abroad.” Clapper, 133 S. Ct. at 1144. “Unlike traditional FISA surveillance, § [702] does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power.” Id. “And, unlike traditional FISA, § [702] does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur.” Id. Instead, § 702 mandates that the government obtain the FISC’s “approval of ‘targeting’ procedures, ‘minimization’ procedures, and a governmental certification regarding proposed surveillance.” Id. at 1145 (quoting 50 U.S.C. § 1881a(a), (c)(1), (i)(2), (i)(3)).

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2. No Fourth Amendment Violation

Although § 702 potentially raises complex statutory and constitutional issues, this case does not. As explained below, the initial collection of Mohamud’s email communications did not involve so-called “upstreaming” or targeting of Mohamud under § 702, more controversial methods of collecting information.19 It also did not involve the retention and querying of incidentally collected communications. All this case involved was the targeting of a foreign national under § 702, through which Mohamud’s email communications were incidentally collected. Confined to the particular facts of this case, we hold that the § 702 acquisition of Mohamud’s email communications did not violate the Fourth Amendment.20

At our request post-argument, the government declassified certain facts about Mohamud’s surveillance. Through the monitoring of a foreign national’s email account,

19 Under “upstream” collection, entire streams of Internet traffic flowing across major U.S. networks are acquired and searched, as opposed to “PRISM” collection, under which particular user accounts are monitored, and communications to or from those accounts are collected, including communications with U.S. persons. See, e.g., Privacy & Civil Liberties Oversight Board (“PCLOB”), Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (July 2, 2014), at 7 (hereinafter “PCLOB Report”); see also id. at 33–41 (comparing PRISM and upstream collection).
20 In light of our holding, we do not reach the question of whether the good faith exception to the exclusionary rule provides an independent basis to affirm the district court’s denial of Mohamud’s motion to suppress. See generally Davis, 564 U.S. at 240–42; Illinois v. Krull, 480 U.S. 340, 349–55 (1987); United States v. Leon, 468 U.S. 897, 925 (1984).

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the United States government learned that Mohamud was in contact with that foreign national, who was located overseas. This contact—a limited number of emails between Mohamud and the foreign national—was used to obtain a FISA warrant to surveil Mohamud and his activities. None of these emails was introduced at trial.21 We permitted the parties to file supplemental briefs to address the facts offered in the postargument disclosure.

a. No Warrant Required to Intercept Overseas Foreign National’s Communications or to Intercept U.S. Person’s Communications Incidentally

As a threshold matter, “the Fourth Amendment does not apply to searches and seizures by the United States against a non-resident alien in a foreign country.” United States v.

21 We address only Mohamud’s as-applied challenge. See United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). Though he also purports to challenge § 702 facially, citing City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451 (2015), Mohamud does not explain why techniques not employed in this case would require suppression of the evidence gathered here. We do not read Patel to permit courts, in a criminal prosecution, to suppress evidence based on a Fourth Amendment challenge to techniques not employed in a particular case. See, e.g., United States v. Posey, 864 F.2d 1487, 1491 (9th Cir. 1989) (“[W]e think it clear that appellant may not make a facial challenge to the FISA without arguing that the particular surveillance against him violated the Fourth Amendment. . . . Even if he is correct that the FISA’s language might be applied in ways that violate the Fourth Amendment, he must show that the particular search in his case violated the Fourth Amendment. Appellant cannot invalidate his own conviction on the argument that others’ rights are threatened by FISA.” (emphasis in original)).

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39

Zakharov, 468 F.3d 1171, 1179 (9th Cir. 2006) (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 274–75 (1990)); see also Verdugo-Urquidez, 494 U.S. at 274–75 (“At the time of the search, [respondent] was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application.”). Thus, the government’s monitoring of the overseas foreign national’s email fell outside the Fourth Amendment.

Mohamud argues that under Verdugo-Urquidez, the location of the search matters, and that here, the searches took place in the United States.22 Indeed, the government acknowledges that “collection from service providers under Section 702 takes place within the United States.” Yet, as one court put it, “what matters here is the location of the target,” and not where the government literally obtained the electronic data. United States v. Hasbajrami, No. 11-CR623, 2016 WL 1029500, at *9 n.15 (E.D.N.Y. Mar. 8, 2016) (emphasis in original); see also Kris & Wilson, National Security Investigations & Prosecutions § 17:3 (2016) (“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.”).

Consistent with Verdugo-Urquidez and our precedent, we hold that this particular type of non-upstream collection—

22 Mohamud also argues that the targeted foreign national may have had sufficient “voluntary connection[s]” to the United States for the Fourth Amendment to apply. See Verdugo-Urquidez, 494 U.S. at 271, 273. We have reviewed the classified record, and are satisfied that is not the case here.

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where a search was not directed at a U.S. person’s communications, though some were incidentally swept up in it—does not require a warrant, because the search was targeted at a non-U.S. person with no Fourth Amendment right.

The FISA Review Court in In re Directives Pursuant to Section 105B of FISA, similarly applied this principle, holding that “incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.” 551 F.3d 1004, 1015 (FISA Ct. Rev. 2008); see also United States v. Donovan, 429 U.S. 413, 436 n.24 (1977) (holding that a Title III wiretap warrant is not made unconstitutional by “failure to identify every individual who could be expected to be overheard,” but “the complete absence of prior judicial authorization would make an intercept unlawful”); United States v. Bin Laden, 126 F. Supp. 2d 264, 280 (S.D.N.Y 2000) (explaining that “in the Title III context, incidental interception of a person’s conversations during an otherwise lawful surveillance” does not violate the Fourth Amendment).

Mohamud and Amici23 urge us not to apply this “incidental overhear” approach. First, Amici contend that surveillance of U.S. persons’ communications under § 702 is not “incidental” because the monitoring of communications between foreign targets and U.S. persons was specifically contemplated and to some degree desired. We agree that such communications were anticipated. As the Privacy and Civil Liberties Oversight Board found with respect to PRISM collection, “[t]he collection of communications to and from

23 Amici are the American Civil Liberties Union, American Civil Liberties Union of Oregon, and the Electronic Frontier Foundation.

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a target inevitably returns communications in which nontargets are on the other end, some of whom will be U.S. persons. Such ‘incidental’ collection of communications is not accidental, nor is it inadvertent.” PCLOB Report at 82; see also Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content, 38 Harv. J.L. & Pub. Pol’y 117, 159–64, 259–62 (2015) (discussing the relative volume and intrusiveness of surveillance authorized under § 702). The fact that the government knew some U.S. persons’ communications would be swept up during foreign intelligence gathering does not make such collection any more unlawful in this context than in the Title III or traditional FISA context.

Mohamud and Amici also contend that the “sheer amount of ‘incidental’ collection” separates § 702 from prior cases where courts have found such collection permissible. We agree with the district court’s observation that the most troubling aspect of this “incidental” collection is not whether such collection was anticipated, but rather its volume, which is vast, not de minimis. See PCLOB Report at 114 (“The term ‘incidental’ is appropriate because such collection is not accidental or inadvertent, but rather is an anticipated collateral result of monitoring an overseas target. But the term should not be understood to suggest that such collection is infrequent or that it is an inconsequential part of the Section 702 program.”). This quantity distinguishes § 702 collection from Title III and traditional FISA interceptions. However, the mere fact that more communications are being collected incidentally does not make it unconstitutional to apply the same approach to § 702 collection, though it does

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increase the importance of minimization procedures once the communications are collected.24

Additionally, Mohamud and Amici contend that prior cases upholding incidental collection involved prior judicial review or a “narrowly drawn exception to the warrant requirement,” as opposed to the collection here. See, e.g., United States v. Kahn, 415 U.S. 143, 156–57 (1974) (upholding interception of communications of a woman that were incidentally collected under a wiretap order targeting her husband); United States v. Figueroa, 757 F.2d 466, 473–75 (2d Cir. 1985) (holding that wiretap order was not made unconstitutional by permitting interception of conversations of “others as yet unknown”); see also United States v. Martin, 599 F.2d 880, 884–85 (9th Cir. 1979) (holding that the Fourth Amendment does not require wiretap application to show probable cause that non-targeted individual named as a “probable converser” committed a crime), overruled on other grounds by United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc). However, the searches in those cases targeted United States citizens and took place within the United States, so a warrant was required for the initial search to be constitutionally permissible. But “the guiding principle behind them applies with equal force here: when surveillance is lawful in the first place—whether it is the domestic surveillance of U.S. persons pursuant to a warrant, or the warrantless surveillance of non-U.S. persons who are abroad—the incidental interception of non-targeted U.S. persons’ communications with the targeted persons is also lawful.” Hasbajrami, 2016 WL 1029500, at *9.

24 To the extent that Amici argue that the incidental overhear doctrine permits the unconstitutional and widespread retention and querying of the incidentally collected information, that issue is not before us.

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43

For these reasons, and because the target of the surveillance was a non-U.S. person located outside of the United States at the time of the surveillance, the government was not required to obtain a search warrant to collect Mohamud’s email communications with the overseas foreign national as an incident to its lawful search of the foreign national’s email.25

b. Collection of Mohamud’s Emails was Reasonable

Assuming that Mohamud had a Fourth Amendment right
in the incidentally collected communications, the search at issue was reasonable under the Fourth Amendment.26

“Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution.” Maryland v. King, 133 S.

25 Because the incidental collection excepts this search from the Fourth Amendment’s warrant requirement, we need not address any “foreign intelligence exception.”
26 It is unclear whether Mohamud had a right to bar use of these incidentally-collected communications in evidence against him on the basis that the communications were seized in violation of the Fourth Amendment. Commentators suggest that he does, so we will assume that here. See, e.g., Orin S. Kerr, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 285, 313–14 (2015) (“Communicating with a person who lacks Fourth Amendment rights should not waive the rights of the person who has those rights. The Fourth Amendment should continue to fully protect the U.S. person who communicates with those lacking Fourth Amendment rights.”); PCLOB Report at 94 (“The government has acknowledged that the Fourth Amendment rights of U.S. persons are affected when their communications are acquired under Section 702 incidentally or otherwise[.]”).

