Case 1:11-cr-00623-JG Document 1 Filed 09/08/11 Page 1 of 3 PageID #: 1

DMB:JPL/MSA F.#2011R00783

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

- - -x

Us D:~~~FfI~L'SEODFFICE OURT E.D.N.Y.
* * 5£P 08 2011
BROOKLYN OFFICE

UNITED STATES OF AMERICA - against -
AGRON HASBAJRAMI, Defendant.

I N D I C T MEN T
62S- IlflrlNl ~T. 1~ U;S.C.; §§ 2339A(a), 2 and 3551 et seq.)

- - - - - - - - - - -x
THE GRAND JURY CHARGES:

PROVISION OF MATERIAL SUPPORT TO TERRORISTS

On or about and between June 1, 2010 and September 6,

2011, both dates being approximate and inclusive, within the

Eastern District of New York and elsewhere, the defendant AGRON

HASBAJRAMI, together. with others, did knowingly and intentionally

provide and attempt to provide material support and resources, as

defined in 18 U.S.C. § 2339A(b), including currency, monetary

instruments, weapons and personnel, knowing and intending that

they were to be used in preparation for, and in carrying out, a

conspiracy to commit at a place outside the United States an act

that would constitute the offense of murder, kidnapping or

maiming if committed in the special maritime and territorial

jurisdiction of the United States, where one of the conspirators

committed an act within the jurisdiction of the United States to

1

Case 1:11-cr-00623-JG Document 1 Filed 09/08/11 Page 2 of 3 PageID #: 2 effect an object of the conspiracy, in violation of Title 18, united States Code, Section 956(a).
(Title 18, united States Code, Sections 2339A(a), 2 and 3551 et seq.)
A TRUE BILL
l. ~JE.-.2LliYt..NCH ~lJ
UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK
2

Case 1:11-cr-00623-JG Document 1 Filed 09/08/11 Page 3 of 3 PageID #: 3
FILED
us Di~T~~:~6 OFFICE URTED.N.Y
* SEP 0 8 2011 *

I. Title of Case:

INFORMATION §HI<:ET

~i~~TATES

CJQlE-Rl:Ti

United States v. Agron Hasbajrami

BROOKLYN OFFICE

2. Related Docket Number(s): _ _ _ _ _ _ _ __ None ( )

3. Arrest Date:

September 8. 2011

4. Nature of offense(s):

X Felony
o Misdemeanor

5. Related Civil or Criminal Cases - Title and Docket No(s). (Pursuant to Rule 50.3 of the Local E.D.N.Y. Division of Business Rules):_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

6. Projected Length of Trial: Less than 6 weeks (XX) More than 6 weeks ( )

7. County in which crime was allegedly committed: Brooklyn (Pursuant to Rule 50.l(d) of the Local E.D.N.Y. Division of Business Rules)

. 8. Has this indictment been ordered sealed? (X) Yes () No
h 9. Have arrest warrants been ordered? Yes () No

10. Is there a capital count included in the indictment? ( ) Yes (XX) No

Dated: September 8, 2011

LORETTAE. LYNCH
By: ~~5l1iL Matthew S. Amatruda Assistant U.S. Attorney (718) 254-6191

 
 Case 1:11-cr-00623-JG Document 65 Filed 02/24/14 Page 1 of 2 PageID #: 388 U.S. Department of Justice

DSS:MSA/SDD F. #2011R00783
By Regular Mail

United States Attorney Eastern District of New York
271 Cadman Plaza East Brooklyn, New York 11201
February 24, 2014

Agron Hasbajrami 65794-053 FCI Fairton, P.O. Box 420 Fairton, NJ 08320

Re: Agron Hasbajrami v. United States Crim. Docket No. 11-623 (S1)(JG)
Dear Mr. Hasbajrami:
The government submits this letter to supplement the government’s original Foreign Intelligence Surveillance Act (“FISA”) notice, which was filed on September 13, 2011. The original FISA notice advised you that the government intended to offer into evidence, or otherwise use or disclose “information obtained or derived from electronic surveillance and physical searches conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (‘FISA’), as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829.” (Dckt. # 9). Electronic surveillance under these provisions is commonly referred to as Title I collection, while physical search is commonly referred to as Title III collection.
We write to supplement the original notice by informing you that, pursuant to 50 U.S.C. §§ 1806(c) and 1881e(a), the government intended to offer into evidence or otherwise use or disclose in proceedings 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. This supplemental notification is based on a recent determination by the government that certain evidence or information obtained or derived from Title I and Title III FISA collection in this case was itself also derived from other collection pursuant to Title VII of FISA as to which you were aggrieved. Title VII of FISA, enacted pursuant to the FISA Amendments Act (“FAA”), permits, among other things, the targeting of electronic communications of non-U.S. persons located outside the United States, subject to certain statutory requirements. See 50 U.S.C. §1881a. Accordingly, we write to inform you that certain evidence and information, obtained or derived from Title I or III FISA collection, that the government intended to offer into evidence or otherwise use or disclose in proceedings in this case was derived from acquisition of foreign intelligence information conducted pursuant to the FAA.

Case 1:11-cr-00623-JG Document 65 Filed 02/24/14 Page 2 of 2 PageID #: 389
In the government’s view, this supplemental notification does not afford you a basis to withdraw your plea or to otherwise attack your conviction or sentence because you expressly waived those rights, as well as the right to any additional disclosures from the government, in your plea agreement. Nevertheless, because you currently have a pending habeas petition in civil case number 13-6852 (JG), by which you are seeking to vacate your conviction on other grounds, the government does not oppose modifying the existing briefing schedule to permit you to amend your submission before the government files its response if you wish to do so. If you do not wish to amend your submission, the government will respond to the pending petition on or before February 28, 2014, as is currently scheduled.
Respectfully submitted, LORETTA E. LYNCH United States Attorney By: /s/ Seth D. DuCharme Matthew S. Amatruda Seth D. DuCharme Assistant U.S. Attorneys (718) 254-7012/6021
cc: Clerk of Court, via ECF (JG) Steve Zissou, Esq.
2

 
 Case 1:11-cr-00623-JG
DMB:MSA/SDD F. #2011R00783

Document 20

Filed 01/26/12

Page 1 of 7 PageID #: 65
FILED
IN CLERK:S OFFICE US DISTRICT COURT E. D. N.Y.
* * JAN 26 2012

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

- - -X

BROOKLYN OFFICE

UNITED STATES OF AMERICA - against -
AGRON HASBAJRAMI, Defendant.

s up ERs EDI NG I N D I c T ME N T
Cr. No. 11-623 (S-1) (JG)
(T. 18, u.s.c.'
§§ 2339A(a), 2 and 3551 et seq.)

- - - - - - - - - - -X
THE GRAND JURY CHARGES:

COUNT ONE (Provision and Attempted Provision of
Material Support to Terrorists)

On or about and between February 23, 2011 and

February 25, 2011, both dates being approximate and inclusive,

within the Eastern District of New York and elsewhere, the

defendant AGRON HASBAJRAMI, together with others, did knowingly

and intentionally provide and attempt to provide material support

and resources, as defined in Title 18, United States Code,

Section 2339A(b), including currency, monetary instruments and

weapons, knowing and intending that they were to be used in

preparation for, and in carrying out, a conspiracy to commit at a

place outside the United States an act that would constitute the

offense of murder, kidnapping or maiming if committed in the

special maritime and territorial jurisdiction of the United

States, where one of the conspirators committed an act within the

jurisdiction of the United States to effect an object of the

Case 1:11-cr-00623-JG Document 20 Filed 01/26/12 Page 2 of 7 PageID #: 66
. r
conspiracy, in violation of Title 18, United States Code, Section 956 (a) .
(Title 18, United States Code, Sections 2339A(a), 2 and 3551 et seq.)
COUNT TWO (Attempt to Provide Material Support to Terrorists)
On or about and between April 1, 2011 and September 6, 2011, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant AGRON HASBAJRAMI, together with others, did knowingly and intentionally attempt to provide material support and resources, as defined in Title 18, United States Code, Section 2339A(b), including currency, monetary instruments, weapons and personnel, knowing and intending that they were to be used in preparation for, and in carrying out, one or more of the following violations of Title 18, United States Code: (a) a conspiracy to commit at a place outside the United States an act that would constitute the offense of murder, kidnapping or maiming if committed in the special maritime and territorial jurisdiction of the United States, where one of the conspirators committed an act within the jurisdiction of the United States to effect an object of the conspiracy, in violation of Title 18, United States Code, Section 956(a); and (b) a conspiracy involving one or more conspirators outside the United States to kill one or more nationals of the United States, to wit: United States military personnel stationed
2

Case 1:11-cr-00623-JG Document 20 Filed 01/26/12 Page 3 of 7 PageID #: 67 •
outside the United States, which killings would have constituted murder as defined in Title 18, United States Code, Section llll(a), where one or more of the conspirators committed an overt act to effect the object of the conspiracy, in violation of Title 18, United States Code, Section 2332(b).
(Title 18, United States Code, Sections 2339A(a), 2 and 3551 et seq.)
COUNT THREE (Provision and Attempted Provision of
Material Support to Terrorists) On or about April 6, 2011, within the Eastern District of New York and elsewhere, the defendant AGRON HASBAJRAMI, together with others, did knowingly and intentionally provide and attempt to provide material support and resources, as defined in Title 18, United States Code, Section 2339A(b), including currency, monetary instruments and weapons, knowing and intending that they were to be used in preparation for, and in carrying out, a conspiracy to commit at a place outside the United States an act that would constitute the offense of murder, kidnapping or maiming if committed in the special maritime and territorial jurisdiction of the United States, where one of the conspirators committed an act within the jurisdiction of the United States to
3

Case 1:11-cr-00623-JG Document 20 Filed 01/26/12 Page 4 of 7 PageID #: 68
effect an object of the conspiracy, in violation of Title 18, United States Code, Section 956(a).
(Title 18, United States Code, Sections 2339A{a), 2 and 3551 et seq.)
COUNT FOUR (Provision and Attempted Provision of
Material Support to Terrorists) On or about April 29, 2011, within the Eastern District of New York and elsewhere, the defendant AGRON HASBAJRAMI, together with others, did knowingly and intentionally provide and attempt to provide material support and resources, as defined in Title 18, United States Code, Section 2339A(b), including currency, monetary instruments and weapons, knowing and intending that they were to be used in preparation for, and in carrying out, a conspiracy to commit at a place outside the United States an act that would constitute the offense of murder, kidnapping or maiming if committed in the special maritime and territorial jurisdiction of the United States, where one of the conspirators committed an act within the jurisdiction of the United States to
4

Case 1:11-cr-00623-JG Document 20 Filed 01/26/12 Page 5 of 7 PageID #: 69 effect an object of the conspiracy, in violation of Title 18, United States Code, Section 956(a).
(Title 18, United States Code, Sections 2339A(a), 2 and 3551 et seq.)
A TRUE BILL RSON
5

Case 1:11-cr-00623-JG Document 20 Filed 01/26/12 Page 6 of 7 PageID #: 70

'

F#2011R00783

JUN. 85

No. CR-11-623 (S-I)(JG)
UNITED STATES DISTRICT COURT
EASTERN District of NEW YORK
CRIMINAL Division
THE UNITED STATES OF AMERICA
vs.
AGRON HASBAJRAMI,
Defendant.
SUPERSEDING INDICTMENT
(T. 18, U.S.C., §§ 2339A (a), 2 and 3551 et ~ .)
__ :~:u~ ~~~t-;m~;;- 1 _________ -------

Filed in open court this day, of____________ A.D. 20 ____ _

Clerk

Bail,$ __________ _

SETH DUCHARME, AUSA (718) 254-6021

MOR

Case 1:11-cr-00623-JG Document 20 Filed 01/26/12 Page 7 of 7 PageID #: 71
\
INFORMATION SHEET

UNITED STATES DISTRICT COURT

* EASTERN DISTRICT OF NEW YORK

JAN2Lc ...:

I. Title of Case: United States v. AGRON HASBAJRAMI

BROOJ<LVN L .. ICE

2. Related Magistrate Docket Number(s)_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ None ( )

3. Arrest Date:

4. Nature of offense(s): D Felony D Misdemeanor

5. Related Civil or Criminal Cases- Title and Docket No(s). (Pursuant to Rule 50.3 of the Local E.D.N.Y. Division of Business Rules):_ _ _ _ _ _ _ _ _ _ _ _ _ __

6. Projected Length of Trial: Less than 6 weeks ( X) More than 6 weeks ( )

7. County in which crime was allegedly committed: _ _ _ _ _ _ _ _(Pursuant to Rule 50.l(d) of the Local E.D.N.Y. Division of Business Ruies)

8. Has this indictment been ordered sealed?

()Yes (X) No

9. Have arrest warrants been ordered?

()Yes (X) No

I 0. Is a capital count included in the indictment?

()Yes (X)No

Rev. 10/01/03

By: SETH DUCHARME, AUSA (718) 254-6021

 
 Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 1 of 11 PageID #: 265 U.S. Department of Justice

DMB:MSA/SDD F.#2011R00783

United States Attorney Eastern District of New York
271 Cadman Plaza East Brooklyn, New York 11201
November 21, 2012

Via Hand Delivery and ECF
Honorable John Gleeson United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: United States v. Agron Hasbajrami Criminal Docket No. 11-623 (S-1)(JG)
Dear Judge Gleeson:
The government submits this letter in connection with the defendant’s sentencing, which is scheduled for December 21, 2012, and in response to the Court’s order that the parties address Section 6B1.2 of the United States Sentencing Guidelines. For the reasons set forth below, the government respectfully requests that the Court accept the plea and sentence the defendant to a term of imprisonment of fifteen years.
I. Background
As set forth in the Presentence Investigation Report (“PSR”), as amended on October 5, 2012, an investigation by agents of the Joint Terrorism Task Force (“JTTF”) revealed that between April 2, 2011, and August 28, 2011, the defendant communicated with a Pakistan-based extremist (“Individual #1”) who informed the defendant that he was part of a terrorist organization. (PSR ¶ 2). Individual #1 – a foreign national who is not a government agent, and whose identity is known to the parties – told the defendant that his group was engaged in attacks on American soldiers in Afghanistan. In addition, Individual #1 promoted violent extremist activity through internet communications and publications, and solicited funds that he represented would be used to support terrorist operations. During the course of their communications, the defendant sent approximately $1,000 to Individual #1 to support

Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 2 of 11 PageID #: 266
Islamic fundamentalist terrorist operations. In addition, the defendant and Individual #1 planned for the defendant’s travel from New York to the Federally Administered Tribal Areas (“FATA”) of Pakistan, where the defendant hoped to join a jihadist fighting group. During their communications, the defendant discussed with Individual #1 his desire to “marry with the girls in paradise” – that is, to die as a martyr while engaged in fighting a holy war.
Upon learning of the defendant’s communications with Individual #1, and discovering that the defendant had lost contact with Individual #1 for a period of time, the government introduced a cooperating source (“CS”) to the defendant through online communications in order to determine whether the defendant remained intent on supporting terrorism and joining a foreign fighter group abroad. Through the use of the CS, the government learned that the defendant was continuing to make efforts to support international terrorism, and in fact was pursuing his plans to travel from the United States to the Middle East and ultimately make his way to the FATA to join a foreign fighter group.
On September 6, 2011, JTTF agents arrested the defendant at John F. Kennedy International Airport (“JFK”) in Queens, New York, from where he was about to travel to Turkey en route to Pakistan. (PSR ¶ 4). Following his arrest, the defendant made statements to agents regarding his offense conduct.1 On September 8, 2011, a grand jury in this District returned an indictment charging the defendant with one count of providing material support to terrorists, in violation of 18 U.S.C. § 2339A(a). On January 26, 2012, the grand jury returned a superseding indictment, which including three additional counts of providing and attempting to provide materials support, consisting principally of money (some of which was to be used for weapons) and personnel. On April 12, 2012, following discovery disclosures and plea negotiations, the defendant pled guilty to Count Two of the superseding indictment. (PSR ¶ 1).
1 The government offers copies of the defendant’s post arrest statements as Exhibit A, and respectfully requests that they be filed under seal because the statements relate to ongoing investigations. See United States v. Doe, 63 F.3d 121, 128 (2d Cir. 1995); United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988). In the event that the Court denies the government’s motion to seal Exhibit A, the government would respectfully withdraw the exhibit to avoid public disclosure.
2

Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 3 of 11 PageID #: 267
During his plea allocution, the defendant stated:
Between April 1, 2011 and September 6, 2011, I tried to help a group of people who I believed were engaged in fighting in Pakistan. I agreed with the group and attempted to help the group by providing money, and myself, in support of their efforts. I obtained an Iranian visa and, on September 6, 2011, I went to JFK in Queens, New York in an effort to travel to [sic] Middle East in an effort to join the group.
(Plea Tr. 18-19). In addition, at the plea proceeding, the Court informed the parties that the Court would reserve decision as to whether to accept the plea, and directed the parties to address Guidelines Section 6B1.2.
With respect to the defendant’s offense conduct, the parties stipulated to a joint proposed amendment to the PSR, a copy of which has been previously provided to the Court. In sum, the parties agreed that the defendant sent money to, and attempted to join, a group of people whom he believed were engaged in fighting in the FATA.
II. Applicable Law
A. Acceptance of the Guilty Plea
Rule 11(c)(3)(A) of the Federal Rules of Criminal Procedure directs that where a defendant “pleads guilty . . . to . . . a charged offense” pursuant to a plea agreement specifying that “an attorney for the government . . . will move to dismiss other charges,” then “the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.” Section 6B1.1(c) of the United States Sentencing Guidelines repeats the language of Rule 11(c)(3)(A).
Section 6B1.2 sets forth the standards for acceptance of plea agreements under the Guidelines. As pertinent here, Section 6B1.2(a) specifies that “the court may accept the agreement if the court determines, for reasons stated on the record, that the remaining charges adequately reflect the seriousness of the actual offense behavior and that accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing Guidelines.” Whether to accept a plea agreement rests within the Court’s discretion. See United States v. Severino, 800 F.2d 42, 45 (2d Cir. 1986); United States v.
3

Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 4 of 11 PageID #: 268
Torres-Echavarria, 129 F.3d 692, 696 (2d Cir. 1997); see also Fed. R. Crim. P. 11(c)(3)(A) Advisory Committee Notes (“The plea agreement procedure does not attempt to define criteria for the acceptance or rejection of a plea agreement. Such a decision is left to the discretion of the individual trial judge.”).
B. Imposition of Sentence
It is settled law that “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark.” Gall v. United States, 552 U.S. 38, 49 (2007) (citation omitted). Next, a sentencing court should “consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, [it] may not presume that the Guidelines range is reasonable. [It] must make an individualized assessment based on the facts presented.” Id. at 50 (citation and footnote omitted).
Title 18, United States Code, Section 3553(a) provides, in part, that a sentencing Court shall consider:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant; [and]
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
Thus, the Court must first calculate the applicable Guidelines range, and then apply the 3553(a) factors to arrive at an appropriate sentence. Notably, “district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.” Gall, 552 U.S. at 50 n.6.
4

Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 5 of 11 PageID #: 269

C. Application of the Terrorism Enhancement

Section 3A1.4 of the Sentencing Guidelines applies where “the offense is a felony that involved, or was intended to promote, a federal crime of terrorism,” as defined in 18 U.S.C. § 2332b(g)(5). U.S.S.G. § 3A1.4 & comment n. 1. Section 2332b(g)(5), in turn, provides that:

[T]he term “Federal crime of terrorism’ means an offense that -

(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and

(B) is a violation of [one of certain enumerated statutes].

18 U.S.C. § 2332b(g)(5). The Second Circuit has held that by requiring that the underlying crime “be calculated to influence or affect . . . or to retaliate against government conduct,” the statute does not require “proof of a defendant’s particular motive.” United States v. Awan, 607 F.3d 306, 317 (2d. Cir. 2010). “[A] person may intend and may commit an offense that is so calculated even if influencing or retaliating against government is not his personal motivation.” Id. By way of example, “a person who murders a head of state” commits an act of terrorism if he knows “that his crime will influence or affect the conduct of government . . . even if his particular motivation in committing the murder is to impress a more established terrorist with his abilities.” Id. (emphasis in original). In this case, the offense of conviction - Count Two - charged a violation enumerated in 18 U.S.C. § 2332b(g)(5)(b).

III. Guidelines Calculation

As set forth in the PSR, the defendant’s total adjusted offense level for Count Two is 42. (PSR ¶¶ 7-15). The Guidelines for Count Two are calculated as follows:

Base Offense Level: (2X2.1)

33

Plus: Terrorism Enhancement (3A1.4(a))

+12

Less: Acceptance of Responsibility (3E1.1) - 3

Adjusted Offense Level:

42

5

Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 6 of 11 PageID #: 270
Additionally, while the defendant has no known criminal record, pursuant to the application of the terrorism enhancement in Section 3A1.4(b), the defendant’s criminal history category is VI. Category VI provides for an applicable advisory Guidelines sentence of 360 months to life imprisonment. However, because Count Two carries a statutory maximum sentence of fifteen years, the defendant’s effective Guidelines range of imprisonment is 180 months. (PSR ¶ 41).
IV. The Court Should Accept the Defendant’s Plea Because it Reflects a Reasonable Exercise of Prosecutorial Discretion
On April 12, 2012, pursuant to a plea agreement with the government and in satisfaction of a four-count superseding indictment, the defendant pled guilty to one count of attempted material support for terrorists, in violation of 18 U.S.C. § 2339A. PSR ¶ 1. During the guilty plea proceeding, the Court directed the parties to address at sentencing whether it should accept the plea agreement pursuant to Rule 11(c)(3)(A) and Section 6B1.1(c).
As discussed above, both Rule 11(c)(3)(A) and Section 6B1.1(c) direct that, where a defendant pleads guilty pursuant to a plea agreement specifying that the government “will move to dismiss other charges,” “the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.” Section 6B1.2 sets forth the factors governing the Court’s decision:
the court may accept the agreement if the court determines, for reasons stated on the record, that the remaining charges adequately reflect the seriousness of the actual offense behavior and that accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing Guidelines.
U.S.S.G. § 6B1.2. Whether to accept a plea agreement pursuant to the above standards rests within the Court’s discretion. Severino, 800 F.2d at 45; Torres-Echavarria, 129 F.3d at 696; Fed. R. Crim. P. 11(c)(3)(A) Advisory Committee Notes.
The Court should accept the plea agreement because the negotiated disposition appropriately balances the seriousness of the defendant’s conduct against the significant prosecutorial risks and burdens avoided through a negotiated resolution, and permits careful allocation of prosecutorial and other governmental resources that would otherwise be devoted to
6

Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 7 of 11 PageID #: 271
pretrial and trial litigation. On one hand, as discussed further below, the defendant’s crimes were profoundly serious: he sent significant sums of money in support of terrorist activities aimed at American servicemen abroad, and he himself attempted to travel abroad with the intent to join a jihadist fighting group. He posed a real danger to American lives and interests overseas, and accordingly deserves a very serious sentence.
On the other hand, had the government and the defendant not reached a plea agreement, the government would have been faced with the risk of trial, which in all cases includes the possibility of adverse verdicts on one or more counts of the indictment. Moreover, had the defendant elected to proceed to trial, or to exercise all of his pretrial litigation options, the government would likely have been required to engage in substantial litigation, including at a minimum a motion to suppress evidence obtained or derived pursuant to the Foreign Intelligence Surveillance Act, see 50 U.S.C. §§ 1801 et seq.; a motion to suppress the defendant’s post-arrest statements; and one or more motions for protective orders pursuant to the Classified Information Procedures Act, see 18 U.S.C. App. III § 4. As the Court is aware, such litigation can be unusually burdensome even in the most straightforward of cases, and can pose exceptional burdens where complex issues are present. Nor do such burdens fall solely on the Department of Justice and the investigating agencies associated with the JTTF. Rather, the responsibility to protect against undue disclosure of classified information requires coordination with other government agencies; the relevant agency or agencies must in such cases devote substantial effort to analyzing and describing potential risks and setting forth that analysis for the Court. Indeed, pursuant to Second Circuit law, any declaration seeking to assert the privilege against the disclosure of classified information must be accompanied by a personal declaration by the “head” of the relevant agency. See United States v. Aref, 533 F.3d 72, 78-80 (2d Cir. 2008).
Plainly, such declarations must be produced, and such motions must be litigated, where necessary in the appropriate case. Equally plainly, where the government can secure a substantial sentence that adequately reflects the Section 3553(a) factors without causing additional burdens on its counterterrorism apparatus, it is in the national security interest of the United States to do so. In the judgment of the government, the mutual concessions in the plea agreement in this case accomplish those twin aims by providing the sentencing court with the opportunity to impose a reasonable sentence in light of the defendant’s acceptance of responsibility, and by permitting the
7

Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 8 of 11 PageID #: 272
government to focus its resources on additional offenders and additional threats. See generally United States Attorney’s Manual § 9-27.420.
Such interests have long been recognized as appropriate bases for the exercise of prosecutorial discretion:
This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern.
Wayte v. United States, 470 U.S. 598, 607 (1985). As this Court has noted, “Although the Supreme Court used that language in addressing the decision whether to prosecute, it is equally applicable . . . to whether an arguably reasonable sentence bargain is appropriate.” Hon. John Gleeson, Idea: the Sentencing Commission and Prosecutorial Discretion: the Role of the Courts in Policing Sentence Bargains, 36 Hofstra Law Review 639, 656 n.68 (2008). While this case does not involve sentence bargaining, the Supreme Court’s reasoning applies where a plea bargain effectively limits the defendant’s sentence to the statutory maximum prison term.
Balanced against the above prosecutorial interests, a sentence at the statutory maximum of fifteen years will “adequately reflect the seriousness of the actual offense behavior” and “not undermine the statutory purposes of sentencing or the sentencing Guidelines.” As set forth below, the plea agreement preserves the Court’s authority to impose a significant sentence that serves the statutory interests of sentencing. While the superseding indictment included additional substantive counts of providing and attempting to provide material support to terrorists, in that the defendant sent money overseas on separate occasions, and also sought to join a group of foreign fighters, the counts were related to a common scheme, and the scheme to travel abroad never progressed past the airport. Under all of the foregoing circumstances, the Court should accept the plea agreement.
8

Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 9 of 11 PageID #: 273
V. Sentencing Analysis
A. The Probation Department Accurately Calculated the Applicable Advisory Guidelines Range
The PSR appropriately applied the terrorism enhancement set forth in § 3A1.4. As noted above, the offense of conviction, 18 U.S.C. § 2339A(a), is among the crimes listed in 18 U.S.C. § 2332(g)(5)(B), and the crimes supported by the defendant – jihadist fighting against the American, Pakistani, or allied forces in Afghanistan and the FATA, were squarely among those “calculated to influence or affect the conduct of government by intimidation or coercion,” id. § 2332(g)(5)(A). Accordingly, his applicable advisory Guidelines term of imprisonment is the statutory maximum sentence of 180 months’ imprisonment.
B. The Statutory Maximum Appropriately Accounts for the Significance of the Defendant’s Criminal Conduct in the Context of the Guilty Plea, which Spared the Government Significant Litigation Risks and Burdens
The Sentencing Guidelines treat terrorism offenses severely and thus provide an appropriate touchstone from which to begin the 3553(a) analysis. As the Second Circuit noted in 2010, “the Guidelines signal that any crime promoting terrorism is to be viewed as extremely serious.” United States v. Stewart, 597 F.3d at 521 (2d Cir. 2010). Likewise, “the strong need to deter terrorism is evident from the Guidelines recommendation that a terrorism defendant be accorded a criminal history of VI, the highest level possible, without regard to [a defendant’s] actual criminal record.” Id.
Under the circumstances presented here, as set forth above with respect to the 6B1.2 analysis, where the defendant’s plea of guilty spared the government the risks and burdens associated with prosecuting a case involving classified information, and that was likely to consume the time and attention of JTTF investigators whose primary duties are protecting national security through the prevention and investigation of other crimes of terrorism, a sentence at the statutory maximum of fifteen years’ imprisonment is not unreasonable.
C. The Nature and Circumstances of the Offense Weigh in Favor of a Sentence of Fifteen Years
Although certainly not dispositive, it is not wholly irrelevant that the defendant in this case was only able to send
9

Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 10 of 11 PageID #: 274
approximately $1,000 overseas, and that his attempt to join a terrorist organization was disrupted well before he even left the United States. Nor does this case present as an aggravating factor proof of actual harm to victims; rather, the government does not argue that the defendant’s conduct contributed to any actual harm overseas. See United States v. Stewart, 590 F.3d 93, 175 (2d Cir. 2009) (Walker, J., dissenting) (“Congress has been unmistakably clear that, as a general matter, the achievement of actual harm may aggravate the seriousness of a terrorism crime but that the absence of proven harm does not mitigate such a crime.). The nature and seriousness of the defendant’s attempt to support a terrorist conspiracy to commit murder in a foreign country weighs strongly in favor of a sentence at the statutory maximum of fifteen years in this case, but do not, given the defendant’s acceptance of responsibility, demand a sentence of life imprisonment. See 18 U.S.C. § 3553(a)(1) and (a)(2)(A).
D. A Sentence at the Statutory Maximum Would Reflect the Seriousness of the Offenses, Promote Respect for the Law, and Provide Just Punishment
There are few more serious offenses in the federal criminal code than attempting to support a crime of terrorism. A sentence at the statutory maximum of fifteen years would reflect the seriousness of the offense, promote respect for the law and provide just punishment for the defendant’s criminal conduct, pursuant to 18 U.S.C. § 3553(a)(2)(A).
E. The Deterrence Factor Weighs Heavily in Favor of a Sentence at the Statutory Maximum
Deterrence is a key factor in the Court’s assessment of the appropriateness of the defendant’s sentence. A sentence of fifteen years in this case would appropriately send a message to the community at large that the United States does not tolerate such abhorrent criminal conduct. Given the compelling need to deter the continued threat that home-grown terrorists like the defendant pose to the United States and our allies abroad, a sentence at the statutory maximum would send a clear message to any would-be jihadists that such conduct carries substantial consequences.
F. Protecting the Public Requires a Sentence at the Statutory Maximum
The evidence adduced during the investigation clearly reflects the risk posed by the defendant. From the start of his criminal venture, the defendant consistently pressed onward to
10

Case 1:11-cr-00623-JG Document 39 Filed 11/21/12 Page 11 of 11 PageID #: 275

his goal of supporting and even personally joining a terrorist group. Because the defendant is a serious potential danger to the community, only extraordinary incapacitation will protect the public from his return to violent jihad.

VI. Conclusion

For the reasons set forth above, the government respectfully requests that the Court accept the defendant’s plea and impose a sentence of fifteen years’ imprisonment.

Respectfully submitted,

LORETTA E. LYNCH United States Attorney

By:

/s/

Seth D. DuCharme

Matthew Amatruda

Assistant United States Attorneys

(718) 254-6021/7012

cc: Steve Zissou, Esq. Michael Bachrach, Esq. Frank Marcigliano, U.S. Probation Department

11

 
 A02458

Case 1:11-cr-00623-JG Document 45 Filed 01/16/13 Page 1 of 5 PageID #: 320
(Rev. 10/2011 EDNY) Judgment in a Crimina] Case Sheet I

UNITED STATES DISTRICT COURT

_ __,E"'A,..S,_,Tw,E"'RN"-'--- District of~~N'-""'E-"W'-Y-'...l<O'!'RK>fu._!,B~R~O~O,LKL~..!YN.!:!..._ _

UNITED STATES OF AMERICA
v.
AGRON HASBAJRAMI
THE DEFENDANT:

) )

JUDGMENT IN A CRIMINAL CASE

)

)

)

Case Number:

11-CR-623-(S-1)-01 (JG)

)

USM Number:

65794-053

)

Steve Zissou, Esq. (718) 279-4500

) 42-40 Bell Blvd., Suite 302, Bayside, NY 11361

Defendant's Attorney

t l pleaded guilty to count(s) Two of a four-count superseding indLctment on 4112/2012.
------~
D pleaded nolo contendere to count(s) - - · · - - - · - · - - · - - - - - - - - - - - - - - - which was accepted by the court.

D was found guilty on count(s) after a plea of not guilty.

The defendant is adjudicated guilty ofthese offenses:

Title & Section

Nature of Offense

Offense Ended

18 U.S.C. §§ 2339A(a) Attempt to provide material support to terrorists.

9/6/2011

TWO

The defendant is sentenced as provided in pages 2 through the Sentencing Refonn Act of 1984.

----~ ·--· of this judgment. The sentence is imposed pursuant to

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

tiCount(s) ---(~ All~ O~ pen~ C~ oun~ ts~ ) -- D is tl are dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change ofname, residence, or mailingaddress until all fmes, restitution, costs, and special assessments imposed by this judgment are fully paid. Ifordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.

Janull!Y_~ 2013---------~-··---·-·· __________________
Date of Imposition of Judwtlent
s/John Gleeson
T-r-- U

JOWLEESO , U.S.D.J.
Name and Title of Judg
I
Date

AO 2458

Case 1:11-cr-00623-JG Document 45
(Rev. 09/11) Judgment in Criminal Case Sheet 2 - Imprisonment

DEFENDANT: CASE NUMBER:

AGRON HASBAJRAMI 11-CR-623-(S-1)-01 (JG)

Filed 01/16/13

Page 2 of 5 PageID #: 321
Judgment- Page - " 2 _ of

--~L-

IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total tenn of:
One-hundred and eighty (180) months of incarceration.

t/ The court makes the following recommendations to the Bureau of Prisons:
Incarceration at an FCI as close to the Northeast region as possible.

0 The defendant is remanded to the custody of the United States Marshal.

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

0 at

0 p.m. on

0 as notified by the United States Marshal.

0 The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: 0 before 12 p.m. on
0 as notified by the United States Marshal.
0 as notified by the Probation or Pretrial Services Office.

I have executed this judgment as follows:

RETURN

Defendant delivered on a _ _ _ _ __

to with a certified copy ofthis judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL

Case 1:11-cr-00623-JG Document 45 Filed 01/16/13 Page 3 of 5 PageID #: 322

AO 2458 (Rev. 09/11) Judgment in a Criminal Case Sheet 3 - Supervised Release

DEFENDANT: CASE NUMBER:

AGRON HASBAJRAMI 11-CR-623-(S-1)-01 (JG)
SUPERVISED RELEASE

Judgment-Page 3 of

5

Upon release from imprisonment, the defendant shall be on supervised release for a term of:
No term of supervised release is imposed.

The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from an)' unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment ani:! at least two periodic drug tests thereafter, as determined by the court.
D 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, ifapplicable.) The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, ifapplicable.)
D The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check. ifapplicable.)

D

The defendant shall comply with the requirements ofthe Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as directed by the probatiOn officer, the Bureau of Prisons, or any state sex offender registration agency in which he or she resides,

works, is a student, or was convicted of a qualifying offense. (Check, ifapplicable.)

D The defendant shall participate in an approved program for domestic violence. (Check. ifapplicable.)
If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
STANDARD CONDITIONS OF SUPERVISION
I) the defendant shall not leave the judicial district without the permission of the court or probation officer; 2) the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer; 3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other
acceptable reasons; 6) the defendant shall notifY the probation officer at least ten days prior to any change in residence or employment;
or if such prior notification is not possible, then within forty eight hours after such change; 7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any
controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered; 9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a
felony, unless granted permission to do so by the probation officer; 10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any
contraband observei:l in plain view of the probation officer; II) the defendant shall notifY the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; 12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the
permission ofthe court; and

13) as directed by the probation officer, the defendant shall notifY third parties of risks that may be occasioned by the defendant's criminal record or ,l?ersonal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant s compliance with such notification requirement.

AO 245B (Rev. 0C9/a11s)eJud1g:m1en1t-incra-C0ri0m6in2al3C-aJseG Document 45 Filed 01/16/13 Page 4 of 5 PageID #: 323
Sheet S -Criminal Monetary Penalties

DEFENDANT: CASE NUMBER:

AGRON HASBAJRAMI

Judgment- Page 4

of

5

11-CR-623-(S-1)-01 (JG)

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment

TOTALS

$ 100.00

$

Restitution $

D The determination ofrestitution is deferred until after such determination.

An Amended Judgment in a Criminal Case (AO 245C) will be entered

D The defendant must 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 proportionedpayment, unless specified otherwise in the priori!)' order or percentage payment column below. However, pursuant to 18 U.S.C.§ 3664(1), all nonfederal victims must be paid before the United States is paid.

Name of Payee

Total Loss*

Restitution Ordered

Priority or Percentage

TOTALS

$------

$

D Restitution amount ordered pursuant to plea agreement $
D The defendant must pay interest on restitution and a fme of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date ofthe judgment, pursuant to 18 U.S.C. § 3612(1). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
D The court determined that the defendant does not have the ability to pay interest and it is ordered that: 0 the interest requirement is waived for the D fine D restitution. D the interest requirement for the D fine D restitution is modified as follows:

• Findings for the total amount oflosses are required under Chapters 109A, 110, !lOA, and 113A ofTitle 18 for offenses committed on or after September 13, 1994, but before April23, 1996.

Case 1:11-cr-00623-JG Document 45 Filed 01/16/13 Page 5 of 5 PageID #: 324
AO 245B (Rev. 09/11) Judgment in a Criminal Case Sheet 6 - Schedule of Payments

DEFENDANT:

AGRON HASBAJRAMI

Judgment- Page .__5_ of

5

CASE NUMBER: 11-CR-623-(S-1)-01 (JG)

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:

A V' Lump sum payment of$

$100.00 due immediately, balance due

D not later than D in accordance

, or 0 C, 0 D, 0 E,or 0 Fbelow;or

B D Payment to begin immediately (may be combined with oc,

D D, or D F below); or

C D Payment in equal ____

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years}, to commence

(e.g., 30 or 60 days) after the date of this judgment; or

D D Payment in equal

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after release from imprisonment to a

term of supervision; or

E D Payment during the term of supervised release will commence within

(e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or

F D Special instructions regarding the payment of criminal monetary penalties:

Unless the court has expressly ordered otherwise, ifthis judgment imposes imprisonment, payment ofcriminal mone~ penalties is due during imprisonment. All cnminal monetary penalties, except those payments made through the Federal Bureau of Prtsons' Inmate Financial Responsibility Program, are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
D Joint and Several
Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount, and corresponding payee, if appropriate.
D The defendant shall pay the cost of prosecution. D The defendant shall pay the following court cost(s): D The defendant shall forfeit the defendant's interest in the following property to the United States:
Pa)'l!lents shall be applied in the following order: (I) assessment, (2) restitution principal, (3) restitution interest, (4) fme principal, (5) fme interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

AGRON HASBAJRAMI, - versus -

Petitioner,

UNITED STATES OF AMERICA, Respondent.

UNITED STATES OF AMERICA

- versus AGRON HASBAJRAMI,

Defendant.

ONLINE PUBLICATION ONLY 13-CV-6852
ORDER 11-CR-623

JOHN GLEESON, United States District Judge: On April 12, 2012, Agron Hasbajrami pled guilty in his criminal case, No.
11-cr-623, to a single count of providing material support to terrorists. See DE 32. In January of 2013, I imposed a 15-year sentence, the statutory maximum. See DE 45. After sentence was imposed, I dismissed three other counts on the government’s motion. See DE 44.
In July of 2013, it appears that Hasbajrami first attempted to file a pro se collateral attack under 28 U.S.C. § 2255. For reasons that are not clear, the paper filing never reached this Court; after some back and forth, Hasbajrami’s § 2255 proceeding was instituted in December of 2013. Hasbajrami’s pro se filing argued only that the statute under which he was convicted is unconstitutionally vague. Before that claim could be fully briefed and argued, however, the government disclosed new information that has changed the landscape of this case.

On September 13, 2011 – before Hasbajrami pled guilty – the government notified Hasbajrami that its evidence included “information obtained or derived from electronic surveillance and physical searches conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (‘FISA’), as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829.” DE 9 (“Initial Notice”). Key to the issue before me now is the government’s subsequent supplemental disclosure, via a February 24, 2014 letter, of additional information about the evidence it would have used in Hasbajrami’s case had it proceeded to trial. See Supplemental Notice, DE 65 in No. 11-cr-623. The Supplemental Notice revealed for the first time that the government’s evidence included “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.”
Authority under § 1881a, also known as “Title VII” or “Section 702,” was conferred on the government by the FISA Amendments Act of 2008 (“FAA”). In broad terms, those amendments permit the government to gather an array of information from electronic communications made by people located outside the United States who are neither citizens nor legal permanent residents of the United States. See 50 U.S.C. §§ 1881a (grant of authority), 1801(i) (definition of “United States person”). In public debate, FAA intelligence has been described as “warrantless wiretap” information, since, in contrast to traditional FISA authority, the FAA does not require an individual court authorization (that is, a warrant) for each data collection. See, e.g., Charlie Savage, “Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence,” N.Y. Times, October 26, 2013.
Following the Supplemental Notice (and before taking any action on Hasbajrami’s pro se § 2255 petition), I reappointed counsel for Hasbajrami. See Unnumbered Order, March 13, 2014, in No. 13-cv-6852. Hasbajrami’s attorneys sought additional
2

information from the government about the FAA wiretaps, but the parties could not mutually agree on whether any specific material should be turned over. After failing to obtain any material on consent, Hasbajrami moved to compel. I held argument on the motion on September 12, 2014, and denied Hasbajrami’s motion on the record.
In discussing Hasbajrami’s discovery motion, however, it became clear that his 2012 guilty plea presents a significant barrier to many of the arguments he might present to challenge his conviction. Therefore I directed Hasbajrami to file a letter informing the Court whether (as suggested by his counsel at argument) he wishes to withdraw his guilty plea in light of the Supplemental Notice and any other developments in the case. By letter from counsel dated September 20, 2014, Hasbajrami confirmed that, contrary to his attorneys’ advice, he wishes to withdraw his plea. See DE 84 in No. 11-cr-623.
Hasbajrami’s guilty plea presents a serious obstacle to his ability to collaterally attack his conviction:
A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. United States v. Broce, 488 U.S. 563, 569 (1989). In Broce and other cases, the Supreme Court has made clear that a guilty plea generally extinguishes claims of any “antecedent constitutional violations.” Tollett v. Henderson, 411 U.S. 258, 266 (1973). There are two well-recognized exceptions to the general waiver principle. First, as outlined in the excerpt from Broce, the defendant may argue that the plea was not voluntary (for example, obtained by threat) or that the defendant did not know the consequences of
3

pleading guilty (for example, the defendant was misled about the possible punishments he would

face). But the bar is high: “[T]he law ordinarily considers a waiver knowing, intelligent, and

sufficiently aware if the defendant fully understands the nature of the right and how it would

likely apply in general in the circumstances – even though the defendant may not know the

specific detailed consequences of invoking it.” United States v. Ruiz, 536 U.S. 622, 628-30

(2002) (emphasis in original). Thus, courts will usually hold enforceable a criminal defendant’s waiver of his right to additional disclosures by the government,1 as long as the defendant

understands prior to his waiver the sorts of material he would generally be entitled to if the case

went to trial. See Ruiz, 536 U.S. at 629-33 (government was not required to turn over potential

impeachment material to defendant prior to guilty plea).

Second, in rare cases, a conviction may be collaterally attacked notwithstanding a

guilty plea where “on the face of the record the court had no power to enter the conviction or

impose the sentence.” Broce, 488 U.S. at 569. The most notable recent examples include

criminal defendants who pled guilty to a violation of 18 U.S.C. § 924(c) based on a reading of

the law later held to be erroneous in Bailey v. United States, 516 U.S. 137, 144 (1995). Later,

some petitioners whose offense conduct appeared not to violate the statute (as construed by

Bailey) were permitted to withdraw their pleas on the theory that they simply had not committed

a criminal act. See generally Bousley v. United States, 523 U.S. 614 (1998). Perhaps

Hasbajrami’s pro se argument (that the statute under which he was convicted is

unconstitutionally vague) could be thought to fall into this category, but here too he would face

great difficulty. Cf. United States v. Yousef, 750 F.3d 254, 260 (2d Cir. 2014) (holding that the

defendant’s plea agreement waived a challenge to extraterritorial application of the material

support statute).

1

Hasbajrami waived additional disclosures in this case. See Final Plea Agreement ¶ 4.

4

The parties also appear to agree on a third exception: “in extraordinary circumstances where the defendant has been induced to plead guilty by egregious misrepresentations or other serious misconduct, a court may find that the defendant was deprived of his ability to plead guilty voluntarily.” Govt. Br. 21-22, DE 25 in No. 13-cv-6852 (citing Bousley). This theory derives from a reading of the Supreme Court’s opinion in Brady v. United States, 397 U.S. 742 (1970), where the Court wrote that a knowing and voluntary guilty plea “must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).” Id. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir. 1957) (en banc), rev’d on confession of error on other grounds, 356 U.S. 26 (1958)). Recent applications of this exception include United States v. Fisher, 711 F.3d 460, 465-66 (4th Cir. 2013) and Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006). Both Fisher and Ferrara involved egregious governmental conduct: in Fisher, a DEA agent lied about the source of information used to obtain a warrant as part of a larger pattern of self-enriching criminal activity, see 711 F.3d at 463; and in Ferrara, members of the prosecution knowingly withheld and then manipulated evidence that the defendant had not ordered a murder he pled guilty to committing, see 456 F.3d at 281-86. In independently researching this question, I have not found any Second Circuit decisions citing either Fisher or Ferrara with approval, nor any other recent Second Circuit case with such an expansive interpretation of the relevant language from Brady v. United States. Indeed, I am not convinced that Ferrara, and especially Fisher, were correctly decided, or that the government is correct to concede that Brady v. United States should be read so broadly. But I defer to the able prosecutors arguing the government’s case and decide the
5

motion on the terms on which it has been presented – which does not require me to address the
legal merits of the third exception.
Rather, I will permit Hasbajrami to withdraw his plea of guilty because I conclude
that he was not sufficiently informed about the facts. Under the precise circumstances presented
here, and because of a DOJ policy that transcended this case, Hasbajrami could not have made an
intelligent decision about whether to plead guilty: When the government provided FISA notice
without FAA notice, Hasbajrami was misled about an important aspect of his case.
The government’s Initial Notice informed Hasbajrami that the prosecution’s
evidence included material obtained through FISA-authorized wiretaps. This notice was made
pursuant to FISA’s notice provision, which states in full as follows:
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). Notably, it is not clear from this section exactly when the government must
provide notice (though it must be “prior to” the proceeding or the use of the information). That
uncertainty matters a great deal in our current federal criminal environment, since the vast
majority of defendants plead guilty, and § 1806(c) does not clearly state whether the government
must provide FISA notice before a guilty plea. But under the facts presented here, I need not
decide when the government’s legal obligation to provide notice (whether under § 1806(c) itself,
or some other legal authority, such as due process) attaches – whether, for example, the
6

government must as a matter of law always provide FISA notice before a defendant pleads guilty. That is because, whatever the legal requirement, the government actually provided the FISA notice in this case before Hasbajrami pled guilty. And the FAA expressly incorporates the exact same FISA notice requirement: it states that “[i]nformation 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 for purposes of section 1806 of this title . . . .” 50 U.S.C. § 1881e(a).
Since FISA and the FAA are governed by precisely the same notice requirement, the government’s provision of FISA notice without FAA notice gave the overwhelming – and false – impression that no FAA-obtained information figured in the government’s case.
The issue now is whether that misimpression forms a sufficient basis for Hasbajrami to withdraw his plea. Though it is a close question (as the government itself described it at oral argument), I conclude that Hasbajrami should be permitted to withdraw his plea.
First, at oral argument, Hasbajrami’s counsel represented that, prior to his decision to plead guilty, Hasbajrami had specifically asked them about whether warrantless wiretaps had played a role in his case. After they informed him that such wiretaps were not part of the evidence, he was more willing to plead guilty. Thus, Hasbajrami seems to have been misled about a fact he considered important in deciding how to plead.
Second, his interest is not simply idiosyncratic. Warrantless wiretapping has been controversial, and due in part to the since-revised nondisclosure policy that operated in this very case, there have been few rulings on the practice’s legality. I emphasize that I express no view whatsoever on the legal merits of a constitutional challenge to the FISA amendments. But at a
7

minimum, it is the kind of argument that a criminal defense attorney would want to make in this sort of case.
The government’s misleading pre-plea notice in this case prevented Hasbajrami from knowing about the availability of this legal argument. Hasbajrami could hardly have been expected to file a motion attacking the FAA without having any factual basis to support a claim that warrantless wiretapping had played a role in his case. Indeed, the compelling inference from the notice he received was that surveillance pursuant to the FISA Amendments had not occurred.
This highlights a critical point: Hasbajrami could not have challenged the FAA without government notice; the argument’s availability depended on facts exclusively under the government’s control. In the course of pretrial proceedings, the government is not required to advise defendants about potential legal challenges they might make – the prosecutor need not ask a defendant prior to plea if he has considered whether the criminal statute under which he is charged exceeds Congress’s authority under the Commerce Clause, for example. But here, the legal argument Hasbajrami might have made was predicated on a fact that he could not have known without government disclosure.
Third, even if Hasbajrami cannot make a facial challenge to the FAA, it is also possible that the revelation of the role FAA material played in the government’s investigation will lead to new fact-specific challenges to the evidence that the government would have used in this case. Hasbajrami might seek to suppress the FISA-obtained evidence not because the FAA is unconstitutional in general, but because of some other infirmity in its application to this particular case. I am in no position to articulate, let alone prejudge the merits of, such a challenge. But this is another reason why the belated Supplemental Notice should result in an order permitting Hasbajrami to withdraw his plea.
8

For these reasons, Hasbajrami’s § 2255 petition, as modified by his request for a vacatur of his sentence and guilty plea, is granted,2 and No. 13-cv-6852 is closed.3 The criminal case, No. 11-cr-623, is reopened, and a status conference will be held on Wednesday, October 15, 2014 to discuss the next steps in that case.

Dated: October 2, 2014 Brooklyn, New York

So ordered. John Gleeson, U.S.D.J.

2

As should be clear, I do not rule on the merits of Hasbajrami’s pro se challenge to the

constitutionality of the material support statute; that argument is mooted by the successful withdrawal of his guilty

plea.
3

I ordered the parties to file their papers in both the criminal case and the collateral attack, but it is

clear that at this stage, Hasbajrami may not withdraw his plea based on a motion within the criminal case. See Fed.

R. Crim. P 11(e) (“After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo

contendere, and the plea may be set aside only on direct appeal or collateral attack.”).

9

 
 Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 1 of 131 PageID #: 617

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------X
UNITED STATES OF AMERICA,
- against -
AGRON HASBAJRAMI,
Defendant.
---------------------------------------------------X

11 Cr. 623 (JG)

DEFENDANT AGRON HASBAJRAMI’S PRETRIAL OMNIBUS MOTIONS AND INCORPORATED
MEMORANDUM OF LAW IN SUPPORT THEREOF

STEVE ZISSOU, ESQ. 42-40 Bell Blvd., Suite 302 Bayside, New York 11361 (718) 279-4500

MICHAEL K. BACHRACH, ESQ. 276 Fifth Avenue, Suite 501 New York, New York 10001 (212) 929-0592

Attorneys for Defendant Agron Hasbajrami

Also on the brief: Joshua L. Dratel, Esq.

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 2 of 131 PageID #: 618
Table of Contents
Table of Authorities ..................................................................................................vi
Defendant Agron Hasbajrami’s Pretrial Omnibus Motions ......................................1
I. Preliminary Statement .....................................................................................1
II. Background......................................................................................................3
III. Suppression Motions .......................................................................................5
First Motion
MOTION TO SUPPRESS THE FRUITS OF FAA SURVEILLANCE DUE TO THE PER SE UNCONSTITUTIONALITY OF THE STATUTE AND ITS APPLICATION HEREIN............................................5
A. Introduction ...........................................................................................5
B. Background of Warrantless FAA Surveillance.....................................9
C. The provisions of the FAA authorizing warrantless surveillance and interception (i.e., Section 702) are unconstitutional per se and as applied herein and as such require suppression of all evidence that was derived as a result ..................................................13
1. The FAA is unconstitutional per se and as applied herein because it authorizes surveillance and interception without a warrant....................................................................................19
2. The FAA is unconstitutional per se and as applied herein because it permits surveillance and interception without probable cause...........................................................................22
3. The FAA is unconstitutional per se and as applied herein because it permits generalized and programmatic acquisition, retention, and accessing of electronic communications of U.S. persons without requiring
i

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 3 of 131 PageID #: 619
particularity regarding the places to be searched and the items to be seized ......................................................................24
4. The FAA is also per se unconstitutional because it includes the participation of the Foreign Intelligence Surveillance Court in the construction of its surveillance programs, thereby blurring the role of the neutral and detached magistrate...................................................................28
D. Conclusion...........................................................................................30
Second Motion
MOTION TO SUPPRESS THE FRUITS OF FAA SURVEILLANCE IRRESPECTIVE OF THE CONSTITUTIONALITY OF THE STATUTE......................................................................................................31
A. Introduction...............................................................................31
B. The requirements and limitations set forth in 50 U.S.C. § 1881a of the FAA......................................................................34
1. Background of the § 1881a program ..............................34
2. The FAA’s specific requirements and limitations..........36
C. The implications of non-disclosure of the underlying FAA applications, affidavits, certifications and orders regarding the electronic surveillance of Hasbajrami.................................41
1. The vertical playing field created by ex parte FISA and FAA proceedings .....................................................41
2. Criticism of the FISC’s ability to perform its necessary oversight function ..........................................43
D. The history of non-compliance with both FAA and FISA restrictions .................................................................................47
E. Conclusion ................................................................................61
ii

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 4 of 131 PageID #: 620
Third Motion
MOTION TO SUPPRESS BASED UPON OUTRAGEOUS GOVERNMENT CONDUCT.......................................................................61
Fourth Motion
MOTION TO SUPPRESS THE DEFENDANT’S POST-ARREST STATEMENTS .............................................................................................65
IV. Discovery Motions.........................................................................................66
Fifth Motion
MOTION FOR DISCOVERY OF MATERIAL AND INFORMATION NECESSARY TO DETERMINE WHETHER THE GOVERNMENT’S SPECIFIC CONDUCT IN THIS CASE VIOLATED THE STATUTORY REQUIREMENTS OF FISA, THE FAA, AND/OR ANY OTHER SURVEILLANCE STATUTE OR PROGRAM RELIED UPON DURING THE INVESTIGATION OF THIS CASE, AS WELL AS TO DETERMINE WHETHER THE GOVERNMENT’S SPECIFIC CONDUCT VIOLATED HASBAJRAMI’S RIGHT TO DUE PROCESS UNDER THE FIFTH AMENDMENT .............................................................................................66
A. Introduction .........................................................................................66
B. Disclosure will level the uneven vertical playing field created by ex parte FISA and FAA Proceedings ..................................................69
C. The details of the FAA electronic surveillance should be produced because motions based on the FAA’s unconstitutionality and application against Hasbajrami require full factual development......................................................................76
D. The complexity and the need for accurate factual determinations strongly support full defense access to surveillance material and advocacy regarding its significance ....................................................80
iii

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 5 of 131 PageID #: 621
E. The balance of the factors this court considers in determining defense participation requires full defense access and advocacy .......84
1. The need for secrecy has been reduced by the Edward Snowden disclosures .................................................................84
2. The benefits of adversarial proceedings are recognized by the President’s Review Group ..................................................85
3. The complexity of the legal issues warrants defense participation ..............................................................................87
4. Congress anticipated that evidence of misrepresentation and other over-reaching would favor disclosure and defense participation .................................................................91
F. This Court should grant discovery because litigation regarding the lawfulness of Government surveillance accomplishes important societal purposes of transparency and deterrence ..............95
G. This Court should also require the Government to provide the defense with notice of any other surveillance statutes and/or programs that it used and/or relied upon during the investigation of this case to which Hasbajrami was aggrieved ................................96
H. Conclusion...........................................................................................98
Sixth Motion
MOTION FOR AN ORDER DIRECTING THE GOVERNMENT TO IDENTIFY ANY AND ALL WITNESSES THAT IT LEARNED OF DURING, OR AS A RESULT OF, THE INTERROGATION OF THE DEFENDANT ...............................................................................................99
Seventh Motion
MOTION FOR AN ORDER DIRECTING THE GOVERNMENT TO SPECIFY ALL EVIDENCE THAT IS SUBJECT TO SUPPRESSION AND/OR PRECLUSION AS A RESULT OF THE INTERROGATION OF THE DEFENDANT.............................................100
iv

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Eighth Motion MOTION FOR AN ORDER DIRECTING THE GOVERNMENT TO PROVIDE IMMEDIATE NOTICE OF EXPERT WITNESSES IT INTENDS TO RELY UPON AT TRIAL ...................................................100 Ninth Motion MOTION FOR IMMEDIATE PRODUCTION OF BRADY/GIGLIO MATERIAL.................................................................................................101 Tenth Motion MOTION FOR EARLY DISCLOSURE OF 3500 MATERIAL ...............110 Eleventh Motion MOTION FOR NOTICE OF EVIDENCE THE GOVERNMENT INTENDS TO OFFER UNDER FED.R.EVID. 404(b)..............................111 V. Other Motions..............................................................................................111 Twelfth Motion MOTION FOR LEAVE TO SUBMIT FURTHER MOTIONS .................111 Conclusion .............................................................................................................113
v

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 7 of 131 PageID #: 623
Table of Authorities
CASES
ACLU Foundation of S.Cal. v. Barr, 952 F.2d 457 (D.C.Cir. 1991)........................................................................81
ACLU v. Clapper, Docket No. 13 Civ. 3994, 2013 WL 6819708 (SDNY Dec. 27, 2013)...................................................89
Alderman v. United States, 394 U.S. 65 (1969).................................................................42, 70, 72, 74, 83
In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F.Supp.2d 611 (FISC).......................................................................56, 57
American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (9th Cir. 1995) .........................................................................71
In re Application of the FBI for an Order Requiring the Production of Tangible Things from [redacted], Docket No. B.R. 09-06 (FISC June 22, 2009)...............................................51
In re Application of the FBI for an Order Requiring the Production of Tangible Things from [redacted], Docket No. B.R. 09-13, 2009 WL 9150896 (FISC Sept. 25, 2009) .............52
Arizona v. Gant, 556 U.S. 332 (2009).................................................................................16, 19
Arizona v. Hicks, 480 U.S. 321 (1987).......................................................................................22
Berger v. New York, 388 U.S. 41 (1967).......................................................................14, 15, 17, 26
Brady v. Maryland, 373 U.S. 83 (1963)................................................................................. passim
vi

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 8 of 131 PageID #: 624
Camreta v. Greene, 131 S.Ct. 2020 (2011)....................................................................................44
Carlo v. United States, 286 F.2d 841 (2d Cir. 1961) ..........................................................................23
Chafin v. Chafin, 133 S.Ct. 1017 (2013)....................................................................................29
City of Ontario v. Quon, 130 S.Ct. 2619 (2010)....................................................................................18
Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013)........................................................................82, 87, 88
Coolidge v. New Hampshire, 403 U.S. 443 (1971).....................................................................16, 19, 25, 29
Dalia v. United States, 441 U.S. 238 (1979).......................................................................................21
Franks v. Delaware, 438 U.S. 154 (1978)...............................................................42, 70, 73, 74, 89
Gates v. Illinois, 462 U.S. 213 (1983).......................................................................................22
Georgia v. Randolph, 547 U.S. 103 (2006).......................................................................................16
In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847 (9th Cir. 1991) .........................................................................20
Grant v. Alldredge, 498 F.2d 376 (2d Cir. 1974) ........................................................................105
Groh v. Ramirez, 540 U.S. 551 (2004).......................................................................................13
vii

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 9 of 131 PageID #: 625
Hampton v. United States, 425 U.S. 484 (1976).......................................................................................62
Humanitarian Law Project v. Holder, 130 S.Ct. 2705 (2010)....................................................................................59
Johnson v. United States, 333 U.S. 10 (1948).........................................................................................28
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951).......................................................................................71
Jones v. United States, 357 U.S. 493 (1958).......................................................................................16
Jones v. United States, 526 U.S. 227 (1999).......................................................................................32
Katz v. United States, 389 U.S. 347 (1967).................................................................................13, 16
Kiareldeen v. Reno, 71 F.Supp.2d 402 (D.N.J. 1999)........................................................71, 72, 73
Klayman v. Obama, Docket No. 13-0851, 2013 WL 6571596 (D.D.C. Dec. 16, 2013) ..................................................89
Kyles v. Whitley, 514 U.S. 419 (1995).............................................................................102, 105
Kyllo v. United States, 533 U.S. 27 (2001).........................................................................................24
Lewis v. Continental Bank Corp., 449 U.S. 472 (1990).......................................................................................29
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979).......................................................................................29
viii

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 10 of 131 PageID #: 626
Los Angeles v. Lyons, 461 U.S. 95 (1983).........................................................................................44
Marron v. United States, 275 U.S. 192 (1927).......................................................................................25
Maryland v. Garrison, 480 U.S. 79 (1987).........................................................................................25
McDonald v. United States, 335 U.S. 451 (1948).......................................................................................28
Miranda v. Arizona, 384 U.S. 436 (1966).......................................................................................65
Murray v. United States, 487 U.S. 533 (1988)...................................................................................9, 65
Murray v. United States, 487 U.S. 533 (1988).................................................................................66, 89
Napue v. Illinois, 360 U.S. 264 (1959).....................................................................................103
Nardone v. United States, 308 U.S. 338 (1939).............................................................................9, 65, 90
In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008, Docket No. Misc. 08-01, 2008 WL 9487946 (FISC Aug. 27, 2008).....................................................40
In re Production of Tangible Things from [redacted], Docket No. B.R. 08-13, 2009 WL. 9150913 (FISC Mar. 2, 2009) ...................................51, 52, 53, 54,
55 Riley v. California, 134 S.Ct. 2473 (2014)..............................................................................25, 26
Roviaro v. United States, 353 U.S. 53 (1957).........................................................................................83
ix

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 11 of 131 PageID #: 627
Schubert v. Obama, 07 Civ. 693 (JSW) (N.D.Cal.) .......................................................................34
Silverthorne v. United States, 251 U.S. 385 (1920).................................................................................65, 90
Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989).......................................................................................18
In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Docket No. B.R. 09-09 ..................................................................................55
Steagald v United States, 451 U.S. 204 (1981).......................................................................................28
Strickler v. Greene, 527 U.S. 263 (1999).....................................................................................105
Swate v. Taylor, 12 F.Supp.2d 591 (S.D. Tex. 1998)...............................................................20
Triestman v. United States, 124 F.3d 361 (2d Cir. 1997) ..........................................................................32
United States ex rel. Attorney General, v. Delaware & Hudson Co., 213 U.S. 366 (1909).......................................................................................32
United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010) ..............................................................83, 84, 90
United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004) ..........................................................................71
United States v. Al-Arian, 329 F.Supp.2d 1294 (M.D. Fla. 2004) ..........................................................32
United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011) ..........................................................................62
x

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 12 of 131 PageID #: 628
United States v. Alderman, 394 U.S. 165 (1969).......................................................................................16
United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir. 1978) ........................................................................71
United States v. Bagley, 473 U.S. 667 (1985).............................................................................104, 109
United States v. Baum, 482 F.2d 1325 (2d Cir. 1973) ......................................................................105
United States v. Beckford, 962 F.Supp. 748 (E.D.Va. 1997) .................................................................110
United States v. Belfield, 692 F.2d 141 (D.C.Cir. 1982)............................................................76, 82, 93
United States v. Calandra, 414 U.S. 338 (1974).......................................................................................14
United States v. Coplon, 185 F.2d 629 (2d Cir. 1950) ..........................................................................71
United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) ........................................................105, 108, 109
United States v. Cromitie, 727 F.3d 194 (2d Cir. 2013) ..........................................................................62
United States v. Crozzoli, 698 F.Supp. 430 (EDNY 1988) ...........................................................107, 108
United States v. Daoud, Docket No. 12 Cr. 723, 2014 WL 321384 (N.D.Ill. January 29, 2014) ..............................................42
United States v. Deutsch, 373 F.Supp. 289 (SDNY 1983) ...................................................................108
xi

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 13 of 131 PageID #: 629
United States v. Duggan, 743 F.2d 59 (2d Cir. 1984) ......................................................................75, 76
United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) ...................................................................94, 95
United States v. Feliciano, 998 F.Supp. 166 (D.Conn. 1998).................................................................110
United States v. Figueroa, 757 F.2d 466 (2d Cir. 1985) ..........................................................................21
United States v. Galpin, 720 F.3d 436 (2d Cir. 2013) ....................................................................27, 28
United States v. George, 975 F.2d 72 (2d Cir. 1992) ............................................................................27
United States v. Giglio, 405 U.S. 150 (1972)........................................................... 102, 104, 105, 107,
108, 109
United States v. Goldman, 439 F.Supp. 337 (SDNY 1977) ...................................................................108
United States v. James Daniel Good Real Property, et. al., 510 U.S. 43 (1993).........................................................................................71
United States v. Katz, 389 U.S. 347 (1967).......................................................................................16
United States v. Khan, 309 F.Supp.2d 789 (E.D.Va. 2004) ...............................................................32
United States v. Leon, 468 U.S. 897 (1984).......................................................................................14
United States v. Madori, 419 F.3d 159 (2d Cir. 2005) ..........................................................................71
xii

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 14 of 131 PageID #: 630
United States v. Mahaffy, 693 F.3d 113 (2d Cir. 2012) ........................................................102, 109, 111
United States v. Marzook, 412 F.Supp.2d 913 (N.D.Ill. 2006)..........................................................42, 70
United States v. McVeigh, 923 F.Supp. 1310 (D.Colo. 1996) ...............................................................109
United States v. Mejia, 448 F.3d 436 (D.C.Cir. 2006)........................................................................84
United States v. Mohamed, 10 Cr. 475 (KI) (D.Oregon).............................................................................7
United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004) .........................................................................75
United States v. Nixon, 418 U.S. 683 (1974).......................................................................................87
United States v. Ott, 827 F.2d 473 (9th Cir. 1987) ...................................................................76, 82
United States v. Perez, 222 F.Supp.2d 164 (D.Conn. 2002) ............................................................110
United States v. Persico, 164 F.3d 796 (2d Cir. 1999) ................................................................109, 110
United States v. Peterson, 812 F.2d 486 (9th Cir. 1987) .........................................................................18
United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976).....................................................................108
United States v. Ramsey, 431 U.S. 606 (1977).......................................................................................18
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Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 15 of 131 PageID #: 631
United States v. Schmidt, 105 F.3d 82 (2d Cir. 1997) ............................................................................62
United States v. Seijo, 514 F.2d 1357 (2d Cir. 1975) ......................................................................103
United States v. Simels, Docket No. 08 Cr. 640 (JG), 2009 WL 1924746 (EDNY July 2, 2009) .....................................................63
United States v. Stewart, 590 F.3d 93 (2d Cir. 2009) ............................................................................83
United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) .........................................................................25
United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008) ........................................................................103
United States v. U.S. District Court for the E. District of Mich., 407 U.S. 297 (1972)........................................................ 10, 14, 15, 17, 18, 22
United States v. Valenzuela-Bernal, 458 U.S. 858 (1982).......................................................................................75
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).......................................................................................13
United States v. Vilar, 530 F.Supp.2d 616 (SDNY 2008) .................................................................20
United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) .........................................................................17
Walter v. United States, 447 U.S. 649 (1980).......................................................................................17
Wong Sun v. United States, 371 U.S. 471 (1963).................................................................................65, 90
xiv

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 16 of 131 PageID #: 632
[Case Name Redacted], [docket number redacted], 2011 WL 10945618 (FISC Oct. 3, 2011) .............................................. passim [Case Name Redacted], PR/TT No. [docket number redacted] (FISC [date redacted]) ...................................................................................51 STATUTES AND OTHER AUTHORITIES 18 U.S.C. App. 3..........................................................................................111 18 U.S.C. § 2....................................................................................................3 18 U.S.C. § 2339A.....................................................................................3. 32 18 U.S.C. § 2339B.........................................................................................32 18 U.S.C. § 2518..........................................................................................7, 8 18 U.S.C. § 3504......................................................................................67, 97 28 U.S.C. § 2255..........................................................................................112 50 U.S.C. §§ 1801-1812 ................................................................................66 50 U.S.C. § 1801...........................................................................5, 11, 23, 38,
39, 66, 78 50 U.S.C. § 1805......................................................................7, 8, 40, 41, 113 50 U.S.C. § 1806...........................................................................9, 66, 69, 80,
81, 82, 95, 109 50 U.S.C. § 1845............................................................................................99 50 U.S.C. § 1881a.................................................................................. passim 50 U.S.C. § 1881e..........................................................................................61 Fed.R.Crim.P. 12 ...................................................................................99, 100
xv

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 17 of 131 PageID #: 633
Fed.R.Crim.P. 16 .....................................................................67, 99, 100, 109 Fed.R.Crim.P. 16, Advisory Committee Note ............................................110 Fed.R.Crim.P. 32 .........................................................................................108 Fed.R.Crim.P. 33 .........................................................................................112 Fed.R.Evid. 404 .......................................................................................2, 112 Fed.R.Evid. 608 ...........................................................................................103 Fed.R.Evid. 609 ...........................................................................................103 Protect America Act of 2007 (P.L. 110-55) ..................................................35 S. Rep. No. 701, 95th Cong., 2d Sess. 64 (1979) ....................................76, 91 USAM § 9-5.001 .................................................................................105, 106 USAM § 9-5.100 .................................................................................105, 106 Edward C. Liu, Andrew Nolan, Richard M. Thompson II, Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments, Congressional Research Service (April 1, 2014) ............................................................................34, 35, 36, 37,
40, 47, 48 Kris & Wilson, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS (2d ed. 2012) .....................................................................9 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 (Jan. 23, 2014)..............................74 Public Hearing Regarding the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act Before The PCLOB (2014) ............................................................................74
xvi

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 18 of 131 PageID #: 634
Press Release, DNI Declassifies Intelligence Community Documents Regarding Collection Under Section 702 of the Foreign Intelligence Surveillance Act (FISA) (Aug. 21, 2013) ......................................................78
Works of John Adams (C. Adams ed. 1856).................................................26
Albanian man can withdraw terror plea over warrantless surveillance, The Guardian, Oct. 6. 2014 .........................................................................110
Glenn Greenwald & James Ball, The top secret rules that allow NSA to use US data without a warrant, The Guardian, June 20, 2013 .....................78
Andrew Keshner, Terrorism Suspect Allowed to Withdraw Guilty Plea, N.Y. Law Journal, Oct. 6, 2014...................................................................110
James Risen & Eric Lichtblau, “Bush Let U.S. Spy on Callers Without Courts,” N.Y. Times, December 16, 2005......................................................34
Charlie Savage, N.S.A. Said to Search Content of Messages to and From U.S., N.Y. Times, Aug. 8, 2013...........................................................12
Charlie Savage, N.S.A. Said to Search Content of Messages To and From U.S., N.Y. Times, Aug. 8, 2013...........................................................79
Charlie Savage & Mark Mazzetti, C.I.A. Collects Global Data on Transfers of Money, N.Y. Times, Nov. 13, 2013 ..........................................97
Charlie Savage, Justice Dept. Informs Inmate of Pre-Arrest Surveillance, N.Y. Times, Feb. 25, 2014 ....................................................109
Scott Shane, “Court Upbraided N.S.A. on Its Use of Call-Log Data,” N.Y. Times, September 10, 2013....................................................................54
Press Release, DNI Declassifies Intelligence Community Documents Regarding Collection Under Section 702 of the Foreign Intelligence Surveillance Act (FISA) (Aug. 21, 2013) ......................................................78
xvii

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 19 of 131 PageID #: 635
DEFENDANT AGRON HASBAJRAMI’S PRETRIAL OMNIBUS MOTIONS
I. Preliminary Statement On October 2, 2014, this Court concluded, inter alia, that Defendant Agron
Hasbajrami (hereinafter, “Hasbajrami”) could “withdraw his plea of guilty because [this Court] conclude[d] that he was not sufficiently informed about the facts,” namely, “a DOJ policy that transcended this case,” which deprived him of the ability to make “an intelligent decision about whether to plead guilty” (Order, dated, October 2, 2014 [ecf #85], at 6).
Such policy, of course, was the Government’s system-wide decision to omit reference to warrantless surveillance under the FISA Amendments Act (hereinafter, the “FAA”) when providing notice of with-warrant surveillance under the Foreign Intelligence Surveillance Act (hereinafter, “FISA”) (id. at 6).
While this Court’s order “express[ed] no view whatsoever on the merits of a constitutional challenge to the FISA amendments” (id. at 7), this Court recognized that various per se and as applied challenges could be raised (id. at 8) and permit Hasbajrami to withdraw his plea so that he could be returned to a position to do so.
As such, Hasbajrami, by and through his attorneys, hereby moves to suppress the fruits of warrantless FAA surveillance related to his case and for other relief as detailed in the following motions:
1

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 20 of 131 PageID #: 636
1. Motion to suppress the fruits of FAA surveillance due to the per se unconstitutionality of the statute and its application herein;
2. Motion to suppress the fruits of FAA surveillance irrespective of the constitutionality of the statute;
3. Motion to suppress the fruits of FAA surveillance due to outrageous government conduct;
4. Motion to suppress Hasbajrami’s post-arrest statements;
5. Motion for discovery of material and information necessary to determine whether the Government’s specific conduct in this case violated the statutory requirements of FISA, the FAA, and/or any other surveillance statute or program relied upon during the investigation of this case, as well as to determine whether the Government’s specific conduct violated Hasbajrami’s right to Due Process under the Fifth Amendment;
6. Motion for an order directing the Government to identify any and all witnesses that it learned of during, or as a result of, the interrogation of the defendant;
7. Motion for an order directing the Government to specify all evidence that is subject to suppression and/or preclusion as a result of the interrogation of the defendant;
8. Motion for an order directing the Government to provide immediate notice of expert witnesses it intends to rely upon at trial;
9. Motion for immediate production of Brady/Giglio material;
10. Motion for early disclosure of 3500 material;
11. Motion for notice of evidence the Government intends to offer under Fed.R.Evid. 404(b); and
12. Motion for leave to submit further motions.
2

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 21 of 131 PageID #: 637
II. Background
Agron Hasbajrami was arrested on September 6, 2011, and ultimately
charged with three counts of provision and attempted provision of material support
to terrorists, and one count of attempt to provide material support to terrorists, all in
violation of 18 U.S.C. §§ 2339A(a), 2. See Superseding Indictment, dated, January
26, 2012.
As described in Hasbajrami’s Revised Pre-Sentence Report, dated, February
6, 2013 (hereinafter, “PSR”):
An investigation by agents with the Federal Bureau of Investigation’s Joint Terrorism Task Force (“JTTF”) revealed that between April 2, 2011, and August 28, 2011, the defendant engaged in numerous email transactions with individual #1, utilizing different email accounts. Individual #1 (whose identity is known to the parties), is an individual the defendant believed was associated with a terrorism organization. During the course of their emails, the two arranged for the transfer of money from the defendant to individual #1, purportedly to support Islamic fundamentalist terrorism operations, and to arrange for the defendant’s travel to the Federally Administered Tribal Areas (“FATA’s”) of Pakistan to join a jihadist fighting group. More specifically, the emails discussed and contained instructions and detailed descriptions of the smuggling route that the defendant was to take into the FATA, as well as contact instructions as to how the defendant would make contact with individual #1 once he arrived in the FATA, and how money should be sent to individual #1 from the United States, via a courier in Germany….
Notwithstanding the emails discussed … above … there is information to suggest that Individual #1 was not in fact a
3

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terrorist, and that he solicited funds from the defendant for purposes unrelated to terrorism. Ultimately, the defendant was arrested by JTTF agents at John F. Kennedy International Airport in Jamaica, New York, on September 6, 2011, prior to boarding a flight bound for Istanbul, Turkey. A search of the defendant’s luggage subsequent to his arrest revealed a tent, boots and cold-weather gear. The case agent advised that in a postarrest statement, the defendant admitted to the entirety of the offense. (PSR at ¶¶ 2-3) (footnotes omitted). Upon information and belief, the Government’s case against Hasbajrami will be based primarily upon the communications initially derived as a result of warrantless FAA surveillance (e.g., the emails described above) as well as the defendant’s post-arrest statements. Although the Government will argue that the emails (and any other information not yet disclosed) were later obtained (or reobtained) pursuant to Title I or Title III surveillance under FISA, the Government will be unable to avoid the conclusion that its FISA warrants were the derivate fruit of warrantless FAA surveillance. As such, upon information and belief, all of the evidence against Hasbajrami will be shown to have been derived through warrantless surveillance, and it appears that none of it would have been inevitably discovered had the warrantless surveillance never occurred. What, if any, evidence survives the instant motions will then determine whether there exists sufficient admissible evidence to sustain
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the charges against Hasbajrami. III. Suppression Motions
First Motion MOTION TO SUPPRESS THE FRUITS OF FAA SURVEILLANCE DUE TO THE PER SE UNCONSTITUTIONALITY OF THE STATUTE AND ITS APPLICATION HEREIN A. Introduction On February 24, 2014, the Government provided notice that it intended – and presumably still intends – “to offer into evidence or otherwise use or disclose in proceedings 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 [i.e., the FAA]” (Gov’t letter [ecf #65] at 1). Moreover, as explained by the Government, the “evidence and information, obtained or derived from Title I or III FISA collection, that the government intend[s] to offer into evidence or otherwise use or disclose in proceedings in this case was derived from acquisition of foreign intelligence information conducted pursuant to the FAA.” Id. As a result, Hasbajrami is an “aggrieved person” within the plain meaning of FISA and the FAA. See 50 U.S.C. § 1801(k) (“ ‘Aggrieved person’ means a person who is the target of an electronic surveillance or any other person whose
5

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 24 of 131 PageID #: 640
communications or activities were subject to electronic surveillance.”).
50 U.S.C. § 1881a, which is also known as Section 702 of FISA, was enacted
in 2008 as part of the FISA Amendments Act (the FAA). Section 702, which is the
element of the FAA referred to herein when we refer to the FAA, is viewed by
many commentators, academics, and others, as an unprecedented degradation of the
privacy rights of Americans, both U.S. citizens and U.S. lawful permanent residents,
with none of the protections that the Fourth Amendment requires to limit
governmental intrusions on privacy.
The statute violates the Fourth Amendment and is therefore unconstitutional
because it:
 fails to provide judicial review of specific instances of searches and seizures of the personal communications of U.S. persons (i.e., U.S. citizens and U.S. lawful permanent residents, all of whom possess the same rights under the Fourth Amendment);
 fails to require probable cause, or any level of suspicion, before the Government can search, seize, retain, and later access those communications;
 fails to require specificity regarding the individual targeted by – or the facility to be accessed during – the electronic surveillance;
 limits the Foreign Intelligence Surveillance Court’s authority to insist upon, and eliminates its authority to supervise, instance-specific privacy-intrusion minimization procedures; and
 fails to provide any accountability regarding the Government’s surveillance of the electronic communications of U.S. persons while at the same time exceeding traditional constitutional and statutory
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boundaries.

