SOUTHERN,CLOSED,PASPRT
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Southern Division - Santa Ana)
CRIMINAL DOCKET FOR CASE #: 8:14-cr-00173-CAS-1

Case title: USA v. Gartenlaub

Date Filed: 10/23/2014

Magistrate judge case number: 8:14-mj-00320-DUTY Date Terminated: 09/06/2016

Assigned to: Judge Christina A. Snyder Appeals court case number: 1650339 9th Circuit
Defendant (1) Keith Preston Gartenlaub TERMINATED: 09/06/2016 also known as Keith Preson Gartenlaub TERMINATED: 09/06/2016

represented by Keith Preston Gartenlaub 16809 Lakepointe Drive Riverside, CA 92503 949-394-2823 PRO SE
Mark J Werksman Werksman Jackson and Quinn LLP 888 West Sixth Street Suite 400 Los Angeles, CA 90017 213-688-0460 Fax: 213-624-1942 Email: mwerksman@werksmanjackson.com TERMINATED: 09/29/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Kelly C Quinn Law Offices of Mark J. Werksman 888 West Sixth Street Fourth Floor Los Angeles, CA 90017 213-688-0460 Fax: 213-624-1942 Email: kquinn@werksmanlaw.com TERMINATED: 09/29/2016 ATTORNEY TO BE NOTICED

Pending Counts
18:2252A(a)(5)(b),(b)(2): POSSESSION OF CHILD PORNOGRAPHY (2)
Highest Offense Level (Opening) Felony
Terminated Counts 18:2252A(a)(2)(A)(b)(1): ATTEMPTED RECEIPT AND RECEIPT OF CHILD PORNOGRAPHY (1)
Highest Offense Level (Terminated) Felony
Complaints

Designation: Retained
Steven John Vondrak Law Offices of Steven J Vondrak 1238 Puerta Del Sol Suite 1B San Clemente, CA 92673 949-492-1033 Fax: 949-257-4834 Email: steve@vondraklaw.com TERMINATED: 08/29/2014 Designation: Retained
Disposition Defendant is committed on Count 2 of the 2-Count Indictment to the Bureau of Prisons for 41 months. Supervised release for a term of life under the terms and conditions of the U. S. Probation Office, General Order 05-02, and General Order 0105, including the three special conditions delineated in General Order 01-05. Special assessment of $100. All fines are waived. Restitution in the total amount of $3,430.
Disposition
The Court VACATES defendant's conviction for receipt of child pornography.
Disposition

Defendant in violation of 18:2252A(a)(5)(B)

Plaintiff USA
Date Filed # Docket Text

represented by Anthony J Lewis AUSA - Office of US Attorney Criminal Division - US Courthouse 312 North Spring Street 15th Floor Los Angeles, CA 90012 213-894-1786 Fax: 213-894-7631 Email: USACAC.Criminal@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Assistant US Attorney
Vicki Chou AUSA - Office of US Attorney Cyber and Intellectual Property Crimes Section 312 North Spring Street, 15th Floor Los Angeles, CA 90012 213-894-8692 Fax: 213-894-7631 Email: USACAC.Criminal@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Assistant US Attorney
Aaron M Lewis Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, CA 90067-4643 424-332-4754 Fax: 415-591-6091 Email: alewis@cov.com TERMINATED: 03/13/2015 ATTORNEY TO BE NOTICED Designation: Assistant US Attorney

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1 COMPLAINT filed as to Defendant Keith Preson Gartenlaub in violation of 18:2252A(a)(5)(B). Approved by Magistrate Judge Jay C. Gandhi (mt) [8:14-mj-00320-DUTY] (Entered: 09/02/2014)
2 REPORT COMMENCING CRIMINAL ACTION as to Defendant Keith Preson Gartenlaub; defendants Year of Birth: 1968; date of arrest: 8/27/2014 (mt) [8:14-mj-00320-DUTY] (Entered: 09/02/2014)
3 MINUTES OF INITIAL APPEARANCE ON LOCAL COMPLAINT held before Magistrate Judge Jay C. Gandhi as to Defendant Keith Preson Gartenlaub. Defendant arraigned and advised of the charges. Defendant states true name as charged. Attorney: Steven John Vondrak, Special appearance by Sara Naheedy for Keith Preson Gartenlaub, Retained, present. Government's request for detention is: CONTINUED. Preliminary Hearing waived. Post-Indictment Arraignment set for 9/29/2014 10:00 AM before Duty Magistrate Judge. Detention Hearing continued to 8/29/2014 02:00 PM before Magistrate Judge Jay C. Gandhi. Defendant committed to the custody of the U.S. Marshal. Also appearing in court on Defendant's behalf, Cindy Ianni. Court Smart: CS 8/27/14. (mt) [8:14-mj-00320-DUTY] (Entered: 09/02/2014)
4 WAIVER of Preliminary Examination or Hearing by Defendant Keith Preson Gartenlaub (mt) [8:14-mj-00320-DUTY] (Entered: 09/02/2014)
5 NOTICE OF REQUEST FOR DETENTION filed by Plaintiff USA as to Defendant Keith Preson Gartenlaub (mt) [8:14-mj-00320-DUTY] (Entered: 09/02/2014)
6 ORDER OF TEMPORARY DETENTION Pending Hearing Pursuant to Bail Reform Act by Magistrate Judge Jay C. Gandhi as to Defendant Keith Preson Gartenlaub. Pending hearing, the defendant shall be held in custody by the U. S. Marshal and produced for the hearing. Detention Hearing set for 8/29/2014 02:00 PM before Magistrate Judge Jay C. Gandhi. (mt) [8:14-mj-00320-DUTY] (Entered: 09/02/2014)
7 BRIEF Filed by Plaintiff USA as to Defendant Keith Preson Gartenlaub in Support of Request for Detention of Defendant Keith Preston Gartenlaub 5 ; Declaration of Alex Yoo. (mt) [8:14-mj-00320-DUTY] (Entered: 09/02/2014)
8 NOTICE DIRECTING DEFENDANT TO APPEAR for Arraignment on Indictment/Information. Defendant Keith Preson Gartenlaub directed to appear on 9/29/2014 at 10:00 AM before the Duty Magistrate Judge. (mt) [8:14-mj-00320-DUTY] (Entered: 09/02/2014)
9 NOTICE OF INTENT TO USE FOREIGN INTELLIGENCE SURVEILLANCE ACT INFORMATION filed by Plaintiff USA as to Defendant Keith Preson Gartenlaub (mt) [8:14-mj-00320-DUTY] (Entered: 09/02/2014)

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10 MINUTES OF Review/Reconsideration of Bail/Detention Order - Bond Hearing held before Magistrate Judge Jay C. Gandhi as to Defendant Keith Preson Gartenlaub. Defendant's request for review / reconsideration of bail / detention order had and request is GRANTED. The Court Orders bail set: Keith Preson Gartenlaub (1) $400,000.00 SEE ATTACHED COPY OF CR-01 BOND FORM FOR CONDITIONS OF RELEASE. Request for Approval of Substitution of Counsel approved. Mark Werksman is now counsel for Defendant. Sara Naheedy relieved. Release Order Issued - Release No. 33956. Court Smart: CS 8/29/14. (mt) [8:14mj-00320-DUTY] (Entered: 09/02/2014)
11 PASSPORT RECEIPT from U. S. Pretrial Services as to Defendant Keith Preson Gartenlaub. USA passport was received on 8/29/2014. (mt) [8:14mj-00320-DUTY] (Entered: 09/02/2014)
12 REQUEST FOR APPROVAL OF SUBSTITUTION OF Attorney Mark Werksman in place of Attorney Sara Naheedy filed by Defendant Keith Preson Gartenlaub. (mt) [8:14-mj-00320-DUTY] (Entered: 09/02/2014)
13 ORDER by Magistrate Judge Jay C. Gandhi as to Keith Preson Gartenlaub: Granting Request for Approval of Substitution of Attorney Mark J Werksman in place of Attorney Sara Naheedy 12 . (mt) [8:14-mj00320-DUTY] (Entered: 09/02/2014)
20 BOND AND CONDITIONS OF RELEASE filed as to Defendant Keith Preson Gartenlaub conditions of release: $325,000 Appearance Bond with cash deposit $25,000 (see attached for details) approved by Magistrate Judge Jay C. Gandhi. Release No. 33956. (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)
FINANCIAL ENTRY as to Defendant Keith Preson Gartenlaub: Received $25,000.00 from TESS GARTENLAUB on 8/29/14. (jo) [8:14mj-00320-DUTY] (Entered: 09/03/2014)
14 ORDER ON PETITION FOR ACTION ON CONDITIONS OF PRETRIAL RELEASE by Magistrate Judge Jay C. Gandhi as to Defendant Keith Preson Gartenlaub: Praying that the Court will Modify conditions of release to include: Defendant shall participate in mental health evaluation and/or counseling and/or treatment as directed by Pretrial Services. (mt) (Main Document 14 replaced on 10/9/2014) (lwag). Modified on 10/9/2014 to add missing pages(lwag). [8:14-mj00320-DUTY] (Entered: 09/08/2014)
22 REDACTED - AFFIDAVIT OF SURETIES (No Justification - Pursuant to Local Criminal Rule 46-5.2.8) in the amount of $$100,000 by surety: Ivan Gartenlaub for Bond and Conditions (CR-1), 21 . Filed by Defendant Keith Preson Gartenlaub (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)

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23 UNREDACTED AFFIDAVIT OF SURETIES filed by Defendant Keith Preson Gartenlaub re: Redacted Affidavit of Surety (No Justification)(CR-4), 22 (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)
24 REDACTED - AFFIDAVIT OF SURETIES (No Justification - Pursuant to Local Criminal Rule 46-5.2.8) in the amount of $$100,000 by surety: Fred Gartenlaub for Bond and Conditions (CR-1), 21 . Filed by Defendant Keith Preson Gartenlaub (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)
25 UNREDACTED AFFIDAVIT OF SURETIES filed by Defendant Keith Preson Gartenlaub re: Redacted Affidavit of Surety (No Justification)(CR-4), 24 (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)
26 REDACTED - AFFIDAVIT OF SURETIES (No Justification - Pursuant to Local Criminal Rule 46-5.2.8) in the amount of $$25,000 by surety: Marshall Gartenlaub for Bond and Conditions (CR-1), 21 . Filed by Defendant Keith Preson Gartenlaub (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)
27 UNREDACTED AFFIDAVIT OF SURETIES filed by Defendant Keith Preson Gartenlaub re: Redacted Affidavit of Surety (No Justification)(CR-4), 26 (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)
28 REDACTED - AFFIDAVIT OF SURETIES (No Justification - Pursuant to Local Criminal Rule 46-5.2.8) in the amount of $$100,000 by surety: Tess Z Gartenlaub for Bond and Conditions (CR-1), 21 . Filed by Defendant Keith Preson Gartenlaub (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)
29 UNREDACTED AFFIDAVIT OF SURETIES filed by Defendant Keith Preson Gartenlaub re: Redacted Affidavit of Surety (No Justification)(CR-4), 28 (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)
15 STIPULATION for Modification of Conditions of Release filed by Defendant Keith Preson Gartenlaub (Attachments: # 1 Proposed Order to Modify Conditions of Pre-trial Release)(Werksman, Mark) [8:14-mj00320-DUTY] (Entered: 09/11/2014)
16 ORDER by Magistrate Judge Jay C. Gandhi as to Defendant Keith Preson Gartenlaub: Granting Stipulation to Modify Conditions of Defendant Keith Gartenlaub's Pretrial Release 15 . (mt) [8:14-mj-00320-DUTY] (Entered: 09/11/2014)
17 NOTICE of Manual Filing of STIPULATION [PROPOSED] ORDER filed by Plaintiff USA as to Defendant Keith Preson Gartenlaub (Lewis, Anthony) [8:14-mj-00320-DUTY] (Entered: 09/18/2014)