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Ct. 1958, 1970 (2013). In deciding reasonableness, we examine the totality of the circumstances and weigh “‘the promotion of legitimate governmental interests’ against ‘the degree to which [the search] intrudes upon an individual’s privacy.’” Id. (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). We agree with the district court that under these circumstances, the search was reasonable under the Fourth Amendment.

i. Government Interest

“[T]he Government’s interest in combating terrorism is an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010). Neither Mohamud nor Amici challenge this. Instead, they argue that (1) the statutory definition of “foreign intelligence information” in § 702 is overbroad because it is not confined to national security information but also includes “the conduct of [] foreign affairs”27; and (2) even if national security justifies the initial acquisition, it is unreasonable to then retain and later search U.S. persons’ § 702-acquired communications without a warrant.

The declassified facts foreclose both arguments. First, as the district court observed, “the discovery in this case all concerned protecting the country from a terrorist threat and did not stray into the broader category of the conduct of foreign affairs.” Thus, we need not determine whether the collection of foreign affairs communications is reasonable. Similarly, the second argument is also outside the scope of our review, as no such retention and querying is at issue in this case.

27 See 50 U.S.C. §§ 1801(e)(2)(b), 1881(a).

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ii. Mohamud’s Privacy Interest

The parties agree that Mohamud had some expectation of privacy in his electronic communications, but disagree as to the strength of his interest. The government argues that U.S. persons have a limited expectation of privacy when communicating electronically with non-U.S. persons located outside the United States because of the Fourth Amendment’s “third-party” doctrine—that a person’s privacy interest is diminished where he or she reveals information to a third party, even in confidence. Mohamud contends that the voluntary disclosure of information to third parties does not reduce the expectation of privacy. The district court determined that under the third-party doctrine, Mohamud had a reduced expectation of privacy in his communications to third parties. We agree.

With respect to a U.S. person’s privacy interest, we treat emails as letters. See, e.g., [Redacted], 2011 WL 10945618, at *26 (FISA Ct. Oct. 3, 2011) (“Whether they are transmitted by letter, telephone or e-mail, a person’s private communications are akin to personal papers.”); United States v. Warshak, 631 F.3d 266, 285–86 (6th Cir. 2010) (“Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.”). Accordingly, until electronic communications reach the recipient, they retain the same level of privacy interest as if they were still in the home. See, e.g., United States v. Van Leeuwen, 397 U.S. 249, 251 (1970).

But as with letters, “[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.’”

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United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007) (quoting United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (citing Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001))); see also Guest, 255 F.3d at 333 (“[Users] would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose ‘expectation of privacy ordinarily terminates upon delivery’ of the letter.” (citation omitted)).

It is true that prior case law contemplates a diminished expectation of privacy due to the risk that the recipient will reveal the communication, not that the government will be monitoring the communication unbeknownst to the third party. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976); United States v. White, 401 U.S. 745, 752 (1971); Hoffa v. United States, 385 U.S. 293, 302 (1966). While these cases do not address the question of government interception, the communications at issue here had been sent to a third party, which reduces Mohamud’s privacy interest at least somewhat, if perhaps not as much as if the foreign national had turned them over to the government voluntarily. See also Hasbajrami, 2016 WL 1029500 at *11 & n.18 (observing same distinction).

Thus, Mohamud’s interest in the privacy of his communications received by the overseas foreign national is diminished.

iii. Privacy Protecting Measures

An important component of the reasonableness inquiry is whether the FISC-approved targeting and minimization measures sufficiently protect the privacy interests of U.S.

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persons. Targeting and minimization procedures govern, respectively, who may be targeted for surveillance and how intercepted communications are to be retained and disseminated.

In brief, 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.” 50 U.S.C. § 1881a(d)(1). Among other requirements, minimization procedures must be “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)(1), 1881a(e)(1).

After evaluating the protections detailed in § 702 and the classified minimization procedures, the district court concluded that as applied to Mohamud, § 702 is reasonable under the Fourth Amendment. Based on our review of the classified record, we agree that the applicable targeting and minimization procedures, which were followed in practice, sufficiently protected Mohamud’s privacy interest.

The government also contends that certain oversight procedures provide an important check on Executive Branch actions. For example, § 702 requires the Attorney General (“AG”) and Director of National Intelligence (“DNI”) to certify, among other things, that (1) a significant purpose of

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the acquisition is to obtain foreign intelligence information, (2) they have adopted guidelines to ensure compliance with the statutory limitations in § 702(b), and (3) the targeting and minimization procedures and guidelines are consistent with the Fourth Amendment. 50 U.S.C § 1881a(g)(2)(A); see also id. § 1881a(g)(1)(B) (providing that if the AG and DNI determine that “time does not permit the submission of a certification under this subsection prior to the implementation of an authorization under subsection (a)” they shall submit the certification “as soon as practicable but in no event later than 7 days after such determination is made”). Further, the AG and DNI must periodically assess whether the government is complying with FISC-approved targeting and minimization procedures and guidelines, which adds further oversight and privacy protections. See 50 U.S.C. § 1881a(i).

While Executive Branch certification contributes some degree of further protection, it does not weigh heavily. Typically in the Fourth Amendment context, review from a neutral magistrate is considered the appropriate check on the Executive, which otherwise may be motivated by its interest in carrying out its duties. See, e.g., Leon, 468 U.S. at 913–14 (explaining that in obtaining a search warrant, a neutral magistrate is “a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime’” (citation omitted)). Under these circumstances, where the only judicial review comes in the form of the FISC reviewing the adequacy of procedures, this type of internal oversight does not provide a robust safeguard. The government notes that in In re Sealed Case, 310 F.3d 717, 739 (FISA Ct. Rev. 2002), the FISA Review Court observed that Congress recognized that certification by the AG in the traditional FISA context would “‘assure [ ] written

UNITED STATES V. MOHAMUD

49

accountability within the Executive Branch’ and provide ‘an internal check on Executive Branch arbitrariness.’” (citation omitted). However, as described above, § 702 differs in important ways from traditional FISA, and a mechanism that might provide additional protections above and beyond those already employed in a traditional FISA context provides far less assurance and accountability in the § 702 context, which lacks those baseline protections. See also Clapper, 133 S. Ct. at 1144–45.

Accordingly, although we do not place great weight on the oversight procedures, under the totality of the circumstances, we conclude that the applied targeting and minimization procedures adequately protected Mohamud’s diminished privacy interest, in light of the government’s compelling interest in national security.

In sum, even assuming Mohamud had a Fourth Amendment right in the incidentally collected communications, the search was reasonable. Thus, we hold that the application of § 702 did not violate the Fourth Amendment under the particular facts of this case.28

28 We also agree with the district court that the FISC survives separation of powers and non-delegation challenges, as FISC review of § 702 surveillance applications does not “interfere[] with the prerogatives of another branch of government beyond requiring the executive branch to conform to the statute,” and is “central to the mission of the judiciary” as it is similar to “the review of search warrants and wiretap applications.” See Mistretta v. United States, 488 U.S. 361, 388 (1989). Further, we agree with the district court that FISC opinions are not advisory because the FISC either approves or denies the requested acquisition (and electronic communication service providers must follow the directives or challenge them). See 50 U.S.C. § 1881a(h), (i)(2). Finally, the district court correctly rejected Mohamud’s First Amendment challenge, as motions to suppress based on First Amendment violations are analyzed

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UNITED STATES V. MOHAMUD

IV. CONCLUSION

Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some “promising” young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences. While technology makes it easier to capture the thoughts of these individuals, it also makes it easier for them to commit terrible crimes. Here, the evidence supported the jury’s verdict, and the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements.

AFFIRMED.

under the Fourth Amendment. See, e.g., United States v. Mayer, 503 F.3d 740, 747 (9th Cir. 2007) (where a party alleges that a criminal investigation violated the First Amendment rights of a third party, “we have held that the Fourth Amendment provides the relevant benchmark” (emphasis in original)); United States v. Aguilar, 883 F.2d 662, 697 (9th Cir. 1989).

 
 Case: 14-30217, 02/27/2017, ID: 10334346, DktEntry: 127, Page 1 of 28

NO. 14-30217

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, PLAINTIFF–APPELLEE,
V. MOHAMED OSMAN MOHAMUD,

DEFENDANT–APPELLANT.

On Appeal from the United States District Court for the District of Oregon
Case No. 3:10-cr-00475-KI-1 Honorable Garr M. King, Senior District Judge
____________________________________
BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF OREGON, AND ELECTRONIC FRONTIER FOUNDATION IN SUPPORT OF
DEFENDANT–APPELLANT’S PETITION FOR REHEARING OR REHEARING EN BANC
____________________________________

Counsel for Amici Curiae Patrick Toomey Ashley Gorski AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 ptoomey@aclu.org

Of Counsel Mark Rumold Andrew Crocker ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Phone: (415) 436-9333 Fax: (415) 436-9993 mark@eff.org

Of Counsel Mathew W. dos Santos AMERICAN CIVIL LIBERTIES UNION OF OREGON FOUNDATION P.O. Box 40585 Portland, OR 97240 Phone: (503) 227-6928 MdosSantos@aclu-or.org