The following chart, initially created earlier this year by the Federal

Defenders Office for its post-trial motions in United States v. Mohamed, 10 Cr. 475

(KI) (D.Oregon), demonstrates how the FAA differs from other electronic

surveillance statutes – traditional FISA and Title III wiretaps – in terms of what

information must be presented to a neutral and detached judicial officer in order to

obtain authorization to execute specific search and seizures:

Title III

Required level of Probable cause the

suspicion of an individual is

individual

committing, has

committed, or is

about to commit a

criminal offense.

See 18 U.S.C. §

2518(3)(a).

Traditional FISA
Probable cause the individual is a foreign power (including terrorist organizations) or an agent of a foreign power. See 50 U.S.C. § 1805(a)(2)(A).

Required level of Probable cause

Probable cause each

suspicion

communications targeted facility is being

regarding facility concerning an

used, or is about to be used,

to be monitored offense will be

by a foreign power

obtained through or an agent of a foreign

interception. See 18 power. See 50 U.S.C. §

U.S.C. § 2518(3)(b). 1805(a)(2)(B).

Particularity regarding individual to be monitored

Specify the identity, Specify the identity, if

if known, of the

known, or a description of

person committing the specific target of the

the offense or whose surveillance. See 50 U.S.C.

communications are § 1805(c)(1)(A).

to be intercepted.

See 18 U.S.C. §

2518(1)(b).

FAA None
None None

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Particularity regarding location to be monitored
Particularity regarding types of communications to be intercepted

Specify the nature Specify the nature and

and location of the location of each of the

communications facilities or places at which

facilities as to

the surveillance will be

which, or the place directed. See 50 U.S.C. §

where, interception 1805(c)(1)(B).

will occur. See 18

U.S.C. § 2518(1)(b).

Particular

Designate the type of

description of the foreign intelligence

type of

information being sought

communication

and the type of

sought to be

communications or

intercepted. See 18 activities to be subjected to

U.S.C. § 2518(1)(b). the surveillance. See

50 U.S.C. § 1805(c)(1)(C).

None None

As will be discussed in further detail below, because the FAA does not provide sufficient Fourth Amendment protections to the private communications of U.S. persons the statute is unconstitutional. Consequently, and for the reasons that follow, we respectfully submit that the fruits of all warrantless FAA surveillance must be suppressed in this case and thus precluded from being introduced against Hasbajrami at trial.
This includes, inter alia: the following categories of evidence and information:
 all evidence and information derived as a result of Title VII warrantless FAA surveillance;
 all evidence and information “obtained or derived from Title I and Title III FISA collection … [that was] itself also derived from other

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collection pursuant to Title VII” of the FAA (Gov’t letter [ecf #65] at 1);  Hasbajrami’s custodial statements;  and any other evidence and information that the Government could not have obtained in this case through an independent source, see Nardone v. United States, 308 U.S. 338, 341 (1939). As such, and for the reasons that follow, we respectfully submit that suppression is warranted under the Fourth Amendment as fruit of the poisonous tree. See Murray v. United States, 487 U.S. 533, 536-37 (1988); see also 50 U.S.C. § 1806(g) (“If the United States district court … 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….”). B. Background of Warrantless FAA Surveillance Congress enacted FISA in 1978 in response to outcries over unlawful warrantless intrusions on the privacy of American citizens conducted in the name of national security. See Kris & Wilson, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS, § 2:7 (2d ed. 2012). Congress found that the Government, in the name of national security, had “violated specific statutory prohibitions,” “infringed the constitutional rights of American citizens,” and “intentionally disregarded” legal limitations on surveillance, including pursuing “a ‘vacuum cleaner’ approach to intelligence collection” that sometimes intercepted
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the content of Americans’ communications under the pretext of targeting foreigners. Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Book II, S.Rep.No. 94-755, at 137, 165 (1976), available at <http://www.intelligence.senate.gov/pdfs94th/94755_II.pdf> (last accessed, November 24, 2014). While protecting the public was a central concern, the purpose of FISA was to rein in extra-legal activities by bringing Governmental surveillance within the rule of law.
In addition, the Supreme Court, in United States v. U.S. Dist. Court for the E. Dist. of Mich., 407 U.S. 297, 313 (1972) (hereinafter, “Keith”) ruled that domestic national security wiretapping was governed by the Fourth Amendment, and that as a result a warrant was required. The Court specifically left open the question of foreign intelligence information, and FISA represented an effort to codify the means for collecting foreign intelligence information within the United States.
In 2008, the FAA radically increased the Government’s ability to search and seize the private electronic communications of U.S. citizens and all those protected by the Fourth Amendment. While FISA itself represented an innovation with respect to the concepts of probable cause and electronic eavesdropping warrants removing the requirement of probable cause of criminal activity and dispensing with many of other substantive and procedural requirements present in Title III, the FAA extended the distance from traditional Fourth Amendment warrant requirements
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significantly further. For example, the FAA allows the Government to target any “non-U.S.
person” – which includes “any group, entity, association, corporation, or foreign power” (50 U.S.C. § 1801[m]) – that is located overseas so long as a “significant” purpose of that interception is related to foreign intelligence, which is broadly defined. See 50 U.S.C. § 1801(e). Thus, the statute authorizes wholesale surveillance against “non-U.S. persons” but even those broad parameters do not permit the targeting of “U.S persons”, i.e., U.S. citizens and lawful permanent residents such as Hasbjarami, nor the interception of any communication to or from – in all or part – United States soil, which was also the case here.
Nonetheless, the FAA electronic surveillance program results in massive acquisition of individual telephone calls and emails with no individualized judicial supervision to limit or police the Government’s ability to thereafter review all such intercepted communications, regardless of whether the intercepted individual is a U.S. or non-U.S. person. A recently declassified Foreign Intelligence Surveillance Court (“FISC”) opinion from 2011 estimated that, in a single year, the programs implementing the FAA acquired more than 250 million communications. See [Case Name Redacted], [docket number redacted], 2011 WL 10945618, at *9 (FISC Oct. 3, 2011) (Bates, J.). Reportedly, the National Security Agency (“NSA”) makes a copy of “nearly all cross-border text-based data,” scans the content of each message
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using its chosen keywords or “selectors,” then saves any communication that contains a match for further analysis. Charlie Savage, N.S.A. Said to Search Content of Messages to and From U.S., N.Y. Times, Aug. 8, 2013.
By ostensibly targeting foreign (i.e., “non-U.S.”) persons, the Government nonetheless searches and seizes the private communications of “U.S. persons” – both U.S. citizens and lawful permanent residents – in contact with those foreign persons without complying with basic Fourth Amendment protections. Similarly, the seizure of communications of U.S. persons is by no means accidental or unexpected. Although the Government often describes the collection of American communications as “inadvertent” and “incidental,” such ignores what any reasonable individual with knowledge of the surveillance could foresee: the intrusions on U.S. persons are as inevitable and expected as the Government’s protestations to the contrary.1

1

Cf. [Case Name Redacted], 2011 WL 10945618, at *16 (“The government argues that an

NSA analyst’s post-acquisition discovery that a particular Internet transaction contains a wholly

domestic communication should retroactively render NSA’s acquisition of that transaction

‘unintentional.’…. That argument is unavailing. NSA’s collection devices are set to acquire

transactions that contain a reference to the targeted selector. When the collection device acquires

such a transaction, it is functioning precisely as it is intended, even when the transaction includes

a wholly domestic communication. The language of the statute makes clear that it is the

government’s intention at the time of acquisition that matters, and the government conceded as

much at the hearing in this matter…. Accordingly, the Court finds that NSA intentionally acquires

Internet transactions that reference a tasked selector through its upstream collection [a Section 702

surveillance program] with the knowledge that there are tens of thousands of wholly domestic

communications contained within those transactions.”) (emphasis in original and citations

omitted).

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C. The provisions of the FAA authorizing warrantless surveillance and interception (i.e., Section 702) are unconstitutional per se and as applied herein and as such require suppression of all evidence that was derived as a result
The Fourth Amendment to the United States Constitution 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.”
This fundamental Constitutional requirement imbues U.S. persons with the freedom, security, and protection from warrantless surveillance and the collection of evidence resulting from such surveillance absent: (1) a neutral judicial determination of probable cause; (2) based on a sworn affidavit; (3) particularizing the place to be searched; and (4) particularizing the person or things to be seized. See Groh v. Ramirez, 540 U.S. 551, 554 (2004).
Searches undertaken without a warrant, as was the case here, “are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions,” Katz v. United States, 389 U.S. 347, 357 (1967), none of which apply to this case. See also United States v. VerdugoUrquidez, 494 U.S. 259, 264 (1990) (“The Fourth Amendment … prohibits ‘unreasonable searches and seizures’ whether or not the evidence is sought to be
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used in a criminal trial, and a violation of the Amendment is ‘fully accomplished’ at the time of an unreasonable governmental intrusion.”), citing, United States v. Calandra, 414 U.S. 338, 354 (1974), United States v. Leon, 468 U.S. 897, 906 (1984).
Notwithstanding the enactment of the FAA, the warrantless mass collection, retention, accessing, dissemination, and use of the contents of the electronic communications of U.S. persons has long been held to violate the Fourth Amendment. See Keith., 407 U.S. at 313 (warrantless domestic surveillance for national security purposes violates the Fourth Amendment); Berger v. New York, 388 U.S. 41, 64 (1967) (statute that authorized electronic surveillance under judicial supervision violated the Fourth Amendment because it “permits a trespassory invasion of the home or office, by general warrant, contrary to the command of the Fourth Amendment”).
The enactment of the FAA is not the first time Congress has sought to test the bounds of the Constitution, and it will surely not be the last, but we respectfully submit that in this case of first impression this Court should uphold the sanctity of the Fourth Amendment and reject as unconstitutional the Congressional end-run attempted by the creation of the FAA.
To be clear, the FAA permits the widespread capture, retention, and later querying, dissemination, and use of the communications of U.S. persons (i.e., U.S.
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citizens and lawful permanent residents, such as Hasbajrami) both outside and
within the United States under the guise of targeting foreign actors, but without any
of the protections required by the Fourth Amendment for those, like Hasbajrami,
that reside in the United States and at all relevant times possess the rights bestowed
upon them by the United States Constitution.
Indeed, the intrusions in this case also implicate the separation of powers
doctrine, which inheres in the structure of checks and balances created by the first
three Articles of the Constitution:
The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. The independent check upon executive discretion is not satisfied, as the Government argues, by ‘extremely limited’ post-surveillance judicial review. Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights.
Keith, 407 U.S. at 317-18 (emphasis added) (footnotes and citations omitted). See
also Berger, 388 U.S. at 63 (“Few threats to liberty exist which are greater than that
posed by the use of eavesdropping devices.”).
Under well-established Fourth Amendment law, the FAA fails to meet
Constitutional requirements for two primary reasons. First, since FAA surveillance
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has not been confined to the collection of foreign communications by foreign actors abroad, the FAA is subject to the Warrants Clause of the Fourth Amendment, which, as will be discussed, contains fundamental requirements that FAA surveillance fails to meet. See, e.g. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (“[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment…’ ”), quoting, Katz v. United States, 389 U.S. 347, 357 (1967); accord Arizona v. Gant, 556 U.S. 332, 338 (2009).
And second, the warrantless searches and seizures in this case cannot pass constitutional muster because the Government will be unable to establish one of the “jealously and carefully drawn” exceptions to the warrant requirement. Georgia v. Randolph, 547 U.S. 103, 109 (2006), quoting, Jones v. United States, 357 U.S. 493, 499 (1958).
Notably, the contents of telephone calls and emails of U.S. persons are within the core zone of privacy protected from government intrusion in the absence of a warrant. See United States v. Alderman, 394 U.S. 165, 177 (1969); United States v. Katz, 389 U.S. 347, 353 (1967). Moreover, as has long been held, “the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.”
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Keith, 407 U.S. at 313. In United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010), the Sixth
Circuit concluded that email “is the technological scion of tangible mail” and that it
would “defy common sense to afford emails lesser Fourth Amendment protection.”
To that end, Hasbajrami’s emails merit the same Fourth Amendment protection as
any of his private communications.
Indeed, electronic surveillance requires compliance with the “basic command
of the Fourth Amendment before the innermost secrets of one’s home or office are
invaded.” Berger, 388 U.S. at 63. Just as letters and packages in the mail are treated
as Fourth Amendment papers within the home, the content of electronic
communications are protected against having police officers read them in the
absence of a warrant:
Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizure extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household.
Walter v. United States, 447 U.S. 649, 655 (1980).
Importantly, the Fourth Amendment applies to international as well as
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domestic communications. See United States v. Ramsey, 431 U.S. 606, 616-20 (1977); United States v. Peterson, 812 F.2d 486, 490-92 (9th Cir. 1987). The Fourth Amendment also applies beyond criminal investigations because it “guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,” Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 613-14 (1989), “without regard to whether the government actor is investigating crime or performing another function,” City of Ontario v. Quon, 130 S.Ct. 2619, 2630 (2010), including protecting national security, see Keith, 407 U.S. at 313-14.
The Fourth Amendment presupposes a number of measures that are missing from the search and seizure of electronic communications under the FAA: (1) a warrant authorizing the search and seizure; (2) based upon probable cause; (3) particularly describing the place to be searched and the items to be seized; (4) based at all times on an affidavit under oath or affirmation; (5) issued by a neutral and detached magistrate operating in a judicial capacity; (6) with a return or other procedure assuring compliance with the terms of the warrant in its execution.
The absence of any one of these critical features from FAA surveillance would be fatal to the statute because it would not adequately protect against the search and seizure of the private communications of persons who reasonably should be known to be U.S. persons. See, e.g., [Case Name Redacted], 2011 WL
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10945618, at *16 (holding that the “NSA knows with certainty that the upstream
collection, viewed as a whole, results in the acquisition of wholly domestic
communications”).
That none of them are present in the FAA compounds the statute’s
unconstitutionality immeasurably. The absence of these factors, either individually
or collectively, violates the Fourth Amendment, and as such this Court should hold
that the Government’s warrantless collection, retention, and accessing are
presumptively unreasonable under Coolidge and Gant, or, at a minimum,
unreasonable as applied to the facts of this case.
1. The FAA is unconstitutional per se and as applied herein because it authorizes surveillance and interception without a warrant
The “warrant” of the Warrant Clause is distinct from the “authorization” and
“certificate” by the Foreign Intelligence Surveillance Court (FISC) under 50 U.S.C.
§§ 1881a(a), 1881a(g).
The issuance of a search warrant by a judge involves an individualized
determination regarding the constitutionality of a specific invasion of privacy:
In response to these abuses of power by the government, the Founders abolished general warrants, restricted the government’s ability to search without warrants, and required individual authorization of specific warrants. Today, search warrants are specific instruments that restrict government, dictate who may conduct a search, what may be searched, and when it may be searched. Both the procurement of the search warrant and its
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execution must be done under the law; otherwise the search is an unconstitutional abuse of governmental power. Swate v. Taylor, 12 F. Supp. 2d 591, 594 (S.D. Tex. 1998); see also United States v. Vilar, 530 F.Supp.2d 616, 630 (SDNY 2008) (“Subpoenas are not search warrants. They involve different levels of intrusion on a person’s privacy.”), quoting, In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 854 (9th Cir. 1991) (also explaining that “the person served [with a subpoena] determines whether he will surrender the items identified in the subpoena or challenge the validity of the subpoena prior to compliance,” whereas “[t]he person to be searched has no lawful way to prevent the execution of the warrant” prior to its enforcement). In contrast, similar to a subpoena, the FAA only calls for an “authorization” that does not involve any of the specificity of a Fourth Amendment warrant. Pursuant to 1881a(c)(2), the “authorization” requires “[a] determination … by the Attorney General and the Director of National Intelligence that exigent circumstances exist because, without immediate implementation of an authorization … intelligence important to national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order pursuant to subjection (i)(3) prior to the implementation of such authorization.”2

2

Section 1881a(i)(3) discusses the judicial review of certifications and procedures

specifically with respect to “orders” issued in accordance with the statute, but provides no

reference to warrants.

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However, the “certification” upon which all elements of FAA surveillance are predicated merely requires: (1) that the target of the surveillance “be located outside of the United States” and “attest” that the procedures sought to be utilized will “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 outside of the United States”; (2) that minimization procedures will be utilized; (3) that “a significant purpose of the acquisition is to obtain foreign intelligence information”; and (4) that other elements of the statute are followed.
However, nowhere does the FAA require that such certification establish the existence of “probable cause” or any other threshold level of proof. As a result, the certification requires barely more detail then would be required in support of a soordered subpoena, which is a far cry short of matching the quantum of evidence required for a warrant. See Dalia v. United States, 441 U.S. 238, 256 n.18 (1979) (“electronic surveillance undeniably is a Fourth Amendment intrusion requiring a warrant); United States v. Figueroa, 757 F.2d 466, 471 (2d Cir. 1985) (“even narrowly circumscribed electronic surveillance must have prior judicial sanction”) (emphasis added).
As such, we respectfully submit that a statute authorizing the massive collection of – and access to – communications, without an individualized neutral determination that the electronic communications of U.S. persons can be seized, and
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read, secretly, and without consent, by Government agents, is in no way consistent with the Fourth Amendment warrant requirement.
2. The FAA is unconstitutional per se and as applied herein because it permits surveillance and interception without probable cause
The Fourth Amendment’s requirement of “probable cause” assures that “baseless searches shall not proceed.” Keith, supra, 407 U.S. 297, 316 (1972). This fundamental norm for Government searches and seizures requires sworn facts sufficient for a judge to decide whether individualized suspicion justifies the Government’s intrusion on privacy. See Gates v. Illinois, 462 U.S. 213, 239 (1983) (“An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause, which is not met by wholly conclusory statements.”). The Supreme Court has carefully guarded the probable cause standard against encroachment within core areas of privacy; even a minor intrusion beyond the boundary of the lawful Government action, where core rights are concerned, requires probable cause. See Arizona v. Hicks, 480 U.S. 321, 329 (1987).
In contrast, the FAA fails to require individualized suspicion or probable cause before engaging in electronic surveillance. Instead, the statute allows the Government to target any “persons reasonably believed to be located outside the United States to acquire foreign intelligence information,” 50 U.S.C. § 1881a(a),
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with the definition of “person” broadly defined to include “any group, entity, association, corporation, or foreign power,” 50 U.S.C. § 1801(m). While the Foreign Intelligence Surveillance Court (hereinafter, “FISC”) approves general programs and procedures under the FAA, it does not, contrary to the requirements of the Fourth Amendment, review or approve the Government’s specific targeting decisions nor its later access and querying of any seized communications.
Given the broad definition of “person”, see 50 U.S.C. § 1801(m), and the minimal requirement that the electronic surveillance have as “a significant purpose” the acquisition of foreign intelligence, see 50 U.S.C. § 1881a(g)(2)(A)(v), the statute broadly authorizes the Government to target entire geographical areas or groups of people. Thus, without court approval, the FAA could be relied upon to authorize the Government to intercept and read every communication to and/or within a country of interest – Afghanistan or Pakistan, for example – as long as the Government satisfies itself that such intercepts implicate foreign intelligence – even if the communications (in writing, orally, or by electronic or other means) originate within the United States and are created by U.S. persons, both of which are the case here.
For centuries leading up to and following the ratification of the Bill of Rights, the probable cause standard has been the fundamental bulwark protecting people from Governmental over-reaching into their private lives. See Carlo v. United
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States, 286 F.2d 841, 843 (2d Cir. 1961) (describing the Warrant Clause as “one of the most fundamental and significant of the provisions of the Bill of Rights,” and explaining that when warrantless searches are conducted the Court “must scrutinize the evidence with meticulous care to make sure that no determination … shall constitute any watering down or erosion of the rights guaranteed by the Fourth Amendment”); cf. Kyllo v. United States, 533 U.S. 27, 34 (2001) (requiring a warrant for use of a thermal imaging device outside the home because “[t]o withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment”).
We respectfully submit that the Government’s surveillance and interception of electronic communications of U.S. persons is constitutional only if based on a judicial finding of probable cause – that’s not merely the law, but also the just result. Under the FAA, no probable cause or other level of suspicion is required before communications are acquired, retained, and read, and as such we submit that the statute unquestionably violates the Fourth Amendment.
3. The FAA is unconstitutional per se and as applied herein because it permits generalized and programmatic acquisition, retention, and accessing of electronic communications of U.S. persons without requiring particularity regarding the places to be searched and the items to be seized
“The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one ‘particularly describing the place to be searched
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and the persons or things to be seized.’ ” Maryland v. Garrison, 480 U.S. 79, 84 (1987). “The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement endures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Garrison, 480 U.S. at 84, citing, inter alia, Marron v. United States, 275 U.S. 192, 196 (1927).
As one court put it, wholesale seizure of documents is exactly “the kind of investigatory dragnet that the Fourth Amendment was designed to prevent.” United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982). Instead, the purpose of the specificity requirement is to prevent general exploratory rummaging in a person’s belongings. See Coolidge, 403 U.S. at 467. “As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron, 275 U.S. at 196.
Indeed, as recently explained by the Supreme Court in Riley v. California, 134 S.Ct. 2473, 2494 (2014), the American colonists’ viscerally negative reaction to the British practices of “general warrants” and “writs of assistance” provided an essential impetus for the Fourth Amendment, and even the American Revolution itself. For centuries now:
Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled
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“general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U.S. 616, 625 [] (1886)).
Riley, 134 S.Ct. at 2494.
Notwithstanding the clear mandates of the Fourth Amendment, and similar to
the electronic surveillance statute held unconstitutional in Berger v. New York,
supra, 388 U.S. 41, 56 (1967), the FAA “lays down no requirement for particularity
in the warrant as to what specific crime has been or is being committed, nor ‘the
place to be searched,’ or ‘the persons or things to be seized.’ ”
To the contrary, the FAA specifically removed from FISA the previous
specific requirement of particularity as to the facilities to be targeted. See 50 U.S.C.
§ 1881a(g)(4) (“A certification made under this subsection is not required to
identify the specific facilities, places, premises, or property at which an acquisition
authorized under subsection (a) will be directed or conducted.”).
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By doing so, the FAA created an exception to FISA that is incompatible with the Fourth Amendment. See United States v. George, 975 F.2d 72, 76 (2d Cir. 1992) (“a failure to describe the items to be seized with as much particularity as the circumstances reasonably allow offends the Fourth Amendment because there is no assurance that the permitted invasion of a suspect’s privacy and property are no more than absolutely necessary”).
Analogous to the interception of email that occurred in this case, last year the Second Circuit held, “Where … the property to be searched is a computer hard drive, the particularity requirement assumes even greater importance.” United States v. Galpin, 720 F.3d 436, 446 (2d Cir. 2013). The Court reached this conclusion reasoning that “because there is currently no way to ascertain the content of a file without opening it,” there is a “ ‘serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.’ ” Galpin, 720 F.3d at 447, citing and quoting, United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010). “This threat,” the Second Circuit held, “demands a heightened sensitivity to the particularity requirement in the context of digital searches.” Galpin, 720 F.2d at 447.
Certainly, there is no meaningful difference between the contents of a computer hard drive versus the contents of an email account. With the constant
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advance of technology, both may be essentially limitless in size and content, and as such, “[t]he potential for privacy violations occasioned by an unbridled, exploratory search of [either] is enormous.” Id.
Here, the FAA creates a mechanism that lacks any particularity of the places to be searched or the items to be seized; and contains no check on the Government’s capacity to execute, in effect, a general warrant on all of a person’s communications; no check, of course, except for the Fourth Amendment. We respectfully submit that this lack of particularity, particularly in the “heightened” realm of digital searches, cannot survive the scrutiny that the Fourth Amendment requires.
4. The FAA is also per se unconstitutional because it includes the participation of the Foreign Intelligence Surveillance Court in the construction of its surveillance programs, thereby blurring the role of the neutral and detached magistrate
The Fourth Amendment requires the participation of a neutral and detached magistrate to ensure that the Government does not overstep the Constitution while zealously attempting to “ferret[] out crime.” Johnson v. United States, 333 U.S. 10, 14 (1948); see also McDonald v. United States, 335 U.S. 451, 455-56 (1948) (discussing the need for “an objective mind [to] weigh the need to invade” privacy to enforce the law); Steagald v United States, 451 U.S. 204, 212 (1981) (explaining that judicial approval of warrants ensures a “checkpoint between the Government
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and the citizen”). When the role of the judge is reduced merely to ratifying Executive Branch
decisions, and even participating in them as consultants (for all practical purposes), with no case or controversy involving an adversary, the court’s input regarding the program morphs into an impermissible advisory opinion. See Chafin v. Chafin, 133 S.Ct. 1017, 1023 (2013) (“Federal courts may not … give ‘opinion[s] advising what the law would be upon a hypothetical state of facts’ ”) (brackets in original), quoting, Lewis v. Continental Bank Corp., 449 U.S. 472, 477 (1990); see also Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) (when magistrate participated in search, “the objective facts of record manifest an erosion of whatever neutral and detached posture existed at the outset”); Coolidge, 403 U.S. at 449 (State Attorney General who was actively in charge of criminal investigation and later was to be chief prosecutor at trial was per se disqualified from determining whether there was probable cause to issue search warrants).
Given the programmatic “approval” process performed by the Foreign Intelligence Surveillance Court under the FAA, the FISC no longer functions as neutral and detached judicial officers. Rather, the statutory function of the court under the FAA is not to issue a warrant based on probable cause but to authorize and certify a program. See 50 U.S.C. § 1881a(a).
In doing so, the FISC meets ex parte with the Government and assists in
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formulating the program. See [Case Name Redacted], 2011 WL 10945618, at *1-3; see also id. at *1, *28-*30 (holding that one aspect of the Section 702 collection proposed therein, the “ ‘upstream collection’ of Internet transcriptions containing multiple communications[,] is, in some respects deficient on statutory and constitutional grounds,” and then identifying the deficiencies and ordering their correction or cessation if the corrections do not occur).
As such, rather than approve or disapprove of proposals, the Foreign Intelligence Surveillance Court has a role in designing and modifying them and advising how the programs may be fashioned in order to comply with the requirements of the Fourth Amendment when applied – exactly what the Supreme Court has clearly prohibited.
Given the blurred lines involved in FAA surveillance, we respectfully submit that the Foreign Intelligence Surveillance Court does not operate, in the context of Section 702, as the neutral and detached magistrate required by the Warrant Clause of the Fourth Amendment.
D. Conclusion Defendant Agron Hasbajrami is a lawful permanent resident who at all times relevant to this motion resided within the United States. Each intercepted email was either sent or received by Hasbajrami while Hasbajrami was within the United States, and to the extent any telephone calls were intercepted that included
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Hasbajrami, Hasbajrami’s participation in those calls could have only occurred while he was within the United States.
Yet, the “authorization” permitting the surveillance and interception of Hasbjarami’s communications was issued without a warrant, without a prior showing of probable cause, without requiring particularity regarding the places to be searched or the items to be seized, and without the supervision of an entirely neutral and detached magistrate.
Accordingly, for these and all other reasons discussed above, the defense respectfully submits that the FAA is both unconstitutional per se and as specifically applied against Hasbajrami. As a result, the defense further submits that the fruits of all FAA surveillance that aggrieved Hasbajrami must be suppressed in this case.
Second Motion MOTION TO SUPPRESS THE FRUITS OF FAA
SURVEILLANCE IRRESPECTIVE OF THE CONSTITUTIONALITY OF THE STATUTE A. Introduction Assuming arguendo that the FAA survives the constitutional challenges raised herein, see First Motion, supra, the statutory application of 50 U.S.C. § 1881a to the facts of this case also requires suppression of Hasbajrami’s intercepted communications. As the Court noted in its October 2, 2014, Order permitting Hasbajrami to withdraw his guilty plea:
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[E]ven if Hasbajrami cannot make a facial challenge to the FAA, it is also possible that the revelation of the role FAA material played in the government’s investigation will lead to new fact-specific challenges to the evidence that the government would have used in this case. Hasbajrami might seek to suppress the FISA-obtained evidence not because the FAA is unconstitutional in general, but because of some other infirmity in its application to this particular case. Order, dated, October 2, 2014 (ecf #85), at 8. The instant motion addresses these statutory concerns. Indeed, a fundamental rule of statutory construction is that a statute should be construed in a manner that preserves its constitutionality. See United States ex rel. Attorney General, v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909) (when “a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [a court’s] duty is to adopt the latter”); see also Jones v. United States, 526 U.S. 227, 239-40 (1999); accord Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997); United States v. Al-Arian, 329 F. Supp.2d 1294, 1298 & n. 11 (M.D. Fla. 2004) (relative to § 2339B); United States v. Khan, 309 F.Supp.2d 789, 822 (E.D.Va. 2004) (applying the same principle to “personnel” in the context of 18 U.S.C. § 2339A). That doctrine of “constitutional avoidance” therefore requires this Court to examine the application of 50 U.S.C. § 1881a to Hasbajrami in order to determine whether a purely statutory basis exists for suppression, thereby obviating
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the need to decide the constitutional issues presented in the First Motion. Here, while defense counsel (and Hasbajrami) have thus far been denied
access to specific information that would verify a statutory violation of 50 U.S.C. § 1881a in this case, as discussed below, abundant public information exists to establish that during the very period in which Hasbajrami’s communications were intercepted (April 2, 2011, through August 28, 2011),3 and during which he, a “United States person,” was located exclusively within the U.S., the NSA routinely exceeded the authority granted it by the FISC and violated 50 U.S.C. § 1881a as a matter of course.
We address in Defendant’s Fifth Motion, infra, why such indisputable evidence of the general nature of the NSA’s violations of the FAA requires disclosure to cleared defense counsel of materials and information specific to the electronic surveillance of Hasbajrami, or, at an absolute minimum, exacting scrutiny by this Court in camera. In the meantime, and absence of such discovery, the following motion outlines the violations of the FAA that we believe mostly likely occurred in this case. As such, we respectfully request that this Court weigh the instant arguments when reviewing any ex parte submissions provided to this Court by the Government, as well as when considering, based upon the public record,

3

Defense counsel does not know the precise period during which such interceptions

occurred (which may be longer), but refer to that which is public from the information provided in

the Pre-Sentence Report. See Section II, supra.

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whether Hasbajrami’s rights under the FAA were violated in this case. B. The requirements and limitations set forth in 50 U.S.C. § 1881a of the FAA 1. Background of the § 1881a program As noted ante, in POINT I, the FAA was enacted in 2008. However, for
seven years prior to the passage of the FAA, NSA had been conducting (at least) the very same electronic surveillance and interception ultimately authorized by the FAA. For example, “in 2001, the NSA [] began acquiring Internet-based communications of overseas targets without the use of a traditional law enforcement warrant or an electronic surveillance order under Title I of FISA.” Edward C. Liu, Andrew Nolan, Richard M. Thompson II, Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments, Congressional Research Service (April 1, 2014) (hereinafter, “CRS Report: Overview”), at 9 (footnote omitted) available at <http://fas.org/sgp/crs/intel/R43459.pdf>, citing, December 20, 2013, Unclassified Declaration of Frances J. Flesch, National Security Agency, in Schubert v. Obama, 07 Civ. 693 (JSW) (N.D.Cal.), at ¶ 32 (available at <http://icontherecord.tumblr.com>).
Initially, such surveillance and interception, denominated the Terrorist Surveillance Program (hereinafter “TSP”), was performed without any legislative or court authorization. See James Risen & Eric Lichtblau, “Bush Let U.S. Spy on Callers Without Courts,” N.Y. Times, December 16, 2005 (available at
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<http://www.nytimes.com/2005/12/16/politics/16program.html?_r=0>). After the
TSP’s existence was disclosed in December 2005 in N.Y. Times, “[u]timately, new
statutory authority for this type of acquisition was provided, at first, temporarily
under the Protect America Act (‘PAA’) of 2007 [P.L. 110-55], and on a longer term
basis by the FISA Amendments Act (‘FAA’) [P.L. 261].” CRS Report: Overview,
at 10 (footnotes omitted).
The scope of the surveillance and interception has been breathtaking. The
CRS Report: Overview noted:
According to a partially declassified 2011 opinion from the FISC, NSA collected 250 million Internet communications per year under this program. Of these communications, 91% were acquired “directly from Internet Service Providers,” referred to as “PRISM collection.” The other 9% were acquired through what NSA calls “upstream collection,” meaning acquisition while Internet traffic is in transit from one unspecified location to another.
CRS Report: Overview, at 10 (footnotes omitted), citing, In re Foreign Intelligence
Surveillance Court (Redacted), Docket No. [Redacted], 2011 WL 10945618, at *9,
*25 (FISC 2011).
In addition, as the CRS Report: Overview, again citing the 2011 FISC
opinion, explains that:
[The] NSA also has two methods for collecting information about a specific target: “to/from” communications collection, in which the target is the sender or receiver of the Internet communications; and
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“about” communications collection, in which the target is only mentioned in communications between non-targets. Id. (footnotes omitted), citing, In re Foreign Intelligence Surveillance Court (Redacted), 2011 WL 10945618, at *5. Moreover, according to the CRS Report: Overview, “The Obama Administration also acknowledged to the FISC that technical limitations in the ‘upstream’ collection result in the collection of some communications that are unrelated to the target or that may take place entirely between persons located in the United States.” Id., at 10 (footnote omitted).4 2. The FAA’s specific requirements and limitations While the FAA codified the legal authority of the U.S. Attorney General and the Director of National Intelligence (hereinafter “DNI”) to authorize jointly (through a certification process submitted to the FISC) the targeting of non-U.S. persons reasonably believed to be located outside the United States (and, once authorized, to acquire such communications for up to one year), the statute also

4

The CRS Report: Overview, also explains:

The PRISM and upstream collections differ from the telephony metadata program in two key respects. First, the PRISM and upstream collections acquire the contents of those communications. Second, as this program targets the “to/from” and “about” communications of foreigners who are abroad, the collection of Internet-based communications may be considered by some to be more discriminating than the bulk collection of telephony metadata.

CRS Report: Overview, at 10.

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imposed certain substantive and procedural restrictions upon electronic surveillance
and interception pursuant to 50 U.S.C. § 1881a.
Summarizing those limitations, the CRS Report: Overview explained that
acquisition of communications pursuant to § 1881a:
 may not intentionally target any person known at the time of acquisition to be located in the United States, see 50 U.S.C. § 1881a(b)(1);
 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 (so-called “reverse targeting”), see 50 U.S.C. § 1881a(b)(2);

 may not intentionally target a U.S. person reasonably believed to be located outside the United States, see 50 U.S.C. § 1881a(b)(3); and
 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, see 50 U.S.C. § 1881a(b)(4).
CRS Report: Overview, at 10-11.5
Thus, as Judge Bates enumerated in his 2011 FISC opinion, 50 U.S.C. §
1881a(d)(1) requires 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.’ ” In

re Foreign Intelligence Surveillance Court (Redacted), 2011 WL 10945618, at *5.

5

The FAA also requires that electronic surveillance pursuant to § 1881a be conducted in a

manner consistent with the Fourth Amendment. See 50 U.S.C. § 1881a(i)(3(A); see also

Defendant’s First Motion, supra.

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That subsection 1881a(d)(1) also requires that “the targeting procedures must
be ‘reasonably designed’ to ‘prevent the intentional acquisition of any
communication as to which the sender and all intended recipients are known at the
time of the acquisition to be located in the United States.’ ” Id.
As Judge Bates further noted, the FAA also “requires that the minimization
procedures ‘meet the definition of minimization procedures under [50 U.S.C. §§]
1801(h) or 1821(4)…’ ” Id., citing, 50 U.S.C. § 1881a(e)(1). Elaborating, Judge
Bates pointed out:
Most notably, that definition requires “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 or physical search], 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.”
In re Foreign Intelligence Surveillance Court (Redacted), 2011 WL 10945618, at
*5, quoting, 50 U.S.C. §§1801(h) & 1821(4).
The mechanics of authorization pursuant to § 1881a require the Attorney
General and the DNI to make certain certifications with respect to the limitations
built into § 1881a. As a result, the Attorney General and DNI must submit to the
FISC an application for a “mass acquisition order,” see 50 U.S.C. §§ 1881a(a),
1881a(c)(2), with “a written certification and supporting affidavit” attesting that the
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FISC has approved, or that the Government has submitted to the FISC for approval, “targeting procedures” reasonably designed to (1) ensure that the acquisition is “limited to targeting persons reasonably believed to be located outside the United States,” and (2) “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(g)(2)(A)(i).
The certification and supporting affidavit must also attest that the FISC has approved, or that the Government has submitted to the FISC for approval, minimization procedures that meet the definition of “minimization procedures” under 50 U.S.C. §§ 1801(h) or 1821(4). The certification and supporting affidavit must also attest, among other things, that the Attorney General has adopted “guidelines” to ensure: compliance with the limitations set out in 50 U.S.C. § 1881a(b); that the targeting procedures, minimization procedures, and guidelines are consistent with the Fourth Amendment; and that “a significant purpose of the acquisition is to obtain foreign intelligence information.” 50 U.C.C. § 1881a(g)(2)(A)(iii)-(vii).
However, in addition to the distinctions in the concept of “probable cause” – particularly the fact that individual targets of surveillance are not necessarily reviewed by the FISC prior to acquisition of their communications – between traditional FISA warrants and § 1881a surveillance and acquisition, the FISC’s
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oversight role with respect to the latter is “narrowly circumscribed.” In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008, Docket No. Misc. 08-01, 2008 WL 9487946, at *2 (FISC Aug. 27, 2008) (internal quotation marks omitted).
Instead, the FISC’s role is essentially limited to reviewing the targeting and minimization procedures that the Government proposes to use to target and acquire communications prospectively. See CRS Report: Overview, at 11 (footnote omitted). The FISC must also find that the minimization procedures are reasonably designed to minimize the retention, and prohibit the dissemination, of information that is about a U.S. person or that could identify a U.S. person. Id. (footnote omitted), citing, 50 U.S.C. § 1881a(e). However, the minimization procedures allow for the retention and dissemination of information – including U.S. person information, – that is evidence of a crime. Id.
Another limiting element that applies to FISA generally, and, it is respectfully submitted, applies to electronic surveillance and interception pursuant to the FAA as well, appears in 50 U.S.C. § 1805(a)(2)(A), which provides “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….”
Accordingly, if the target participated in First Amendment activities such as expressing support, urging others to express support, gathering information,
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distributing information, raising money for political causes, or donating money for

political causes, 50 U.S.C. § 1805(a)(2)(A) would preclude those activities from

serving as the basis for FAA surveillance.

C. The implications of non-disclosure of the underlying FAA applications, affidavits, certifications and orders regarding the electronic surveillance of Hasbajrami

1. The vertical playing field created by ex parte FISA and FAA proceedings

Litigation of FISA-authorized electronic surveillance generally, and FAA-

authorized electronic surveillance in particular in this case, represents a radical departure from the traditional and essential requirement of the adversary process.6

While ordinary search and even electronic surveillance warrants (issued pursuant to

Title III) are presented initially ex parte, once criminal charges are instituted defense

counsel and the defendant are afforded access to the underlying submissions in

support of those warrants. On the other hand, with only one exception known to

defense counsel, FISA and FAA applications (and supporting documents) have

6

As stated in the Congressional Research Service’s Report, Reform of the Foreign

Intelligence Surveillance Courts: Introducing a Public Advocate:

An underlying principle of the Anglo-American legal system is the adversarial process, whereby attorneys gather and present evidence to a generally passive and neutral decision maker. The basic assumption of the adversarial system is that a “sharp clash of proofs presented” by opposing advocates allows a neutral judge to best resolve difficult legal and factual questions.

Andrew Nolan, Richard M. Thompson II, and Vivian S. Chu, Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate, Congressional Research Service, March 21, 2014, at 2 (available at <http://fas.org/sgp/crs/intel/R43260.pdf>).

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never been shared with the defendant or defense counsel – even defense counsel in possession of the requisite security clearance to review classified material. See United States v. Daoud, Docket No. 12 Cr. 723, 2014 WL 321384 (N.D.Ill. January 29, 2014), rev’d, 755 F.3d. 479 (7th Cir. 2014).
The entirely one-sided nature of FISA litigation, particularly in the context of determining whether the Government adhered to the restrictions set forth in 50 U.S.C. § 1881a, applies not only to the facts at issue, as only the Government knows the facts specific to the FAA electronic surveillance and interception with respect to Hasbajrami, but also to the law as well, as the Government has access to the entire body of FISC and FISCR opinions while defense counsel’s access is limited to those few opinions the Government or the court has released publicly.
This decidedly unlevel playing field – indeed, it is vertical, with the Government at the apex and defense counsel at the bottom – has clear implications, not the least of which is the Government’s undefeated (and unsurprising, in light of the advantages inherent in ex parte litigation) record in FISA litigation in the statute’s 35-year history. Also, it imposes upon this Court a responsibility – review of the FISA or FAA submissions as, in effect, surrogate defense counsel – to which courts have acknowledged they are not sufficiently suited to fulfill. See Alderman v. United States, 394 U.S. 65, 184 (1969); Franks v. Delaware, 438 U.S. 154, 169 (1978); United States v. Marzook, 412 F. Supp.2d 913, 921 (N.D.Ill. 2006).
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Here, declassified opinions of the Foreign Intelligence Surveillance Court have provided evidence of systemic non-compliance with the court’s authorizations. In the absence of the disclosure of the classified material requested in Defendant’s Fifth Motion, infra, which we submit is necessary for defense counsel to present a full and complete picture of the Government’s violations of its obligations under the FAA, Hasbajrami’s burden of establishing specific statutory non-compliance should be relaxed accordingly.
As such, we respectfully submit that the Government should shoulder the burden of proving compliance – indeed, the doctrine of res ipsa loquitor makes sense here under the circumstances the Government alone has created. Certainly in this context, in which the FISC’s approval was based on a general application, and not on specific information related to Hasbajrami, it would be appropriate to judge the Government on its lack of general compliance with the FISC’s authorization.
2. Criticism of the FISC’s ability to perform its necessary oversight function
Compounding the problem of ex parte review of FISA and FAA materials once a criminal prosecution is commenced is the fact that the FISC’s capacity for oversight of FAA electronic surveillance and acquisition at the initial application phase is so narrowly defined by statute, as well as the FISC’s historical institutional limitations as an independent factor in reining in abuse of FISA and FAA authority.
Regarding the latter, unlike the judiciary’s traditional threshold Fourth
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Amendment role as a gatekeeper for particular acts of surveillance, the FISC’s role in FAA electronic surveillance is simply to ratify in advance the vaguest parameters pursuant to which the Government is then free to conduct acquisition of communications for up to one year.
Nor, unlike courts discharging their requisite Fourth Amendment responsibilities, does the FISC consider individualized and particularized surveillance applications, or make individualized probable cause determinations, or supervise the implementation of the Government’s targeting or minimization procedures.7
Consequently, in the wake of the disclosures of the NSA’s vast and unprecedented dragnet approach to electronic surveillance, the FISC has been the subject of much criticism and reconsideration.8 As the Congressional Research

7

Nor are judicial rulings from the FISC precedential, as they have not been issued in the

context of “Cases” or “Controversies” within the constitutional meaning of Article III because

only one party was involved. See Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011) (authority to

adjudicate legal disputes requires adverse litigants with the “concrete adverseness which sharpens

the presentation of issues”), quoting, Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).

8

In addition to the sources discussed in POINT I, supra, and the text above, see also, e.g.,

Report on the FISA Amendments Act of 2008, The Constitution Project, Liberty and Security

Committee, September 6, 2012, available at <http://www.constitutionproject.org/wp-

content/uploads/2012/10/fisaamendmentsactreport_9612.pdf>; PCLOB Workshop Regarding

Surveillance Programs Operated Pursuant to Section 215 of the USA PATRIOT Act and Section

702 of the Foreign Intelligence Surveillance Act, July 9, 2013, available at

<http://www.pclob.gov/library/20130709-Transcript.pdf>; Remarks prepared for the Oct. 2, 2013

Hearing on Continued Oversight of the Foreign Intelligence Surveillance Act Senate Committee

on the Judiciary, Professor Laura K. Donohue, Georgetown Law School, available at

<http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1117&context=cong>

(arguing that the “rather remarkable success rate” raises a “serious question about the extent to

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Service notes, “[r]ecent controversies over the nature of the government’s foreign
surveillance activity have prompted some to argue that the judiciary’s review of
government surveillance requests under the Foreign Intelligence Surveillance Act of
1978 (FISA) should be far more exacting.” Andrew Nolan, Richard M. Thompson
II, and Vivian S. Chu, Reform of the Foreign Intelligence Surveillance Courts:
Introducing a Public Advocate, Congressional Research Service, March 21, 2014, at
2 (available at <http://fas.org/sgp/crs/intel/R43260.pdf>).
In fact, proposed reforms have focused on the absence of adversarial
proceedings:
[L]awmakers and others have suggested transforming FISA proceedings such that the process is more adversarial in nature. Critics of the current FISA proceedings have cited the infrequency of the FISC’s rejections of government surveillance request as evidence that the lack of an adversarial process has prevented the court from fully and properly scrutinizing the government’s position. While some reject this line of reasoning, those who have found the ex parte nature of FISA proceedings troubling have argued that allowing another attorney to argue in opposition to the requests of the Department of Justice (DOJ) to conduct foreign intelligence activity would allow the FISC to better protect civil liberty interests.
which FISC and [the Foreign Intelligence Surveillance Court of Review] perform the function they were envisioned to serve”); Stephen I. Vladeck, “It’s Time To Fix the FISA Court (the Way Congress Intended)”, MSNBC (Aug. 1, 2013), available at <http://www.msnbc.com/msnbc/itstime-fix-the-fisa-court-the-way>; http://www.uscourts.gov/uscourts/courts/fisc/honorable-patrickleahy.pdf; and http://www.stanfordlawreview.org/online/foreign-intelligence-surveillance-court-really-rubberstamp-ex-parte-proceedings-and-fisc-win#footnote_2.
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Id., at 2-3; see also id. at Preamble (“[i]n response to concerns that the ex parte nature of many of the proceedings before the FISA courts prevents an adequate review of the government’s legal positions, some have proposed establishing an office led by an attorney or ‘public advocate’ who would represent the civil liberties interests of the general public and oppose the government’s applications for foreign surveillance”).9
While Congress and others debate whether adversarial proceedings should be instituted in the FISC at front end of the FISA and FAA process, there remains no good rationale for continuing ex parte proceedings at the back end, in the Federal courts in the context of criminal prosecutions when, as here, a defendant’s liberty is at stake and the evidence the Government seeks to use either consists of or is derived from FISA or FAA surveillance and acquisition.

9

Regarding the FISC’s ex parte proceedings, N.Y. Times reported that Geoffrey R. Stone,

professor of constitutional law at the University of Chicago, and co-author of Liberty and Security

In a Changing World, Report and Recommendations of The President’s Review Group on

Intelligence and Communications Technologies, December 12, 2013 (available at

<http://www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf>), “said he

was troubled by the idea that the court is creating a significant body of law without hearing from

anyone outside the government, forgoing the adversarial system that is a staple of the American

justice system. ‘That whole notion is missing in this process,’ [Prof. Stone] said.” Eric Lichtblau,

“In Secret, Court Vastly Broadens Powers of N.S.A.,” N.Y. Times, July 6, 2013, available at

<http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-

nsa.html?pagewanted=all>.

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D. The history of non-compliance with both FAA and FISA restrictions
Certainly the public record compels a presumption that during the time period at issue herein – 2010-2011 – NSA was not in compliance with FAA or FISA in a number of critical and relevant aspects. Following the disclosures made by Edward Snowden, in August 2013 the Government released declassified versions of a series of FISC opinions that catalog the abuses and transgressions – exceeding the authority granted by the FISC – NSA committed in the course of implementing FAA programs and surveillance/acquisition.
In one such FISC opinion, In re Foreign Intelligence Surveillance Court (Redacted), supra, 2011 WL 10945618, at *5, n.14 (FISC 2011), District Judge John D. Bates, Chief Judge of the FISC at the time, excoriated the NSA for exceeding its acquisition authority and making repeated misrepresentations to the FISC regarding the NSA’s activities during the period in which Hasbajrami’s communications were monitored and intercepted pursuant to 50 U.S.C. § 1881a. As described in the CRS Report: Overview, Judge Bates was evaluating “the targeting and minimization procedures proposed by the government to address new information regarding the scope of upstream collection.” CRS Report: Overview, at 13 (footnotes omitted).
The CRS Report: Overview explained that “the government had recently discovered that its upstream collection activities had acquired unrelated international communications as well as wholly domestic communications due to
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technological limitations.” Id. (footnotes omitted). In response, Judge Bates “found
the proposed minimization procedures to be deficient on statutory and constitutional
grounds.” Id. (footnotes omitted).
According to the CRS Report: Overview,
[w]ith respect to the statutory requirements, the FISC noted that the government’s proposed minimization procedures were focused “almost exclusively” on information that an analyst wished to use and not on the larger set of information that had been acquired. Consequently, communications that were known to be unrelated to a target, including those that were potentially wholly domestic, could be retained for up to five years so long as the government was not seeking to use that information.
Id. (footnote omitted).
The CRS Report: Overview noted that Judge Bates concluded that “this had
the effect of maximizing the retention of such information, and was not consistent
with FISA’s mandate to minimize the retention of U.S. person information.” Id.
(footnote omitted).
In his opinion, and discussed in POINT I, supra, Judge Bates noted the
pervasive nature of the violations: “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.” In re Foreign
Intelligence Surveillance Court (Redacted), 2011 WL 10945618, at *5, n.14.
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Judge Bates further noted that the Government’s submissions in that
proceeding made it clear that the NSA had been acquiring Internet transactions even
before the FISC’s first approval thereof, id. at *17, n.45, adding that:
 “[t]he Court’s review of the targeting and minimization procedures submitted with the April 2011 Submissions is complicated by the government's recent revelation that NSA’s acquisition of Internet communications through its upstream collection under Section 702 is accomplished by acquiring Internet ‘transactions,’ which may contain a single, discrete communication, or multiple discrete communications, including communications that are neither to, from, nor about targeted facilities, June 1 Submission at 1–2. That revelation fundamentally alters the Court’s understanding of the scope of the collection conducted pursuant to Section 702 and requires careful reexamination of many of the assessments and presumptions underlying its prior approvals.” Id. at *5;
 “for the first time, the government has now advised the Court that the volume and nature of the information it has been collecting is fundamentally different than what the Court had been led to believe.” Id. at 9;
 “the Court is also unable to find that NSA’s targeting and minimization procedures, as the government proposes to implement them in connection with MCT’s [multi-communication transactions], are consistent with the Fourth Amendment.” Id. at 9;
 “NSA’s minimization procedures, as the government proposes to apply them to MCT’s as to which the ‘active user’ is not known to be a tasked selector, do not meet the requirements of 50 U.S.C. § 1881a(e) with respect to retention[.]” Id. at 28;
 “[t]he sheer volume of transactions acquired by NSA through its upstream collection is such that any meaningful review of the entire body of transactions is not feasible.” Id. at 10;
 “the Court cannot know for certain the exact number of wholly
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domestic communications acquired through this collection, nor can it know the number of non-target communications acquired or the extent to which those communications are to or from United States persons or persons in the United States.” Id. at 10;
 “[e]ven if the Court accepts the validity of conclusions derived from statistical analyses, there are significant hurdles in assessing NSA’s upstream collection . . . it is impossible to define with any specificity the universe of transactions that will be acquired by NSA’s upstream collection at any point in the future.” Id. at 10;
 “the actual number of wholly domestic communications acquired may still be higher in view of NSA’s inability conclusively to determine whether a significant portion of the MCT’s within its sample contained wholly domestic communications.” Id. at 11; and
 “the record shows that the government knowingly acquires tens of thousands of wholly domestic communications each year.” Id. at 15.10
As a result, Judge Bates required further briefing by the Government because
“it appeared to the Court that the acquisitions described in [a recent Government
letter to the Court] exceeded the scope of collection previously disclosed by the
government and approved by the Court, and might, in part, fall outside the scope of
Section 702.” Id. at *2.
Subsequently, the Government presented the FISC revised minimization
standards that were deemed acceptable under statutory and Fourth Amendment
standards. However, those modifications were submitted November 30, 2011, well
10 See also Charlie Savage, “N.S.A. Said to Search Content of Messages to and From U.S.,” N.Y. Times, August 8, 2013, available at <http://www.nytimes.com/2013/08/08/us/broader-siftingof-data-abroad-is-seen-by-nsa.html?pagewanted=all> (analyzing a document of internal NSA rules disclosed by Mr. Snowden).
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after the electronic surveillance and acquisition of Hasbajrami’s communications

occurred in this case. Those changes provide further strong indication that the

NSA’s prior means of surveillance and acquisition, which were applied to

Hasbajrami, violated 50 U.S.C. § 1881a.

Other recently declassified FISC opinions include additional examples of the

NSA’s persistent and diverse non-compliance with FISC orders and restrictions:

 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) (available at <http:// www.dni.gov/files/documents/1118/CLEANEDPRTT%202.pdf>) (last accessed, November 24, 2014);

 “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], Docket 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],” (In re Application of the FBI for an

Order Requiring the Production of Tangible Things from [redacted],

Docket 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) (order requiring government to

report and explain instances of unauthorized sharing of metadata)

(declassified

Sep.