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18 SEALED DOCUMENT RE STIPULATION RE: FILING OF INFORMATION OR INDICTMENT PURSUANT TO SPEEDY TRIAL ACT (mt) (Main Document 18 replaced on 9/23/2014) (mba). [8:14-mj00320-DUTY] (Entered: 09/19/2014)
19 SEALED DOCUMENT RE ORDER CONTINUING DATE BY WHICH INDICTMENT OR INFORMATION MUST BE FILED AND FINDINGS REGARDING EXCLUDABLE TIME PERIODS PURSUANT TO SPEEDY TRIAL ACT. (mt) [8:14-mj-00320-DUTY] (Entered: 09/19/2014)
30 REDACTED - AFFIDAVIT OF SURETIES (No Justification - Pursuant to Local Criminal Rule 46-5.2.8) in the amount of $$50,000 by surety: Abraham J Shapiro for Bond and Conditions (CR-1), 21 . Filed by Defendant Keith Preson Gartenlaub (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)
31 UNREDACTED AFFIDAVIT OF SURETIES filed by Defendant Keith Preson Gartenlaub re: Redacted Affidavit of Surety (No Justification)(CR-4), 30 (mt) [8:14-mj-00320-DUTY] (Entered: 09/23/2014)
21 MODIFIED BOND AND CONDITIONS OF RELEASE filed as to Defendant Keith Preson Gartenlaub conditions of release: $400,000 Appearance Bond with cash deposit $25,000 (see attached for details) approved by Magistrate Judge Douglas F. McCormick. (mt) [8:14-mj00320-DUTY] (Entered: 09/23/2014)
33 UNREDACTED AFFIDAVIT OF SURETIES (Property) in the amount of $25,000 by surety: Abraham J Shapiro for Bond and Conditions (CR1), 21 for property located at: 5415 S. Dover St. #102 Denver, Colorado 80123; Conformed copy of Deed of Trust 2014-113526; filed by Defendant Keith Preson Gartenlaub. Approved by Magistrate Judge Douglas F. McCormick. Affidavit of Surety (Property)(CR-3), 32 (mba) [8:14-mj-00320-DUTY] (Entered: 09/24/2014)
32 REDACTED AFFIDAVIT OF SURETIES (Property) in the amount of $25,000 by surety: Abraham J Shapiro for Bond and Conditions (CR1), 21 for property located at: 5415 S. Dover St. #102 Denver, Colorado 80123; Conformed copy of Deed of Trust 2014-113526; filed by Defendant Keith Preson Gartenlaub. Approved by Magistrate Judge Douglas F. McCormick. (mba) [8:14-mj-00320-DUTY] (Entered: 09/24/2014)
34 STIPULATION to Continue Post Indictment Arraignment Hearing from October 27, 2014 at 10:00 a.m. to October 27, 2014 at 1:30 p.m. filed by Defendant Keith Preson Gartenlaub (Attachments: # 1 Proposed Order)(Werksman, Mark) [8:14-mj-00320-DUTY] (Entered: 10/20/2014)

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35 ORDER by Magistrate Judge Jay C. Gandhi as to Defendant Keith Preson Gartenlaub, granting Stipulation to Continue 34 . The hearings originally scheduled have been rescheduled. ( Post-Indictment Arraignment continued to 10/27/2014 02:00 PM before Magistrate Judge Jay C. Gandhi.) (twdb) [8:14-mj-00320-DUTY] (Entered: 10/21/2014)
36 INDICTMENT Filed as to Keith Preson Gartenlaub (1) count(s) 1, 2. Offense occurred in Orange. (dg) (Entered: 10/24/2014)
37 CASE SUMMARY filed by AUSA Anthony J Lewis as to Defendant Keith Preson Gartenlaub; defendants Year of Birth: 1968 (dg) (Entered: 10/24/2014)
38 MEMORANDUM filed by Plaintiff USA as to Defendant Keith Preson Gartenlaub re Judge Andre Birotte, Jr and Michael Fitzgerald (dg) (Entered: 10/24/2014)
39 MEMORANDUM filed by Plaintiff USA as to Defendant Keith Preson Gartenlaub re Magistrate Judges Jacqueline Chooljian, Patrick J. Walsh, Sheri Pym, Michael Wilner, Jean Rosenbluth, Alka Sagar and Douglas McCormick(dg) (Entered: 10/24/2014)
40 MINUTES OF POST-INDICTMENT ARRAIGNMENT: held before Magistrate Judge Robert N. Block as to Defendant Keith Preston Gartenlaub (1) Count 1,2. Defendant arraigned, states true name: As charged. Attorney: Mark J Werksman, Retained present. Defendant entered not guilty plea to all counts as charged. Case assigned to Judge Christina A. Snyder. Jury Trial set for 12/16/2014 09:30 AM before Judge Christina A. Snyder. Status Conference set for 11/24/2014 01:30 PM before Judge Christina A. Snyder. Defendant and counsel are ordered to appear. Trial estimate: 3 days. Court Smart: CS 10/27/14. (mt) (Entered: 10/28/2014)
41 DESIGNATION AND APPEARANCE OF COUNSEL; filed by Mark J Werksman appearing for Keith Preston Gartenlaub (mt) (Entered: 10/28/2014)
46 STATEMENT OF CONSTITUTIONAL RIGHTS filed by Defendant Keith Preston Gartenlaub (lwag) (Entered: 11/24/2014)
42 STIPULATION for Modification of Conditions of Release filed by Defendant Keith Preston Gartenlaub (Attachments: # 1 Proposed Order)(Werksman, Mark) (Entered: 11/03/2014)
43 ORDER TO MODIFY CONDITIONS OF DEFENDANT KEITH GARTENLAUB'S PRETRIAL RELEASE by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Upon Stipulation 42 , IT IS HEREBY ORDERED that Defendant Keith Gartenlaub's conditions of pre-trial release shall be modified to allow for him to leave his home for job interviews and for employment. Any such job interviews and employment must be approved in advance by the United States Pre-Trial

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Services Office. All other terms and conditions of his release shall remain intact. (gk) (Entered: 11/04/2014)
44 First STIPULATION to Continue Trial from December 16, 2014 to March 17, 2015 filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Attachments: # 1 Proposed Order)(Lewis, Aaron) (Entered: 11/12/2014)
45 ORDER CONTINUING TRIAL DATE AND FINDINGS REGARDING EXCLUDABLE TIME PERIODS PURSUANT TO SPEEDY TRIAL ACT by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Jury Trial is continued to 3/17/2015 09:30 AM before Judge Christina A. Snyder. Status Conference/Motions Hearing is continued to 2/23/2015 01:30 PM before Judge Christina A. Snyder. (gk) (Entered: 11/17/2014)
49 REPORT COMMENCING CRIMINAL ACTION as to Defendant Keith Preston Gartenlaub; defendants Year of Birth: 1968; date of arrest: 12/18/2014 (mt) (Entered: 12/19/2014)
50 MINUTES OF INITIAL APPEARANCE Re: REVOCATION OF PRETRIAL RELEASE held before Magistrate Judge Robert N. Block as to Defendant Keith Preston Gartenlaub. Defendant arraigned and advised of the charges. Attorney: Mark J Werksman, Special appearance by Nina Daly, Retained, present. Government's request for detention is: DENIED. PO/PSA WARRANT. Counsel are directed to contact the clerk for Christina A. Snyder for the setting of further proceedings. Court orders defendant to be re-released on the same terms and conditions of release of Bond set on 8/29/14 with one modification: No router allowed in the residence. This order is stayed for 24-hours. Court Smart: CS 12/18/14. (mt) (Entered: 12/19/2014)
51 NOTICE OF REQUEST FOR DETENTION filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (mt) (Entered: 12/19/2014)
52 Warrant of Arrest for violation of Order of Court Returned Executed as to Keith Preston Gartenlaub. (mt) (Entered: 12/19/2014)
53 MEMORANDUM FOR RELEASE ORDER AUTHORIZATION filed by PSA Officer as to Defendant Keith Preston Gartenlaub. Submitted in compliance with conditions as set forth in Initial Appearance Revocation Proceedings 50 . (mt) (Entered: 12/19/2014)
54 NOTICE of Manual Filing of (1) Ex Parte Application and Proposed Order Requesting Permission to File Motion to Quash Under Seal;MOTION TO QUASH SEARCH WARRANTS SA14-315M, SA14316M, SA14-317M, SA14-318M; (2) Ex Parte Application and Proposed Order Requesting Permission to File FISA Motion Under Seal; MOTION FOR DISCLOSURE AND MOTION TO SUPPRESS; (3) Ex Parte Application and Proposed Order Requesting Permission to File Motion to

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Traverse Under Seal; MOTION TO TRAVERSE SEARCH WARRANTS SA14-315M, SA14-316M, SA14-317M, SA14-318M, AND REQUEST FOR FRANKS HEARING filed by Defendant Keith Preston Gartenlaub (Werksman, Mark) (Entered: 02/02/2015)
55 EX PARTE APPLICATION for Order for Permitting the Filing of an Oversized Brief Filed by Defendant Keith Preston Gartenlaub. (Attachments: # 1 Proposed Order Permitting the Filing of an Oversized Brief FISA) (Werksman, Mark) (Entered: 02/02/2015)
56 EX PARTE APPLICATION for Order for Permitting the Filing of an Oversized Brief Filed by Defendant Keith Preston Gartenlaub. (Attachments: # 1 Proposed Order Permitting the Filing of an Oversized Brief FRANKS) (Werksman, Mark) (Entered: 02/02/2015)
57 NOTICE of Manual Filing of 1. EX PARTE APPLICATION FOR ORDER PERMITTING THE FILING OF AN OVERSIZED BRIEF; DECLARATION OF MARK J. WERKSMAN; [PROPOSED] ORDER 2. EX PARTE APPLICATION REQUESTING PERMISSION TO FILE DEFENDANT KEITH GARTENLAUBS MOTION FOR DISCLOSURE OF FISA MATERIAL AND MEMORANDUM OF LAW TO SUPPRESS THE FRUITS OR DERIVATIVES OF ANY EVIDENCE COLLECTED PURSUANT TO FISA OR OTHER FOREIGN INTELLIGENCE GATHERING; DECLARATION OF MARK J. WERKSMAN; [PROPOSED] ORDER 3. EX PARTE APPLICATION FOR ORDER PERMITTING DEFENDANT KEITH GARTENLAUBS MOTION TO TRAVERSE SEARCH WARRANTS SA14-315M, SA14316M, SA14-317M, SA14-318M,AND REQUEST FOR FRANKS HEARING filed by Defendant Keith Preston Gartenlaub (Werksman, Mark) (Entered: 02/02/2015)
58 NOTICE of Manual Filing of 1. DEFENDANT KEITH PRESTON GARTENLAUBS MOTION TO QUASH SEARCH WARRANTS SA14-315M, SA14-316M, SA14-317M, SA14-318M 2. EX PARTE APPLICATION REQUESTING PERMISSION TO FILE DEFENDANT KEITH GARTENLAUBS MOTION FOR DISCLOSURE OF FISA MATERIAL AND MEMORANDUM OF LAW TO SUPPRESS THE FRUITS OR DERIVATIVES OF ANY EVIDENCE COLLECTED PURSUANT TO FISA OR OTHER FOREIGN INTELLIGENCE GATHERING; [PROPOSED] ORDER 3. DEFENDANT KEITH GARTENLAUB'S MOTION TO TRAVERSE SEARCH WARRANTS SA14-315M, SA14-316M, SA14-317M, SA14-318M, AND REQUEST FOR FRANKS HEARING filed by Defendant Keith Preston Gartenlaub (Werksman, Mark) (Entered: 02/02/2015)
65 SEALED DOCUMENT - EX PARTE APPLICATION for Order Permitting Defendant Keith Gartenlaub's Defendant Keith Preston Motion to Quash Search Warrants SA14-315M, SA14-316M, SA14-317M,