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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae state that no party to this brief is a publicly held corporation, issues stock, or has a parent corporation. Amici further state that no party or party’s counsel authored this brief or contributed money to fund the preparation or submission of this brief. No person other than amici, their members, and their counsel contributed money to fund the preparation or submission of this brief.
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Table of Contents Statements of Interest.................................................................................................1 Introduction ................................................................................................................2 Background ................................................................................................................4 Argument.................................................................................................................... 6
I. The Court should grant rehearing or rehearing en banc to correct manifest errors in the panel’s decision. ......................................................6 A. The panel decision improperly relied on the “incidental overhear” rule to create a new exception to the warrant requirement.......................................................................................6 B. The panel decision misapplied the third-party doctrine and is in conflict with this Court’s precedent...........................................11 C. The panel improperly and inexplicably ignored the government’s widespread use of “secondary searches” to access and examine the communications of Americans, including Mr. Mohamud. ...............................................................14
II. En banc review is necessary because of the far-reaching consequences of the panel’s decision.......................................................17
Conclusion ...............................................................................................................19
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Table of Authorities
Cases
[Redacted], 2011 WL 10945618 (FISC Oct. 3, 2011) .............................................................5
Berger v. New York, 388 U.S. 41 (1967)................................................................................................8
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013)........................................................................................18
Horton v. California, 496 U.S. 128 (1990)..............................................................................................9
In re Directives, 551 F.3d 1004 (FISCR 2008) ...............................................................................8
In re Grand Jury Subpoena (Kitzhaber), 828 F.3d 1083 (9th Cir. 2016) ..................................................................... 12, 13
Katz v. United States, 389 U.S. 347 (1967)..............................................................................................6
Miller v. United States, 425 U.S. 435 (1976)............................................................................................12
Samson v. California, 547 U.S. 843 (2006)............................................................................................17
United States v. Donovan, 429 U.S. 413 (1977)..........................................................................................7, 8
United States v. Figueroa, 757 F.2d 466 (2d Cir. 1985) .................................................................................7
United States v. Forrester, 512 F.3d 500 (9th Cir. 2007) ..............................................................................12
United States v. Graham, 824 F.3d 421 (4th Cir. 2016) ..............................................................................13
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United States v. Kahn, 415 U.S. 143 (1974)..............................................................................................7
United States v. Martin, 599 F.2d 880 (9th Cir. 1979) ............................................................................7, 8
United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016) ...................................................................... passim
United States v. Mohamud, No. 10-cr-00475, 2014 WL 2866749 (D. Or. June 24, 2014) ............................16
United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) ................................................................. 12, 13, 14
Statutes 18 U.S.C. § 2518 ......................................................................................................10 50 U.S.C. § 1801 ............................................................................................. 4, 9, 10 50 U.S.C. § 1805........................................................................................................4 50 U.S.C. § 1881a ............................................................................................. 4, 5, 9 Consitutional Provisions U.S. Const. amend. IV ...............................................................................................9 Other Sources Barton Gellman et al., In NSA-Intercepted Data, Those Not Targeted
Far Outnumber the Foreigners Who Are, Wash. Post, July 5, 2014 ...................5 Elizabeth Goitein, The Ninth Circuit’s Constitutional Detour in
Mohamud, Just Security (Dec. 8, 2016) ...............................................................6 FISA for the 21st Century: Hearing Before the S. Comm. on the
Judiciary, 109th Cong. (2006) ............................................................................10 Glenn Greenwald, No Place to Hide (2014)..............................................................5
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Office of the Director of National Intelligence (“ODNI”), 2015 Statistical Transparency Report (Apr. 30, 2016)..................................................5
Orin Kerr, The Surprisingly Weak Reasoning of Mohamud, Lawfare (Dec. 23, 2016) ...................................................................................................11
Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of FISA (2014) .......................................................................................................... passim
Sen. Ron Wyden, Wyden Releases Details of Backdoor Searches of Americans’ Communications (June 30, 2014)....................................................15
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Statements of Interest This brief is filed pursuant to Ninth Circuit Rule 29-2(a) with the consent of all parties. The American Civil Liberties Union (“ACLU”) is a nonprofit, nonpartisan organization with more than one million members dedicated to the principles of liberty and equality embodied in the Constitution and this nation’s laws. Since its founding in 1920, the ACLU has frequently appeared before the Supreme Court and other federal courts in numerous cases implicating Americans’ right to privacy, including cases concerning foreign intelligence surveillance. The American Civil Liberties Union of Oregon is the Oregon affiliate of the ACLU. The Electronic Frontier Foundation (“EFF”) is a member-supported, nonprofit civil liberties organization that has worked to protect free speech and privacy rights in the digital world for 25 years. With roughly 36,000 donors, EFF represents the interests of technology users in court cases and policy debates surrounding the application of law in the digital age. EFF regularly participates as counsel or amicus in cases addressing the Fourth Amendment and electronic surveillance, including foreign intelligence surveillance.
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Introduction As the panel opinion acknowledged, under Section 702 of FISA, the government engages in warrantless surveillance of Americans on a remarkable scale—based on the theory that it is simply “targeting” foreigners who lack Fourth Amendment rights. The government makes extraordinary use of the resulting loophole: Having collected billions of communications under this authority, the government permits FBI agents and others to sift through its Section 702 databases when investigating Americans like Mr. Mohamud. At no point does the government obtain a warrant, or anything resembling a warrant, to examine the contents of these private communications—even when it is specifically searching for communications belonging to an American. Under the Fourth Amendment, a warrantless search is per se unreasonable. But here, contrary to precedent, the panel’s opinion embraced two novel rules to find the government’s warrantless searches of Americans’ communications lawful. First, the panel’s opinion improperly creates a new exception to the Fourth Amendment’s warrant requirement. The panel relied on the “incidental overhear” rule to justify the warrantless search of Mr. Mohamud’s private communications on U.S. soil, reasoning that because the government’s intended “target” was not entitled to the protection of a warrant, Mr. Mohamud forfeited that protection as well. But, until now, the incidental overhear rule has never been recognized as an
2