10,

2013)

(available

at

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Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 70 of 131 PageID #: 686
<http://www.clearinghouse.net/chDocs/public/NS-DC-00130001.pdf>) (last accessed, November 24, 2014);
 the Court was “deeply troubled” by previous non-compliance incidents that occurred shortly after the completion of NSA’s “end to end review” of the processes for handling BR [“Business Records”] 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], Docket No. BR 09-13, 2009 WL 9150896, at *2 (FISC Sept. 25, 2009) (declassified Sep. 10, 2013)).
See also In re Production of Tangible Things from [redacted], Docket 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.”).
Judge Bates’s 2011 FISC opinion also referred to a 2009 FISC Opinion that
was subsequently released to the public. That opinion, by FISC Judge Reggie B.
Walton (who also sits as a District Judge in the District for the District of Columbia)
provides further and compelling proof that NSA persistently lies to, conceals from,
and misleads (affirmatively and by silence) the FISC, that NSA cannot be trusted
even to train its own employees adequately, or even be able to determine for itself
the limits on its surveillance activities consistent with statute or FISC Orders. See
In re Production of Tangible Things From [Redacted], Docket No. BR 08-13, 2009
WL 9150913 (FISC March 2, 2009).
Judge Walton’s FISC opinion demonstrates the plethora of statutory
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violations that pervade the NSA’s electronic surveillance programs, including those
at issue herein. For example, Judge Walton’s March 2009 FISC opinion includes
the following passages:
 “[t]he government’s submission suggests that its non-compliance with the Court’s orders resulted from a belief by some personnel within the NSA that some of the Court’s restrictions on access to the BR [Business Records] metadata applied only to “archived data”.… That interpretation strains credulity … such an illogical interpretation of the Court’s Orders renders compliance with the RAS [Reasonable, Articulable Suspicion] requirement merely optional.” Id. at *2;
 “[t]he government compounded its non-compliance with the Court’s orders by repeatedly submitting inaccurate descriptions of the alert list process to the FISC.” Id. at *3;
 “[r]egardless of what factors contributed to making these misrepresentations, the Court finds that the government’s failure to ensure that responsible officials adequately understood the NSA’s alert list process, and to accurately report its implementation to the Court, has prevented, for more than two years, both the government and the FISC from taking steps to remedy daily violations of the minimization procedures set forth in FISC orders and designed to protect [REDACTED] call detail records pertaining to telephone communications of US persons located within the United States who are not the subject of any FBI investigation and whose call detail information could not otherwise have been legally captured in bulk.” Id. at *4;
 “[i]n summary, since January 15, 2009, it has finally come to light that the FISC’s authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses BR metadata. This 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. The minimization procedures proposed by the government in each
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successive application and approved and adopted as binding by the orders of the FISC have been so frequently and systematically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively.” Id. at *5 (emphasis added);
 “[t]he record before the Court strongly suggests that, from the inception of this FISA BR program, the NSA’s data accessing technologies and practices were never adequately designed to comply with the governing minimization procedures.” Id. at *7; and
 “[u]nder these circumstances, no one inside or outside of the NSA can represent with adequate certainty whether the NSA is complying with those procedures. In fact, the government acknowledges that, as of August 2006, “there was no single person who had a complete understanding of the BR FISA system architecture.” Id. at *7 (emphasis added). See also Scott Shane, “Court Upbraided N.S.A. on Its Use of Call-Log Data,” N.Y. Times, September 10, 2013, available at <http://www.nytimes.com/2013/09/11/us/court-upbraided-nsa-onits-use-of-call-log-data.html?pagewanted=all&_r=0> (noting that, according to a senior U.S. intelligence official who briefed reporters just prior to release of the 2009 FISC opinion, “only about 10 percent of 17,800 phone numbers on the alert list in 2009 had met [the RAS] test,” and that “[t]here was nobody at N.S.A. who really had a full understanding of how the program was operating at the time”).
Judge Walton also recognized the FISC’s limitations as a watchdog, pointing
out that “in light of the scale of this bulk collection program, the Court must rely
heavily on the Government to monitor this program to ensure that it continues to be
justified, in the view of those responsible for our national security, and that it is
being implemented in a manner that protects the privacy interests of US persons as
required by applicable minimization procedures.” Id. at *6.
Elaborating, Judge Walton noted that “[t]o approve such a program, the Court
must have every confidence that the government is doing its utmost to ensure that
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those responsible for implementation fully comply with the Court’s orders.” Id. Yet, he concluded, “The Court no longer has such confidence.” Id.
Judge Walton’s lack of confidence was well-founded, and validated by the NSA’s continued non-compliance. As if Judge Bates’s 2011 FISC opinion and Judge Walton’s 2009 FISC opinion (and the three others cited above) were insufficient to demonstrate NSA’s abject inability – whether deliberate or simply through inexcusably irresponsible negligence or cavalier incompetence – to comply, a subsequent August 13, 2009, report the Government submitted to the FISC revealed even more non-compliance issues beyond the myriad enumerated in Judge Walton’s opinion, and which were discovered after issuance of that Opinion. See Report of the United States, In Re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Docket No. BR 09-09, August 13, 2009, (hereinafter “US Report, Docket BR 09-09").
Further violations of the FISC’s Orders included, for example: (a) permitting employees of other government agencies to have external and unsupervised access to the NSA database; (b) failing to audit for compliance issues – at any point over the lifespan of the program – a database used to store information retrieved from NSA databases; and (c) use of software with a feature permitting analysts to pull more information than NSA was authorized to retrieve. Id.
The NSA’s continued non-compliance and recidivism, even through 2011 as
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described in Judge Bates’s FISC opinion, establishes that the FISC’s complaints, and even its attempts at remedial measures, are ineffectual as long as the process remains secret. The public record – and who knows (certainly not defense counsel) what still remains classified – compels but one conclusion: the NSA cannot be trusted to comply with its statutory and constitutional obligations, despite repeated chances, and one of the principal reasons is the absence of any accountability.
The repeated misrepresentations cited by Judge Bates in October 2011 and Judge Walton in 2009 constitute simply a constant and continued feature of NSA practice with respect to FISA surveillance generally. Indeed, they are reminiscent of those divulged in the FISC’s 2002 opinion in In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F.Supp.2d 611, 620-21 (FISC), rev’d on other grounds sub nom., In re Sealed Case, 310 F.3d 717 (FISCR 2002),11 in which the FISC, in its first opinion ever, reported that beginning in March 2000, the Department of Justice had come “forward to confess error in some 75 FISA applications related to major terrorist attacks directed against the United States.”
Those errors related to misstatements and omissions of material facts,” including:
 “75 FISA applications related to major terrorist attacks directed against the United States” contained “misstatements and omissions of material
11 “FISCR” refers to the Foreign Intelligence Court of Review, which is the appellate court for the FISC, and is comprised of three Federal Circuit judges. The FISCR’s 2002 decision in In re Sealed Case marked its first case since enactment of FISA in 1978.
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facts.” In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F.Supp.2d at 620-21;  the government’s failure to apprise the FISC of the existence and/or status of criminal investigations of the target(s) of FISA surveillance. Id.; and  improper contacts between criminal and intelligence investigators with respect to certain FISA applications. Id. According to the FISC, “In March of 2001, the government reported similar misstatements in another series of FISA applications.…” Id. at 621. Those problems, however, were not isolated or resolved by those revelations. Instead, they proved persistent. A report issued March 8, 2006, by the DOJ Inspector General stated that the FBI found apparent violations of its own wiretapping and other intelligence-gathering procedures more than 100 times in the preceding two years, and problems appear to have grown more frequent in some crucial respects. See Report to Congress on Implementation of Section 1001 of the USA PATRIOT Act, March 8, 2006 (hereinafter “DOJ IG Report”) (available at <http://www.usdoj.gov/oig/special/s0603/final.pdf>). The report characterized some violations as “significant,” including wiretaps that were much broader in scope than authorized by a court (“over-collection”), and others that continued for weeks and months longer than authorized (“overruns”). Id.
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at 24-25.12 FISA-related over-collection violations constituted 69% of the reported violations in 2005, an increase from 48% in 2004. See DOJ IG Report, at 29. The total percentage of FISA-related violations rose from 71% to 78% from 2004 to 2005, although the amount of time “over-collection” and “overruns” were permitted to continue before the violations were recognized or corrected decreased from 2004 to 2005. Id. at 25, 29.
The lack of veracity catalogued in the declassified FISC opinions publicly disclosed is inevitable in a system in which there is no opponent to dispute facts or hold opponents accountable for misrepresenting facts, and in which the court lacks investigative authority or any practical, meaningful means of oversight over the collection/storage/interception process. Indeed, an internal May 2012 audit of NSA’s surveillance programs – among the documents recently disclosed by Mr. Snowden – found that NSA violated privacy rules protecting domestic U.S. communications 2,776 times in a one-year period. See SID Oversight & Compliance, Quarterly Report, First Quarter Calendar Year 2012, May 3, 2012, available at <http://www.documentcloud.org/documents/758651-1qcy12violations.html#document/p12>.
12 The DOJ Inspector General’s report was not instigated by the Government itself. Rather, the publication of documents released to the Electronic Privacy Information Center (hereinafter “EPIC”) in Freedom of Information Act litigation prompted the DOJ IG to use those and other documents as a basis for the report. In preparing the report the IG reviewed only those 108 instances in which the FBI itself reported violations to the Intelligence Oversight Board – a fourmember Executive Branch body that ordinarily does not submit its reports to Congress.
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Unfortunately, in a system in which NSA and other intelligence organs are free to misrepresent without challenge or accountability, little has changed except perhaps NSA’s enhanced dexterity in abusing and manipulating the FISC and the FISA system as a whole.
Here, even on just the public record, the FISC opinions establish that during the time frame relevant to this case, when Hasbarajmi, undeniably a “U.S. person,” was located exclusively in the United States, the NSA was regularly and materially violating § 1881a and exceeding the authority granted it by the Foreign Intelligence Surveillance Court.
In addition, the First Amendment limitations on FISA surveillance also merit consideration, particularly since the conduct that led to the FISA surveillance could very well have been limited to protected First Amendment activity. See Humanitarian Law Project v. Holder, 130 S. Ct. 2705, 2710 (2010) (material support does not include independent advocacy, or even mere membership in a proscribed organization).
Judged by its general and wholly unsatisfactory level of non-compliance, the Government’s violation of 50 U.S.C. § 1881a in this case is manifest even from the public record alone. Consideration of such non-compliance would be an appropriate standard in this instance since the general program of surveillance and acquisition (rather than a particularized application specifically to Hasbajrami) is
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what the FISC approved, reviewed, and initially found incompatible with the FAA (and the Fourth Amendment) before ultimately approving modifications made after the interception of Hasbajrami’s communications.
Moreover, even the Foreign Surveillance Intelligence Court concluded that the Government’s capture of domestic U.S. communications – during the time frame of the surveillance and acquisition of Hasbajrami’s communications – was intentional, and therefore beyond the boundaries set by the FISC and the FAA. See In re Foreign Intelligence Surveillance Court (Redacted), supra, 2011 WL 10945618, at *16 (FISC 2011).
In addition, as discussed in Defendant’s Fifth Motion, infra, the DNI has informed a U.S. Senator that in at least one instance the minimization standards employed by NSA were “unreasonable” under the Fourth Amendment, and that 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, dated, July 20, 2012, available at <http://www.wired.com/images_blogs/dangerroom/2012/07/2012-07-20-OLA-Ltrto-Senator-Wyden-ref-Declassification-Request.pdf> (last accessed, November 23, 2014).
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E. Conclusion Accordingly, for all of the reasons discussed above, we respectfully submit that the Government’s electronic surveillance and acquisition of Hasbajrami’s electronic communications were conducted in violation of 50 U.S.C. § 1881a, and must therefore be suppressed along with any and all of fruits derived therefrom.
Third Motion MOTION TO SUPPRESS THE FRUITS OF FAA SURVEILLANCE DUE TO OUTRAGEOUS GOVERNMENT CONDUCT This Court ruled that the Government’s intentional decision to provide Hasbajrami with “FISA notice without FAA notice,” notwithstanding the statutory requirements to the contrary (i.e., 50 U.S.C. § 1881e[a]), intentionally “misled [Hasbajrami] about an important aspect of his case” (Order, dated, October 2, 2014 [ecf #85], at 6). This Court then permitted Hasbajrami to withdraw his guilty plea as a result (id. at 7-8). While the result fashioned by this Court permitted Hasbajrami to be returned procedurally to the position he would have been in if not for the Government’s violation of its notice obligations under the FAA, the defense respectfully submits that additional sanctions are necessary to dissuade the Government from repeating its misconduct in future cases. Specifically, the defense submits that suppression
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here of the fruits of the Government’s warrantless FAA surveillance would satisfy this goal.
In Hampton v. United States, 425 U.S. 484, 495 n.7 (1976), the Supreme Court ruled that Government misconduct could invalidate a conviction on due process grounds if the misconduct reaches a “demonstrable level of outrageousness.” Similarly, the Second Circuit has acknowledged that “Government involvement in a crime may in theory become so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defendant was not entrapped.” United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011).
Because the sanction of dismissal is so severe, the Second Circuit has observed that outrageous Government conduct is “an issue frequently raised that seldom succeeds.” United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997). However, the Court has also made clear that it accepts the legal principle that governmental conduct can be so beyond the pale that it constitutes a Due Process violation requiring sanction. See United States v. Cromitie, 727 F.3d 194, 217-221 (2d Cir. 2013); Al Kassar, 660 F.3d at 121.
Here, while the Government’s misconduct might not warrant the ultimate sanction of dismissal, some meaningful sanction in nevertheless necessary to avoid
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a toothless result that provides Hasbajrami no relief and leaves the Government unaccountable.
As this Court recognized in United States v. Simels, Docket No. 08 Cr. 640 (JG), 2009 WL 1924746, at *13-15 (EDNY July 2, 2009), in the context of the failure to minimize interception of legitimate attorney-client conversations recorded pursuant to a defective Title III electronic eavesdropping warrant, the wholesale failure to minimize required wholesale suppression. Further, as this Court also recognized in Simels, there would be little incentive for the Government to act properly in the future if, in the worst case scenario, after the failure to minimize was discovered, only the improperly intercepted communications – which the Government never had a right to collect – were suppressed. That is, in tactical and strategic terms, a “no lose” proposition for the prospective wrongdoer.
Here, the Government’s misconduct was deliberate, calculating, and designed to mislead (by omitting reference to the FAA in its original FISA notice). Failing to impose some sanction would not just fail to punish misconduct, it would, conversely, reward it.
Hasbajrami has been allowed to withdraw his guilty plea and to therefore challenge the warrantless surveillance that took place in this case. However, by withdrawing his guilty plea Hasbajrami faces the potential for a lengthier sentence now than he had been facing prior to learning that the Government had violated his
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Due Process rights. Specifically the defendant now faces a potential sentence of 60 years imprisonment upon a conviction post-trial, whereas he had previously received a 15-year sentence pursuant to his plea agreement.
As such, should the defendant’s suppression motions fail, the Government will be in a better position vis-à-vis Hasbajrami’s potential sentence then it would have been in had Hasbajrami never learned of the Government’s misconduct in the first place. Although this Court’s order fulfilled the good intention of returning the defendant to the procedural position he was in prior to his guilty plea, this Court’s order also returned the Government to the unscathed – and advantageous – position it was in prior to unlawfully failing to comply with its notice obligations under the FAA.
We respectfully submit that a just result requires a more significant sanction than simply returning the parties to the position they had been in prior to the Government’s unlawful action. While outright dismissal would constitute an extreme sanction, suppression of the fruits of the warrantless surveillance is certainly appropriate and would make clear that when the Government willfully evades its discovery obligations significant consequences will follow.
As such, we respectfully submit that the Government’s intentional decision to mislead the defendant into entering a guilty plea by withholding information critical to his decision-making with respect to that plea, is so outrageous that it requires a
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sanction beyond simply permitting the defendant to withdraw his guilty plea. We respectfully submit that it requires the tempered and appropriate sanction of suppression as well.
Fourth Motion MOTION TO SUPPRESS HASBAJRAMI’S POSTARREST STATEMENTS On September 6, 2011, Defendant Agron Hasbajrami was arrested, handcuffed, and interrogated by the FBI. The interrogation lasted for three days and was not completed until September 8, 2011. During that interrogation, Hasbajrami waived his Miranda rights and made incriminating statements that the Government intends to introduce at trial. See Miranda v. Arizona, 384 U.S. 436, 460-63 (1966). Nonetheless, because Hasbajrami’s arrest and statements were a direct result of the surveillance challenged in Motions One through Four, above, and because Hasbajrami’s arrest and statements would not have been produced through an independent source, to the extent Hasbjarami’s suppression motions were not already clear, we hereby also specifically move to suppress his post-arrest statements as fruit of the poisonous tree. See Murray v. United States, 487 U.S. 533, 536-37 (1988); Silverthorne v. United States, 251 U.S. 385, 392 (1920); Nardone v. United States, 308 U.S. 338, 342 (1939); Wong Sun v. United States, 371 U.S. 471, 488 (1963).
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IV. Discovery Motions

Fifth Motion

MOTION FOR DISCOVERY OF MATERIAL AND

INFORMATION NECESSARY TO DETERMINE

WHETHER THE GOVERNMENT’S SPECIFIC

CONDUCT IN THIS CASE VIOLATED THE

STATUTORY REQUIREMENTS OF FISA, THE

FAA, AND/OR ANY OTHER SURVEILLANCE

STATUTE OR PROGRAM RELIED UPON DURING

THE INVESTIGATION OF THIS CASE, AS WELL

AS TO DETERMINE WHETHER THE

GOVERNMENT’S

SPECIFIC

CONDUCT

VIOLATED HASBAJRAMI’S RIGHT TO DUE

PROCESS UNDER THE FIFTH AMENDMENT

A. Introduction

As previously stated, Hasbajrami is an “aggrieved person” within the plain

meaning of FISA and the FAA. See 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 at 50 U.S.C.§§ 1801-1812.

The statute broadly defines electronic surveillance in 50 U.S.C. § 1801(f).

As also previously discussed, when evidence is “derived” from surveillance

that was “not lawfully authorized or conducted” the Court must suppress the

evidence, see 50 U.S.C. § 1806(g), and derivative evidence includes statements and

tangible evidence that are the fruit of the poisonous tree, see Murray v. United

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States, supra, 487 U.S. 533, 536-37 (1988).
As such, so that the defense may effectively establish whether Hasbajrami has
any further basis to challenge the Government’s surveillance programs in this case,
the defense requests from the Government – including all Federal, State, and local
law enforcement, intelligence, diplomatic, military, and other agencies and
departments, as well as from foreign governments with which the U.S. has acted
jointly or cooperatively in this investigation – the following pursuant to 50 U.S.C. § 1881a, Rule 16 of the Federal Rule of Criminal Procedure, 18 U.S.C. § 3504,13
Brady v. Maryland, 373 U.S. 83 (1963), and its progeny:
1. To the extent there exists any “foreign intelligence information” relevant to this case that has not been previously disclosed to the defense, provide any remaining undisclosed information at this time;
2. Disclose whether the FAA surveillance relied upon against Hasbajrami intentionally targeted the defendant (see 50 U.S.C. §§ 1881a[b][1],
13 18 U.S.C. § 3504 provides, in relevant, part:
(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;
X X X
(b) As used in this section, “unlawful act” means any act the use of any electronic, mechanical, or other device (as defined in section 2501[5] of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.
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1881a[b][2]), and/or whether he was the subject of “reverse targeting” (i.e., targeting someone oversees in order to capture communications with a U.S. person or in order to capture communications involving a U.S. component);
3. Disclose whether the FAA surveillance relied upon against Hasbajrami intentionally targeted “a United States person reasonably believed to be located outside of the United States” (50 U.S.C. § 1881a[b][3]);
4. Disclose whether the FAA surveillance relied upon against Hasbajrami “intentionally acquire[d] any communication as to which the sender and all intended recipients [were] known at the time of the acquisition to be located in the United States” (50 U.S.C. § 1881a[b][4]);
5. Disclose whether the Government has any reason to believe that the FAA surveillance relied upon against Hasbajrami were not “conducted in a manner consistent with the fourth amendment to the Constitution of the United States” (50 U.S.C. § 1881a[b][5]);
6. Provide copies of all FISA warrants and FISA warrant applications not previously disclosed to the defense in this case;
7. Provide material documenting what minimization and targeting procedures and interpretive instructions were in effect at the time any foreign intelligence evidence or information was gathered, and how those procedures were implemented (i.e., who was being targeted, what was the basis for that targeting, and what minimization procedures were used during that targeting);
8. Provide what information, if anything, was told to was the Foreign Intelligence Surveillance Court (FISC) about FAA surveillance relative to Hasbajrami (or other persons relevant to this case) in approving any FISA warrants in this case;
9. Provide notice of whether any other surveillance programs were relied upon during the investigation of this case and aggrieved Hasbajrami; and
10.Provide notice whether any “programmatic analytics” were utilized, or whether cross-referencing or searching or analysis occurred with respect to the information derived from FAA and FISA surveillance and
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interception, and/or any other surveillance, interception, collection, and/or retention program. It is requested that compliance with each of the above discovery demands be made by providing the requested information directly to cleared defense counsel. However, should the Government believe that cleared defense counsel are prohibited from receiving any or all of the above information, then it is requested that, at a minimum, the information be provided to this Court for in camera review (pursuant to the provisions of the Classified Information Procedures Act and any appropriate protective order), and that after such review this Court disclose to the defense any such information that this Court determines the defense is entitled. B. Disclosure will level the uneven vertical playing field created
by ex parte FISA and FAA Proceedings As discussed in Defendant’s Second Motion, supra, litigation of FISAauthorized electronic surveillance generally, and FAA-authorized electronic surveillance in particular in this case, represents a radical departure from the traditional and essential requirement of the adversary process. The entirely onesided nature of FISA litigation, can be evened however if this Court determines that defense input will assist this Court’s review of the FISA and FAA-related information. See 50 U.S.C. § 1806(f) (authorizing courts to “disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance …
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where such disclosure is necessary to make an accurate determination of the legality of the surveillance”).
As the Supreme Court recognized in Alderman v. United States, 394 U.S. 65, 184 (1969) – a case involving electronic surveillance – “[i]n our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.” See also Franks v. Delaware, 438 U.S. 154, 169 (1978) (permitting adversarial proceeding on showing of intentional falsehood in warrant affidavit because the magistrate who approves a warrant ex parte “has no acquaintance with the information that may contradict the good faith and reasonable basis of the affiant’s allegations”).14
Ex parte proceedings impair the integrity of the adversary process and the criminal justice system. As the Supreme Court has recognized, “[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights…. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.”
14 As explained by the court in United States v. Marzook, a case also involving terrorismrelated charges, and in the context of deciding whether to close a suppression hearing to the public because of the potential revelation of classified information thereat:
It is a matter of conjecture whether the court performs any real judicial function when it reviews classified documents in camera. Without the illumination provided by adversarial challenge and with no expertness in the field of national security, the court has no basis on which to test the accuracy of the government’s claims. United States v. Marzook, 412 F. Supp.2d 913, 921 (N.D.Ill. 2006), quoting, Stein v. Department of Justice & Federal Bureau of Investigation, 662 F.2d 1245, 1259 (7th Cir. 1981).
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United States v. James Daniel Good Real Property, et. al., 510 U.S. 43, at 55 (1993), quoting, Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-72 (1951) (Frankfurter, J., concurring); see also United States v. Madori, 419 F.3d 159, 171 (2d Cir. 2005), citing, United States v. Arroyo-Angulo, 580 F.2d 1137, 1145 (2d Cir. 1978) (closed proceedings “are fraught with the potential of abuse and, absent compelling necessity, must be avoided”) (other citations omitted).15
In United States v. Abuhamra, 389 F.3d 309 (2d Cir. 2004), the Second Circuit reemphasized the importance of open, adversary proceedings, declaring that “[p]articularly where liberty is at stake, due process demands that the individual and the government each be afforded the opportunity not only to advance their respective positions but to correct or contradict arguments or evidence offered by the other.” Abuhamra, 389 F.3d at 322-23, citing, McGrath, 341 U.S. at 171 n.17 (Frankfurter, J., concurring) (which noted that “the duty lying upon every one who decides anything to act in good faith and fairly listen to both sides … always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view”) (citation and internal quotation marks omitted).16
15 Conversely, as Judge Learned Hand stated in United States v. Coplon, 185 F.2d 629, 638 (2d Cir. 1950), “Few weapons in the arsenal of freedom are more useful than the power to compel a government to disclose the evidence on which is seeks to forfeit the liberty of its citizens.” 16 As the Ninth Circuit observed in the closely analogous context of a secret evidence case, “ ‘One would be hard pressed to design a procedure more likely to result in erroneous
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Similarly, in the Fourth Amendment context, including in relationship to
electronic surveillance, the Supreme Court has twice rejected the use of ex parte
proceedings on grounds that apply equally here. In Alderman v. United States, the
Court addressed the procedures to be followed in determining whether government
eavesdropping in violation of the Fourth Amendment contributed to the prosecution
case against the defendants.
The Court rejected the Government’s suggestion that the District Court make
that determination in camera and/or ex parte, and observed:
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.
Id. at 182.
In ordering disclosure of improperly recorded conversations, the Court
declared:
Adversary proceedings will not magically eliminate all error, but they will substantially reduce its incidence by guarding against the possibility that the trial judge,
deprivations.’…. [T]he very foundation of the adversary process assumes that use of undisclosed information will violate due process because of the risk of error.” American-Arab AntiDiscrimination Committee v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995) (quoting District Court); see, e.g., id. at 1070 (noting “enormous risk of error” in use of secret evidence); Kiareldeen v. Reno, 71 F.Supp.2d 402, 412-14 (D.N.J. 1999) (same).
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through lack of time or unfamiliarity with the information contained in and suggested by the materials, will be unable to provide the scrutiny that the Fourth Amendment exclusionary rule demands.
Id. at 184.
Likewise, the Court held in Franks v. Delaware, 438 U.S. 154 (1978), that a
defendant, upon a preliminary showing of an intentional or reckless material
falsehood in an affidavit underlying a search warrant, must be permitted to attack
the veracity of that affidavit. The Court rested its decision in significant part on the
inherent inadequacies of the ex parte nature of the procedure for issuing a search
warrant, and the contrasting enhanced value of adversarial proceedings:
the hearing before the magistrate [when the warrant is issued] not always will suffice to discourage lawless or reckless misconduct. The pre-search proceeding is necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove evidence. The usual reliance of our legal system on adversary proceedings itself should be an indication that an ex parte inquiry is likely to be less vigorous. The magistrate has no acquaintance with the information that may contradict the good faith and reasonable basis of the affiant’s allegations. The presearch proceeding will frequently be marked by haste, because of the understandable desire to act before the evidence disappears; this urgency will not always permit the magistrate to make an independent examination of the affiant or other witnesses.
Franks, 438 U.S. at 169.
The same considerations that the Supreme Court found compelling in
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Alderman and Franks militate against ex parte procedures in the FISA context.
After all, denying an adversary access to the facts constitutes an advantage as
powerful and insurmountable as exists in litigation.
Conversely, the lack of access to specific facts categorically impairs the
ability of a defendant (or his counsel, even cleared counsel) to establish non-
compliance with the strictures of 50 U.S.C. § 1881a. For example, the factual
background of this pleading can only be based on assumptions from the public
record, including a heavily redacted 2011 FISC opinion and testimony before the
Privacy and Civil Liberties Oversight Board (hereinafter “PCLOB”) at a March 19,
2014, public hearing.17
However, courts have recognized that when defense counsel is compelled to
argue in a vacuum devoid of a factual context to which only the Government and
17 The PCLOB is an independent, bipartisan agency within the executive branch whose members are appointed by the President and confirmed by the Senate. 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, 2 (Jan. 23, 2014). The PCLOB conducted a public hearing March 19, 2014, at which the General Counsels of the Federal Bureau of Investigation, the National Security Agency, and the Director of National Intelligence, as well as the Deputy Assistant Attorney General for the Department of Justice’s National Security Division, provided testimony about programs operated under § 1881a. See Public Hearing Regarding the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act Before The PCLOB (2014) (transcript available at <http://www.pclob.gov/Library/Meetings-Events/2014-March-19-Public-Hearing/19-March2014_Public_Hearing_Transcript.pdf>).
Nonetheless, even the PCLOB information is of limited value because, inter alia: the witnesses did not purport to provide information regarding the protocols and practices in effect at the time of the surveillance in this case, which was probably from 2010-2011; the information provided was limited to declassified material; and the testimony was not under oath, not from individuals with first hand knowledge, and not subject to more than very limited questioning.
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the court have access, a defendant’s burden must be alleviated. As the Fourth Circuit has recognized in a closely analogous context – discerning what exculpatory evidence a witness solely within the Government’s control, and to whom the defense is denied access, can provide – when a defendant is deprived of such access, the burden to be specific with respect to the material in question must be relaxed accordingly. See United States v. Moussaoui, 382 F.3d 453, 472 (4th Cir. 2004), citing, United States v. Valenzuela-Bernal, 458 U.S. 858, 870-71, 873 (1982).
Here, that adjustment applies, as Hasbajrami and his cleared counsel are compelled to operate in a system in which the admissibility of evidence at the core of the Government’s case – in this case, in effect the entirety of the Government’s case – is decided on the basis of a secret body of facts and law to which even cleared defense counsel is denied access.
Also, with respect to justification for disclosure of FISA and FAA materials to defense counsel in this case, the NSA’s non-compliance clearly rises to level described in United States v. Duggan, 743 F.2d 59, 79 (2d Cir. 1984), in which the Second Circuit, relying on FISA’s legislative history, explained that the need for disclosure:
might arise if the judge’s initial review revealed potential irregularities such as possible misrepresentations 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
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contained in the order[.] Duggan, 743 F.2d at 79; see also United States v. Belfield, 692 F.2d 141, 147 (D.C.Cir. 1982) (quoting S. Rep. No. 701, 95th Cong., 2d Sess. 64 [1979]); United States v. Ott, 827 F.2d 473, 476 (9th Cir. 1987) (same).
Here, as previously discussed, the FISC opinions have provided that very catalog of “irregularities.” Accordingly, it is respectfully submitted that the Court should order disclosure to cleared defense counsel the FISA and FAA applications and supporting materials, which will enable the Court to render its decisions with full participation by defense counsel consistent with the principles of the adversary system.18
C. The details of the FAA electronic surveillance should be produced because motions based on the FAA’s unconstitutionality and application against Hasbajrami require full factual development
As discussed in Defendant’s June 30, 2014 motion for discovery (ecf #76), which had been raised at the time in the context of Hasbajrami’s since-realized desire to withdraw his guilty plea, the Government’s notice that it intended to use the products of 50 U.S.C. § 1881a surveillance in proceedings in this case was merely the starting point for consideration of the appropriate remedy that should be ordered after the means, methods, and extent of the Government’s surveillance of

18 See Hon. James G. Carr, Op-Ed, “A Better Secret Court,” N.Y. Times, July 23, 2013,

available

at

<http://www.nytimes.com/2013/07/23/opinion/a-better-secret-

court.html?ref=opinion&_r=1&>.

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Hasbajrami are fully developed in this case.
The present case involves the surveillance of an individual “located in the
United States” – Hasbajrami – notwithstanding the limitation against surveilling
such an individual under 50 U.S.C. § 1881a(b):
An acquisition authorized under subsection (a) –
(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;
* * *
(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.
Discovery regarding the targeting, scope, manner, authorizations, limitations,
and mitigation of the intrusions (or lack thereof) are needed to effectively complete
the arguments regarding the legality and derivative use of the surveillance in this
case. As such, we respectfully submit that the defense should have full access to the
relevant facts to inform – and if necessary, supplement – legal arguments
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challenging the fruits of the surveillance undertaken here. The discovery order should also include all targeting and minimization
procedures, including interpretive instructions, that were in effect at all times the Government conducted surveillance of Hasbajrami. The disclosures by Edward Snowden include purported FAA targeting and minimization procedures under FISA and the FAA See 50 U.S.C. §§ 1801(h)(1), 1881a(d), 1881a(e); see also Glenn Greenwald & James Ball, The top secret rules that allow NSA to use US data without a warrant, The Guardian, June 20, 2013.
Since those initial revelations, some of the disclosed rules have been declassified, while others remain classified, and still others are likely classified but not publicly disclosed or released. See Press Release, DNI Declassifies Intelligence Community Documents Regarding Collection Under Section 702 of the Foreign Intelligence Surveillance Act (FISA) (Aug. 21, 2013).
As such, this Court’s order should require specification of which procedures were in effect on all dates that Hasbajrami was subject to surveillance because the Director of National Intelligence (“DNI”) has acknowledged that rules during 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
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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, dated, July 20, 2012, available at <http://www.wired.com/images_blogs/dangerroom/2012/07/2012-0720-OLA-Ltr-to-Senator-Wyden-ref-Declassification-Request.pdf> (last accessed, November 23, 2014); see also [Case Name Redacted], supra, 2011 WL 10945618, at *16, *28 (FISC Oct. 3, 2011) (the case referenced by the DNI in its July 20, 2012 letter to Senator Wyden); Charlie Savage, N.S.A. Said to Search Content of Messages To and From U.S., N.Y. Times, Aug. 8, 2013. The Government should be compelled to state whether the DNI’s response to Senator Wyden relates in any way to the investigation of Hasbajrami and/or this case. Further, because recent declassified FISC decisions have found that historical government conduct from the outset of the FAA was unlawful, this 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 20102011, or earlier if any of the FAA surveillance referenced in the Government’s February 24, 2014 notice (ecf #65) was surveillance that occurred prior to the offense conduct alleged in Hasbajrami’s Indictment.
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Aside from facial and as-applied constitutional challenges to the statute, as well as the purely statutory claims, 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), 1806(g).
As set forth in Defendant’s Second Motion, supra, recently declassified FISC opinions reveal that the relevant agencies have a long and persistent history of violating the limitations of FISC orders. Without discovery regarding all of the surrounding factual circumstances of the surveillance, the defense here cannot effectively complete our arguments for suppression based on lack of compliance with the required authorizations.
D. 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
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approval. See 50 U.S.C. § 1806(f). To be certain, information is unlawfully acquired if the statute is unlawfully
applied or if the statute itself is unconstitutional. See 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 the limitations on the scope of surveillance would therefore support Hasbajrami’s motions to suppress 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 suppression motions are denied, this Court must review the information to determine whether material considered in relation to 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.
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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 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 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
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States v. Ott, 827 F.2d 473, 476 (9th Cir. 1987). These factors must be assessed in light of the Supreme Court’s recognition
that valuable defense input is lost when review of the legality of electronic surveillance is conducted ex parte. See Alderman v. United States, supra, 394 U.S. 165, 184 (1969); see also United States v. Abu-Jihaad, supra, 630 F.3d 102, 141 (2d Cir. 2010) (“Although applicable in criminal cases, the state-secrets privilege must – under some circumstances – ‘give way … to a criminal defendant’s right to present a meaningful defense.’ ”), quoting, United States v. Stewart, 590 F.3d 93, 131 (2d Cir. 2009).
We note that if the Government asserts the “state-secrets” privilege as a basis for its continued refusal to disclose the material under dispute, the Second Circuit has held that the test announced in Roviaro v. United States, 353 U.S. 53 (1957), should be applied. See Abu-Jihaad, 630 F.3d at 141. As the Second Circuit explained, the first question is “whether the material in dispute is discoverable, and if so, whether the state-secrets privilege applies,” and the second question is, if the privilege applies, “whether the information is helpful or material to the defense, i.e., useful to counter the government’s case or to bolster a defense.” Id., quoting Stewart, 590 F.3d at 131 (citing Roviaro).
The Second Circuit also observed, however, “Information that is helpful or material to the defense ‘need not rise to the level that would trigger the
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Government’s obligation under Brady v. Maryland … to disclose exculpatory information.’ ” Abu-Jihaad, 630 F.3d at 141 n.33, quoting, United States v. Aref, supra, 533 F.3d 72, 80 (2d Cir. 2008), and citing, United States v. Mejia, 448 F.3d 436, 457 (D.C.Cir. 2006) (observing that, for purposes of the analogous provisions of the Classified Information Procedures Act, “information can be helpful without being ‘favorable’ in the Brady sense”).
E. 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 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.
1. The need for secrecy has been reduced by the Edward Snowden disclosures
The Government has either publicly acknowledged or failed to deny the broad range of electronic surveillance now attributed to it. Prior to Hasbajrami’s guilty plea, 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, or to the extent they
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remain, cleared defense counsel should be allowed look under the veil. The gathering of all of Hasbajrami’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 Hasbajrami’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.
2. The benefits of adversarial proceedings are 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 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. See The President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World, Recommendation 28 (Dec. 12, 2013) (recommending, inter alia, “Congress should create the position of Public Interest
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Advocate to represent privacy and civil liberties interests before the Foreign
Intelligence Surveillance Court,” and “the transparency of the Foreign Intelligence
Surveillance Court’s decisions should be increased, including by instituting
declassification reviews that comply with existing standards”) (available at <http://
www.whitehouse.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf>)(last
accessed, November 24, 2014).
The rationale for an advocate before the Foreign Intelligence Surveillance
Court 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.
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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) (citation omitted). While recognizing that secrecy is sometimes permissible, this Court acts in the best traditions of our justice system by recognizing the benefits of full adversary participation where, as here, the circumstances call for careful scrutiny of complex legal issues based on voluminous material. 3. 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 Hasbajrami. These concerns were readily evident from the colloquies between Respondent’s lawyer and 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). Similarly, Justice Ginsburg noted that certain checks required for traditional FISA
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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 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 interests of privacy and national security are also the subject
of a current judicial debate regarding whether the defense perspective is essential to
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a fair disposition. Compare Klayman v. Obama, Docket No. 13-0851, 2013 WL 6571596 (D.D.C. Dec. 16, 2013) (the metadata collection program likely unconstitutional) with ACLU v. Clapper, Docket No. 13 Civ. 3994, 2013 WL 6819708 (SDNY Dec. 27, 2013) (upholding the metadata collection program).
Similarly, 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. 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 under Murray v. United States, supra, 487 U.S. 533, 542-43 (1988), and to held determine whether the use of any such derivative evidence in subsequent FISA applications requires suppression as the “fruit of the poisonous
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tree” under Silverthorne v. United States, supra, 251 U.S. 385, 392 (1920), Nardone v. United States, supra, 308 U.S. 338, 342 (1939), and/or Wong Sun v. United States, supra, 371 U.S. 471, 488 (1963).
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, supra, 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 and factual issues under the FAA receive little guidance from the Circuit Courts or other Districts about how to evaluate the constitutionality of orders granting applications for FAA surveillance or actual execution of the surveillance. Indeed, this is the first case in this Circuit to address this issue.
As such, defense advocacy is reasonable and necessary given the serious and difficult questions this case presents, as well as the importance and effect any precedent will create. In addition, the Government’s previous non-disclosure further demonstrates the need for defense counsel participation in the process of adjudicating all aspects of Hasbajrami’s motions.
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4. 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 defense participation: “indications” and “possible”. Here, of course, this Court has already concluded that “[w]hen the government provided FISA notice without FAA notice, Hasbajrami was misled about an important aspect of his case,” misrepresentation which resulted from “a DOJ policy that transcended this case” (Order, dated, October 2, 2014, at 6 [ecf #85]).
As a result, the intentionally misleading FISA notice that the Government originally filed in this case, which misled Hasbajrami but also presented a fraud upon defense counsel and this Court, provides a legitimate basis to view any ex parte Government submission with great suspicion in this case; such, we submit, supports the need to permit adversarial testing in all aspects of the defendant’s suppression motions.
We respectfully submit that Hasbajrami, or, at a minimum this Court, is entitled to know, for example, if the Government misled the FISC when it sought authorization to conduct FAA surveillance, assuming the Government did in fact
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request such authorization, as well as whether the Government misled the FISC when it subsequently applied for FISA warrants in this case. Failure to provide such notice to the FISC would be relevant to the Constitutional issues presented in this case.
It is worth noting that it cannot be presumed that the Government understood and/or followed its obligations when interacting with the FISC in association with its investigation of Hasbajrami and others related to this case. On August 21, 2013, the Government declassified the opinion of District Judge John Bates holding that aspects of the surveillance authorized by 50 U.S.C. § 1881a (i.e., Section 702 of the FAA) was unconstitutional. See [Case Name Redacted], supra, No. [docket number redacted], 2011 WL 10945618 (FISC Oct. 3, 2011). While ultimately continuing surveillance authorizations after insisting on modification of the minimization protocols, 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 Foreign Intelligence Surveillance Court 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
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targeted with FAA surveillance of their Internet transactions are actually located overseas. Id. at *2.
In other words, at the very same time it was conducting electronic surveillance and interception of Hasbajrami’s communications, 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.
The Government’s applications for authorization to conduct FAA surveillance in that instance therefore 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 non-foreign intelligence information, calling into question compliance with the minimization standards” contained in past orders. United States v. Belfield, 692 F.2d 141, 147 (D.C.Cir. 1982). These problems also appear to
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coincide temporally with the period of FAA surveillance related to Hasbajrami’s prosecution.
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. El-Mezain, 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).
Notably, 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 agencies 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
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originated.” Id. Interviews with law enforcement personnel showed the practice, denominated “parallel construction,” 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.
Given the record of affirmative misrepresentations and omissions made by the Government in its applications for 50 U.S.C. § 1881a authorizations (as well as its misrepresentations and omissions in applications for orders authorizing other forms of FISA surveillance), discovery is warranted so that the defense and this Court may effectively assess whether the fruits of those authorizations must now be suppressed.
Indeed, because numerous FISC opinions – including opinions authorizing FAA surveillance – remain classified, the defense has no way to know the extent of the Government’s misrepresentations to the FISC and noncompliance with its orders. As such, for all of these reasons, we respectfully submit that disclosure under 50 U.S.C. § 1806(f) is necessary to permit the adversarial testing that accurate review of these issues requires.
F. This Court should grant discovery because litigation regarding the lawfulness of Government surveillance accomplishes important societal purposes of transparency and deterrence
Meaningful review regarding the Government’s compliance, or lack of
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compliance, with the FAA and thereafter with FISA, 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.
50 U.S.C. § 1881a specifically protects not merely United States citizens, but anyone located within the United States at the time of the surveillance – such should be particularly true here where the defendant was a legal immigrant living in the United States on a permanent visa, not someone who entered this country illegally or with an unlawful purpose in mind.19 As such, the public interest strongly favors discovery and defense participation in all proceedings.
G. This Court should also require the Government to provide the defense with notice of any other surveillance statutes and/or programs it used and/or relied upon during the investigation of this case to which Hasbajrami was aggrieved
Finally, given the number of surveillance programs that the Government has concealed for years, it is possible that the Government relied on other, still-secret surveillance techniques in its investigations of Hasbajrami. Discovery thus far suggests that the Government tracked Hasbajrami’s location, financial activities,
19 There is no dispute that Hasbajrami immigrated to the United States to pursue the American dream, and that he was only first exposed to radical Islam after he had moved to Brooklyn.
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and communications. However, the Government belated FAA notice also indicates that the Government has been less than candid in complying with its notice obligations.
Thus, to ensure that Hasbajrami’s right to Due Process is not still being infringed upon in manners simply not yet revealed, Hasbajrami’s motion for discovery, including notice of undisclosed surveillance, is not limited to the surveillance programs described above nor even those methods publicly acknowledged to date. See, e.g., Charlie Savage & Mark Mazzetti, C.I.A. Collects Global Data on Transfers of Money, N.Y. Times, Nov. 13, 2013, http://nyti.ms/1lbhseL (“Several officials also said more than one other bulk collection program has yet to come to light.”). Indeed, with respect to monitoring financial transactions, during Hasbajrami’s first encounter with FBI agents he was asked by them (prior to any relevant discussion) whether he had ever sent any money overseas.
As such, Hasbajrami’s request for notice encompasses any surveillance program or technique that the Government relied upon to monitor Hasbajrami’s communications or activities as part of its investigation related to this case. See 18 U.S.C. § 3504; see also 50 U.S.C. § 1845; Due Process Clause, Fifth Amend., U.S. Const.
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H. Conclusion
Accordingly, for all of the reasons discussed above, the defense respectfully
requests that the Government be directed to disclose the following, either directly to
counsel, or, at a minimum, to this Court for in camera review:
1. Any “foreign intelligence information” relevant to this case that has not been previously disclosed to the defense;
2. Whether the FAA surveillance relied upon against Hasbajrami intentionally targeted the defendant (see 50 U.S.C. §§ 1881a[b][1], 1881a[b][2]), and/or engaged in “reverse targeting” of him;
3. Whether the FAA surveillance relied upon against Hasbajrami intentionally targeted “a United States person reasonably believed to be located outside of the United States” (50 U.S.C. § 1881a[b][3]);
4. Whether the FAA surveillance relied upon against Hasbajrami “intentionally acquire[d] any communication as to which the sender and all intended recipients [were] known at the time of the acquisition to be located in the United States” (50 U.S.C. § 1881a[b][4]);
5. Whether the Government has any reason to believe that the FAA surveillance relied upon against Hasbajrami were not “conducted in a manner consistent with the fourth amendment to the Constitution of the United States” (50 U.S.C. § 1881a[b][5]);
6. Copies of all FISA warrants and FISA warrant applications not previously disclosed to the defense in this case;
7. Material documenting what minimization and targeting procedures and interpretive instructions were in effect at the time any foreign intelligence evidence or information was gathered, and how those procedures were implemented (i.e., who was being targeted, what was the basis for that targeting, and what minimization procedures were used during that targeting);
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8. What information, if anything, was told to was the Foreign Intelligence Surveillance Court (FISC) about FAA surveillance relative to Hasbajrami (or other persons relevant to this case) in approving any FISA warrants in this case;
9. Notice of whether any other surveillance programs were utilized and/or relied upon during the investigation of this case and aggrieved Hasbajrami; and
10.Notice of whether any “programmatic analytics” were utilized, or whether cross-referencing or searching or analysis occurred with respect to the information derived from FAA and FISA surveillance and interception, and/or any other surveillance, interception, collection, and/or retention program.
Sixth Motion
MOTION FOR AN ORDER DIRECTING THE GOVERNMENT TO IDENTIFY ANY AND ALL WITNESSES THAT IT LEARNED OF DURING, OR AS A RESULT OF, THE INTERROGATION OF THE DEFENDANT Pursuant to Rule 12(b)(4) and Rule 16 of the Federal Rules of Criminal
Procedure, the defendant respectfully requests that this Court issue an order
directing the Government to specify in detail any witness about whom they became
aware of through, or as a result of, interrogation of Agron Hasbajrami described
Defendant’s Fourth Motion, supra. This information is necessary to enable the
defense to move for exclusion of the testimony of such witness(es), should the
Government elect to call such witness(es) at trial.
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Seventh Motion MOTION FOR AN ORDER DIRECTING THE GOVERNMENT TO SPECIFY ALL EVIDENCE THAT IS SUBJECT TO SUPPRESSION AND/OR PRECLUSION AS A RESULT OF THE INTERROGATION OF THE DEFENDANT Pursuant to Rule 12(b)(4) and Rule 16 of the Federal Rules of Criminal Procedure, the defendant respectfully requests that the Court issue an order directing the Government to specify in detail any evidence that it intends to offer at trial, which the Government became aware of either directly or indirectly through the interrogation of Hasbajrami described in Defendant’s Fourth Motion, supra. This information is necessary to enable the defense to move for exclusion of the testimony of such witness(es), should the Government elect to call those witness(es) at trial.
Eighth Motion MOTION FOR AN ORDER DIRECTING THE GOVERNMENT TO PROVIDE IMMEDIATE NOTICE OF EXPERT WITNESSES IT INTENDS TO RELY UPON AT TRIAL Pursuant to Rule 12(b)(4) and Rule 16 of the Federal Rules of Criminal Procedure, the defendant respectfully requests that this Court issue an order directing the Government to provide immediate notice of any expert witnesses it intends to rely upon at trial. This information is necessary to enable the defense to
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move to limit or exclude the testimony of such witness(es), should the Government elect to call such witness(es) at trial.
Ninth Motion MOTION FOR IMMEDIATE PRODUCTION OF BRADY/GIGLIO MATERIAL As a result of our review of information disclosed in this case, as well as our knowledge of relevant and related information disclosed in other cases to which the undersigned has been involved, defense counsel have a good faith basis to believe that information favorable to the defense exists in this case that will require extensive litigation in order to determine what aspects of such evidence may be presented to the jury. As such, due to this Court’s stated desire to avoid unnecessary delay, we respectfully submit that all information that is discoverable to the defense under either Brady v. Maryland, 373 U.S. 83, 104 (1963), or United States v. Giglio, 405 U.S. 150 (1972), should be immediately disclosed to the defense. See also Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Mahaffy, 693 F.3d 113, 130 (2d Cir. 2012). As such, beyond evidence favorable to the defense under Brady, we also specifically request that the Government produce, for immediate review, all Giglio material, which would include any information that would substantially impeach the credibility of an important Government witness, including but not limited to, expert
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witnesses that the Government intends to rely upon at trial. This request, more fully
addressed in the legal discussion below, includes, with regard to such witnesses:
1. Prior inconsistent statements, including, but not limited to, inconsistent attorney proffers (see United States v. Triumph Capital Group, 544 F.3d 149 [2d Cir. 2008]);
2. Statements or reports reflecting witness statement variations;
3. Benefits provided to witnesses including:
a. Dropped or reduced charges b. Immunity c. Expectations of downward departures or motions for reduction of
sentence d. Assistance in a state or local criminal proceeding e. Considerations regarding forfeiture of assets f. Stays of deportation or other immigration status considerations g. S-Visas h. Monetary benefits i. Non-prosecution agreements j. Letters to other law enforcement officials (e.g., state prosecutors,
parole boards) setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf k. Relocation assistance l. Consideration or benefits to culpable or at risk third-parties
4. Other known conditions that could affect the witness’s bias such as:
a. Animosity toward defendant b. Animosity toward a group of which the defendant is a member or
with which the defendant is affiliated c. Relationship with victim d. Known but uncharged criminal conduct (that may provide an
incentive to curry favor with a prosecutor)
5. Prior acts under Fed.R.Evid. 608;
6. Prior convictions under Fed.R.Evid. 609;
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7. Known substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events; and
8. With particular respect to expert witnesses, any other information that could bare upon their bias, including, but not limited to, any information that bares upon the independence of their testimony and whether they had ever, to the Government’s knowledge, testified in a manner that was intended to intentionally mislead the Court, the jury, and/or defense counsel.
The law has long been clear that Brady v. Maryland, supra, 373 U.S. 83, 104 (1963), requires the Government to disclose evidence “favorable” to the defense as to guilt or punishment. To be favorable, evidence need not be determinative of guilt or innocence, but must “tend to exculpate” the defendant. See Brady, 373 U.S. at 88.
A defendant is also entitled to disclosure of “evidence affecting [the] credibility” of a witness whose reliability may be dispositive of guilt or innocence. United States v. Giglio, supra, 405 U.S. 150, 154 (1972), quoting, Napue v. Illinois, 360 U.S. 264, 269 (1959). As stated by the Supreme Court in United States v. Bagley, 473 U.S. 667 (1985), “[i]mpeachment evidence ... as well as exculpatory evidence, falls within the Brady rule.” Id. at 674, citing Giglio, 405 U.S. at 150. This is self-evident, since “[t]he jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.” United States v. Seijo, 514 F.2d 1357, 1364 (2d Cir. 1975), quoting, Napue, 360 U.S. at 269.
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It has long been the rule that Brady material, including material to be used to
impeach critical Government witnesses, must be turned over sufficiently in advance
of trial to allow “for full exploration and exploitation by the defense.” Grant v.
Alldredge, 498 F.2d 376, 382 (2d Cir. 1974); see also United States v. Baum, 482
F.2d 1325, 1331 (2d Cir. 1973) (“Ordinarily it is disclosure rather than suppression,
that promotes the proper administration of criminal justice.”). Indeed, “There is no
doubt that the timing of disclosure under Brady and Giglio may be of critical
importance in many criminal cases.” United States v. Coppa, 267 F.3d 132, 138 (2d
Cir. 2001). As such, disclosure is required “in time for its effective use at trial or at
a plea proceeding” and “the time required for the effective use of a particular item
of evidence … depend[s] on the materiality of that evidence,” which, of course,
only the prosecutor can determine prior to disclosure. Coppa, 267 F.3d at 146.
The United States Attorney Manual recommends broader discovery than even
that specifically prescribed by Brady, Giglio, or Kyles:
Department policy recognizes that a fair trial will often include examination of relevant exculpatory or impeachment information that is significantly probative of the issues before the court but that may not, on its own, result in an acquittal or, as is often colloquially expressed, make the difference between guilt and innocence. As a result, this policy requires disclosure by prosecutors of information beyond that which is “material” to guilt as articulated in Kyles v. Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-81 (1999).
United States Attorney’s Manual (“USAM”) § 9-5.001(C).
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Similarly, in reviewing what material should be provided in this case, we
suggest that the following excerpts of Sections 9-5.001 and 9-5.100 of the United
States Attorney Manual should also be considered:
1. Additional exculpatory information that must be disclosed. A prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant or that established a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.
2. Additional impeachment information that must be disclosed. A prosecutor must disclose information that either casts a substantial doubt upon the accuracy of any evidence – including but not limited to witness testimony – the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence. This information must be disclosed regardless of whether it is likely to make the difference between conviction and acquittal of the defendant for a charged crime.
3. Information. Unlike the requirements of Brady and its progeny, which focus on evidence, the disclosure requirement of this section applies to information regardless of whether the information subject to disclosure would itself constitute admissible evidence.
4. Cumulative impact of items of information. While items of information viewed in isolation may not reasonably be seen as meeting the standards outlined in paragraphs 1 and 2 above, several items
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together can have such an effect. If this is the case, all such items must be disclosed.
USAM § 9-5.001(C).
Preface: The following policy is established for … “investigative agencies”…. It addresses their disclosure of potential impeachment information to the United States Attorneys’ Offices and Department of Justice litigating sections with authority to prosecute criminal cases…. The purposes of this policy are to ensure that prosecutors receive sufficient information to meet their obligations under Giglio v. United States, 405 U.S. 150 (1972), and to ensure that trials are fair….
The exact parameters of potential impeachment information are not easily determined. Potential impeachment information, however, has been generally defined as impeaching information which is material to the defense. It also includes information that either casts a substantial doubt upon the accuracy of any evidence – including witness testimony – the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence. This information may include but is not strictly limited to: (a) specific instances of conduct of a witness for the purpose of attacking the witness’ credibility or character for truthfulness; (b) evidence in the form of opinion or reputation as to a witness’ character for truthfulness; (c) prior inconsistent statements; and (d) information that may be used to suggest that a witness is biased.
USAM § 9-5.100.
In United States v. Crozzoli, 698 F.Supp. 430, 436-37 (EDNY 1988)
(Glasser, J.), the court reasoned:
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[W]e reject the blanket assertion that Brady imposes no pretrial obligation on ... the Government .... We perceive the due process implications of Brady as obligating the Government to disclose exculpatory information as soon as the character of such information is recognized. Crozzoli, 698 F.Supp. at 436, quoting, United States v. Mitchell, 372 F.Supp. 1239, 1257 (SDNY 1973) (emphasis in original). As another District Court judge recognized, “[I]f exculpatory evidence is produced for the first time at trial, the defendant may not have an adequate opportunity to effectively utilize the material, particularly if it points to the existence of other evidence helpful to the defendant.” United States v. Goldman, 439 F.Supp. 337, 349 (SDNY 1977) (Duffy, J.); see also United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976) (disclosure “must be made at such time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case”); United States v. Deutsch, 373 F.Supp. 289, 290 (SDNY 1983) (“[i]t should be obvious to anyone involved with criminal trials that exculpatory information may come too late if it is given only at trial”). We acknowledge that in Coppa, 267 F.3d at 146, the Second Circuit limited early Giglio discovery to impeachment evidence that is material to the offense. However, we note that more recently the Second Circuit expanded its definition of “materiality” when it reversed a conviction, holding, “Where suppressed evidence is inculpatory as well as exculpatory, and ‘its exculpatory character harmonize[s] with
107

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 126 of 131 PageID #: 742
the theory of the defense case,’ a Brady violation has occurred.” United States v. Mahaffy, supra, 693 F.3d 113, 130 (2d Cir. 2012) (emphasis added).20
The foregoing analysis forecloses the argument that evidence, which is similarly discoverable under both Brady and the Jencks Act, may be withheld until trial; the timing of discovery under the Jencks Act certainly does not trump the obligations imposed as a matter of due process under Brady/Giglio. See Coppa, 267 F.3d at 146 (holding that notwithstanding the Jenks Act the pertinent question is whether the “impeachment evidence … r[o]se to the level of materiality prescribed by Agurs and Bagley”); see also United States v. McVeigh, 923 F.Supp. 1310, 1315 (D.Colo. 1996) (duty to turn over exculpatory and impeachment information under Brady neither altered nor modified by fact that information is contained in witness statements or grand jury testimony, “Therefore, such statements should now be provided.”). Similarly, in United States v. Persico 164 F.3d 796 (2d Cir. 1999), the Second Circuit held that all Brady material – including that required to be disclosed by Giglio – must be disclosed before entry of a pretrial guilty plea:
Rule 32(e) allows a defendant to withdraw a guilty plea before sentencing for “any fair and just reason.” The Government’s obligation to disclose Brady materials is pertinent to the accused’s decision to plead guilty; the defendant is entitled to make that decision with full
20 This principle also militates in favor or disclosure under 50 U.S.C. §§ 1806(f), 1806(g), as it is extraordinarily difficult, if not impossible, for a court to recognize how evidence possesses an exculpatory character because it “harmonizes with the defense theory of the case.” That is the function of defense counsel.
108

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 127 of 131 PageID #: 743
awareness of favorable (exculpatory and impeachment) evidence known to the Government. 164 F.3d at 804 (emphasis added) (citation omitted). If Brady/Giglio disclosure is required prior to a plea, at least absent a waiver, then certainly it is required before a trial when no waiver has, or likely ever would, occur. Finally, we note that this Court has the inherent authority to order discovery beyond the bounds of the discovery rules, and as such this Court need not confine itself to Jenks Act or other discovery rules when it comes to scheduling the Government’s disclosure requirements. See United States v. Beckford, 962 F.Supp. 748, 755 (E.D.Va. 1997) (collecting cases); see also United States v. Perez, 222 F.Supp.2d 164, 171 (D.Conn. 2002) (recognizing the court’s authority to order early discovery through its “inherent power to manage its docket and provide for the orderly and timely disposition of cases”); cf. United States v. Feliciano, 998 F.Supp. 166, 170 (D.Conn. 1998) (“Rule 16 is ‘intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge’s discretion to order broader discovery in appropriate cases.”), citing, Fed.R.Crim.P. 16, Advisory Committee Note. Here, Hasbajrami is charged in a four-count indictment, involving extremely serious offenses. Hasbajrami’s prosecution has also taken on considerable national – and international – attention due to the unique legal issues involved in this case. See, e.g., Charlie Savage, Justice Dept. Informs Inmate of Pre-Arrest Surveillance,
109

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 128 of 131 PageID #: 744
N.Y. Times, Feb. 25, 2014; Andrew Keshner, Terrorism Suspect Allowed to Withdraw Guilty Plea, N.Y. Law Journal, Oct. 6, 2014; Albanian man can withdraw terror plea over warrantless surveillance, The Guardian, Oct. 6. 2014.
Accordingly, we respectfully submit that all Brady material, including Giglio material, should be disclosed immediately to the defense, particularly if it “harmonize[s] with” the Government’s understanding of “the theory of the defense case.” Mahaffy, 693 F.3d at 130.
Tenth Motion MOTION FOR EARLY DISCLOSURE OF 3500 MATERIAL For similar reasons as those outlined in Defendant’s Ninth Motion, supra, the defense requests a court order directing the Government to provide early disclosure of 3500 material. To that end the defense requests that 3500 material be produced at least 30 days prior to trial. There exists a unique pubic importance to this case and the discovery thus far disclosed is both voluminous and complex. As such, we respectfully submit that early production of 3500 material will help ensure that no unnecessarily delays occur that might derail a timely and efficient trial.
110

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 129 of 131 PageID #: 745
Eleventh Motion MOTION FOR NOTICE OF EVIDENCE THE GOVERNMENT INTENDS TO OFFER UNDER FED.R.EVID. 404(b) Fed.R.Evid. 404(b) requires the Government, upon request of the defense, to provide pretrial notice of evidence it intends to offer under Fed.R.Evid. 404(b). We call upon the Government to provide such notice, and to do so at least 30 days prior to trial. V. Other Motions
Twelfth Motion MOTION FOR LEAVE TO SUBMIT FURTHER MOTIONS Defense counsel have endeavored to bring all unclassified motions applicable at this time but request leave to bring any additional motions – classified and/or unclassified – which may become necessary based upon the Government’s response to the present motions or new facts uncovered by the defendant’s ongoing investigation into this case. Similarly, and as merely one example, the Government has been ordered to complete its Section 4, 18 U.S.C. App. 3, applications by January 9, 2015. Defense counsel reserves the right to file motions, pursuant to Section 5 of the Classified Information Procedures Act, 18 U.S.C. App. 3, at the appropriate time after this Court rules on the Government’s Section 4 applications.
111

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 130 of 131 PageID #: 746
Additionally, Hasbjarami’s FAA and FISA-related suppression motions are based upon the assumptions that: (1) all of the FISA-related evidence that the Government intends to rely upon at trial was derived either directly or indirectly from FAA surveillance; and (2) that no argument will be raised by the Government that certain of its evidence was sufficiently attenuated or derived from an independent source.
Defense counsel base these assumptions on the Government’s Supplemental Notice, dated, February 24, 2014, as well as arguments made during oral argument on September 12, 2014, which were had in relationship to Hasbajrami’s Section 2255 and Rule 33-related discovery motions (see ecf #76). See, e.g., Gov’t Sup. Notice, dated, February 24, 2014 (ecf #65), at 1 (the Government providing notice to Hasbajrami that “evidence and information, obtained or derived from Title I or III FISA collection, that the government intended to offer into evidence or otherwise use or disclose in proceedings in this case was derived from acquisition of foreign intelligence information conducted pursuant to the FAA”).
To the extent, however, that the Government’s response to the present suppression motions raises – now for the first time – the attenuation and/or independent source doctrines, then we respectfully submit leave to file additional FISA motions, including, suppression motions based upon, for example,.50 U.S.C. § 1805(a).
112

Case 1:11-cr-00623-DLI Document 92 Filed 11/26/14 Page 131 of 131 PageID #: 747
Conclusion WHEREFORE, Defendant Agron Hasbajrami, by and through his attorneys, respectfully moves for the relief set forth herein, and for such other and further relief as this Court may deem just and proper. Dated: New York, New York
November 26, 2014 Respectfully submitted,

Also on the brief: Joshua L. Dratel, Esq.

Michael K. Bachrach Steve Zissou Attorneys for Defendant Agron Hasbajrami

113

 
 Case 1:11-cr-00623-JG Document 141 Filed 06/26/15 Page 1 of 3 PageID #: 1581

SDD/SKIPWB F# 2011R00783
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
- -X

FILED
IN CLERK'S OFFICE US DISTRICT COURT E.D.N.Y.
* JUN 2 6 2015 *
BROOKLYN OFFICE

UNITED STATES OF AMERICA -against-
AGRON HASBAJRAMI, Defendant. - - -X

SUPERSEDING INFORMATION
Cr. No. 11-623 CS-2) (JG)
(T. 18, U.S.C., §§ 371, 2339A(a), 2 and 3551 et seg.)

THE UNITED STATES ATTORNEY CHARGES:

COUNT ONE (Provision and Attempted Provision of Material Support to Terrorists)

1. On or about and between April 1, 2011 and September 6, 20 11, both dates

being approximate and inclusive, within the Eastern District cifNew York and elsewhere, the

defendant AGRON HASBAJRAMI, together with others, did knowingly and intentionally

provide and attempt to provide material support and resources, as defined in Title 18, United

States Code, Section 2339A(b), including currency, monetary instruments and personnel,

including himself, knowing and intending that they were to be used in preparation for, and in

carrying out, a conspiracy to commit at a place outside of the United States an act that would

constitute the offense of murder, kidnapping or maiming if committed in the special maritime

and territorial jurisdiction of the United States, where one of the conspirators committed an act

within the jurisdiction of the United States to effect an object of the conspiracy, in violation of

Title 18, United States Code, Section 956(a).

(Title 18, United States Code, Sections 2339A(a), 2 and 3551 et seg.)

Case 1:11-cr-00623-JG Document 141 Filed 06/26/15 Page 2 of 3 PageID #: 1582 2
COUNT TWO (Conspiracy to Provide Material Support to Terrorists) 2. On or about and betweenApril1, 2011 and September 6, 2011, both dates being approximate and inclusive, within the Eastern District of New York and elsewhere, the defendant AGRON HASBAJRAMI, together with others, did knowingly and willfully conspire to commit an offense against the United States, to wit: to provide matefial support and resources, as defined in Title 18, United States Code, Section 2339A(b), including currency, monetary instruments and personnel, including himself, knowing and intending that they were to be used in preparation for, and in carrying out, a violation of Title 18, United States Code, Section 956(a), in violation of Title 18, United States Code, Section 2339A(a). 3. It was part of the conspiracy that the defendant AGRON HASBAJRAMI, together with others, obtained specific information from one or more individuals overseas for the purpose of facilitating the defendant's travel from the United States to join a militant jihadist group that was engaged in fighting in Afghanistan and Pakistan. 4. It was further part of the conspiracy that the defendant AGRON HASBAJRAMI set aside funds for the purpose of arming himself with a weapon upon his arrival in Pakistan. 5. It was further part of the conspiracy that the defendant AGRON HASBAJRAMI obtained personal equipment to use in support of a militant jihadist group that was engaged in fighting in Afghanistan and Pakistan. 6. In furtherance ofthe conspiracy and to effect its unlawful objects, the defendant AGRON HASBAJRAMI, together with others, committed, within the Eastern District of New York and elsewhere, the following overt acts:

Case 1:11-cr-00623-JG Document 141 Filed 06/26/15 Page 3 of 3 PageID #: 1583 3
Overt Acts a. On or about April 9, 20 11, a coconspirator sent the defendant AGRON HASBAJRAMI an email providing specific guidance as to how the defendant could meet with members ofthe Tehrik i Taliban Pakistan, a designated foreign terrorist organization, in order to facilitate the defendant's travel into the Federally Administered Tribal Area of Pakistan. b. On or about September 6, 2011, the defendant AGRON HASBAJRAMI traveled from his home in Brooklyn, New York to John F. Kennedy International Airport in Queens, New York, intending to board a flight to Istanbul, Turkey for the purpose of traveling overseas to join a militant jihadist group that was engaged in combat operations against U.S. forces and others in Afghanistan and Pakistan. (Title 18, United States Code, Sections 371 and 3551 et seq.)
ACTING NITED STATES ATTORNEY
PURSUAN :ro 28 C.F.R. 0.136

 
 Case 1:11-cr-00623-DLI Document 150 Filed 08/17/15 Page 1 of 3 PageID #: 1643

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
-----------------------------X
UNITED STATES OF AMERICA -against-
AGRON HASBAJRAMI Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

FILED
IN CLERK'S OFFICE US DISTRICT COURT E.D.N.Y.
* * AUG 17 2015
BROOKLYN OFFICE
ORDER OF JUDICIAL REMOVAL
11 CR 623 (JG)

Upon the application of the United States of America, by Seth DuCharme, Assistant United States Attorney, Eastern District of New York; upon the Factual Allegations in Support of Judicial Removal; upon the consent of AGRON HASBAJRAMI ("the defendant") and upon all prior proceedings and submissions in this matter; and full consideration having been given to the matter set forth herein, the Court finds:

1. The defendant is not a citizen or national of the United States. 2. The defendant is a native of Albania and a citizen of Albania. 3. The defendant was admitted to the United States as a Lawful Permanent
Resident at John F. Kennedy International Airport, New York, New York on or about March 23, 2008. 4. At the time of sentencing in the instant criminal proceeding, the defendant will be convicted in the United States District Court, Eastern District of New York, of Providing Material Support and Resources to a Foreign Terrorist Organization, in violation of Title 18 United States Code, Sections 2339A and 371. 5. The maximum sentence for a violation of Title 18 United States Code,

Case 1:11-cr-00623-DLI Document 150 Filed 08/17/15 Page 2 of 3 PageID #: 1644
Section 2339A is 15 years' imprisonment and the maximum sentence for a violation of Title 18 United States Code, Section 371 is five years imprisonment. 6. The defendant is, and at sentencing will be, subject to removal from the United States pursuant to: (1) Section 237(a)(4)(B) of the Immigration and Nationality Act of 1952, as amended ("INA"), 8 U.S.C. § 1227(a)(4)(B), as an alien described in INA section 212(a)(3)(B)(i)(l), 8 U.S.C. § 1182(a)(3)(B)(i)(l); to wit: an alien who has engaged in terrorist activity, as described in INA section 212(a)(3)(B)(iv)(VI)(dd), 8
U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd), by committing an act that the actor
knows, or reasonably should know, affords material support to a terrorist organization described in INA section 212(a)(3)(B)(vi)(lll), 8 U.S.C. § 1182(a)(3)(B)(vi)(lll); and (2) Section 237(a)(4)(B) of the INA,
8 U.S.C. § 1227(a)(4)(B), as an alien described in INA section 212(a)(3)(B)(i)(l), 8 U.S.C. § 1182(a)(3)(B)(i)(l); to wit: an alien who
has engaged in terrorist activity, as described in INA section 212(a)(3)(B)(iv)(VI)(bb), 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(bb), by committing an act that he knew, or reasonably should have known, afforded material support to an individual he knew or reasonably should have known has committed or plans to commit a terrorist activity. 7. The defendant has waived his right to notice and a hearing under Section 238(c) of the INA, 8 U.S.C. § 1228(c). 8. The defendant has waived the opportunity to pursue any and all forms of relief and protection from removal.

Case 1:11-cr-00623-DLI Document 150 Filed 08/17/15 Page 3 of 3 PageID #: 1645

WHEREFORE, pursuant to Section 238(c) of the INA, 8 U.S.C. §
1228(c), the United States of America requests that the Court, at the time of sentencing, order that the defendant be removed from the United States to Albania.

Dated:

New YCr/ New York
~• s• '2015

s/John Gleeson

UNITE

 
 Case 1:11-cr-00623-JG Document 161 Filed 11/03/15 Page 1 of 5 PageID #: 1678

~AO 245C (Rev. 10/2011 EDNY) Amended Judgment ma Criminal Case Sheet I

(NOTE: Identify Changes with Asterisks(•))

UNITED STATES DISTRICT COURT

EASTERN

District of

NEW YORK, BROOKLYN

UNITED STATES OF AMERICA
v.
Agron Hasbajrami
Date of Original Judgment: 8/13/2015
(Or Date of Last Amended Judgment)
Reason for Amendment:
••Amended page 1 to reflect that there was a Superseding Information and that Count one . was brought under 18 U.S.C. § 2339A

SECOND AMENDED JUDGMENT IN A CRIMINAL CASE
Case Number: 11CR-623-(S-2)-01 (JG) USM Number: 65794-053 Joshu L. Dratel, Esq. (212) 732-0707
Defendant's Attorney
FILED
IN CLERK'S OFFICE US DISTRICT COURT E.D.N.Y.
* * NOV 03 2015

BROOKLYN OFFICE

rifTHE DEFENDANT: pleaded guilty to count(s). One and Two of a two count superseding information on 4/12/2012.

O pleaded nolo contendere to count(s)
which was accepted by the court.
D was found guilty on count(s)
after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section

Nature of Offense

Offense Ended

18 U.S.C. §§ 2339A

Provision and attempted provision of material support to

9/6/2011

Count One

terrorists

18 u.s.c. §§ 371

The defendant is sentenced as provided in pages the Sentencing Reform Act of 1984.

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

rif Count(s) All Open Counts

D is

9/6/2011

Two

- - - - 5

of this judgment. The sentence is imposed pursuant to

ri{are dismissed on the motion of the United States.

It is ordered that the defendant must 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 defeni:lant must notify the court and United States attorney of material changes in economic circumstances.
9/3/2015

s/John Gleeson

U.S.D.J. Title of Judge

Case 1:11-cr-00623-JG Document 161 Filed 11/03/15 Page J2udogfm5enPt-aPgagee ID #2: 167o9f

s

DEFENDANT: Agron Hasbajrami

CASE NUMBER: 11CR-623-(S-2)-01 (JG)

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a
total term of : One-hundred and eighty ( 180) months of incarceration on Count One and twelve ( 12) months of incarceration on Count Two. The term of incarceration is to run consecutively on each count, totaling one-hundred and ninety two ( 192) months of incarceration.

X The court makes the following recommendations to the Bureau of Prisons: **Incarceration at CMU Terre Haute, Indiana.**

D The defendant is remanded to the custody of the United States Marshal.

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

D at

D a.m. D p.m. on

D as notified by the United States Marshal.

D The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons: D before 2 p.m. on D as notified by the United States Marshal. D as notified by the Probation or Pretrial Services Office.

I have executed this judgment as follows:

RETURN

Defendant delivered on at

to with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL

AO 245C (RCeva. 0s9e/l l1) A:1m1en-dcedr-J0ud0gm6e2nt3in-JaGCriminDaJoCcausement 161 Filed 11/03/15 Page 3 of 5 PageID #: 1680

Sheet 3 - Supervised Release

(NOTE: Identify Changes with Asterisks('))

DEFENDANT: Agron Hasbajrami CASE NUMBER: 11CR-623-(S-2)-01 (JG)
SUPERVISED RELEASE

Judgment-Page 3 of

5

Upon release from imprisonment, the defendant shall be on supervised release for a term of: No term of supervised release is imposed.

The defendant must report to the probation office in the districtto which the defendant is released within 72 hours ofrelease from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state, or local crime.
The defendant shall not unlawfully possess a controlled substance. 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, as determined by the court.
D 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.)
The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.)
D The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)
D The defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a
student, as directed by the probation officer. (Check, if applicable.)
D The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)
If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
STANDARD CONDITIONS OF SUPERVISION
1) the defendant shall not leave the judicial district without the permission of the court or probation officer;
2) the defendant shall report to the probation officer in a manner and frequency directed by the court or probation officer; 3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other
acceptable reasons; 6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;
or if such prior notification is not possible, then within forty eight hours after such change; 7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any
controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;
9) the defendant shall not associate with any riersons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;
IO) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer;
11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; 12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the
permission ofthe court; and
13) as directed by the probation officer, the defendant shall notify third parties ofrisks that may be occasioned by the defendant's criminal record, personal history, or characteristics and shall permit the probation officer to make such notifications and confirm the defendant's compliance with such notification requirement.

AO 245C (RCeva. 0s9e/111) :A1m1en-dcerd-J0ud0g6m2en3t i-nJaGCrimiDnaol Ccausement 161 Filed 11/03/15 Page 4 of 5 PageID #: 1681

Sheet 5 - CriminaJ Monetary Penalties

(NOTE: Identify Changes with Asterisks(*))

DEFENDANT: Agron Hasbajrami

Judgment - Page 4

of ___5_ __

CASE NUMBER: 11CR-623-(S-2)-01 (JG)

CRIMINAL MONETARY PENALTIES

The defendant must pay the following total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment

TOTALS

$ 200.00

$

Restitution $

0 The determination of restitution is deferred until - - -. An Amended Judgment in a Criminal Case (AO 245C) will be
entered after such determination.

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

lfthe 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 18U.S.C. § 3664(1), all nonfederal victims must be paid before the United States is paid.

Name of Payee

Total Loss*

Restitution Ordered

Priority or Percentage

TOTALS

$ _ _ _ _ _ _ _ __

$

0 Restitution ainount ordered pursuant to plea agreement $
O The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(!). All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
0 The court determined that the defendant does not have the ability to pay interest, and it is ordered that: 0 the interest requirement is waived for O fine O restitution. O the interest requirement for the O fine 0 restitution is modified as follows:

*Findings forthe total ainount oflosses are required under Chapters 109A, 110, l IOA, and l 13A ofTitle 18 for offenses committed on or after September 13, 1994, but before April 23, 1996.