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SA14-318M; [Proposed] Order Under Seal. (gk) Modified on 2/13/2015 (gk). (Entered: 02/13/2015)
68 SEALED DOCUMENT - EX PARTE APPLICATION Requesting Permission to File Defendant Keith Gartenlaub's Motion for Disclosure of FISA Material and Memorandum of Law to Suppress the Fruits or Derivatives of Any Evidence Collected Pursuant to FISA or Other Foreign Intelligence Gathering; Declaration of Mark J. Werksman; [Proposed] Order Under Seal. (gk) Modified on 2/13/2015 (gk). (Entered: 02/13/2015)
71 SEALED DOCUMENT - EX PARTE APPLICATION for Order Permitting Defendant Keith Gartenlaub's Motion to Traverse Search Warrants SA14-315M, SA14-316M, SA14-317M, SA14-318M, and Request for Franks Hearing; Declaration of Mark J. Werksman; [Proposed] Order Under Seal. (gk) (Entered: 02/13/2015)
64 NOTICE OF DOCUMENT DISCREPANCIES AND ORDER by Judge Christina A. Snyder, ORDERING (1) Ex Parte Application for Order Permitting Defendant Keith Gartenlaub's Defendant Keith Preston Motion to Quash Search Warrants SA14-315M, SA14-316M, SA15-317M, SA14-318M; Memorandum of P's & A's; Declaration of Mark J. Werksman; (2) Proposed Order; (3) Defendant Keith Preston Gartenlaub's Motion to Quash Search Warrants; (4) Ex Parte Application for Order Permitting Defendant Keth Gartenlaub's Motion to Traverse Search Warrants; (7) Defendant Keith Gartenlaub's Motion to Traverse Search Warrants; (8) Ex Parte Application Requesting Permission to File Defendant Keith Gartenlaub's Motion for Disclosure of FISA Material and Memo of Law to Suppress the Fruits or Derivative of Any Evidence Collected; (9) Proposed Order; (10) Notice of Motion; Motion for Disclosure of FISA Material and Memo of P's & A's submitted by Defendant Keith Preston Gartenlaub, received on 2/2/2015 to be filed and processed; filed date to be the date the document was stamped Received but not Filed with the Clerk. (gk) (Entered: 02/13/2015)
66 SEALED DOCUMENT - ORDER GRANTING EX PARTE APPLICATION REQUESTING PERMISSION TO FILE DEFENDANT KEITH PRESTON GARTENLAUB'S MOTION TO QUASH SEARCH WARRANTS SA14-315M, SA14-316M, SA14-317M, SA14-318M. (gk) (Entered: 02/13/2015)
67 SEALED DOCUMENT - DEFENDANT KEITH PRESTON GARTENLAUB'S MOTION to Quash Search Warrants SA14-315M, SA14-316M, SA14-317M, SA14-318M. (gk) (Entered: 02/13/2015)
69 SEALED DOCUMENT - ORDER GRANTING EX PARTE APPLICATION REQUESTING PERMISSION TO FILE DEFENDANT KEITH GARTENLAUB'S MOTION FOR DISCLOSURE OF FISA MATERIAL AND MEMORANDUM OF LAW TO SUPPRESS THE

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FRUITS OR DERIVATIVES OF ANY EVIDENCE COLLECTED PURSUANT TO FISA OR OTHER - FOREIGN INTELLIGENCE GATHERING UNDER SEAL. (gk) (Entered: 02/13/2015)
70 SEALED DOCUMENT - NOTICE OF MOTION; MOTION for Disclosure of FISA Material and Memorandum of Points and Authorities to Suppress the Fruits or Derivatives of Any Evidence Collected Pursuant to FISA or Other Foreign Intelligence Gathering. (gk) (Entered: 02/13/2015)
72 SEALED DOCUMENT - ORDER GRANTING EX PARTE APPLICATION REQUESTING PERMISSION TO FILE DEFENDANT KEITH GARTENLAUB'S MOTION TO TRAVERSE SEARCH WARRANTS SA14-315M, SA14-316M, SA14-317M, SA14318M,AND REQUEST FOR FRANKS HEARING; DECLARATION OF MARK J. WERKSMAN; [PROPOSED] ORDER UNDER SEAL. (gk) (Entered: 02/13/2015)
73 SEALED DOCUMENT - DEFENDANT KEITH GARTENLAUB'S MOTION to Traverse Search Warrants SA14-315M, SA14-316M, SA14317M, SA14-318M, and Request for Franks Hearing. (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4)(gk) (Entered: 02/13/2015)
59 ORDER by Judge Christina A. Snyder: granting 56 Ex Parte Application for Order for to File the following motion as an oversized brief: MOTION TO TRAVERSE SEARCH WARRANTS SA14- 315M, SA14316M, SA14-317M, SA14-318M, AND REQUEST FOR FRANKS HEARING as to Keith Preston Gartenlaub (1) (pj) (Entered: 02/06/2015)
60 ORDER by Judge Christina A. Snyder: granting 55 Ex Parte Application for Order for MOTION FOR DISCLOSURE OF FISA MATERIAL AND MEMORANDUM OF LAW TO SUPPRESS THE FRUITS OR DERIVATIVES OF ANY EVIDENCE COLLECTED PURSUANT TO FISA OR OTHER FOREIGN INTELLIGENCE GATHERING as to Keith Preston Gartenlaub (1) (pj) (Entered: 02/06/2015)
61 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: EX PARTE APPLICATION for Order for Permitting the Filing of an Oversized Brief 55 . The following error(s) was found: Local Rule 7-19.1 Notice to other parties of Ex Parte Application lacking. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (pj) (Entered: 02/06/2015)
62 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: EX PARTE APPLICATION for Order for Permitting the Filing of an Oversized Brief 56 . The following error(s) was found: Local Rule 7-19.1 Notice to other parties of Ex Parte Application lacking. In

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response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (pj) (Entered: 02/06/2015)
63 STIPULATION to Continue Trial from March 17, 2015 to September 29, 2015 filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Attachments: # 1 Proposed Order)(Lewis, Aaron) (Entered: 02/10/2015)
74 Notice of Appearance or Withdrawal of Counsel: for attorney Mark J Werksman counsel for Defendant Keith Preston Gartenlaub. Adding Kelly C Quinn as attorney as counsel of record for Keith Gartenlaub for the reason indicated in the G-123 Notice. Filed by defendant Keith Gartenlaub. (Werksman, Mark) (Entered: 02/18/2015)
75 ORDER TO CONTINUE Trial by Jud ge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Trial set for 9/29/2015 09:30 AM before Judge Christina A. Snyder. Status Conference set for 9/8/2015 01:30 PM before Judge Christina A. Snyder. MOTIONS HEARING DATE:July 6, 2015, at 1:30 p.m. The governments oppositions to defendants (see attached for further details) (pj) (Entered: 02/18/2015)
76 Notice of Appearance or Withdrawal of Counsel: for attorney Aaron Lewis counsel for Plaintiff USA. Aaron Lewis is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Aaron Lewis. (Lewis, Aaron) (Entered: 03/13/2015)
77 SCHEDULING NOTICE CONTINUED by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub, re: Order to Continue Trial, Change of Plea or Sentencing 75 , previously scheduled for 9/8/2015 at 1:30 PM has been rescheduled to conform to Judge Snyder's scheduling. Status Conference/Motions In Limine Hearing is continued to 9/14/2015 at 1:30 PM before Judge Christina A. Snyder. Defendant is ordered to be present on 9/14/2015 at 1:30 P.M., unless advised otherwise by his attorney of record. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(cj) TEXT ONLY ENTRY (Entered: 04/16/2015)
78 NOTICE of Manual Filing of SEALING APP. and PROPOSED ORDER; OPPOSITION TO MOTIONS TO TRAVERSE & QUASH filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 05/04/2015)
79 GOVERNMENT'S NOTICE OF FILING ATTORNEY GENERAL'S DECLARATION AND CLAIM OF PRIVILEGE filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 05/04/2015)

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80 NOTICE of Manual Filing of CLASSIFIED OPPOSITION TO MOTION FOR DISCLOSURE AND SUPPRESSION OF FISA INFO filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 05/04/2015)
81 EX PARTE APPLICATION for Order for PERMITTING FILING OF OVERSIZE UNCLASSIFIED BRIEF Filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub. (Attachments: # 1 Proposed Order) (Lewis, Anthony) (Entered: 05/04/2015)
82 MEMORANDUM in Opposition to MOTION for Disclosure of FISA Material MOTION to Suppress the Fruits or Derivatives of Any Evidence Collected 70 , EX PARTE APPLICATION for Order for Requesting Permission to File Defendant Keith Gartenlaub's Motion for Disclosure of FISA Material and Memorandum of Law to Suppress the Fruits or Derivatives of Any Evidence Collected Pursuant to FISA or Other F 68 , EX PARTE APPLICATION for Order for PERMITTING FILING OF OVERSIZE UNCLASSIFIED BRIEF 81 filed by Plaintiff USA as to Defendant KEITH PRESTON GARTENLAUB. (Lewis, Anthony) (Entered: 05/04/2015)
83 EX PARTE APPLICATION for Order for PERMITTING FILING OF OVERSIZE CLASSIFIED BRIEF Filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub. (Attachments: # 1 Proposed Order) (Lewis, Anthony) (Entered: 05/04/2015)
85 SEALED DOCUMENT-GOVERNMENT'S EX PARTE APPLICATION FOR ORDER PERMITTING FILING OF OVERSIZE BRIEF AND SEALING GOVERNMENT'S OPPOSITION TO DEFENDANT'S MOTIONS TO TRAVERSE AND QUASH SEARCH WARRANTS; DECLARATION OF ANTHONY J. LEWIS (pj) (Entered: 05/11/2015)
86 SEALED DOCUMENT ORDER SEALING GOVERNMENT'S CONSOLIDATED OPPOSITION TO DEFENDANT'S MOTIONS TO TRAVERSE AND TO QUASH SEARCH WARRANTS AND PERMITTING FILING OF OVERSIZE BRIEF (pj) (Entered: 05/11/2015)
87 SEALED DOCUMENT-GOVERNMENT'S CONSOLIDATED OPPOSITION TO DEFENDANT'S MOTION TO TRAVERSE AND TO QUASH SEARCH WARRANT (Attachments: # 1 Part 2, # 2 Part 3)(pj) (Entered: 05/11/2015)
88 ORDER PERMITTING FILING OF OVERSIZED CLASSIFIED BRIEF 83 by Judge Christina A. Snyder. IT IS HEREBY ORDERED THAT: The government may file the Government's Classified Memorandum in Opposition to Defendant's Motion for Disclosure of FISA Material and Memorandum of Point and Authorities to Suppress the Fruits or Derivatives of Any Evidence Collected Pursuant to FISA or

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Other Foreign Intelligence Gathering in excess of 25 pages. (es) (Entered: 05/12/2015)
89 ORDER PERMITTING FILING OF OVERSIZE UNCLASSIFIED BRIEF 81 by Judge Christina A. Snyder. IT IS HEREBY ORDERED THAT: The government may file the Government's Unclassified Memorandum in Opposition to Defendant's Motion for Disclosure of FISA Material and Memorandum of Point and Authorities to Suppress the Fruits or Derivatives of Any Evidence Collected Pursuant to FISA or Other Foreign Intelligence Gathering in excess of 25 pages. (es) (Entered: 05/12/2015)
84 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Government's Unclassified Memorandum in Opposition to Defendant's Motion for Disclosure of FISA Material and Memorandum of Points and Authorities to Suppress the Fruits or Derivatives of Any Evidence Collected Pursuant to FISA or Any Other Foreign Intelligence Gathering filed 5/4/2015 82 . The following error(s) was found: Local Rule 11-6 Memorandum/brief exceeds 25 pages. This document tendered for the judge's approval should have been submitted as a separate PDF attachment to the concurrently submitted Ex Parte Application for an order Permitting Filing of Oversize Unclassified Brief, document number 81, or a Notice of Lodging. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (gk) (Entered: 05/06/2015)
90 NOTICE of Manual Filing of Def's Ex Parte App. Req. Permission to file Def's Reply to Govt's Opp. to Def's Mtn. for disclosure of Fisa Material; [Proposed] Order; Deft's Reply to Govt's Opp to Deft's Mtn. for Disclosre of Fisa Material and Memorandum of :Points and Authorities to Suppres the Fruits of Derivatives of any Evidence Collected Pursuant to Fisa or Other Foreging Intelligence Gathering; Dec. of Mark J. Werksman; Ex Parte App for Permission to file Oversized Brief; [Proposed] Order filed by Defendant Keith Preston Gartenlaub (Werksman, Mark) (Entered: 06/08/2015)
91 NOTICE of Manual Filing of 1. Defendants Ex Parte Application for Order Requesting Permission to File Defendant Keith Gartenlaubs Reply to Governments Consolidated Opposition to Defendants Motion to Traverse Search Warrants SA14-315M, SA14-316M, SA14-317M, Sa14318M, and Request for Franks Hearing; Under Seal; 2. [Proposed] Order; 3. Defendant Keith Gartenlaubs Reply to Governments Consolidated Opposition to Defendants Motion to Traverse Search Warrants SA14315M, SA14-316M, SA14-317M, Sa14-318M, and Request for Franks Hearing; Under Seal; 4. Defendants Ex Parte Application for Order Requesting Permission to File Oversized Brief of Keith Gartenlaubs