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exception to the warrant requirement. The Supreme Court’s incidental overhear cases do not establish such an exception, and the panel’s misreading of those cases would create a dangerous end-run around the warrant requirement—including in ordinary criminal investigations.
Second, the panel held that the third-party doctrine “diminished” Mr. Mohamud’s expectation of privacy in his personal emails. However, this Court’s precedent is clear that Americans have a reasonable expectation of privacy in the contents of their personal online communications and, accordingly, the third-party doctrine does not apply here. The panel’s holding otherwise would diminish Fourth Amendment protections for essentially all private online communications—a result directly at odds with this Court’s case law.
Finally, contrary to the available public record and the district court’s opinion below, the panel inexplicably carved out of its decision one of the most problematic uses of this surveillance: the government’s practice of intentionally searching its vast Section 702 databases for the communications of Americans like Mr. Mohamud. The panel’s effort to sidestep this misuse of Section 702 was both factually unsupported and legally improper. The fact that the government is amassing Americans’ communications, and then knowingly sifting through those protected emails in criminal investigations, bears directly on the reasonableness of the surveillance used in this case.
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Given the scale of Section 702 surveillance, the panel’s decision affects not just the defendant, but countless Americans who are subject to this surveillance yet have no opportunity to challenge it. More broadly, the panel’s embrace of novel Fourth Amendment rules has significant implications for the privacy of Americans’ communications in the digital age.
Background In 2008, Congress substantially altered the FISA regime by enacting Section 702. Where FISA had, for three decades, generally required the government to show probable cause and obtain an individualized court order to conduct surveillance on U.S. soil, Section 702 authorizes warrantless surveillance of a wide swath of communications. Compare 50 U.S.C. § 1805, with id. § 1881a(a). The statute allows the government to seize international communications—including private communications sent or received by U.S. persons—from companies inside the United States, based on the “targeting” decisions of executive-branch employees. Section 702 permits this warrantless surveillance when two primary conditions are met: first, an analyst must reasonably believe that the “target” is a non-U.S. person located abroad; and second, a “significant purpose” of the surveillance must be to gather “foreign intelligence information”—a category that encompasses virtually any information bearing on the foreign affairs of the United States. Id. §§ 1881a(a), (g)(2)(v), 1801(e). As a result, under Section 702, the
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government has substantial latitude to surveil non-U.S. persons abroad. It need not show that its targets are agents of foreign powers, much less that they are engaged in criminal activity or even remotely associated with terrorism.
No court approves the targets of this surveillance. Instead, the role of the Foreign Intelligence Surveillance Court (“FISC”) consists principally of reviewing, on an annual basis, the executive branch’s “targeting” and “minimization” procedures, which govern who may be targeted for surveillance by agency analysts and how communications are to be handled once intercepted. Id. § 1881a(i), (a).
In practice, the government relies on Section 702 to sweep up and store huge volumes of Americans’ communications.1 The government reported that in 2015, it monitored the communications of 94,368 targets under a single order issued by the FISC.2 In 2011, Section 702 surveillance resulted in the collection of more than 250 million communications, a number that has likely grown significantly as the number of NSA targets has ballooned.3 Every time a U.S. person communicates with any one of those targets—who may include journalists, academics, and human
1 See Barton Gellman et al., In NSA-Intercepted Data, Those Not Targeted Far Outnumber the Foreigners Who Are, Wash. Post, July 5, 2014, http://wapo.st/1xyyGZF.
2 ODNI, 2015 Statistical Transparency Report at 5 (Apr. 30, 2016), http://bit.ly/1TmRuV0.
3 See [Redacted], 2011 WL 10945618, at *9-10 (FISC Oct. 3, 2011); Glenn Greenwald, No Place to Hide 111 (2014), http://bit.ly/24vaGYJ.
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rights researchers—the government can collect, retain, and use that communication without a warrant.
Argument I. The Court should grant rehearing or rehearing en banc to correct
manifest errors in the panel’s decision. A. The panel decision improperly relied on the “incidental overhear”
rule to create a new exception to the warrant requirement. Although the surveillance in this case occurred on U.S. soil, and although the government indisputably searched the private emails of an American, the panel held that the Fourth Amendment’s warrant requirement did not apply. The panel reasoned that because the government’s surveillance “target” was not entitled to the protection of a warrant, Mr. Mohamud lost that protection as well. See United States v. Mohamud, 843 F.3d 420, 439-41 (9th Cir. 2016). However, the rationale the panel relied on—often called the “incidental overhear” rule—has never been recognized as an exception to the Fourth Amendment’s warrant requirement.4 Under the Fourth Amendment, a warrantless search is “per se unreasonable,” unless it is excused by one of a few carefully drawn exceptions. Katz v. United States, 389 U.S. 347, 357 (1967). Neither the Supreme Court nor this Court has recognized the incidental overhear rule as one of those exceptions. To the contrary,
4 See Elizabeth Goitein, The Ninth Circuit’s Constitutional Detour in Mohamud, Just Security (Dec. 8, 2016), https://www.justsecurity.org/35411/ninth-circuitsconstitutional-detour-mohamud/.
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the incidental overhear rule applies when the government has already sought and obtained a warrant—and has thus established probable cause to believe that certain communications will contain evidence of criminal activity. See, e.g., United States v. Kahn, 415 U.S. 143 (1974).
Critically, the formative cases establishing this rule—which the panel cited as support for bypassing the warrant requirement—all involved court-issued warrants, a factor central to the reasoning of those cases. For example, in United States v. Kahn, the government obtained a Title III order to monitor the telephone communications of Irving Kahn and “others as yet unknown,” based on a showing of probable cause that the wiretap would produce evidence of illegal gambling. Id. at 145-47. After agents overheard Kahn’s wife, Minnie Kahn, discussing the same criminal activities on the same phone line, the Supreme Court held that the interception of her communications was lawful. Although she was incidentally overheard, her conversations fell within the original warrant permitting the government to acquire specific evidence of criminal activity. Id. at 154-55. The same is true of the Supreme Court’s decision in United States v. Donovan, 429 U.S. 413 (1977), and this Court’s decision in United States v. Martin, 599 F.2d 880 (9th Cir. 1979). In both cases, the government obtained a valid warrant to seize specific communications as evidence of criminal activity. See also United States v. Figueroa, 757 F.2d 466, 473 (2d Cir. 1985) (same). And that particularized
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warrant was held to satisfy the Fourth Amendment rights of even those incidentally overheard. See Martin, 599 F.2d at 884-85.5
It is no accident that the cases cited by the panel were predicated on warrants. The logic of the incidental overhear rule is closely tied to the nature and function of a warrant. Through the warrant process, courts carefully circumscribe the government’s surveillance and limit the intrusion into the privacy of those whose communications are intercepted. The resulting warrant is not directed at a person or target in general—that would be too broad, as the Supreme Court made clear in Berger v. New York, 388 U.S. 41, 59 (1967). Instead, it is directed at particular pieces of evidence, such as a specific category of communications on a particular phone line. See id. Because the government has shown probable cause to seize those communications—and has thereby satisfied the necessary Fourth Amendment threshold—its warrant satisfies the privacy interests of all parties to the communications, including parties who are incidentally overheard. See Donovan, 429 U.S. at 436 n.24 (holding that while a warrant is not made unconstitutional by “failure to identify every individual who could be expected to
5 The panel’s reliance on In re Directives, 551 F.3d 1004, 1015 (FISCR 2008), was similarly misplaced. See Mohamud, 843 F.3d at 439. There, the Foreign Intelligence Surveillance Court of Review cited the incidental overhear rule only after holding that a “foreign intelligence exception” to the warrant requirement applied. See 551 F.3d at 1010-11. Unlike the panel decision, In re Directives nowhere suggests that the incidental overhear rule is itself an exception to the warrant requirement. See id. at 1015.
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be overheard,” the “complete absence of prior judicial authorization would make an intercept unlawful”).
For these reasons, the incidental overhear rule is not an exception to the warrant requirement, as the panel opinion held, but rather the byproduct of a valid warrant.
Here, however, the government can point to no warrant. Section 702 surveillance is not based on a showing of probable cause. The surveillance does not involve individualized judicial review by a neutral magistrate. And the surveillance is not particularized, because the government purposely collects all of its targets’ communications and retains them for at least five years. None of the basic prerequisites for lawfully invading an American’s privacy are met. Yet the government, and the panel opinion, reason that the incidental overhear rule applies here too—and eliminates Americans’ right to the protection of a warrant entirely.
That the government’s “target” was not a U.S. person is of no moment in this case. The Fourth Amendment’s protection is nowhere limited to “targets.” Rather, the Fourth Amendment protects the right of the people “to be secure in their persons, houses, papers, and effects . . . .” U.S. Const. amend. IV.6 There is
6 Distinctions based on who is the “target” of surveillance are a creature of statute, not the Fourth Amendment. See, e.g., 50 U.S.C. §§ 1801(f), 1881a(a)-(b). Fourth Amendment analysis typically avoids such subjective tests. See Horton v. California, 496 U.S. 128, 138 (1990).
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no dispute that Mr. Mohamud is an American citizen, and that his private papers— here, his emails—are protected by the Fourth Amendment. Even if the government claims to be targeting someone who lacks Fourth Amendment rights, it is not entitled to ignore the warrant requirement when its surveillance implicates a U.S. person who plainly is entitled to that protection. Nothing in this Court’s or the Supreme Court’s decisions applying the incidental overhear rule permit the government to exploit the type of “mismatch” or constitutional loophole that the panel embraced here. To the extent that Americans’ communications are intermingled with those of foreign targets, the government could readily seek afterthe-fact judicial approval to use or access those protected communications, just as it does in other contexts. See, e.g., 50 U.S.C. § 1801(h)(4) (requiring after-the-fact judicial approval to use or retain U.S. person communications); 18 U.S.C. § 2518(7) (same for emergency Title III surveillance). Instead, the government seeks an immense windfall.7
7 Significantly, although the government labels its warrantless collection of Americans’ communications merely “incidental,” it is both foreseeable and deliberate. See PCLOB, Report on the Surveillance Program Operated Pursuant to Section 702 of FISA at 82, 86-87 (2014), http://bit.ly/1FJat9g (“PCLOB Report”) (“Such ‘incidental’ collection of communications is not accidental, nor is it inadvertent”). Officials who advocated passage of Section 702 stated that their principal aim was to give the government broader authority to monitor Americans’ international communications. See 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).
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The implications of the panel’s novel reasoning are far-reaching and are not confined to the national-security context. Americans today engage in international internet communications on a massive scale—including email, web browsing, and online chats. Even seemingly “domestic” communications may be routed around the world, unbeknownst to the sender or recipient. If the panel’s analysis were correct, the government could intercept any international communication without a warrant—including in criminal investigations—simply by “targeting” a party who lacked Fourth Amendment rights.8 Indeed, the government could theoretically collect all international communications for any purpose, so long as it claimed to be targeting the foreigners on the other end of those communications—thereby “incidentally” and warrantlessly collecting the private communications of Americans. In other words, the panel’s holding risks exposing the communications of countless Americans to warrantless surveillance.
B. The panel decision misapplied the third-party doctrine and is in conflict with this Court’s precedent.
The panel’s holding that the third-party doctrine “diminished” Mr. Mohamud’s expectation of privacy is untenable and squarely at odds with this Court’s precedent. Mohamud, 843 F.3d at 442. Although the panel acknowledged that private electronic communications retain the same Fourth Amendment
8 See Orin Kerr, The Surprisingly Weak Reasoning of Mohamud, Lawfare (Dec. 23, 2016), https://www.lawfareblog.com/surprisingly-weak-reasoning-mohamud.
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protection as letters, it concluded that “the communications at issue here had been sent to a third party, which reduces Mohamud’s privacy interest at least somewhat.” Id. For several reasons, this conclusion was in error.
As an initial matter, the third-party doctrine does not apply to the contents of private online communications that are not deliberately shared with a third party, such as the emails at issue here. Under the third-party doctrine, when information is deliberately shared with a third party or the public, the sender’s expectation of privacy in that information is typically extinguished. See, e.g., Miller v. United States, 425 U.S. 435, 443 (1976). Although courts have applied the third-party doctrine to certain kinds of email “metadata,” such as the “to” and “from” fields of a message, this Court and others have repeatedly recognized that Americans have a reasonable expectation of privacy in the contents of their private emails. See In re Grand Jury Subpoena (Kitzhaber), 828 F.3d 1083, 1090-91 (9th Cir. 2016) (finding a reasonable expectation of privacy in personal emails); United States v. Forrester, 512 F.3d 500, 509, 511 (9th Cir. 2007); United States v. Warshak, 631 F.3d 266, 286-88 (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 [internet service provider (‘ISP’)]”).
More generally, the third-party doctrine cannot result in a “reduced expectation of privacy,” as the panel opinion held. Mohamud, 843 F.3d at 442
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(emphasis added). Properly understood, the third-party doctrine either applies— and eliminates Fourth Amendment protection—or it does not apply. Here, the doctrine does not apply, as Mr. Mohamud has a fully protected privacy interest in his emails. See, e.g., Kitzhaber, 828 F.3d at 1090-91; Warshak, 631 F.3d at 286-88.
Moreover, the “third party” that the panel pointed to is not a third party at all, but simply the intended recipient of Mr. Mohamud’s private communications. Compare Mohamud, 843 F.3d at 442, with United States v. Graham, 824 F.3d 421, 433 n.12 (4th Cir. 2016) (en banc). It is axiomatic that virtually all private communications have at least two parties. Thus, when a person sends a private email, the mere act of clicking the “send” button does not eliminate or reduce that privacy interest. Instead, these communications are precisely what the Fourth Amendment protects. See Kitzhaber, 828 F.3d at 1090-92. Yet the panel’s reasoning would diminish Fourth Amendment protections for essentially all private online communications—a result directly in conflict with this Court’s decisions in Kitzhaber and Forrester.
At bottom, the panel appears to have improperly conflated the third-party doctrine with the rule that, once a letter reaches its recipient, the sender’s expectation of privacy may be lost. See Mohamud, 843 F.3d at 442. Critically, however, that rule has no bearing on the surveillance at issue in this case. As the panel itself acknowledged, “prior case law contemplates a diminished expectation
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of privacy [after a recipient receives a letter] due to the risk that the recipient will reveal the communication, not that the government will be monitoring the communication” in secret. Id. (emphasis added). Here, the government did not obtain the communications from the recipient at all, voluntarily or otherwise; rather, agents seized the emails from an internet service provider—an intermediary responsible for transmitting those emails privately. Accordingly, the communications are entitled to full Fourth Amendment protection. See Warshak, 631 F.3d at 286 (“[I]f government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.”).
C. The panel improperly and inexplicably ignored the government’s widespread use of “secondary searches” to access and examine the communications of Americans, including Mr. Mohamud.
The government’s practice of amassing U.S. person communications using Section 702 and later searching through them—so-called “secondary searches”—is one of the most controversial aspects of this surveillance. Although the record strongly suggests that the government conducted such a secondary search here, the panel expressly declined to consider their legality.
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Through these searches, the government converts warrantless surveillance ostensibly directed at foreigners into a tool for investigating Americans.9 The parties litigated whether the government’s use of such searches to investigate Mr. Mohamud was lawful, and the district court ruled squarely on this question. Yet, contrary to all evidence in the public record and without elaboration, the panel abruptly concluded that the issue was not before the Court. See, e.g., Mohamud, 843 F.3d at 438. The panel’s failure to address this issue is significant because, as a result, its Fourth Amendment reasonableness analysis entirely ignores one of the critical—and, indeed, most unreasonable—ways in which the government uses Section 702 as a backdoor into Americans’ private communications.
Until the panel’s opinion, there was little doubt that the government used a secondary search to retrieve and examine Mr. Mohamud’s private emails. The public record provides multiple reasons to believe the government conducted such a search. First, the Privacy and Civil Liberties Oversight Board has stated that, “[W]henever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment.” PCLOB Report at 59. That is precisely what FBI agents appear to
9 See Sen. Ron Wyden, Wyden Releases Details of Backdoor Searches of Americans’ Communications (June 30, 2014), http://bit.ly/2mizZQ1.
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have done here. The FBI agent who investigated Mr. Mohamud specifically testified that he began the investigation by running Mr. Mohamud’s email address through “an FBI database”—one that apparently contained FISA information.10 E.R. 5122-23. Second, unlike the panel’s opinion, the district court directly addressed the lawfulness of secondary searches in a discussion titled “Querying After Acquisition” that spanned four pages. United States v. Mohamud, No. 10-cr00475, 2014 WL 2866749, at *24-27 (D. Or. June 24, 2014) (describing Mr. Mohamud’s challenge to the secondary search as his “most persuasive argument”). The district court stated that it was a “very close question” whether such a search of a U.S. person’s communications was constitutional. Id. at *26. This entire discussion is inexplicable if the government never conducted a warrantless search for Mr. Mohamud’s communications. Finally, throughout the litigation, the government never once disclaimed or denied having conducted a secondary search as part of its prosecution of Mr. Mohamud. Instead, it defended the lawfulness of those searches over many pages, both in the district court and on appeal. See, e.g., Gov’t Resp. Br. 130-35 (9th Cir. Dec. 7, 2015). That defense would have been
10 The FBI has stated that its FISA and Section 702 data are commingled and thus queried simultaneously. PCLOB Report at 59.
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entirely unnecessary if the retention and querying of Mr. Mohamud’s communications was simply not “at issue” as the panel later claimed.11
Under the Fourth Amendment, the legality of Section 702 surveillance depends on the strength and sufficiency of the protections provided for Americans, based on the “totality of the circumstances.” Samson v. California, 547 U.S. 843, 848 (2006). By carving out the government’s secondary searches, the panel artificially limited the scope of that analysis. It disregarded one of the most intrusive ways in which the government exploits its warrantless collection of Americans’ communications and, in so doing, it deprived Mr. Mohamud of what the district court considered his “most persuasive” challenge to the surveillance. II. En banc review is necessary because of the far-reaching consequences of
the panel’s decision. Because the government collects vast quantities of Americans’ international communications under Section 702, the panel’s decision affects not only Mr. Mohamud, but countless others. Yet, for the overwhelming majority of Americans who are subject to this surveillance but lack notice of that fact, there is effectively no opportunity to challenge the warrantless collection of their communications.
11 Contrary to the panel’s suggestion, all Section 702 communications are initially retained, often for a period of five years. The sheer number of intercepted communications—at least hundreds of millions per year—makes reviewing them in real-time impossible. Instead, many communications simply sit in the government’s databases until they are specifically retrieved by an agent, typically “in response to a database query.” PCLOB Report 128-29.
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See, e.g., Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) (denying plaintiffs standing to challenge Section 702). Thus, the Fourth Amendment interests of potentially millions of Americans depend on the legal analysis applied in a small handful of criminal cases like this one. As the only circuit court to address the legality of Section 702, it is imperative that the Court accurately and authoritatively review this surveillance.
Significantly, the panel’s reasonableness analysis failed to consider measures that would adequately safeguard the privacy of Americans’ communications—such as requiring individualized court review after the fact, when the government seeks to use or access protected communications. The government, and the panel, say that the minimization procedures are what save this surveillance. But those procedures leave FBI agents around the country free to use and access Americans’ incidentally collected communications, even in ordinary criminal investigations. See PCLOB Report at 59. In other words, the procedures— which are supposed to protect the privacy of Americans—authorize the very kind of intrusion that the Fourth Amendment was designed to guard against.
Finally, the panel’s decision has far-reaching implications for the scope of the Fourth Amendment in today’s digital world. The panel’s embrace of two novel and unsupported doctrinal rules is not only in conflict with the law of this Court, but has significant consequences for Americans’ privacy in their online
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communications writ large. By treating the “incidental overhear” rule as an exception to the warrant requirement, the panel’s opinion potentially exposes myriad communications to warrantless surveillance. Similarly, by applying the third-party doctrine to emails that were indisputably kept private, the opinion risks eroding basic Fourth Amendment protections for sensitive online communications. In short, while the panel described its decision as a narrow one, see Mohamud, 843 F.3d at 438, it adopted some of the broadest possible arguments to justify the government’s warrantless surveillance of Mr. Mohamud’s emails.
Conclusion For the foregoing reasons, the Court should grant rehearing or rehearing en banc.