A0245C (RCeva. s09e/111):A1m1en-dcerd-0Ju0dg6m2en3t -inJaGCrimDinaol cCausement 161
Sheet 6 - Schedule of Payments
DEFENDANT: Agron Hasbajrami CASE NUMBER: 11CR-623-(S-2)-01 (JG)

Filed 11/03/15

Page 5 of 5 PageID #: 1682
(NOTE: Identify Changes with Asterisks(*))

Judgment - Page __5~- of

5

SCHEDULE OF PAYMENTS

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

A ti' Lump sum payment of$ -"'$=-20"'0'"'.0"-0'----- due immediately, balance due

D not later than

, or

D in accordance with D C, OD, O E,or D Fbelow; or

B D Payment to begin immediately (may be combined with oc,

D D, or D F below); or

C D Payment in equal

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after the date of this judgment; or

D D Payment in equal

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after release from imprisonment to a

term of supervision; or

E D Payment during the term of supervised release will commence within

(e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or

F D Special instructions regarding the payment of criminal monetary penalties:

Unless the court has expressly ordered otherwise, ifthis judgment imposes imprisonment, payment ofcriminal monetary penalties is due during the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court. The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
D Joint and Several
Defendant and Co-Defendant Names and Case Numbers (including defendant number), Joint and Several Amount, and corresponding payee, if appropriate.
D The defendant shall pay the cost of prosecution. D The defendant shall pay the following court cost(s): D The defendant shall forfeit the defendant's interest in the following property to the United States:
Payments shall be applied in the following order: (I/ assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution, (7) pena ties, and (8) costs, including cost of prosecution and court costs.

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FOR ONLINE PUBLICATION

UNITED STATES OF AMERICA

-againstAGRON HASBAJRAMI,

Defendant.

MEMORANDUM 11-CR-623 (JG)

JOHN GLEESON, United States District Judge: Defendant Agron Hasbajrami was arrested on September 6, 2011 and charged
with three counts of attempting to provide material support to terrorists. He sought to suppress evidence obtained or derived from surveillance conducted pursuant to Section 702 of the FISA Amendments Act ("FAA"), codified at 50 U.S.C. § 188la (alternatively, " 702 surveillance" or "702 collection"). See Def. 's Mot. to Supp., ECF No. 92 ("Def. Br."). This memorandum explains my February 20, 2015 ruling denying the motion to suppress.
PRELIMINARY STATEMENT Few things are more unsettling than the idea that a government is spying on its own citizens.1 Our country has a long history of holding our government accountable when it abuses its authority in ways that offend our Constitution ' s protections. In the 1960s and 1970s, the public was outraged over the revelation that the government conducted domestic surveillance- in the name of national security--ofDr. Martin Luther King, Jr., Vietnam War protesters, and domestic groups the government labeled ' subversive." See David S. Kris & J. Douglas Wilson, 1 National Security Investigations and
"Citizen" in this opinion refers to both United States citizens and lawful permanent residents.

Prosecutions § 3.1 (2d ed. 20 12) (hereafter "Kris & Wilson"). In 1967, the Supreme Court held that electronic surveillance is subject to the Fourth Amendment's prohibition on unreasonable searches. Katz v. United States, 389 U.S. 347 (1967) (the government's electronic surveillance of a phone conversation in a telephone booth constitutes a search under the Fourth Amendment); Berger.v. New York, 388 U.S. 41 (1967) (the Fourth Amendment protects conversations, and the use of electronic devices to capture a conversation is a search). In 1976, a select committee of the United States Senate, chaired by Senator Frank Church ofldaho, issued an exhaustive report (the "Church Report") documenting the intelligence community's systematic vio lations of the law in gathering information about United States citizens. Kris & Wilson § 2.2 (citing Final Rep. of the S. Select Comm. to Study Governmental Operations with respect to Intelligence Activities (Book II), S. Rep. No. 94-755, (1976)). Congress responded to the Church Report in 1978 by enacting the Foreign lntelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et seq., which governs foreign intelligence surveillance and searches. SeeS. Rep. No. 95-604, at 7-8 (1977).
History repeats itself. The post-9/11 era has once again highlighted the tension between privacy and national security interests. The public continues to scrutinize the government' s intelligence gathering techniques.2 But there is also no denying that in this era there are individuals and groups dedicated to inflicting grave harm on our nation, and that the intelligence gathering techniques at issue here are a critical component of our government's efforts to protect us from harm. The government has a duty to respect and protect our
See, e.g. , Charlie Savage, FB.I. is Broadening Surveillance Role, Report Shows, N.Y. Times, Jan . 11 , 2015, at A 10; Barton Gellman et at., In NSA -Intercepted Data, Those Not Targeted Far Outnumber the Foreigners Who Are , Wash . Post, Jul y 5, 20 I4, available at https://www.washingtonpost.com/world/nationalsecurity/in-nsa-intercepted-data-those-not-targeted-far-outnumber-the-forei gners-who-are/20 14/07/05/813 9ad f8045a-1le4-8572-4blb969b6322_ story html ; Claire Cain Miller, Tech Companies Concede to Surve illance Program , N .Y. Times, June 8, 2013, atA 12.
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constitutional rights while simultaneously ensuring the nation 's security. This is a difficult task. And while there has been legitimate criticism of electronic surveillance practices under the FAA-in large part because it has been shrouded in secrecy-in this case, the government conducted its national security investigation within the confines of the Fourth Amendment.
FACTUAL BACKGROUND A. The Criminal Investigation
An investigation by the Federal Bureau of Investigation's Joint Terrorism Task Force ("JTTF") revealed that from April2, 2011 to August 28, 2011, Hasbajrami exchanged numerous emails with an individual he believed was associated with a terrorist organization. Gov't Unclassified Br. at 5 ("Gov't Br."). Hasbajrami sent money to the individual to support Islamic fundamentalist terrorism operations. !d. He also arranged to travel to the Federally Administered Tribal Areas ("FATA") ofPakistan to join ajihadist fighting group. !d.
On September 6, 2011 , JTTF agents arrested Hasbajrami at John F. Kennedy International Airport as he was about to board a flight to Turkey en route to Pakistan. !d. A subsequent search ofHasbajrami's luggage " revealed a tent, boots, and cold-weather gear." Def. Br. at 4 (citing PSR at~~ 2-3). Hasbajrami gave detailed statements regarding his offense. Jd. B. The Government's Disclosure ofits FISA Surveillance
Title Tand T itle rTI ofFTSA, as amended, 50 U.S.C. §§ 1801-1812 and 18211829, allow electron ic surveillance and physical searches after obtaining a FISA wa rrant from the Foreign Inte lligence Surveillance Court ("'FISC").
On September 13, 20 11 after Hasbajrami was arraigned, the govern ment notified him that he had been subject to FISA surveillance and that it intended at trial to use information obtained or derived from that surveillance ("Title I collection") and certain physical searches
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("Title III collection"). Notice, ECF No. 9. On April 12, 2012, after the government disclosed inculpatory evidence-including email communications obtained pursuant to FISA-Hasbajrami pled guilty to a single count of providing material support to terrorists. ECF No. 32. On January 8, 2013 , I sentenced him principally to a 180-month term of imprisonment. ECF No. 44 .
In July 2013 , Hasbajrami filed a motion pursuant to 28 U.S .C. § 2255, seeking relief from his conviction and sentence on the ground that the statute under which he was convicted is unconstitutionally vague. Letter, ECF No. 61-1. Before that claim could be fully briefed and argued, the government revealed new information that eventually became the basis ofthe instant motion. Specifically, on February 24, 2014, the government notified Hasbajrami "that certain evidence or information, obtained or derived from Title I or III FISA collection, that the government intended to offer into evidence or otherwise use or disclose in proceedings in this case was derived from acquisition of foreign intelligence information conducted pursuant to the FAA." Supplemental Notice, ECF No. 65 .
The FAA permits, subject to certain statutory requirements, the interception of electronic communications of non-U.S. persons reasonably believed to be located outside the United States in order to acquire foreign intelligence information. 50 U.S.C . §188la. It differs significantly from traditional FISA surveillance. To get a court order, FISA requires the government to demonstrate 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 electronic surveillance is directed 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(2). By contrast, FAA surveillance does not require the government to specify the persons or places that it plans to target for surveillance. 50 U.S.C. §188la. Instead, the FISC may authorize surveillance under
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the FAA for up to one year after approving targeting and minimization procedures and receiving a government certification regarding the proposed surveillance. See 50 U.S .C. §1881 a(a), (c), and (i)(3)(A) . Because the FAA does not require an individual court authorization (that is, a warrant) for each data collection, FAA-derived intelligence has been described as "warrantless wiretap" information . See, e.g., Charlie Savage, Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence, N.Y. Times, Oct. 27,2013, at A21. C. The Withdrawal ofthe Guilty Plea
On October 2, 2014, I allowed Hasbajrami to withdraw his guilty plea so he cou ld challenge the constitutionality of the FAA-derived evidence and seek its suppression. 3 Order, ECF No. 85 . Hasbajrami filed this motion to suppress on November 26, 2014, and I heard oral argument on the motion on January 23, 2015. On February 20, 2015, I denied the motion for the reasons discussed below. On June 26, 2015, Hasbajrami pled guilty to one count of attempting and one count of conspiring to provide material support to terrorists . ECF No. 142. I sentenced him on August 13, 2015, principally to a 192-month term of imprisonment. ECF No. 151.
DISCUSSION . Hasbajrami contends that the FAA surveillance vio lated the Fourth Amendment because it was not "confined to the co llection of foreign communications by foreign actors" outside the United States. Def. Br. at 15 -16. Because the government knew that the
Specifically, I allowed Hasbajrami to: (W]ithdraw his plea of guilty because 1 conclude that he was not sufficiently informed about the facts. Under the precise circumstances presented here, and because of a DOJ policy that transcended this case, Hasbaj rami could not have made an intell igent decision about whether to plead gui lty: When the government provided FISA notice without FAA notice, Hasbajrami was mis led about an important aspect of his case.
Order, ECF No. 85, at 6.
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communications ofU.S. persons- like Hasbajrami-inevitably would be collected, the argument goes, it was required to get a warrant. See id. Hasbajrami thus sought to suppress the FISA evidence on which the government's case was based because it was the fruit ofthe warrantless FAA surveillance.
For its part, the government argues that the FAA collection was constitutional because: (1) the warrant requirement is inapplicable to foreign intelligence collection targeted at foreign persons abroad, and the incidental collection ofU.S. persons ' communications did not trigger the warrant requirement; (2) the foreign intelligence exception to the warrant requirement applies; and (3) the FAA surveillance was reasonable under the Fourth Amendment. Accordingly, the government's argument continues, the FISC properly used the FAA-derived information in finding probable cause to support the FISA warrants, and the FISA collection was thus constitutionally sound.4 A. The History ofthe Foreign Intelligence Surveillance Act
As mentioned above, the government's surveillance activities came under scrutiny in the 1970s when it was discovered that the National Security Agency ("NSA") had been spying on United States citizens within the United States. ACLU v. Clapper, 785 F.3d 787, 792-93 (2d Cir. 2015). In 1972, the Supreme Court held that warrantless domestic surveillance violated the Fourth Amendment. United States v. US Dist. Court for the E. Dist. ofMich. ("Keith"), 407 U.S. 297, 320-21 (1972). Three years later, Congress established the Select Committee to Study Governmental Operations with respect to Intelligence Activities (the "Church Committee") to investigate whether the government's "intelligence activities were governed and controlled consistently with the fundamental principles of American constitutional government[.]" Church
Specifically, the FlSC fo und that probable cause existed to believe that the target was an agent of a foreign power and that the target was using or about to use the facilities and places targeted for the FISA surveillance and search. Gov 't Classified Br. at 23 ("Gov't Cl. Br.").
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Report at v. The Church Committee found that the intelligence community had "violated specific statutory prohibitions and infringed the constitutional rights of American citizens [and had) intentionally disregarded [these prohibitions] in the belief that because the programs served the ' national security' the law did not apply."5 Id. at 137. The Church Committee' s findings, coupled with the Supreme Court' s Keith decision and evidence of abuse by intelligence agencies, led to Congress's 1978 enactment ofFISA, which was "aimed at curtailing abuses and delineating the procedures to be employed in conducting surveillance in foreign intelligence investigations." Clapper, 785 F.3d at 793.
1. The Foreign Intelligence Surveillance Act FISA seeks to " provide effective, reasonable safeguards to ensure accountability
and prevent improper surveillance." S. Rep. No. 95-604, at 7 (1977) . The statute created the FISC and empowered it to grant or deny applications for surveillance orders in foreignintelligence investigations. See 50 U.S.C. § 1803(a). "As originally enacted, FISA required a high-ranking member ofthe executive branch to certify that the purpose [of the FISA application] was to obtain foreign intelligence information. " United States v. Abu-Jihaad, 630 F.3d 102, 119 (2d Cir. 2010) (internal quotation marks omitted). But in 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ("USA PATRIOT Act") amended the statute to require a high-ranking official to certify that "a significant purpose" of the FISA application was to obtain foreign intelligence information. Pub. L. No. 107-56, 115 Stat. 272, 291 (2001) (codified as amended at 50 U.S.C. § 1804(a)(6)(B)). Thus, the amendments signaled that Congress no longer required foreign
Intelligence agencies' illegal activities included covert mai l-opening programs, warrantless "su JTeptitious entries," i.e., break-ins, and the interception of domestic telegram and radio communications. Church Report at 139.
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intelligence gathering to be the primary purpose of the FISA surveillance. See Abu-Jihaad, 630 F.3d at 119.
To obtain a FISA order, the government must make detailed factual showings about the target of the surveillance, the information sought, and the facilities at which the surveillance is directed. 50 U.S .C. § I 804(a). The FISC may issue an order authorizing electronic surveillance only if it finds probable cause to believe that the target of the surveillance is a foreign power or an agent of a foreign power and that the facilities or places at which the surveillance is directed are being used, or are about to be used, by a foreign power or an agent of a foreign power. !d. § l805(a)(2)(A)-(B). A FISA order targeting a U.S. person may be approved for up to 90 days, and an order targeting a non-U.S. person may be approved for up to 120 days. !d. § 1805(d)( 1).
FISA requires the government to implement minimization procedures reasonably designed to minimize the acquisition and retention, and prohibit the dissemination of, communications by United States citizens.6 Id. §§ 1801(h)(l), 1821(4)(A). The Attorney General must approve all FISA applications to the FISC . !d. § 1805(a)(l).
2. The Protect America Act and the FISA Amendments Act Under FISA, the definition of "electronic surveillance" was limited to four types
of domestically-focused foreign intelligence collection activities.7 See 50 U.S.C. § 1801 (f).

The Attorney General has adopted standard minimization procedures ("SMPs") for FISA-

authorized surveill ance and physical searches. Gov' t Cl. Br. at 30. They are on file with the FISC and are

incorporated by reference into every FISA application and every FISA order. !d. The FISC orders at issue here

directed the government to follow the approved minimization procedures in conducting the electronic survei llance

and physical searches. Jd.

7

Specifically, "electronic survei llance" was defined to mean: (t) the acquisition ofthe contents of a

wire or radio communication obtained by "intentionall y targeting" a "particular, known United States person who is

in the United States" in certain circumstances; (2) the acquisitio n of the contents of a wire communication to or from

a " person in the United States" when the "acquisition occurs in the Un ited States"; (3) the intentional acquisition of

the contents of certain radio communications when the "sender an d 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

8

Because that definition did not apply to surveillance conducted outside the United States, Congress enacted the Protect America Act ("PAA'') in 2007, Pub. L. No. 110-55, 121 Stat. 552 (2007), to modernize FISA in light of the "changes in communications technology" since 1978. S. Rep. No. 110-209 (Oct. 26, 2007) ("For example, in 1978, most foreign communications went through the air rather than over a wire .... Today, most international communications travel over a wire."). The PAA empowered the Director ofNational Intelligence ("DNI") and the Attorney General to authorize " the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States." !d.§ 105B(a). The PAA required the DNI and the Attorney General to certify that there were reasonable targeting procedures in place to ensure that the surveillance targeted persons reasonably believed to be outside the United States; that the minimization procedures in place satisfied FISA ' s requirements for such procedures; and that a significant purpose of the acquisition was to obtain foreign intelligence information. !d. § 105B(a)(l)-(5).
The PAA, however, expired in February 2008 due to a sunset provision. In response, in July 2008, Congress enacted the FAA. The provision of the FAA at issue here, 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 ... non-U.S . persons located abroad."8 Clapper v. Amnesty Jnt 'I USA , 133 S. Ct. 1138, 1144 (2013). Specifically, Section 702 (like the PAA before it) provides that upon the issuance of an order from the FISC, the Attorney General and the DNI may jointly authorize the "targeting of persons reasonably believed to be located outside the United States" for a

acquire information other than from a wire or radio communicatio n in certain circumstances. 50 U.S.C. § 180l (t)

(emphasis added).

8

The definition of a U.S. person under Section 702 is incorporated from Title I ofF ISA and means

a citizen of the United States or a lawful perma nent resident. 50 U.S.C. §§ 1801 (i), I88l (a). Hasbajrami is a lawful

permanent resident.

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period of up to one year to acquire "foreign intelligence information." 50 U.S.C. § 188la(a). This includes any information "necessary to protect against the full range of foreign threats to national security, and information with respect to a foreign power that is necessary to the national defense or foreign affairs." Kris & Wilson§ 17.3 (citing 50 U.S.C. §§ 188la(a), 1801 (e)). Consistent with its purpose, the statute prohibits intentionally targeting anyone located inside the United States and any United States citizens outside of the United States.9 50 U.S.C. § 1881a(b)(l)-(3).
Surveillance conducted pursuant to Section 702 does not require an individualized court order for each non-U.S. person to be targeted. Rather, the FISC approves annual certifications by the Attorney General and the DNI, thereby authorizing the acquisition of foreign intelligence information by targeting non-U.S. persons reasonably believed to be located outside the United States. 10 Jd. § 1881 a(a), (i)(3). The statute does not require the certifications to

9

Under§ l88la(b), the government: "(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 . .. 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 Un ited States; and (5) [an

acquisition] shall be conducted in a manner consistent with the [F]ourth [A]mendment." 50 U.S.C. § 1881 a(b)( 1)-

(5) . Amici argue that one of the purposes of Section 702 was to enable "reverse targeting," i.e., the legal targeting of

a non-U .S. person abroad to capture the communications of U.S . persons that are otherwise subject to the warrant

requirement, Amici Br. at 13 , but the statute explicitly prohibits such targeting. See id § 1881 a(b)(2) .

The NSA's determination of the target ' s location and non-U.S. person status is based on the

totality of the circumstances. Privacy and Civil Liberties Oversight Bd., Report on the Surveillance Program

Operated Pursuant to Section 702 ofthe Foreign Intelligence Surveillance Act at 43 (July 2, 20 14), available at

https://www.pclob.gov/library/702-Report.pdf ("PCLOB Report"). If conflicting informat ion draws the target's

location or status into question, the NSA must resolve the question before the person can be targeted. Id at 44. In

making the determination that the survei ll ance wi ll lead to the acquisition of foreign intelligence information, the

NSA must identify the specific foreign power or foreign territory from which the intelligence is being sought. /d at

45.

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The Attorney General and the DNI must make the certifications, 50 U.S.C. § 188la(g)(l), and

they must attest that: (1) there are targeting procedures in place, which 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 acq ui sition of purely domestic

communications; (2) the minimization procedures meet the definition of minimization procedures set forth in Titles I

and lli of FISA (50 U.S.C. §§ 1801(h), 1821 (4)) and have been or wi ll 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 § l88la(b) prohibiting, among other things, the targeting of U.S . persons; (4) the targeting and minimization

10

identify the facilities to be targeted for surveillance. Jd. § 1881a(g)(4). Instead, the FISC approves the proposed targeting and minimization procedures, and if it finds that the certification contains the required elements and that those procedures are consistent with the Fourth Amendment, it issues an order authorizing the certification. See id. § 1881 a(i)(3)(A).
The targeting procedures must be "reasonably designed" to ensure that the surveillance is limited to 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." Jd. § 1881 a(g)(2)(A)(i) . Minimization procedures must also 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. §§ 180l(h)(l), 1821(4)(A). Thus, the targeting and minimization procedures aim to safeguard U.S. citizens against the acquisition of the ir communications under Section 702 .
3. Typ es ofFAA Surveillance There are two types of Section 702 collection: PRISM and Upstream. See
PCLOB Report at 7, 33. ln PRISM collection, the government identifies the user accounts it wants to monitor and sends a "selector"-a specific communications facility, such as a target s email address or telephone number-to the relevant communications service provider. Jd. at 3233. A government directive then compels the communications service provider to give it
procedures and guidelines are co nsistent w ith the Fourth Amendm ent; (5) a signifi cant purpose of the acqui sition is to obtain fo reign intelli gence in fo rmation; (6) the acquisition involves obtaining "fo reign intelli gence info rmation from or with the ass istance of an electro nic communi cation service provider;" and (7) the acquisitio n complies with the limitations in 50 U. .C. § 1881 a(b) (i.e., the targeting procedures). 50 U.S.C. § 1881 a(g)(2)(A) .
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communications sent to or from that selector (i.e., the government " tasks" the selector). 11 Jd. at 33; 50 U.S.C. § 188la(h). This type of surveillance, which intercepts "to/from" communications, can result in the interception of communications with U.S. persons if the target happens to communicate with such a person. See PCLOB Report at 33.
Upstream collection, on the other hand, involves the acquisition of communications through the compelled assistance of the providers that control the telecommunications backbone within the United States over which communications travel. ld. at 35. Like PRISM, upstream collection intercepts "to/from" communications. !d. at 37. But upstream collection is less tailored than PRISM collection; it allows the government to additionally intercept "about" communications, that is, communications that refer to, or are "about," a particular selector. !d. For example, an email in the body of which a targeted email address appears is an "about" communication, even though the targeted person is not necessarily a participant in the intercepted communication. 12 !d. If a communication is to, from, or about a

II

Before a selector can be ''tasked," that is, before service providers are compelled to forward

communications associated with a selector, the NSA analyst must document his or her reasons for tasking it, and

two senior NSA analysts mu st approve the tasking. NSA Director of Civil Liberties and Privacy Office Report,

NSA 's Implementation ofForeign Intelligence Surveillance Act Section 702, at 4-5 (Apr. 16, 2014), available at

https://www. nsa.gov/civi l_ liberties/_ files/nsa_report_on_section_702_program.pdf (''NSA Report") . In PRISM

collection, "the Government provides selectors to service providers through the FBI. The service providers are

compelled to provide NSA with communications to or from these selectors." NSA Report at 5.

12

The PCLOB Report provides a detai led description of the mechanics of Upstream co ll ection:

Finally, the upstream collection of Internet communications includes two features that are not present in PRISM collection: the acquisition of so-called ' about' communications and the acquisition of so-called ' multiple
communications transactions' ('MCTs'). An 'about' communication is one in which the selector of a targeted person (such as that person ' s email address) is contained within the communication but the targeted person is not necessarily a participant in the communication. Rather than being ' to ' or 'from' the selector that has been tasked, the communication may contain the selector in the body of the communication, and thus be 'about' the selector. An MCT is an Internet ' transaction ' that contains more than one discrete communication within it. If one of the communications within an MCT is to, from, or 'about' a tasked selector, and if one end of the transaction is foreign, the NSA will acquire the entire MCT through upstream collection, including other discrete communications within the MCT that do not contain the selector.

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tasked selector, the NSA can acquire an entire MCT, which may contain more than one discrete communication. ld. at 39-4 1. Simply put, the government can collect other discrete communications that do not have anything to do with the tasked selector, which can result in the collection and querying of wholly domestic communications of non-targeted persons. 13 Jd. at 7; NSA Report at 5-6. Some have argued that the FISC erred in its approval in 2011 of "about" communications collection, instead of limiting Section 702 surveillance to communications intercepted by "to/from" collection. See, e.g., Donohue at 159; First Amended Complaint, Wikimedia Found. v. NSA, 15-CV-00662, ~ 50 (D. Md. June 19, 2015) (equating upstream collection with allowing "a government agent [to] open every piece of mail that comes through the post to determine whether it mentions a particular word or phrase").
The government conducted the disputed surveillance in this case under the PRISM program . Gov' t Cl. Br. at 54. None of the Section 702 communications used in the Title I and T itle II FISA applications targeting the agent of a foreign power were "about" communications. Id. Thus, the constitutionality of upstream collection is not at issue here. B. The Constitutionality ofSection 702 is Limited to an As Applied Challenge
As a preliminary matter, Hasbajrami asserts a facial challenge and an "as applied" challenge to the constitutionality of Section 702 collection. Def. Br. at 13-31. A facial challenge would require Hasbajrami to establish that there is no set of circumstances under which Section 702 is valid. United States v. Salerno, 481 U.S. 739, 745 (1987). Given that the government " implemented [the statute] in a defined context" in this case, 1 need not "specul ate about th e

PCLOB Report at 7.

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"FISC estimated in 20 11 that somewhere between 300,000 and 400,000 MCTs were being

collected annually on the bas is of ' about' communication-where the ' active user' was not the target. So hundreds

of thousands of commun ications were being co ll ected that did not include the target as either the sender or the

recipient of the communi cation ." Laura K. Donohue, Section 702 and the Co llection of International Telephone and

Internet Content, 38 Harv. J.L. & Pub. Pol'y 117 (20 15), available at http ://scholarship .law.georgeto wn.edu

/cgi/viewcontent.cgi?article=2364&co ntext=facpub .

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validity of th e law as it might be applied in different ways or on different facts ." In re Directives, 551 F.3 d 1004, 1010 (FJSA Ct. Rev . 2008); see also Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-30 (2006) (discussing the Court' s preference for as-applied challenges in an attempt to " limit the solution to the problem"); United States v. Mohamud, 20 14 WL 2866749, at *13-1 4 (D . Oreg. June 24, 20 14) (declining to cons ide r a facia l chall enge und er the Fo urth Amendm ent to Section 702 coll ection) . I therefore Iim it Hasbajram i's challenge to an as-appli ed challenge. C. Warrantless Surveillance Pursuant to Section 702 is Lawful Under the Fourth
Amendment When It Targets No n- U.S Persons Abroad The Fourth Amendment protects an individual ' s " persons, houses, papers, and
effects, against unreasonable searches and seizures." For a search or seizure to be consistent with the Fourth Amendment, it must be carried out with a valid warrant, based on probable cause, and be issued by a neutral and detached judicial officer (or fall under one ofthe exceptions to the warrant requirement). The central inquiry in my Fourth Amendment analysis is "the reasonableness in all the circumstances ofthe particular governmental invasion of a citizen' s personal security. " Terry v. Ohio, 392 U.S. l , 19 (1968). Because Section 702 does not require a warrant before the government can seize the communications of non-U.S. persons abroad, the dispute before me centers on whether the search of communications between a U.S. person and individuals who are legitimate targets of Section 702 surveillance is constitutional. For the reasons that follow, I conclude that it is .
1. The Fourth A mendment Does No t Apply to Fore ign Persons Abroad The Fo urth Amendment's protections do not "apply to activities of the United
States directed against aliens in foreign territory." Un ited States v. Verdugo -Urquidez, 494 U .S. 259, 267 (1990) (non-U.S. persons outside the United States who lack a "substantial connection"
14

with the country do not benefit from the Fourth Amendment' s protections). Accordingly, under Verdugo- Urquidez, the Fourth Amendment does not constrain the government from collecting the communications of non-U.S. individuals targeted by Section 702 surveillance. The collection at issue was directed at non-U.S. persons the government reasonably (and correctly) believed were located in foreign countries. Although Hasbajrami was a legal resident ofthe United States who was in the country when he communicated with one or more non-U.S. persons abroad, it was those non-U.S . persons who were the targets of Section 702 surveillance.
Defendant and amici challenge the fact that the FAA allows the government to collect these communications without establishing probable cause or finding individualized suspicion. Def. Br. at 6, 10-11 ; Amici Br. at 14. However, because the warrant requirement is inapplicable here, so too is the need to establish probable cause or individualized suspicion.
2. The In cidental Collection of U.S. Pe rsons' Communications with Lawfully Targeted Non -U.S. Persons Abroad Does No t Trigger the Warrant Requirement The real question is whether the incidental interception of U.S. persons'
communications during the otherwise lawful collection of non-U.S . persons ' communications is constitutional. While Section 702 does not allow intentional targeting of U.S. persons or nonU.S. persons located in the United States, 50 U.S.C. §188la(b)(l)-(4), it is inevitable that the government will incidentally intercept communications of persons who are not the intended targets-including, as here, U.S. persons in the United States--during the ordinary course of lawfu I survei !lance.
Minimization and targeting procedures help protect the privacy interests ofU.S . persons whose communications are incidentally intercepted. Minimization procedures mask the identities of U.S. persons whose communications the government incidentally collects. See In re Directives, 551 F.3d at 1015 (effective minimization procedures "serve ... as a means of
15

reducing the impact of incidental intrusions into the privacy of non-targeted United States persons"). The minimization procedures in this case required the NSA to conduct post-targeting analyses to effectuate a stop of the acquisition of communications without delay if it learned at any point that the target had either entered the United States or was in fact a U.S. person . Gov't Cl. Br. at 108.
Hasbajrami contends that the collection of U.S. persons ' communications during 702 surveillance targeting non-U.S. persons abroad cannot be properly considered " incidental" because the government knows that the foreign targets wi ll inev itably communicate with U.S. persons, Def. Br. at 11-12, and the minimization procedures permit the government to retain the communications under certain circumstances. Gov 't Br. at 3 I (" Such circum tances may include where the U.S. person has consented to the dissemination, the specific information about the U.S . person is already publicly availab le, the U.S. person ' s identity is necessary to understand foreign intelligence information, or the communication conta ins evidence of a crime and is being disseminated to law enforcement authorities." (citing PCLOB Rep. at 64-65)). However, the government notes that the same is true ofTitle I FlSA surveillance and Title lil e lectronic survei llance, " in which, inevitably, the government co ll ects communications of third parties and the minimization procedures permit retention of those communications in certain circumstances. " Gov ' t Cl. Br. at 80. As with the FTSA and Title Til collection, acquisit ions from Section 702 surveillance are not made unlawful by ''incidenta l collections occurring as a result of constitutionally permissible acqu isitions." In re Directives, 551 F.3d at I015 (warrantless survei llance of individuals reasonably believed to be outs ide the Un ited States under the PAA was reasonable). The co llection of U.S. persons ' communications- incidentally obtained through lawful targeting-does not require a separate warrant.
16

Courts have long dealt with the issue of incidental interception of non-targeted persons' communications. 14 Amici correctly point out that some of those cases involve surveillance predicated on warrants, Amici Br. at 14 (citing Kahn, 415 U.S. at 143 and Figueroa, 757 F.2d at 466), but that is because the targets at issue were U.S. citizens and the surveillance took place on United States soil. See Kahn, 415 U.S. at 144-49 and Figueroa, 757 F.2d at 46869. A warrant was necessary for the initial surveillances to be lawful. While those cases are thus distinguishable, the guiding principle behind them applies with equal force here: when surveillance is lawful in the first place-whether it is the domestic surveillance ofU.S. persons pursuant to a warrant, or the warrantless surveillance of non-U.S. persons who are abroad 15-the incidental interception of non-targeted U.S. persons' communications with the targeted persons is also lawful. Mohamud, 2014 WL 2866749, at* 15 ("The§ 702 acquisition targeting a nonU.S. person overseas is constitutionally permissible, so, under the general rule, the incidental collection of defendant's communications with the extraterritoria l target would be lawful.").16

14

See, e.g. , United States v. Kahn, 415 U.S. 143, 157-58 ( 1974) (interception ofwife' s conversations

on her home telephone was incidental. and not in violation of the Fourth Amendment, because her criminal acti vities

were not foreseen wh en Title Ill wiretap order targeting her husband was obtained); United States v. Figueroa, 757

F.2d 466,472-73 (2d Cir. 1985) (Title lJl allows interception of conversations of "others as yet unknown," i.e.,

unknown third parties and that "does not render a statute [] unconstitutional on its face as authorizing a general

warrant"); 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 citi zens[] will be

overheard"); United States v. Bin Laden, 126 F. Supp. 2d 264, 280 (S.D .N .Y. 2000) ("[l]ncidental interception of a

person ' s conversations during an otherwise lawful surveillance is not violative of the Fourth Amendment.").

15

The government concedes that information-gathering under Section 702 takes place within the

United States. Gov 't Br. at 43. But what matters here is the location of the target. See Kris & Wilson, § 17.3 ("For

non-U .S. person targets, there is no probable-cause requirement; the only thing that matters is []the government' s

reasonab le belief about[] the target' s location."). The mere fact that Section 702 surveillance originated from within

the United States, or that the communications obtained through such survei llance originated from or terminated

within the United States, is not enough to trigger the warrant requirement. The government intercepted the emai ls in

this case because Hasbajrami communicated with foreign persons outside the United States, at emai l addresses

believed to belong to them. Section 702 requires that the government reasonably believe that the non-U.S. person is

located outside the United States in order to target them . 50 U.S.C. § 1881 a(a). The facts here indicate that the

government reasonably (and correctly) believed that the persons Hasbajrami communicated with were non-U.S .

persons abroad, and thus the government was well within its boundaries. That the seizure took place from within the

United States does not alter these facts, and therefore does not implicate the warrant requirement.

16

Hasbajrami also contends that the FAA is unconstitutional because it permits survei llance and

interception without probable cause, particularity, or the invo lvement of a neutral and detached judicial officer. Def.

17

3. PRISM Collection is Reasonable Under the Fourth Amendment

"The ultimate touchstone of the Fourth Amendment is reasonableness[,]" and the

requirement that the PRJSM collection at issue here be reasonable applies even when the warrant

requirement does not. Brigham City, Utah v. Stuart, 547 US 398, 403 (2006). T hus, J must

determine whether Section 702 meets the general reasonableness stand ard . !d. T he statute aims

to collect foreign intelligence information to protect national security. As discussed above, I

must balance that interest with U.S. persons' privacy interests in their international

communications. See Samson v. California, 547 U.S. 843 , 848 (2006) (applying the totality of

the circumstances test to the Fourth Amendment reasonableness inquiry) . I have balanced these

interests and find the intelligence gathering here is reasonable under the Fo urth Amendment.

a.

The Government Has a Compelling Interest in Obtaining Foreign

Intelligence Information to Protect National Security

T he 702 surveillance at issue here furthered an indisputably compelling

government interest. See Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010)

("Everyone agrees that the Government's interest in combating terrorism is an urgent objective

of the highest order."); 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." (internal

quotation marks omitted)); see also In re Directives, 551 F.3 d at 1012 (the government's national

security interest in acquiring foreign intelligence information pursuant to the PAA " is of the

hi ghest order of magnitude"). The fruits of the su rveillance led to the prosecution and conviction

Br. at 22-30. But because the warrant requirement is inapplicable here, so too is the necessity fo r "the three principal warrant requirements: prior judicial review, probable cause, and particularity ." in re Directives, 551 F .3d at I013 (" We therefore decline the petitioner' s invitation to reincorporate into the foreign intelligence exception the same warrant requirements that we already have held inapplicable."). Additionall y, because l fi nd that the surveillance at issue did not require the government to get a warrant, I consider it unnecessary to determine whether the good-fa ith exception to the exclusionary rule or the fore ign intelligence exception to the warrant req uirement app ly, and 1 thus decline to do so.
18

of a U.S. person who was attempting to lend support to a terrorist organization whose purpose is

to inflict serious harm upon the United States.

b. Individuals Have a Diminished Expectation ofPrivacy in Email Communications with Non-U.S. Persons Outside the United States

In evaluating the reasonableness of the incidental acquisition of non-targets'

communications, I consider the degree to which U.S. citizens have a reasonable expectation of

privacy in their email communications with non-U.S. persons abroad.

A person 's expectation of privacy in email communications diminishes after

sending the email because he or she assumes the risk that the recipient will share the

communication with others. See United States v. Lifshitz, 369 F.3d 173 , 190 (2d Cir. 2004)

(" [An individual] may not ... enjoy[] an expectation of privacy in transmissions over the

Internet or e-mail that have already arrived at the recipient.") ; Guest v. Leis, 255 F.3d 325, 333

(6th Cir. 2001) (email sender loses his or her legitimate expectation of privacy in an email that

has already reached the recipient) . Emai l commu nications are easily forwarded to or read by

other parties. But this diminished expectation of privacy in email communications does not

mean the government can search every email with impunity just because the emai l sender comm unicated w ith a foreign person abroad. 17

Analogizing to traditional post-mail, the government contends that an email

sender " loses any cognizable Fourth Amendment rights" in the communication once it reaches

the recipient. Gov't Br. at 62; see also United States v. Gordon, 168 F.3d 1222, 1228 (lOth Cir.

1999) ("[O]nce a letter is sent to someone, the sender's expectation of privacy ordinarily

17

I reject the government's contention that "any expectatio n of privacy of the defendant in hi s

electronic communications with a non- U.S. person overseas is . .. diminished by the prospect that his foreign

correspondent could 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 vario us

authorities applicable to foreign intelligence surveillance conducted abroad." Gov't Br. at 62 n.48 (emphasis

added). The government's logic is circular, and it risks allowi ng the fact of the government's lawful surveillance of

non-U .S. persons abroad to seep into and erode the rights of United States citizens.

19

terminates upon delivery." (internal quotation marks omitted)). But the loss ofthe privacy interest in that setting typically flows from the recipient's provision of the communication to the government. 18 This case, of course, concerns government interception of emails. Nonetheless, given that the emails here had in fact been sent to a third party, I conclude that Hasbajrami had a diminished-if not nonexistent--expectation of privacy in those communications.
c. Section 702 's Safeguards and Procedures Sufficiently Protect NonTargeted US. Persons' Privacy Interests
As part of my inquiry into the reasonableness of searches conducted pursuant to Section 702, I also consider the safeguards the government has employed to help protect Hasbajrami's privacy interest and to ensure that 702 surveillance is appropriately targeted at nonU.S. persons located outside the United States. Section 702 itself requires these safeguards. The government's Section 702 applications in this case included the required certifications by Executive Branch officials-the DNI and the Attorney General-that detailed the targeting and minimization procedures used to protect the privacy of U.S. and non-U.S. persons located in the United States. Gov't Cl. Br. at 49-52; 50 U.S.C. §§ 188la(a), (g), and (i). Upon review, the FISC approved the certifications, finding that they contained the elements required by Section 702, and that the targeting and minimization procedures were consistent with the Fourth Amendment. 50 U.S.C. §§ 188la(i)(3)(A). The Attorney General and the DNI must also periodically review the government's compliance with the minimization and targeting

18

See, e.g., United States v. Miller, 425 U.S. 435 , 443 ( 1976) ("The [bank] depositor takes the risk,

in revealing his affairs to another, that the information will be conveyed by that person to the Government. "); Hoffa

v. United States, 385 U.S. 293 , 302 ( 1966) ("Neither this Co urt nor any member of it has ever expressed the view

that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntari ly confides

his wrongdoing will not reveal it. "); United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (" [T]he maker ora

te lephone ca ll has a reaso nable expectation that police officials will not intercept and li sten to the conversation;

however, the co nve rsati on itself is he ld with the risk that one of the pa1ticipants may reveal what is said to others. ").

20

procedures and submit assessments to the FISC and congressional oversight committees. See 50 U.S.C. 1881a(l). 19
The oversight provisions of the FAA require the government to regularly report instances of non-compliance to the FISC, which can withhold approval of proposed minimization procedures or require the government to amend them to ensure that they are reasonably designed to limit the acquisition, retention, and dissemination of information concerning U.S . persons. See PCLOB Report at 76 (citing FISC Rule ofProc. 13(b)). The oversight provided by the FISC, the executive branch, and Congress work to safeguard Fourth Amendment protections, lending further support to the reasonableness of Section 702 surveillance. Cf Mohamud, 2014 WL 2866749, at *24 (finding that Section 702 's requirements for minimization procedures contribute to the statute's reasonableness); In re Directives, 551 F.3d at 1013 (relying on a "matrix ofsafeguards"-including targeting and minimization procedures and a procedure to ensure that a significant purpose of the survei llance is to obtain foreign intelligence information-in determining that the PAA was reasonable under the Fourth Amendment).
The most significant of these safeguards are the government's targeting and minimization procedures . See, e.g., In re Directives, 551 F.3d at 1015 (minimization 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 government did not target "entire geographical areas," as the defendant contends, see Def. Br. at 23, but instead used FISC-approved targeting procedures to target specific non-U.S. persons

19

In four years of oversight, the Senate Select Committee on Intelligen ce did not find "a si ngle case

in which a government official engaged in a willful effort to circumvent or violate the law." S. Rep. No. 112-174, at

7(2012).

21

Gov't Ct. Br. at 107-111. "Strong" selectors, such as email addresses, weed out innocent or inadvertent communications "[b]ecause of the small set of people with knowledge of the email address or phone number of a subject of foreign intelligence interest." Peter Margulies, Dynamic Surveillance: Evolving Procedures in Metadata and Foreign Content Collection after Snowden, 66 Hastings L. J. 1, 47 (Dec. 20 14) (citing PCLOB Report at 32-33). Such was the case here: the government collected emails to or from unique email addresses because it reasonably believed the owners of those email addresses were non-U.S. persons outside the United States, and that the collection would lead to the acquisition of foreign intelligence information. This cannot be characterized as an unreasonably broad form of interception. To the contrary, these FISC-approved targeting procedures were employed-and worked--exactly as they were intended to.
The government's use of the minimization procedures described above also helped limit the acquisition, retention, and dissemination of information concerning U.S. persons under Section 702, further supporting the reasonableness of the acquisition here.20 See Mohamud, 2014 WL 2866749, at *24 (Section 702's minimization procedures ameliorate Fourth Amendment concerns because they limit "the retention and dissemination of foreign communications of or concerning United States persons" and they require "the identity of the United States Person" to be deleted " in any dissemination of the information unless certain requirements are met"); see also In re Directives, 551 F.3d at 1015 (it is "sign ificant" that the

20

That the government is able to query information obtained under the PRISM program, i.e. ,

lawfully-obtained communicatio ns that were to or from legitimate targets, does not render the minimization

procedures inadequate, as amici contend. See Amici Br. at 2\-22. Here, once the government learned that the target

was potentially an agent of a foreign power, the government sought orders from the FISC for electronic surveillance

and physical searches pursuant to T itle I and Title Ill ofFISA targeting an agent of a foreign power. Gov't Cl. Br. at

119-20 n.l49 . l agree with the government that "[i]t would be perverse to authorize the unrestricted review of

lawfully co llected information but then[] restrict the targeted review of the same information in response to tailored

inquiries." Gov' t Br. at 71-72.

22

minimization procedures help prevent identification errors and reduce the impact of incidental interceptions of non-targeted U.S . persons under the PAA).
Moreover, before approving the surveillance, the FISC found that the targeting and minimization procedures in the government' s Section 702 applications were consistent with and reasonable under the Fourth Amendment. Specifically, when balancing the government' s national security interests against Fourth Amendment interests, the FISC concluded that the surveillance was reasonable in light of the government's important national security interests and the safeguards contained within the targeting and minimization procedures. All of these procedures help limit the scope of Section 702 surveillance, and thus support the reasonableness of that surveillance under the Fourth Amendment.
In evaluating the totality of the circumstances and weighing the government' s interest in national security with Hasbajrami ' s diminished privacy interest, the government' s interest outweighs the intrusion. The stringent safeguards embodied in the FAA, i.e. , its targeting and minimization procedures, ensured that only the communications of non-U.S. persons abroad were collected. And the targeting that took place in this case was as particular as it gets-the FISC approved the targeting of specific non-U.S. persons outside the United States for specific counterterrorism purposes. The incidental interception ofHasbajrami ' s emails as a consequence of that lawful surveillance does not alter the reasonableness of the interception.
D. The Traditional FISA Information Was Lawfully Acquired Because It Was Obtained Pursuant to a Warrant Based on Probable Cause
"FISA warrant applications are subject to minimal scrutiny by the courts, both upon initial presentation and subsequent challenge." Abu-Jihaad, 630 F.3d at 130 (internal quotation marks omitted). In the FISC ' s initial review, the FISA Judge must "( 1) [] find probable cause to believe that the target of the requested surveillance is an agent of a foreign
23

power; (2) [] find that the application is complete and in proper form; and (3) when the target is a United States person, [] find that the certifications are not 'clearly erroneous."' United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984). .
As in Abu-Jihaad, I find that "the government's detai led and complete submissions in this case would easily allow it to clear a higher standard of review" than the deferential one that I must apply. 630 F.3d at 130. I have conducted a careful ex parte examination and agree that the certifications here were made in accordance with FISA's requirements and the targeting of an agent of a foreign power was not "clearly erroneous." See id. The certifications explained that a significant purpose of the FISA survei llance was to obtain foreign intelligence information21 that could not be reasonably obtained through regular investigative techniques.
I have also examined the application materials and find that they meet the showing of probable cause required by FISA. See 50 U.S.C. § 1805(a)(2). The government's submissions here were "quite detailed and complete; they described at length the facts supporting the Government's assertion that there was probable cause to believe that the target of the FISA surveillance was an agent of a foreign power and ... that a significant purpose of the surveillance was to gather foreign intelligence information." Abu-Jihaad, 531 F. Supp. 2d at 313.
Specifically, the government obtained-pursuant to Section 702 surveillance-many email communications between Hasbajrami and non-U.S. persons reasonably believed to be located outside the United States who were· · · · · · · · · · · · · · Gov't Cl.

21

Indeed, the certifications stated that the primary purpose of the surveillance of physical search was

"' not to obtain information for the prosecution of crimes other than those [international terrorism and foreign

intelligence crimes] referred to in [FISA] ... or related to such foreign intell igence crimes."' Gov't Cl. Br. at 193

(quoting the certifications at issue) (emphasis in original).

24

Br. at 3. The government described these emails in its Title I and Title III FISA applications targeting an agent of a foreign power, and they supported the FISC ' s finding of probable cause that the target was an agent of a foreign power. See 18 U.S .C. § 1805(a)(2)(A). In addition, I find that the " [t]he target is described with particularity, as is the basis for believing that the facilities at which electronic surveillance would occur was being used, or about to be used, by the target and that the premises or property to be searched contained foreign intelligence information that was owned, used, possessed by, or in transit to or from the target." Abu-Jihaad, 531 F. Supp. 2d at 313. The exhaustive submissions I have received in connection with the application provided ample support for my finding that the government met its probable cause requirement.
Lastly, the FISA collection ofHasbajrami ' s communications adhered to the approved minimization procedures. The test of compliance in the context ofFISA surveillance is "whether [the government attempted] a good faith effort to minimize" the interception of innocent conversations. United States v. Mubayyid, 521 F. Supp. 2d 125, 135 (D. Mass. 2007) (quoting United States v. Armocida, 515 F.2d 29, 44 (3d Cir. 1975)). The government made that effort here. In addition to numerous other steps, only authorized personnel were able to review the information acquired, and the identities of U.S. persons were minimized before the communications were disseminated by the FBI to other agencies. Gov 't. Cl. Br. at 202-04.
Based on this information, the government lawfully conducted the FISA surveillance at issue. The government properly made the required certifications and followed the minimization procedures, and the applications established probable cause. As such, the FISA evidence need not be suppressed .
25

E. The Motion for Discovery ofFISA and 702 Materi(lls Hasbajrami moved for discovery of the classified materials relating to the Section
702 and FISA authorizations and collection. Def. Br. at 66-99. A court may disclose to a defendant "under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance on ly where such disclosure is necessary to make an accurate determination of the legality of the survei llance." 50 U.S.C. § 1806(f). But where a 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." ld. § 1806(f). With these statutory guidelines in mind, the Second Circuit concluded that disclosure ofFISA materials " is the exception and ex parte, in camera determination is the rule." United States v. Stewart, 590 F.3d 102, 129 (2d Cir. 201 0). The same ex parte, in camera procedure applies to discovery motions related to Section 702. See 50 U.S.C. § 1881e(a).
After careful review of the FISA and Section 702 materials here it is clear to me that disclosure was unnecessary here. " It is of course true that the legality of the surveillance and search would be better tested through the adversarial process," Mubayy id, 521 F. Supp. 2d at 130, but the statute asks me to determine what is necessary to accurately determine whether the government complied with the law. 50 U.S.C . § 1806(f). My review of the materials was "relatively straightforward and not complex[,)" and I was able to evaluate the legality of the challenged surveillance without concluding that due process first warranted disclosure. AbuJihaad, 630 F.3d at 129 (quoting United States v. Abu-Jihaad, 531 F. Supp. 2d 299, 310-11 (D. Conn. 2008)). Specifically, the foreign intelligence information obtained pursuant to the FISA and FAA surveillance and searches was lawfully acquired because the collection offoreign
26

intelligence pursuant to Section 702 ' s PRISM program complies with the Fourth Amendment, and because the government complied with the relevant statutory directives . Given this determination, disclosure of the materials to the defendant is unnecessary.
CONCLUSION The incidental collection of Hasbajrami ' s communications with non-U.S. persons abroad-lawfully targeted under Section 702-did not require a warrant and was reasonable in light ofthe Fourth Amendment's protections. For that reason, Hasbajrami ' s motion to suppress the evidence obtained from the Section 702 surveillance, a long with its fruits, was denied. Further, I find that the government lawfully acquired the traditional FISA information, because it was obtained based upon probable cause and in comp liance with the statute's requirements. Finally, because the government legally obtained the surveillance at issue, I deny Hasbajrami ' s motion for discovery of classified materials. Dated : February 18, 2016 Brooklyn, New York
27

 
 Case 1:11-cr-00623-DLI Document 171 Filed 04/06/17 Page 1 of 14 PageID #: 1785

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------------------x

UNITED STATES OF AMERICA,

:

:

-against-

:

:

AGRON HASBAJRAMI,

:

:

Defendant.

:

-----------------------------------------------------------------x

MEMORANDUM AND ORDER 11-cr-623 (DLI)

DORA L. IRIZARRY, Chief U.S. District Judge:

Before the Court is Agron Hasbajrami’s (“Defendant”) motion to release to his counsel an

unredacted version of the Memorandum (“Unredacted Opinion”) issued on February 18, 2016, by

the Hon. John Gleeson, U.S.D.J. (retired) denying Defendant’s motion to suppress the fruits of electronic surveillance conducted under Section 702 of the FISA1 Amendments Act (“FAA”),

codified at 50 U.S.C. 50 U.S.C. § 1881a (“Section 702”). Judge Gleeson posted a redacted version

(“Redacted Opinion”) of the Unredacted Opinion on the public docket on March 8, 2016. (See

Redacted Opinion, Dkt. Entry No. 165; Mem. of L. in Supp. of Def’s. Mot. to Release (“Def’s.

Mem.”), Dkt. Entry No. 168.) The government opposes the release of the Unredacted Opinion.

(See Gov’s. Mem. of L. in Opp. (“Gov’s. Opp’n”), Dkt. Entry No. 169.) For the reasons set forth

below, Defendant’s motion is denied.

BACKGROUND

The Court assumes the parties’ familiarity with the factual and procedural history of this

case, as set forth in the Redacted Opinion, and will relate only those facts relevant to deciding the

motion. (See Redacted Opinion, at 3-5.) A brief summary of the case as it relates to this decision

follows below.

1 FISA refers to the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 et seq, which was amended on July 10, 2008.

Case 1:11-cr-00623-DLI Document 171 Filed 04/06/17 Page 2 of 14 PageID #: 1786
On September 6, 2011, Joint Terrorism Task Force (“JTTF”) agents arrested Defendant at John F. Kennedy International Airport, in New York, as he was about to board a flight to Turkey. (Id. at 3.) After his arraignment, the government notified Defendant that it intended to use at trial information derived pursuant to surveillance and physical searches conducted under the Foreign Intelligence Surveillance Act of 1978 (“FISA”). (Id. at 3-4.) On April 12, 2012, Defendant pled guilty to providing material support to terrorists, and, on January 8, 2013, Judge Gleeson sentenced him to a 180-month term of imprisonment. (Id. at 4.)
In July 2013, Defendant filed a motion to vacate his conviction under 28 U.S.C. § 2255. (Id.) On February 24, 2015, the government informed Defendant “that certain evidence or information, obtained or derived from Title I or III FISA collection, . . . was derived from acquisition of foreign intelligence information conducted pursuant to the FAA.” (Id. quoting Dkt. Entry No. 65.) Defendant moved to withdraw his guilty plea. Based on the government’s disclosure, Judge Gleeson allowed Defendant to withdraw his guilty plea and challenge the constitutionality of the intelligence collected pursuant to the FAA and seek its suppression. (Id. at 5.) In vacating Defendant’s guilty plea, Judge Gleeson concluded that Defendant “was not sufficiently informed about the facts. . . . [and Defendant] could not have made an intelligent decision about whether to plead guilty.” (Id. n. 3 quoting Dkt. Entry No. 85, at 6.) Specifically, Judge Gleeson found that, “[w]hen the government provided FISA notice without FAA notice, Hasbajrami was misled about an important aspect of his case.” (Id.)
On November 26, 2014, Defendant filed his motion to suppress the evidence derived pursuant to the FAA. (Id. at 5.) On February 20, 2015, after hearing oral argument, Judge Gleeson denied Defendant’s suppression motion and subsequently set forth his reasoning in the Unredacted Opinion and Redacted Opinion. (See generally, Redacted Opinion.) On June 26, 2015, Defendant
2

Case 1:11-cr-00623-DLI Document 171 Filed 04/06/17 Page 3 of 14 PageID #: 1787
pled guilty to one count of attempt to provide material support to terrorists and one count of conspiracy to provide material support to terrorists; and, on August 13, 2015, Judge Gleeson sentenced Defendant to a 192-month term of imprisonment. (Id. at 5.)
On February 23, 2016, Judge Gleeson delivered the Unredacted Opinion to the Classified Information Officer. (See February 23, 2016, ECF Order.) The Redacted Opinion was served on all the parties on February 25, 2016, and was filed on the docket on March 8, 2016. (See February 25, 2016, ECF Order; March 8, 2016, ECF Order.) The Redacted Opinion contained “several instances . . . where language ha[d] been substituted, and two instances where language ha[d] been redacted.” (March 8, 2016, ECF Order.) Judge Gleeson denied Defendant’s motion to suppress the fruits of electronic surveillance obtained pursuant to Section 702 and found that the government’s surveillance of Defendant was lawful and complied with the Fourth Amendment. (See generally Redacted Opinion, at 5-25.) Judge Gleeson also denied Defendant’s request for discovery of the classified materials relating to the Section 702 and FISA authorizations and collection of information. (Id. at 26-27.)
Subsequently, Defendant filed an appeal with the Second Circuit Court of Appeals, which currently is stayed. (See Dkt. Entry No. 155.) On July 25, 2016, Defendant filed the present motion seeking the release of the Unredacted Opinion to his counsel in order to “have his appeal heard on a level playing field.” (Def’s. Mem. at 1.) The Unredacted Opinion references classified information submitted by the government with its opposition to Defendant’s motion to suppress.2
2 Throughout this Court’s decision, the “discussion of the classified information is necessarily circumspect[.]” United States v. Abu-Jihaad, 630 F.3d 102, 141 (2d Cir. 2010).
3

Case 1:11-cr-00623-DLI Document 171 Filed 04/06/17 Page 4 of 14 PageID #: 1788
DISCUSSION I. FISA’s Procedures and Legal Framework3
In 1978, Congress enacted FISA to govern foreign intelligence surveillance and searches. 50 U.S.C. § 1801 et seq. FISA created the Foreign Intelligence Surveillance Court (“FISA Court”), which reviews the government’s applications for surveillance orders “for the purpose of obtaining foreign intelligence information.” Id. §§ 1802(b); 1803. “Unlike ordinary Article III courts, the [FISA Court] conducts its usually ex parte proceedings in secret; its decisions are not, in the ordinary course, disseminated publicly.” Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 793 (2d Cir. 2015). The FISA Court may issue a FISA warrant where there is probable cause to believe that the target of the surveillance “is a foreign power or an agent of a foreign power” and that the “facilities or places” at which the surveillance is directed are “being used, or . . . about to be used, by a foreign power or an agent of a foreign power.” Id. § 1805(a)(2)(A)-(B). The FISA Court’s rulings are reviewed by the Foreign Intelligence Surveillance Court of Review. Id. § 1803(b).
In 2008, Congress enacted the FAA, which “left much of FISA intact, but . . . ‘established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.’” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1144 (2013) (internal citation omitted); 50 U.S.C. § 1881a. Section 702 of the FAA, “supplements pre-existing FISA authority by creating a new framework under which the Government may seek the [FISA Court’s] authorization of certain foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad.” Id. Section 702 differs from the “traditional FISA,” in part, because it does not require that the government show “probable cause that the target of the electronic
3 The Redacted Opinion describes the history of FISA and the FISA Amendments in-depth. (See Redacted Opinion at 6-13.)
4

Case 1:11-cr-00623-DLI Document 171 Filed 04/06/17 Page 5 of 14 PageID #: 1789
surveillance is a foreign power or agent of a foreign power.” Id. Instead, the FISA Court approves certifications provided by the Attorney General and the Director of National Intelligence that authorize the acquisition of foreign intelligence information when the certifications comply with the statute. 50 U.S.C. §§ 1881a(a), (i)(3).
When the government intends to use or disclose information obtained or derived from traditional FISA or Section 702 surveillance, it must provide a defendant with notice, and the defendant may challenge the lawfulness of the acquisition with a motion to suppress. 50 U.S.C. §§ 1806(c), 1806(e), 1881e(a). If a defendant makes a motion to suppress FISA or Section 702 material, the Attorney General may submit “an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.” Id. §§ 1806(f), 1825(g). The district court then reviews “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.” Id. After its review, a 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.” Id. If the surveillance was lawful, “it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.” Id. §§ 1806(g), 1825(h).
A. FISA Forecloses the Release of the Unredacted Opinion Defendant asserts that the Court should disclose the Unredacted Opinion to his defense
counsel because ex parte proceedings are “exceedingly disfavored,” Def’s. Mem. at 6, and disclosure would level the “unlevel playing field” where “only the government knows the facts specific to the FAA electronic surveillance and interception with respect to [Defendant].” (Id. at
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4-5.) While generally, “ex parte proceedings are anathema in our system of justice,” Guenther v. C.I.R., 889 F.2d 882, 884 (9th Cir. 1989), FISA makes clear that only the government and the Court are entitled to certain facts specific to the electronic surveillance of a defendant obtained pursuant to said statute and its amendments. See United States v. Abu-Jihaad, 630 F.3d 102, 129 (2d Cir. 2010) (“[D]isclosure of FISA materials is the exception and ex parte, in camera determination is the rule.”) (internal citation and quotation marks omitted). However, the Court may order disclosure to a defendant “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance” or “to the extent that due process requires.” 50 U.S.C. §§ 1806(f), (g). These provisions allow for Defendant’s participation when necessary and prevent the unnecessary release of foreign intelligence information that could compromise national security. See generally United States v. Belfield, 692 F.2d 141, 148 (D.C. Cir. 1982) (In FISA, “Congress recognized the need for the Executive to engage in and employ the fruits of clandestine surveillance without being constantly hamstrung by disclosure requirements”).
Here, Defendant’s counsel are not entitled to view the Unredacted Opinion because releasing it would reveal classified foreign intelligence information and circumvent FISA by undermining the purpose of section 1806(f). Before Judge Gleeson, Defendant “moved for discovery of the classified materials relating to Section 702 and FISA authorizations and collection.” (Redacted Opinion at 26.) As required by FISA section 1806(f), Judge Gleeson “careful[ly] review[ed]” the FISA and Section 702 materials and held, that he “was able to evaluate the legality of the challenged surveillance without concluding that due process first warranted disclosure.” (Id.) By seeking to view the Unredacted Opinion, which references classified information, Defendant’s attorneys improperly attempt to access the same classified information Judge Gleeson found they were not entitled to obtain.
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The fact that counsel now seek the classified information for purposes of an appeal is inconsequential. FISA does not mandate disclosure in order to help defendants make an appeal. If it did, section 1806(f) would be meaningless because defendants would obtain classified information simply by appealing every negative section 1806(f) ruling. See generally Belfield, 692 F.2d at 146 (“Congress was adamant in enacting FISA that the ‘carefully drawn procedures’ of this section are not to be ‘bypassed by the inventive litigant using a new statute, rule or judicial construction.’”) (internal citation omitted).
Defendant also contends that access to the Unredacted Opinion is appropriate because ex parte proceedings “with respect to appeals . . . present an overwhelming danger of erroneous decisions” since the Second Circuit cannot “properly function as [Defendant’s] surrogate advocate,” Def’s. Mem. at 12, and [s]uch a “system does not provide Due Process, or even approach it.” (Reply Mem. of L. in Supp. of Def’s. Mot. to Release (“Def’s. Reply”), Dkt. Entry No. 170, at 4.) Second Circuit precedent forecloses these arguments.
In analyzing FISA, the “Second Circuit has made clear that proceeding ex parte does not, standing alone, offend notions of fundamental fairness.” United States v. Medunjanin, 2012 WL 526428, at *9 (E.D.N.Y. Feb. 16, 2012) (collecting cases). In Abu-Jihaad, 630 F.3d at 129, the Second Circuit conducted its “own review” of the classified materials and “identif[ied] no denial of due process in the district court’s decision” that “disclosure and an adversary hearing were unnecessary because . . . the requirements of due process did not counsel otherwise.” Id. Similarly, in United States v. Stewart, 590 F.3d 93, 129 (2d Cir. 2009), the Second Circuit also reviewed the classified materials and held that “there was no error in the district court’s determination that disclosure was unnecessary . . . to satisfy the requirements of due process.” Id. Therefore, “[t]hough the court is mindful of the difficulties that defense counsel must face in such
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circumstances, the FISA procedures are in place in the interest of national security.” United States v. Fishenko, 2014 WL 4804215, at *4 (E.D.N.Y. Sept. 25, 2014). These ex parte procedures do not violate Defendant’s due process rights.
Defendant further argues that, without access to the redacted portions of the Redacted Opinion, his ability “to establish non-compliance with the strictures of § 1881a” is impaired. (Def’s. Mem. at 9.) 4 Defendant’s argument misconstrues the statute. FISA states that, if “the United States district court . . . determines that the surveillance was not lawfully authorized or conducted, it shall . . . suppress the evidence[.]” 50 U.S.C § 1806(g). FISA’s framework mandates that the Court, and not Defendant, evaluate the legality of the surveillance by reviewing the surveillance materials. Id. § 1806(f). In conducting its review of the materials, the Court discloses information to a defendant only when it is “necessary” for the Court to reach an “accurate determination” of the government’s compliance with the statute. Id. Here, Judge Gleeson found that disclosure was not necessary “to evaluate the legality of the challenged surveillance.” (Redacted Opinion at 26.) Therefore, unless this Court disagrees with Judge Gleeson’s holding, Defendant cannot support his non-compliance arguments, before either this Court or the Court of Appeals, by relying on surveillance materials that he is not entitled to examine. See United States v. Medunjanin, 2012 WL 526428, at *10 (E.D.N.Y. Feb. 16, 2012) (“Defense counsel, however, may not inspect the FISA dockets to construct a better argument for inspecting the FISA dockets. Such a circular exercise would be patently inconsistent with FISA and unjustified by the facts presented.”). That principle applies regardless of whether the classified materials are referenced
4 In denying Defendant’s discovery requests to obtain the classified information, Judge Gleeson considered this and many of the arguments made in Defendant’s current motion. Defendant cannot circumvent the statute by repackaging rejected arguments and reasserting them against the redacted portions of a judicial opinion containing the same confidential information Judge Gleeson held Defendant was not entitled to obtain. (Compare Def’s. Mem. at 9 with Dkt. Entry No. 92 at 74-75 and Def’s. Mem. at 5-6 with Dkt. Entry No. 92 at 42-43.) Nonetheless, out of an abundance of caution, the Court has considered these arguments specifically as they relate to withholding content in a judicial opinion.
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in an ex parte submission or in a court’s redacted judicial opinion. As discussed above, consistent with FISA, Defendant’s counsel may access the classified
information contained in the Unredacted Opinion only if this Court disagrees either with Judge Gleeson’s section 1806(f) analysis or with Judge Gleeson’s conclusion that due process did not require disclosure. See 50 U.S.C. §§ 1806(f), (g). Since Defendant has not filed a motion for reconsideration, there is no reason to revisit Judge Gleeson’s holdings. Accordingly, Judge Gleeson’s holdings are the “law of the case,” and this Court will adhere to the law of the case doctrine and not second guess Judge Gleeson’s conclusions. See Johnson v. Holder, 564 F.3d 95, 99 (2d Cir. 2009) (“The law of the case doctrine commands that ‘when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case’ unless ‘cogent and compelling reasons militate otherwise.’”) (internal citation omitted). II. CIPA’s Procedures and Legal Framework
The Classified Information Procedures Act (“CIPA”) “establishes rules for the management of criminal cases involving classified information.” In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 115 (2d Cir. 2008). CIPA “is designed ‘to protect[ ] and restrict[ ] the discovery of classified information in a way that does not impair the defendant’s right to a fair trial.’” Abu-Jihaad, 630 F.3d at 140 (internal citation omitted). “CIPA does not confer on the government a privilege to refrain from disclosing classified information; it merely presupposes one.” Id.
Section 3 of CIPA requires a district court to issue, upon “motion of the United States,” a protective order “protect[ing] against the disclosure of any classified information disclosed by the United States to any defendant.” 18 U.S.C. § app. 3 § 3. Section 4 establishes the procedures for the “[d]iscovery of classified information by defendants.” 18 U.S.C. app. 3 § 4. This provision
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“provides that, if the discovery to be provided to the defense pursuant to the Federal Rules of Criminal Procedure includes classified information, the district court may, ‘upon a sufficient showing, . . . authorize the United States to delete specified items of classified information[,] . . . to substitute a summary of the information[,] . . . or to substitute a statement admitting relevant facts that the classified information would tend to prove.’” In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d at 116 (quoting 18 U.S.C. app. 3 § 4.)
“CIPA’s framework for nondisclosure provides a means for applying the state-secrets privilege to classified information which, in ordinary circumstances, would be discoverable. Proper application of that privilege requires balancing of the government’s need to protect national security with the right of a defendant to mount a full defense.” United States v. Boulos, 2015 WL 502170, at *1 (E.D.N.Y. Feb. 3, 2015) (internal citation omitted). In determining whether a defendant’s right to present a defense supplants the state secrets privilege, the Second Circuit applies the test announced in Roviaro v. United States, 353 U.S. 53, 77 (1957). Abu-Jihaad, 630 F.3d at 141.
Under the test, the “district court must first decide whether the classified information the Government possesses is discoverable” and if it is “whether the state-secrets privilege applies because: (1) there is ‘a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged,’ and (2) the privilege is ‘lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.’” United States v. Aref, 533 F.3d 72, 80 (2d Cir. 2008) (internal citation omitted). If the information is both discoverable and privileged, the district court determines whether the information “is helpful or material to the defense, i.e., useful ‘to counter the government's case or to bolster a defense.’” Id. (internal citation omitted). If it is, a court “may permit the government
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to produce that information in a form that will preserve its sensitivity (e.g., redacted, summaries, factual stipulations).” Boulos, 2015 WL 502170, at *2.
A. CIPA Governs Discovery From the Government and Not From the Court Defendant argues that release of the Unredacted Opinion “can be achieved consistent with
both the purpose and procedures of the Classified Information Procedures Act.” (Def’s. Mem. at 1) In opposition, the government contends that disclosure under CIPA is inappropriate because CIPA is “a separate and distinct statutory framework that is inapplicable to a district court’s determination regarding disclosure” under FISA. (Gov’s. Mem. at 12.) Both Defendant’s and the government’s arguments are misplaced. CIPA does not compel or regulate the discovery of classified information contained in a court’s written opinion. Instead, CIPA manages the discovery of classified information in the government’s possession by “impos[ing] “upon district courts a mandatory duty to guard against the unauthorized ‘disclosure of any classified material disclosed by the United States to any defendant in any criminal case.’” In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d at 121 (quoting 18 U.S.C. app. 3 at § 3) (emphasis added).
Defendant’s assertion that CIPA “provides a mechanism for disclosure” of the Unredacted Opinion also is meritless.5 Congress designed CIPA’s discovery provisions to “complement” those contained in Rule 16(d) of the Federal Rules of Criminal Procedure. Id. Rule 16 specifies the type of information the government must disclose to a defendant and permits a district court to restrict discovery in a criminal case for “good cause.” Id. (d)(1). Section 4 of CIPA “clarifies district courts’ power under Federal Rule of Criminal Procedure 16(d)(1) to issue protective orders denying or restricting discovery for good cause, which includes information vital to the national
5 In his reply, Defendant argues that nothing in CIPA “permits withholding from security-cleared defense counsel portions of a court’s opinion – as opposed to discovery.” (Def’s. Reply at 3). Defendant’s argument misconstrues the statute. CIPA is a statute that establishes procedures for regulating the disclosure of classified discovery in the government’s possession. It is not designed to mandate that a court apply those procedures to its judicial opinions.
11

Case 1:11-cr-00623-DLI Document 171 Filed 04/06/17 Page 12 of 14 PageID #: 1796
security.” Abu-Jihaad, 630 F.3d at 140. Congress enacted CIPA “to harmonize a [criminal] defendant’s right to obtain and present exculpatory material with the government’s need to withhold information from discovery when disclosure would be inimical to national security.” In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d at 115–16. CIPA was not intended to regulate the disclosure of classified information contained in a judicial opinion. The contrary conclusion would create a new discovery right and conflict with well established case law that, “CIPA ‘creates no new rights of or limits on discovery of . . . classified information[.]’” United States v. Babafemi, 2014 WL 1515277, at *1 (E.D.N.Y. Apr. 18, 2014) (internal citation omitted).
B. Defense Counsels’ Security Clearances Do Not Warrant Disclosure of the Unredacted Opinion Defendant contends that the Court should grant his counsel access to the Unredacted
Opinion because they possess security clearances and, as a result, the Court should allow Defendant “the ability to confront the Opinion as it exists in its entirety.” (Def’s. Mem. at 13.) Under the applicable Executive Order, defense counsel may access classified information only if they hold both the required clearance and have “a need-to-know the information.” Exec. Order No. 13,526, 75 Fed. Reg. 707, 720 (Dec. 29, 2009). Here, the parties dispute whether the Court should make the “need-to-know” determination by relying on CIPA or FISA. (Compare Gov’s. Mem. at 14-16, with Def’s. Reply at 4-5.) Because Judge Gleeson conducted his review of the classified materials by relying on FISA, the Court holds that FISA determines whether or not Defendant’s attorneys have a “need-to-know” the contents of the Unredacted Opinion. To rely on CIPA, after Judge Gleeson made his findings pursuant to FISA, would permit Defendant to challenge the FISA ruling denying him access to classified information by mandating access to the same information under CIPA. This approach would frustrate the purposes underlying both statutes.
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Applying FISA, defense counsel do not have a “need-to-know” the contents of the Unredacted Opinion. The reach of counsels’ security clearances is not unlimited and those “clearances do not mandate . . . access to immaterial classified information for which counsel has no legitimate need.” United States v. Zazi, 2011 WL 2532903, at *3 (E.D.N.Y. June 24, 2011). As discussed above, FISA warrants disclosure of classified information either when necessary to determinate the legality of the surveillance or when required by due process. 50 U.S.C. § 1806 (f)-(g). Judge Gleeson held that he “was able to evaluate the legality of the challenged surveillance without concluding that due process first warranted disclosure.” (Redacted Opinion at 26.) Additionally, Judge Gleeson found that, because the information was lawfully acquired “disclosure of the materials to the defendant [was] unnecessary.” (Id. at 27.) This Court will not reevaluate Judge Gleeson’s holding. Accordingly, because Defendant’s counsel are not entitled to the classified information under FISA, they do not “need-to-know” the classified information redacted in the Redacted Opinion.
Even if the Court applied CIPA, defense counsel would not “need-to-know” the redacted contents in the Redacted Opinion because the redacted information is not “helpful or material to the defense.” Aref, 533 F.3d at 80. The redacted content neither facilitates “counter[ing] the government’s case” nor “bolster[s] a defense.” Id. To the contrary, the reacted portions of the Redacted Opinion tend to inculpate Defendant further in the charged crimes. It is also notable that the redacted portions constitute only three lines in a twenty-seven page opinion. For all these reasons, disclosure is not warranted.
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CONCLUSION For the reasons set forth above, Defendant’s motion to release the Unredacted Opinion to his security cleared counsel is denied in its entirety. SO ORDERED.