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Reply to Governments Consolidated Opposition to Defendants Motion to Traverse Search Warrants SA14-315M, SA14-316M, SA14-317M, SA14-318M, and Request for Franks Hearing; Declaration of Mark J. Werksman; 5. [Proposed] Order Under Seal filed by Defendant Keith Preston Gartenlaub (Werksman, Mark) (Entered: 06/08/2015)
92 NOTICE of Manual Filing of 1. Defendants Ex Parte Application Requesting Permission to File Defendant Keith Gartenlaubs Reply to Governments Consolidated Opposition to Defendants Motion to Quash Search Warrants SA14-315M, SA14-316M, SA14-317M, SA14-318M Under Seal; 2. [Proposed] Order Under Seal; 3. Reply to Government's Consolidated Opposition to Defendant's Motion to Quash Search Warrants SA14-315M, SA14-316M, SA14-317M, Sa14-318M Under Seal filed by Defendant Keith Preston Gartenlaub (Werksman, Mark) (Entered: 06/08/2015)
93 SEALED DOCUMENT-EXPARTE APPLICATION FOR ORDER REQUESTING PERMISSION TO FILE OVERSIZED BRIEF OF KEITH GARTENLAUBS REPLY TO GOVERNMENTS CONSOLIDATED OPPOSITION TO DEFENDANTS MOTION TO TRAVERSE SEARCH WARRANTS SA14-315M, SA14-316M9 SA14317M, SA14-318M, AND REQUEST FOR FRANKS HEARING; DECLARATION OF MARK J. WERKSMAN; [PROPOSED] ORDER (pj) (Entered: 06/11/2015)
94 SEALED DOCUMENT-ORDER (pj) (Entered: 06/11/2015)
95 DEFENDANTS EX PARTEAPPLICATION FOR ORDERSEALED DOCUMENT-REQUESTING PERMISSION TO FILE DEFENDANT KEITH GARTENLAUBS REPLY TO GOVERNMENTS CONSOLIDATED OPPOSITION TO DEFENDANTS MOTION TO TRAVERSE SEARCH WARRANTS SA14-315M, SA14-316M, SA14317M, SA14-318M, AND REQUEST. FOR FRANKS HEARING; [PROPOSED] ORDER UNDER (pj) (Entered: 06/11/2015)
96 SEALED DOCUMENT-ORDER (pj) (Entered: 06/11/2015)
97 SEALED DOCUMENT-REPLY TO GOVERNMENT'S CONSOLIDATION OPPOSITION TO DEFENDANT'S MOTION for Traverse Search Warrants SA14-315M, SA14-316M, SA14-317M, SA14-318M, and Request for Franks Hearing 73 (pj) (Entered: 06/11/2015)
98 SEALED DOCUMENT-EX PARTE APPLICATION FOR ORDER REQUESTINGPERMISSION TO FILE OVERSIZED BRIEF OF DEFENDANT KEITH GARTENLAUBS REPLY TO GOVERNMENTS OPPOSITION TO DEFENDANTS MOTION FOR DISCLOSURE OF FISA MATERIAL AND MEMORANDUM OF POINT AND AUTHORITIES TO SUPPRESS THE FRUITS OR DERIVATIVES OF ANY EVIDENCE COLLECTED PURSUANT TO FISA OR OTHER

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FOREGOING INTELLIGENCE GATHERING; DECLARATION OF MARK J. WERKSMAN; [PROPOSED] ORDER (pj) (Entered: 06/11/2015)
99 SEALED DOCUMENT-ORDER (pj) (Entered: 06/11/2015)
100 SEALED DOCUMENT-DEFENDANTS EX FARTE APPLICATION FOR ORDER REQUESTING PERMISSION TO FILE DEFENDANT KEITH GARTENLAUBS REPLY TO GOVERNMENTS OPPOSTION TO DEFENDANTS MOTION FOR DISCLOSURE OF FISAMATERIAL AND MEMORANDUM OF POINTS AND AUTHORITIES TO SUPPRESS THE FRUITS OR DERIVATIVES OF ANY EVIDENCE COLLECTED PURSUANT TO FISA OR OTHER FOREIGN INTELLIGENCE GATHERING; DECLARATION OF MARK J. WERKSMAN; [PROPOSED] ORDER (pj) (Entered: 06/11/2015)
101 SEALED DOCUMENT-ORDER UNDER SEAL (pj) (Entered: 06/11/2015)
102 SEALED DOCUMENT- REPLY TO GOVERNMENTS OPPOSITION TO DEFENDANTS VS. MOTION FOR DISCLOSURE OF FISA MATERIAL AND MEMORANDUM OF POINTS AND AUTHORITIES TO SUPPRESS THE FRUITS OR DERIVATIVES OF ANY EVIDENCE COLLECTED PURSUANT TO FISA OR OTHER FOREIGN INTELLIGENCE GATHERING UNDER SEAL (pj) (Entered: 06/11/2015)
103 SEALED DOCUMENT-DEFENDANTS EX PARTE APPLICATION FOR ORDER REQUESTING PERMISSION TO FILE DEFENDANT KEITH GARTENLAUBS REPLY TO GOVERNMENTS CONSOLIDATED OPPOSITION TO DEFENDANTS MOTION TO QUASH SEARCH WARRANTS SA14-315M, SA14-316M, SA14317M, SA14-318M UNDER SEAL (pj) (Entered: 06/11/2015)
104 SEALED DOCUMENT-ORDER (pj) (Entered: 06/11/2015)
105 SEALED DOCUMENT-REPLY TO GOVERNMENTS 13 CONSOLIDATED OPPOSITION TO 14 DEFENDANTS MOTION TO QUASH SEARCH WARRANTS SA14-315M, SA14-316M, SA14317M, SA14-318M (pj) (Entered: 06/11/2015)
106 SCHEDULING NOTICE CONTINUED by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub, re: MOTION to Quash Search Warrants SA14-315M, SA14-316M, SA14-317M, SA14-318M 67 , MOTION for Order for Traverse Search Warrants SA14-315M, SA14316M, SA14-317M, SA14-318M, and Request for Franks Hearing 73 , MOTION for Disclosure of FISA Material MOTION to Suppress the Fruits or Derivatives of Any Evidence Collected 70 , previously scheduled for 7/6/2015 at 1:30 PM has been rescheduled. Motions

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hearing is continued to 8/3/2015 at 12:00 PM before Judge Christina A. Snyder. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(cj) TEXT ONLY ENTRY (Entered: 06/22/2015)
107 NOTICE of Manual Filing of government's ex parte application for order (under seal); proposed order (under seal) filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 07/16/2015)
108 SEALED DOCUMENT - GOVERNMENT'S EX PARTE APPLICATION for an Order Allowing Disclosure of Grand Jury Testimony; Memorandum of Points and Authorities; Declaration of AUSA Anthony J. Lewis; [Proposed] Order. (gk) (Entered: 07/17/2015)
110 SEALED DOCUMENT - ORDER ALLOWING DISCLOSURE OF GRAND JURY TESTIMONY. (gk) (Entered: 07/23/2015)
109 NOTICE OF LODGING filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Attachments: # 1 Proposed Order)(Lewis, Anthony) (Entered: 07/20/2015)
111 SCHEDULING NOTICE CONTINUED by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub, re: MOTION to Quash Search Warrants SA14-315M, SA14-316M, SA14-317M, SA14-318M 67 , MOTION for Order for Traverse Search Warrants SA14-315M, SA14316M, SA14-317M, SA14-318M, and Request for Franks Hearing 73 , MOTION for Disclosure of FISA Material MOTION to Suppress the Fruits or Derivatives of Any Evidence Collected 70 , previously scheduled for 8/3/2015 at 12:00 PM has been rescheduled. Motions hearing is continued to 8/6/2015 at 11:00 AM before Judge Christina A. Snyder in Courtroom 5. Defendant is ordered to be present on 8/6/2015 at 11:00 AM, unless advised otherwise by his attorney of record. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(cj) TEXT ONLY ENTRY (Entered: 07/30/2015)
112 STIPULATION to Continue TRIAL DATE from 9-29-15 to 12-8-15 filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Attachments: # 1 Proposed Order)(Lewis, Anthony) (Entered: 07/31/2015)
113 ORDER TO CONTINUE Trial by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Jury Trial set for 12/8/2015 09:30 AM before Judge Christina A. Snyder. Status Conference set for 11/16/2015 01:30 PM before Judge Christina A. Snyder. (pj) (Entered: 07/31/2015)
114 ORDER DENYING MOTION 70 by Judge Christina A. Snyder. For the reasons setforth below, it is ORDERED that the defendants Motion is DENIED. *See Order for details.* (es) (Entered: 08/13/2015)
115 SEALED DOCUMENT-UNDER SEAL DEFENDANT'S MOTION TO QUASH SEARCH WARRANT (Dkt. No. 67, filed February 3, 2015)'

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(UNDER SEAL) DEFENDANTS MOTION TO TRAVERSE SEARCH WARRANT AND REQUEST FOR FRANKS HEARING (Dkt. No. 73, filed February 3, 2015) (pj) (Entered: 08/13/2015)
116 NOTICE of Manual Filing of Notice of Intent to Introduce Business Records filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 11/13/2015)
118 SEALED DOCUMENT - GOVERNMENT'S NOTICE of Intent to Introduce Business Records Pursuant to the Self-Authentication Provisions of Federal Rule of Evidence 902(11). (gk) (Entered: 11/17/2015)
117 NOTICE OF MOTION AND MOTION in Limine to Exclude DEFENDANT'S PROPOSED EXPERT TESTIMONY Filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub(Lewis, Anthony) (Entered: 11/16/2015)
121 MINUTES OF STATUS CONFERENCE/MOTIONS IN LIMINE held before Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Hearing held and Counsel are present. The Court confers with counsel. Counsel inform the Court of their request for a hearing date to argue the Motion in Limine filed by plaintiff on November 16, 2015. Defendants opposition shall be filed by November 19, 2015, and the Court sets a hearing for this motion on November 23, 2015 at 1:30 PM. Court Reporter: LAURA ELIAS. (iv) (Entered: 11/18/2015)
119 Notice of Appearance or Withdrawal of Counsel: for attorney Vicki Chou counsel for Plaintiff USA. Adding Vicki Chou as counsel of record for United States of America for the reason indicated in the G-123 Notice. Filed by Plaintiff United States of America. (Attorney Vicki Chou added to party USA(pty:pla))(Chou, Vicki) (Entered: 11/17/2015)
120 OPPOSITION to MOTION in Limine to Exclude DEFENDANT'S PROPOSED EXPERT TESTIMONY 117 filed by Defendant Keith P. Gartenlaub. (Attachments: # 1 Exhibit A)(Werksman, Mark) (Entered: 11/18/2015)
122 NOTICE OF MOTION AND MOTION in Limine to Exclude Pictures of a Naked Adult Male That Defendant Emailed to Himself as Well as Screen Shots that Include the Term "Deflowered" or Similar Terms Filed by Defendant Keith Preston Gartenlaub Motion set for hearing on 11/23/2015 at 01:30 PM before Judge Christina A. Snyder.(Werksman, Mark) (Entered: 11/18/2015)
123 REPLY support of a motion MOTION in Limine to Exclude DEFENDANT'S PROPOSED EXPERT TESTIMONY 117 filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub. (Chou, Vicki) (Entered: 11/20/2015)