Dated: February 27, 2017

Respectfully submitted,
/s/ Patrick Toomey Patrick Toomey Ashley Gorski AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 ptoomey@aclu.org
Counsel for Amici Curiae

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Of Counsel: Mathew W. dos Santos AMERICAN CIVIL LIBERTIES UNION OF OREGON FOUNDATION P.O. Box 40585 Portland, OR 97240 Phone: (503) 227-6928 MdosSantos@aclu-or.org Of Counsel: Mark Rumold Andrew Crocker ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Phone: (415) 436-9333 Fax: (415) 436-9993 mark@eff.org
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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(g)

Pursuant to Fed. R. App. P. 32(g), I certify as follows:

1. This Brief of Amici Curiae American Civil Liberties Union, American

Civil Liberties Union of Oregon, and Electronic Frontier Foundation in Support of

Defendant–Appellant complies with Ninth Circuit Rule 29-2(c)(2), because the

brief contains 4,187 words, excluding the parts of the brief exempted by Fed. R.

App. P. 32(f); and

2. This brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft

Word 2010, in 14-point Times New Roman font.

Dated: February 27, 2017

/s/ Patrick Toomey Patrick Toomey
Counsel for Amici Curiae

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on February 27, 2017.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

Dated: February 27, 2017

/s/ Patrick Toomey Patrick Toomey
Counsel for Amici Curiae

22

 
 Case: 14-30217, 10/03/2016, ID: 10146668, DktEntry: 111, Page 1 of 29

NO. 14-30217

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
V. MOHAMED OSMAN MOHAMUD,

DEFENDANT-APPELLANT.

On Appeal from the United States District Court for the District of Oregon
Case No. 3:10-cr-00475-KI-1 Honorable Garr M. King, Senior District Judge
____________________________________
SUPPLEMENTAL BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF
OREGON, AND ELECTRONIC FRONTIER FOUNDATION IN SUPPORT OF DEFENDANT-APPELLANT ____________________________________

Counsel for Amici Curiae Patrick Toomey Alex Abdo AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 ptoomey@aclu.org

Of Counsel Mark Rumold Andrew Crocker ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Phone: (415) 436-9333 Fax: (415) 436-9993 mark@eff.org

Of Counsel Mathew W. dos Santos AMERICAN CIVIL LIBERTIES UNION OF OREGON FOUNDATION P.O. Box 40585 Portland, OR 97240 Phone: (503) 227-6928 MdosSantos@aclu-or.org