Dated: Brooklyn, New York April 6, 2017

______________/s/______________ DORA L. IRIZARRY Chief Judge

14

 
 Case 1:11-cr-00623-DLI Document 174 Filed 08/22/17 Page 1 of 3 PageID #: 1804

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------------x

UNITED STATES OF AMERICA,

:

:

Plaintiff,

:

:

-against-

:

:

AGRON HASBAJRAMI,

:

:

Defendant.

:

----------------------------------------------------------------x

DORA L. IRIZARRY, Chief United States District Judge:

SUMMARY ORDER 11-CR-623 (DLI)

On April 17, 2017, Defendant Agron Hasbajrami (“Defendant”) filed a letter seeking

reconsideration of this Court’s April 6, 2017 Memorandum and Order (“M & O”) denying

Defendant’s motion to grant his counsel access to the redacted portions of the Honorable John

Gleeson’s February 18, 2016 decision denying Defendant’s motion to suppress intercepted

electronic communications. (See Defendant’s Letter for Reconsideration (“Def. Ltr.”), Dkt. Entry

No. 172.) Per the Court’s instruction, the government responded on May 1, 2017. (See Response

to Defendant’s Letter (“Gov. Resp.”), Dkt. Entry No. 173.)

“The standard for granting [a motion for reconsideration] is strict, and reconsideration will

generally be denied unless the moving party can point to controlling decisions or data that the court

overlooked—matters, in other words, that might reasonably be expected to alter the conclusion

reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (internal

citations omitted). Typical grounds for reconsideration include “‘an intervening change of

controlling law, the availability of new evidence, or the need to correct a clear error or prevent

manifest injustice.’” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d

99, 104 (2d Cir. 2013) (quoting Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245,

1255 (2d Cir.1992)). “[A] motion for reconsideration is not an opportunity for litigants to reargue

Case 1:11-cr-00623-DLI Document 174 Filed 08/22/17 Page 2 of 3 PageID #: 1805
their previous positions or present new or alternative theories that they failed to set forth in connection with the underlying motion.” Callari v. Blackman Plumbing Supply, Inc., 988 F. Supp.2d 261, 287 (E.D.N.Y. 2013) (internal citations omitted).
Defendant has not met the standard for granting a motion for reconsideration. Defendant moves for reconsideration under the disingenuous guise of seeking “clarification” as to the nature of the redacted information considered by Judge Gleeson. Defendant merely restates his earlier arguments rejected by both Judge Gleeson and this Court, without citation of any new authority or any facts or case law the Court did not consider. This Court already has considered the precise questions presented in Defendant’s Letter, and determined that neither the Classified Information Procedures Act (“CIPA”) nor the Foreign Intelligence Surveillance Act (“FISA”) compels or allows disclosure of an unredacted copy of Judge Gleeson’s opinion.
Under FISA, this Court determined that Defendant’s counsel was not entitled to an unredacted copy of Judge Gleeson’s opinion “because releasing it would reveal classified foreign intelligence information and circumvent FISA by undermining the purpose of section 1806(f).” (M & O at 6.) Further, the Court found that “FISA does not mandate disclosure in order to help defendants make an appeal.” (Id. at 7.)
This Court held that “CIPA does not compel or regulate the discovery of classified information contained in a court’s written opinion.” (Id. at 11.) The Court noted that, “[b]ecause Judge Gleeson conducted his review of the classified materials by relying on FISA, the Court holds that FISA determines whether or not Defendant’s attorneys have a ‘need-to-know’ the contents of the Unredacted Opinion.” (Id. at 12). This Court concluded that, “[a]pplying FISA, defense counsel do not have a ‘need-to-know’ the contents of the Unredacted Opinion” and found that
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“[t]he redacted content neither facilitates countering the government’s case nor bolsters a defense.” (Id. at 13.)
Accordingly, Defendant’s letter seeking reconsideration is denied.

SO ORDERED.
Dated: Brooklyn, New York August 22, 2017

/s/ DORA L. IRIZARRY
Chief Judge

3

 
 15-2684C(Las)e 1:11-cr-00623-DLI Document 177 Filed 12/19/19 Page 1 of 89 PageID #: 1810 United States of America v. Agron Hasbajrami

15-2684, 17-2669 United States of Americi. v. Agron Hasbajrami

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2018

Argued; August 27, 2018

Decided: December 18I 2019

Docket No. 15-2684-L; 17-2669-CON

UNITED STATES OF AMERICA,

Appellee,

Before:

- V. -
AGRON HASBAJRAMt Defendant-Appellant.
LYNCH, CARNEY, and DRONEY, Circuit Judges.

Agron Hasbajrami was arrested at John F. Kennedy International Airport in September 2011 and charged with attempting to provide material support to a terrorist organization. After he pleaded guilty, the government disclosed, for the first time, that certain evidence involved in Hasbajrami's arrest and prosecution had been derived from information obtained by the government without a warrant pursuant to its warrantless surveillance program under Section 702 of the FISA Amendments Act of 2008. Hasbajrami then withdrew his initial plea
CERTIFIED COPY ISSUED ON 12/18/2019

Case 1:11-cr-00623-DLI Document 177 Filed 12/19/19 Page 2 of 89 PageID #: 1811
and moved to suppress any fn1its of the Section 702 surveillance. The district court (Gleeson, then-].) denied the motion to suppress and Hasbajrami again pleaded guilty, this time pursuant to a conditional guiJty plea that allowed him to appeal the district court's ruling denying his motion to suppress.
He now appeals, arguing inter alia that the warrantless surveillance and the collection of his communications violated the Fourth Amendment. We conclude that the collection of the communications of United States persons incidental to the lawful surveillance of non-United States persons located abroad does not violate the Fourth Amendment and that, to the extent that the government's inadvertent targeting of a United States person led to collection of Hasbajrami's communications, he was not harmed by that collection. -
Because there is insufficient information in either the classified or the public record in this case to permit us to determine whether any such querying was reasonable, and therefore permissible under the Fourth Amendment, we REMAND the case to the district court for further proceedings consistent with this opinion.
MICHAEL K. BACHRACH, Law Office of Michael K. Bachrach, New York, NY, Joshua L. Oratel, Joshua L. Dratel, P.C., New York, NY, and Steve Zissou, Steve Zissou & Associates, Bayside, NY, for Defe,1dant-Appellant Agron Hasbajrami.
SETH D. DUCHARME, David C. James, Saritha Komatireddy, Assistant United States Attorneys, Joseph F. Palmer, Attorney, National Security Division, United States Department of Justice for Richard P. Donoghue, United Stales District Attorney for the Eastern District of New York, Brooklyn, NY,for the United States of America.
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PATRICK TOOMEY and Ashley Gorski, American Civil Liberties Foundation, New York, NY, Mark Rumold and Andrew Crocker, Electronic Frontier Foundation, San Francisco, CA, Amici Curiae American Civil Liberties Union and Electronic Frontier Foundation.
GERARDE. LYNCH, Circuit Judge: This case concerns the Fourth Amendment implications of the
government's increasing technological capacity for electronic surveillance in foreign intelligence and terrorism investigations, and the balance our constitutional system requires between national security and individual privacy.
On September 6, 2011, Defendant-Appellant Agron Hasbajrami ("Hasbajrami") was arrested as he attempted to board a flight to Turkey at John F. Kennedy International Airport in Queens, New York. His luggage contained a tent, boots, and cold-weather gear. The government, which had collected Hasbajrami's electronic communications, charged him with attempting to provide material support to a terrorist organization, alleging that he intended to travel to the Federally Administered Tribal Area of Pakistan, where he expected to join a terrorist organization, receive training, and ultimately fight "against U.S. forces and others in Afghanistan and Pakistan." App'x at 44. During the course of the prosecution, the government disclosed that it had collected some of its
3

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evidence under the Foreign Intelligence Surveillance Act of 1978 ('''FISA"}, Pub, L. No. 95-511, 92 Stat. 1783 (1978), codified at 50 U.S.C. § 1801 et seq., and that it intended to introduce FISA-derived evidence at any eventual trial. Faced with the evidence, including his own incriminating communications, Hasbajrami ultimately pleaded guilty to attempting to provide material support to terrorists in violation of 18 U.S.C. § 2339A. He was sentenced to 180 months in prison.
Hasbajrami was already serving his sentence when the government provided him with a supplemental letter disclosing, for the first time, that some of the evidence it had previously disclosed from FISA surveillance was itself the fruit of earlier information obtained without a warrant pursuant to Section 702 of the FISA Amendments Act ("Section 702"), Pub. L. No. 110-261, 122 Stat. 2436 (2008), codified at 50 U.S.C. § 1881a.
It is that Section 702-derived evidence - primarily electronic communications between Hasbajrami and individuals without ties to the United States and located abroad - that is at issue in this appeal. FoIIowing the disclosure of Section 702 surveillance, the district court Gohn Gleeson, then-J.) permitted Hasbajrami to withdraw his plea; Hasbajrami subsequently moved to suppress all evidence seized by the government under its Section 702 programs,
4

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as well as any fruits of that surveillance, including the evidence obtained pursuant to FISA warrants and incul patory statements Hasbajrami made upon arrest. The district court denied the motion to suppress, and Hasbajrami again pleaded guilty, reserving his right to appeal the district court's denial of his suppression motion.
The vast majority of Section 702 surveillance at issue here involves information the government collected about Hasbajrami incidental to its surveillance of other individuals without ties to the United States and located abroad.
1 This opinion has been reviewed by appropriate intelligence agencies for the purpose of redacting material that includes or references classified information. After an initial redaction, the panel met ex parte with representatives of those agencies in order to discuss potential substitutions or modified phrasing that would minimize the need for redaction, and the possibility that certain information referenced in the opinion could be declassified, thus further
5

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In light of that disclosure, and the evidence in the public and classified
record, we reach three principal conclusions:
First, the "incidental collection" of communications (that is, the collection of the communications of individuals in the United States acquired in the course of the surveillance of individuals without ties to the United States and located abroad) is permissible under the Fourth Amendment. We therefore conclude, in agreement with the district court, that, at least insofar as the record available to the district court is concerned, the vast majority of the evidence detailed in the record was lawfully collected.
Second, the "inadvertent collection" of communications
of those located within the United States (that is, the acquisition of communications accidentally collected because an intelligence agency mistakenly believes that an individual is a non�United States person located abroad and therefore targets that individual's e-mail address under its Section 702 authority) raises novel constitutional questions. We do not reach those
reducing the need for redaction. That meeting was transcribed for the record, and the transcript (which is itself classified) will be preserved as part of the record of this appeal in the custody of a Classified Information Security Officer with the Department of Justice's Litigation Security Group. The meeting was extremely productive, and has resulted in a modest number of changes of wording that do not affect the substance of the opinion, and a significant reduction in the amount of redacted material. It is of course regrettable that any part of an opinion disposing of a criminal appeal is unavailable for public inspection. However, we have neither the authority, nor the expertise, nor the inclination to overrule classification decisions made by the relevant executive branch agencies. We respect the need for such classification of sensitive national security information, and appreciate the cooperation of the agencies in the effort to limit the need for modifications and redactions.
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questions today because we are satisfied that, to the extent such accidental collection occurred in this case, any information thus acquired did not taint the investigation or prosecution of Hasbajrami.
Third, querying databases of stored information derived
from Section 702-acquired surveillance also raises novel and difficult questions. Querying, depending on the particulars of a given case (such as what databases are queried, for what purpose1 and under what
circumstances), could violate the Fourth Amendment,
and thus require the suppression of evidence; therefore, a district court must ensure that any such querying was reasonable. But no information about any queries conducted as to Hasbajrami was provided to the district court, and the information provided to us on this subject is too sparse to reach a conclusion as to the reasonableness of any such queries conducted as to Hasbajrami.
Given these conclusions, further proceedings are necessary to determine (a) what
(if any) evidence relevant to Hasbajrami was obtained by the government by
querying databases, (b) whether any such querying violated the Fourth
Amendment and, if so, (c) whether any such violation tainted other lawfully­
collected evidence. We therefore REMAND the case to the district court for
further proceedings consistent with this opinion.
BACKGROUND
This appeal concerns the legal status of evidence of Hasbajrami's electronic
communications with individuals located abroad, which was collected by the
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government without a warrant pursuant to the government's authority under Section 702. The background to this appeal may be easily summarized: Hasbajrami sought to suppress evidence the government acquired under Section 702, arguing that the government had violated his Fourth Amendment rights when it seized his communications without a warrant, and that those communications, and any information that the government later collected as the fruit of that initial warrantless surveillance, should therefore be suppressed. The district court declined to suppress the evidence, and Hasbajrami pleaded guilty while reserving his right to appeal the district court's decision.
But our disposition of the case turns in part on the particulars of how Section 702-acquired surveillance was used in Hasbajrami's prosecution; a fuller accounting of the facts of Hasbajrami's case and the nature of Section 702 surveillance is therefore necessary. First, we begin by describing Hasbajrami's arrest and the initial proceedings in which he pleaded guilty, the subsequent disclosure of Section 702 surveillance, Hasbajrami's withdrawal of his guilty plea, and his subsequent motion to suppress. Second, we describe in broad terms the operation of Section 702 surveillance. Third, we turn to the district court's discussion of the use of Section 702 evidence (that it was aware of) in this case,
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and its denial of the suppression motion. Finally, we describe the proceedings at the district court following its denial of the suppression motion, and the proceedings on appeal. I. Allegations and Initial Proceedings
The conduct underlying Hasbajrami's prosecution occurred primarily between April and August, 2011. During that time, Hasbajrami communicated by e-mail with "Individual #1," a non-American located abroad, who Hasbajrami believed was associated with a terrorist organization, In those e-mails, Hasbajrami discussed his interest in the group's terrorist operations, and Individual #1 instructed Hasbajrami how he could smuggle himself into Pakistan to join the organization. Individual #1 also detailed means by which Hasbajrami could send money to him and how Hasbajrami could contact him once he reached Pakistan. In discussing his plans to join Individual #1 in Pakistan, Hasbajrami also described his arrangements for traveling to Turkey, and his concern that his projected route from there to Pakistan might have been compromised.
Following an investigation by the agents of the Federal Bureau of Investigation's Joint Terrorism Task Force, Hasbajrami was arrested as he was
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about to board a flight to Istanbut Turkey. His luggage contained a tent, boots, and cold-weather gear. Upon arrest, Hasbajrami made certain inculpatory statements.
A. Initial Proceedings Hasbajrami was indicted on September 8, 20lt and charged with one count of providing material support to terrorist organizations. At the same time, and as required by statute, the government gave notice that it "intend[ed] to offer into evidence, or otherwise use or disclose in any proceedings ... information obtained or derived from electronic surveillance and physical searches conducted pursuant to [FISAJ.11 See Notice of Intent to Use Foreign Intelligence Surveillance Act Information, United States v. Hasbajrami, l:ll-cr-623 (E.D.N.Y. filed Sept. 13, 2011), ECF No. 9. In discovery, Hasbajrarni was provided with evidence of his communications obtained pursuant to traditional FISA warrants,2 and he
2 As detailed below, this opinion will use "traditional FISA" to describe FISA surveillance that was authorized by statute prior to the enactment of Section 702. The FISA Amendments Act will be referred to as the "FAA," of which Section 702 is one part.
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eventually pleaded guilty on April 12, 2012, to one count of providing material sup port to terrorists. He was sentenced to 180 months' imprisonment.
B. Disclosure of Section 702 Surveillance, Withdrawal of Plea, and Motion to Suppress
After Hasbajrami's initial plea and sentencing, and while Hasbajrami was serving his sentence, the government disclosed that it had coUected Hasbajrami's communications under Section 702 of the FAA.3 In a letter sent to Hasbajrami in February 2014, the government stated that "based on a recent determination," it had concluded that the information obtained from FISA surveillance that the government had already disclosed "was itself also derived from other collection pursuant to Title VII of FISA [i.e., Section 702] as to which you were aggrieved." App'x at 31. The government stated that "certain evidence and information ... that the government intended to offer into evidence or otherwise use or disclose
3 The government's provision of notice in this case was likely in response the Solicitor General's assertion, at oral argument before the Supreme Court in Clapper v. Amnesty International USA, 568 U.S. 398 (2013), that prosecutors wo uld provide notice to defendants in cases where evidence was derived from Section 702 surveillance. See Charlie Savage, Door May Open Challenge to Secret Wiretaps, N.Y.Times (Oct. 17, 2013), at A3. While the government's policy prior to Clapper was not to provide notice of Section 702 surveillance, it began reviewing cases and providing supplemental notice in 2013. Id.
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in proceedings in this case was derived from acquisition of foreign intelligence information conducted pursuant to the FAA." Id.
In response to that disclosure, Hasbajrami sought leave to withdraw his plea. The district court granted that motion, finding that Hasbajrami had "specifically asked [his counsel] about whether warrantless wiretaps had played a role in his case. After [counsel] informed him that such wiretaps were not part of the evidence, he was more willing to plead guilty. Thus, Hasbajrami seems to have been misled about a fact he considered important in deciding how to plead." App'x at 39. Furthermore, the government's misleading notice, according to the district court, prevented Hasbajrami from kno wing that he could challenge the evidence against him on the grounds that Section 702 was unconstitutional. The court concluded that, prior to the letter disclosing Section 702 surveillance, Hasbajrami "was not sufficiently informed about the facts" to have ''made an intelligent decision about whether to plead guilty[.] When the government provided FISA notice without FAA notice, Hasbajrami was misled about an important aspect of his case." App'x at 38. Accordingly, the court allowed him to withdraw the plea and reopened the case.
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Hasbajrami then moved to suppress "the fruits of all warrantless FAA

surveillance," the motion that is at issue in this appeal. See Omnibus Motions at

8-9, United States v. Hasbajrami, 1:ll-cr-623 (E.D.N.Y. filed Nov. 26, 2014), ECF

No. 92 ("Suppression Motion"). He described what he sought to suppress, "the

fruits of all warrantless FAA surveillance," as including:

• •
• •
Id.

all evidence and information derived as a result of Title VII warrantless FAA surveillance; all evidence and information "obtained or derived from Title I and Title III PISA collection ... [that was] itself also derived from other collection pursuant to Title VII" of the FAA; Hasbajrami's custodial statements; and Any other evidence and information that the Government could not have obtained in this case through an independent source.

To properly understand the scope of Hasbajrami's motion, however, it is

necessary to describe the statutory framework underpinning Section 702

surveillance and the way in which the program operates in practice.

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II. Section 702 Surveillance4
In order to ensure national security, the United States maintains several
programs aimed at the surveillance of those who pose threats to its safety. These
programs each draw on a wide vari�ty of authority, including executive orders,
statutory provisions, and agency procedures and guidance. See generally Diana
Lee, Paulina Perlin & Joe Schottenfeld, Gathering Intelligence: Drifting Meaning and
4 The purpose of this section is to provide the general background necessary to understand the parties' arguments and it is not intended to provide a comprehensive description of the way in which each agency implements Section 702 surveillance. Additionally, as detailed below, each agency must seek approval of its Section 702 procedures each year, including changes in operation. Our intention is thus only to describe the program in broad terms. We note, moreover, that many Section 702 procedures remain highly classified, including the specific procedures under which the collection of Hasbajrami's communications would likely have taken place. Our discussion here is drawn from declassified public sources and in large part from the report on Section 702 surveillance produced by the Privacy and Civil Liberties Oversight Board. See Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (fuly 2, 2014), https://www.pclob.gov/library/702-Report.pdf ("PCLOB Report"). The PCLOB is an independent agency within the executive branch, authorized by statute., inter alia, to "analyze and review actions the executive branch takes" and "ensure that liberty concerns are appropriately considered" in the government's development and implementation of anti-terrorism programs. See 42 U.S.C. § 2000ee(c). The PCLOB is composed of five members, appointed by the President and confirmed by the Senate. Id. § 2000ee(h).
Accordingly, we discuss the program, and changes in its operation over time, only to the extent that the details are (a) relevant and (b) public.
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the Modern Surveillance Apparatus, 10 J. of Nat'l Sec. L. & Pol'y 77 (2019) (describing several separate authorities for surveillance, including FISA and Section 702, each with separate operating standards). Hasbajrarni's appeal specifically implicates the government's statutory authority under FISA, first enacted in 1978, and more specifically the amendments to FISA, including Section 702, enacted in 2008.5
FISA was first enacted in response to revelations about the government's electronic surveillance of the domestic communications of United States citizens. See David S. Kris & J. Douglas Wilson, National Security Investigations and Prosecutions§ 3:7 ("Kris & Wilson"). "Traditional FISA" surveillance, as surveillance under the FISA has come to be known following the enactment of the FAA in 2008, governed surveillance inside the United States, in the context only of national security investigations rather than domestic criminal prosecutions. See id. § 4:2. For those national security investigations, FISA established procedures governing the collection of information derived from
5 While Section 702 was first enacted in 2008, the fact that any e-mails tied to Americans were sometimes collected under its authority was not made public until June 2013, when "two classified [National Security Agency ("NSA")J collection programs were first reported by the press based on unauthorized disclosures of classified documents by Edward Snowden, a contractor for the NSA." PCLOB Report at 1.
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electronic surveillance, physical searches, ''pen/trap" surveillance1 and tangible­ things production orders, and the use of information so obtained. See id. § 4:5.
In order to initiate traditional FISA surveillance, the government must submit an application to a court demonstrating that there is "probable cause to believe that 'the target of the electronic surveillance is a foreign power or agent of a foreign power,' and that each of the specific '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."' See Clapper, 568 U.S. at 403 (quoting FISA § 105(a)(3)). FISA applications are reviewed by two specialized courts: the Foreign Intelligence Surveillance Court (11FISC") and the Foreign Intelligence Surveillance Court of Review ("FISCR"),. both composed of Article III federal judges assigned to their role by the Chief Justice of the United States.
See id.; Kris & Wilson § 5:1 (describing jurisdiction of FISC and FISCR).
Applications are submitted under oath by a federal officer and must describe, among other things, whom the government wishes to search or surveil, the place or things to be searched or surveilled, the sort of information the government expects to gather, and the existence and nature of any prior FISA applications targeting the individual. See generally Kris & Wilson§ 6:2.
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Traditional FISA had some limitations, however. Because each application required a court order, which in turn required probable cause, the government believed 11th.at, after September 11, 2001, [FISA's] requirements unduly restrict[ed the] speed and agility" with which the government could detect and respond to terrorist threats. See id. § 16:2 (internal quotation marks omitted). Additionally, the advent of e-mail "clearly expanded traditional FISA's reach." Id.§ 16:6. Communications, such as phone calls, between two individuals without ties to the United States and located abroad were outside the purview of FISA, and any collection of such communications that occurred would not be constrained by its procedures. Id. But as such communication increasingly came to be conducted by e-mail, many of those e-mails would ultimately be stored on servers within the United States, and thus "the government could not conduct warrantless surveillance in the U.S. of stored e-mail messages exchanged between two parties located abroad'' without following the procedures laid out in FISA. Id.
First enacted in 2008, Section 702 was intended to address some of FISA's perceived limitations.6 Section 702 allows the Attorney General ("AG") and
6 President George W. Bush initially authorized the NSA "to conduct warrantless wiretapping of telephone and e-mail communications where one party to the communication was located outside the United States" and one party was believed to be a member of a terrorist organization. See Clapper., 568 U.S. at 403.
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Director of National Intelligence ("DNI") to "authorize jointly ... the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.'' 50 U.S.C. § 1881a(a).7 That targeting is primarily executed by compelling electronic service providers, including internet service providers and companies that maintain the communications infrastructure, to "immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition [of communications of an individual or his or her account] in a manner that will protect the secrecy of the acquisition and produce a minimum of interference with the services that such electronic communication service provider is providing to the target of the acquisition." 50 U.S.C. § 1881a(i)(l)(A).
Following public revelations of the program, Congress passed the Protect America Act ("PAA"), Pub. L. No. 110•55, 121 Stat. 552 (2007), which far a limited period of time allowed the government to use surveillance procedures similar to those contained in the FAA. See In re Directives, 551 F.3d 1004, 1006-07 (FISA Ct. Rev. 2008). The PAA expired on February 16, 2008. See id. at 10 06 n.1. 7 Like other sections of the FISA, Section 702's definition of "United States person" includes lawful permanent residents (such as Hasbajrami). See 50 U.S.C. § 1801(i) (defining "United States personu to be a "citizen of the United States, an alien lawfully admitted for permanent residence" or certain unincorporated associations or corporations with ties to the United States).
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Section 702 differs from traditional FISA procedures in several key respects. First, Section 702 does not require a probable cause determination before undertaking surveillance. Clapper, 568 U.S. at 404. Second, Section 702 "does not require the Government to specify [in a FlSA application] the nature and location of each of the particular facilities or places at which the electronic surveillance will occur." Id. Instead, as detailed below, the FISC approves Section 702 procedures in advance, targeting non-United States persons located abroad as a category, and the government does not have to return to the FISC to seek approval before it undertakes surveillance of any specific individual or his or her accounts under those Section 702 procedures. See Kris & Wilson§ 17:17.
In short, under the FAA and Section 702 the government may compel service providers located in the United States to provide e-mails or other electronic communications to, from, or about individuals the government believes are (a) not United States persons and (b) located abroad.8 Both under the
8 The FAA also contains two sections, Sections 703 and 704, that address the direct targeting of individual United States persons outside the United States for electronic surveillance. See Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content, 38 Harv. J.L. & Pub. Pol'y 117, 142-44 (2015). The procedures followed "generally reflect the structure employed by traditional FISA with regard to electronic surveillance and physical search.'' Id. at 143. These sections are codified at 50 U.S.C. §§ 1881h and 1881c, and are not at issue in this appeal.
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stahltory scheme and in practice, Section 702 surveillance unfolds in several different steps, each with different implications for this Court's review. The first step is what the statute and intelligence community refers to as "targeting," followed by collection, "minimization," retention and storage, and, finally, dissemination and querying.9 We will discuss each step in turn.
A. "Targeting" Targeting generally refers to the decision to surveil an individual or his or her channels of electronic communications, such as an e-mail address. The government may not "intentionally target" for Section 702 surveillance anyone located in the United States or a "United States person" outside the United States. 50 U.S.C. §§ 1881a(b)(1), (3). Nor may it target a non-United States person "if the purpose of such acquisition is to target a particular, known person
reasonably believed to be in the United States.n 50 U.S.C. § 188la(b)(2).
9 Some of these terms, such as collection, are terms of art, but their use is not necessarily uniform across the various government agencies or for different forms of surveillance. See, e.g., Lee, Perlin & Schottenfeld, Gathering Intelligence at 95 (highlighting "definitional variances" for terms like collection, acquisition, and targeting across the various surveillance programs). For the purposes of providing background to Hasbajrami's case, we define the terms primarily as each is used by the PCLOB.
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The precise mechanisms each agency must follow to target communications are not specified by the statute. Instead, Section 702 requires the AG and the DNI to adopt targeting procedures each year that will govern how the program functions at each agency tasked with Section 702 surveillance. See 50 U.S.C. §§ 1881a(a), (d). While labelled targeting procedures, the procedures are just as much about who is not to be targeted under Section 702 (that is, how to prevent acquisition of the communications of those in the United States or who are United States persons) as about setting out who is to be targeted. In this opinion, our concern with "targeting' is with the procedures designed to protect the constitutional privacy rights of Americans and comply with the Fourth Amendment inside the United States, and not with the obviously confidential
procedures and criteria by which United States intelligence agencies decide
which non-United States persons located abroad are appropriate objects of surveillance.
The targeting procedures are supposed to ensure that any authorized acquisition is "limited to targeting persons reasonably believed to be located outside the United States" and to "prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at
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the time of the acquisition to be located in the United States.n 50 U.S.C.
§ 1881a(d)(l). Targeting procedures are also subject to the limitations related to targeting United States persons outlined above. SO U.S.C. § 1881a(b). The NSA and the FBI each develop targeting procedures tailored to the agency's particular mission and purpose in using Section 702-acquired information. PCLOB Report at 41-43, 47.
Once the required procedures have been formulated, the DNI and AG
must seek approval of their proposed targeting procedures from the FISC. 50 U.S.C. § 1881a(d)(2). The FISC reviews the proposed standards for compliance
with both statutory and constitutional requirements. See, e.g., In re Proceedings Required by 702(i) ofFISA Amendments Act of2008, No. MISC 08-01, 2008 WL
9487946, at •s (FISA Ct. Aug 27, 2008); Redacted, 2011 WL 10945618 at •1 (FISA Ct.
Oct. 3, 2011) ("Bates Decision"). In contrast to traditional domestic search
warrants and FISA warrants, which authorize searches or seizures of specific persons, places, or things based on individualized probable cause, judicial review of Section 702 functions as a form of programmatic pre-clearance. "[T}he Court is required to consider whether the targeting ... procedures adopted by the Government meet the requirements of the statute and ... are consistent with
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the Fourth Amendment. The Court is not required, in the course of this Section 702(i} review, to reach beyond the Government's procedures and conduct a facial review of the constitutionality of the statute." In re Proceedings, 2008 WL 9487946, at ,.5; see also PCLOB at 26·31 (describing judicial review proceedings under Section 702).
Once its procedures are approved by the FISC, an agency can begin surveilling individuals it seeks to target. The NSA ''initiates all Section 702 targeting, and thus makes all initial decisions pursuant to its targeting procedures.'' PCLOB Report at 42. According to the PCLOB, the CIA and the FBI can "'nominate' targets to the NSA for Section 702 targeting" but the NSA is required to ·"make the determination whether to initiate targeting." Id.
Section 702 surveillance usually begins when an agency "tasks" a specific "selector" or "facility," usually an e•mail address or telephone number. See id. at 32. Much information about the targeting standards used by the NSA remains classified, but generally "[i}f they are to fulfill their purposes ... [the targeting procedures submitted to the FISC for approval] should contain a description of factors that in isolation or combination justify a reasonable belief that the target is abroad.'' Kris & Wilson § 17:7. According to one commentator, the NSA "has
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created a presumption of non-U.S. person status/' assuming "that the individual is a non-U.S. person" if the agency does not know its target is a United States
person. See Donohue, Section 702 at 158. B. Collection Once an account or facility such as an e-mail address has been targeted, the
intelligence agencies may then begin to collect information related to that particular address. Such information includes e-mails to and from a given account, or information "about" a given account.
1. PRISM and Upstream Collection
The NSA operates two separate types of collection programs which collect different types of information. These two programs have come to be labelled
PRISM collection and upstream collection.
Under PRISM, the FBI (on behalf of the NSA) sends "selectors" (for instance, an e-mail address) to internet service providers ("ISPs"), based in the United States. The ISPs are then required to provide communications sent to or
from that selector to the NSA. See PCLOB Report at 33-34. PRISM, therefore,
collects only the e-mails a given user sends from his or her account, and the e­ mails he or she receives from others through that account. Id. at 34. Collection
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and review of such material happens roughly in real time, or close to real time. In
other words, �he collected e-mails are not simply swept into a database for use at some unspecified future time when the database is queried, but are monitored and analyzed at or near the time of their collection. In that regard, the interception and review of electronic communications under PRISM resembles a traditional domestic law enforcement wiretap.
Upstream collection is broader. Instead of compelling information from an ISP, the NSA instead compels information from "the providers that control the telecommunications backbone over which communications transit." PCLOB Report at 35. Upstream fills a gap in PRISM surveillance. Id. If, for instance, an individual that the NSA sought to target maintained his or her e-mail account with a foreign internet service provider, that e-mail address would be out of reach of the PRISM program. In that situation, the NSA could use upstream collection to collect traffic to that account as it traversed the backbone. Id. Upstream collection is broader than PRISM, in that it captures not only conversations to and from a given e-mail address, but also communications "about" that address (i.e., a conversation between two parties not themselves targeted that happens to mention whatever the tasked term is). See id. at 37-38.
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One key difference between PRISM and upstream collection is that PRISM collects individual communications, while upstream collects whole 1'multi­
communication transactions," or "MCTs." Id. at 39. "An Internet transaction
refers to any set of data that travels across the Internet together such that it may
be understood by a device on the Internet." Id. Thus, a transaction might contain a single discrete com munication (e.g., a single e-mail), or it could contain "multiple discrete communications," and "[i]f a single discrete communication
within an MCT is to, from, or about a Section 702-tasked selector, and at least one end of the transaction is foreign, the NSA will acquire the entire MCT" under
upstream collection. Id. The result is a "greater likelihood" that upstream
collection will "result in the acquisition of wholly domestic communications and
extraneous U.S. person information." Id. at 41. The NSA is the only agency that
receives upstream collection; the CIA and FBI are not provided with information
obtained in this manner and do not store it in their databases. Id. at 54. 2. Incidental and Inadvertent Collection
As detailed above, the statute primarily authorizes agencies like the NSA to collect the e-mails of "non-United States persons" located abroad. But even if the government scrupulously follows the procedures intended to restrict
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collection of communications to and from persons with ties to the United States, the agencies might still end up collecting information about United States persons or those located in the United States, or communications sent to or from a United States person or an individual located in the United States.
Collection may sweep up those individuals' e-mails in two ways, conventionally referred to as "incidental collection" and "inadvertent collection." First, collection might be "incidental." PCLOB Report at 114. Incidental collection occurs when a non-targeted individual (a United States person or someone in the United States) communicates with a targeted non-United States person located abroad. Such collection would occur under PRISM, for instance, if the NSA has targeted the e-mail address of a non-United States person in another country, and a United States person e-mails that targeted individual. An ISP would be required to provide the NSA with any such e-mails as part of its compliance with a Section 702 directive targeting the non-United States party to the communication.
Second, collection might be "inadvertent." Id. at 116. Inadvertent collection occurs when the NSA reasonably believes that it is targeting a non-United States person located abroad, or does not have enough information to determine
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whether an individual e-mail address or other communications facility is being used by a United States person or accessed from within the United States, and therefore presumes that the account is controlled by a foreigner outside the United States. The collection is characterized as "inadvertent" when the agency learns that the person controlling the account is a United States person after it has already acquired some of the person's communications. In essence, inadvertent collection occurs when the NSA targets United States persons or individuals located within the United States in error: the agency thought it was targeting a foreign individual abroad, but the targeted person was in fact a United States person or an individual located in the United States.
C. "Minimization"
In general terms, minimization describes the manner in which the government processes communications after they have been collected and seeks to provide safeguards against the misuse of Section 702 information. See PCLOB Report at SO. The 2011 Minimization Procedures, which have been declassified, apply "to the acquisition, retention, use, and dissemination of non-publicly available information concerning unconsenting United States persons that is acquired by targeting non-United States persons reasonably believed to be
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located outside the United States." Se,e Minimization Procedures Used by the National Security Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, As Amended§ 1, National Security Agency (Oct. 31, 2011),
https://www.dni.gov/files/documents/ Minimization%20Procedures%20Used%20By%20NSA%20In%20Connection%20 With%20FISA%20Section%20702.pdf ("NSA 2011 Minimization Procedures").10
As with their targeting procedures, the NSA, FBI, and CIA must seek yearly approval of their minimization procedures from the FISC. 50 U.S.C. § 1881a(e)(2). Section 702 requires that each agency also adopt procedures that prohibit the disclosure of information about United States persons in a manner that identifies them, unless that identity is necessary to understand the
intelligence information. See 50 U.S.C.§ 1881a(e)(1) (cross-referencing 50 U.S.C. §§ 1821(4) and 1801(h)); see also Kris & Wilson§ 9:1. By statute, the procedures
must ensure ''that nonpublicly available information, which is not foreign intelligence information ... shall not be disseminated in a manner that identifies
10 These minimization procedures were submitted to the FISC for approval after Hasbajrami's arrest, and therefore did not govern the operation of Section 702 during the time period relevant here.
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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." 50 U.S.C. § 1801(h)(2).
Minimization procedures seek to "balance the government's need to acquire, retain, and disseminate foreign intelligence information, against the countervailing privacy interests of U.S. persons." Kris & Wilson§ 9:1; PCLOB Report at 50 ("Minimization procedures are best understood as a set of controls on data to balance privacy and national security interests."). The meaning of the term as used in the FISA context is subtly different from what it means in the more familiar context of court-authorized domestic electronic surveillance by law enforcement agencies under traditional domestic wiretaps. In the latter context, minimization procedures generally involve stopping the monitoring of communications that can be determined in real time to be non-evidentiary. In the context of Section 702 surveillance, the information subject to minimization has already been collected. After review, it is either retained or destroyed; information is "minimized'' by non-retention. NSA analysts are instructed to "exercise reasonable judgment in determining whether information acquired must be minimized and will destroy inadvertently acquired communications of
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or concerning a United States person at the earliest practicable point in the processing cycle at which such communication can be identified either: as clearly not relevant to the authorized purpose of the acquisition (e.g., the communication does not contain foreign intelligence information); or, as not containing evidence of a crime which may be disseminated under these procedures."11 NSA 2011 Minimization Procedure§ 3(b)(l).
After an NSA analyst reviews an individual e-mail communication, he or she will decide if the information warrants retention in the NSA's databases and/or dissemination to other agencies. The analyst will determine if "it is a domestic or foreign communication to, from, or about a target and is reasonably believed to contain foreign intelligence information or evidence of a crime." Id. § 3(b)(4). Communications fitting this description will thus.be retained and processed; information not involving foreign intelligence information or evidence of a crime will be destroyed unless it meets one of several exceptions,
11 It is not clear whether the minimization procedures' use of "inadvertent" here
is intended broadly to invoke the word's p1ain meaning, or is used as a term of
art to apply the provision only to communications acquired as a result of "inadvertent collection," as defined above, where a United States person has been erroneously targeted.
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such as when "the communication contains information pertaining to a threat of
serious harm to life or property." Id. § 5(4).
When an e-mail or other communication is processed and retained, the information will be scanned and stored. Information that "do[es] not meet the retention standards ... and ... [is] known to contain communications of or
concerning United States persons" will be "destroyed upon recognition." Id.
§ 3(c)(l). If a target moves to the United States, or if the NSA uncovers information that the target is a United States person, "acquisition from that person will be terminated without delay." Id.§ 3(d)(l).
"[D]omestic communications" - all communications that do not have "at
least one communicant outside the United States," id.§ 2(e), "will be promptly destroyed," except under certain conditions. Id.§ 5. Such conditions include if a
communication is "reasonably believed to contain significant foreign intelligence information,'' which may be provided to the FBI (which in tum may disseminate information "in accordance with its minimization procedures"). Id. § 5(1). Information that is "reasonably believed to contain evidence of a crime that has been, is being, or is about to be committed11 may be "disseminated (including
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United States person identities) to appropriate Federal law enforcement agencies." Id. § 5(2).
D. Retention and Dissemination
As addressed above, the minimization procedures also govern the ultimate retention of surveillance materials and the "reporting of acquired information outside of [the] intelligence agency" that collects the information. PCLOB Report at 64. The minimization procedures treat retention and dissemination in similar ways: the NSA, for instance, may retain communications "in generally the same situations where the NSA is permitted to disseminate ... these communications" to other agencies. Id. at 62.
1be retention and dissemination of information gathered under the FAA is
also governed by the same restrictions that apply to traditional FISA. Id. at 64. Additional protections generally apply if the NSA, for instance, seeks to disseminate Section 702 information con taining the identity of a United States person. The NSA will then "mask" the identity, deleting any identifying information unless certain exceptions apply. These exceptions include when "the U.S. person's identity is necessary to understand foreign intelligence
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information, or the communication contains evidence of a crime and is being disseminated to law enforcement authorities." Id. at 65.
Agencies relying on NSA reporting may request that the identity of a United States person be unmasked. Id. The NSA may provide that information if at least one additional criterion is met, including when "the identity of the United States person is necessary to understand foreign intelligence information" or the information "indicates that the United States person" is an "agent of a foreign power" or the "target of intelligence activities of a foreign power." NSA 2011 Minimization Procedure § 6(b). Agencies may also request that information about a given e-mail address or facility be forwarded on a regular basis.
E. Storage and Querying Once communications are collected and retained or disseminated, each agency may establish databases to store those communications in its possession, and may query those stored communications to identify information of interest in connection with a particular investigation or agency function. The NSA, CIA, and FBI each maintain separate databases containing Section 702 information on which the agencies rely for their own purposes. PCLOB Report at 55-56. According to the PCLOB,. the NSA, for instance, 11often
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stores data acquired from multiple legal authorities in a single data repository.'' PCLOB at 55. The agency then "tags" the sources for each piece of information, and "has systems that prevent an analyst from accessing or querying data acquired under a legal authority for which the analyst does not have the requisite training."12 Id. at 55-56. The CIA limits access to databases that contain Section 702-acquired information to only those agents who have had the requisite
training. Id. at 55. And the FBI "stores electronic data obtained from traditional
FISA electronic surveillance and physical searches ... in the same repositories as
the FBI stores Section 702-acquired data." Id. at 59. An agent without requisite
training would see whether a piece of Section 702-acquired information was responsive to her query, but she would not be able to view the actual underlying material without clearance. Id.
1'Data is frequently reviewed through queries, which identify communications that have particular characteristics specified in the query, such as containing a particular name or having been sent to or from a partic ular e-mail
address." Id. at 127. Colloquially, the parties (and those engaged in policy
12 Each agency with access to Section 702 data provides training to personnel regarding the proper use of Section 702 material, as well as the agency's
minimization procedures. See PCLOB Report at 53-54. The exact training
procedures and who is trained may vary by agency.
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debates about the program) have referred to this querying capability as "backdoor searches."
Originally, the minimization procedures precluded analysts from searching terms associated with United States persons. See Classified Supplemental App'x at 121-22
In
April 2011, the government sought approval for new minimization procedures that allowed the querying of terms related to United States persons. See Bates Decision, 2011 WL 10945618 at '7-8. The FISC ultimately approved the new procedures in October 2011 (i.e., after Hasbajrami's arrest) because they were "designed to yield foreign intelligence information.'' Id. at •7_ Querying, the court stated, "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
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likely to result in the acquisition of nonpublic information regarding non­ consenting United States persons." Id.
In a June 2014 letter to Senator Wyden, Deirdre Walsh, Director of Legislative Affairs for the Office of the Director of National Intelligence, stated that each of the three agencies allowed querying. The NSA could query Section 702-acquired information if it had a "reasonable basis to expect the query will return foreign intelligence,'' as could the CIA and the FBI. See Response to Question from the 5 June 2014 Hearing, Letter from Deirdre Walsh, Director of
Legislative Affairs, to Senator Ron Wyden (June 27, 2014) ("Walsh Letter"); see also PCLOB Report at 57-58. The FBI is also allowed to query its own databases
in such a way that these queries are "designed to find and extract evidence of a crime." Walsh Letter at 2. The FBI also will query previously acquired information from a variety of sources, including Section 702 when it "opens new national security investigations." Id. at 3.
Recently, and after the time pericxl at issue in this case, Congress enacted the FISA Amendments Reauthorization Act of 2017, Pub. L. No. 115-118, 132 Stat. 3 (2018), codified at SO U.S.C. § 1881a. The act amended the FAA to require the agencies to develop "querying procedures" alongside their targeting and
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minimization procedures and seek approval of all three sets of procedures yearly from the FISC. Congress also amended the FAA to require a court order in most cases where the FBI seeks to "access the contents of communications ... that were retrieved pursuant to a query made using a United States person query term that was not designed to find and extract foreign intelligence information.'' 50 U.S.C. § 1881a{f)(2)(A). Such querying standards were not in place when the surveillance at issue here occurred. Ill. The District Court's Denial of Hasbajrami's Suppression Motion
As noted above, Hasbajrami moved to suppress "the fruits of all warrantless FAA surveillance." See Suppression Motion at 8. He also moved for discovery of the FISA and Section 702 information relevant to his case.
After the district court reviewed the relevant materials ex parte and in camera, it denied the suppression motion. See United States v, Hasbajrami, 1:11-cr623, 2016 WL 1029500 (E.D.N.Y. Feb. 18, 2016) ("Suppression Decision'').13 It treated the suppression motion as an as-applied challenge to the Section 702 surveillance used to support the government's initial application to the FISC,
13 As addressed below, the district court announced its decision on February 15, 2015, in a text order on the docket, issued without an opinion. The redacted opinion was issued on the public docket in March 2016.
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primarily addressing the issue of collection. Id. at *7. First, after noting the
,
distinction between PRISM and upstream collection, the court concluded that "[n]one of the Section 702 communications used in Title I and Title II FISA applications targeting the agent of the foreign power were 'about' communications" and therefore "the constitutionality of upstream collection [was] not at issue" in Hasbajrami's case. Id. at *6-7.
The district court then turned to PRISM collection. Summarizing precedent, the court noted that the Fourth Amendment "does not constrain the government from collecting the communications of non-U.S. individuals targeted by Section 702 surveillance." Id. at .,.7, Although Hasbajrami was a legal perm.anent resident located in the United States, the court found that it was "non-U.S. persons who were the targets of Section 702 surveillance" and that Hasbajrami's e-mails were collected incidentally to the surveillance of individuals the court described as "legitimate targets of Section 702 surveillance." Id. The court concluded that the incidental interception of the communications of individuals in the United States was constitutional because the surveillance was "lawful in the first place - whether it is the domestic surveillance of U.S. persons pursuant to a warrant or the warrantless surveillance
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of non-U.S. persons who are abroad - [and therefore] the incidental interception of non-targeted U.S. persons' communications with the targeted persons is also lawful." Id. at 11-9,
The court did not address whether any inadvertent collection related to Hasbajrami. It also did not address the specifics of any querying as applied to Hasbajrami in particular, and there does not appear to have been any fact­ finding regarding the querying of previously-collected communications with identifiers related to Hasbajrami. Instead, the parties had raised querying within the context of whether the minimization procedures were reasonable, and the government argued that it was permitted to query whatever data it had lawfully collected even ifit used identifiers it knew were associated with United States persons. See Gov't Mem. of Law at 71, United States v. Hasbajrami, 1:ll-c:r-623 (E.D.N.Y. filed Dec. 23, 2014), ECF No. 97. To the extent that the district court considered querying, then, it appeared to adopt the government's position, stating in a footnote:
That the government is able to query information obtained under the PRISM program, i.e. lawfully­ obtained communications that were to or from legitimate targets, does not render the minimization procedures inadequate, as amici contend .... Here, once the government learned that the target was potentially
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an agent of a foreign power, the government sought orders from the FISC for electronic surveillance and physical searches pursuant to Title I and Title III of FISA targeting an agent of a foreign power.... I agree with the government that "[i]t would be perverse to authorize the unrestricted review of lawfully collected information but then [] restrict the targeted review of the same information in response to tailored inquiries." Gov't Br. at 71-72. Suppression Decision, 2016 WL 1029500 at *12 n.20.
As for Hasbajrami's request to provide discovery to properly-cleared
defense counsel, the district court concluded that disclosure was unnecessary. Id.
at "'14. Instead, its review was "relatively straightforward and not complex" and
the district court was "able to evaluate the legality of the challenged surveillance without concluding that due process first warranted disclosure." Id. at *14 (citing
United States v. Abu-Jihaad, 630 F.3d 102, 129 (2d Cir. 2010)).
IV. Further Proceedings at the District Court
The district court denied the motion to suppress in a text order dated
February 20, 2015. The order stated that "[a]n opinion [would] follow," but that
the motion would be denied as to "the fruits of the FAA surveillance, including
the defendant's post-arrest statements." App'x at 16. The court noted that it would hold a conference and "inquire of the government whether it intends to
offer once again the charge bargain that was previously accepted by the 41

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defendant, and whether it has considered the prospect of allowing the defendant to enter such a plea pursuant to Rule ll(a)(2), reserving his right to seek appellate review of [the district court's] denial of the motion to suppress evidence." Id.
The parties prepared for trial, but Hasbajrami in due course again pleaded guilty, this time to a two-count Superseding Information, which charged him with providing and attempting to provide material support to terrorists. According to the terms of the agreement, Hasbajrami:
[A]gree[d] not to file an appeal or otherwise challenge ... the conviction or sentence in the event that the Court imposes a term of imprisonment of 180 months or below, with the sole and limit�d exception that, pursuant to Federal Rule of Criminal Procedure ll(a)(2), the defendant may appeal the District Court's February 20, 2015 denial of his motion to suppress evidence that was obtained or derived from surveillance conducted pursuant to the FISA Amendments Act of 2008, 50 U.S.C. §§ 1881a et seq. App'x at 48. Hasbajrami also consented to his removal, after serving his sentence, from the United States. The district court sentenced H asbajrami to a term of 180 months' imprisonment on Count One and 12 months' imprisonment on Count Two, each to run consecutively.
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On March 8, 2016 - more than one year after it denied the motion - the district court issued a redacted opinion on the public docket explaining its reasons for denying suppression. Hasbajrami requested that the full decision be released to his cleared defense counsel, so that he might better prepare his appeal. The court (Dora L. Irizarry, C./.)14 held that PISA required redaction and that "Defendant's counsel are not entitled to view the Unredacted Opinion because releasing it would reveal classified foreign intelligence information and circumvent FISA .... " United States v. Hasbajrami, l:11-cr-623, 2017 WL 3610595 at "'3 (E.D.N.Y. April 6, 2017).
V. Proceedings on Appeal Hasbajrami timely filed two notices of appeal. The first addressed the
district court's denial of Hasbajrami's motion to suppres s; the second addressed the district court's decision to deny Hasbajrami' s counsel access to the unredacted and unmodified version of the suppression ruling. Both appeals were consolidated and argument was heard by this Court on August 27, 2018.
At oral argument, the government was unable to represent whether or not identifiers related to Hasbajrami had been used in querying previously-acquired
14 By this point, the case had been transferred to Chief Judge Irizarry following Judge Gleeson's resignation.
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Section 702 surveillance databases. This Court therefore ordered the government to "identify(] the record evidence that supports the proposed factual inference that it conducted no queries or back.door searches of Section 702 material with regard to Hasbajrami before or leading to the FISA court's issuance of Title I and
Title ID warrants with respect to Hasbajrami." Order, United States v. Hasbajrami,
Nos. 15-2684, 17-2669 {2d Cir. Sept. 4, 2018), ECF No. 203. Both parties filed supplemental briefing, including an additional classified
brief from the government (which was posted, heavily redacted, on the public do cket for this appeal).
DISCUSSION Hasbajrami primarily raises an as-applied challenge to the constitutionality of warrantless collection and review of his communications under Section 702. 15 As the PCLOB notes, judicial review of Section 702 surveillance presents particular challenges because the program:
entails many separate decisions to monitor large numbers of individuals, resulting in the annual collection of hundreds of millions of communications of 15 Hasbajrami also raises an alternative statutory argument, arguing that suppression was warranted because he claims the surveillance did not comply with the requirements of Section 702 itself. The Court has carefully considered the argument, in light of the classified record, and finds it without merit.
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different types, obtained through a variety of methods, pursuant to multiple foreign intelligence imperatives, and involving four intelligence agencies that each have their own rules governing how they may handle and use the communications that are acquired. PCLOB Report at 86. In other words, review is difficult because we must consider those individual "separate decisions" within the context of the program as a whole.16 In this case, it is undisputed that the government possessed ample evidence obtained from surveillance authorized by a FISA warrant to convict Hasbajrami. The evidence that formed the basis for that warrant however, was obtained as a result of warrantless Section 702 surveillance of non-United States persons located abroad. Thus, the primary issue, affecting the bulk of the evidence against Hasbajrami, is whether the incidental collection of the communications of United' States persons, without a warrant, violates the Fourth Amendment. We conclude, as did the district court, that such collection is lawful. But that is not the only action involving Section 702 surveillance at issue here.
16 When reviewing a district court's denial of a motion to suppress evidence, we review the court's legal determinations de novo and its factual findings for clear error. United States v. Boles, 914 F.3d 95, 102 (2d Cir. 2019). The issues on appeal are legal, and therefore our review here is de nova.
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We must also address inadvertent collection, storage and querying, as each of these issues is raised by the record.
The record is sufficient to permit us to answer the principal question before us: we conclude that the district court correctly held that the incidental collection in this case, and the government's use of the information thus collected, was lawful. The record also permits us to conclude that, even assuming that inadvertent collection of the communications of United States persons may in some circumstances violate the Constitution, the effect of any such collection in this case was harmless beyond a reasonable doubt. The absence of evidence in the record regarding
, however, prevents us from determining the reasonableness of any such querying prior to the FISC's probable-cause finding, and from fully understanding how if at all the results of such querying affected the subsequent conduct of the investigation. As a result, we must remand for further proceedings and fact­ finding by the district court.
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I. ..,Incidental" Collection The primary type of Section 702 collection we must address here involves
"incidental" collection. The government was "targeting," within the meaning of Section 702, the accounts of individuals located abroad who were reasonably believed to be agents of terrorist organizations. In collecting communications from those accounts, the government collected e-mails between Hasbajrami and
In reviewing Hasbajrami's suppression motion, the district court focused on this incidental collection, ultimately concluding that a warrant was not required and the government's actions were reasonable.
On appeal, Hasbajrami and the amici argue that the Fourth Amendment bars the incidental collection of e-mails of individuals, like Hasbajrami, located in
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the United States. First, they argue that surveillance of individuals in the United
States is per se unreasonable if it is conducted without a warrant. They also focus
on the specific attributes of warrants - the particularity requirement, the need for a neutral judicial forum and a finding of probable cause - and argue that Section 702,. the targeting and minimization procedures, and FISC oversight do not provide a substitute procedure sufficient to satisfy the Fourth Amendment. According to Hasbajrami, the broad scope of Section 702's surveillance and the government's failure to seek a warrant or its equivalent render the program unconstitutional as applied to him and therefore requires the suppression of evidence acquired under the program.
We disagree. In addressing the issues before us, we adopt an approach similar to that employed by the United States Court of Appeals for the Ninth
Circuit in United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016). We must first
decide whether a warrant is required for the government's incidental collection of the communications of United States persons. We conclude that a warrant is not required for such collection. But "[e]ven 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, 569 U.S. 435, 448 (2013); see also
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Mohamud, 843 F.3d at 441. We further conclude that the incidental collection of Hasbajrami's e-mails was reasonable.
A. No Warrant was Required We conclude that a warrant is not required based on two well-established principles of Fourth Amendment law. First, the Fourth Amendment does not apply extraterritorially to the surveillance of persons abroad, including United
States citizens. Second, law enforcement officers do not need to seek an additional warrant or probable cause determination to continue surveillance when, in the course of executing a warrant or engaging in other lawful search activities, they come upon evidence of other criminal activity outside the scope of the warrant or the rationale justifying the search, or the participation of individuals not the subject of that initial warrant or search.
First, the Fourth Amendment (and, in particular, its warrant requirement) does not apply extraterritorially. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). In Verdugo-Urquidez, agents from the United States Drug Enforcement Agency, working alongside Mexican law enforcement, raided without a warrant properties in Mexico owned by the defendant. Id. at 262-63. The agents believed that the defendant was the leader of a narcotics smuggling ring and they seized
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documents and "a tally sheet" detailing quantities of drugs possessed and transported. Id. Prior to trial, the defendant sought suppression of the evidence, arguing that the agents should have sought a warrant before searching his property. Id. at 263-64.
The Supreme Court held that suppression of the evidence was not required, because the Fourth Amendment does not apply to extraterritorial actions by law enforcement, at least where the "[the defendant] was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico." Id. at 274-75. "Under these circumstances," the Court held, "the Fourth Amendment ha[d] no application." Id. at 275.
This Court has since extended Verdugo-Urquidez's holding to conclude that the Warrant Oause of the Fourth Amendment does not apply to the surveillance of United States citizens abroad. See In re Terrorist Bombings, 552 F.3d 157, 171 (2d Cir. 2008). The defendant in that case, a United States citizen with a home in Kenya, had "urged the suppression of the evidence resulting from the ... [electronic] surveillance of his Kenyan telephone lines'' because it was not authorized by a valid warrant or, alternatively, because the surveillance was
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unreasonable. Id. at 160. This Court held that "the Fourth Amendment's Warrant Clause has no extraterritorial application and that foreign searches of U.S. citizens conducted by U.S. agents are subject only to the Fourth Amendment's requirement of reasonableness." Id. at 171. \Ve determined that the searches in that case were ultimately reasonable and therefore suppression of the evidence was not required.
Verdugo-Urquidez and In re Terrorist Bombin&s make it dear that the Fourth Amendment does not requirl:! the government to obtain a warrant before collecting the e-mails of foreign individuals abroad. Nor can there be any question that the electronic surveillance of foreign individuals located abroad who are reasonably believed to hold themselves out as agents and - of terrorist organizations targeting the United States is reasonable within the meaning of the Fourth Amendment. Efforts to monitor the activities of such individuals to detect and forestall possible te rrorist attacks on this country present a paradigm case of a compelling government interest. The protections extended by the Fourth Amendment to foreign individuals abroad, if any, are minimal and plainly outweighed by the paramount national interest in preventing foreign attacks on our nation and its people.
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But while the warrantless surveillance of foreign individuals abroad under the circumstances that existed here presents no cognizable constitutional problem, we must nevertheless still consider what protections the Fourth Amendment provides individuals located within the United States who communicate with the foreign individuals abroad lawfully targeted under Section 702.
The second Fourth Amendment principle implicated by incidental collection speaks directly to that concern. The Fourth Amendment generally is not violated when law enforcement officers, having lawfully undertaken electronic surveillance, whether under the authority of a warrant or an exception to the warrant requirement, discover and seize either evidence of criminal activity that they would not have had probable cause to search for in the first place, or the relevant conversations of an individual they did not anticipate or name in a warrant application. See, e.g., United States v. Donovan, 429 U.S. 413,427 & n.15 (1977) (noting, as to domestic wiretaps, "[i]t is not a constitutional requirement that all those likely to be overheard engaging in incriminating conversations be named."); United States v. Figueroa, 757 F.2d 466,472 (2d Cir. 1985) ("More particularly, the mere fact that Title III allows interception of
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conversations of 'others as yet unknown' do es not render the statute unconstitutional on its face as authorizing a general warrant.'').
This line of cases has come to be known as the "incidental overhear" doctrine. See, e.g., Suppression Decision, 2016 WL 1029500 at ""9 (noting that "[c]ourts have long dealt with the issue of incidental interception of non-targeted persons' communications" and collecting cases). Courts have repeatedly held that law enforcement agents do not need to obtain a separate warrant to collect conversations of persons as to whom probabl e cause did not previously exist with individuals whose oral or wire communications are being collected through a lawful wiretap or bug, where those conversations on their face contain evidence of criminal activity.17 See, e.g., Donovan, 429 U.S. at 427 & n.15; Figueroa, 757 F.2d at 472; see also In re Certified Question of Law, 858 F.3d 605 (FISA Ct. Rev. 2016) (finding incidental collection of content information reasonable where warrant was obtained only for non-content dialing information); United States v.
17 The "incidental overhear" doctrine is closely related to the "plain view" doctrine applied in connection with physical searches. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 465-67 (1971) (describing plain view doctrine and noting that "[t]he doctrine serves to supplement the prior justification - whether it be a warrant ... , hot pursuit, search incident to lawful arrest, or some other legitimate reason for being pr esent unconnected with a search directed against the accused - and permits the warrantless seizure."}.
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Stewart, 590 F.3d 93, 129 (2d Cir. 2009) (concluding. in challenge to Title I FISA
surveillance, that "[b]ecause Stewart's co-conspirators were targeted pursuant to proper procedures, the Fourth Amendment did not require that Stewart also be identified or described as a target in order for her intercepted conversations to be used in a criminal prosecution.'') (internal citation omitted).
Combining these two Fourth Amendment principles, the government may lawfully collect, without a warrant and pursuant to Section 702, the e-mails of foreign individuals located abroad who reasonably appear to constitute a potential threat to the United States and, once it is lawfully collecting those emails, it does not need to seek a warrant, supported by probable cause, to continue to collect e-mails between that person and other individuals once it is learned that some of those individuals are United States citizens or lawful permanent residents, or are located in the United States. Accord Mohamud, 843 F.3d at 441; see also United States v. Mohammad, 339 F. Supp. 3d 724, 748-49 (N.D. Ohio 2018) (applying Verdugo-Urquidez and rejecting Fourth Amendment challenge to Section 702 surveillance where, despite marriage to United States citizen, defendant lived abroad at time of offense); United States v. Muhtorov, 187 F. Supp. 3d 1240, 1258 (D. Colo. 2015) (rejecting facial and as applied challenge to
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incidental collection under Section 702 and concluding that a warrant was not acquired and search as reasonable). That is the case even if the government would have needed, but did not have, a warrant or probable cause had it sought to collect the e-mails of the American third party in the first instance. Cf. In re Certified Question, 858 F.3d at 604 (framing constitutional issue as whether incidental content collection rendered primary dialing information collection unreasonable, not whether warrant would have been required for content collection in its own right).
Objecting to this conclusion, Hasbajrami and amici advance several
arguments seeking to apply the warrant requirement to Hasbajrami's case. Each is unavailing.
First, they argue that Verdugo-Urquidez does not control the outcome here because Section 702 collection occurs in the United States. Practically speaking, Section 702 surveillance could occur only within the United States, as the agencies can compel only ISPs located in the United States to provide e-mails.
But Fourth Amendment doctrine relating to wire or electronic communication does not focus on the location where the communication takes place. Katz v. United States, 389 U.S. 347 (1967), the seminal Supreme Court
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decision on the interception of such communication, holds that a person's privacy interest in his or her communications does not depend on whether the government ph ysically intrudes into a physical space in which that person has a property interest or an expectation of physical privacy. What matters, and what implicates the protection of the Fourth Amendment, is the expectation of privacy in the communications themselves, and therefore a warrant is required to seize even those communications made in a public telephone booth. Conversely, by the same reasoning, a person who does not have a Fourth Amendment-protected privacy interest in his communications, such as a foreign national resident abroad, does not acquire such an interest by reason of the physical location of the intercepting device. At least where the communication is collected essentially in real time as it occurs, the targeted communication, whether conducted over telephone wires or via the internet, occurs in the relevant sense where the person whose calls or e-mails are being intercepted is located, regardless of the location of the means used to intercept it.
Second, Hasbajrami argues that the surveillance cannot be properly considered "incidental" where the government can or even does expect to collect conversations with people with ties to the United States or located within its
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borders. While we have concerns, expressed below, about the potential scope of Section 702 surveillance, those concerns are less applicable where, as here, collection and review are occurring nearly contemporaneously and that collection is ancillary to lawful surveillance of a permitted target. In the nahlre of law enforcement, there is always a possibility that the collection of evidence against a person who there is already probable cause to believe is involved in criminal activity or who is otherwise legitimately subject to surveillance will also develop information about others not previously reasonably suspected of wrongdoing. There is no contention here that the Section 702 surveillance was undertaken as a pretext to collect the communications of Hasbajrami, or of any other identified United States person or person located in the United States. That the overall practice of surveilling foreigners abroad of interest to the legitimate purpose of gathering foreign intelligence information may predictably lead to the interception of communications with United States persons no more invalidates that practice, or requires the government to cease its surveillance of the target until a warrant is obtained, than the general foreseeability of intercepting communications with previously unknown co~conspirators undermines the inadvertent overhear doctrine in ordinary domestic criminal wiretapping.
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Finally, Hasbajrami and amid seek to distinguish the i11 ncidental overhear" line of cases, noting that in those cases there was already an initial warrant supported by probable cause. They agree, however, that "the incidental overhear cases simply stand for the proposition that the government need not obtain multiple warrants to intercept protected communications." Brief of Amici Curiae American Civil Liberties Union and Electronic Frontier Foundation at 15, United States v. Hasbajrami, No. 15-2684 (2d Cir. Oct. 23, 2017} (emphasis in original). That is exactly the point here: once that initial surveillance is rendered lawful by a warrant, a FISC order, or some other exception to the warrant requirement, an additional warrant is not necessary in order to collect the calls or e-mails of third parties. As the district court recognized, once the surveillance was "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." Suppression Decision, 2016 WL 1029500 at ""9. The reason why the initial surveillance was lawful does not matter to this conclusion.
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Case 1:11-cr-00623-DLI Document 177 Filed 12/19/19 Page 59 of 89 PageID #: 1868
Accordingly, the incidental collection of United States persons' e-mails during lawful foreign intelligence surveillance of foreigners located abroad is not per se unreasonable because the collection is done without a warrant.
B. Incidental Collection of E-mails under Section 702 is Reasonable
Even absent a warrant requirement, however, the government's action must still be reasonable, at least insofar as it affects United States persons, to be consistent with the Fourth A mendment. King, 569 U.S. at 448. "To determine whether a search is reasonable under the Fourth Amendment, we examine the totality of the circumstances to balance, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate government interests." ln re Terrorist Bombings, 552 F.3d at 172 (internal quotation marks omitted).
For the purposes of Hasbajrami's appeal, we may assume that a United States person ordinarily has a reasonable expectation in the privacy of his e-mails sufficient to trigger a Fourth Amendment reasonableness inquiry when the government undertakes to monitor even foreign communications in a way that can be expected to, and in fact does, lead to the interception of communications
with United States persons. See, e.g., United States v. Warshak, 631 F.3d 266, 285-86
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Case 1:11-cr-00623-DLI Document 177 Filed 12/19/19 Page 60 of 89 PageID #: 1869
(6th Cir. 2010) (analogizing between letters and e-mails and finding reasonable expectation of privacy). In other words, we can assume that the government may not eavesdrop, without reasonable justification, on the conversations of United States persons (even abroad) with foreign nationals, simply because the United States person is interacting with a foreigner. Even assuming that a United States person might be understood to take some risk that the person with whom he or she is communicating is under surveillance, it does not follow that an American communicating with a foreign national must take the risk that the person with whom he is communicating is subject to unreasonable, or indiscriminate, electronic surveillance, or that communicating with foreigners subjects the American national himself or herself to continuing surveillance.
But such a privacy interest can be outweighed by the government's "manifest need to monitor'' the communications of foreign agents of terrorist organizations operating abroad, and this need outweighs that interest in privacy and makes the incidental collection of communications between such foreigners and United States persons reasonable. In re Terrorist Bombings, 552 F.3d at 172. Even in the context of conventional warfare, identifying domestic agents of foreign powers is a principal concern of intelligence-gathering. The need to
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identify potential domestic co�conspirators of hostile foreign persons or groups is even greater in the context of informal non-state terrorist organizations and movements. The recruitment of persons inside the United States or the placement of agents here to carry out terrorist attacks is one of the very threats that make it vital to surveil terrorist actors abroad. The communications of terrorist operatives abroad with persons inside the United States is thus of particular importance, and at least as important as monitoring the communications of foreign terrorists abroad among themselves.18
The logic of this conclusion is dear and compelling. If it is reasonable and indeed necessary to the national security - for intelligence agencies to monitor the communications of suspected foreign terrorists abroad, the need to keep track of the potential threat from abroad does not lessen because some of the suspect's contacts turn out to be American nationals, or foreign nationals located within the United States. And when the conversations being monitored
18 The same reasoning defeats any argument that such monitoring should be limited to the acquisition of foreign intelligence, and that communications collected for that purpose should not be made available to domestic law enforcement agencies. There is little point in having intelligence agencies collect information abroad if those agencies are not able to share what they learn with domestic law enforcement when the information they acquire points to ongoing or impending criminal activities inside our borders.
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constitute evidence of criminal conspiracies between the foreign operative and someone located within the United States, the urgency becomes greater, not less. The logic of the plai n view and inadvertent overhear cases fully applies: when an officer executing a lawful search or electronic surveillance warrant, or otherwise engaged in a lawful search, comes upon evidence of a previously unsuspected crime, or learns of the involvement of a previously unsuspected individual, the officer is not required to stop and obtain a new warrant to seize the item or to continue monitoring the phone line for which the warrant was obtained. The seizure of evidence of a crime in plain view without a warrant is a reasonab le seizure. In the same way., when evidence of a potential crime involving an American comes to light during the lawful surveillance of a foreign operative abroad, it is entirely reasonable within the meaning of the Fourth Amendment for the government to continue monitoring the conversations of that operative with the American as well as with his or her other associates.1'.I
19 Of course, if the government wishes to expand the investigation to monitor the communications of the newly discovered United States-connected suspect, it
-would be required to obtain a conventional Title III or traditional PISA warrant 62