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124 NOTICE of Manual Filing of Government's Ex Parte Application For Order Sealing Document; Declaration Of Vicki Chou; [Proposed] Order Sealing Document filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 11/20/2015)
125 OPPOSITION to MOTION in Limine to Exclude Pictures of a Naked Adult Male That Defendant Emailed to Himself as Well as Screen Shots that Include the Term "Deflowered" or Similar Terms 122 filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub. (Chou, Vicki) (Entered: 11/20/2015)
127 MINUTES OF GOVERNMENT'S MOTION IN LIMINE #1 TO EXCLUDE DEFENDANT'S PROPOSED EXPERT TESTIMONY RE: DEFENDANT'S SEXUAL PREFERENCES AND DEFENDANT'S MOTION IN LIMINE #1 TO EXCLUDE PHOTOGRAPHS held before Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Hearing held and the parties are present. Tentative is circulated and collected. The Court confers with the parties and the parties argue. A status conference is set for December 7, 2015 at 12:00 p.m. If the parties do not need the December 7, 2015 status conference, counsel shall inform the Courtroom Deputy prior to that hearing. Court Reporter: Laura Elias. (iv) (Entered: 11/25/2015)
128 MINUTES (IN CHAMBERS) - MOTIONS IN LIMINE by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. The Court GRANTS the Government's Motion in Limine No. 1 to exclude defendant's proposed expert testimony regarding his sexual preferences 117 . Defendant's Motion in Limine No. 1 to exclude two pieces of evidence that he contends are irrelevant and highly prejudicial and should therefore be excluded under Federal Rule of Evidence 403 122 is GRANTED in part and DENIED in part. See document for details. (gk) (Entered: 11/25/2015)
129 SEALED DOCUMENT - GOVERNMENT'S EX PARTE APPLICATION for Order Sealing Document; Declaration of Vicki Chou. (gk) (Entered: 11/25/2015)
130 SEALED DOCUMENT - ORDER SEALING DOCUMENT. (gk) (Entered: 11/25/2015)
131 SEALED DOCUMENT - NOTICE OF LODGING of Exhibit A to Government's Opposition to Defendant's Motion in Limine No. 1 to Exclude Pictures of a Naked Adult Male That Defendant Emailed to Himself as Well as Screen Shots that Include the Term "Deflowered" or Similar Terms. (gk) (Entered: 11/25/2015)
126 NOTICE of Manual Filing of Government's ex parte application for an Order Allowing Disclosure filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 11/24/2015)

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135 SEALED DOCUMENT - GOVERNMENT'S EX PARTE APPLICATION for an Order Allowing Disclosure of Grand Jury Testimony; Memorandum of Points and Authorities; Declaration of AUSA Anthony J. Lewis. (gk) (Entered: 12/02/2015)
136 SEALED DOCUMENT - ORDER ALLOWING DISCLOSURE OF GRAND JURY TESTIMONY. (gk) (Entered: 12/02/2015)
132 NOTICE filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub Of Intent To Introduce Evidence of Child Pornography At Trial (Chou, Vicki) (Entered: 11/30/2015)
133 PROPOSED VOIR DIRE QUESTIONS filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 12/01/2015)
134 TRIAL MEMORANDUM filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 12/02/2015)
137 PROPOSED VOIR DIRE QUESTIONS filed by Defendant Keith Preston Gartenlaub (Werksman, Mark) (Entered: 12/02/2015)
138 SCHEDULING NOTICE ADVANCED by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub, previously scheduled for 12/08/2015 at 9:30 AM has been rescheduled. Jury Selection is advanced to 12/4/2015 at 10:30 AM before Judge Christina A. Snyder. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(cj) TEXT ONLY ENTRY (Entered: 12/02/2015)
139 PROPOSED JURY INSTRUCTIONS (Annotated set) filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 12/02/2015)
140 PROPOSED JURY VERDICT filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 12/02/2015)
141 PROPOSED JURY INSTRUCTIONS (Annotated Disputed set) filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 12/02/2015)
142 STATEMENT filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 12/03/2015)
143 OBJECTION to Jury Instructions (Proposed) 141 , filed by Defendant Keith Preston Gartenlaub (Werksman, Mark) (Entered: 12/03/2015)
144 NOTICE of Manual Filing of DISPUTED REDACTED LOG FILE filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 12/04/2015)
145 OBJECTION to Objections (non-motion) 143 , filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 12/04/2015)

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146 MINUTES OF JURY TRIAL - BEGUN (Jury Impanelment) - 1st Day held before Judge Christina A. Snyder: Jury selection begun as to Defendant Keith Preston Gartenlaub (1) on Counts 1 and 2. Jury impaneled and sworn. The Status Conference scheduled for 12/7/2015 at 12:00 PM is VACATED. Administrative matters taken up after impanelment, as stated in Court and on the record. The Court is recommending that defendant's pretrial release be modified to allow him to stay at the San Gabriel Hilton for the duration of the trial, temporarily transferring his detention to that location and his monitor to remain. He would continue to report to PSA, as required. Jury Trial continued to 12/8/2015 09:30 AM before Judge Christina A. Snyder. Court Reporter: Katie Thibodeaux. (gk) (Entered: 12/07/2015)
150 SEALED DOCUMENT - GOVERNMENT'S EX PARTE APPLICATION for Order Sealing Document; Declaration of Anthony J. Lewis. (gk) (Entered: 12/08/2015)
147 NOTICE of Manual Filing of NOTICE OF INTENT TO INTRODUCE BUSINESS RECORDS filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Lewis, Anthony) (Entered: 12/07/2015)
148 NOTICE of Revised Child Pornography Exhibits filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 12/07/2015)
149 SEALED DOCUMENT - GOVERNMENT'S FIRST SUPPLEMENTAL NOTICE of Intent to Introduce Business Records Pursuant to the SelfAuthentication Provisions of Federal Rule of Evidence 902(11). (gk) (Entered: 12/08/2015)
151 SEALED DOCUMENT - ORDER SEALING DOCUMENT. (gk) (Entered: 12/08/2015)
152 SEALED DOCUMENT - GOVERNMENT'S NOTICE OF LODGING Disputed Redacted Log File. (Attachments: # 1 Part 2)(gk) (Entered: 12/08/2015)
153 MINUTES OF Jury Trial - 2nd Day held before Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Opening statements made. Witnesses called, sworn and testified. Exhibits identified and admitted. The Court pre-instructs jury. Jury Trial continued to 12/9/2015 09:30 AM before Judge Christina A. Snyder. Court Reporter: Katie Thibodeaux. (gk) (Entered: 12/09/2015)
157 AMENDED MINUTES OF Jury Trial - 2nd Day 153 held before Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Opening statements made. Witnesses called, sworn and testified. Exhibits identified and admitted. The Court pre-instructs jury. Jury Trial continued to 12/9/2015 09:30 AM before Judge Christina A. Snyder. Court Reporter: Katie Thibodeaux, Deborah Gackle. (gk) (Entered: 12/10/2015)

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154 PROPOSED JURY VERDICT filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 12/09/2015)
155 PROPOSED JURY INSTRUCTIONS (annotated set) filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 12/09/2015)
156 PROPOSED JURY INSTRUCTIONS filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 12/09/2015)
158 MINUTES OF Jury Trial - 3rd Day held before Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Witnesses called, sworn and testified. Exhibits identified and admitted. Government rests. Defendant rests. Court instructs jury. Jury Trial continued to 12/10/2015 09:45 AM before Judge Christina A. Snyder. Court Reporter: Deborah Gackle. (gk) (Entered: 12/10/2015)
160 NOTICE OF COURT ORDER to U.S. Marshal Re: Bailiff/Matron's presence for Jury Deliberation on 12/10/2015 at 11:00 AM. (gk) (Entered: 12/11/2015)
159 MINUTES OF Jury Trial - 4th Day held before Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Closing arguments made. Bailiff sworn. Alternates excused. Jury retires to deliberate. Jury Verdict as follows: Defendant Keith Preston Gartenlaub (1) Guilty on Counts 1 and 2 of the Indictment. Jury polled. Filed Witness & Exhibit lists. Filed Jury notes. Filed Jury Instructions. Filed Jury Verdict. Defendant referred to Probation Office for Investigation and Report. Sentencing set for 4/18/2016 02:30 PM before Judge Christina A. Snyder. Defendant is to remain on bond under same the terms and conditions previously imposed. Court Reporter: Katie Thibodeaux. (gk) (Entered: 12/11/2015)
161 REDACTED Jury Note Number 1 as to Keith Preston Gartenlaub. (gk) (Entered: 12/11/2015)
162 UNREDACTED Jury Note Number 1 as to Keith Preston Gartenlaub Re: Redacted Jury Note 161 . (gk) (Entered: 12/11/2015)
163 REDACTED Jury Note Number 2 as to Keith Preston Gartenlaub. (gk) Modified on 12/11/2015 (gk). (Entered: 12/11/2015)
164 UNREDACTED Jury Note Number 2 as to Keith Preston Gartenlaub Re: Redacted Jury Note 163 . (gk) (Entered: 12/11/2015)
165 REDACTED Jury Note Number 3 as to Keith Preston Gartenlaub. (gk) (Entered: 12/11/2015)
166 UNREDACTED Jury Note Number 3 as to Keith Preston Gartenlaub Re: Redacted Jury Note 165 . (gk) (Entered: 12/11/2015)

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167 REDACTED SPECIAL VERDICT FORM as to Defendant Keith Preston Gartenlaub. (gk) (Entered: 12/11/2015)
168 UNREDACTED SPECIAL VERDICT FORM as to Defendant Keith Preston Gartenlaub Re: Redacted Special Verdict Form 167 . (gk) (Entered: 12/11/2015)
169 Jury Instructions (Given) by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. (gk) (Entered: 12/11/2015)
170 RECEIPT FOR RELEASE OF EXHIBITS to Counsel Upon Verdict/Judgment at Trial; as to Defendant Keith Preston Gartenlaub. Pursuant to stipulation of counsel and/or by Order of the Court, all exhibits listed on the joint exhibits list are returned to counsel for respective party(ies). (gk) (Entered: 12/11/2015)
171 LIST OF EXHIBITS AND WITNESSES at trial as to Keith Preston Gartenlaub. (gk) (Entered: 12/11/2015)
172 NOTICE OF MOTION AND MOTION to Set Aside Verdict , Or, in the Alternative, For a New Trial Filed by Defendant Keith Preston Gartenlaub. (Werksman, Mark) (Entered: 12/21/2015)
173 OPPOSITION to NOTICE OF MOTION AND MOTION to Set Aside Verdict , Or, in the Alternative, For a New Trial 172 (Lewis, Anthony) (Entered: 12/28/2015)
174 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Motion to Set Aside the Verdict, or, in the Alternative, for a New Trial filed 12/21/2015 172 . The following error(s) was found: Hearing information is missing, incorrect, or not timely. Judge Snyder hears criminal motions on Mondays at 1:30 PM. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (gk) (Entered: 12/29/2015)
175 REPLY In Support of NOTICE OF MOTION AND MOTION to Set Aside Verdict , Or, in the Alternative, For a New Trial 172 filed by Defendant Keith Gartenlaub. (Werksman, Mark) (Entered: 01/05/2016)
176 TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings held on 12/08/15 9:51 am. Court Reporter/Electronic Court Recorder: Katie Thibodeaux, CSR, RPR, CRR, phone number www.katiethibodeaux.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 3/1/2016. Redacted Transcript Deadline set for 3/11/2016. Release of Transcript Restriction set for 5/9/2016.(Thibodeaux, Katie) (Entered: 02/09/2016)