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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae state that no party to this brief is a publicly held corporation, issues stock, or has a parent corporation. Amici further state that no party or party’s counsel authored this brief or contributed money to fund the preparation or submission of this brief. No person other than amici, their members, and their counsel contributed money to fund the preparation or submission of this brief.
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Table of Contents Table of Authorities ................................................................................................. iii Introduction ................................................................................................................1 I. Mr. Mohamud has raised a facial challenge, but whether his challenge
is characterized as “facial” or “as applied,” the surveillance of him was unconstitutional. .......................................................................................3 II. Verdugo-Urquidez has no bearing on the surveillance of U.S. persons like Mr. Mohamud on U.S. soil. ......................................................................8 III. The Fourth Amendment requires the government to obtain a warrant before seeking to access or use the communications of Americans collected under Section 702...........................................................................12 A. The government cannot dispense with the Fourth Amendment
rights of Americans simply because it is targeting foreigners. ...........12 B. The Court should hold the secondary search of Mr. Mohamud
unlawful. ..............................................................................................18 Conclusion ...............................................................................................................20
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Table of Authorities
Cases
[Redacted], 2011 WL 10945618 (FISC Oct. 3, 2011) ............................................... 16, 18
Berger v. New York, 388 U.S. 41 (1967).............................................................................. 1, 3, 5, 6
Boumediene v. Bush, 553 U.S. 723 (2008).........................................................................................9
City of L.A. v. Patel, 135 S. Ct. 2443 (2015).....................................................................................3
Ex parte Jackson, 96 U.S. 727 (1877).........................................................................................10
In re Application of the FBI, No. BR 14-01, slip op. (FISC Feb. 4, 2014)..................................................19
In re Certified Question of Law, No. 16-01, slip op. (FISCR Apr. 14, 2016) ...................................................16
In re Directives, 551 F.3d 1004 (FISCR 2008) ............................................................. 8, 16, 18
Patel v. City of L.A., 738 F.3d 1058 (9th Cir. 2013) .........................................................................3
Riley v. California, 134 S. Ct. 2473 (2014).....................................................................................3
Rodriguez v. United States, 135 S. Ct. 1609 (2015).....................................................................................7
Tennessee v. Garner, 471 U.S. 1 (1985).............................................................................................7
Terry v. Ohio, 392 U.S. 1 (1968)...........................................................................................12
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Torres v. Puerto Rico, 442 U.S. 465 (1979).........................................................................................3
United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000) ...........................................................13
United States v. Bobo, 477 F.2d 974 (4th Cir. 1973) ...........................................................................6
United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) .......................................................................15
United States v. Pelton, 835 F.2d 1067 (4th Cir. 1987) .........................................................................6
United States v. Ramsey, 431 U.S. 606 (1977)................................................................................. 10-11
United States v. Sedaghaty, 728 F.3d 885 (9th Cir. 2013) .....................................................................7, 15
United States v. Sklaroff, 506 F.2d 837 (5th Cir. 1975) ...........................................................................5
United States v. Tortorello, 480 F.2d 764 (2d Cir. 1973) ............................................................................6
United States v. Turner, 528 F.2d 143 (9th Cir. 1975) ................................................................ 3, 5, 16
United States v. U.S. District Court (“Keith”), 407 U.S. 297 (1972).....................................................................................3, 6
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)........................................................................ 8, 9, 11, 14
United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) .........................................................................11
Statutes
18 U.S.C. § 2518 ............................................................................................... 11, 19
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50 U.S.C. § 1801 ......................................................................................... 15, 16, 18 50 U.S.C. § 1802 ......................................................................................................15 50 U.S.C. § 1805 ............................................................................................... 11, 19 50 U.S.C. § 1824 ......................................................................................................11 Other Authorities Ellen Nakashima, Obama Administration Had Restrictions on NSA
Reversed in 2011, Wash. Post, Sept. 7, 2013 ................................................18 Office of the Director of National Intelligence, 2015 Statistical
Transparency Report (Apr. 30, 2016)............................................................11 Privacy and Civil Liberties Oversight Board, Report on the
Surveillance Program Operated Pursuant to Section 702 of FISA (2014) ............................................................................................ 17, 19 Section 702 Minimization Procedures Used by the NSA (July 15, 2015) ..............................................................................................................18
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Introduction Amici file this brief in response to the Court’s Order dated September 2, 2016, which requested supplemental briefing concerning the lawfulness of the government’s surveillance of Mr. Mohamud under Section 702 of the Foreign Intelligence Surveillance Act (“FISA”). Amici make three points. First, Mr. Mohamud has raised a facial challenge to Section 702, but whether his challenge is considered “facial” or “as-applied,” the warrantless searching of his communications was unlawful. Just as the Supreme Court held in Berger v. New York, 388 U.S. 41 (1967), the surveillance of Mr. Mohamud lacked sufficient procedural safeguards to render it constitutional. While the government has argued that, once Mr. Mohamud’s communications were collected, it was free to use and search them as it pleased, that is incorrect. Courts have long held that back-end “minimization” protections are essential to the lawfulness of electronic surveillance. Here, where the government seeks to query and use the communications of Americans that it acquired without a warrant, those procedures must at the very least interpose individualized judicial review after the fact. Second, Verdugo-Urquidez does not excuse the warrantless surveillance of Mr. Mohamud because he is a U.S. person and because the government seized and searched his emails on U.S. soil, where the warrant requirement indisputably protects his communications.
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Third, even if the government is permitted to warrantlessly target foreigners abroad, it cannot simply bootstrap away the Fourth Amendment rights of Americans. Amici have never argued that the government must obtain a warrant before surveilling any foreigner abroad—but it must, at a minimum, provide reasonable protections for Americans like Mr. Mohamud when their communications, too, are swept up without a warrant. See Amici Br. 29–31. Courts have routinely imposed post-seizure restrictions to address the often broad and imprecise nature of electronic surveillance. Yet the current procedures offer no such protection: they expressly authorize the government to collect, retain, and deliberately query the communications of Americans, including in criminal investigations. In other words, they license the very type of warrantless intrusions that the Fourth Amendment was intended to prohibit.
Because the existing procedures afford such anemic protection, there is a narrow way to resolve the challenge in this case: by finding the procedures that governed the surveillance of Mr. Mohamud unreasonable, including those that permitted the “secondary search” of his communications. Because the procedures failed to require individualized judicial approval of any kind—even after the fact, and even when the government sought to query the communications of a known U.S. person—the Court can and should find them defective, just as the Supreme Court found the wiretapping procedures defective in Berger.
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I. Mr. Mohamud has raised a facial challenge, but whether his challenge is characterized as “facial” or “as applied,” the surveillance of him was unconstitutional. The Court has asked whether Mr. Mohamud’s challenge is a facial one. It is.
As Mr. Mohamud explains in his prior briefing, Op. Br. 155–62, Section 702, as a statute, lacks “essential procedural safeguard[s] against arbitrary” searches of Americans’ international communications. Patel v. City of L.A., 738 F.3d 1058, 1064 (9th Cir. 2013) (en banc), aff’d 135 S. Ct. 2443 (2015). While the statute directs the government to adopt (and seek FISC approval of) “minimization procedures,” the existing procedures—administered by the executive branch—are no substitute for the Fourth Amendment’s imposition of individualized judicial involvement. See Riley v. California, 134 S. Ct. 2473, 2491 (2014) (“[T]he Founders did not fight a revolution to gain the right to government agency protocols.”). Moreover, the Supreme Court has recently reaffirmed that “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored.” City of L.A. v. Patel, 135 S. Ct. 2443, 2449 (2015). And it has invalidated surveillance regimes that are inconsistent with the Fourth Amendment. See, e.g., Berger, 388 U.S. at 56–58; United States v. U.S. District Court (“Keith”), 407 U.S. 297 (1972); Torres v. Puerto Rico, 442 U.S. 465 (1979).1
1 Similarly, this Court and other federal appellate courts considered the constitutionality of Title III “on its face” in the years following its enactment. See, e.g., United States v. Turner, 528 F.2d 143, 158–59 (9th Cir. 1975).
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Amici respectfully submit, however, that whether Mr. Mohamud’s challenge is analyzed as “facial” or “as applied,” the surveillance of him was unconstitutional. There is no dispute that Mr. Mohamud was in fact surveilled; there is no dispute that the surveillance took place without a warrant or any afterthe-fact judicial authorization; and there is no dispute that it took place pursuant to a set of procedures required by statute. That surveillance was unconstitutional because it violated the warrant clause of the Fourth Amendment, and because, even if the warrant clause does not apply, the procedures relied upon were unreasonable in their failure to meaningfully protect the privacy of Americans ensnared in the government’s warrantless surveillance. See Amici Br. 12–31.
This analysis does not turn on the nature of Mr. Mohamud’s challenge, but on settled Supreme Court and Ninth Circuit precedent establishing that the constitutionality of electronic surveillance regimes depends on the strength of the totality of their protections—both restrictions on collection and restrictions on the later retention and use of what is collected. This point is critical to emphasize because of the government’s apparent belief that, so long as its initial interception of Mr. Mohamud’s communications was “lawful,” restrictions on the government’s retention or use of the information are irrelevant. This argument fundamentally misunderstands Fourth Amendment jurisprudence. Strict post-seizure restrictions are essential to the constitutionality of electronic surveillance.
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The Supreme Court, the Ninth Circuit, and other courts have routinely judged the reasonableness of electronic surveillance by assessing the strength of the back-end protections. For example, the Supreme Court invalidated a New York eavesdropping statute because it failed to meaningfully restrict the state’s conduct of surreptitious surveillance. See Berger, 388 U.S. at 58–60. The statute at issue in Berger did not limit the surveillance to particular conversations, but instead permitted the retention and use of “any and all conversations” of the state’s targets; it did not meaningfully constrain the duration of surveillance; and it did not provide for after-the-fact notice to those monitored. Id.
Lower courts have similarly evaluated the reasonableness of electronicsurveillance regimes by analyzing back-end protections. This Court, in United States v. Turner, 528 F.2d at 159, upheld the constitutionality of Title III based upon its agreement with other courts of appeals that the “specified safeguards” discussed by the Supreme Court in Berger were “essential under the Fourth Amendment” and had been met by Title III. The Fifth Circuit came to the same conclusion in United States v. Sklaroff, 506 F.2d 837, 840 (5th Cir. 1975), after observing that “a statute permitting wire interceptions under narrow restrictions and carefully circumscribed conditions may be constitutional.” And the Second Circuit concurred after concluding that Title III “provide[s] for particularity in the application and order, judicial supervision, and other protective procedures whose
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absence caused the Court to condemn the electronic surveillance in Berger and Katz.” United States v. Tortorello, 480 F.2d 764, 773 (2d Cir. 1973); accord United States v. Bobo, 477 F.2d 974, 979 (4th Cir. 1973).
The lesson of these cases is simple: the constitutionality of wiretapping depends upon strict protections designed to minimize the inherent risks that secret surveillance poses to privacy. As the Supreme Court said in Berger, surveillance carries with it “inherent dangers,” 388 U.S. at 60, and it must therefore be limited by “precise and discriminate” safeguards, id. at 58.
Courts have applied this same lesson in the context of foreign-intelligence surveillance. Indeed, the importance of strict safeguards is perhaps even greater in the context of intelligence surveillance because of “the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.” Keith, 407 U.S. at 320. In United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987), for example, the Fourth Circuit concluded that “FISA’s numerous safeguards provide sufficient protection for the rights guaranteed by the Fourth Amendment within the context of foreign intelligence activities.” It based that holding, in part, on FISA’s requirement of “minimization procedures” designed to minimize the invasion of the privacy of U.S. persons. See id. (citing 50 U.S.C. § 1801).
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Again, these cases reject the notion that wiretapping that is “lawful” at its inception is somehow immune from the Fourth Amendment’s continuing requirement of reasonableness. Cf. Tennessee v. Garner, 471 U.S. 1, 7 (1985) (rejecting argument “that if [the probable-cause] requirement is satisfied the Fourth Amendment has nothing to say about how that seizure is made” (emphasis in original)); Rodriguez v. United States, 135 S. Ct. 1609, 1614–15 (2015).2
In this case, the surveillance of Mr. Mohamud was unreasonable because it lacked sufficiently protective back-end restrictions. The government premises its collection on the theory that its targets lack Fourth Amendment rights, but when it collects the communications of someone who indisputably has those rights, the protections remain paltry. As amici explained at length in their earlier submission, the procedures under Section 702 provide no meaningful protection to the many U.S. persons swept up in the government’s warrantless surveillance. Amici Br. 23– 29. Perhaps most troublingly, a central feature of the procedures is that they permit FBI agents to search Section 702 databases specifically for the protected communications of U.S. persons. It was the absence of the ability to conduct such
2 This principle is not unique to wiretapping cases. For example, as discussed infra, this Court has approved of warrants for computer hard-drives only when they restricted the government to searching for and accessing specific information on the drives. See, e.g., United States v. Sedaghaty, 728 F.3d 885, 913 (9th Cir. 2013) (“[T]he government should not be able to comb through Seda’s computers plucking out new forms of evidence that the investigating agents have decided may be useful, at least not without obtaining a new warrant.”).
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“secondary” or “backdoor” searches on which the FISCR rested its approval of warrantless surveillance under Section 702’s predecessor statute. See In re Directives, 551 F.3d 1004, 1015 (FISCR 2008) (“The government assures us that it does not maintain a database of incidentally collected information from nontargeted United States persons, and there is no evidence to the contrary.”). Yet even that protection has since been stripped away. II. Verdugo-Urquidez has no bearing on the surveillance of U.S. persons
like Mr. Mohamud on U.S. soil. The Court has also asked the parties to address the applicability, if any, of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), including its relevance to the location of the search. Verdugo-Urquidez has no application here for the simple reason that Verdugo-Urquidez concerned a physical search abroad of the property of a foreign national. It did not excuse the government from complying with the warrant requirement when it searches the communications of U.S. persons on U.S. soil. While the government may satisfy the Fourth Amendment rights of those U.S. persons after the fact, when it seeks to query or use their communications, it is not entitled to the windfall it seeks here. Verdugo-Urquidez involved a search of physical property located in Mexico and belonging to a Mexican national, in circumstances where no U.S. court had authority to issue a warrant. See id. at 261–62, 74. Verdugo-Urquidez was expressly concerned with the warrant requirement’s application abroad, in a case