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In balancing Hasbajrami's privacy interest with the government's concern for national security, then1 we conclude that the totality of the circumstances here weighs in the government's favor. The incidental collection of communications between targeted foreigners abroad and United States persons or persons in the United States is thus reasonable. For similar reasons, when the intelligence information properly collected raises reasonable grounds to believe that a crime is being committed or planned in the United States, dissemination of the information to a domestic law enforcement agency such as the FBI is also reasonable.
In summary, the district court reached the correct conclusions regarding incidental collection: the initial targeting of individuals without ties to the United States and located abroad is lawful; there is no need for a wanant in order to collect incidental communications by United States persons to and from those individuals; and both the collection of such communications and the dissemination of information from such collection about potential criminal actions within the country to domestic law enforcement are reasonable under the Fourth Amendment. Were such incidental collection the only Section 702 material relevant to Hasbajramts motion, we would simply affirm the district
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court's ruling. But, as the record rurrently stands, we must also consider additional issues. II. "Inadvertent" Collection
The district court's ruling on the suppression motion did not address whether any e-mail accounts of United States persons or individuals within the United States, including Hasbajrami, had been "inadvertently" targeted, that is, targeted by mistake under the presumption that an address was controlled by a non-United States person.
Upon reviewing the classified record, in particular its ex parte proceedings under the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3, § 1 et seq., it is clear that the district court was made aware of one instance of the direct targeting of an e-mail account controlled by a United States person that resulted in the collection of Hasbajrami's communications. Before the incidental collection discussed above, the NSA had directly targeted at least one such e-mail address. Like the later incidental collection, the NSA had originally been monitoring communications with individuals it reasonably believed were non-United States persons located abroad, and as a result discovered an e-mail from the United States person. At that time, however, NSA analysts concluded, wrongly, that the
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account holder was not a United States person. The NSA therefore tasked the account (a different account than those that were the subject of incidental collection detailed above) in its own right, and collected communications from the account for several weeks. The agency eventually detasked the account after it concluded it was not yielding significant intelligence information, but it did not initially purge the information because it did not discover until later that the account holder was a United States person. The related Section 702-acquired material, which included communications to and/or from Hasbajrami, stayed in NSA databases, however, and was not disseminated to domestic law enforcement, until the agency conducted a search of these databases in 2014 following the initiation of Hasbajrami's pro secution.
The inadvertent collection of communications raises complicated questions. First, as a statutory matter, Section 702 prohibits the targeting of e­ mail accounts that the government knows to be maintained by United States
persons. See 50 U.S.C. § 1881a(b). But the statute thus appears to prohibit only
knowing or intentional targeting, and not to address situations where the government is mistaken, reasonably or unreasonably. Does the express prohibition of targeting accounts known to be those of United States persons
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Case 1:11-cr-00623-DLI Document 177 Filed 12/19/19 Page 66 of 89 PageID #: 1875
implicitly authorize the targeting of any account not known with certainty to be that of a United States person? If there is evidence of a high likelihood that the account belongs to a United States person and the government proceeds to target it without taking steps to investigate further, does the willful blindness standard, which equates such deliberate indifference to actual knowledge in many legal
contexts, apply? Cf. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766-69
(2011) (discussing willful blindness doctrine). Second1 the Fourth Amendment calculus for such collection would be
different than the one employed in considering incidental collection. Incidental collection is justified because the "target" of the surveillance cannot rely on the Fourth Amendment's protections, as discussed above. But a United States citizen or lawful permanent resident, located in the United States, assuming a reasonable expectation of privacy, would be protected by the Fourth Amendment. Is the Fourth Amendment prohibition of "unreasonable" searches violated if the government unreasonably (recklessly or negligently) concludes that the targeted account is that of a foreigner located abroad? Is it permissible for the government to adopt a presumption that, under all circumstances or in the presence of one or more key indicia, an account holder whose identity is
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unclear should be treated as foreign? Would the later discovery that the account did i ndeed belong to a United States person require the minimization, or the suppression in a criminal case, of inadvertently collected conversations?
A district court reviewing a motion to suppress evidence inadvertently collected (or derived from inadvertent collection) would have to address these issues, and perhaps others, in deciding whether the government's reliance on inadvertent collection in an investigation or prosecution was reasonable within the meaning of the Fourth Amendment.
But we need not decide those questions today because we are satisfied that any inadvertent collection disclosed to the district court was harmless. The interception of communications from the inadvertently targeted account was brief, lasting only approximately two weeks. The materials collected, whatever they were, were not used in applying for the FISA warrant - indeed, their very existence seems to have been unknown to anyone involved in the criminal investigation of Hasbajrami, as the inadvertent targeting of the account in question was not even discovered by the government until well into the prosecution of this case. And finally, the collection was terminated because the government itself determined that nothing of any intelligence value was being
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learned. Presumably that conclusion would not have been reached if the collected conversations were indicative of criminal terrorist plots, or were of evidentiary value to a criminal investigation.
Thus, even assuming arguendo that there was some legal infirmity in the decision to begin collection despite uncertainty about the status of the account, or to continue it once at least some evidence pointing to a possible United States source for the account was discovered, we conclude, even in the context of a conditional guilty plea, that the failure to suppress the results of that collection was harmless beyond any reasonable doubt. III. Querying
There is a third issue in this case, however: the storage of Section 702 information in databases and the subsequent querying of those databases by the government. The district court did not make any findings regarding whether the NSA, the FBI or any other agency queried databases with regard to Hasbajrami prior to the FISC order. Instead, it appeared to accept the government's argument, framed within the context of a discussion of whether the minimization procedures provided adequate protections so as to make collection reasonable, that the government could freely query information it had lawfully acquired
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without further Fourth Amendment inquiry. See Suppression Dedsion, 2016 WL
1029500 at *12 n.20 ("I agree with the government that it would be perverse to authorize the unrestricted review of lawfully collected information but then restrict the targeted review of the same information in response to tailored inquires.") (internal alterations and quotation marks omitted).
The government renewed this argument on appeal. FoUowing oral argument, during which the government would neither confirm nor deny whether it had queried any databases of Section 702-acquired information, this Court ordered further briefing. The government
Cov't Supplemental Classified Br. at 6-7 (emphasis added).
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Like inadvertent collection, the storage and querying of information raises challenging constitutional questions, to which there are few dear answers in the case law. Cf. In re Directives, 551 F.3d at 1015 (dismissing petitioner's concerns, under the PAA, because the "government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary."). The issue was not addressed by the Ninth Circuit inMohamud, which explicitly left open the question of whether "the incidental overhear doctrine permits the unconstitutional and widespread retention and querying of the incidentally collected information," stating that the issue was "not before [the court]." 843 F.3d at 440 n.24. The district court in Mohamud did reach the question, however, and it concluded that the "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." United States v. Mohamud, No. 3:10-cr-475-KI-1, 2014 WL 2866749, at *26 (D. Or. June 24, 2014), affd, 843 F.3d 420 (9th Cir. 2016).
We do not find that logic persuasive. Storage has little significance in its own right: the lawfully-collected communications, even of United States persons, continue to serve the same foreign intelligence purpose in the continued
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surveillance of a foreign operative, whether his interlocutor is a United States person or a citizen and resident of some other country. The material is justifiably retained, not to keep tabs on a United States person, but to keep tabs on the non­ United States person abroad who has been targeted.20
But querying that stored data does have important Fourth Amendment implications, and those implications counsel in favor of considering querying a separate Fourth Amendment event that, in itself, must be reasonable. Our reasoning is based on three considerations.
First, courts have increasingly recognized the need for additional probable cause or reasonableness assessments to support a search of information or objects that the government has lawfully collected. It is true that the FBI does not need an additional warrant to go down to its evidence locker and look through a box of evidence it collected from a crime scene. But lawful collection alone is not always enough to justify a future search.
In Riley v. California, the Supreme Court held that a warrant was necessary
to search a cell phone, even when that cell phone was lawfully seized pursuant to
20 The considerations might be different if the storage involved data responsive to a warrant and retained for the purpose of a domestic criminal prosecution. This Court, sitting en bane, considered similar issues in United States v. Ganias, 824 F.3d 199 (2d Cir. 2016), although we ultimately did not need to decide them.
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a search incident to a lawful arrest. 573 U.S. 373, 401 (2014). Several circuit court decisions have reached similar conclusions. In United States v. Sedaghaty, for instance, the government had searched a defendant's home pursuant to a warrant focused on tax violations. 728 F.3d 885,912 (9th Cir. 2013). Agents seized nine computers, which forensic experts searched with "an evolving list of search terms" in order "to comb through the computers for useful materials," eventually finding evidence confirming the defendant was supporting Chechen terrorist groups. Id. The Ninth Circuit concluded that the searches beyond the scope of the warrant were improper, noting that the government "should not be able to comb through [the defendant's] computers plucking out new forms of evidence that the investigating agents have decided may be useful" after it failed to find evidence of willfulness regarding the tax returns. Id. at 913. To do so required a new warrant, even though the government already had access to the machines and had lawfully seized them. See also United States v. Runyan, 275 F.3d 449, 464-65 (5th Cir. 2001) (finding that police exceeded the scope of a private search when they "examined disks that the private searchers did not examine" and would have required a warrant to do so); United States v. Mulder, 808 F.2d 1346, 1349 (2d Cir. 1987) (holding that a separate warrant was needed to test
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packages in suitcase for drugs, even though the suitcase was lawfully sei.1.ed via private search).
Second, Section 702 is sweeping in its technological capacity and broad in its scope. In the case of the incidental collection discussed above, - was collecting and reviewing e�mails for its own foreign intelligence purposes in
, and reporting �vidence that it obtained suggesting on-going criminal activity in the United States. Such activity is closely analogous to precedents drawn from traditional domestic criminal wiretapping. As discussed above, it is not difficult to conclude that, like "incidentally overheard" criminal conversations and evidence of crimes seized in plain view, the collection and use of information obtained in this way is reasonable within the meaning of the Fourth Amendment.
But the vast technological capabilities of the Section 702 program, estimated by the PCLOB as totaling nearly 250 million e-mails annually by 2011 and likely larger numbers since then, may mean that analysts are not reviewing each of those e-mails contemporaneously with their collection. PCLOB Report at 116, 128-29. If such a vast body of information is simply stored in a database, available for review by request from domestic law enforcement agencies solely
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on the speculative possibility that evidence of interest to agents investigating a particula r individual might be found there, the program begins to look more like a dragnet, and a query more like a general warrant, and less like an individual officer going to the evidence locker to check a previously-acquired piece of evidence against some newfound insight
The Supreme Court has expressed increasing concern about the interaction between Fourth Amendment precedent and evolving government technological capabilities. Riley rested in part on the fact that "[c]ell phones ... place vast quantities of personal information literally in the hands of individuals." 573 U.S. at 386. "A search of the information on a cell phone [therefore] bears little resemblance to the type of physical search considered" in past cases. Id.; see also Ganias, 824 F.3d at 217-18 (noting privacy implications of expansive technology and data storage). And in Carpenter, the Court concluded that a warrant (or a valid substitute) was required to acquire cell-site records, even though they were stored by a third party and under traditi onal Fourth Amendment doctrine a cellphone user would not have an expectation of privacy in such information:
We decline to grant the state unrestricted access to a wireless carrier's database of physical location information. In light of the deeply revealing nahlre of [this information], its depth, breadth, and
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comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government's acquisition of the cell-site records here was a search under that Amendment. Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018). Third, as a practical matter, querying is problematic because it may make it easier to target wide-ranging information about a given United States person at a point when the government knows it is investigating such a person. Section 702 forbids the government from targeting a non-United States person as a backdoor way of targeting a United States person. 50 U.S.C. § 1881a(b). But, as detailed above, in the course of its intelligence gathering operations, the NSA may have collected all sorts of information about an individual, the sum of which may resemble what the NSA would have gathered if it had directly targeted that individual in the first place. To permit that information to be accessed indiscriminately, for domestic law enforcement purposes, without any reason to believe that the individual is involved in any criminal activity and or even that any information about the person is likely to be in the database, just to see if there is anything incriminating in any conversations that might happen to be there, would be at odds with the bedrock Fourth Amendment concept that law
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enforcement agents may not invade the privacy of individuals without some objective reason to believe that evidence of crime will be found by a search. Treating querying as a Fourth Amendment event and requiring the query itself to be reasonable provides a backstop to protect the privacy interests of United States persons and ensure that they are not being improperly targeted.
Fourth, much may dep end on who is querying what database. There is a potentially significant difference between, for example, the FBI querying its own database and the FBI requesting that the NSA query its far larger archive of collected communications, collected pursuant to a broader mandate. As w e understand the public sources of information about the collection and use of Section 702 material, the FBI maintains its own records of communications provided to it by the NSA. See PCLOB Report at 58-59. Such communications presumably were provided because review of the material properly collected by the NSA under Section 702 uncovered evidence of criminal activity (relating to terrorism or otherwise), and were appropriately communicated to domestic law enforcement. Just as the FBI may act on such information where it requires immediate criminal investigation, it may w ell be appropriate for the agency to retain the information and store it for later review when other legitimate
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evidence or leads make that information relevant to an on-going investigation. Such a review of the agency's own files is arguably analogous to traditional law enforcement techniques; evidence lawfully collected does not always accumulate to a sufficient quantity to warrant an immediate arrest or indictment, but may be retained and later reviewed when additional evidence is developed. FBI queries directed to a larger archive of millions of communications collected and stored by the NSA for foreign intelligence purposes, on the chance that something in those files might contain incriminating information about a person of interest to domestic law enforcement, raise different concerns.
What kinds of querying, subject to what limitations, under what procedures, are reasonable within the meaning of the Fourth Amendment, and when (if ever) such querying of one or more databases, maintained by an agency of the United States for information about a United States person, might require a warrant, are difficult and sensitive questions. We do not purport to answer them here, or even to canvass all of the considerations that may prove relevant or the various type s of querying that may raise distinct problems.
Indeed, we cannot do so on the sparse record presented. We do not know what databases were queried by whom, for what reasons, what (if any)
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information was uncovered by such queries, or what (if any) use was made of any information uncovered. The government has represented that no information derived from any such queries was presented to the FISC to obtain the FISA warrant, but has not addressed whether any such information contributed to the investigation in other ways.
Given these considerations, the district court here must conduct an inquiry into whether any querying of databases of Section 702-acquired information using terms related to Hasbajrami was lawful under the Fourth Amendment. Fo r today we need only reiterate that "the ultimate touchstone of the Fourth Amendment is reasonableness." Riley, 573 U.S. at 381; cf Abu4Jihaad, 630 F.3d at 121-22 (stating that, even in the application of the warrant requirement, the requirement is "flexible, so that different standards may be compatible with the Fourth Amendment in light of the different purposes and practical considerations at issue.") (internal quotation marks and citations omitted).
We cannot, and should not, go further, pending development of a more complete record by the district court on remand, and an assessment by the
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district court as to whether whatever was done was consistent with the Fourth
Amendment and whether, if there was any illegality, any evidence should have
been suppressed in response to Hasbajrami's motion.21
IV. Hasbajrami's Conditional Plea and Resolution of the Motion to Suppress As addressed above, there is still an open issue as to what queries of
Section 702-acquired information occurred in this case, whether any such queries
were reasonable and, if unreasonable, whether the queried information tainted
the application before the FISC or in some other way would lead to the
suppression of any evidence.
But in its post•argument briefing, the government argues that even if it did
query Section 702 databases, that action ultimately could not matter because the
11 On November 14, 2019, Hasbajrami filed a Rule 280) letter alerting this Court to three recently declassified opinions from the FISC and FISCR. See In re DNI/AG 702(h) Certifications 2018, 941 F.3d 547 (FISA Ct. Rev. 2019); Redacted (FISA Ct. Sep. 4, 2019); Redacted, 2018 WL 9909971 (PISA Ct. Oct. 18, 2018). Based on our review, we do not believe that these opinions substantively affect our decision because, even to the extent that their approach differs from ours, they are not binding on this Court. Since we are remanding for the district court to further assess this issue with the benefit of a more complete record, we decline to engage further at this time. We did not find it necessary to review the unredacted versions of these opinions in reaching this conclusion and, therefore, Hasbajrami's request for access to the unredacted versions of these opinions is DENIED.
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communications collected as a result of incidental collection would provide an independent source sufficient to support the FISC's probable cause determination. Gov't Supplemental Classified Br. at 9 (arguing that "this Court's analysis should be limited to alleged 'searches' where a causal link can be drawn between the search and the acquisition of the evidence that Hasbajrami seeks to suppress.").
The government relies primarily on Murray v. United States, 487 U.S. 533 (1988). In Murray, federal law enforcement agents surveilling the defendant witnessed him drive into a warehouse in South Boston. Id. at 535. Agents
arrested the defendant and a co-conspirator after they drove away from the warehouse and, upon arrest, the agents discovered marijuana in the defendant's truck. The agents then forced entry into the warehouse, where they "observed in plain view numerous burlap-wrapped bales that were later found to contain marijuana. They left without disturbing the bales, kept the warehouse under
surveillance," and re-entered only after obtaining a warrant. Id. In applying for
the warrant, however, the agents did not advise the court of their prior entry; they also did not rely on their observations of the contents of the warehouse in
order to establish probable cause. Id. at 536. The Supreme Court held that
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suppression of the evidence eventually seized from the warehouse would not be

required "if the warrant-authorized search of the warehouse was an independent

source of the challenged evidence.'' Id. at 543-44. Although "[k)nowledge that the

marijuana was in the warehouse was assuredly acquired at the time of the

unlawful entry ... 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

i ndependent

source

doctrine

should

not

apply.

1 '

Id.

at

541.

Even assuming the government was querying databases simultaneously

with its incidental collection activities, according to the government's position its

agents would be analogous to the agents in Murray. Their subjective

understanding of the evidence might have been affected by the fruits of an

unreasonable search, and had they relied on that evidence in support of a

warrant application they might not be able to use the evidence obtained by

executing that warrant. But, according to the government, if the information they

placed before the FISC, and that court's subsequent probable cause

determination, rested on other information, that "later acquisition was not the

result of the earlier [search]1' and so "there is no reason why the independent

source doctrine should not apply." Id. at 541.

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We cannot apply the independent source doctrine on the record currently before us. Had this case gone to trial, our task would be significantly different. Under those circumstances, we could have undertaken to trace, as the Ninth Circuit did in Mohamud, 843 F.3d at 438 & n.21, individual pieces of evidence that had actually been presented to the jury at that trial in order to as sess whether those pieces of evidence had been obtained consistent with the Fourth Amendment. And if individual pieces of evidence needed to be suppressed, the Court could then decide whether the admission of any given piece of evidence was harmless when compared to all the legally obtained evidence that was ultimately presented at trial.
But we are not reviewing the acquisition of evidence used at a trial. Rather, Hasbajrami's appeal reaches us following a conditional plea made pursuant to Rule ll(a}(2) of the Federal Rules of Criminal Procedure. Rule ll(a)(2) provides that:
With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.
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According to the Advisory Committee Notes to the 1983 Amendments, conditional pleas should be permitted 11only when the decision of the court of appeals will dispose of the case either by allowing the plea to stand or by such action as compelling dismissal of the indictment or suppressing essential evidence." See also United States v. Bundy, 392 F.3d 641, 647-48 {4th Cir. 2004). The classic example of a case in which that standard is met is a narcotics case in which the evidence sought to be suppressed is the very basis of the charge. The suppression of the evidence would end the case; if the evidence is admissible, guilt is assured; if not, no evidence of guilt remains. The situation is more problematic and complicated, however, where the suppression of some but not all of the evidence in the case is a possible outcome.
Our sister circuits have applied a harmless error calculation when evaluating whether an opportunity to withdra,w a plea is a necessary remedy after it is determined on appeal that the challenged district court ruling was, in
whole or in part, erroneous. See, e.g., United States v. Lustig, 830 F.3d 1075, 1086 (9th Cir. 2016); United States v. Rivera-Nevarez, 418 F.3d 1104 (10th Cir. 2005)
(affirming conviction on harmless error where conviction was upheld on
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grounds not considered by district court).22 Those courts have applied the harmless error rule by asking "whether the erroneous suppression ruling could
have affected [the defendant's] decision to plead guilty.'' Lustig, 830 F.3d at 1086.
But the record here is murky. It is clear that the presence or absence of Section 702 surveillance affected Hasbajrami's initial decision to plead guilty. Indeed, it was because the district court was convinced that Hasbajrami's initial decision to plead guilty was predicated in part on his lawyers' assurance that the government had represented that there was no warrantless surveillance in his case that it granted the defense motion to withdraw Hasbajrami's first guilty plea when those representations were revealed to have been inaccurate. App'x at 39 (noting that Hasbajrami "specifically asked [his counsel] about whether warrantless wiretaps had played a role in his case. After they informed him that such wiretaps were not part of the evidence, he was more willing to plead guilty."). Moreover, Hasbajrami moved to suppress all Section 702 material
22 The Advisory Committee also considered Fed. R. Crim. P. ll(h)'s harmless error calculus to apply, but it noted that, without full factual development, invocation of the harmless error rule would be difficult. The Committee noted, however, that "relatively few appellate decisions result in affirmance upon [harmless error]. Thus it will only rarely be true that the conditional plea device will cause an appellate court to consider constitutional questions which could otherwise have been avoided by invocation of the doctrine of harmless error." Fed. R. Crim. P. 11, advisory committee's notes to 1983 amendments.
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collected by the government, including matter that was not presented to the FISC to obtain the traditional FISA warrant. What is unclear is just how much Section 702-acquired information would remain, after further fact-finding at the district court. It may be that, after a full evaluation of the record in light of Hasbajrami's motion to suppress, the evidence available to the government remains very much intact. For all we know, any queries conducted by the government may have been entirely reasonable, they may not have yielded any evidence at all, and any material that was uncovered even by a putatively unconstitutional query may not have affected the investigation in any way.
However those matters would be decided on remand, though, we cannot predict here whether any such queries were constitutionally questionable, or whether any information derived from such queries should itself have been suppressed, or directly or indirectly tainted the warrant application. And, without being able to fully predict or decide either of those issues, we also cannot adequately predict whether a potentially-altered evidentiary landscape "could have affected [Hasbajrami's] decision to plead guilty." Lustig, 830 F.3d at 1086; see also United States v. uake, 95 F.3d 409, 420-421 (6th Cir. 1996) (noting that Fed. R. Crim. P. ll(a)(2) addresses the situation in which "the defendant is fully
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Case 1:11-cr-00623-DLI Document 177 Filed 12/19/19 Page 86 of 89 PageID #: 1895
successful on appeal," and not "the effect of a partially successful appeal/ but
vacating judgment because "[defendant was] successful in excluding what appears to be the most damning evidence against him.") (emphasis in original).
Taking these considerations into account, then, we are left with a posture
similar to that faced by this Court in United States v. Wong Ching Hing, 867 F.2d 754 (2d Cir. 1989). The defendant in that case had reserved his right to appeal the
district court's failure to suppress roadside statements made to police without
Miranda warnings, as well as subsequent statements made at a police station. Id. at 756. This Court, like the district court, found that the roadside statements were voluntary and that supp ression was therefore unnecessary as to those. Id. But the
defendant had made two separate sets of statements to law enforcement once detained at the police station. The first set was made to the state police, and it did not add anything to what he had voluntarily provided at the initial stop. The second set of statements, however, was made to a DEA agent and "formed the basis of the information to which Wong pled guilty," which charged him with
making a false statement. Id.
The Court concluded that the circumstances "may well warrant the
conclusion that the detention was not valid as a Terry stop." Id. at 758. But it was
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unclear what effect such a holding would have on Wong's legal position, because the record was not clear as to whether the conditional guilty plea was "conditioned upon the government's being successful in admitting all of the statements or any one ofthem." Id. at 758 (emphasis added). The Court therefore vacated the judgment and remanded to the district court for "further proceedings," noting that the government had also urged affirmance on an alternative ground and that "the parties will not be precluded from asserting new arguments" on remand. ld.
We therefore follow a similar course of action here. Because the district court was not even aware whether such querying had occurred, and because even we have not been advised as to what was done, for what reasons, and with what results, we remand to the district court to determine the facts, consistent with the considerations stated above, and to decide in the first instance, based on its fachlal findings, whether there was a constitutional violation in this particular case, and what (if any) evidence would need to be suppressed if there was indeed a violation. Similarly, we leave it to the district court to determine, in the first instance., whether any exceptions to the exclusionary rule, such as a good
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faith exception, might apply in this case.23 Finally, we leave it to the district court
to determine, if any evidence should have been suppressed, whether the failure
to suppress that evidence was harmless, and if it was not what remedy is
appr opriate.
On remand, the district court should undertake whatever proceedings are
necessary, consistent with the considerations stated above. To the extent that any
decisions must be made about what information is to be presented to
appropriately-cleared defense counsel, such decisions too are best left to the
district court after it becomes clear what the inquiry about querying will
involve.24 Cf Abu-Jihaad, 630 F.3d at 129 (noting that, under FISA, disclosure is
23 The government has argued before this Court that the good faith exception would apply. Because of the incomplete record here, we take no position as to whether the exception applies.
24 Hasbajrami argues on appeal that his due proces s rights would be violated if he is not provided with an unredacted or unmodified version of the district court's order. He concedes, however, that the argument would be rendered moot if this Court reverses on either constitutional or statutory grounds. After reviewing the minor redactions, we conclude that the limited information redacted from the district court's opinion could not have substantially affected Hasbajrami's due process rights in this appeal. In any event, we undertook de novo review and we are satisfied that the limited redactions in the portions of this opinion relating to the district court's rulings do not require disclosure to the defense at this time. We therefore deny Hasbajrami's request to unseal or to disclose to the defense team the redacted portions of the district court opinion. As addressed above, however, the district court remains free to consider, in the
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exception and ex parte, in camera review is the rule, and that the review of
materials that are "relatively straightforward and not complex" may not necessarily require adversarial testing).
CONCLUSION Based on the foregoing considerations, we REMAND to the di strict court for further proceedings consistent with this opinion.
first instance, what if any classified material, including the government's Rule 280) letter and the redacted portions of this opinion relating to querying, should be provided to properly-cleared defense counsel on remand, consistent with the requirements of CIPA and FISA. We therefore DENY Hasbajrami's February 8, 2019 motion for disclosure of the government's Rule 280) letter, without prejudice to renewal before the district court on remand.
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17-2669 Docket

General Docket Court of Appeals, 2nd Circuit

Court of Appeals Docket #: 17-2669 United States of America v. Hasbajrami Appeal From: EDNY (BROOKLYN) Fee Status: IFP Granted

Case Type Information: 1) Criminal 2) Post-Conviction 3) none

Originating Court Information: District: 0207-1 : 1:11-cr-623-1 Trial Judge: Dora L. Irizarry, U.S. District Judge Date Filed: 09/08/2011 Date Order/Judgment: 04/06/2017

Date NOA Filed: 08/25/2017

Prior Cases: None

Current Cases: Consolidated

Lead 15-2684

Panel Assignment: Not available

Member 17-2669

Start

End

08/28/2017

Docketed: 08/28/2017 Termed: 12/18/2019

United States of America Appellee USA
-----------------------------Agron Hasbajrami
Defendant - Appellant
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Seth D. DuCharme, Esq., Direct: 718-254-6021 [COR LD NTC US Attorney] United States Attorney's Office for the Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201
David C. James, Assistant U.S. Attorney Direct: 718-254-6282 [COR NTC US Attorney] United States Attorney's Office for the Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201
David K. Kessler, Assistant U.S. Attorney Direct: 718-254-7202 [NTC -] United States Attorney's Office for the Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201
Saritha Komatireddy, Direct: 718-254-6054 [COR NTC US Attorney] United States Attorney's Office for the Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201
Michael Keith Bachrach, Direct: 212-929-0592 [COR LD NTC CJA Appointment] Law Office of Michael K. Bachrach Suite 302 224 West 30th Street New York, NY 10001
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American Civil Liberties Union Amicus Curiae
American Civil Liberties Union Amicus Curiae
-----------------------------Stan J. Caterbone
Movant

17-2669 Docket
Joshua L. Dratel, Esq., Direct: 212-732-0707 [COR NTC CJA Appointment] Joshua L. Dratel, P.C. Suite 1412 29 Broadway New York, NY 10006
Patrick Toomey, Esq., Direct: 212-519-7816 [NTC Attorney] American Civil Liberties Union of New York 18th Floor 125 Broad Street New York, NY 10004
Ashley Gorski, Esq., Direct: 212-284-7305 [NTC Attorney] American Civil Liberties Union Foundation 18th Floor 125 Broad Street New York, NY 10004
Stan J. Caterbone, Direct: 717-327-1566 [NTC Pro Se] Advanced Media Group 1250 Fremont Street Lancaster, PA 17603

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FOR THE OFFICIAL CAPTION AND A COMPLETE SET OF ATTORNEY LISTINGS PLEASE SEE LEAD DOCKET NUMBER: 15-2684

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08/28/2017

1

NOTICE OF CRIMINAL APPEAL, with district court docket, on behalf of Appellant Agron Hasbajrami in

24 pg, 156.22 KB 17-2669, FILED. [2112250] [17-2669, 15-2684] [Entered: 08/29/2017 10:13 AM]

08/28/2017

2

DISTRICT COURT MEMORANDUM AND ORDER, dated 04/06/2017, RECEIVED.[2112276] [17-2669,

14 pg, 99.08 KB 15-2684] [Entered: 08/29/2017 10:27 AM]

08/28/2017

3

3 pg, 47.58 KB

DISTRICT COURT SUMMARY ORDER, dated 08/22/2017, RECEIVED.[2112282] [17-2669, 15-2684] [Entered: 08/29/2017 10:29 AM]

08/29/2017

5

NOTE: See lead case, 15-2684, containing complete set of docket entries.[2112294] [17-2669, 15-2684] [Entered: 08/29/2017 10:33 AM]

08/29/2017

6

ELECTRONIC INDEX, in lieu of record, FILED.[2112415] [17-2669, 15-2684] [Entered: 08/29/2017 11:12

23 pg, 130.43 KB AM]

08/30/2017

7

1 pg, 65.07 KB

NOTICE OF APPEARANCE AS SUBSTITUTE COUNSEL, on behalf of Appellee USA United States of America, FILED. Service date 08/30/2017 by CM/ECF. [2113258] [17-2669] [Entered: 08/30/2017 10:01 AM]

08/30/2017

8

1 pg, 65.27 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee USA United States of America, FILED. Service date 08/30/2017 by CM/ECF. [2113263] [17-2669] [Entered: 08/30/2017 10:03 AM]

08/30/2017

9

1 pg, 65.49 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee USA United States of America, FILED. Service date 08/30/2017 by CM/ECF. [2113269] [17-2669] [Entered: 08/30/2017 10:05 AM]

08/30/2017

10

ATTORNEY, Seth D. Ducharme, [7], in place of attorney Peter A. Norling, SUBSTITUTED.[2113513] [172669] [Entered: 08/30/2017 11:39 AM]

08/30/2017

11

ATTORNEY, Saritha Komatireddy for United States of America, in case 17-2669 , [8], ADDED.[2113516] [17-2669] [Entered: 08/30/2017 11:42 AM]

08/30/2017

12

ATTORNEY, Peter Baldwin for United States of America, in case 17-2669 , [9], ADDED.[2113532] [172669] [Entered: 08/30/2017 11:51 AM]

08/30/2017

13

1 pg, 64.96 KB

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellee USA United States of America, FILED. Service date 08/30/2017 by CM/ECF.[2113662] [17-2669] [Entered: 08/30/2017 01:05 PM]

08/31/2017

15

1 pg, 60.27 KB

ORDER, dated 08/31/2017, that the appeal is lifted out of abeyance and the Appellant’s principal brief and appendix are due September 29, 2017, FILED.[2114688] [15-2684, 17-2669] [Entered: 08/31/2017 11:50 AM]

09/27/2017

18

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellant Agron Hasbajrami in 172669, 15-2684, FILED. Service date 09/27/2017 by CM/ECF.[2134430] [17-2669, 15-2684] [Entered: 09/27/2017 11:44 AM]

09/27/2017

19

FORM B, on behalf of Appellant Agron Hasbajrami in 17-2669, 15-2684 , FILED. Service date 09/27/2017 by CM/ECF.[2134431] [17-2669, 15-2684] [Entered: 09/27/2017 11:44 AM]

09/27/2017

20

DEFECTIVE DOCUMENT, Acknowledgment and Notice of Appearance, Form B, [18], [19], on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED.[2134450] [15-2684, 17-2669]--[Edited 09/27/2017 by WD]--[Edited 09/27/2017 by WD] [Entered: 09/27/2017 11:58 AM]

09/27/2017

21

2 pg, 17.7 KB

DEFECTIVE DOCUMENT, Acknowledgment and Notice of Appearance and Form B, [19], [18], on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED.[2134452] [15-2684, 17-2669]--[Edited 09/27/2017 by WD] [Entered: 09/27/2017 12:00 PM]

09/27/2017

22

5 pg, 91.14 KB

MOTION, to extend time, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date 09/27/2017 by CM/ECF. [2134834] [15-2684, 17-2669] [Entered: 09/27/2017 04:01 PM]

10/01/2017

25

1 pg, 94.93 KB

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE, on behalf of Appellant Agron Hasbajrami in 172669, 15-2684, FILED. Service date 10/01/2017 by CM/ECF.[2137244] [17-2669, 15-2684] [Entered: 10/01/2017 07:12 AM]

10/01/2017

26

1 pg, 57.48 KB

FORM B, on behalf of Appellant Agron Hasbajrami in 17-2669, 15-2684 , FILED. Service date 10/01/2017 by CM/ECF.[2137245] [17-2669, 15-2684] [Entered: 10/01/2017 07:12 AM]

10/02/2017

27

CURED DEFECTIVE DOCUMENT: Acknowledgment and Notice of Appearance and Form B, [21], [20], on behalf of Appellant Agron Hasbajrami in 17-2669, 15-2684, FILED.[2137283] [17-2669, 15-2684] [Entered: 10/02/2017 08:54 AM]

10/02/2017

30

1 pg, 9.26 KB

NEW CASE MANAGER, Ralph Obas, ASSIGNED.[2137785] [17-2669, 15-2684] [Entered: 10/02/2017 01:55 PM]

10/04/2017

32

MOTION ORDER, granting motion to extend time until 10/16/2017 to file his principal brief and appendix

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17-2669 Docket
[22] filed by Appellant Agron Hasbajrami in 15-2684, by RKW, FILED. [2139972][32] [15-2684, 17-2669] [Entered: 10/04/2017 11:32 AM]

10/16/2017

33

8 pg, 186.97 KB

10/16/2017

34

207 pg, 7.63 MB

MOTION, to file oversized brief, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date 10/16/2017 by CM/ECF. [2148450] [15-2684, 17-2669] [Entered: 10/16/2017 04:11 PM]
APPENDIX, volume 1 of 1, (pp. 1-205), on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date 10/16/2017 by CM/ECF.[2148486] [15-2684, 17-2669] [Entered: 10/16/2017 04:29 PM]

10/16/2017

36

BRIEF, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date 10/16/2017 by

135 pg, 514.96 KB CM/ECF.[2148490] [15-2684, 17-2669] [Entered: 10/16/2017 04:32 PM]

10/16/2017

38

SEALED PRE-SENTENCE REPORT, on behalf of Appellant Agron Hasbajrami in 17-2669, RECEIVED. [2149154] [15-2684, 17-2669] [Entered: 10/17/2017 12:06 PM]

10/17/2017

39

1 pg, 274.36 KB

LR 31.2 SCHEDULING NOTIFICATION, on behalf of Appellee USA United States of America in 15-2684, 17-2669, informing Court of proposed due date 01/15/2018, RECEIVED. Service date 10/17/2017 by CM/ECF.[2149541] [15-2684, 17-2669] [Entered: 10/17/2017 03:30 PM]

10/18/2017

42

1 pg, 62.17 KB

10/18/2017

44

1 pg, 60.02 KB

ORDER, dated 10/18/2017, that Appellee’s brief must be filed on or before 01/16/2018, FILED.[2150607] [15-2684, 17-2669] [Entered: 10/18/2017 01:07 PM]
MOTION ORDER, granting motion to file oversized principal brief of 27,037 words [33] filed by Appellant Agron Hasbajrami in 15-2684, by JAC, FILED. [2150840][44] [15-2684, 17-2669] [Entered: 10/18/2017 03:09 PM]

10/20/2017

50

1 pg, 31.73 KB

NOTICE OF APPEARANCE AS AMICUS COUNSEL, on behalf of, Amicus Curiae American Civil Liberties Union and Electronic Frontier Foundation, FILED. Service date 10/20/2017 by CM/ECF. [2153483] [15-2684, 17-2669]--[Edited 10/23/2017 by RO] [Entered: 10/20/2017 06:11 PM]

10/20/2017

51

1 pg, 36.83 KB

NOTICE OF APPEARANCE AS AMICUS COUNSEL, on behalf of Amicus Curiae American Civil Liberties Union and Electronic Frontier Foundation, FILED. Service date 10/20/2017 by CM/ECF. [2153484] [152684, 17-2669]--[Edited 10/23/2017 by RO] [Entered: 10/20/2017 06:23 PM]

10/23/2017

52

NEW PARTY, Amicus Curiae American Civil Liberties Union and Electronic Frontier Foundation, American Civil Liberties Union and Electronic Frontier Foundation in 15-2684 17-2669, ADDED.[2153859] [15-2684, 17-2669] [Entered: 10/23/2017 11:28 AM]

10/24/2017

53

AMICUS BRIEF, on behalf of American Civil Liberties Union and Electronic Frontier Foundation, FILED.

40 pg, 458.23 KB Service date 10/24/2017 by CM/ECF. [2155700] [17-2669]--[Edited 10/26/2017 by RO] [Entered:

10/24/2017 05:11 PM]

11/15/2017

59

1 pg, 64.93 KB

NOTICE OF APPEARANCE AS ADDITIONAL COUNSEL, on behalf of Appellee USA United States of America, FILED. Service date 11/15/2017 by CM/ECF. [2172528] [17-2669] [Entered: 11/15/2017 10:51 AM]

11/15/2017

60

ATTORNEY, David C. James for United States of America, in case 17-2669 David C. James for United States of America, in case 15-2684 , [59], [2172524-2], ADDED.[2172558] [15-2684, 17-2669] [Entered: 11/15/2017 11:05 AM]

01/02/2018

61

3 pg, 186.32 KB

MOTION, to file oversized brief, on behalf of Appellee USA United States of America in 15-2684, 17-2669, FILED. Service date 01/02/2018 by CM/ECF. [2204416] [15-2684, 17-2669] [Entered: 01/02/2018 02:36 PM]

01/05/2018

65

1 pg, 60.07 KB

01/16/2018

66

MOTION ORDER, granting motion to file oversized brief [61] filed by Appellee USA United States of America in 15-2684, by RJL, FILED. [2206614][65] [15-2684, 17-2669] [Entered: 01/05/2018 10:51 AM]
BRIEF & APPENDIX, on behalf of Appellee USA United States of America in 15-2684, 17-2669, FILED. Service date 01/16/2018 by CM/ECF. [2214589] [15-2684, 17-2669] [Entered: 01/16/2018 07:48 PM]

01/17/2018

68

2 pg, 17.59 KB

01/17/2018

69

129 pg, 1.19 MB

01/17/2018

70

DEFECTIVE DOCUMENT, brief and appendix, [66], on behalf of Appellee USA United States of America in 15-2684, 17-2669, FILED.[2215089] [15-2684, 17-2669] [Entered: 01/17/2018 12:53 PM]
BRIEF, on behalf of Appellee USA United States of America in 15-2684, 17-2669, FILED. Service date 01/17/2018 by CM/ECF. [2215265] [15-2684, 17-2669] [Entered: 01/17/2018 02:49 PM]
CURED DEFECTIVE BRIEF [69], on behalf of Appellee USA United States of America in 15-2684, 172669, FILED.[2215335] [15-2684, 17-2669] [Entered: 01/17/2018 03:12 PM]

01/17/2018

71

1 pg, 79.23 KB

ORAL ARGUMENT STATEMENT LR 34.1 (a), on behalf of filer Attorney Mr. Seth D. DuCharme, Esq. for Appellee USA United States of America in 15-2684, 17-2669, FILED. Service date 01/17/2018 by CM/ECF. [2215410] [15-2684, 17-2669] [Entered: 01/17/2018 03:34 PM]

01/18/2018

74

SEALED PRE-SENTENCE REPORT AND ADDENDUM TO THE REVISED PRE-SENTENCE REPORT, on behalf of Appellee USA United States of America for Appellant Agron Hasbajrami in 15-2684, 17-2669, RECEIVED.[2216863] [15-2684, 17-2669] [Entered: 01/19/2018 10:20 AM]

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01/26/2018

76

7 pg, 186.62 KB

17-2669 Docket
MOTION, to extend time, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date 01/26/2018 by CM/ECF. [2223120] [15-2684, 17-2669] [Entered: 01/26/2018 05:03 PM]

01/29/2018

79

1 pg, 60.11 KB

MOTION ORDER, granting motion to extend time until 04/16/2018 to file reply brief [76] filed by Appellant Agron Hasbajrami in 15-2684, FILED. [2223665][79] [15-2684, 17-2669] [Entered: 01/29/2018 12:37 PM]

01/30/2018

80

11 pg, 1.12 MB

PRO SE DOCUMENTS, to attorneys Michael Keith Bachrach Joshua L. Dratel and Steve Zissou, SENT. [2225151] [15-2684, 17-2669] Copy sent to pro se. [Entered: 01/30/2018 03:39 PM]

02/07/2018

81

1 pg, 48.52 KB

LETTER, on behalf of Appellant Agron Hasbajrami, requesting that the court not to accept Mr. Hasbajrami’s pro se submission, RECEIVED. Service date 02/07/2018 by CM/ECF.[2231323] [17-2669]-[Edited 02/07/2018 by RO] [Entered: 02/07/2018 02:36 PM]

02/27/2018

86

3 pg, 98.89 KB

PRO SE DOCUMENTS, to attorney Michael Keith Bachrach, SENT.[2245642] [15-2684, 17-2669] [Entered: 02/28/2018 09:09 AM]

04/09/2018

87

CASE CALENDARING, for the week of 06/25/2018, PROPOSED.[2274865] [15-2684, 17-2669] [Entered: 04/09/2018 02:48 PM]

04/16/2018

88

1 pg, 83.09 KB

ORAL ARGUMENT STATEMENT LR 34.1 (a), on behalf of filer Attorney Mr. Michael Keith Bachrach for Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date 04/16/2018 by CM/ECF. [2280348] [15-2684, 17-2669] [Entered: 04/16/2018 03:43 PM]

04/16/2018

89

REPLY BRIEF, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date

26 pg, 290.89 KB 04/16/2018 by CM/ECF. [2280366] [15-2684, 17-2669] [Entered: 04/16/2018 03:47 PM]

04/16/2018

90

SUPPLEMENTAL BRIEF, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date 04/16/2018 by CM/ECF.[2280388] [15-2684, 17-2669] [Entered: 04/16/2018 03:52 PM]

04/16/2018

93

1 pg, 94.63 KB

LETTER, on behalf of Appellant Agron Hasbajrami, <EDIT by Clerk's Office> RECEIVED. Service date 04/16/2018 by CM/ECF.[2280476] [17-2669] [Entered: 04/16/2018 04:37 PM]

04/16/2018

94

2 pg, 17.29 KB

DEFECTIVE DOCUMENT SUPPLEMENTAL BRIEF, [90], on behalf of Appellant Agron Hasbajrami in 152684, FILED.[2280542] [15-2684, 17-2669] [Entered: 04/16/2018 05:16 PM]

04/16/2018

95

CURED DEFECTIVE LETTER [93], on behalf of Appellant Agron Hasbajrami in 17-2669, FILED. [2280545] [15-2684, 17-2669] [Entered: 04/16/2018 05:18 PM]

04/24/2018

99

MOTION, for oral argument, on behalf of Amicus Curiae American Civil Liberties Union and Electronic Frontier Foundation in 15-2684, Amicus Curiae American Civil Liberties Union in 17-2669, FILED. Service date 04/24/2018 by CM/ECF. [2287396] [15-2684, 17-2669] [Entered: 04/24/2018 05:13 PM]

04/25/2018

100

2 pg, 17.64 KB

DEFECTIVE DOCUMENT, motion to adjourn oral argument, [99], on behalf of Amicus Curiae American Civil Liberties Union and Electronic Frontier Foundation in 15-2684, 17-2669, FILED.[2287542] [15-2684, 17-2669] [Entered: 04/25/2018 09:15 AM]

04/25/2018

101

6 pg, 351.16 KB

MOTION, for oral argument, on behalf of Amicus Curiae American Civil Liberties Union and Electronic Frontier Foundation in 15-2684, Amicus Curiae American Civil Liberties Union in 17-2669, FILED. Service date 04/25/2018 by CM/ECF. [2288516] [15-2684, 17-2669] [Entered: 04/25/2018 05:38 PM]

04/26/2018

103

CURED DEFECTIVE MOTION, for oral argument [101], on behalf of Amicus Curiae American Civil Liberties Union and Electronic Frontier Foundation in 15-2684, FILED.[2288587] [15-2684, 17-2669] [Entered: 04/26/2018 09:01 AM]

04/26/2018

105

1 pg, 60.24 KB

MOTION ORDER, referring motion for oral argument to the panel that will determine the merits of the appeal [101] filed by Amicus Curiae American Civil Liberties Union and Electronic Frontier Foundation in 15-2684, FILED. [2288771][105] [15-2684, 17-2669] [Entered: 04/26/2018 10:29 AM]

05/23/2018

110

CASE CALENDARING, for the week of 08/27/2018,PROPOSED.[2309341] [15-2684, 17-2669] [Entered: 05/23/2018 09:43 AM]

06/22/2018

112

CASE CALENDARING, for argument on 08/27/2018, SET.[2331158] [15-2684, 17-2669] [Entered: 06/22/2018 03:56 PM]

07/05/2018

117

1 pg, 36.48 KB

MOTION ORDER, granting motion for oral argument [101] filed by Amicus Curiae American Civil Liberties Union and Electronic Frontier Foundation in 15-2684, FILED. [2339143][117] [15-2684, 17-2669] [Entered: 07/05/2018 04:58 PM]

07/12/2018

118

2 pg, 17.52 KB

ARGUMENT NOTICE, to attorneys/parties, TRANSMITTED.[2343354] [15-2684, 17-2669] [Entered: 07/12/2018 09:40 AM]

07/12/2018

119

3 pg, 18.05 KB

*REVISED ARGUMENT NOTICE, to attorneys/parties, TRANSMITTED.[2344054] [15-2684, 17-2669] [Entered: 07/12/2018 04:05 PM]

08/27/2018

125

CASE, before GEL, SLC, CFD, HEARD.[2376367] [15-2684, 17-2669] [Entered: 08/27/2018 12:59 PM]

08/31/2018

126

DEFECTIVE DOCUMENT, letter, [2379674-2], on behalf of Appellant Agron Hasbajrami in 15-2684,

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17-2669 Docket
FILED.[2379805] [15-2684, 17-2669] [Entered: 08/31/2018 09:19 AM]

09/04/2018

127

1 pg, 62.8 KB

ORDER, dated 09/04/2018, that the government submit a letter brief of no more than 10 double-spaced pages, under seal or classified within 14 days of the date of this order. Hasbajrami may respond by letter brief to the government’s submission within 14 days of the government’s filing, if he desires to do so, by GEL, SLC, CFD, FILED.[2381275] [15-2684, 17-2669] [Entered: 09/04/2018 01:35 PM]

09/04/2018

128

3 pg, 123.06 KB

POST ARGUMENT LETTER BRIEF, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date 09/04/2018 by CM/ECF. [2381413] [15-2684, 17-2669] [Entered: 09/04/2018 03:14 PM]

09/04/2018

129

CURED DEFECTIVE POST ARGUMENT LETTER BRIEF [128], on behalf of Appellant Agron Hasbajrami in 15-2684, FILED.[2381445] [15-2684, 17-2669] [Entered: 09/04/2018 03:24 PM]

09/13/2018

131

4 pg, 31.71 KB

MOTION, to extend time, on behalf of Appellee USA United States of America in 15-2684, 17-2669, FILED. Service date 09/13/2018 by CM/ECF. [2388488] [15-2684, 17-2669] [Entered: 09/13/2018 11:05 AM]

09/14/2018

135

1 pg, 60.41 KB

MOTION ORDER, granting motion to extend time until 09/25/2018 [131] filed by Appellee USA United States of America in 15-2684. Appellant’s response to the Government’s letter brief is due 10/09/2018 by SLC, FILED. [2389408][135] [15-2684, 17-2669] [Entered: 09/14/2018 11:14 AM]

09/18/2018

136

PRO SE AMICUS BRIEF, on behalf of Stan J. Caterbone, FILED.[2393272] [17-2669, 15-2684]--[Edited 09/20/2018 by RO] [Entered: 09/20/2018 10:28 AM]

09/20/2018

137

2 pg, 17.55 KB

DEFECTIVE DOCUMENT, amicus brief, [136], on behalf of Movant Stan J. Caterbone in 17-2669, FILED. [2393288] [17-2669, 15-2684] [Entered: 09/20/2018 10:38 AM]

09/25/2018

138

10 pg, 89.46 KB

POST ARGUMENT LETTER BRIEF, on behalf of Appellee USA United States of America in 15-2684, 172669, FILED. Service date 09/25/2018 by CM/ECF. [2397072] [15-2684, 17-2669] [Entered: 09/25/2018 08:19 PM]

10/01/2018

140

MOTION, to file oversized brief, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED.

6 pg, 180.98 KB Service date 10/01/2018 by CM/ECF. [2400210] [15-2684, 17-2669] [Entered: 10/01/2018 11:08 AM]

10/01/2018

144

1 pg, 60.19 KB

MOTION ORDER, granting motion to file oversized post-argument letter brief [140] filed by Appellant Agron Hasbajrami in 15-2684, by SLC, FILED. [2400664][144] [15-2684, 17-2669] [Entered: 10/01/2018 03:35 PM]

10/09/2018

145

POST ARGUMENT LETTER BRIEF, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669,

14 pg, 240.79 KB FILED. Service date 10/09/2018 by CM/ECF. [2405923] [15-2684, 17-2669] [Entered: 10/09/2018 04:11

PM]

11/01/2018

148

1 pg, 9.25 KB

NEW CASE MANAGER, Gerard Whidbee, ASSIGNED.[2423843] [15-2684, 17-2669] [Entered: 11/01/2018 02:56 PM]

11/01/2018

149

1 pg, 9.25 KB

NEW CASE MANAGER, Gerard Whidbee, ASSIGNED.[2423850] [17-2669, 15-2684] [Entered: 11/01/2018 02:59 PM]

11/01/2018

152

1 pg, 36.62 KB

STRIKE ORDER, striking Movant Stan J. Caterbone in 17-2669, PRO SE AMICUS BRIEF, [136] from the docket, FILED.[2423964] [15-2684, 17-2669] [Entered: 11/01/2018 03:52 PM]

02/08/2019

154

6 pg, 78.95 KB

MOTION, for disclosure of materials, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date 02/08/2019 by CM/ECF. [2493272] [15-2684, 17-2669] [Entered: 02/08/2019 05:23 PM]

02/19/2019

157

OPPOSITION TO MOTION, [154], on behalf of Appellee USA United States of America in 15-2684, 17-

15 pg, 364.03 KB 2669, FILED. Service date 02/19/2019 by CM/ECF. [2499933] [15-2684, 17-2669] [Entered: 02/19/2019

05:18 PM]

02/26/2019

160

6 pg, 48.83 KB

REPLY TO OPPOSITION [157], on behalf of Appellant Agron Hasbajrami in 17-2669, 15-2684, FILED. Service date 02/26/2019 by CM/ECF.[2505804][160] [17-2669, 15-2684] [Entered: 02/26/2019 04:09 PM]

12/18/2019

165

1 pg, 9.25 KB

NEW CASE MANAGER, Yana Segal, ASSIGNED.[2732736] [15-2684, 17-2669] [Entered: 12/18/2019 11:28 AM]

12/18/2019

166

OPINION, remanding the case, by GEL, SLC, CFD, FILED.[2732756] [15-2684, 17-2669] [Entered:

92 pg, 5.61 MB 12/18/2019 11:34 AM]

12/18/2019

167

CERTIFIED OPINION, dated 12/18/2019, to EDNY (BROOKLYN), ISSUED.[2732764] [15-2684, 17-2669]

89 pg, 6.03 MB [Entered: 12/18/2019 11:39 AM]

12/18/2019

168

89 pg, 5.55 MB

MOTION ORDER, denying motion for disclosure of the government's Rule 28 (j) letter, without prejudice to renewal before the district court on remand [154] filed by Appellant Agron Hasbajrami, by GEL, SLC, CFD, FILED. [2732777][168] [15-2684, 17-2669] [Entered: 12/18/2019 11:44 AM]

12/18/2019

172

CLASSIFIED OPINION, by GEL, SLC, CFD, FILED.[2732843] [15-2684, 17-2669] [Entered: 12/18/2019

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12/18/2019

174

1 pg, 62.2 KB

JUDGMENT, FILED.[2733090] [15-2684, 17-2669] [Entered: 12/18/2019 02:31 PM]

12/19/2019

175

INTERNET CITATION NOTE: Material from decision with internet citation, ATTACHED.[2734555] [15-

196 pg, 15.76 MB 2684, 17-2669] [Entered: 12/19/2019 02:29 PM]

12/19/2019

176

INTERNET CITATION NOTE: Material from decision with internet citation, ATTACHED.[2734556] [15-

13 pg, 7.57 MB 2684, 17-2669] [Entered: 12/19/2019 02:30 PM]

12/19/2019

177

4 pg, 220.91 KB

MOTION, to extend time, on behalf of Appellee USA United States of America in 15-2684, 17-2669, FILED. Service date 12/19/2019 by CM/ECF. [2735076] [15-2684, 17-2669] [Entered: 12/19/2019 05:25 PM]

12/23/2019

181

1 pg, 60.26 KB

MOTION ORDER, granting motion for an extension of time to 02/03/2020 to file a petition for rehearing or rehearing en banc [177] filed by Appellee USA United States of America, by SLC, FILED. [2737264][181] [15-2684, 17-2669] [Entered: 12/23/2019 01:49 PM]

12/23/2019

182

MOTION, to extend time, on behalf of Appellant Agron Hasbajrami in 17-2669, 15-2684, FILED. Service

4 pg, 120.83 KB date 12/23/2019 by CM/ECF. [2737346] [17-2669, 15-2684] [Entered: 12/23/2019 02:37 PM]

12/30/2019

186

1 pg, 60.11 KB

MOTION ORDER, granting motion for extension of time to file a petition for rehearing/rehearing en banc [182] filed by Appellant Agron Hasbajrami, to 02/03/2020, by SLC, FILED. [2740738][186] [15-2684, 172669] [Entered: 12/30/2019 04:42 PM]

01/06/2020

187

2 pg, 68.31 KB

CERTIFIED copy receipt, RETURNED.[2744507] [15-2684, 17-2669] [Entered: 01/06/2020 02:26 PM]

01/29/2020

188

7 pg, 240.9 KB

MOTION, for___relief, on behalf of Appellee USA United States of America in 15-2684, 17-2669, FILED. Service date 01/29/2020 by CM/ECF. [2764088] [15-2684, 17-2669] [Entered: 01/29/2020 10:03 AM]

01/29/2020

190

4 pg, 146.36 KB

MOTION, to extend time, on behalf of Appellee USA United States of America in 15-2684, 17-2669, FILED. Service date 01/29/2020 by CM/ECF. [2764978] [15-2684, 17-2669] [Entered: 01/29/2020 05:02 PM]

01/31/2020

194

1 pg, 60.3 KB

MOTION ORDER, granting motion for extension of time to 03/04/2020 [190] filed by Appellee USA United States of America, by SLC, FILED. [2767380][194] [15-2684, 17-2669] [Entered: 01/31/2020 04:46 PM]

02/07/2020

195

2 pg, 35.99 KB

OPPOSITION TO MOTION, [188], on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date 02/07/2020 by CM/ECF. [2772902] [15-2684, 17-2669] [Entered: 02/07/2020 01:17 PM]

02/14/2020

198

1 pg, 18.05 KB

ORDER, dated 02/14/2020, that the Court will hold oral argument on the government’s motion on 02/26/2020, at 2:00 P.M, in the 17th floor courtroom, FILED.[2779373] [15-2684, 17-2669] [Entered: 02/14/2020 03:58 PM]

02/18/2020

200

1 pg, 66.3 KB

NOTICE OF APPEARANCE AS SUBSTITUTE COUNSEL, on behalf of Appellee USA United States of America in 15-2684, 17-2669, FILED. Service date 02/18/2020 by CM/ECF. [2780015] [15-2684, 17-2669] [Entered: 02/18/2020 10:45 AM]

02/18/2020

201

ATTORNEY, David K. Kessler, [200], in place of attorney Peter Baldwin, SUBSTITUTED.[2780038] [152684, 17-2669] [Entered: 02/18/2020 10:54 AM]

02/18/2020

203

1 pg, 9.65 KB

ARGUMENT NOTICE, to attorneys/parties, TRANSMITTED.[2780570] [15-2684, 17-2669] [Entered: 02/18/2020 03:24 PM]

02/19/2020

204

MOTION, for___relief, on behalf of Appellant Agron Hasbajrami in 15-2684, 17-2669, FILED. Service date

4 pg, 192.77 KB 02/19/2020 by CM/ECF. [2781598] [15-2684, 17-2669] [Entered: 02/19/2020 01:26 PM]

02/24/2020

208

1 pg, 44.96 KB

MOTION ORDER, granting motion for permission to incur travel expenses in connection with an upcoming legal visit with Appellant at his place of incarceration [204] filed by Appellant Agron Hasbajrami in 152684, by SLC, FILED. [2785129][208] [15-2684, 17-2669] [Entered: 02/24/2020 01:14 PM]

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 U.S. District Court Eastern District of New York (Brooklyn) CRIMINAL DOCKET FOR CASE #: 1:11-cr-00623-DLI-1

Case title: USA v. Hasbajrami
Assigned to: Chief Judge Dora Lizette Irizarry
Defendant (1) Agron Hasbajrami # 65794-053 FCI Fairton Federal Correctional Institution P.O. Box 420 Fairton, NJ 08320 TERMINATED: 08/17/2015

Date Filed: 09/08/2011 Date Terminated: 08/17/2015
represented by Nancy Lee Ennis 381 Park Avenue SO. Suite 701 New York, NY 10016 (212) 686-0666 Fax: 212-686-8690 Email: nancy@qandelaw.com TERMINATED: 01/19/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment
Steven Zissou Steve Zissou & Associates 42-40 Bell Blvd. Suite 302 Bayside, NY 11361 718-279-4500 Fax: 718-281-0850 Email: stevezissou@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment
Joshua L. Dratel Law Offices of Joshua L. Dratel, P.C. 2 Wall Street 3rd Floor New York, NY 10005 212-732-0707 Fax: 212-571-6341

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

Email: JDratel@joshuadratel.com ATTORNEY TO BE NOTICED Designation: CJA Appointment
Michael K. Bachrach 276 Fifth Avenue Suite 501 New York, NY 10001 212-929-0592 Fax: 866-328-1630 Email: michael@mbachlaw.com ATTORNEY TO BE NOTICED Designation: CJA Appointment
Disposition
180 months of incarceration on Count One and 12 months on Count Two to run consecutively on each count, totaling 192 months of incarceration. The court recommends to the bureau of prisons for incarceration at FCI Terre Haute, Indiana. No term of supervised release is imposed. Special Assessment of $200.00. AMENDED JUDGMENT DATED SEPTEMBER 4, 2015. - ONLY AMENDING PAGE 2 TO REFLECT THE BOP RECOMMENDED FACILITY DESIGNATION REQUESTED BY THE DEFENDANT'S PRO SE LETTER TO THE COURT DATED AUGUSTS 26, 2015. SECOND AMENDED JUDGEMENT Amending page 1 to reflect that there was a Superseding Information and that Count One was brought under 18 U.S.C. § 2339A.
180 months of incarceration on Count One and 12 months on Count Two to run consecutively on each count, totaling 192 months of incarceration. The court recommends to the bureau of prisons

Highest Offense Level (Opening) Felony
Terminated Counts PROVIDING MATERIAL SUPPORT TO TERRORISTS (1) PROVIDING MATERIAL SUPPORT TO TERRORISTS (1s) PROVIDING MATERIAL SUPPORT TO TERRORISTS (2s) PROVIDING MATERIAL SUPPORT TO TERRORISTS (3s-4s)
Highest Offense Level (Terminated) Felony
Complaints

for incarceration at FCI Terre Haute, Indiana. No term of supervised release is imposed. Special Assessment of $200.00. AMENDED JUDGMENT DATED SEPTEMBER 4, 2015. - ONLY AMENDING PAGE 2 TO REFLECT THE BOP RECOMMENDED FACILITY DESIGNATION REQUESTED BY THE DEFENDANT'S PRO SE LETTER TO THE COURT DATED AUGUSTS 26, 2015. SECOND AMENDED JUDGMENT Amending page 1 to reflect that there was a Superseding Information and that Count One was brought under 18 U.S.C. § 2339A.
Disposition
All open counts dismissed on the motion of the U.S.
All open counts dismissed on the motion of the U.S.
All open counts dismissed on the motion of the U.S.
All open counts dismissed on the motion of the U.S.
Disposition

None

Amicus
American Civil Liberties Union and Electronic Frontier Foundation TERMINATED: 08/17/2015

represented by Patrick Christopher Toomey American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-519-7816 Fax: 212-549-2654 Email: ptoomey@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Plaintiff USA

represented by Matthew S. Amatruda United States Attorney's Office Eastern District of New York One Pierrepont Plaza Brooklyn, NY 11201-0111 718-254-7012 Fax: 718-254-6076 Email: matthew.amatruda@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Seth David DuCharme United States Attorneys Office Eastern District Of New York 271 Cadman Plaza East Brooklyn, NY 11201 (718)254-6021 Fax: (718)254-6076 Email: seth.ducharme@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter W. Baldwin

United States Attorney's Office, Eastern District of Ne 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6236 Fax: 718-254-6076 Email: peter.baldwin@usdoj.gov ATTORNEY TO BE NOTICED
Saritha Komatireddy US Attorney's Office - EDNY 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6054 Fax: 718-254-6076 Email: saritha.komatireddy@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 09/08/2011 09/09/2011 09/09/2011 09/09/2011
09/09/2011

# Docket Text
1 SEALED INDICTMENT as to Agron Hasbajrami (1) count(s) 1. (Bowens, Priscilla) (Entered: 09/09/2011)
2 Order to Unseal Indictment as to Agron Hasbajrami.. Ordered by Magistrate Judge Roanne L. Mann on 9/9/2011. (Marziliano, August) (Entered: 09/09/2011)
3 MOTION to Remand Memorandum of Law in Support of the Government's Motion for a Permanent Order of Detention by USA as to Agron Hasbajrami. (DuCharme, Seth) (Entered: 09/09/2011)
4 Minute Entry for proceedings held before Magistrate Judge Lois Bloom:Arraignment as to Agron Hasbajrami (1) Count 1 held on 9/9/2011, Initial Appearance as to Agron Hasbajrami held on 9/9/2011, Plea entered by Agron Hasbajrami (1) Count 1. by Agron Hasbajrami Not Guilty to count one. Order of Speedy Trial, Start 9/9/11 - Stop 9/29/11. ( Status Conference set for 9/29/2011 11:00 AM in Courtroom 6C South before Judge John Gleeson.) AUSA Seth DuCharme; Defense Counsel, Nancy Ennis. (Tape #3:45 - 3:57.) (Piper, Francine) (Entered: 09/13/2011)
5 ORDER TO CONTINUE - Ends of Justice as to Agron Hasbajrami Time excluded from 9/9/11 until 9/29/11. (Ordered by Magistrate Judge Lois Bloom on 9/9/2011) (Piper, Francine) (Entered: 09/13/2011)

09/09/2011 09/09/2011 09/09/2011 09/13/2011 09/29/2011 09/29/2011 09/29/2011
11/21/2011 11/21/2011 11/21/2011

6 CJA 20 as to Agron Hasbajrami: Appointment of Attorney Nancy Lee Ennis for Agron Hasbajrami. (Ordered by Magistrate Judge Lois Bloom on 9/9/2011) (Piper, Francine) (Entered: 09/13/2011)
7 CJA 23 Financial Affidavit by Agron Hasbajrami (Piper, Francine) Modified on 9/13/2011 (Piper, Francine). (Entered: 09/13/2011)
8 ORDER OF DETENTION PENDING TRIAL as to Agron Hasbajrami. ( Ordered by Magistrate Judge Lois Bloom on 9/9/2011) (Piper, Francine) (Entered: 09/13/2011)
9 NOTICE of Intent to Use Foreign Intelligence Surveillance Act Information as to Agron Hasbajrami (DuCharme, Seth) (Entered: 09/13/2011)
10 MOTION for Discovery Conference Pursuant to CIPA Section 2 by USA as to Agron Hasbajrami. (DuCharme, Seth) (Entered: 09/29/2011)
11 Letter re: Government's First Round of Rule 16 Discovery as to Agron Hasbajrami (Amatruda, Matthew) (Entered: 09/29/2011)
12 Minute Entry for proceedings held before Judge John Gleeson:Status Conference as to Agron Hasbajrami held on 9/29/2011. Order of Speedy Trial,, Code XT, Start 9/29/11 Stop 11/21/11. Parties are beginning discovery and negotiations. ( Status Conference set for 11/21/2011 11:00 AM in Courtroom 6C South before Judge John Gleeson.) AUSA Matthew Amatruda and Seth DuCharme; Defense Counsel, Nancy L. Ennis. (Court Reporter Victoria Butler.) (Piper, Francine) (Entered: 09/30/2011)
Incorrect Document Information filed. Docket entry #13 deleted and reentered. AUSA incorrectly filed document. (Piper, Francine) (Entered: 11/21/2011)
13 PROTECTIVE ORDER PERTAINING TO UNCLASSIFIED INFORMATION as to Agron Hasbajrami (Ordered by Judge John Gleeson on 11/16/2011) (Piper, Francine) (Entered: 11/21/2011)
14 Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Nancy Lee Ennis, Esq. AUSA Seth D. DuCharme appears for the government. Status Conference as to Agron Hasbajrami held on 11/21/2011. The parties are still in negotiations and discovery. The next Status Conference is set for January 25, 2012 at 10:30 AM in courtroom 6C South before Judge John Gleeson. The speedy trial time is excluded until the next conference. (Court Reporter Allan Sherman.) (Lee, Ilene) (Entered: 11/21/2011)

12/28/2011 12/30/2011 01/06/2012 01/12/2012
01/19/2012 01/19/2012 01/19/2012

15 Letter re Supplemental Rule 16 Discovery Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 12/28/2011)
16 Letter MOTION to Appoint Counsel by Agron Hasbajrami. (Piper, Francine) (Entered: 01/04/2012)
SCHEDULING ORDER as to Agron Hasbajrami re 16 Letter MOTION to Appoint Counsel filed by Agron Hasbajrami. The parties are to appear for a conference on Thursday, January 12, 2012 at 10:00 AM before Judge John Gleeson in courtroom 6C South. The government is directed to have the defendant present at this conference. Ordered by Judge John Gleeson on 1/6/2012. (Lee, Ilene) (Entered: 01/06/2012)
17 Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Peter Quijano, Esq. AUSA Matthew Amatruda appears for the government. Albanian Interpreter Dominique Marini present. Status Conference as to Agron Hasbajrami held on 1/12/2012. Pursuant to the issues raised in the defendant's 12/27/2011 letter 16 to the Court about the dialect of the interpreter and his request for new counsel, the Court shall seek a new interpreter that can interpret in the "Tosk" dialect from Tirana, Albania for the next conference. The decision to appoint new counsel is reserved by the Court. The next Status Conference remains set for January 25, 2012 at 10:30 AM in courtroom 6C South before Judge John Gleeson. (Court Reporter Marsha Diamond.) (Lee, Ilene) (Entered: 01/12/2012)
ORDER as to Agron Hasbajrami granting 16 Motion To Appoint Counsel. Steve Zissou is appointed as counsel for Agron Hasbajrami. Nancy Lee Ennis is relieved. The status conference scheduled for January 25, 2012, at 10:30 AM will proceed as scheduled. Ordered by Judge John Gleeson on 1/19/2012. (Talbott, Rebecca) (Entered: 01/19/2012)
SCHEDULING ORDER as to Agron Hasbajrami: Upon request by the parties, the status conference scheduled for January 25, 2012, at 10:30 AM, is adjourned until January 27, 2012, at 12:00 PM. Status Conference set for 1/27/2012 12:00 PM in Courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 1/19/2012. (Talbott, Rebecca) (Entered: 01/19/2012)
Attorney update in case as to Agron Hasbajrami. Attorney Nancy Lee Ennis terminated. (Lee, Tiffeny) Modified on 1/23/2012 (Lee, Tiffeny). (Entered: 01/23/2012)