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177 TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings held on 12/10/15 9:51 am. Court Reporter/Electronic Court Recorder: Katie Thibodeaux, CSR, RPR, CRR, phone number www.katiethibodeaux.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 3/1/2016. Redacted Transcript Deadline set for 3/11/2016. Release of Transcript Restriction set for 5/9/2016.(Thibodeaux, Katie) (Entered: 02/09/2016)
178 NOTICE OF FILING TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings 12/8/15 9:51 am; 12/10/15 9:51 am re Transcript 177 , 176 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(Thibodeaux, Katie) TEXT ONLY ENTRY (Entered: 02/09/2016)
179 NOTICE OF MOTION AND MOTION to Vacate Multiplicitous Counts Filed by Defendant Keith Preston Gartenlaub. Motion set for hearing on 4/18/2016 at 02:30 PM before Judge Christina A. Snyder. (Werksman, Mark) (Entered: 02/10/2016)
180 OPPOSITION to NOTICE OF MOTION AND MOTION to Vacate Multiplicitous Counts 179 filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub. (Chou, Vicki) (Entered: 02/17/2016)
181 REPLY in Support of NOTICE OF MOTION AND MOTION to Vacate Multiplicitous Counts 179 filed by Defendant Keith Gartenlaub. (Werksman, Mark) (Entered: 02/24/2016)
184 POSITION WITH RESPECT TO SENTENCING FACTORS filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub and Response to Presentence Investigation Report (CR 182) (Chou, Vicki) (Entered: 03/18/2016)
185 SENTENCING MEMORANDUM filed by Defendant Keith Preston Gartenlaub (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T)(Werksman, Mark) (Entered: 04/01/2016)
186 NOTICE of Manual Filing of Def's Objections to the Pre-Sentence Investigation Report and Sent Memorandum; Declaration of Mark J. Werksman and Exhibits Under Seal filed by Defendant Keith Preston Gartenlaub (Werksman, Mark) (Entered: 04/04/2016)
187 EX PARTE APPLICATION Requesting Permission to File Defendant Keith Gartenlaub's Objections to the Pre-Sentence Investigation Report

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and Sentencing Memorandum; Declaration of Mark J. Werksman; and Exhibits Under Seal filed by Defendant Keith Preston Gartenlaub. (gk) (Entered: 04/06/2016)
188 ORDER GRANTING EX PARTE APPLICATION REQUESTING PERMISSION TO FILE DEFENDANT KEITH GARTENLAUB3'S OBJECTIONS TO THE PRE-SENTENCE INVESTIGATION REPORT AND SENTENCING MEMORANDUM; DECLARATION OF MARK J. WERKSMAN; AND EXHIBITS UNDER SEAL by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Upon Defendant's Ex Parte Application 187 , IT IS HEREBY ORDERED that Defendant Keith P. Gartenlaub's O1jections to the Pre-Sentence Investigation Report and Sentencing Memorandum; Declaration of Mark J. Werksman; and Exhibits shall be filed Under Seal. (gk) (Entered: 04/06/2016)
189 SEALED DOCUMENT - DEFENDANT KEITH GARTENLAUB'S OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT and Sentencing Memorandum; Declaration of Mark J. Werksman; Exhibits. (Attachments: # 1 Part 2)(gk) (Entered: 04/06/2016)
191 GOVERNMENT'S RESPONSE TO DEFENDANT'S OBJECTIONS TO THE PRE-SENTENCE REPORT AND SENTENCING MEMORANDUM filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Attachments: # 1 Declaration and Exhibits)(Chou, Vicki) (Entered: 04/11/2016)
192 NOTICE of Manual Filing of Government's Ex Parte Application for Order Sealing Document; Declaration of Vicki Chou [Under Seal]; [Proposed] Order Sealing Document [Under Seal]; Government's Filing [Under Seal] filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 04/11/2016)
193 NOTICE of Manual Filing of NOTICE OF ERRATA TO DEFENDANT KEITH GARTENLAUB'S EXHIBIT J FILED AS AN ATTACHMENT ON APRIL 4, 2016, TO DEFENDANTS OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT AND SENTENCING MEMORANDUM; filed by Defendant Keith Preston Gartenlaub (Werksman, Mark) (Entered: 04/11/2016)
194 NOTICE of Manual Filing of Government's Filing [Under Seal Pursuant to 18 USC § 3509(d)] filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Chou, Vicki) (Entered: 04/11/2016)
195 GOVERNMENT'S POSITION REGARDING RESTITUTION; DECLARATION OF VICKI CHOU; EXHIBIT filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub Re: Notice of Manual Filing (G92) 194 (Chou, Vicki) (Entered: 04/11/2016)
200 SEALED DOCUMENT - NOTICE OF ERRATA TO DEFENDANT KEITH GARTENLAUB'S EXHIBIT "J" FILED AS AN

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ATTACHMENT ON APRIL 4, 2016 9 TO DEFENDANT'S OBJECTIONS TO THE PRE-SENTENCE INVESTIGATION REPORT AND SENTENCING MEMORANDUM. (lom) (Entered: 04/14/2016)
201 SEALED DOCUMENT - EXHIBIT A TO RESTITUTION REQUEST. (Attachments: # 1 Part 2, # 2 Part 3)(lom) (Entered: 04/14/2016)
196 SCHEDULING NOTICE ADVANCED by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. The 4/18/2016 NOTICE OF MOTION AND MOTION to Vacate Multiplicitous Counts 179 , and Sentencing is advanced from 2:30 PM to 1:30 PM before Judge Christina A. Snyder. NOTE: TIME CHANGE ONLY. Defendant is ordered to be present on 4/18/2016 at 1:30 PM, unless advised otherwise by his attorney of record. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(cj) TEXT ONLY ENTRY (Entered: 04/12/2016)
197 SEALED DOCUMENT - GOVERNMENT'S EX PARTE APPLICATION FOR ORDER SEALING DOCUMENT; DECLARATION OF VICKI CHOU. (lom) (Entered: 04/14/2016)
198 SEALED DOCUMENT - ORDER SEALING DOCUMENT (lom) (Entered: 04/14/2016)
199 SEALED DOCUMENT - EXHIBITS A-B TO DECLARATION OF VICKI CHOU. (lom) (Entered: 04/14/2016)
202 MINUTES OF DEFENDANT'S MOTION TO VACATE MULTIPLICITOUS COUNTS (Filed 02/10/16) 179 ; SENTENCING (Continued) hearing held before Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. Hearing held and Counsel are present. Tentative provided. The Court confers with counsel argue, as stated in Court and on the record. The Court takes defendant's motion under submission. After the Court issues its ruling, the Court will either set a Status Conference or reset defendant's Sentencing. Court Reporter: Laura Elias. (lom) (Entered: 04/25/2016)
203 TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings held on 12/9/15. Court Reporter: 12/9/15 AM and PM Sessions, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 6/10/2016. Redacted Transcript Deadline set for 6/20/2016. Release of Transcript Restriction set for 8/18/2016.(Gackle, Deborah) (Entered: 05/20/2016)
204 NOTICE OF FILING TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings 12/9/15 AM and PM Sessions re Transcript 203 THERE IS NO PDF DOCUMENT ASSOCIATED WITH

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THIS ENTRY.(Gackle, Deborah) TEXT ONLY ENTRY (Entered: 05/20/2016)
205 TRANSCRIPT PM filed as to Defendant Keith Preston Gartenlaub for proceedings held on 12/8/15 PM Session. Court Reporter: Deborah Gackle, phone number (213) 620-1149. Transcript may be viewe at public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 6/10/2016. Redacted Transcript Deadline set for 6/20/2016. Release of Transcript Restriction set for 8/18/2016.(Gackle, Deborah) (Entered: 05/20/2016)
206 NOTICE OF FILING TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings 12/8/15 PM Session re Transcript 205 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(Gackle, Deborah) TEXT ONLY ENTRY (Entered: 05/20/2016)
207 MINUTES OF IN CHAMBERS ORDER by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. The Court DENIES Defendant's Motion to Set Aside the Verdict, or in the Alternative, for a New Trial 172 . The Court GRANTS Defendant's Motion to Vacate Multiplicitous Counts 179 . The Court requests supplemental briefing regarding which countpossession of child pornography or receipt of child pornographythe Court should vacate. The Government shall submit its supplemental briefing no later than 7/11/2016. Defendant may submit a reply no later than 7/18/2016. See document for further details. (gk) (Entered: 07/01/2016)
208 GOVERNMENT'S SUPPLEMENTAL BRIEFING REGARDING VACATING LESSER INCLUDED OFFENSE re NOTICE OF MOTION AND MOTION to Vacate Multiplicitous Counts 179 filed by Plaintiff USA as to Defendant Keith Gartenlaub. (Chou, Vicki) (Entered: 07/11/2016)
209 SUPPLEMENTAL INFORMATION filed by Defendant Keith Preston Gartenlaub RE: Motion Related Document 208 (Werksman, Mark) (Entered: 07/18/2016)
210 MINUTES (IN CHAMBERS) - ORDER RE: SUPPLEMENTAL BRIEFING RE: VACATING LESSER INCLUDED OFFENSE by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. On 6/30/2016, the Court granted defendant's Motion to Vacate Multiplicitous Counts 207 and found that at least one of the counts under which defendant was convicted should be vacated. The Court requested supplemental briefing regarding whether the Court should vacate defendant's conviction for receipt of child pornography (Count 1) or defendant's conviction for possession of child pornography (Count 2).

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The Court finds that defendant's transgressions warrant a lesser penalty. The Court, therefore, VACATES defendant's conviction for receipt of child pornography. The Court sets a Sentencing hearing in this matter for 8/29/2016 01:00 PM before Judge Christina A. Snyder. (gk) (Entered: 08/03/2016)
215 MINUTES OF SENTENCING Hearing held before Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub (1), Count(s) 2, Defendant is committed on Count 2 of the 2-Count Indictment to the Bureau of Prisons for 41 months. Supervised release for a term of life under the terms and conditions of the U. S. Probation Office, General Order 05-02, and General Order 01-05, including the three special conditions delineated in General Order 01-05. Special assessment of $100. All fines are waived. Restitution in the total amount of $3,430. Defendant to surrender not later than 10/31/2016. Bond exonerated upon surrender. Defendant advised of right of appeal. Defendant's oral motion to remain on bond pending appeal is hereby denied. The Court supports defendant's request to travel to Bakersfield beginning on 9/2/2016, and returning 9/5/2016. Counsel shall submit a Proposed Order forthwith, for the Court's approval. Court Reporter: Laura Elias. (gk) (Entered: 09/07/2016)
214 ORDER PERMITTING DEFENDANT KEITH GARTENLAUB TO TRAVEL TO BAKERSFIELD, CALIFORNIA by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. IT IS HEREBY ORDERED that defendant Keith Gartenlaub shall be permitted to permission to travel to the Bakersfield, California area within the Eastern District of California from 9/2/2016 to 9/4/2016. (gk) (Entered: 09/06/2016)
216 JUDGMENT AND COMMITMENT by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub (1), Count(s) 2, Defendant is committed on Count 2 of the 2-Count Indictment to the Bureau of Prisons for 41 months. Supervised release for a term of life under the terms and conditions of the U. S. Probation Office, General Order 05-02, and General Order 01-05, including the three special conditions delineated in General Order 01-05. Special assessment of $100. All fines are waived. Restitution in the total amount of $3,430. Defendant to surrender not later than 10/31/2016. Bond exonerated upon surrender. Defendant advised of right of appeal. Defendant's oral motion to remain on bond pending appeal is hereby denied. (gk) (Entered: 09/07/2016)
218 NOTICE OF MOTION AND MOTION to Withdraw as Attorney of Record by MARK J. WERKSMAN Filed by Defendant Keith Preston Gartenlaub. Motion set for hearing on 9/12/2016 at 01:30 PM before Judge Christina A. Snyder. (Attachments: # 1 Proposed Order) (Werksman, Mark) (Entered: 09/08/2016)

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219 MOTION and Affidavit to Appeal In Forma Pauperis Filed by Defendant Keith Preston Gartenlaub. (mat) (Entered: 09/09/2016)
220 NOTICE OF APPEAL to Appellate Court filed by Defendant Keith Preston Gartenlaub re Judgment and Commitment 216 . Filed on: 9/6/16; Entered on: 9/7/16; In forma pauperis is pending. (mat) (Entered: 09/09/2016)
221 SCHEDULING NOTICE CONTINUED by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub, re: NOTICE OF MOTION AND MOTION to Withdraw as Attorney of Record by MARK J. WERKSMAN 218 , previously scheduled for 9/12/2016 at 1:30 PM has been rescheduled, due to improper notice. Motion hearing is continued to 10/17/2016 at 1:30 PM before Judge Christina A. Snyder. Defendant is ordered to be present on 10/17/2016 at 1:30 PM, unless advised otherwise by his attorneys of record. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(cj) TEXT ONLY ENTRY (Entered: 09/09/2016)
222 NOTIFICATION by Circuit Court of Appellate Docket Number 1650339 as to Defendant Keith Preston Gartenlaub, 9th Circuit regarding Notice of Appeal to USCA - Final Judgment 220 . (mat) (Entered: 09/12/2016)
223 ORDER by Judge Christina A. Snyder: granting 219 MOTION for Leave to Appeal In Forma Pauperis as to Keith Preston Gartenlaub (1) (mat) (Entered: 09/13/2016)
224 COMPACT DISC Order as to Defendant Keith Preston Gartenlaub Court will contact Tor Ekeland at Tor@torekeland.com with any questions regarding this order. Transcript portion requested: FEE NOT PAID.(at) (Entered: 09/27/2016)
225 TRANSCRIPT ORDER re: Court of Appeal case number 16-50339, Hearing Date: 12/4/15, as to Defendant Keith Preston Gartenlaub, , for Court Reporter. Order for: Criminal Appeal. Criminal case appeal. Transcript preparation will not begin until payment has been satisfied with the court reporter.(ha) (Entered: 09/28/2016)
226 TRANSCRIPT ORDER re: Court of Appeal case number 16-50339, Hearing Date: 8/6/15, as to Defendant Keith Preston Gartenlaub for Court Reporter. Order for: Criminal Appeal. Criminal case appeal. Transcript preparation will not begin until payment has been satisfied with the court reporter.(ha) (Entered: 09/28/2016)
227 TRANSCRIPT ORDER re: Court of Appeal case number 1650339,Hearing Dates: 8/29/16, 4/18/16, 11/16/15 & 11/23/15. as to Defendant Keith Preston Gartenlaub for Court Reporter. Order for: Criminal Appeal. Criminal case appeal. 60 day deadline automatically set.