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involving what can be called a “foreign-cubed” search: (1) the search was conducted on foreign soil; (2) the privacy interests at stake were exclusively those of a foreign national; and (3) the subject of the search was, until his arrest, located abroad. In a fractured decision, the Supreme Court held that applying the warrant requirement to such a search would be “impracticable and anomalous.” Id. at 278 (Kennedy, J., concurring).3
The search of Mr. Mohamud’s communications has nothing in common with Verdugo-Urquidez.
First, the search here took place inside the United States—and, as the Supreme Court made clear, that fact matters immensely. See id. at 278 (Kennedy, J., concurring) (“If the search had occurred in a residence within the United States, I have little doubt that the full protections of the Fourth Amendment would apply.”); id. at 261–62, 264, 274 (plurality) (emphasizing that “the place searched was located in Mexico”). Since the founding, searches of “papers and effects” conducted on U.S. soil have presumptively required a warrant.
3 Although the outcome here does not depend on it, amici note that it is the “impracticable and anomalous” standard set out in Justice Kennedy’s concurrence that is controlling, because he supplied the crucial fifth vote while explaining that he disagreed with the plurality’s narrow interpretation of the Fourth Amendment’s “reach.” See Verdugo-Urquidez, 494 U.S. at 276 (stating that he could not “place any weight on the reference to ‘the people’”). The Supreme Court reaffirmed this “functional” test for determining when constitutional protections apply abroad in Boumediene v. Bush, 553 U.S. 723, 759–64 (2008), where it cited Justice Kennedy’s concurrence twice, and the plurality opinion not at all.
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Second, Mr. Mohamud is a U.S. person, unlike the respondent in VerdugoUrquidez. Thus, even if the government is correct that the Fourth Amendment does not protect foreigners abroad, this case does not involve such a claim. The government argues that it targeted the foreign end of Mr. Mohamud’s conversations, and thus that the Fourth Amendment does not apply. But the Fourth Amendment does not speak in terms of “targets.” What matters, here, is that the government acquired a communication to which a United States person was a party. For that reason alone, the Fourth Amendment unquestionably applies, and nothing in Verdugo-Urquidez suggests that the government may bootstrap away an American’s right to privacy by “targeting” the foreign end.
Longstanding historical practice confirms that Verdugo-Urquidez’s reasoning cannot be extended to the search here. The government has been routinely required to obtain a warrant to search the communications of Americans inside the United States, including their international communications. Indeed, until 2007, when Congress passed Section 702’s predecessor statute, the government was required to obtain a warrant in these circumstances, regardless of whom it claimed to be targeting. See Ex parte Jackson, 96 U.S. 727, 733 (1877) (“The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.”); United States v. Ramsey, 431 U.S.
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606, 623–24 (1977) (citing 19 C.F.R. § 145.3 (1976), requiring a warrant to read the contents of international letters on U.S. soil); United States v. Warshak, 631 F.3d 266, 286 (6th Cir. 2010) (warrant required for search of stored emails on U.S. soil); 18 U.S.C. § 2518 (warrant required for interception of phone calls on U.S. soil); 50 U.S.C. §§ 1805, 1824 (individualized FISC order required for acquisition of wire communications and stored emails on U.S. soil). In other words, the government has for centuries obtained a warrant in order to access or use the private letters, phone calls, and emails of U.S. persons on U.S. soil.
Finally, even as to the government’s targets, Section 702 represents a gross expansion of Verdugo-Urquidez—and the facts of this case demonstrate why. The government takes the position that whenever it has formed a reasonable belief that its target is a foreigner abroad, it is entitled to warrantless access to all of that person’s communications.4 But even the Verdugo-Urquidez plurality required, at the very least, a far more individualized inquiry into the status of the persons searched. 494 U.S. at 271 (acknowledging that a foreign national with sufficient “voluntary connection” to the United States would be entitled to the protection of the Fourth Amendment). A foreign national who is located abroad today may have previously lived, worked, or studied in the United States. Not only that, but his or
4 At last count, the government was monitoring more than 94,000 targets based on this bare finding. ODNI, 2015 Statistical Transparency Report 5 (Apr. 30, 2016), https://perma.cc/53CP-5WM7.
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her stored emails may well date back to that time and thus represent wholly domestic communications. If, as the facts of the case suggest, the government targeted Amro Al-Ali—a Saudi national who lived and studied in the United States from 2008 to 2009—then the surveillance from the outset did not even meet Verdugo-Urquidez’s barest threshold. As a result, it cannot possibly serve as the pretext for warrantlessly surveilling Mr. Mohamud.
In short, the government has taken every premise relied upon in VerdugoUrquidez and stretched it far past its limits, in order to gain warrantless access to the international communications of Americans. See Amici Br. 16–17 & n.18. III. The Fourth Amendment requires the government to obtain a warrant
before seeking to access or use the communications of Americans collected under Section 702. A. The government cannot dispense with the Fourth Amendment
rights of Americans simply because it is targeting foreigners. Even if the government is permitted to surveil foreigners without first obtaining a warrant, it is not entitled to completely bypass the Fourth Amendment rights of U.S. persons like Mr. Mohamud. Rather, the government’s reasoning would justify, at most, the warrantless acquisition of foreign-to-foreign communications, in which it says no Fourth Amendment interests are implicated. But instead the government seeks a windfall: the ability to retain, use, and deliberately query the communications of known U.S. persons without ever satisfying the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 19 (1968) (“The
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scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.”). Back-end minimization procedures can and must provide U.S. persons with the protection that is absent on the front end.
First, the incidental-overhear doctrine does not permit the government to collect and retain the communications of a U.S. person without a warrant simply by “targeting” a person who lacks Fourth Amendment rights. See Amici Br. 17–18. It is the higher standard—not the lower one—that controls when a U.S. person’s protected privacy interests are at stake. Cf. United States v. Bin Laden, 126 F. Supp. 2d 264, 281 (S.D.N.Y. 2000) (rejecting the government’s reliance on the incidental-overhear doctrine and applying the higher Fourth Amendment standard where the U.S. person was a “contemplated interceptee of electronic surveillance . . . even if he was not officially deemed a target”). The government has never before been allowed to exploit the type of “mismatch” or loophole it relies on here.5 Instead, as noted above, the government has long been required to obtain a warrant on U.S. soil regardless of who it claims to be targeting. Indeed, the
5 Under Section 702, the government is applying on a programmatic scale the very logic the district court rejected in Bin Laden. As amici explained in their prior brief, the government’s explicit aim in advocating passage of Section 702 was to obtain warrantless access to the international communications of U.S. persons. Amici Br. 16–20. In other words, the government’s collection of protected communications is both foreseeable and deliberate. The mere fact that the government cannot identify all of these “contemplated interceptees” in advance, does not entitle it to disregard their Fourth Amendment rights once it knows that a particular communication involves a U.S. person.
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consequences of accepting the government’s incidental-overhear theory would be far-reaching, because its logic is completely untethered even from any foreignintelligence exception. By “targeting” the foreign end of communications, the government could bypass the courts and the warrant requirement for any international phone call, email, or letter involving a U.S. person, including in ordinary criminal investigations. In our nation’s history, such power would be extraordinary and “anomalous.” Verdugo-Urquidez, 494 U.S. at 278 (Kennedy, J., concurring).6
The government’s theory is dangerously overbroad and incoherent in another way—because it would render the minimization procedures legally irrelevant. If the government’s surveillance were “lawful” simply because it had satisfied the (non-existent) rights of its target, as it claims, then it would not matter what the government did after the fact. Yet even the government agrees that adequate minimization procedures are necessary to satisfy the Fourth Amendment rights of U.S. persons swept up in the surveillance. Gov’t Br. 128–29. The Fourth Amendment requires the government to obtain a warrant to access the private
6 To the extent the government falls back on a foreign-intelligence exception, if one exists at all it is not broad enough to render the surveillance of Mr. Mohamud lawful here. Courts have consistently limited the scope of any foreign-intelligence exception to cases where the Attorney General or the President has found probable cause to believe the target is the agent of a foreign power. See Amici Br. 21–23.
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communications of U.S. persons, and thus the minimization procedures must
afford comparable protection—even if it is after the fact.
Indeed, the fact that the protected communications of U.S. persons may be
intermingled with those of foreigners does not forever excuse the government from
complying with the warrant requirement. Both Congress and courts—including
this Court—have often dealt with similar overcollection problems, especially when
confronted with broad seizures of digital information. In response, they have
imposed rules to ensure that the scope of the government’s searches match the
scope of its Fourth Amendment authority. These rules routinely require the
government either to refrain from using information that is beyond the scope of its
legal authority or to secure additional court authorization after the fact.
 In the case of computer hard-drive searches, where data is often intermingled, this Court has prohibited the government from making investigative use of information outside the scope of its original warrant— unless it first obtains a new warrant. See Sedaghaty, 728 F.3d at 914 (“To the extent the agents wanted to seize relevant information beyond the scope of the warrant, they should have sought a further warrant.”). As the Court has made clear, these restrictions ensure that the government does not reap precisely the type of Fourth Amendment windfall it seeks here. See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th Cir. 2010) (computer review procedures were “designed to reassure the issuing magistrate that the government wouldn’t sweep up large quantities of data in the hope of dredging up information it could not otherwise lawfully seize”).
 In the case of traditional FISA surveillance, Congress imposed a special set of strict minimization rules to ensure that warrantless surveillance directed exclusively at foreign powers does not intrude upon the Fourth Amendment rights of U.S. persons swept up in that surveillance. See 50 U.S.C. §§ 1801(h)(4), 1802(a)(1). If the government learns after that fact that it has
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collected an American’s communications without a warrant, it is required to destroy the protected communications within 72 hours or to obtain an individualized FISC order to retain them. Id. § 1801(h)(4). Because this surveillance is warrantless and targeted at foreign powers, it is closely analogous to that conducted under Section 702.
 In the case of Protect America Act surveillance, the FISCR predicated its Fourth Amendment ruling on the fact that the government was not amassing a searchable database of incidentally collected U.S.-person communications. See In re Directives, 551 F.3d at 1015. The government represented that it was not deliberately storing or searching for Americans’ communications— and, indeed, the government’s procedures prohibited such “secondary searches” for years. See infra Section III.B.
 In the case of FISA pen-register surveillance, the FISCR recently relied on rules that prohibit the government from making any investigative use of Fourth-Amendment protected content obtained in the course of acquiring unprotected metadata. In re Certified Question of Law, No. 16-01, slip op. at 33–34 (FISCR Apr. 14, 2016), https://perma.cc/MHL9-D2KE. The fact that protected and unprotected data may be intermingled does not give the government carte blanche to disregard basic Fourth Amendment protections.
 In the case of Section 702 surveillance itself, the FISC has strictly limited the government’s ability to use communications obtained via Upstream surveillance—including its ability to conduct secondary searches—precisely because Upstream surveillance involves significant amounts of overcollection, even by the government’s standards. [Redacted], 2011 WL 10945618, at *10–13 & n.21 (FISC Oct. 3, 2011).
 In the case of Title III surveillance, the government is required to segregate and destroy non-responsive communications in real-time, thereby ensuring that the collection does not exceed the scope of the initial court authorization. See Turner, 528 F.2d at 156 (finding Title III constitutional because “measures [must] be adopted to reduce the extent of . . . interception [of irrelevant or innocent communications] to a practical minimum”).
In each of these instances, courts and Congress have adopted practical solutions to
a practical problem involving intermingled data—in order to ensure that the
government’s searches comply with the Fourth Amendment. In the same way, the
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mere fact that the government is targeting foreigners under Section 702 when it acquires the communications of U.S. persons is not a valid reason for jettisoning the warrant requirement altogether.
Finally, while back-end minimization procedures could adequately protect the rights of U.S. persons, the current procedures do the opposite. It is plain that the minimization procedures do not afford U.S. persons anything resembling the basic protections of the Fourth Amendment. See Amici Br. 25–29. They allow the government to collect Americans’ communications on U.S. soil without a warrant, under the guise of targeting foreigners. They allow the government to retain those communications for five years by default—and to pool them in massive centralized databases.7 And they allow agents to conduct queries that deliberately target U.S. persons’ communications after they are collected, including for use in all manner of criminal investigations. See PCLOB Report 55–60. In short, the procedures— which are supposed to protect the privacy of Americans—authorize the very type of intrusion that the Fourth Amendment was designed to guard against.
7 During this time, analysts rarely minimize anything. See PCLOB Report 129 (“[A]lthough a communication must be ‘destroyed upon recognition’ when an NSA analyst recognizes that it involves a U.S. person and determines that it clearly is not relevant to foreign intelligence or evidence of a crime, in reality this rarely happens.”).
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B. The Court should hold the secondary search of Mr. Mohamud unlawful.
The Court can and should find the surveillance of Mr. Mohamud unlawful based on its warrantless query of his communications.
The government is wrong that a rule restricting such post-seizure queries would be anomalous. For one thing, such a restriction already exists in the context of Section 702 itself: the government is already prohibited from conducting secondary searches targeting Americans within its Upstream databases. See 2015 NSA Minimization Procedures § 3(b)(5), https://perma.cc/4PRP-MGS3. In fact, up until 2011, secondary searches targeting Americans within the NSA’s PRISM databases were also prohibited. See [Redacted], 2011 WL 10945618, at *7 (“The procedures previously approved by the Court effectively impose a wholesale bar on queries using United States-Person identifiers.”); Ellen Nakashima, Obama Administration Had Restrictions on NSA Reversed in 2011, Wash. Post, Sept. 7, 2013, https://perma.cc/5E85-T7EU. And, when the FISCR ruled on Section 702’s predecessor statute, such searches were categorically barred. See In re Directives, 551 F.3d at 1015. Indeed, rules that restrict the government’s later use of information—especially electronic information—or require the government to seek court approval after the fact are especially common when the government has engaged in broad collection or relied on an exception to the warrant requirement. See, e.g., 50 U.S.C. 1801(h)(4) (requiring individualized FISC authorization to
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retain and use Americans’ communications); In re Application of the FBI, No. BR 14-01, slip op. at 6–9 (FISC Feb. 4, 2014), https://perma.cc/2MVK-LER7 (requiring individualized FISC authorization to query bulk call-records database); 50 U.S.C. § 1805(e) (requiring after-the-fact FISC authorization in emergencies); 18 U.S.C. § 2518(7) (similar for Title III).
Moreover, in rejecting Mr. Mohamud’s challenge to the secondary search of his communications, the district court made a significant factual error. The court appeared to assume that the collected communications are invariably reviewed by human analysts—and “minimized”—at the time of the collection. Dist. Ct. Op. 45 (I:216). Based on that premise, the court theorized that a query to extract Mr. Mohamud’s communications could not be more intrusive than the original review.
That premise is wrong. The sheer number of communications collected under Section 702—at least hundreds of millions per year—makes reviewing them in real-time impossible. Instead, many communications simply sit in the government’s databases until they are either selected through a specific query or automatically purged after five years. See PCLOB Report 128–29 (“NSA analysts do not review all or even most communications acquired under Section 702 as they arrive at the agency. Instead, those communications often remain in the agency’s databases unreviewed until they are retrieved in response to a database query, or until they are deleted . . . without ever having been reviewed.”). For that reason,
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queries designed to extract the communications of specific U.S. persons often