01/26/2012 01/27/2012
01/27/2012 01/30/2012 02/01/2012
03/01/2012 03/02/2012 03/05/2012

20 SUPERSEDING INDICTMENT (S-1) as to Agron Hasbajrami (1) count(s) 1s-4s. (Piper, Francine) (Entered: 01/30/2012)
18 Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with new counsel Steve Zissou, Esq. AUSA Seth D. DuCharme appears for the government. Albanian (Tosk) Interpreter Drinart Dema present. Status Conference as to Agron Hasbajrami held on 1/27/2012. The new interpreter needs additional time to go over the superseding indictment before interpreting. The arraignment is adjourned to February 2, 2012 at 11:00 AM in courtroom 6C South before Judge John Gleeson. In light of certain CIPA clearance issues and motions, the next Status Conference is set for March 7, 2012 at 11:00 AM in courtroom 6C South before Judge John Gleeson. The speedy trial time is excluded until the March conference date. (Court Reporter Fred Guerino.) (Lee, Ilene) (Entered: 01/27/2012)
19 Letter re Supplemental Rule 16 Materials Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 01/27/2012)
NOTICE OF Change in date for the 2/2/2012 Status Conference as to Agron Hasbajrami due to a scheduling conflict from defense counsel notified via e-mail. The new Status Conference date is now set for Wednesday, February 1, 2012 at 11:30 AM in courtroom 6C South before Judge John Gleeson. (Lee, Ilene) (Entered: 01/30/2012)
21 Minute Entry for proceedings held before Judge John Gleeson:Arraignment as to Agron Hasbajrami (1) Count 1s-4s held on 2/1/2012, Plea entered by Agron Hasbajrami Not Guilty to counts 1s4s. Steps are beginning in order to CIPA clear the interpreter. Parties are still in discovery and negotiations. ( Status Conference set for 3/7/2012 11:00 AM in Courtroom 6C South before Judge John Gleeson.) Order of Speedy Trial, Code XT, Start 2/1/12 - Stop 3/7/12. AUSA Matthew Amatruda and Seth DuCharme; Defense Counsel, Steve Zissou. (Court Reporter Tony Mancuso.) (Piper, Francine) (Entered: 02/01/2012)
22 Letter re: Supplemental Rule 16 Discovery as to Agron Hasbajrami (Amatruda, Matthew) (Entered: 03/01/2012)
23 Letter re: Government's Request to Adjourn the Status Conference Currently Scheduled for March 7, 2012 as to Agron Hasbajrami (Amatruda, Matthew) (Entered: 03/02/2012)
SCHEDULING ORDER as to Agron Hasbajrami re 23 Letter requesting adjournment of March 7, 2012, status conference. The government's 23 request to adjourn the status conference currently set

03/06/2012
03/12/2012 03/13/2012
03/23/2012 03/23/2012 03/27/2012 03/27/2012 03/30/2012

for March 7, 2012, is granted. The parties shall appear for a status conference on March 13, 2012, at 11:30am in Courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 3/5/2012. (Talbott, Rebecca) (Entered: 03/05/2012)
SCHEDULING ORDER as to Agron Hasbajrami: Per a request from defense counsel, the status conference scheduled for March 13, 2012, at 11:30am, is rescheduled for 3:30pm the same day. Status Conference set for 3/13/2012 03:30 PM in Courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 3/6/2012. (Talbott, Rebecca) (Entered: 03/06/2012)
24 Letter re: Proposed Scheduling Order as to Agron Hasbajrami (Attachments: # 1 Proposed Order) (Amatruda, Matthew) (Entered: 03/12/2012)
25 Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. AUSA Seth D. DuCharme and AUSA Matthew Amatruda appears for the government. Albanian (Tosk) Interpreter Drinart Dema present. Status Conference as to Agron Hasbajrami held on 3/13/2012. Discussions held regarding the parties' joint proposed motion and trial schedules. The Court directs the government to have all CIPA filings made by 5/22/12. A Jury Selection and Trial date is scheduled on July 16, 2012 at 9:30 AM in courtroom 6C South before Judge John Gleeson. The next Status Conference is set for March 30, 2012 at 11:30 AM in courtroom 6C South before Judge John Gleeson. The speedy trial time is excluded until the next conference. (Court Reporter Allan Sherman.) (Lee, Ilene) (Entered: 03/14/2012)
26 MOTION for Protective Order Regarding Classified Information by USA as to Agron Hasbajrami. (Attachments: # 1 Exhibit) (DuCharme, Seth) (Entered: 03/23/2012)
27 Protective Order Regarding Classified Information as to Agron Hasbajrami (1).(Ordered by Judge John Gleeson on 3/23/2012) (Piper, Francine) (Entered: 03/23/2012)
28 Letter regarding Classified Discovery Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 03/27/2012)
29 Letter re Discovery Materials Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 03/27/2012)
Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. AUSA Seth D. DuCharme and AUSA Matthew

03/30/2012 04/02/2012 04/06/2012 04/12/2012
06/18/2012 07/05/2012 08/30/2012 09/06/2012

Amatruda appears for the government. Albanian (Tosk) Interpreter Drinart Dema present. Status Conference as to Agron Hasbajrami held on 3/30/2012. Further discussions held regarding discovery and motion schedules. The parties are encouraged to notify the Court of their jointly proposed motion schedules. The jury selection and trial date remains set for July 16, 2012 at 9:30 AM in courtroom 6C South before Judge John Gleeson. The speedy trial time is excluded until the trial date scheduled. (Court Reporter Anthony Frisolone.) (Lee, Ilene) (Entered: 03/30/2012)
30 Letter Regarding Additional Discovery Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 03/30/2012)
31 NOTICE OF ATTORNEY APPEARANCE: Michael K. Bachrach appearing for Agron Hasbajrami (Bachrach, Michael) (Entered: 04/02/2012)
SCHEDULING ORDER as to Agron Hasbajrami as per telephone and electronic mail request from both counsel. A Conference is scheduled on Thursday, April 12, 2012 at 11:00 AM in courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 4/6/2012. (Lee, Ilene) (Entered: 04/06/2012)
32 Minute Entry for proceedings held before Judge John Gleeson:Change of Plea Hearing as to Agron Hasbajrami held on 4/12/2012, Plea entered by Agron Hasbajrami (1) Guilty Count 2s. In light of the plea, the trial date scheduled for July 16, 2012 is canceled. The parties are to file a joint or separate submission regarding 6B1.2 by Sept 7, 2012. ( Sentencing set for 9/14/2012 02:00 PM in Courtroom 6C South before Judge John Gleeson.) AUSA Matthew Amatruda and Seth DuCharme. (Court Reporter Marie Foley.) (Piper, Francine) (Entered: 04/13/2012)
33 Letter re Discovery Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 06/18/2012)
34 Letter dated 6/26/12 from Agron Hasbajrami to Judge Gleeson, enclosing articles regarding the "T-Word". (Attachments: # 1 Newspaper and Magazine Articles) (Piper, Francine) (Entered: 07/09/2012)
35 First MOTION for Extension of Time to File Submission regarding the Court's Acceptance of the Defendant's Guilty Plea, and for Brief Adjournment of Sentencing Date by USA as to Agron Hasbajrami. (DuCharme, Seth) (Entered: 08/30/2012)
ORDER granting 35 Motion for Extension of Time to File as to Agron Hasbajrami (1). The 6B1.2 submission is now due by 10/8/2012 and

10/05/2012 10/10/2012
10/11/2012 11/05/2012 11/06/2012
11/21/2012 11/21/2012 12/19/2012 12/21/2012

accordingly, the sentencing date is now adjourned to October 19, 2012 at 2:00 PM in courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 9/6/2012. (Lee, Ilene) (Entered: 09/06/2012)
36 MOTION for Extension of Time to File Submission regarding the Court's Acceptance of the Defendant's Guilty Plea, and for Brief Adjournment of Sentencing Date by Agron Hasbajrami. (Bachrach, Michael) (Entered: 10/05/2012)
ORDER granting 36 Motion for Extension of Time to File and Motion to adjourn the sentencing date as to Agron Hasbajrami (1). The joint 6B1.2 submission is now due by October 8, 2012 and the sentencing date is now set for November 16, 2012 at 3:30 PM in courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 10/10/2012. (Lee, Ilene) (Entered: 10/10/2012)
NOTICE of date correction in the 10/10/12 order above as to Agron Hasbajrami: The joint 6B1.2 submission is due by November 8, 2012. (Lee, Ilene) (Entered: 10/11/2012)
37 MOTION for Extension of Time to File sentencing-related submissions and for a similar adjournment of the defendant's sentencing hearing by Agron Hasbajrami. (Bachrach, Michael) (Entered: 11/05/2012)
ORDER granting 37 Motion for Extension of Time to File SentencingRelated Submissions and to Adjourn Sentencing as to Agron Hasbajrami. 6B1.2 submissions are now due by November 21, 2012. The sentencing date is adjourned to December 21, 2012 at 2:00 PM in courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 11/6/2012. (Kim, Scarlet) (Entered: 11/06/2012)
39 SENTENCING MEMORANDUM by USA as to Agron Hasbajrami (DuCharme, Seth) (Entered: 11/21/2012)
40 SENTENCING MEMORANDUM by USA as to Agron Hasbajrami (DuCharme, Seth) (Entered: 11/21/2012)
41 MOTION to Continue Sentencing due to unavailability of Tosk language interpreter by Agron Hasbajrami. (Bachrach, Michael) (Entered: 12/19/2012)
ORDER granting 41 Motion to Continue Sentencing as to Agron Hasbajrami (1). The new sentencing date is now set for January 8, 2013 at 2:00 PM in Courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 12/21/2012. (Lee, Ilene) (Entered: 12/21/2012)

01/07/2013
01/08/2013
01/16/2013
02/26/2013 02/28/2013
03/07/2013 04/18/2013 04/22/2013

43 SENTENCING MEMORANDUM by Agron Hasbajrami (Attachments: # 1 Exhibit English translation of family letters, # 2 Exhibit 7/2/2012 letter from Rasim Hoxha (Defendant's uncle), # 3 Exhibit 7/6/2012 letter from Ahmet Hasbajrami and Meriban Hasbajrami (Defendant's parents)) (Bachrach, Michael) (Entered: 01/07/2013)
44 Minute Entry for proceedings held before Judge John Gleeson:Sentencing held on 1/8/2013 for Agron Hasbajrami (1), Count(s) 1, 1s, 3s-4s, Dismissed on Motion of the United States; Count(s) 2s, Receives 180 months imprisonment; No term of supervised release; $100 special assessment. (Court Reporter Mary Agnes Drury) (Lee, Tiffeny) (Entered: 01/16/2013)
45 JUDGMENT as to Agron Hasbajrami (1), Count(s) 1, 1s, 3s-4s, Dismissed on Motion of the United States; Count(s) 2s, Receives 180 months imprisonment; No term of supervised release; $100 special assessment. The court recommends incarceration at an FCI as close to the Northeast region as possible. Ordered by Judge John Gleeson on 1/15/2013. (Lee, Tiffeny) (Entered: 01/16/2013)
47 Letter from Agron Hasbajrami to Judge Gleeson, requesting the return of property. (Piper, Francine) (Entered: 02/27/2013)
The court has received Hasbajrami's 47 letter requesting the return of his property. The court directs the government and Hasbajrami's counsel to respond in writing (a joint response is permissible) with respect to the status of Hasbajrami's property by March 8, 2013. Ordered by Judge John Gleeson on 2/28/2013. (Kim, Scarlet) (Entered: 02/28/2013)
48 Letter Regarding Return of Property as to Agron Hasbajrami (DuCharme, Seth) (Entered: 03/07/2013)
49 MOTION to Produce by Agron Hasbajrami. (Siegfried, Evan) (Entered: 04/18/2013)
To the extent the requested documents are available and their disclosure is not otherwise prohibited by law, counsel is respectfully directed to provide them to Mr. Hasbajrami. Counsel is further directed to submit to the Court an inventory of the documents provided on or before May 13, 2013. Except to the extent set forth above, the motion is denied without prejudice to renewal if and when Mr. Hasbajrami formerly challenges his conviction and/or sentence. Ordered by Judge John Gleeson on 4/22/2013. (Kim, Scarlet) (Entered: 04/22/2013)

04/26/2013 05/13/2013 06/17/2013 06/19/2013
06/28/2013 07/01/2013
07/11/2013 07/26/2013 07/30/2013 10/23/2013 10/23/2013

50 Letter providing the Court with an inventory of material mailed to the defendant today, as per the Court's April 22, 2013 Order as to Agron Hasbajrami (Bachrach, Michael) (Entered: 04/26/2013)
51 Letter providing the Court with an updated inventory of material mailed to the defendant, as per the Court's April 22, 2013 Order as to Agron Hasbajrami (Bachrach, Michael) (Entered: 05/13/2013)
52 Letter dated 6/10/13 from Agron Hasbajrami to Judge Gleeson, requesting the return of property. (Attachments: # 1 Mailing Envelope) (Piper, Francine) (Entered: 06/18/2013)
The court has received Hasbajrami's 52 letter regarding the status of his property. The court directs the government and Hasbajrami's counsel to respond in writing (a joint response is permissible) by June 28, 2013. Ordered by Judge John Gleeson on 6/19/2013. (Kim, Scarlet) (Entered: 06/19/2013)
53 Letter re: Response to the Defendant's Request for Return of Property as to Agron Hasbajrami (Attachments: # 1 Exhibit) (Amatruda, Matthew) (Entered: 06/28/2013)
ORDER granting the government's 53 letter request to obtain, review and return property seized form Hasbajrami's residence on September 6, 2011. The government shall, on or before July 26, 2013, provide the Court and Hasbajrami with a list of property returned and retained by the government. Ordered by Judge John Gleeson on 7/1/2013. (Kim, Scarlet) (Entered: 07/01/2013)
54 Letter dated July 5 2013 from Agron Hasbajrami to Judge Gleeson, requesting access to discovery material. (Piper, Francine) (Entered: 07/16/2013)
55 Letter regarding Return of Property as to Agron Hasbajrami (DuCharme, Seth) (Entered: 07/26/2013)
56 Letter dated July 13, 2013 from Agron Hasbajrami to Judge Gleeson, regarding discovery. (Attachments: # 1 Mailing Envelope) (Piper, Francine) (Entered: 07/31/2013)
57 Letter dated October 4, 2013 from Agron Hasbajrami to Judge Gleeson, requesting copies of sentencing hearing minutes, docket sheets, grand jury transcripts, criminal complaint and pages 288, 289, 290. (Piper, Francine) (Entered: 10/23/2013)
ORDER as to Agron Hasbajrami re 57 Letter. The defendant was sentenced on January 8, 2013 on his plea of guilty to attempting to

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provide material support to terrorists. He has not filed a notice of appeal. I have received a letter dated October 4, 2013 from the defendant demanding certain discovery, including grand jury transcripts, the "criminal complain[t]" and other documents.The defendant's plea of guilty has extinguished his right to the discovery he seeks. A couple of the requested documents -- the docket sheet and the transcript of the sentencing proceeding -- are readily obtainable and ought in fairness to be provided to him, but I see neither an entitlement to the others or a justification for directing the government to provide them. Accordingly, the government is ordered to send a copy of the docket sheet and the sentencing transcript to Hasbajrami on or before November 1, 2013 and to file a letter confirming its compliance with that order by that date. Otherwise, the request for discovery is denied. Ordered by Judge John Gleeson on 10/23/2013. (Aronoff, Peter) (Entered: 10/23/2013)
58 Letter regarding Status of Production of Materials as to Agron Hasbajrami (DuCharme, Seth) (Entered: 11/07/2013)
ORDER as to Agron Hasbajrami re 58 Letter. The government's request for an extension of time until November 12, 2013 to provide certain documents to Agron Hasbajrami is GRANTED. Ordered by Judge John Gleeson on 11/8/2013. (Aronoff, Peter) (Entered: 11/08/2013)
59 Letter re Production of Sentencing Minutes as to Agron Hasbajrami (DuCharme, Seth) (Entered: 11/12/2013)
60 Letter dated November 20, 2013 from Agron Hasbajrami to Clerk's Office, requesting a response to the sentence vacation motion. (Piper, Francine) (Entered: 12/03/2013)
ORDER as to Agron Hasbajrami. The Court has received Mr. Hasbajrami's November 20, 2013, letter, docketed as 60 . However, as evidenced by the docket sheet, the Court never received a copy of the motion to vacate sentence referred to in the letter. Without expressing any view on whether Mr. Hasbajrami did in fact submit the motion previously, the Court invites Mr. Hasbajrami to submit the motion again. However, he is reminded that federal law enforces time limits on motions to attack a conviction or sentence, so the Court encourages him to proceed expeditiously. Any dispute about timeliness will be resolved, if necessary, when the motion is made. A copy of this order, along with a copy of the docket sheet, will be mailed to Mr. Hasbajrami. Ordered by Judge John Gleeson on 12/3/2013. (Aronoff, Peter) (Entered: 12/03/2013)

12/03/2013 12/04/2013
12/09/2013 12/09/2013 02/03/2014 02/24/2014 02/25/2014 02/25/2014
02/25/2014 04/02/2014

61 Letter re Attached Copy of Defendant's Motion to Vacate, Set Aside or Correct Sentence and Conviction as to Agron Hasbajrami (Attachments: # 1 Exhibit) (DuCharme, Seth) (Entered: 12/03/2013)
ORDER as to Agron Hasbajrami. In light of the government's submission of Mr. Hasbajrami's July application 61 , the Court's 12/3/13 order directing Hasbajrami to refile any such application is moot. Instead, the Court will construe the attachment as a motion under 28 U.S.C. § 2255 and direct the Clerk to open a new civil case as a collateral attack on Hasbajrami's conviction or sentence. A copy of this Order and yesterday's now-moot order will be mailed together to Mr. Hasbajrami. Ordered by Judge John Gleeson on 12/4/2013. (Aronoff, Peter) (Entered: 12/04/2013)
62 Letter dated 12/5/13 to Clerk from Agron Hasbajrami requesting information about his previously filed motion. (Fernandez, Erica) (Entered: 12/19/2013)
63 Letter dated 12/6/13 to Clerk from Agron Hasbajrami requesting information as to fees paid to the listed CJA attorneys. (Fernandez, Erica) (Entered: 12/19/2013)
64 STATUS REPORT re: Defendant's Access to Video Materials by USA as to Agron Hasbajrami (Amatruda, Matthew) (Entered: 02/03/2014)
65 Letter re Supplemental Notification as to Agron Hasbajrami (DuCharme, Seth) (Entered: 02/24/2014)
66 Letter dated February 12, 2014 from Agron Hasbajrami to Judge Gleeson, requesting a copy of AUSA Ducharme's writing report due to be submitted to court by January 23, 2013. (Piper, Francine) (Entered: 02/25/2014)
ORDER as to Agron Hasbajrami re 66 Letter. Per Hasbajrami's request, the government is respectfully directed to provide Hasbajrami with a copy of the February 3, 2014 status report 64 filed on the criminal docket in this case (11-cr-623). Ordered by Judge John Gleeson on 2/25/2014. (Aronoff, Peter) (Entered: 02/25/2014)
67 Letter re Status Report as to Agron Hasbajrami (DuCharme, Seth) (Entered: 02/25/2014)
69 Letter updating the Court regarding supplemental FISA notice and other matters as to Agron Hasbajrami (Zissou, Steve) (Entered: 04/02/2014)

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06/30/2014 07/17/2014 07/18/2014

ORDER. The Court agrees with the suggestion in the letter 69 that the parties should file an update on the status of the case by April 9, 2014, including a proposed briefing schedule, if necessary. Ordered by Judge John Gleeson on 4/3/2014. (Aronoff, Peter) (Entered: 04/03/2014)
70 Letter -- status update and joint proposed scheduling order as to Agron Hasbajrami (Bachrach, Michael) (Entered: 04/09/2014)
71 Letter request regarding funding of the defense as to Agron Hasbajrami (Zissou, Steve) (Entered: 04/10/2014)
72 Letter requesting discovery related to the Government's post-sentencing FISA notice as to Agron Hasbajrami (Bachrach, Michael) (Entered: 04/25/2014)
73 Letter Responding to Discovery Demand as to Agron Hasbajrami (DuCharme, Seth) (Entered: 05/22/2014)
74 Letter from Agron Hasbajrami to Judge Gleeson, dated May 26, 2014, requesting copies of all orders in this action. (Piper, Francine) (Entered: 06/05/2014)
75 MOTION for Extension of Time to File FISA-related discovery motion (requesting June 30, 2014 as new deadline) by Agron Hasbajrami. (Bachrach, Michael) (Entered: 06/20/2014)
ORDER granting 75 Motion for Extension of Time to File as to Agron Hasbajrami (1). The proposed extension is granted. The Court notes that the current dispute in the case relates at least in part to discovery in the criminal case and in part to Hasbajrami's anticipated 2255 petition. Therefore, until further notice from the Court, the parties are directed to file all documents in both cases. Ordered by Judge John Gleeson on 6/24/2014. (Aronoff, Peter) (Entered: 06/24/2014)
76 MOTION for Discovery and incorporated memorandum of law in support thereof by Agron Hasbajrami. (Bachrach, Michael) (Entered: 06/30/2014)
77 Letter Requesting Extension of Time to File Response to Motion for Discovery as to Agron Hasbajrami (DuCharme, Seth) (Entered: 07/17/2014)
SCHEDULING ORDER as to Agron Hasbajrami. The request for additional briefing time is granted, as follows. The government's opposition shall be filed by August 8, 2014; Hasbajrami's reply, if any, shall be filed by August 18, 2014. Argument on the motion will now be

08/04/2014 08/04/2014
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09/02/2014 09/02/2014 09/03/2014
09/08/2014
09/20/2014 10/03/2014

heard Friday, August 22, at 10:30am. Ordered by Judge John Gleeson on 7/18/2014. (Aronoff, Peter) (Entered: 07/18/2014)
78 Letter Request to modify the scheduling order as to Agron Hasbajrami (Zissou, Steve) (Entered: 08/04/2014)
SCHEDULING ORDER as to Agron Hasbajrami. Per the parties' request 78 , argument will be heard on September 12, 2014, at 10:00 am. Ordered by Judge John Gleeson on 8/4/2014. (Aronoff, Peter) (Entered: 08/04/2014)
79 MEMORANDUM in Opposition re 76 MOTION for Discovery and incorporated memorandum of law in support thereof (DuCharme, Seth) (Entered: 08/08/2014)
80 Letter request to modify the scheduling order as to Agron Hasbajrami (Zissou, Steve) (Entered: 08/13/2014)
ORDER as to Agron Hasbajrami re 80 Letter. The requested modification of the briefing schedule is granted. Hasbajrami's reply shall be filed by September 2, 2014. Ordered by Judge John Gleeson on 8/14/2014. (Aronoff, Peter) (Entered: 08/14/2014)
81 MOTION for Extension of Time to File classified supplement in further support of Defendant/Petitioner's discovery motion by Agron Hasbajrami. (Bachrach, Michael) (Entered: 09/02/2014)
82 REPLY TO RESPONSE to Motion re 76 MOTION for Discovery and incorporated memorandum of law in support thereof (Bachrach, Michael) (Entered: 09/02/2014)
ORDER as to Agron Hasbajrami re 81 . Hasbajrami's classified supplement shall be filed by Monday, September 8, 2014. Ordered by Judge John Gleeson on 9/3/2014. (Aronoff, Peter) (Entered: 09/03/2014)
83 Letter providing notice that presumptively classified letter was filed with the CIPA Classified Information Security Officer on September 5, 2014 as to Agron Hasbajrami (Bachrach, Michael) (Entered: 09/08/2014)
84 Letter Confirming that Mr. Hasbajrami intends to withdraw his guilty plea as to Agron Hasbajrami (Zissou, Steve) (Entered: 09/20/2014)
The parties are to appear for a Status Conference pursuant to order (docket entry #30) issued in the defendant's civil case 13-CV-6852. The Status Conference date is set for October 17, 2014 at 3:00 PM in

10/03/2014 10/03/2014 10/09/2014 10/23/2014
10/28/2014 10/31/2014 11/04/2014 11/17/2014 11/18/2014

courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 10/3/2014. (Lee, Ilene) (Entered: 10/03/2014)
85 ORDER as to Agron Hasbajrami. This order was entered yesterday in Hasbajrami's collateral attack case, no. 13-cv-6852. The order permits Hasbajrami to withdraw his guilty plea and also reopens this case for further proceedings. Ordered by Judge John Gleeson on 10/3/2014. (Aronoff, Peter) (Entered: 10/03/2014)
Case reopened for withdrawal of guilty plea as to Agron Hasbajrami (Piper, Francine) (Entered: 10/06/2014)
86 Letter dated October 6, 2014 from Agron Hasbajrami, requesting that the court return the $100 fee paid to the court. (Piper, Francine) (Entered: 10/10/2014)
Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. and Michael Bachrach, Esq. AUSA Seth D. DuCharme appears for the government. Albanian (Tosk) Interpreter Uk Lushi present and sworn. Status Conference as to Agron Hasbajrami held on 10/23/2014. All parties agree that this case will go onto trial. All non-CIPA motions shall be filed as follows: defendant's motions due by 11/26/14; oppositions due by 12/24/14; all replies are due by 1/9/2015. An Oral Argument is scheduled on January 23, 2015 at 10:00 AM in courtroom 6C South before Judge John Gleeson. The government shall file the CIPA section 4 by 1/9/2015. The case is still designated as complex for speedy trial purposes. (Court Reporter Gene Rudolph.) (Lee, Ilene) (Entered: 10/23/2014)
87 NOTICE OF ATTORNEY APPEARANCE Saritha Komatireddy appearing for USA. (Komatireddy, Saritha) (Entered: 10/28/2014)
88 Letter re Discovery Produced as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 10/31/2014)
ORDER as to Agron Hasbajrami. The defendant's application 89 to appoint a research and support counsel is granted. Ordered by Judge John Gleeson on 11/4/2014. (Lee, Ilene) (Entered: 11/04/2014)
90 Letter requesting amendment to pretrial motion schedule to incorporate deadlines for the filing of amicus briefs as to Agron Hasbajrami (Bachrach, Michael) (Entered: 11/17/2014)
ORDER as to Agron Hasbajrami. Hasbajrami's request to amend the pretrial motion schedule 90 is denied. Ordered by Judge John Gleeson on 11/18/2014. (Garcia, Lynda) (Entered: 11/18/2014)

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11/26/2014

91 Letter on Behalf of the American Civil Liberties Union Foundation Requesting Leave to File Amicus Brief as to Agron Hasbajrami (Toomey, Patrick) (Entered: 11/21/2014)
ORDER as to Agron Hasbajrami. My law clerk has informed me that the government has no objection to the ACLU filing an amicus brief in this matter so long as it does not waive its right to make any arguments about the ACLU's standing. As such, I grant the ACLU's request to file an amicus brief by December 5, 2014 91 , without prejudice to any arguments the government may make regarding standing or any other issue. Ordered by Judge John Gleeson on 11/26/2014. (Garcia, Lynda) (Entered: 11/26/2014)
92 MOTION to Suppress (1) THE FRUITS OF FAA SURVEILLANCE DUE TO THE PER SE UNCONSTITUTIONALITY OF THE STATUTE AND ITS APPLICATION HEREIN, (2) THE FRUITS OF FAA SURVEILLANCE IRRESPECTIVE OF THE CONSTITUTIONALITY OF THE STATUTE, (3) THE FRUITS OF FAA SURVEILLANCE BASED UPON OUTRAGEOUS GOVERNMENT CONDUCT, (4) THE DEFENDANTS POST-ARREST STATEMENTS, MOTION for Discovery (5) OF MATERIAL AND INFORMATION NECESSARY TO DETERMINE WHETHER THE GOVERNMENTS SPECIFIC CONDUCT IN THIS CASE VIOLATED THE STATUTORY REQUIREMENTS OF FISA, THE FAA, AND/OR ANY OTHER SURVEILLANCE STATUTE OR PROGRAM RELIED UPON DURING THE INVESTIGATION OF THIS CASE, AS WELL AS TO DETERMINE WHETHER THE GOVERNMENTS SPECIFIC CONDUCT VIOLATED HASBAJRAMIS RIGHT TO DUE PROCESS UNDER THE FIFTH AMENDMENT, (6) FOR AN ORDER DIRECTING THE GOVERNMENT TO IDENTIFY ANY AND ALL WITNESSES THAT IT LEARNED OF DURING, OR AS A RESULT OF, THE INTERROGATION OF THE DEFENDANT, (7) FOR AN ORDER DIRECTING THE GOVERNMENT TO SPECIFY ALL EVIDENCE THAT IS SUBJECT TO SUPPRESSION AND/OR PRECLUSION AS A RESULT OF THE INTERROGATION OF THE DEFENDANT, (8) FOR AN ORDER DIRECTING THE GOVERNMENT TO PROVIDE IMMEDIATE NOTICE OF EXPERT WITNESSES IT INTENDS TO RELY UPON AT TRIAL, (9) FOR IMMEDIATE PRODUCTION OF BRADY/GIGLIO MATERIAL, (10) FOR EARLY DISCLOSURE OF 3500 MATERIAL, (11) FOR NOTICE OF EVIDENCE THE GOVERNMENT INTENDS TO OFFER UNDER FED.R.EVID. 404(b), and, MOTION for Leave to File FURTHER MOTIONS by Agron Hasbajrami. (Bachrach, Michael) (Entered: 11/26/2014)

12/05/2014 12/05/2014 12/22/2014 12/23/2014 12/23/2014
12/24/2014
12/29/2014

93 NOTICE of Appearance on Behalf of Amici Curiae American Civil Liberties Union and Electronic Frontier Foundation as to Agron Hasbajrami (Toomey, Patrick) (Entered: 12/05/2014)
94 Letter Enclosing Brief of Amici Curiae as to Agron Hasbajrami (Attachments: # 1 Brief of Amici Curiae American Civil Liberties Union and Electronic Frontier Foundation) (Toomey, Patrick) (Entered: 12/05/2014)
95 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 12/22/2014)
96 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 12/23/2014)
97 RESPONSE in Opposition re 92 MOTION to Suppress (1) THE FRUITS OF FAA SURVEILLANCE DUE TO THE PER SE UNCONSTITUTIONALITY OF THE STATUTE AND ITS APPLICATION HEREIN, (2) THE FRUITS OF FAA SURVEILLANCE IRRESPECTIVE OF THE CONSTITUTIONALITY OF THE STATUTE, (3) THE FRUITS OF FAA SU MOTION for Discovery (5) OF MATERIAL AND INFORMATION NECESSARY TO DETERMINE WHETHER THE GOVERNMENTS SPECIFIC CONDUCT IN THIS CASE VIOLATED THE STATUTORY REQUIREMENTS OF FISA, THE FAA, AND/OR ANY OTHER SURVEILLANCE STATUTE OR PROGRAM RELIED UPON DUR MOTION for Leave to File FURTHER MOTIONS (Attachments: # 1 Exhibit 1) (Komatireddy, Saritha) (Entered: 12/23/2014)
98 RESPONSE in Opposition re 92 MOTION to Suppress (1) THE FRUITS OF FAA SURVEILLANCE DUE TO THE PER SE UNCONSTITUTIONALITY OF THE STATUTE AND ITS APPLICATION HEREIN, (2) THE FRUITS OF FAA SURVEILLANCE IRRESPECTIVE OF THE CONSTITUTIONALITY OF THE STATUTE, (3) THE FRUITS OF FAA SU MOTION for Discovery (5) OF MATERIAL AND INFORMATION NECESSARY TO DETERMINE WHETHER THE GOVERNMENTS SPECIFIC CONDUCT IN THIS CASE VIOLATED THE STATUTORY REQUIREMENTS OF FISA, THE FAA, AND/OR ANY OTHER SURVEILLANCE STATUTE OR PROGRAM RELIED UPON DUR MOTION for Leave to File FURTHER MOTIONS (Komatireddy, Saritha) (Entered: 12/24/2014)
99 Letter dated December 23, 2014 from Agron Hasbajrami to Judge Gleeson, requesting that dft's property be transferred to MDC Brooklyn. (Piper, Francine) (Entered: 12/30/2014)

12/31/2014

ORDER as to Agron Hasbajrami. In reference to the defendant's request 99 , AUSA DuCharme is respectfully directed to resolve the problem, which is an executive branch problem. If he needs judicial intervention in the form of an order, he should make that request. In any event, he should apprise the Court as to the status of the issue by January 9, 2015. Ordered by Judge John Gleeson on 12/31/2014. (Garcia, Lynda) (Entered: 12/31/2014)

01/06/2015 100 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 01/06/2015)

01/08/2015 101 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 01/08/2015)

01/09/2015 102 Letter regarding Status of Defendant's Property as to Agron Hasbajrami (DuCharme, Seth) (Entered: 01/09/2015)

01/09/2015

103 Letter re the Government's Classified Motion for a Protective Order pursuant to the Classified Information Procedures Act, Section 4, and Federal Rule of Criminal Procedure 16(d)(1) as to Agron Hasbajrami (Attachments: # 1 Exhibit with Motion's Cover Page, # 2 Proposed Order) (Komatireddy, Saritha) (Entered: 01/09/2015)

01/09/2015

104 REPLY TO RESPONSE to Motion re 92 MOTION to Suppress (1) THE FRUITS OF FAA SURVEILLANCE DUE TO THE PER SE UNCONSTITUTIONALITY OF THE STATUTE AND ITS APPLICATION HEREIN, (2) THE FRUITS OF FAA SURVEILLANCE IRRESPECTIVE OF THE CONSTITUTIONALITY OF THE STATUTE, (3) THE FRUITS OF FAA SU MOTION for Discovery (5) OF MATERIAL AND INFORMATION NECESSARY TO DETERMINE WHETHER THE GOVERNMENTS SPECIFIC CONDUCT IN THIS CASE VIOLATED THE STATUTORY REQUIREMENTS OF FISA, THE FAA, AND/OR ANY OTHER SURVEILLANCE STATUTE OR PROGRAM RELIED UPON DUR MOTION for Leave to File FURTHER MOTIONS (Bachrach, Michael) (Entered: 01/09/2015)

01/21/2015

ORDER as to Agron Hasbajrami. The Court welcomes amici's participation at oral argument on January 23, 2015, if they so wish to be heard. Ordered by Judge John Gleeson on 1/21/2015. (Garcia, Lynda) (Entered: 01/21/2015)

01/22/2015

105 Letter on behalf of amici accepting Court's invitation to participate at oral argument on January 23, 2015 as to Agron Hasbajrami (Toomey, Patrick) (Entered: 01/22/2015)

01/23/2015

Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel

Michael Bachrach, Esq.. Amicus Party represented by Patrick C. Toomey, Esq., Jameel Jaffer, Esq., and Alex Abdo, Esq.. AUSA Seth D. DuCharme, AUSA Saritha Komatireddy and AUSA Matthew Amatruda appear for the government. Albanian (Tosk) interpreter Uk Lushi present. Oral Argument as to Agron Hasbajrami held on 1/23/2015 re 92 MOTION to Suppress filed by Agron Hasbajrami. The Court has heard all the arguments. The defendant's Motion to Suppress the fruits of the FAA Surveillance based upon the government's outrageous conduct is DENIED. The Court's decision is reserved regarding the rest of the motion to suppress and will be entered onto ECF separately. (Court Reporter Allan Sherman.) (Lee, Ilene) (Entered: 01/23/2015)

02/02/2015

106 Letter dated January 27, 2015 from Agron Hasbajrami to Judge Gleeson, requesting information on whether there are any new charges or indictments in this district. (Piper, Francine) (Entered: 02/05/2015)

02/05/2015

107 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Agron Hasbajrami held on 10/23/14, before Judge Gleeson. Court Reporter/Transcriber Rudolph. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 2/26/2015. Redacted Transcript Deadline set for 3/9/2015. Release of Transcript Restriction set for 5/6/2015. (Rudolph, Gene) (Entered: 02/05/2015)

02/06/2015

ORDER as to Agron Hasbajrami. I have received a letter from Mr. Hasbajrami 106 that contains an inquiry more properly directed to his own counsel. Defense counsel are respectfully directed to consult with their client regarding his inquiry. Ordered by Judge John Gleeson on 2/6/2015. (Garcia, Lynda) (Entered: 02/06/2015)

02/20/2015

ORDER as to Agron Hasbajrami.The defendant's motion to suppress the fruits of the FAA surveillance, including the defendant's post-arrest statements (DE 92) is denied. An opinion will follow. In addition, the government has, inter alia, sought the Court's permission to provide disclosure to the defendant in the form of two summaries of classified information (S1 and S2). Though one of the summaries may be expanded, the application is granted to the extent that the government is hereby directed to provide the proposed versions of S1 and S2 to defense counsel forthwith. A status conference will be held on Friday, February 27, 2015 at 3:30 PM. At that conference, the court will inquire of the government whether it intends to offer once again the charge bargain that was previously accepted by the defendant, and whether it

has considered the prospect of allowing the defendant to enter such a plea pursuant to Rule 11(a)(2), reserving his right to seek appellate review of my denial of the motion to suppress evidence. Ordered by Judge John Gleeson on 2/20/2015. (Garcia, Lynda) (Entered: 02/20/2015)

02/23/2015

SCHEDULING ORDER as to Agron Hasbajrami. The status conference currently scheduled for Friday, February 27, 2015 at 3:30 PM is rescheduled to Monday, March 2, 2015 at 3:30 PM because the Tosk interpreter is not available on February 27. Ordered by Judge John Gleeson on 2/23/2015. (Garcia, Lynda) (Entered: 02/23/2015)

02/23/2015 109 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 02/23/2015)

02/24/2015 110 Letter re Discovery and Expert Disclosure as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 02/24/2015)

03/02/2015

Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. and Michael Bachrach, Esq.. AUSA Seth D. DuCharme and AUSA Saritha Komatireddy appears for the government. Status Conference as to Agron Hasbajrami held on 3/2/2015. The case is trial ready. The parties are to inform the Court by the next Status Conference is to whether a trial will be necessary in this case. The next Status Conference is set for April 9, 2015 at 2:00 PM in courtroom 6C South before Judge John Gleeson. A Jury Selection and Trial date is set for July 13, 2015 at 9:30 AM in courtroom 6C South before Judge John Gleeson. The case has already been designated as complex for speedy trial time purposes. (Court Reporter Mary Agnes Drury.) (Lee, Ilene) (Entered: 03/02/2015)

03/03/2015

ORDER as to Agron Hasbajrami. Defendant's ex parte, sealed application for support services dated February 20, 2015 108 is granted. Ordered by Judge John Gleeson on 3/3/2015. (Garcia, Lynda) (Entered: 03/03/2015)

03/03/2015

111 ORDER as to Agron Hasbajrami. The government's Classified Motion for a Protective Order pursuant to the Classified Information Procedures Act, Section 4, and Federal Rule of Criminal Procedure 16(d)(1) (see DE 103) is granted for the reasons stated in the attached order. Ordered by Judge John Gleeson on 3/3/2015. (Garcia, Lynda) (Entered: 03/03/2015)

03/10/2015

ORDER as to Agron Hasbajrami. The ex parte application for defense services 112 is granted. Ordered by Judge John Gleeson on 3/10/2015. (Garcia, Lynda) (Entered: 03/10/2015)

03/12/2015

NOTICE OF Change in Time for the Status Conference as to Agron Hasbajrami due to Court related matters. The date remains set for April 9, 2015 but the time is now at 12:00 PM in courtroom 6C South before Judge John Gleeson. (Lee, Ilene) (Entered: 03/12/2015)

03/12/2015 114 Letter dated March 8, 2015 from Agron Hasbajrami to Judge Gleeson, requesting discovery material. (Piper, Francine) (Entered: 03/13/2015)

03/13/2015 113 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 03/13/2015)

03/16/2015 115 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 03/16/2015)

03/17/2015

ORDER as to Agron Hasbajrami. I have received a letter 114 from the defendant himself requesting discovery. The request is denied without prejudice to renewal in an application made through counsel. Ordered by Judge John Gleeson on 3/17/2015. (Garcia, Lynda) (Entered: 03/17/2015)

03/20/2015

116 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Agron Hasbajrami held on 01/23/2015, before Judge John Gleeson. Court Reporter/Transcriber Allan R Sherman, Telephone number 718613-2529. Email address: asher99983@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 4/10/2015. Redacted Transcript Deadline set for 4/20/2015. Release of Transcript Restriction set for 6/18/2015. (Sherman, Allan) (Entered: 03/20/2015)

03/30/2015 117 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 03/30/2015)

04/09/2015

NOTICE OF Change in date for the Status Conference as to Agron Hasbajrami as per request from the defense counsel. The new date is now rescheduled to April 14, 2015 at 11:00 AM in courtroom 6C South before Judge John Gleeson. (Lee, Ilene) (Entered: 04/09/2015)

04/14/2015

Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. and Michael Bachrach, Esq.. AUSA Saritha Komatireddy appears for the government. Status Conference as to Agron Hasbajrami held on 4/14/2015. The government informs the Court that it will not be offering a plea agreement to the defendant. The

jury selection and trial date remains set for July 13, 2015 at 9:30 AM in courtroom 6C South before Judge John Gleeson. The speedy trial time is excluded until the trial date. (Court Reporter Gene Rudolph.) (Lee, Ilene) (Entered: 04/14/2015)

04/16/2015 118 Letter re Discovery, Certifications, and Expert Disclosure as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 04/16/2015)

04/16/2015 119 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 04/16/2015)

04/23/2015

ORDER as to Agron Hasbajrami. Upon further review of the information provided by the government, the defendant's application for additional disclosure made in today's sealed CIPA proceeding is denied. Also, due to a court conflict, the status conference currently scheduled for May 28, 2015 at 10:00 AM is rescheduled to May 27, 2015 at 10:00 AM. Ordered by Judge John Gleeson on 4/23/2015. (Garcia, Lynda) (Entered: 04/23/2015)

04/29/2015

ORDER as to Agron Hasbajrami: Trial is scheduled for July 13, 2015. The parties are informed that a questionnaire will be used for jury selection. They are encouraged to agree upon a proposed questionnaire and to provide such a proposal to the Court on or before May 8, 2015. Jury selection will commence on June 30, 2015, at 2:00 pm with the completion of the questionnaire by the prospective jurors. Jury selection will resume on July 7 and, if necessary, on July 9, until it is completed. Ordered by Judge John Gleeson on 4/29/2015. (Gleeson, John) (Entered: 04/29/2015)

04/30/2015 120 NOTICE OF ATTORNEY APPEARANCE Peter W. Baldwin appearing for USA. (Baldwin, Peter) (Entered: 04/30/2015)

04/30/2015 121 NOTICE OF ATTORNEY APPEARANCE: Joshua L. Dratel appearing for Agron Hasbajrami (Dratel, Joshua) (Entered: 04/30/2015)

05/11/2015

122 Letter re Sensitive Discovery Materials and Request for Extension in Time to File Joint Jury Questionnaire as to Agron Hasbajrami (DuCharme, Seth) (Entered: 05/11/2015)

05/11/2015 123 PRETRIAL MEMORANDUM in Support of Motion for Anonymous Jury as to Agron Hasbajrami (DuCharme, Seth) (Entered: 05/11/2015)

05/13/2015

SCHEDULING ORDER as to Agron Hasbajrami. Defendant shall file his reply to the government's request for an anonymous, partially sequestered jury 123 on or before May 20, 2015; the government shall file its reply (if any) on or before May 22, 2015. Ordered by Judge John Gleeson on 5/13/2015. (Garcia, Lynda) (Entered: 05/13/2015)

05/13/2015

124 Letter re: Joint Proposed Jury Questionnaire as to Agron Hasbajrami (Attachments: # 1 Joint Proposed Jury Questionnaire) (Baldwin, Peter) (Entered: 05/13/2015)

05/20/2015

125 PRETRIAL MEMORANDUM in opposition to the Government's motion for an anonymous, partially sequestered jury as to Agron Hasbajrami (Bachrach, Michael) (Entered: 05/20/2015)

05/22/2015

126 PRETRIAL MEMORANDUM Reply Brief in Support of Government's Motion for an Anonymous Jury and Other Relief as to Agron Hasbajrami (DuCharme, Seth) (Entered: 05/22/2015)

05/27/2015

Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. and Michael K. Bachrach, Esq.. AUSA Seth D. DuCharme and AUSA Peter Baldwin appear for the government. Albanian Interpreter Dominique Marini present and sworn. Pre Trial Conference as to Agron Hasbajrami held on 5/27/2015. The parties inform the Court that a plea agreement has been offered in this case but the parties are still ready to go forward with trial. The defendant has requested an adjournment of the trial date for a few days to accommodate the Ramadan Holiday dates. This request and the remaining jury motions will be decided and filed via ECF shortly. The government is directed to notify the Court as soon as possible if there is the possibility for a pleading in this case. The speedy trial time is excluded until the jury selection date of June 29, 2015 at 2:00 PM. (Court Reporter Sherry Bryant.) (Lee, Ilene) (Entered: 05/27/2015)

06/05/2015

127 Letter Regarding Daubert Motion Schedule, Given that the Defense Has Not Yet Received the Expert Report of the Government's Proposed Expert as to Agron Hasbajrami (Dratel, Joshua) (Entered: 06/05/2015)

06/09/2015

ORDER as to Agron Hasbajrami. Defendant's request 127 to write the Court when the expert report is produced is granted. Ordered by Judge John Gleeson on 6/9/2015. (Garcia, Lynda) (Entered: 06/09/2015)

06/12/2015 128 Letter re: Expert Report as to Agron Hasbajrami (Baldwin, Peter) (Entered: 06/12/2015)

06/12/2015 129 Letter Re: Daubert Motion Schedule as to Agron Hasbajrami (Dratel, Joshua) (Entered: 06/12/2015)

06/15/2015

ORDER as to Agron Hasbajrami. Defense counsel's request 129 that its Daubert motion be due on Monday, June 22, 2015 is granted. The government shall file its opposition to the motion on or before Monday, June 29, 2015. To the extent that oral argument and/or an evidentiary hearing in relation to the motion is warranted, that will occur on the

morning the witness is scheduled to appear for trial. Ordered by Judge John Gleeson on 6/15/2015. (Garcia, Lynda) (Entered: 06/15/2015)

06/16/2015

130 ORDER as to Agron Hasbajrami. The government's motion for an anonymous and partially sequestered jury 123 is granted and the attached questionnaire 130 will be used on June 30, 2015. Any comments or objections shall be filed no later than Friday, June 19, 2015. Ordered by Judge John Gleeson on 6/16/2015. (Garcia, Lynda) (Entered: 06/16/2015)

06/17/2015

131 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Agron Hasbajrami held on 03/02/2015, before Judge Gleeson. Court Reporter/Transcriber Mary Agnes Drury. Email address: mad78910@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 7/8/2015. Redacted Transcript Deadline set for 7/20/2015. Release of Transcript Restriction set for 9/15/2015. (Drury, Mary) (Entered: 06/17/2015)

06/19/2015 132 Letter Re: Objection to Jury Questionnaire, Docket #130 as to Agron Hasbajrami (Dratel, Joshua) (Entered: 06/19/2015)

06/22/2015

133 Letter MOTION for Extension of Time to File Motion to Preclude the Testimony of the Government's Proposed Expert, Evan Kohlmann by Agron Hasbajrami. (Dratel, Joshua) (Entered: 06/22/2015)

06/22/2015 134 Letter re: Discovery as to Agron Hasbajrami (Baldwin, Peter) (Entered: 06/22/2015)

06/23/2015

135 Letter requesting authorization to enlist Turkish interpreter to review accuracy of verbatim translations disclosed yesterday (ecf #134), and to bill such services pursuant to the Criminal Justice Act as to Agron Hasbajrami (Bachrach, Michael) (Entered: 06/23/2015)

06/23/2015

ORDER as to Agron Hasbajrami. Defense counsel's request 135 to enlist interpreter and bill for her services is granted. Ordered by Judge John Gleeson on 6/23/2015. (Garcia, Lynda) (Entered: 06/23/2015)

06/24/2015

136 Notice of MOTION in Limine To Preclude or Limit the Testimony of Proposed Government Expert Witness, Evan Kohlmann by Agron Hasbajrami. (Dratel, Joshua) (Entered: 06/24/2015)

06/24/2015 137 AFFIDAVIT in Support re 136 Notice of MOTION in Limine To Preclude or Limit the Testimony of Proposed Government Expert

Witness, Evan Kohlmann (Attachments: # 1 Exhibit 1--Kohlmann Notice dated 2/24/15, # 2 Exhibit 2 -- Rule 16 Material Related to Kohlmann Proposed Testimony, # 3 Exhibit 3-- Kohlmann Expert Report, # 4 Exhibit 4-- Abu Ali Motions Hearing, # 5 Exhibit 5-- AlFaqih Trial Transcript, # 6 Exhibit 6-- Court Order in Amawi Case, # 7 Exhibit 7- Kaziu Trial Transcript Excerpts, # 8 Exhibit 8-- Court Order in Kabir Case, # 9 Exhibit 9-- Dr. Sageman Expert Report, # 10 Exhibit 10- Kohlmann CV, # 11 Exhibit 11-- Email From Danish Institute of International Studies, # 12 Exhibit 12-- Email from Harvard Law Review Forum, # 13 Exhibit 13- Kohlmann's Padilla Rebuttal, # 14 Exhibit 14-Excerpts of Kohlmann Testimony From Various Trials, # 15 Exhibit 15--Excerpts From Kohlmann Testimony in Maktouf Case and In Re: Operation Niche, # 16 Exhibit 16-- Expert Report in Abu Jihaad Case, # 17 Exhibit 17-- Excpert From Kohlmann Testimony in Mubayyid Trial (Dec 2007), # 18 Exhibit 18-- Excpert From Kohlmann Testimony in Mubayyid Trial (Nov 28, 2007), # 19 Exhibit 19-Excerpts From Kohlmann Book, # 20 Exhibit 20-- Kohlmann Testimony in Paracha Case) (Dratel, Joshua) (Entered: 06/24/2015)

06/24/2015

138 MEMORANDUM in Support re 136 Notice of MOTION in Limine To Preclude or Limit the Testimony of Proposed Government Expert Witness, Evan Kohlmann (Dratel, Joshua) (Entered: 06/24/2015)

06/25/2015 139 Letter to the Court re Status of Case as to Agron Hasbajrami (DuCharme, Seth) (Entered: 06/25/2015)

06/26/2015 140 WAIVER OF INDICTMENT by Agron Hasbajrami before Judge Gleeson on June 26, 2015. (Piper, Francine) (Entered: 06/26/2015)

06/26/2015 141 SUPERSEDING INFORMATION (S-2) as to Agron Hasbajrami (1) count(s) 1ss-2ss. (Piper, Francine) (Entered: 06/26/2015)

06/26/2015

142 Minute Entry for proceedings held before Judge John Gleeson:Arraignment as to Agron Hasbajrami (1) Count 1ss-2ss held on 6/26/2015, Plea Agreement Hearing as to Agron Hasbajrami held on 6/26/2015, Plea entered by Agron Hasbajrami (1) Guilty Count 1ss,2ss., ( Sentencing set for 7/30/2015 02:00 PM in Courtroom 6C South before Judge John Gleeson.) AUSA Michael Bachrach, Joshua Dratel and Seth Ducharme; Defense Counsel, Peter Baldwin and Saritha Komatireddy; (Court Reporter Lisa Schmid.) (Piper, Francine) (Entered: 06/26/2015)

07/15/2015

ORDER granting 143 Motion to Seal Document as to Agron Hasbajrami. The motion to seal document 38 is granted. Counsel are directed to file a readacted version by Friday, July 17, 2015. Ordered by Judge John Gleeson on 7/15/2015. (Garcia, Lynda) (Entered: 07/15/2015)

07/15/2015 144 SENTENCING MEMORANDUM by Agron Hasbajrami (Bachrach, Michael) (Entered: 07/15/2015)

07/17/2015

145 CJA Application for Payment in case as to Agron Hasbajrami Denied: The application for payment for interpreter services is denied for the reasons set forth in the attached document 145 . Defense counsel may respond on or before July 24, 2105 if he wishes to be heard on the subject. Ordered by Judge John Gleeson on 7/17/2015. (Garcia, Lynda) (Entered: 07/17/2015)

07/20/2015 146 MOTION to Withdraw Plea of Guilty by Agron Hasbajrami. (Piper, Francine) (Entered: 07/21/2015)

08/06/2015

Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. and Joshua Dratel, Esq. in person. Defense Counsel Michael Bachrach, Esq. was present via telephone. AUSA Seth D. DuCharme, AUSA Saritha Komatireddy and AUSA Peter Baldwin appear for the government. Albanian Interpreter Dominique Marini present and sworn. Motion Hearing as to Agron Hasbajrami held on 8/6/2015 re 146 MOTION to Withdraw Plea of Guilty filed by Agron Hasbajrami. The Court has DENIED this motion for the limited reasons as stated on the record today. The defendant's request to have counsel Steve Zissou and Michael Bachrach relieved is also DENIED by the Court to the extent that these two counsel shall remain on the case solely to provide assistance to counsel Joshua Dratel for the upcoming sentencing. A full decision shall be provided by the Court during the sentencing date which shall remain set for August 13, 2015 at 2:30 PM in courtroom 6C South before Judge John Gleeson. (Court Reporter Nicole Canales.) (Lee, Ilene) (Entered: 08/06/2015)

08/10/2015 147 SENTENCING MEMORANDUM by Agron Hasbajrami (Dratel, Joshua) (Entered: 08/10/2015)

08/11/2015 148 SENTENCING MEMORANDUM by USA as to Agron Hasbajrami (DuCharme, Seth) (Entered: 08/11/2015)

08/13/2015

151 Minute Entry for proceedings held before Judge John Gleeson:Sentencing held on 8/13/2015 for Agron Hasbajrami (1), Count(s) 1, 1s, 2s, 3s-4s, All open counts dismissed on the motion of the U.S.; Count(s) 1ss, 2ss, 180 months of incarceration on Count One and 12 months on Count Two to run consecutively on each count, totaling 192 months of incarceration. The court recommends to the bureau of prisons for incarceration at FCI Terre Haute, Indiana. No term of supervised release is imposed. Special Assessment of $200.00. AUSA Seth DuCharme and Saritha Kamatineedy and Peter Baldwin

(Court Reporter Holly Driscoll.) (Piper, Francine) (Entered: 08/17/2015)

08/17/2015

150 ORDER OF JUDICIAL REMOVAL to Albania. as to Agron Hasbajrami.Ordered by Judge John Gleeson on 8/13/2015. (Piper, Francine) (Entered: 08/17/2015)

08/17/2015

152 JUDGMENT as to Agron Hasbajrami (1), Count(s) 1, 1s, 2s, 3s-4s, All open counts dismissed on the motion of the U.S.; Count(s) 1ss, 2ss, 180 months of incarceration on Count One and 12 months on Count Two to run consecutively on each count, totaling 192 months of incarceration. The court recommends to the bureau of prisons for incarceration at FCI Terre Haute, Indiana. No term of supervised release is imposed. Special Assessment of $200.00 Ordered by Judge John Gleeson on 8/14/2015. (Piper, Francine) (Entered: 08/17/2015)

08/21/2015

154 NOTICE OF APPEAL by Agron Hasbajrami re 152 Judgment. No fee paid. Defendant represented by CJA Counsel. Service done electronically. (Dratel, Joshua) Modified on 8/21/2015 to reflect fee status and service.(McGee, Mary Ann). (Entered: 08/21/2015)

08/21/2015

Electronic Index to Record on Appeal as to Agron Hasbajrami sent to US Court of Appeals 154 Notice of Appeal - Final Judgment Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 08/21/2015)

08/24/2015 155 SUBSEQUENT NOTICE OF APPEAL by Agron Hasbajrami re Order,,,, 152 Judgment,, (Dratel, Joshua) (Entered: 08/24/2015)

08/24/2015

First Supplemental Electronic Index to Record on Appeal as to Agron Hasbajrami sent to US Court of Appeals 155 Subsequent/Amended Notice of Appeal - Final Judgment (McGee, Mary Ann) (Entered: 08/24/2015)

08/31/2015

156 Letter requesting the designation recommendation in the Judgment be amended from Terre Haute to FCI Terre Haute as to Agron Hasbajrami (Dratel, Joshua) (Entered: 08/31/2015)

08/31/2015

157 Letter dated August 26, 2015 from Agron Hasbajrami to Judge Gleeson, requesting that the judge suggest incarceration in "CMU" Terre Haute. (Piper, Francine) (Entered: 09/02/2015)

09/04/2015

158 AMENDED JUDGMENT as to Agron Hasbajrami (1), Count(s) 1, 1s, 2s, 3s-4s, All open counts dismissed on the motion of the U.S.; Count(s) 1ss, 2ss, - ONLY AMENDING PAGE 2 TO REFLECT THE

BOP RECOMMENDED FACILITY DESIGNATION REQUESTED BY THE DEFENDANT'S PRO SE LETTER TO THE COURT DATED AUGUSTS 26, 2015.Ordered by Judge John Gleeson on 9/4/2015. (Piper, Francine) (Entered: 09/04/2015)

10/23/2015 160 MOTION to Amend/Correct 158 Amended Judgment, by Agron Hasbajrami. (Piper, Francine) (Entered: 10/27/2015)

10/29/2015

ORDER granting 160 Motion to Amend/Correct as to Agron Hasbajrami (1). Having confirmed the proposed amendments to the judgment telephonically with AUSA Seth DuCharme through my law clerk, I grant the application to amend the judgment. Ordered by Judge John Gleeson on 10/29/2015. (Bensing, Kayla) (Entered: 10/29/2015)

11/03/2015

161 SECOND AMENDED JUDGMENT as to Agron Hasbajrami (1) Amending page 1 to reflect that there was a Superseding Information and that Count One was brought under 18 U.S.C. § 2339A. Ordered by Judge John Gleeson on 11/2/2015. (Greene, Donna) (Main Document 161 replaced on 11/4/2015) (Greene, Donna). (Entered: 11/03/2015)

11/19/2015

163 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Agron Hasbajrami held on August 13, 2015, before Judge Gleeson. Court Reporter/Transcriber H. Driscoll, Telephone number 718-6132274. Email address: hdrisc@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 12/10/2015. Redacted Transcript Deadline set for 12/21/2015. Release of Transcript Restriction set for 2/17/2016. (Driscoll, Holly) (Entered: 11/19/2015)

02/17/2016

ORDER as to Agron Hasbajrami: the sealed, ex parte application dated 2/16/2016 is granted. Ordered by Judge John Gleeson on 2/17/2016. (Bensing, Kayla) (Entered: 02/17/2016)

02/23/2016

ORDER as to Agron Hasbajrami: the presumptively classified opinion denying the 92 motion to suppress was given to the classified information security officer on February 18, 2016 for service by hand to defense counsel and the government. Ordered by Judge John Gleeson on 2/23/2016. (Bensing, Kayla) (Entered: 02/23/2016)

02/25/2016

ORDER as to Agron Hasbajrami: to clarify my order dated February 23, 2016, the Court had understood that the presumptively classified opinion denying the 92 motion to suppress had been served to defense counsel. The classified security information officer has since informed

the Court that the presumptively classified opinion was not served to defense counsel, but that instead an unclassified and redacted version of the opinion was served to all parties on February 25, 2016. The Court is communicating with the government to arrive upon a version of the opinion that may be publicly filed, and the Court will so file when that process has concluded. Ordered by Judge John Gleeson on 2/25/2016. (Bensing, Kayla) (Entered: 02/25/2016)

03/08/2016

165 ORDER as to Agron Hasbajrami: attached is a memorandum and order explaining the basis for my decision to deny the 92 motion to suppress. There are several instances in this memorandum where language has been substituted, and two instances where language has been redacted, from that in the presumptively classified opinion given to the classified information security officer on February 18, 2016. These substitutions and redactions reflect the government's decision that the material redacted would "expose government equities." Ordered by Judge John Gleeson on 3/8/2016. (Bensing, Kayla) (Entered: 03/08/2016)

07/25/2016

166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel by Agron Hasbajrami. (Dratel, Joshua) (Entered: 07/25/2016)

07/25/2016

167 AFFIDAVIT in Support re 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel (Dratel, Joshua) (Entered: 07/25/2016)

07/25/2016

168 MEMORANDUM in Support re 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel (Dratel, Joshua) (Entered: 07/25/2016)

07/26/2016

ORDER REASSIGNING CASE as to Agron Hasbajrami. Reassigned to Judge Margo K. Brodie. Judge John Gleeson no longer assigned to the case. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such.. Ordered by Chief Judge Dora Lizette Irizarry on 7/26/2016. (Davis, Kimberly) (Entered: 07/26/2016)

08/02/2016

ORDER REASSIGNING CASE as to Agron Hasbajrami. Reassigned to Chief Judge Dora Lizette Irizarry. Judge Margo K. Brodie no longer assigned to the case. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Ordered by Chief Judge Dora Lizette Irizarry on 8/2/2016. (Bowens, Priscilla) (Entered: 08/02/2016)

08/03/2016

ORDER as to Agron Hasbajrami re 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel filed by Agron Hasbajrami, -- The Government shall respond to this motion by August 23, 2016; defendant shall reply by September 6, 2016. The parties are reminded to provide two hard courtesy copies of all motion papers, including doc. 166, to chambers promptly. So Ordered by Chief Judge Dora Lizette Irizarry on 8/3/2016. (Carosella, Christy) (Entered: 08/03/2016)

08/23/2016

169 RESPONSE in Opposition re 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel (Baldwin, Peter) (Entered: 08/23/2016)

09/06/2016

170 REPLY TO RESPONSE to Motion re 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel (Dratel, Joshua) (Entered: 09/06/2016)

04/06/2017

171 ORDER denying 166 Motion for Leave to File as to Agron Hasbajrami (1) -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Defendant's motion to release the Unredacted Opinion issued on February 18, 2016 by the Hon. John Gleeson, U.S.D.J. (retired), to his security cleared counsel is denied in its entirety. SO ORDERED by Chief Judge Dora Lizette Irizarry on 4/6/2017. (Irizarry, Dora) (Entered: 04/06/2017)

04/17/2017 172 Letter Re: Reconsideration of April 6, 2017, Memorandum and Order as to Agron Hasbajrami (Dratel, Joshua) (Entered: 04/17/2017)

04/18/2017

ORDER as to Agron Hasbajrami re 172 Letter -- The Government shall respond to defendant's application on or before May 2, 2017. So Ordered by Chief Judge Dora Lizette Irizarry on 4/18/2017. (Carosella, Christy) (Entered: 04/18/2017)

05/01/2017

173 Letter re: Response to Defendant's Letter Re: Reconsideration of April 6, 2017, Memorandum and Order as to Agron Hasbajrami (Baldwin, Peter) (Entered: 05/01/2017)

08/22/2017

174 ORDER as to Agron Hasbajrami re 172 Letter -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, defendant's request for reconsideration of this Court's April 6, 2017 Memorandum and Order is denied. SO ORDERED by Chief Judge Dora Lizette Irizarry on 8/22/2017. (Irizarry, Dora) (Entered: 08/22/2017)

08/25/2017

175 NOTICE OF APPEAL by Agron Hasbajrami re 171 Order on Motion for Leave to File, 174 Order, No fee. Appellant represented by CJA Attorney. Service done electronically. (Bachrach, Michael) Modified on

8/28/2017 to reflect fee status and service (McGee, Mary Ann). (Entered: 08/25/2017)

08/28/2017

Electronic Index to Record on Appeal as to Agron Hasbajrami sent to US Court of Appeals 175 Notice of Appeal - Final Judgment, Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 08/28/2017)

09/22/2017

176 Letter from Agron Hasbajrami to Clerk of Court, "requesting a copy of the docket sheet for the above case number." (Layne, Monique) (Entered: 09/22/2017)

 
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Eastern District of New York - LIVE Database 1.2 (Revision 1.2.0.6)
Query Reports Utilities Help Log Out
APPEAL,MJSELECT-RLM
U.S. District Court Eastern District of New York (Brooklyn) CRIMINAL DOCKET FOR CASE #: 1:11-cr-00623-DLI-1

Case title: USA v. Hasbajrami

Date Filed: 09/08/2011 Date Terminated: 08/17/2015

Assigned to: Judge Dora Lizette Irizarry

Defendant (1)
Agron Hasbajrami # 65794-053 FCI Fairton Federal Correctional Institution P.O. Box 420 Fairton, NJ 08320 TERMINATED: 08/17/2015

represented by Nancy Lee Ennis 381 Park Avenue SO. Suite 701 New York, NY 10016 (212) 686-0666 Fax: 212-686-8690 Email: nancy@qandelaw.com TERMINATED: 01/19/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment

Steven Zissou Steve Zissou & Associates 42-40 Bell Blvd. Suite 302 Bayside, NY 11361 718-279-4500 Fax: 718-281-0850 Email: stevezissou@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: CJA Appointment

Joshua L. Dratel Law Ofﬁces of Joshua L. Dratel, P.C. 2 Wall Street 3rd Floor New York, NY 10005 212-732-0707 Fax: 212-571-6341 Email: JDratel@joshuadratel.com ATTORNEY TO BE NOTICED Designation: CJA Appointment

Michael K. Bachrach

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276 Fifth Avenue Suite 501 New York, NY 10001 212-929-0592 Fax: 866-328-1630 Email: michael@mbachlaw.com ATTORNEY TO BE NOTICED Designation: CJA Appointment

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

Disposition
180 months of incarceration on Count One and 12 months on Count Two to run consecutively on each count, totaling 192 months of incarceration. The court recommends to the bureau of prisons for incarceration at FCI Terre Haute, Indiana. No term of supervised release is imposed. Special Assessment of $200.00. AMENDED JUDGMENT DATED SEPTEMBER 4, 2015. - ONLY AMENDING PAGE 2 TO REFLECT THE BOP RECOMMENDED FACILITY DESIGNATION REQUESTED BY THE DEFENDANT'S PRO SE LETTER TO THE COURT DATED AUGUSTS 26, 2015. SECOND AMENDED JUDGEMENT Amending page 1 to reﬂect that there was a Superseding Information and that Count One was brought under 18 U.S.C. § 2339A.
180 months of incarceration on Count One and 12 months on Count Two to run consecutively on each count, totaling 192 months of incarceration. The court recommends to the bureau of prisons for incarceration at FCI Terre Haute, Indiana. No term of supervised release is imposed. Special Assessment of $200.00. AMENDED JUDGMENT DATED SEPTEMBER 4, 2015. - ONLY AMENDING PAGE 2 TO REFLECT THE BOP RECOMMENDED FACILITY DESIGNATION REQUESTED BY THE DEFENDANT'S PRO SE LETTER TO THE COURT DATED AUGUSTS 26, 2015. SECOND AMENDED JUDGMENT Amending page 1 to reﬂect that there was a Superseding Information and that Count One was brought under 18 U.S.C. § 2339A.

Highest Offense Level (Opening) Felony

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Terminated Counts

Eastern District of New York - LIVE Database 1.2 (Revision 1.2.0.6)
Disposition

PROVIDING MATERIAL SUPPORT TO TERRORISTS (1)

All open counts dismissed on the motion of the U.S.

PROVIDING MATERIAL SUPPORT TO TERRORISTS (1s)

All open counts dismissed on the motion of the U.S.

PROVIDING MATERIAL SUPPORT TO TERRORISTS (2s)

All open counts dismissed on the motion of the U.S.

PROVIDING MATERIAL SUPPORT TO TERRORISTS (3s-4s)

All open counts dismissed on the motion of the U.S.