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Transcript preparation will not begin until payment has been satisfied with the court reporter.(ha) (Entered: 09/28/2016)
228 SCHEDULING NOTICE VACATED by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub, previously scheduled for 10/17/2016 at 1:30 PM has been terminated. The Court finds this motion appropriate for decision without oral argument. Local Rule 7-15. Accordingly, the hearing date of 10/17/2016, is hereby vacated, and the matter is hereby taken under submission. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(cj) TEXT ONLY ENTRY (Entered: 09/29/2016)
229 ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL OF RECORD by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. The Court hereby grants the Motion for Werksman Jackson Hathaway & Quinn and Mark J. Werksman to withdraw as counsel in this matter 218 . IT IS HEREBY ORDERED that: Motion to Withdraw as Counsel of Record for KEITH PRESTON GARTENLAUB is granted. Werksman Jackson Hathaway &Quinn is hereby relieved as counsel of record for Keith Preston Gartenlaub and no longer represents him as counsel of record in this action. A copy of this Order shall be served on Mr. Gartenlaub by Werksman Jackson Hathaway & Quinn. (gk) (Entered: 09/30/2016)
230 STIPULATION for Order AUTHORIZING ACCESS TO DISCOVERY AND SEALED FILINGS filed by Plaintiff USA as to Defendant Keith Preston Gartenlaub (Attachments: # 1 Proposed Order)(Lewis, Anthony) (Entered: 10/20/2016)
231 STIPULATED PROTECTIVE ORDER AUTHORIZING ACCESS TO DISCOVERY AND SEALED FILINGS by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub, re Stipulation for Order 230 . (pj) (Entered: 10/25/2016)
232 TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings held on August 6, 2016 at 11:38 a.m. Court Reporter: PAT CUNEO CSR 1600, OFFICIAL REPORTER, website www.patcuneo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 11/22/2016. Redacted Transcript Deadline set for 12/2/2016. Release of Transcript Restriction set for 1/30/2017.(Cuneo, Patricia) (Entered: 11/01/2016)
233 NOTICE OF FILING TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings August 6, 2016 at 11:38 a.m. re Transcript 232 THERE IS NO PDF DOCUMENT ASSOCIATED WITH

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THIS ENTRY.(Cuneo, Patricia) TEXT ONLY ENTRY (Entered: 11/01/2016)
234 ORDER of USCA filed as to Defendant Keith Preston Gartenlaub re Notice of Appeal to USCA - Final Judgment 220 , CCA #16-50339. On September 13, 2016, and September 14, 2016, retained counsel Tor Ekeland, Esq., and John D. Cline, Esq., entered their appearance as counsel of record for this appeal. Within 14 days after the date of this order, appellant shall show cause [See document for complete details] Appellant's motion for bail pending appeal (Docket Entry No. 7) will be addressed by separate order. (mat) (Entered: 11/02/2016)
235 TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings held on 12/04/15 10:42 a.m.. Court Reporter/Electronic Court Recorder: Katie Thibodeaux, CSR, RPR, CRR, phone number www.katiethibodeaux.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/13/2016. Redacted Transcript Deadline set for 12/23/2016. Release of Transcript Restriction set for 2/21/2017.(Thibodeaux, Katie) (Entered: 11/22/2016)
236 NOTICE OF FILING TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings 12/04/15 10:42 a.m. re Transcript 235 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(Thibodeaux, Katie) TEXT ONLY ENTRY (Entered: 11/22/2016)
237 ORDER of USCA filed as to Defendant Keith Preston Gartenlaub re Notice of Appeal 220 , CCA #16-50339. This appeal is remanded to the district court for the limited purpose of enabling that court to state, orally or in writing, the reasons for its order denying appellants motion for bail pending appeal. The district court shall provide the oral or written statement within 10 days after the date of this order. The (9TH CCA) Clerk shall serve this order on the district judge. [See document for all details] (mat) (Entered: 11/22/2016)
238 TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings held on Nov. 16, 2015. phone number Laura Elias. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/29/2016. Release of Transcript Restriction set for 2/27/2017.(Elias, Laura) (Entered: 11/28/2016)

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239 TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings held on Nov. 23, 2015. phone number Laura Elias. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/29/2016. Release of Transcript Restriction set for 2/27/2017.(Elias, Laura) (Entered: 11/28/2016)
240 TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings held on April 18, 2016. phone number Laura Elias. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/29/2016. Release of Transcript Restriction set for 2/27/2017.(Elias, Laura) (Entered: 11/28/2016)
241 TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings held on August 29, 2016. phone number Laura Elias. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/29/2016. Release of Transcript Restriction set for 2/27/2017.(Elias, Laura) (Entered: 11/28/2016)
242 NOTICE OF FILING TRANSCRIPT filed as to Defendant Keith Preston Gartenlaub for proceedings Nov. 16, 2015, Nov. 23, 2015, April 18, 2016 and August 29, 2016 re Transcript 241 , 240 , 239 , 238 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(Elias, Laura) TEXT ONLY ENTRY (Entered: 11/28/2016)
243 MINUTES (IN CHAMBERS) - DENIAL OF BAIL PENDING APPEAL by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. On 11/22/2016, the Court of Appeals for the Ninth Circuit remanded this matter and ordered the Court to state the reasons for its order denying Gartenlaub's motion for bail pending appeal 237 . During the sentencing hearing, counsel for defendant requested that Gartenlaub not be required to surrender, but instead be granted bail pending his appeal 215 . The Court denied bond. 18 U.S.C. 3143(b)(1)(A) requires that defendant show, by clear and convincing evidence, that he is not likely to flee. See Wheeler, 795 F.2d at 840. The Court finds that defendant has failed to make such a showing. Accordingly, defendants application for bail pending appeal is DENIED. (gk) (Entered: 11/28/2016)

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244 ORDER of USCA filed as to Defendant Keith Preston Gartenlaub re Notice of Appeal 220 , CCA #16-50339. Appellant's in forma pauperis status is revoked. The (9th CCA) Clerk shall amend this courts docket to reflect the fee status for this appeal as due. Within 14 days after the date of this order, appellant shall pay to the district court the $505.00 filing and docketing fees for this appeal and shall provide proof of such payment to this court. Failure to pay the fees may result in the dismissal of the appeal for failure to prosecute. [See document for all details] (mat) (Entered: 12/09/2016)
APPEAL FEES PAID as to Defendant Keith Preston Gartenlaub, re: Notice of Appeal to USCA - Final Judgment 220 ; Receipt Number RS008285 in the amount of $505. (lmu) (Entered: 12/19/2016)
245 ORDER of USCA filed as to Defendant Keith Preston Gartenlaub re Notice of Appeal to USCA 220 CCA #16-50339. Appellant's motion for bail pending appeal is denied. [See document for more details] (mat) (Entered: 01/13/2017)
246 MINUTES OF IN CHAMBERS ORDER by Judge Christina A. Snyder: as to Defendant Keith Preston Gartenlaub.On November 28, 2016, the Court of Appeals for the Ninth Circuit denied bail pending appeal 243 . The Court is also in receipt of defense counsels letter (attached hereto). It is further ordered that the defendant surrender himself to the institution designated by the Bureau of Prisons on or before 12 noon, January 31, 2017. In the absence of suchdesignation, the defendant shall report on or before the same date and time, to the United States Marshal located at: Roybal Federal Building, 255 East Temple Street, Los Angeles, California 90012. The Court hereby recommends that defendant be designated to the Federal Correctional Institute at Terminal Island. (lc) (Entered: 01/20/2017)
247 MINUTES OF IN CHAMBERS ORDER by Judge Christina A. Snyder as to Defendant Keith Preston Gartenlaub. The Court is in receipt of defense counsel's letter (attached hereto), requesting a stay of defendant's self-surrender date, which is currently on or before 12, noon, 1/31/2017. The government does not oppose defendant's request. The Court grants a 14 day stay of defendant's self-surrender date. It is ordered that the defendant surrender himself on or before 12 noon, 2/14/2017. (gk) (Entered: 01/30/2017)
248 VERIFICATION OF SURRENDER as to Keith Preston Gartenlaub. The defendant was ordered to self-surrender to begin serving their sentence of imprisonment on 2/14/2017. The bond may be exonerated pending the verification as to whether the defendant is being electronically monitored by the U.S. Probation Office; confined to the custody of the Bureau of Prisons; or completed their jail time. As of 2/14/2017, it was verified the defendant has surrendered to the Bureau of Prisons. (gk) (Entered: 02/22/2017)

02/24/2017
03/07/2017 03/16/2017 10/02/2018 12/17/2018
01/28/2019 04/22/2020 04/23/2020 08/24/2020

BOND REMARK: Property Reconveyance Packet forwarded to Administration re defendant Keith Preston Gartenlaub for processing of property owners Abraham Shapiro regarding property 5415 S. Dover Street, Unit 102, Denver, CO 80123-0746 and instrument number 2014113526. (lt) (Entered: 02/24/2017)
BOND REMARK: Deed of Trust package with the Certified Letter mailed to Property Owner Abraham Shapiro re instrument number 2014113526 re defendant Keith Preston Gartenlaub.(vr) (Entered: 03/07/2017)
249 BOND REMARK: Return receipt filed re instrument number 2014113526, signed by (First Name Illegible) Shapiro, No date indicated of date of delivery as to defendant Keith Preston Gartenlaub. (ghap) (mgu). (Entered: 03/16/2017)
250 MEMORANDUM of USCA filed as to Defendant Keith Preston Gartenlaub re Notice of Appeal to USCA - Final Judgment 220 , CCA #16-50339. The decision of the District Court is AFFIRMED. (es) (Entered: 10/04/2018)
251 MANDATE of the 9th CCA filed as to Defendant Keith Preston Gartenlaub re Notice of Appeal to USCA - Final Judgment 220 , CCA #16-50339. The judgment of this Court, entered October 02, 2018, takes effect this date.This constitutes the formal mandate of this Court issued pursuant to Rule41(a) of the Federal Rules of Appellate Procedure. [See USCA MEMORANDUM 250 AFFIRMED.] (mat) (Entered: 12/18/2018)
253 PROBATION FORM 12 as to Defendant Keith Preston Gartenlaub, ORDER OF THE COURT by Judge Christina A. Snyder: MODIFICATION. (lc) (Entered: 01/29/2019)
254 NOTICE OF MOTION to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (28 USC 2255) (Civil Case No. 2:20-cv03711-ODW) Filed by Defendant Keith Preston Gartenlaub. (jtil) (Entered: 04/23/2020)
255 NOTICE OF ASSIGNMENT to District Judge Otis D. Wright, II for motion filed under 28 U.S.C. 2255. (jtil) (Entered: 04/23/2020)
256 MINUTES OF IN CHAMBERS ORDER by Judge Otis D. Wright, II: as to Defendant Keith Preston Gartenlaub by Judge Otis D. Wright, II: On April 30, 2020, counsel for Petitioner applied to appear in this matter pro hac vice (2:20-cv-03711-ODW ECF No.7). The Clerk of Court issued a Notice of Deficiency on May 1, 2020, on the basis that the application failed to identify local counsel with an office within this District (ECF No. 8). Also on May 1, 2020, the Clerk issued a Notice of Clerical Error explaining that the Notice of Deficiency had been issued in error (ECF No. 9). An application to appear pro hac vice must be accompanied by a certificate of good standing from each state bar in which the applicant is a

member, issued no more than 30 days before filing the application. C.D. Cal. L.R. 83-2.1.3.3. Here, the Certificate of Good Standing attached to the application is dated March 12, 2020, which is more than 30 days before the date the application was filed. Accordingly, the Court STRIKES the application filed at ECF No. 7, and the applicant is hereby ORDERED to resubmit a new application. The filing fee shall not be refunded, but the applicant need not submit a new fee with the new application. (lc) (Entered: 08/25/2020)