constitute a new intrusion—one directed at communications that the government

knows are protected by the Fourth Amendment.

A rule requiring the government to obtain individualized court approval in

order to query the communications of a known U.S. person would simply require

the type of protection the government has bypassed on the front-end. As amici

have described previously, the President’s Review Group, the House of

Representatives, and then-Senator Obama have all called for similar protection.

See Amici. Br. 30. Given the breadth and intrusiveness of this surveillance, such a

requirement is a practical, necessary, and reasonable safeguard.

Conclusion

For the foregoing reasons, the Court should hold that the surveillance of Mr.

Mohamud was unconstitutional.

Dated: October 3, 2016

Respectfully submitted,

/s/ Patrick Toomey Patrick Toomey Alex Abdo AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 ptoomey@aclu.org

Counsel for Amici Curiae

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Of Counsel: Mathew W. dos Santos AMERICAN CIVIL LIBERTIES UNION OF OREGON FOUNDATION P.O. Box 40585 Portland, OR 97240 Phone: (503) 227-6928 MdosSantos@aclu-or.org Of Counsel: Mark Rumold Andrew Crocker ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Phone: (415) 436-9333 Fax: (415) 436-9993 mark@eff.org
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CERTIFICATE OF COMPLIANCE WITH THE LENGTH LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS PURSUANT TO FED. R. APP. P. 32(a)(7)(C)

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify as follows:

1. This Supplemental Brief of Amici Curiae American Civil Liberties

Union, American Civil Liberties Union of Oregon, and Electronic Frontier

Foundation in Support of Defendant–Appellant complies with the Court’s Order

dated September 2, 2016, because the brief contains no more than twenty pages,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and

2. This brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft

Word 2010, in 14-point Times New Roman font.

Dated: October 3, 2016

/s/ Patrick Toomey Patrick Toomey
Counsel for Amici Curiae

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on October 3, 2016.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

Dated: October 3, 2016

/s/ Patrick Toomey Patrick Toomey
Counsel for Amici Curiae

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