Highest Offense Level (Terminated) Felony

Complaints None

Disposition

Amicus
American Civil Liberties Union and Electronic Frontier Foundation TERMINATED: 08/17/2015

represented by Patrick Christopher Toomey American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-519-7816 Fax: 212-549-2654 Email: ptoomey@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Plaintiff USA

represented by Matthew S. Amatruda United States Attorney's Ofﬁce Eastern District of New York One Pierrepont Plaza Brooklyn, NY 11201-0111 718-254-7012 Fax: 718-254-6076 Email: matthew.amatruda@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Seth David DuCharme United States Attorneys Ofﬁce
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Eastern District Of New York 271 Cadman Plaza East Brooklyn, NY 11201 (718)254-6021 Fax: (718)254-6076 Email: seth.ducharme@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter W. Baldwin United States Attorney's Ofﬁce, Eastern District of Ne 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6236 Fax: 718-254-6076 Email: peter.baldwin@usdoj.gov ATTORNEY TO BE NOTICED
Saritha Komatireddy US Attorney's Ofﬁce - EDNY 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6054 Fax: 718-254-6076 Email: saritha.komatireddy@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 09/08/2011 09/09/2011 09/09/2011 09/09/2011
09/09/2011 09/09/2011

# Docket Text
1 SEALED INDICTMENT as to Agron Hasbajrami (1) count(s) 1. (Bowens, Priscilla) (Entered: 09/09/2011)
2 Order to Unseal Indictment as to Agron Hasbajrami.. Ordered by Magistrate Judge Roanne L. Mann on 9/9/2011. (Marziliano, August) (Entered: 09/09/2011)
3 MOTION to Remand Memorandum of Law in Support of the Government's Motion for a Permanent Order of Detention by USA as to Agron Hasbajrami. (DuCharme, Seth) (Entered: 09/09/2011)
4 Minute Entry for proceedings held before Magistrate Judge Lois Bloom:Arraignment as to Agron Hasbajrami (1) Count 1 held on 9/9/2011, Initial Appearance as to Agron Hasbajrami held on 9/9/2011, Plea entered by Agron Hasbajrami (1) Count 1. by Agron Hasbajrami Not Guilty to count one. Order of Speedy Trial, Start 9/9/11 - Stop 9/29/11. ( Status Conference set for 9/29/2011 11:00 AM in Courtroom 6C South before Judge John Gleeson.) AUSA Seth DuCharme; Defense Counsel, Nancy Ennis. (Tape #3:45 - 3:57.) (Piper, Francine) (Entered: 09/13/2011)
5 ORDER TO CONTINUE - Ends of Justice as to Agron Hasbajrami Time excluded from 9/9/11 until 9/29/11. (Ordered by Magistrate Judge Lois Bloom on 9/9/2011) (Piper, Francine) (Entered: 09/13/2011)
6 CJA 20 as to Agron Hasbajrami: Appointment of Attorney Nancy Lee Ennis for Agron Hasbajrami. (Ordered by Magistrate Judge Lois Bloom on 9/9/2011) (Piper, Francine) (Entered: 09/13/2011)

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Eastern District of New York - LIVE Database 1.2 (Revision 1.2.0.6)
7 CJA 23 Financial Afﬁdavit by Agron Hasbajrami (Piper, Francine) Modiﬁed on 9/13/2011 (Piper, Francine). (Entered: 09/13/2011)

09/09/2011

8 ORDER OF DETENTION PENDING TRIAL as to Agron Hasbajrami. ( Ordered by Magistrate Judge Lois Bloom on 9/9/2011) (Piper, Francine) (Entered: 09/13/2011)

09/13/2011

9 NOTICE of Intent to Use Foreign Intelligence Surveillance Act Information as to Agron Hasbajrami (DuCharme, Seth) (Entered: 09/13/2011)

09/29/2011

10 MOTION for Discovery Conference Pursuant to CIPA Section 2 by USA as to Agron Hasbajrami. (DuCharme, Seth) (Entered: 09/29/2011)

09/29/2011

11 Letter re: Government's First Round of Rule 16 Discovery as to Agron Hasbajrami (Amatruda, Matthew) (Entered: 09/29/2011)

09/29/2011

12 Minute Entry for proceedings held before Judge John Gleeson:Status Conference as to Agron Hasbajrami held on 9/29/2011. Order of Speedy Trial,, Code XT, Start 9/29/11 Stop 11/21/11. Parties are beginning discovery and negotiations. ( Status Conference set for 11/21/2011 11:00 AM in Courtroom 6C South before Judge John Gleeson.) AUSA Matthew Amatruda and Seth DuCharme; Defense Counsel, Nancy L. Ennis. (Court Reporter Victoria Butler.) (Piper, Francine) (Entered: 09/30/2011)

11/21/2011

Incorrect Document Information ﬁled. Docket entry #13 deleted and re-entered. AUSA incorrectly ﬁled document. (Piper, Francine) (Entered: 11/21/2011)

11/21/2011

13 PROTECTIVE ORDER PERTAINING TO UNCLASSIFIED INFORMATION as to Agron Hasbajrami (Ordered by Judge John Gleeson on 11/16/2011) (Piper, Francine) (Entered: 11/21/2011)

11/21/2011

14 Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Nancy Lee Ennis, Esq. AUSA Seth D. DuCharme appears for the government. Status Conference as to Agron Hasbajrami held on 11/21/2011. The parties are still in negotiations and discovery. The next Status Conference is set for January 25, 2012 at 10:30 AM in courtroom 6C South before Judge John Gleeson. The speedy trial time is excluded until the next conference. (Court Reporter Allan Sherman.) (Lee, Ilene) (Entered: 11/21/2011)

12/28/2011

15 Letter re Supplemental Rule 16 Discovery Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 12/28/2011)

12/30/2011

16 Letter MOTION to Appoint Counsel by Agron Hasbajrami. (Piper, Francine) (Entered: 01/04/2012)

01/06/2012

SCHEDULING ORDER as to Agron Hasbajrami re 16 Letter MOTION to Appoint Counsel ﬁled by Agron Hasbajrami. The parties are to appear for a conference on Thursday, January 12, 2012 at 10:00 AM before Judge John Gleeson in courtroom 6C South. The government is directed to have the defendant present at this conference. Ordered by Judge John Gleeson on 1/6/2012. (Lee, Ilene) (Entered: 01/06/2012)

01/12/2012

17 Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Peter Quijano, Esq. AUSA Matthew Amatruda appears for the government. Albanian Interpreter Dominique Marini present. Status Conference as to Agron Hasbajrami held on 1/12/2012. Pursuant to the issues raised in the defendant's 12/27/2011 letter 16 to the Court about the dialect of the interpreter and his request for new counsel, the Court shall seek a new interpreter that can interpret in the "Tosk" dialect from Tirana, Albania for the next conference. The decision to appoint new counsel is reserved by the Court. The next Status Conference remains set for January 25, 2012 at 10:30 AM in courtroom 6C South before Judge John Gleeson. (Court Reporter Marsha Diamond.) (Lee, Ilene) (Entered: 01/12/2012)

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01/19/2012

ORDER as to Agron Hasbajrami granting 16 Motion To Appoint Counsel. Steve Zissou is appointed as counsel for Agron Hasbajrami. Nancy Lee Ennis is relieved. The status conference scheduled for January 25, 2012, at 10:30 AM will proceed as scheduled. Ordered by Judge John Gleeson on 1/19/2012. (Talbott, Rebecca) (Entered: 01/19/2012)

01/19/2012

SCHEDULING ORDER as to Agron Hasbajrami: Upon request by the parties, the status conference scheduled for January 25, 2012, at 10:30 AM, is adjourned until January 27, 2012, at 12:00 PM. Status Conference set for 1/27/2012 12:00 PM in Courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 1/19/2012. (Talbott, Rebecca) (Entered: 01/19/2012)

01/19/2012

Attorney update in case as to Agron Hasbajrami. Attorney Nancy Lee Ennis terminated. (Lee, Tiffeny) Modiﬁed on 1/23/2012 (Lee, Tiffeny). (Entered: 01/23/2012)

01/26/2012

20 SUPERSEDING INDICTMENT (S-1) as to Agron Hasbajrami (1) count(s) 1s-4s. (Piper, Francine) (Entered: 01/30/2012)

01/27/2012

18 Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with new counsel Steve Zissou, Esq. AUSA Seth D. DuCharme appears for the government. Albanian (Tosk) Interpreter Drinart Dema present. Status Conference as to Agron Hasbajrami held on 1/27/2012. The new interpreter needs additional time to go over the superseding indictment before interpreting. The arraignment is adjourned to February 2, 2012 at 11:00 AM in courtroom 6C South before Judge John Gleeson. In light of certain CIPA clearance issues and motions, the next Status Conference is set for March 7, 2012 at 11:00 AM in courtroom 6C South before Judge John Gleeson. The speedy trial time is excluded until the March conference date. (Court Reporter Fred Guerino.) (Lee, Ilene) (Entered: 01/27/2012)

01/27/2012

19 Letter re Supplemental Rule 16 Materials Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 01/27/2012)

01/30/2012

NOTICE OF Change in date for the 2/2/2012 Status Conference as to Agron Hasbajrami due to a scheduling conﬂict from defense counsel notiﬁed via e-mail. The new Status Conference date is now set for Wednesday, February 1, 2012 at 11:30 AM in courtroom 6C South before Judge John Gleeson. (Lee, Ilene) (Entered: 01/30/2012)

02/01/2012

21 Minute Entry for proceedings held before Judge John Gleeson:Arraignment as to Agron Hasbajrami (1) Count 1s-4s held on 2/1/2012, Plea entered by Agron Hasbajrami Not Guilty to counts 1s-4s. Steps are beginning in order to CIPA clear the interpreter. Parties are still in discovery and negotiations. ( Status Conference set for 3/7/2012 11:00 AM in Courtroom 6C South before Judge John Gleeson.) Order of Speedy Trial, Code XT, Start 2/1/12 - Stop 3/7/12. AUSA Matthew Amatruda and Seth DuCharme; Defense Counsel, Steve Zissou. (Court Reporter Tony Mancuso.) (Piper, Francine) (Entered: 02/01/2012)

03/01/2012

22 Letter re: Supplemental Rule 16 Discovery as to Agron Hasbajrami (Amatruda, Matthew) (Entered: 03/01/2012)

03/02/2012

23 Letter re: Government's Request to Adjourn the Status Conference Currently Scheduled for March 7, 2012 as to Agron Hasbajrami (Amatruda, Matthew) (Entered: 03/02/2012)

03/05/2012

SCHEDULING ORDER as to Agron Hasbajrami re 23 Letter requesting adjournment of March 7, 2012, status conference. The government's 23 request to adjourn the status conference currently set for March 7, 2012, is granted. The parties shall appear for a status conference on March 13, 2012, at 11:30am in Courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 3/5/2012. (Talbott, Rebecca) (Entered: 03/05/2012)

03/06/2012

SCHEDULING ORDER as to Agron Hasbajrami: Per a request from defense counsel, the

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03/12/2012 03/13/2012
03/23/2012 03/23/2012 03/27/2012 03/27/2012 03/30/2012
03/30/2012 04/02/2012 04/06/2012 04/12/2012

Eastern District of New York - LIVE Database 1.2 (Revision 1.2.0.6)
status conference scheduled for March 13, 2012, at 11:30am, is rescheduled for 3:30pm the same day. Status Conference set for 3/13/2012 03:30 PM in Courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 3/6/2012. (Talbott, Rebecca) (Entered: 03/06/2012)
24 Letter re: Proposed Scheduling Order as to Agron Hasbajrami (Attachments: # 1 Proposed Order) (Amatruda, Matthew) (Entered: 03/12/2012)
25 Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. AUSA Seth D. DuCharme and AUSA Matthew Amatruda appears for the government. Albanian (Tosk) Interpreter Drinart Dema present. Status Conference as to Agron Hasbajrami held on 3/13/2012. Discussions held regarding the parties' joint proposed motion and trial schedules. The Court directs the government to have all CIPA ﬁlings made by 5/22/12. A Jury Selection and Trial date is scheduled on July 16, 2012 at 9:30 AM in courtroom 6C South before Judge John Gleeson. The next Status Conference is set for March 30, 2012 at 11:30 AM in courtroom 6C South before Judge John Gleeson. The speedy trial time is excluded until the next conference. (Court Reporter Allan Sherman.) (Lee, Ilene) (Entered: 03/14/2012)
26 MOTION for Protective Order Regarding Classiﬁed Information by USA as to Agron Hasbajrami. (Attachments: # 1 Exhibit) (DuCharme, Seth) (Entered: 03/23/2012)
27 Protective Order Regarding Classiﬁed Information as to Agron Hasbajrami (1).(Ordered by Judge John Gleeson on 3/23/2012) (Piper, Francine) (Entered: 03/23/2012)
28 Letter regarding Classiﬁed Discovery Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 03/27/2012)
29 Letter re Discovery Materials Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 03/27/2012)
Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. AUSA Seth D. DuCharme and AUSA Matthew Amatruda appears for the government. Albanian (Tosk) Interpreter Drinart Dema present. Status Conference as to Agron Hasbajrami held on 3/30/2012. Further discussions held regarding discovery and motion schedules. The parties are encouraged to notify the Court of their jointly proposed motion schedules. The jury selection and trial date remains set for July 16, 2012 at 9:30 AM in courtroom 6C South before Judge John Gleeson. The speedy trial time is excluded until the trial date scheduled. (Court Reporter Anthony Frisolone.) (Lee, Ilene) (Entered: 03/30/2012)
30 Letter Regarding Additional Discovery Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 03/30/2012)
31 NOTICE OF ATTORNEY APPEARANCE: Michael K. Bachrach appearing for Agron Hasbajrami (Bachrach, Michael) (Entered: 04/02/2012)
SCHEDULING ORDER as to Agron Hasbajrami as per telephone and electronic mail request from both counsel. A Conference is scheduled on Thursday, April 12, 2012 at 11:00 AM in courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 4/6/2012. (Lee, Ilene) (Entered: 04/06/2012)
32 Minute Entry for proceedings held before Judge John Gleeson:Change of Plea Hearing as to Agron Hasbajrami held on 4/12/2012, Plea entered by Agron Hasbajrami (1) Guilty Count 2s. In light of the plea, the trial date scheduled for July 16, 2012 is canceled. The parties are to ﬁle a joint or separate submission regarding 6B1.2 by Sept 7, 2012. ( Sentencing set for 9/14/2012 02:00 PM in Courtroom 6C South before Judge John

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Gleeson.) AUSA Matthew Amatruda and Seth DuCharme. (Court Reporter Marie Foley.) (Piper, Francine) (Entered: 04/13/2012)
33 Letter re Discovery Produced as to Agron Hasbajrami (DuCharme, Seth) (Entered: 06/18/2012)
34 Letter dated 6/26/12 from Agron Hasbajrami to Judge Gleeson, enclosing articles regarding the "T-Word". (Attachments: # 1 Newspaper and Magazine Articles) (Piper, Francine) (Entered: 07/09/2012)
35 First MOTION for Extension of Time to File Submission regarding the Court's Acceptance of the Defendant's Guilty Plea, and for Brief Adjournment of Sentencing Date by USA as to Agron Hasbajrami. (DuCharme, Seth) (Entered: 08/30/2012)
ORDER granting 35 Motion for Extension of Time to File as to Agron Hasbajrami (1). The 6B1.2 submission is now due by 10/8/2012 and accordingly, the sentencing date is now adjourned to October 19, 2012 at 2:00 PM in courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 9/6/2012. (Lee, Ilene) (Entered: 09/06/2012)
36 MOTION for Extension of Time to File Submission regarding the Court's Acceptance of the Defendant's Guilty Plea, and for Brief Adjournment of Sentencing Date by Agron Hasbajrami. (Bachrach, Michael) (Entered: 10/05/2012)
ORDER granting 36 Motion for Extension of Time to File and Motion to adjourn the sentencing date as to Agron Hasbajrami (1). The joint 6B1.2 submission is now due by October 8, 2012 and the sentencing date is now set for November 16, 2012 at 3:30 PM in courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 10/10/2012. (Lee, Ilene) (Entered: 10/10/2012)
NOTICE of date correction in the 10/10/12 order above as to Agron Hasbajrami: The joint 6B1.2 submission is due by November 8, 2012. (Lee, Ilene) (Entered: 10/11/2012)
37 MOTION for Extension of Time to File sentencing-related submissions and for a similar adjournment of the defendant's sentencing hearing by Agron Hasbajrami. (Bachrach, Michael) (Entered: 11/05/2012)
ORDER granting 37 Motion for Extension of Time to File Sentencing-Related Submissions and to Adjourn Sentencing as to Agron Hasbajrami. 6B1.2 submissions are now due by November 21, 2012. The sentencing date is adjourned to December 21, 2012 at 2:00 PM in courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 11/6/2012. (Kim, Scarlet) (Entered: 11/06/2012)
39 SENTENCING MEMORANDUM by USA as to Agron Hasbajrami (DuCharme, Seth) (Entered: 11/21/2012)
40 SENTENCING MEMORANDUM by USA as to Agron Hasbajrami (DuCharme, Seth) (Entered: 11/21/2012)
41 MOTION to Continue Sentencing due to unavailability of Tosk language interpreter by Agron Hasbajrami. (Bachrach, Michael) (Entered: 12/19/2012)
ORDER granting 41 Motion to Continue Sentencing as to Agron Hasbajrami (1). The new sentencing date is now set for January 8, 2013 at 2:00 PM in Courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 12/21/2012. (Lee, Ilene) (Entered: 12/21/2012)
43 SENTENCING MEMORANDUM by Agron Hasbajrami (Attachments: # 1 Exhibit English translation of family letters, # 2 Exhibit 7/2/2012 letter from Rasim Hoxha

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(Defendant's uncle), # 3 Exhibit 7/6/2012 letter from Ahmet Hasbajrami and Meriban Hasbajrami (Defendant's parents)) (Bachrach, Michael) (Entered: 01/07/2013)

01/08/2013

44 Minute Entry for proceedings held before Judge John Gleeson:Sentencing held on 1/8/2013 for Agron Hasbajrami (1), Count(s) 1, 1s, 3s-4s, Dismissed on Motion of the United States; Count(s) 2s, Receives 180 months imprisonment; No term of supervised release; $100 special assessment. (Court Reporter Mary Agnes Drury) (Lee, Tiffeny) (Entered: 01/16/2013)

01/16/2013

45 JUDGMENT as to Agron Hasbajrami (1), Count(s) 1, 1s, 3s-4s, Dismissed on Motion of the United States; Count(s) 2s, Receives 180 months imprisonment; No term of supervised release; $100 special assessment. The court recommends incarceration at an FCI as close to the Northeast region as possible. Ordered by Judge John Gleeson on 1/15/2013. (Lee, Tiffeny) (Entered: 01/16/2013)

02/26/2013

47 Letter from Agron Hasbajrami to Judge Gleeson, requesting the return of property. (Piper, Francine) (Entered: 02/27/2013)

02/28/2013

The court has received Hasbajrami's 47 letter requesting the return of his property. The court directs the government and Hasbajrami's counsel to respond in writing (a joint response is permissible) with respect to the status of Hasbajrami's property by March 8, 2013. Ordered by Judge John Gleeson on 2/28/2013. (Kim, Scarlet) (Entered: 02/28/2013)

03/07/2013

48 Letter Regarding Return of Property as to Agron Hasbajrami (DuCharme, Seth) (Entered: 03/07/2013)

04/18/2013 49 MOTION to Produce by Agron Hasbajrami. (Siegfried, Evan) (Entered: 04/18/2013)

04/22/2013

To the extent the requested documents are available and their disclosure is not otherwise prohibited by law, counsel is respectfully directed to provide them to Mr. Hasbajrami. Counsel is further directed to submit to the Court an inventory of the documents provided on or before May 13, 2013. Except to the extent set forth above, the motion is denied without prejudice to renewal if and when Mr. Hasbajrami formerly challenges his conviction and/or sentence. Ordered by Judge John Gleeson on 4/22/2013. (Kim, Scarlet) (Entered: 04/22/2013)

04/26/2013

50 Letter providing the Court with an inventory of material mailed to the defendant today, as per the Court's April 22, 2013 Order as to Agron Hasbajrami (Bachrach, Michael) (Entered: 04/26/2013)

05/13/2013

51 Letter providing the Court with an updated inventory of material mailed to the defendant, as per the Court's April 22, 2013 Order as to Agron Hasbajrami (Bachrach, Michael) (Entered: 05/13/2013)

06/17/2013

52 Letter dated 6/10/13 from Agron Hasbajrami to Judge Gleeson, requesting the return of property. (Attachments: # 1 Mailing Envelope) (Piper, Francine) (Entered: 06/18/2013)

06/19/2013

The court has received Hasbajrami's 52 letter regarding the status of his property. The court directs the government and Hasbajrami's counsel to respond in writing (a joint response is permissible) by June 28, 2013. Ordered by Judge John Gleeson on 6/19/2013. (Kim, Scarlet) (Entered: 06/19/2013)

06/28/2013

53 Letter re: Response to the Defendant's Request for Return of Property as to Agron Hasbajrami (Attachments: # 1 Exhibit) (Amatruda, Matthew) (Entered: 06/28/2013)

07/01/2013

ORDER granting the government's 53 letter request to obtain, review and return property seized form Hasbajrami's residence on September 6, 2011. The government shall, on or before July 26, 2013, provide the Court and Hasbajrami with a list of property returned

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and retained by the government. Ordered by Judge John Gleeson on 7/1/2013. (Kim, Scarlet) (Entered: 07/01/2013)
54 Letter dated July 5 2013 from Agron Hasbajrami to Judge Gleeson, requesting access to discovery material. (Piper, Francine) (Entered: 07/16/2013)
55 Letter regarding Return of Property as to Agron Hasbajrami (DuCharme, Seth) (Entered: 07/26/2013)
56 Letter dated July 13, 2013 from Agron Hasbajrami to Judge Gleeson, regarding discovery. (Attachments: # 1 Mailing Envelope) (Piper, Francine) (Entered: 07/31/2013)
57 Letter dated October 4, 2013 from Agron Hasbajrami to Judge Gleeson, requesting copies of sentencing hearing minutes, docket sheets, grand jury transcripts, criminal complaint and pages 288, 289, 290. (Piper, Francine) (Entered: 10/23/2013)
ORDER as to Agron Hasbajrami re 57 Letter. The defendant was sentenced on January 8, 2013 on his plea of guilty to attempting to provide material support to terrorists. He has not ﬁled a notice of appeal. I have received a letter dated October 4, 2013 from the defendant demanding certain discovery, including grand jury transcripts, the "criminal complain[t]" and other documents.The defendant's plea of guilty has extinguished his right to the discovery he seeks. A couple of the requested documents -- the docket sheet and the transcript of the sentencing proceeding -- are readily obtainable and ought in fairness to be provided to him, but I see neither an entitlement to the others or a justiﬁcation for directing the government to provide them. Accordingly, the government is ordered to send a copy of the docket sheet and the sentencing transcript to Hasbajrami on or before November 1, 2013 and to ﬁle a letter conﬁrming its compliance with that order by that date. Otherwise, the request for discovery is denied. Ordered by Judge John Gleeson on 10/23/2013. (Aronoff, Peter) (Entered: 10/23/2013)
58 Letter regarding Status of Production of Materials as to Agron Hasbajrami (DuCharme, Seth) (Entered: 11/07/2013)
ORDER as to Agron Hasbajrami re 58 Letter. The government's request for an extension of time until November 12, 2013 to provide certain documents to Agron Hasbajrami is GRANTED. Ordered by Judge John Gleeson on 11/8/2013. (Aronoff, Peter) (Entered: 11/08/2013)
59 Letter re Production of Sentencing Minutes as to Agron Hasbajrami (DuCharme, Seth) (Entered: 11/12/2013)
60 Letter dated November 20, 2013 from Agron Hasbajrami to Clerk's Ofﬁce, requesting a response to the sentence vacation motion. (Piper, Francine) (Entered: 12/03/2013)
ORDER as to Agron Hasbajrami. The Court has received Mr. Hasbajrami's November 20, 2013, letter, docketed as 60 . However, as evidenced by the docket sheet, the Court never received a copy of the motion to vacate sentence referred to in the letter. Without expressing any view on whether Mr. Hasbajrami did in fact submit the motion previously, the Court invites Mr. Hasbajrami to submit the motion again. However, he is reminded that federal law enforces time limits on motions to attack a conviction or sentence, so the Court encourages him to proceed expeditiously. Any dispute about timeliness will be resolved, if necessary, when the motion is made. A copy of this order, along with a copy of the docket sheet, will be mailed to Mr. Hasbajrami. Ordered by Judge John Gleeson on 12/3/2013. (Aronoff, Peter) (Entered: 12/03/2013)
61 Letter re Attached Copy of Defendant's Motion to Vacate, Set Aside or Correct Sentence and Conviction as to Agron Hasbajrami (Attachments: # 1 Exhibit) (DuCharme, Seth) (Entered: 12/03/2013)

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ORDER as to Agron Hasbajrami. In light of the government's submission of Mr. Hasbajrami's July application 61 , the Court's 12/3/13 order directing Hasbajrami to reﬁle any such application is moot. Instead, the Court will construe the attachment as a motion under 28 U.S.C. § 2255 and direct the Clerk to open a new civil case as a collateral attack on Hasbajrami's conviction or sentence. A copy of this Order and yesterday's now-moot order will be mailed together to Mr. Hasbajrami. Ordered by Judge John Gleeson on 12/4/2013. (Aronoff, Peter) (Entered: 12/04/2013)
62 Letter dated 12/5/13 to Clerk from Agron Hasbajrami requesting information about his previously ﬁled motion. (Fernandez, Erica) (Entered: 12/19/2013)
63 Letter dated 12/6/13 to Clerk from Agron Hasbajrami requesting information as to fees paid to the listed CJA attorneys. (Fernandez, Erica) (Entered: 12/19/2013)
64 STATUS REPORT re: Defendant's Access to Video Materials by USA as to Agron Hasbajrami (Amatruda, Matthew) (Entered: 02/03/2014)
65 Letter re Supplemental Notiﬁcation as to Agron Hasbajrami (DuCharme, Seth) (Entered: 02/24/2014)
66 Letter dated February 12, 2014 from Agron Hasbajrami to Judge Gleeson, requesting a copy of AUSA Ducharme's writing report due to be submitted to court by January 23, 2013. (Piper, Francine) (Entered: 02/25/2014)
ORDER as to Agron Hasbajrami re 66 Letter. Per Hasbajrami's request, the government is respectfully directed to provide Hasbajrami with a copy of the February 3, 2014 status report 64 ﬁled on the criminal docket in this case (11-cr-623). Ordered by Judge John Gleeson on 2/25/2014. (Aronoff, Peter) (Entered: 02/25/2014)
67 Letter re Status Report as to Agron Hasbajrami (DuCharme, Seth) (Entered: 02/25/2014)
69 Letter updating the Court regarding supplemental FISA notice and other matters as to Agron Hasbajrami (Zissou, Steve) (Entered: 04/02/2014)
ORDER. The Court agrees with the suggestion in the letter 69 that the parties should ﬁle an update on the status of the case by April 9, 2014, including a proposed brieﬁng schedule, if necessary. Ordered by Judge John Gleeson on 4/3/2014. (Aronoff, Peter) (Entered: 04/03/2014)
70 Letter -- status update and joint proposed scheduling order as to Agron Hasbajrami (Bachrach, Michael) (Entered: 04/09/2014)
71 Letter request regarding funding of the defense as to Agron Hasbajrami (Zissou, Steve) (Entered: 04/10/2014)
72 Letter requesting discovery related to the Government's post-sentencing FISA notice as to Agron Hasbajrami (Bachrach, Michael) (Entered: 04/25/2014)
73 Letter Responding to Discovery Demand as to Agron Hasbajrami (DuCharme, Seth) (Entered: 05/22/2014)
74 Letter from Agron Hasbajrami to Judge Gleeson, dated May 26, 2014, requesting copies of all orders in this action. (Piper, Francine) (Entered: 06/05/2014)
75 MOTION for Extension of Time to File FISA-related discovery motion (requesting June 30, 2014 as new deadline) by Agron Hasbajrami. (Bachrach, Michael) (Entered: 06/20/2014)
ORDER granting 75 Motion for Extension of Time to File as to Agron Hasbajrami (1). The proposed extension is granted. The Court notes that the current dispute in the case

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relates at least in part to discovery in the criminal case and in part to Hasbajrami's anticipated 2255 petition. Therefore, until further notice from the Court, the parties are directed to ﬁle all documents in both cases. Ordered by Judge John Gleeson on 6/24/2014. (Aronoff, Peter) (Entered: 06/24/2014)
76 MOTION for Discovery and incorporated memorandum of law in support thereof by Agron Hasbajrami. (Bachrach, Michael) (Entered: 06/30/2014)
77 Letter Requesting Extension of Time to File Response to Motion for Discovery as to Agron Hasbajrami (DuCharme, Seth) (Entered: 07/17/2014)
SCHEDULING ORDER as to Agron Hasbajrami. The request for additional brieﬁng time is granted, as follows. The government's opposition shall be ﬁled by August 8, 2014; Hasbajrami's reply, if any, shall be ﬁled by August 18, 2014. Argument on the motion will now be heard Friday, August 22, at 10:30am. Ordered by Judge John Gleeson on 7/18/2014. (Aronoff, Peter) (Entered: 07/18/2014)
78 Letter Request to modify the scheduling order as to Agron Hasbajrami (Zissou, Steve) (Entered: 08/04/2014)
SCHEDULING ORDER as to Agron Hasbajrami. Per the parties' request 78 , argument will be heard on September 12, 2014, at 10:00 am. Ordered by Judge John Gleeson on 8/4/2014. (Aronoff, Peter) (Entered: 08/04/2014)
79 MEMORANDUM in Opposition re 76 MOTION for Discovery and incorporated memorandum of law in support thereof (DuCharme, Seth) (Entered: 08/08/2014)
80 Letter request to modify the scheduling order as to Agron Hasbajrami (Zissou, Steve) (Entered: 08/13/2014)
ORDER as to Agron Hasbajrami re 80 Letter. The requested modiﬁcation of the brieﬁng schedule is granted. Hasbajrami's reply shall be ﬁled by September 2, 2014. Ordered by Judge John Gleeson on 8/14/2014. (Aronoff, Peter) (Entered: 08/14/2014)
81 MOTION for Extension of Time to File classiﬁed supplement in further support of Defendant/Petitioner's discovery motion by Agron Hasbajrami. (Bachrach, Michael) (Entered: 09/02/2014)
82 REPLY TO RESPONSE to Motion re 76 MOTION for Discovery and incorporated memorandum of law in support thereof (Bachrach, Michael) (Entered: 09/02/2014)
ORDER as to Agron Hasbajrami re 81 . Hasbajrami's classiﬁed supplement shall be ﬁled by Monday, September 8, 2014. Ordered by Judge John Gleeson on 9/3/2014. (Aronoff, Peter) (Entered: 09/03/2014)
83 Letter providing notice that presumptively classiﬁed letter was ﬁled with the CIPA Classiﬁed Information Security Ofﬁcer on September 5, 2014 as to Agron Hasbajrami (Bachrach, Michael) (Entered: 09/08/2014)
84 Letter Conﬁrming that Mr. Hasbajrami intends to withdraw his guilty plea as to Agron Hasbajrami (Zissou, Steve) (Entered: 09/20/2014)
The parties are to appear for a Status Conference pursuant to order (docket entry #30) issued in the defendant's civil case 13-CV-6852. The Status Conference date is set for October 17, 2014 at 3:00 PM in courtroom 6C South before Judge John Gleeson. Ordered by Judge John Gleeson on 10/3/2014. (Lee, Ilene) (Entered: 10/03/2014)
85 ORDER as to Agron Hasbajrami. This order was entered yesterday in Hasbajrami's collateral attack case, no. 13-cv-6852. The order permits Hasbajrami to withdraw his

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guilty plea and also reopens this case for further proceedings. Ordered by Judge John Gleeson on 10/3/2014. (Aronoff, Peter) (Entered: 10/03/2014)
Case reopened for withdrawal of guilty plea as to Agron Hasbajrami (Piper, Francine) (Entered: 10/06/2014)
86 Letter dated October 6, 2014 from Agron Hasbajrami, requesting that the court return the $100 fee paid to the court. (Piper, Francine) (Entered: 10/10/2014)
Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. and Michael Bachrach, Esq. AUSA Seth D. DuCharme appears for the government. Albanian (Tosk) Interpreter Uk Lushi present and sworn. Status Conference as to Agron Hasbajrami held on 10/23/2014. All parties agree that this case will go onto trial. All non-CIPA motions shall be ﬁled as follows: defendant's motions due by 11/26/14; oppositions due by 12/24/14; all replies are due by 1/9/2015. An Oral Argument is scheduled on January 23, 2015 at 10:00 AM in courtroom 6C South before Judge John Gleeson. The government shall ﬁle the CIPA section 4 by 1/9/2015. The case is still designated as complex for speedy trial purposes. (Court Reporter Gene Rudolph.) (Lee, Ilene) (Entered: 10/23/2014)
87 NOTICE OF ATTORNEY APPEARANCE Saritha Komatireddy appearing for USA. (Komatireddy, Saritha) (Entered: 10/28/2014)
88 Letter re Discovery Produced as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 10/31/2014)
ORDER as to Agron Hasbajrami. The defendant's application 89 to appoint a research and support counsel is granted. Ordered by Judge John Gleeson on 11/4/2014. (Lee, Ilene) (Entered: 11/04/2014)
90 Letter requesting amendment to pretrial motion schedule to incorporate deadlines for the ﬁling of amicus briefs as to Agron Hasbajrami (Bachrach, Michael) (Entered: 11/17/2014)
ORDER as to Agron Hasbajrami. Hasbajrami's request to amend the pretrial motion schedule 90 is denied. Ordered by Judge John Gleeson on 11/18/2014. (Garcia, Lynda) (Entered: 11/18/2014)
91 Letter on Behalf of the American Civil Liberties Union Foundation Requesting Leave to File Amicus Brief as to Agron Hasbajrami (Toomey, Patrick) (Entered: 11/21/2014)
ORDER as to Agron Hasbajrami. My law clerk has informed me that the government has no objection to the ACLU ﬁling an amicus brief in this matter so long as it does not waive its right to make any arguments about the ACLU's standing. As such, I grant the ACLU's request to ﬁle an amicus brief by December 5, 2014 91 , without prejudice to any arguments the government may make regarding standing or any other issue. Ordered by Judge John Gleeson on 11/26/2014. (Garcia, Lynda) (Entered: 11/26/2014)
92 MOTION to Suppress (1) THE FRUITS OF FAA SURVEILLANCE DUE TO THE PER SE UNCONSTITUTIONALITY OF THE STATUTE AND ITS APPLICATION HEREIN, (2) THE FRUITS OF FAA SURVEILLANCE IRRESPECTIVE OF THE CONSTITUTIONALITY OF THE STATUTE, (3) THE FRUITS OF FAA SURVEILLANCE BASED UPON OUTRAGEOUS GOVERNMENT CONDUCT, (4) THE DEFENDANTS POST-ARREST STATEMENTS, MOTION for Discovery (5) OF MATERIAL AND INFORMATION NECESSARY TO DETERMINE WHETHER THE GOVERNMENTS SPECIFIC CONDUCT IN THIS CASE VIOLATED THE STATUTORY REQUIREMENTS OF FISA, THE FAA, AND/OR ANY OTHER SURVEILLANCE STATUTE OR PROGRAM RELIED UPON DURING THE INVESTIGATION OF THIS CASE, AS WELL AS TO DETERMINE WHETHER THE GOVERNMENTS SPECIFIC CONDUCT VIOLATED

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HASBAJRAMIS RIGHT TO DUE PROCESS UNDER THE FIFTH AMENDMENT, (6) FOR AN ORDER DIRECTING THE GOVERNMENT TO IDENTIFY ANY AND ALL WITNESSES THAT IT LEARNED OF DURING, OR AS A RESULT OF, THE INTERROGATION OF THE DEFENDANT, (7) FOR AN ORDER DIRECTING THE GOVERNMENT TO SPECIFY ALL EVIDENCE THAT IS SUBJECT TO SUPPRESSION AND/OR PRECLUSION AS A RESULT OF THE INTERROGATION OF THE DEFENDANT, (8) FOR AN ORDER DIRECTING THE GOVERNMENT TO PROVIDE IMMEDIATE NOTICE OF EXPERT WITNESSES IT INTENDS TO RELY UPON AT TRIAL, (9) FOR IMMEDIATE PRODUCTION OF BRADY/GIGLIO MATERIAL, (10) FOR EARLY DISCLOSURE OF 3500 MATERIAL, (11) FOR NOTICE OF EVIDENCE THE GOVERNMENT INTENDS TO OFFER UNDER FED.R.EVID. 404(b), and, MOTION for Leave to File FURTHER MOTIONS by Agron Hasbajrami. (Bachrach, Michael) (Entered: 11/26/2014)
93 NOTICE of Appearance on Behalf of Amici Curiae American Civil Liberties Union and Electronic Frontier Foundation as to Agron Hasbajrami (Toomey, Patrick) (Entered: 12/05/2014)
94 Letter Enclosing Brief of Amici Curiae as to Agron Hasbajrami (Attachments: # 1 Brief of Amici Curiae American Civil Liberties Union and Electronic Frontier Foundation) (Toomey, Patrick) (Entered: 12/05/2014)
95 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 12/22/2014)
96 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 12/23/2014)
97 RESPONSE in Opposition re 92 MOTION to Suppress (1) THE FRUITS OF FAA SURVEILLANCE DUE TO THE PER SE UNCONSTITUTIONALITY OF THE STATUTE AND ITS APPLICATION HEREIN, (2) THE FRUITS OF FAA SURVEILLANCE IRRESPECTIVE OF THE CONSTITUTIONALITY OF THE STATUTE, (3) THE FRUITS OF FAA SU MOTION for Discovery (5) OF MATERIAL AND INFORMATION NECESSARY TO DETERMINE WHETHER THE GOVERNMENTS SPECIFIC CONDUCT IN THIS CASE VIOLATED THE STATUTORY REQUIREMENTS OF FISA, THE FAA, AND/OR ANY OTHER SURVEILLANCE STATUTE OR PROGRAM RELIED UPON DUR MOTION for Leave to File FURTHER MOTIONS (Attachments: # 1 Exhibit 1) (Komatireddy, Saritha) (Entered: 12/23/2014)
98 RESPONSE in Opposition re 92 MOTION to Suppress (1) THE FRUITS OF FAA SURVEILLANCE DUE TO THE PER SE UNCONSTITUTIONALITY OF THE STATUTE AND ITS APPLICATION HEREIN, (2) THE FRUITS OF FAA SURVEILLANCE IRRESPECTIVE OF THE CONSTITUTIONALITY OF THE STATUTE, (3) THE FRUITS OF FAA SU MOTION for Discovery (5) OF MATERIAL AND INFORMATION NECESSARY TO DETERMINE WHETHER THE GOVERNMENTS SPECIFIC CONDUCT IN THIS CASE VIOLATED THE STATUTORY REQUIREMENTS OF FISA, THE FAA, AND/OR ANY OTHER SURVEILLANCE STATUTE OR PROGRAM RELIED UPON DUR MOTION for Leave to File FURTHER MOTIONS (Komatireddy, Saritha) (Entered: 12/24/2014)
99 Letter dated December 23, 2014 from Agron Hasbajrami to Judge Gleeson, requesting that dft's property be transferred to MDC Brooklyn. (Piper, Francine) (Entered: 12/30/2014)
ORDER as to Agron Hasbajrami. In reference to the defendant's request 99 , AUSA DuCharme is respectfully directed to resolve the problem, which is an executive branch problem. If he needs judicial intervention in the form of an order, he should make that request. In any event, he should apprise the Court as to the status of the issue by January

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9, 2015. Ordered by Judge John Gleeson on 12/31/2014. (Garcia, Lynda) (Entered: 12/31/2014)
100 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 01/06/2015)
101 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 01/08/2015)
102 Letter regarding Status of Defendant's Property as to Agron Hasbajrami (DuCharme, Seth) (Entered: 01/09/2015)
103 Letter re the Government's Classiﬁed Motion for a Protective Order pursuant to the Classiﬁed Information Procedures Act, Section 4, and Federal Rule of Criminal Procedure 16(d)(1) as to Agron Hasbajrami (Attachments: # 1 Exhibit with Motion's Cover Page, # 2 Proposed Order) (Komatireddy, Saritha) (Entered: 01/09/2015)
104 REPLY TO RESPONSE to Motion re 92 MOTION to Suppress (1) THE FRUITS OF FAA SURVEILLANCE DUE TO THE PER SE UNCONSTITUTIONALITY OF THE STATUTE AND ITS APPLICATION HEREIN, (2) THE FRUITS OF FAA SURVEILLANCE IRRESPECTIVE OF THE CONSTITUTIONALITY OF THE STATUTE, (3) THE FRUITS OF FAA SU MOTION for Discovery (5) OF MATERIAL AND INFORMATION NECESSARY TO DETERMINE WHETHER THE GOVERNMENTS SPECIFIC CONDUCT IN THIS CASE VIOLATED THE STATUTORY REQUIREMENTS OF FISA, THE FAA, AND/OR ANY OTHER SURVEILLANCE STATUTE OR PROGRAM RELIED UPON DUR MOTION for Leave to File FURTHER MOTIONS (Bachrach, Michael) (Entered: 01/09/2015)
ORDER as to Agron Hasbajrami. The Court welcomes amici's participation at oral argument on January 23, 2015, if they so wish to be heard. Ordered by Judge John Gleeson on 1/21/2015. (Garcia, Lynda) (Entered: 01/21/2015)
105 Letter on behalf of amici accepting Court's invitation to participate at oral argument on January 23, 2015 as to Agron Hasbajrami (Toomey, Patrick) (Entered: 01/22/2015)
Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Michael Bachrach, Esq.. Amicus Party represented by Patrick C. Toomey, Esq., Jameel Jaffer, Esq., and Alex Abdo, Esq.. AUSA Seth D. DuCharme, AUSA Saritha Komatireddy and AUSA Matthew Amatruda appear for the government. Albanian (Tosk) interpreter Uk Lushi present. Oral Argument as to Agron Hasbajrami held on 1/23/2015 re 92 MOTION to Suppress ﬁled by Agron Hasbajrami. The Court has heard all the arguments. The defendant's Motion to Suppress the fruits of the FAA Surveillance based upon the government's outrageous conduct is DENIED. The Court's decision is reserved regarding the rest of the motion to suppress and will be entered onto ECF separately. (Court Reporter Allan Sherman.) (Lee, Ilene) (Entered: 01/23/2015)
106 Letter dated January 27, 2015 from Agron Hasbajrami to Judge Gleeson, requesting information on whether there are any new charges or indictments in this district. (Piper, Francine) (Entered: 02/05/2015)
107 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Agron Hasbajrami held on 10/23/14, before Judge Gleeson. Court Reporter/Transcriber Rudolph. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 2/26/2015. Redacted Transcript Deadline set for 3/9/2015. Release of Transcript Restriction set for 5/6/2015. (Rudolph, Gene) (Entered: 02/05/2015)

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ORDER as to Agron Hasbajrami. I have received a letter from Mr. Hasbajrami 106 that contains an inquiry more properly directed to his own counsel. Defense counsel are respectfully directed to consult with their client regarding his inquiry. Ordered by Judge John Gleeson on 2/6/2015. (Garcia, Lynda) (Entered: 02/06/2015)
ORDER as to Agron Hasbajrami.The defendant's motion to suppress the fruits of the FAA surveillance, including the defendant's post-arrest statements (DE 92) is denied. An opinion will follow. In addition, the government has, inter alia, sought the Court's permission to provide disclosure to the defendant in the form of two summaries of classiﬁed information (S1 and S2). Though one of the summaries may be expanded, the application is granted to the extent that the government is hereby directed to provide the proposed versions of S1 and S2 to defense counsel forthwith. A status conference will be held on Friday, February 27, 2015 at 3:30 PM. At that conference, the court will inquire of the government whether it intends to offer once again the charge bargain that was previously accepted by the defendant, and whether it has considered the prospect of allowing the defendant to enter such a plea pursuant to Rule 11(a)(2), reserving his right to seek appellate review of my denial of the motion to suppress evidence. Ordered by Judge John Gleeson on 2/20/2015. (Garcia, Lynda) (Entered: 02/20/2015)
SCHEDULING ORDER as to Agron Hasbajrami. The status conference currently scheduled for Friday, February 27, 2015 at 3:30 PM is rescheduled to Monday, March 2, 2015 at 3:30 PM because the Tosk interpreter is not available on February 27. Ordered by Judge John Gleeson on 2/23/2015. (Garcia, Lynda) (Entered: 02/23/2015)
109 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 02/23/2015)
110 Letter re Discovery and Expert Disclosure as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 02/24/2015)
Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. and Michael Bachrach, Esq.. AUSA Seth D. DuCharme and AUSA Saritha Komatireddy appears for the government. Status Conference as to Agron Hasbajrami held on 3/2/2015. The case is trial ready. The parties are to inform the Court by the next Status Conference is to whether a trial will be necessary in this case. The next Status Conference is set for April 9, 2015 at 2:00 PM in courtroom 6C South before Judge John Gleeson. A Jury Selection and Trial date is set for July 13, 2015 at 9:30 AM in courtroom 6C South before Judge John Gleeson. The case has already been designated as complex for speedy trial time purposes. (Court Reporter Mary Agnes Drury.) (Lee, Ilene) (Entered: 03/02/2015)
ORDER as to Agron Hasbajrami. Defendant's ex parte, sealed application for support services dated February 20, 2015 108 is granted. Ordered by Judge John Gleeson on 3/3/2015. (Garcia, Lynda) (Entered: 03/03/2015)
111 ORDER as to Agron Hasbajrami. The government's Classiﬁed Motion for a Protective Order pursuant to the Classiﬁed Information Procedures Act, Section 4, and Federal Rule of Criminal Procedure 16(d)(1) (see DE 103) is granted for the reasons stated in the attached order. Ordered by Judge John Gleeson on 3/3/2015. (Garcia, Lynda) (Entered: 03/03/2015)
ORDER as to Agron Hasbajrami. The ex parte application for defense services 112 is granted. Ordered by Judge John Gleeson on 3/10/2015. (Garcia, Lynda) (Entered: 03/10/2015)
NOTICE OF Change in Time for the Status Conference as to Agron Hasbajrami due to Court related matters. The date remains set for April 9, 2015 but the time is now at 12:00

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04/29/2015

Eastern District of New York - LIVE Database 1.2 (Revision 1.2.0.6)
PM in courtroom 6C South before Judge John Gleeson. (Lee, Ilene) (Entered: 03/12/2015)
114 Letter dated March 8, 2015 from Agron Hasbajrami to Judge Gleeson, requesting discovery material. (Piper, Francine) (Entered: 03/13/2015)
113 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 03/13/2015)
115 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 03/16/2015)
ORDER as to Agron Hasbajrami. I have received a letter 114 from the defendant himself requesting discovery. The request is denied without prejudice to renewal in an application made through counsel. Ordered by Judge John Gleeson on 3/17/2015. (Garcia, Lynda) (Entered: 03/17/2015)
116 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Agron Hasbajrami held on 01/23/2015, before Judge John Gleeson. Court Reporter/Transcriber Allan R Sherman, Telephone number 718-613-2529. Email address: asher99983@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 4/10/2015. Redacted Transcript Deadline set for 4/20/2015. Release of Transcript Restriction set for 6/18/2015. (Sherman, Allan) (Entered: 03/20/2015)
117 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 03/30/2015)
NOTICE OF Change in date for the Status Conference as to Agron Hasbajrami as per request from the defense counsel. The new date is now rescheduled to April 14, 2015 at 11:00 AM in courtroom 6C South before Judge John Gleeson. (Lee, Ilene) (Entered: 04/09/2015)
Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. and Michael Bachrach, Esq.. AUSA Saritha Komatireddy appears for the government. Status Conference as to Agron Hasbajrami held on 4/14/2015. The government informs the Court that it will not be offering a plea agreement to the defendant. The jury selection and trial date remains set for July 13, 2015 at 9:30 AM in courtroom 6C South before Judge John Gleeson. The speedy trial time is excluded until the trial date. (Court Reporter Gene Rudolph.) (Lee, Ilene) (Entered: 04/14/2015)
118 Letter re Discovery, Certiﬁcations, and Expert Disclosure as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 04/16/2015)
119 Letter re Discovery as to Agron Hasbajrami (Komatireddy, Saritha) (Entered: 04/16/2015)
ORDER as to Agron Hasbajrami. Upon further review of the information provided by the government, the defendant's application for additional disclosure made in today's sealed CIPA proceeding is denied. Also, due to a court conﬂict, the status conference currently scheduled for May 28, 2015 at 10:00 AM is rescheduled to May 27, 2015 at 10:00 AM. Ordered by Judge John Gleeson on 4/23/2015. (Garcia, Lynda) (Entered: 04/23/2015)
ORDER as to Agron Hasbajrami: Trial is scheduled for July 13, 2015. The parties are informed that a questionnaire will be used for jury selection. They are encouraged to agree upon a proposed questionnaire and to provide such a proposal to the Court on or before May 8, 2015. Jury selection will commence on June 30, 2015, at 2:00 pm with the completion of the questionnaire by the prospective jurors. Jury selection will resume on

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Eastern District of New York - LIVE Database 1.2 (Revision 1.2.0.6)
July 7 and, if necessary, on July 9, until it is completed. Ordered by Judge John Gleeson on 4/29/2015. (Gleeson, John) (Entered: 04/29/2015)
120 NOTICE OF ATTORNEY APPEARANCE Peter W. Baldwin appearing for USA. (Baldwin, Peter) (Entered: 04/30/2015)
121 NOTICE OF ATTORNEY APPEARANCE: Joshua L. Dratel appearing for Agron Hasbajrami (Dratel, Joshua) (Entered: 04/30/2015)
122 Letter re Sensitive Discovery Materials and Request for Extension in Time to File Joint Jury Questionnaire as to Agron Hasbajrami (DuCharme, Seth) (Entered: 05/11/2015)
123 PRETRIAL MEMORANDUM in Support of Motion for Anonymous Jury as to Agron Hasbajrami (DuCharme, Seth) (Entered: 05/11/2015)
SCHEDULING ORDER as to Agron Hasbajrami. Defendant shall ﬁle his reply to the government's request for an anonymous, partially sequestered jury 123 on or before May 20, 2015; the government shall ﬁle its reply (if any) on or before May 22, 2015. Ordered by Judge John Gleeson on 5/13/2015. (Garcia, Lynda) (Entered: 05/13/2015)
124 Letter re: Joint Proposed Jury Questionnaire as to Agron Hasbajrami (Attachments: # 1 Joint Proposed Jury Questionnaire) (Baldwin, Peter) (Entered: 05/13/2015)
125 PRETRIAL MEMORANDUM in opposition to the Government's motion for an anonymous, partially sequestered jury as to Agron Hasbajrami (Bachrach, Michael) (Entered: 05/20/2015)
126 PRETRIAL MEMORANDUM Reply Brief in Support of Government's Motion for an Anonymous Jury and Other Relief as to Agron Hasbajrami (DuCharme, Seth) (Entered: 05/22/2015)
Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. and Michael K. Bachrach, Esq.. AUSA Seth D. DuCharme and AUSA Peter Baldwin appear for the government. Albanian Interpreter Dominique Marini present and sworn. Pre Trial Conference as to Agron Hasbajrami held on 5/27/2015. The parties inform the Court that a plea agreement has been offered in this case but the parties are still ready to go forward with trial. The defendant has requested an adjournment of the trial date for a few days to accommodate the Ramadan Holiday dates. This request and the remaining jury motions will be decided and ﬁled via ECF shortly. The government is directed to notify the Court as soon as possible if there is the possibility for a pleading in this case. The speedy trial time is excluded until the jury selection date of June 29, 2015 at 2:00 PM. (Court Reporter Sherry Bryant.) (Lee, Ilene) (Entered: 05/27/2015)
127 Letter Regarding Daubert Motion Schedule, Given that the Defense Has Not Yet Received the Expert Report of the Government's Proposed Expert as to Agron Hasbajrami (Dratel, Joshua) (Entered: 06/05/2015)
ORDER as to Agron Hasbajrami. Defendant's request 127 to write the Court when the expert report is produced is granted. Ordered by Judge John Gleeson on 6/9/2015. (Garcia, Lynda) (Entered: 06/09/2015)
128 Letter re: Expert Report as to Agron Hasbajrami (Baldwin, Peter) (Entered: 06/12/2015)
129 Letter Re: Daubert Motion Schedule as to Agron Hasbajrami (Dratel, Joshua) (Entered: 06/12/2015)
ORDER as to Agron Hasbajrami. Defense counsel's request 129 that its Daubert motion be due on Monday, June 22, 2015 is granted. The government shall ﬁle its opposition to

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the motion on or before Monday, June 29, 2015. To the extent that oral argument and/or an evidentiary hearing in relation to the motion is warranted, that will occur on the morning the witness is scheduled to appear for trial. Ordered by Judge John Gleeson on 6/15/2015. (Garcia, Lynda) (Entered: 06/15/2015)
130 ORDER as to Agron Hasbajrami. The government's motion for an anonymous and partially sequestered jury 123 is granted and the attached questionnaire 130 will be used on June 30, 2015. Any comments or objections shall be ﬁled no later than Friday, June 19, 2015. Ordered by Judge John Gleeson on 6/16/2015. (Garcia, Lynda) (Entered: 06/16/2015)
131 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Agron Hasbajrami held on 03/02/2015, before Judge Gleeson. Court Reporter/Transcriber Mary Agnes Drury. Email address: mad78910@yahoo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 7/8/2015. Redacted Transcript Deadline set for 7/20/2015. Release of Transcript Restriction set for 9/15/2015. (Drury, Mary) (Entered: 06/17/2015)
132 Letter Re: Objection to Jury Questionnaire, Docket #130 as to Agron Hasbajrami (Dratel, Joshua) (Entered: 06/19/2015)
133 Letter MOTION for Extension of Time to File Motion to Preclude the Testimony of the Government's Proposed Expert, Evan Kohlmann by Agron Hasbajrami. (Dratel, Joshua) (Entered: 06/22/2015)
134 Letter re: Discovery as to Agron Hasbajrami (Baldwin, Peter) (Entered: 06/22/2015)
135 Letter requesting authorization to enlist Turkish interpreter to review accuracy of verbatim translations disclosed yesterday (ecf #134), and to bill such services pursuant to the Criminal Justice Act as to Agron Hasbajrami (Bachrach, Michael) (Entered: 06/23/2015)
ORDER as to Agron Hasbajrami. Defense counsel's request 135 to enlist interpreter and bill for her services is granted. Ordered by Judge John Gleeson on 6/23/2015. (Garcia, Lynda) (Entered: 06/23/2015)
136 Notice of MOTION in Limine To Preclude or Limit the Testimony of Proposed Government Expert Witness, Evan Kohlmann by Agron Hasbajrami. (Dratel, Joshua) (Entered: 06/24/2015)
137 AFFIDAVIT in Support re 136 Notice of MOTION in Limine To Preclude or Limit the Testimony of Proposed Government Expert Witness, Evan Kohlmann (Attachments: # 1 Exhibit 1--Kohlmann Notice dated 2/24/15, # 2 Exhibit 2 -- Rule 16 Material Related to Kohlmann Proposed Testimony, # 3 Exhibit 3-- Kohlmann Expert Report, # 4 Exhibit 4-Abu Ali Motions Hearing, # 5 Exhibit 5-- Al-Faqih Trial Transcript, # 6 Exhibit 6-- Court Order in Amawi Case, # 7 Exhibit 7- Kaziu Trial Transcript Excerpts, # 8 Exhibit 8-Court Order in Kabir Case, # 9 Exhibit 9-- Dr. Sageman Expert Report, # 10 Exhibit 10Kohlmann CV, # 11 Exhibit 11-- Email From Danish Institute of International Studies, # 12 Exhibit 12-- Email from Harvard Law Review Forum, # 13 Exhibit 13- Kohlmann's Padilla Rebuttal, # 14 Exhibit 14-Excerpts of Kohlmann Testimony From Various Trials, # 15 Exhibit 15--Excerpts From Kohlmann Testimony in Maktouf Case and In Re: Operation Niche, # 16 Exhibit 16-- Expert Report in Abu Jihaad Case, # 17 Exhibit 17-Excpert From Kohlmann Testimony in Mubayyid Trial (Dec 2007), # 18 Exhibit 18-Excpert From Kohlmann Testimony in Mubayyid Trial (Nov 28, 2007), # 19 Exhibit 19--

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Excerpts From Kohlmann Book, # 20 Exhibit 20-- Kohlmann Testimony in Paracha Case) (Dratel, Joshua) (Entered: 06/24/2015)
138 MEMORANDUM in Support re 136 Notice of MOTION in Limine To Preclude or Limit the Testimony of Proposed Government Expert Witness, Evan Kohlmann (Dratel, Joshua) (Entered: 06/24/2015)
139 Letter to the Court re Status of Case as to Agron Hasbajrami (DuCharme, Seth) (Entered: 06/25/2015)
140 WAIVER OF INDICTMENT by Agron Hasbajrami before Judge Gleeson on June 26, 2015. (Piper, Francine) (Entered: 06/26/2015)
141 SUPERSEDING INFORMATION (S-2) as to Agron Hasbajrami (1) count(s) 1ss-2ss. (Piper, Francine) (Entered: 06/26/2015)
142 Minute Entry for proceedings held before Judge John Gleeson:Arraignment as to Agron Hasbajrami (1) Count 1ss-2ss held on 6/26/2015, Plea Agreement Hearing as to Agron Hasbajrami held on 6/26/2015, Plea entered by Agron Hasbajrami (1) Guilty Count 1ss,2ss., ( Sentencing set for 7/30/2015 02:00 PM in Courtroom 6C South before Judge John Gleeson.) AUSA Michael Bachrach, Joshua Dratel and Seth Ducharme; Defense Counsel, Peter Baldwin and Saritha Komatireddy; (Court Reporter Lisa Schmid.) (Piper, Francine) (Entered: 06/26/2015)
ORDER granting 143 Motion to Seal Document as to Agron Hasbajrami. The motion to seal document 38 is granted. Counsel are directed to ﬁle a readacted version by Friday, July 17, 2015. Ordered by Judge John Gleeson on 7/15/2015. (Garcia, Lynda) (Entered: 07/15/2015)
144 SENTENCING MEMORANDUM by Agron Hasbajrami (Bachrach, Michael) (Entered: 07/15/2015)
145 CJA Application for Payment in case as to Agron Hasbajrami Denied: The application for payment for interpreter services is denied for the reasons set forth in the attached document 145 . Defense counsel may respond on or before July 24, 2105 if he wishes to be heard on the subject. Ordered by Judge John Gleeson on 7/17/2015. (Garcia, Lynda) (Entered: 07/17/2015)
146 MOTION to Withdraw Plea of Guilty by Agron Hasbajrami. (Piper, Francine) (Entered: 07/21/2015)
Minute Entry for proceedings held before Judge John Gleeson: Case called. Defendant Agron Hasbajrami, in custody, appears with counsel Steve Zissou, Esq. and Joshua Dratel, Esq. in person. Defense Counsel Michael Bachrach, Esq. was present via telephone. AUSA Seth D. DuCharme, AUSA Saritha Komatireddy and AUSA Peter Baldwin appear for the government. Albanian Interpreter Dominique Marini present and sworn. Motion Hearing as to Agron Hasbajrami held on 8/6/2015 re 146 MOTION to Withdraw Plea of Guilty ﬁled by Agron Hasbajrami. The Court has DENIED this motion for the limited reasons as stated on the record today. The defendant's request to have counsel Steve Zissou and Michael Bachrach relieved is also DENIED by the Court to the extent that these two counsel shall remain on the case solely to provide assistance to counsel Joshua Dratel for the upcoming sentencing. A full decision shall be provided by the Court during the sentencing date which shall remain set for August 13, 2015 at 2:30 PM in courtroom 6C South before Judge John Gleeson. (Court Reporter Nicole Canales.) (Lee, Ilene) (Entered: 08/06/2015)
147 SENTENCING MEMORANDUM by Agron Hasbajrami (Dratel, Joshua) (Entered: 08/10/2015)

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148 SENTENCING MEMORANDUM by USA as to Agron Hasbajrami (DuCharme, Seth) (Entered: 08/11/2015)

08/13/2015

151 Minute Entry for proceedings held before Judge John Gleeson:Sentencing held on 8/13/2015 for Agron Hasbajrami (1), Count(s) 1, 1s, 2s, 3s-4s, All open counts dismissed on the motion of the U.S.; Count(s) 1ss, 2ss, 180 months of incarceration on Count One and 12 months on Count Two to run consecutively on each count, totaling 192 months of incarceration. The court recommends to the bureau of prisons for incarceration at FCI Terre Haute, Indiana. No term of supervised release is imposed. Special Assessment of $200.00. AUSA Seth DuCharme and Saritha Kamatineedy and Peter Baldwin (Court Reporter Holly Driscoll.) (Piper, Francine) (Entered: 08/17/2015)

08/17/2015 150 ORDER OF JUDICIAL REMOVAL to Albania. as to Agron Hasbajrami.Ordered by Judge John Gleeson on 8/13/2015. (Piper, Francine) (Entered: 08/17/2015)

08/17/2015

152 JUDGMENT as to Agron Hasbajrami (1), Count(s) 1, 1s, 2s, 3s-4s, All open counts dismissed on the motion of the U.S.; Count(s) 1ss, 2ss, 180 months of incarceration on Count One and 12 months on Count Two to run consecutively on each count, totaling 192 months of incarceration. The court recommends to the bureau of prisons for incarceration at FCI Terre Haute, Indiana. No term of supervised release is imposed. Special Assessment of $200.00 Ordered by Judge John Gleeson on 8/14/2015. (Piper, Francine) (Entered: 08/17/2015)

08/21/2015

154 NOTICE OF APPEAL by Agron Hasbajrami re 152 Judgment. No fee paid. Defendant represented by CJA Counsel. Service done electronically. (Dratel, Joshua) Modiﬁed on 8/21/2015 to reﬂect fee status and service.(McGee, Mary Ann). (Entered: 08/21/2015)

08/21/2015

Electronic Index to Record on Appeal as to Agron Hasbajrami sent to US Court of Appeals 154 Notice of Appeal - Final Judgment Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 08/21/2015)

08/24/2015 155 SUBSEQUENT NOTICE OF APPEAL by Agron Hasbajrami re Order,,,, 152 Judgment,, (Dratel, Joshua) (Entered: 08/24/2015)

08/24/2015

First Supplemental Electronic Index to Record on Appeal as to Agron Hasbajrami sent to US Court of Appeals 155 Subsequent/Amended Notice of Appeal - Final Judgment (McGee, Mary Ann) (Entered: 08/24/2015)

08/31/2015

156 Letter requesting the designation recommendation in the Judgment be amended from Terre Haute to FCI Terre Haute as to Agron Hasbajrami (Dratel, Joshua) (Entered: 08/31/2015)

08/31/2015

157 Letter dated August 26, 2015 from Agron Hasbajrami to Judge Gleeson, requesting that the judge suggest incarceration in "CMU" Terre Haute. (Piper, Francine) (Entered: 09/02/2015)

09/04/2015

158 AMENDED JUDGMENT as to Agron Hasbajrami (1), Count(s) 1, 1s, 2s, 3s-4s, All open counts dismissed on the motion of the U.S.; Count(s) 1ss, 2ss, - ONLY AMENDING PAGE 2 TO REFLECT THE BOP RECOMMENDED FACILITY DESIGNATION REQUESTED BY THE DEFENDANT'S PRO SE LETTER TO THE COURT DATED AUGUSTS 26, 2015.Ordered by Judge John Gleeson on 9/4/2015. (Piper, Francine) (Entered: 09/04/2015)

10/23/2015 160 MOTION to Amend/Correct 158 Amended Judgment, by Agron Hasbajrami. (Piper, Francine) (Entered: 10/27/2015)

10/29/2015

ORDER granting 160 Motion to Amend/Correct as to Agron Hasbajrami (1). Having

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conﬁrmed the proposed amendments to the judgment telephonically with AUSA Seth DuCharme through my law clerk, I grant the application to amend the judgment. Ordered by Judge John Gleeson on 10/29/2015. (Bensing, Kayla) (Entered: 10/29/2015)

11/03/2015

161 SECOND AMENDED JUDGMENT as to Agron Hasbajrami (1) Amending page 1 to reﬂect that there was a Superseding Information and that Count One was brought under 18 U.S.C. § 2339A. Ordered by Judge John Gleeson on 11/2/2015. (Greene, Donna) (Main Document 161 replaced on 11/4/2015) (Greene, Donna). (Entered: 11/03/2015)

11/19/2015

163 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings as to Agron Hasbajrami held on August 13, 2015, before Judge Gleeson. Court Reporter/Transcriber H. Driscoll, Telephone number 718-613-2274. Email address: hdrisc@aol.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 12/10/2015. Redacted Transcript Deadline set for 12/21/2015. Release of Transcript Restriction set for 2/17/2016. (Driscoll, Holly) (Entered: 11/19/2015)

02/17/2016

ORDER as to Agron Hasbajrami: the sealed, ex parte application dated 2/16/2016 is granted. Ordered by Judge John Gleeson on 2/17/2016. (Bensing, Kayla) (Entered: 02/17/2016)

02/23/2016

ORDER as to Agron Hasbajrami: the presumptively classiﬁed opinion denying the 92 motion to suppress was given to the classiﬁed information security ofﬁcer on February 18, 2016 for service by hand to defense counsel and the government. Ordered by Judge John Gleeson on 2/23/2016. (Bensing, Kayla) (Entered: 02/23/2016)

02/25/2016

ORDER as to Agron Hasbajrami: to clarify my order dated February 23, 2016, the Court had understood that the presumptively classiﬁed opinion denying the 92 motion to suppress had been served to defense counsel. The classiﬁed security information ofﬁcer has since informed the Court that the presumptively classiﬁed opinion was not served to defense counsel, but that instead an unclassiﬁed and redacted version of the opinion was served to all parties on February 25, 2016. The Court is communicating with the government to arrive upon a version of the opinion that may be publicly ﬁled, and the Court will so ﬁle when that process has concluded. Ordered by Judge John Gleeson on 2/25/2016. (Bensing, Kayla) (Entered: 02/25/2016)

03/08/2016

165 ORDER as to Agron Hasbajrami: attached is a memorandum and order explaining the basis for my decision to deny the 92 motion to suppress. There are several instances in this memorandum where language has been substituted, and two instances where language has been redacted, from that in the presumptively classiﬁed opinion given to the classiﬁed information security ofﬁcer on February 18, 2016. These substitutions and redactions reﬂect the government's decision that the material redacted would "expose government equities." Ordered by Judge John Gleeson on 3/8/2016. (Bensing, Kayla) (Entered: 03/08/2016)

07/25/2016 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel by Agron Hasbajrami. (Dratel, Joshua) (Entered: 07/25/2016)

07/25/2016 167 AFFIDAVIT in Support re 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel (Dratel, Joshua) (Entered: 07/25/2016)

07/25/2016 168 MEMORANDUM in Support re 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel (Dratel, Joshua) (Entered: 07/25/2016)

07/26/2016

ORDER REASSIGNING CASE as to Agron Hasbajrami. Reassigned to Judge Margo K. Brodie. Judge John Gleeson no longer assigned to the case. Please download and review

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the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such.. Ordered by Chief Judge Dora Lizette Irizarry on 7/26/2016. (Davis, Kimberly) (Entered: 07/26/2016)

08/02/2016

ORDER REASSIGNING CASE as to Agron Hasbajrami. Reassigned to Chief Judge Dora Lizette Irizarry. Judge Margo K. Brodie no longer assigned to the case. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Ordered by Chief Judge Dora Lizette Irizarry on 8/2/2016. (Bowens, Priscilla) (Entered: 08/02/2016)

08/03/2016

ORDER as to Agron Hasbajrami re 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel ﬁled by Agron Hasbajrami, -- The Government shall respond to this motion by August 23, 2016; defendant shall reply by September 6, 2016. The parties are reminded to provide two hard courtesy copies of all motion papers, including doc. 166, to chambers promptly. So Ordered by Chief Judge Dora Lizette Irizarry on 8/3/2016. (Carosella, Christy) (Entered: 08/03/2016)

08/23/2016 169 RESPONSE in Opposition re 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel (Baldwin, Peter) (Entered: 08/23/2016)

09/06/2016 170 REPLY TO RESPONSE to Motion re 166 MOTION for Leave to File Request to Release Unredacted Version of Opinion to Counsel (Dratel, Joshua) (Entered: 09/06/2016)

04/06/2017

171 ORDER denying 166 Motion for Leave to File as to Agron Hasbajrami (1) -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Defendant's motion to release the Unredacted Opinion issued on February 18, 2016 by the Hon. John Gleeson, U.S.D.J. (retired), to his security cleared counsel is denied in its entirety. SO ORDERED by Chief Judge Dora Lizette Irizarry on 4/6/2017. (Irizarry, Dora) (Entered: 04/06/2017)

04/17/2017 172 Letter Re: Reconsideration of April 6, 2017, Memorandum and Order as to Agron Hasbajrami (Dratel, Joshua) (Entered: 04/17/2017)

04/18/2017

ORDER as to Agron Hasbajrami re 172 Letter -- The Government shall respond to defendant's application on or before May 2, 2017. So Ordered by Chief Judge Dora Lizette Irizarry on 4/18/2017. (Carosella, Christy) (Entered: 04/18/2017)

05/01/2017 173 Letter re: Response to Defendant's Letter Re: Reconsideration of April 6, 2017, Memorandum and Order as to Agron Hasbajrami (Baldwin, Peter) (Entered: 05/01/2017)

08/22/2017

174 ORDER as to Agron Hasbajrami re 172 Letter -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, defendant's request for reconsideration of this Court's April 6, 2017 Memorandum and Order is denied. SO ORDERED by Chief Judge Dora Lizette Irizarry on 8/22/2017. (Irizarry, Dora) (Entered: 08/22/2017)

08/25/2017

175 NOTICE OF APPEAL by Agron Hasbajrami re 171 Order on Motion for Leave to File, 174 Order, No fee. Appellant represented by CJA Attorney. Service done electronically. (Bachrach, Michael) Modiﬁed on 8/28/2017 to reﬂect fee status and service (McGee, Mary Ann). (Entered: 08/25/2017)

08/28/2017

Electronic Index to Record on Appeal as to Agron Hasbajrami sent to US Court of Appeals 175 Notice of Appeal - Final Judgment, Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 08/28/2017)

09/22/2017 176 Letter from Agron Hasbajrami to Clerk of Court, "requesting a copy of the docket sheet

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for the above case number." (Layne, Monique) (Entered: 09/22/2017)
177 ORDER of USCA (certiﬁed copy) as to Agron Hasbajrami re 155 Subsequent Notice of Appeal - Final Judgment, 154 Notice of Appeal - Final Judgment, 175 Notice of Appeal Final Judgment. It is Ordered that we Remand to the District Court for further proceedings consistent with this Opinion. See document for further details. Certiﬁed Copy of this Order endorsed on Redacted USCA Opinion issued 12/18/19. USCA #152684 # 17-2669. (McGee, Mary Ann) (Entered: 12/19/2019)

PACER Service Center

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03/09/2020 11:29:56

PACER Login: CRClearinghouse Client Code: Boyer

Description: Docket Report Search Criteria: 1:11-cr-00623-DLI

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