PACER Service Center Transaction Receipt

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 Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 1 of 19 Page ID #:1

AO 9 1 (Rev. 11 /82)

CRIMINAL COMPLAINT

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UNITED STATES DISTRICT COURT UNITED STATES OF AMERICA

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v. KEITH PRESON GARTENLAUB

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Complaint for violation of Title 18, United States Code, Section 2252A(a)(5)(B)

NAME OF MAGISTRATE JUDGE
HONORABLE JAY C. GANDHI

UNITED STATES MAGISTRATE JUDGE

LOCATION
Santa Ana, California

DATE OF OFFENSE
January 29, 2014

PLACE OF OFFENSE
Orange County

ADDRESS OF ACCUSED (IF KNOWN)

COMPLAINANT'S STATEMENT OF FACTS CONSTITUTING THE OFFENSE OR VIOLATION:
18 U.S.C. § 2252A(a)(5)(B) On or about January 29, 2014, in Orange County, within the Central District of California, in a matter within the jurisdiction of the Federal Bureau oflnvestigation ("FBI"), defendant Keith Preston Gartenlaub knowingly possessed child pornography.

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BASIS OF COMPLAINANT'S CHARGE AGAINST THE ACCUSED:
(See attached affidavit which is incorporated as part of this Complaint)

N/A MATERIAL WITNESSES IN RELATION TO THIS CHARGE:

Being duly sworn, I declare that the foregoing is true and correct to the best of my knowledge.

SIGNATURE OF COMPLAINANT
KENNETH F. COOPER

/s/

OFFICIAL TITLE
Special Agent - FEDERAL BUREAU OF INVESTIGAITON

Sworn to before me and subscribed in my presence,

siGNATUREOFMAGISTRATEJUDj~y C. Gandhi

(I) See Federal Rules of Cnmmal Procedure 3 and 54

..' ,

AUSA Anthony J. Lewis I Aaron Lewis xl786/4586 REC: Detention

DATE
August 27, 2014

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 2 of 19 Page ID #:2

A F F I DAV I T I, KENNETH F. COOPER, being duly sworn, do hereby depose and state:
I. INTRODUCTION 1. I am a Special Agent ("SA") with the Federal Bureau of Investigation ("FBI"), and I have been so employed for approximately eight years. During my career as a Special Agent, I have investigated violations of federal law related to crimes against children, bank robberies, counterterrorism, and counterintelligence. I have also participated in investigations conducted by the Organized Crime Drug Enforcement Task Force ("OCDETF"), and the Safe Streets Task Force ("SSTF"). Currently, I conduct investigations related to computer intrusions, commonly referred to as "hacking." During my time as an F.B.I. Special Agent, I have directed or participated in the execution of child pornography and child prostitution search warrants and arrests.
II. PURPOSE OF AFFIDAVIT 2. This affidavit is made in support of a criminal complaint and arrest warrant charging KEITH GARTENLAUB ("GARTENLAUB") with a violation of Title 18, United States Code, Section 2252A(a) (5) (B) (possession of child pornography) . 1

1

"Child pornography" is defined for § 2252A in

§ 2256(8) as any visual depiction, including any photograph,

film, video, picture, or computer or computer generated image or

picture, whether made or produced by electronic, mechanical, or

other means of sexually explicit conduct involving the use of a

minor engaged in said conduct. "Sexually explicit conduct" is

1

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 3 of 19 Page ID #:3

3. The facts set forth in this affidavit are based on my personal observations, my training and experience, and information obtained from various law enforcement personnel and witnesses. This affidavit is intended to show that there is sufficient probable cause for the requested criminal complaint and does not purport to set forth all of my knowledge of or investigation into this matter. Unless specifically indicated otherwise, all dates noted in this affidavit are on or about the date listed.
III. SUMMARY OF INVESTIGATION A. Summary of Probable Cause
4. On January 29, 2014, and January 30, 2014, agents conducted a court-authorized search without notice to the residents of 95 Danbury Lane, a house located in Irvine, California (the "Danbury Residence"), where KEITH GARTENLAUB ("GARTENLAUB") 2 then resided with his wife, Tess Yi (a.k.a. Tess Gartenlaub). During the search, agents obtained forensic images

defined for§ 2252A in§ 2256(2) and includes sexual intercourse, including oral-genital or anal genital, whether between persons of the same gender or different genders, or the lascivious exhibition of the genitals or pubic area of any person.

2

GARTENLAUB works in the information technology group

of a large corporation, and has worked there for several years.

Specifically, GARTENLAUB works as an application administrator

for several computer applications that run in Unix or Microsoft

Windows operating system environments. GARTENLAUB thus

regularly works with computers running Windows or Unix operating

systems and is highly proficient with computers running either

of these operating systems.

2

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 4 of 19 Page ID #:4
and copies of multiple hard drives and other digital devices. Subsequent analysis of these forensic images revealed that three of the hard drives contained child pornography. As explained in detail below, the locations of the video files within the overall file structure of the hard drives indicated that they belonged to GARTENLAUB. B. GARTENLAUB Lived at the Danbury Residence in January 2014
5. Documents obtained pursuant to a search warrant for the e-mail account "Kgartenlaub@yahoo.com" indicated that GARTENLAUB and his wife, Yi, lived at the Danbury Residence until March 2014. Among other documents, agents obtained:
a. A property insurance policy for the Danbury Residence, dated August 21, 2009, and bearing the notarized signatures of Keith and Tess Gartenlaub;
b. A loan application dated April 24, 2013, in the name of "Tess Gartenlaub." The application identifies "Keith Gartenlaub" as Tess Gartenlaub's spouse and indicates that their address was the Danbury Residence. The application contains Tess Gartenlaub's social security number and date of birth, as well as GARTENLAUB's social security number and date of birth;
c. A credit report dated April 24, 2013, prepared for "Keith P. Gartenlaub." The report indicated that Keith Gartenlaub's address was the Danbury Residence, and accurately identified his employer. The report also contains GARTENLAUB's correct year of birth, as well as accurate identification
3

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 5 of 19 Page ID #:5
numbers for several financial accounts in GARTENLAUB's name; and,
d. A lease agreement dated May 1, 2013, between Keith and Tess Gartenlaub and another person, for a commercial property in Laguna Beach, California, that is the location of a business jointly owned by Tess Gartenlaub and GARTENLAUB.
6. Records provided by Cox Communications indicated that "Keith Gartenlaub" maintained a subscription for Internet service at the Danbury Residence, as of January 8, 2014.
7. Based on physical surveillance conducted by the F.B.I. on and after March 30, 2014, described below, I believe that GARTENLAUB no longer resides at the Danbury Residence. In addition, based on physical surveillance on multiple occasions in July and August 2014, I believe that GARTENLAUB and his wife Tess Yi now reside at 22956 Caminito Rio, Laguna Hills, California. C. Search Revealed Hard Drives Containing Child Pornography
8. During the January 2014 searches of the Danbury Residence the F.B.I. obtained digital or forensic images3 of the files stored ,on multiple hard drives and other digital devices, although the digital devices themselves were not seized.

3

A forensic image or digital image is a copy of the

files saved on a digital device, like a computer hard drive. By

examining the image of a hard drive, a forensic examiner can

determine what files were stored on the hard drive at the time

the image was made.

4

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 6 of 19 Page ID #:6

9. Two of these forensic images were obtained from hard drives installed in a Dell Optiplex GX270 mini-tower computer. The first hard drive was a Hitachi brand hard drive, model number IC35L090AVV207-0, serial number VNVC02G3GU6EMT (hereinafter "the Hitachi hard drive"). The second hard drive was a Western Digital brand hard drive, model number 1600JBOOGVAO, serial number WCAL91235199 (hereinafter "the Western Digital hard drive"). A third copy that was not a forensic image was obtained from a hard drive installed in a different desktop computer, an Acer Desktop AME600-UR378. The third hard drive was a two-terabyte, Seagate brand hard drive, model number ST200DM001-1CH164, serial number ZlE2DAMG (hereinafter "the Seagate hard drive") . 4

1. Child Pornography on the Hitachi hard drive and the Western Digital hard drive (Dell Optiplex Computer)
10. An examination of the forensic images of the Hitachi
and Western Digital hard drives revealed that both hard drives
contained a folder labeled "OrigData," which contained nearly-

4

Based on my training and experience and discussions

with other special agents, I know that personal computer

suppliers, like Dell and Acer, often incorporate component parts

manufactured by other suppliers of computer parts. For example,

Dell, a computer supplier, may use hard drives manufactured by

other companies, like Hitachi or Western Digital, in the

computers it sells. Similarly, a computer user can also connect

additional hard drives to a computer after purchasing it.

Because the forensic images made were made of the storage media-

-i.e., the hard drives--it is the contents of the storage media

that are described herein. Based on and my discussions with an

agent who was present, the hard drives identified above were

connected to the two respective desktop computers--one made by

Dell and one made by Acer--described above.

5

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 7 of 19 Page ID #:7
identical collections of child pornography (as discussed in greater detail below, the Seagate hard drive also contained child pornography, specifically copies of nearly the same child pornography collections stored on the Hitachi and Western Digital hard drives). For example, the following video files were saved on both the Hitachi hard drive and the Western Digital hard drive (and, as described below, copies of these files were also found on the Seagate hard drive):
a. "VickycompleteR.mpg," which depicts a prepubescent girl orally copulating an adult male, among other sexually explicit conduct. The girl is approximately 10 to 12 years old. The video is approximately 10 minutes long. It was saved in a folder labeled "vi" on both· the Hitachi hard drive and the Western Digital hard drive;
b. "childfuck.mpg," which depicts a prepubescent girl lying on a table, while an adult male penetrates her anus and vagina with his finger. The girl is approximately 10 to 12 years old. The video is approximately 1 minute, 30 seconds long. It was saved in a folder labeled "anp" on both the Hitachi hard drive and Western Digital hard drive;
c. "R@ygold'sSleepingBeauty(1) .mpg," which depicts a prepubescent girl whose genitals are exposed, being touched by an adult male's penis. The girl, who is approximately 10 to 12 years old, is completely naked and appears to be unconscious. The video is approximately four minutes long. It was saved in a
6

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 8 of 19 Page ID #:8
folder labeled "yg" on both the Hitachi hard drive and the Western Digital hard drive;
d. "R@ygoldStyle-VickyCompilation(14m58s) .asf," which depicts a prepubescent girl orally copulating an adult male, among other sexually explicit conduct. The girl is approximately 10 to 12 years old. During part of the video, the girl's hands and feet bound by rope. A separate piece of rope, tied around the girl's neck, connects to the rope binding her ankles together. The video is approximately 14 minutes long. It was saved in a folder labeled "vi" on both the Hitachi hard drive and the Western Digital hard drive;
e. "R@ygoldstylebabyjgod.mpg," which depicts a prepubescent girl's genitals being penetrated by an adult male's penis, while her ankles ire restrained by rope. The video is approximately 1 minute, 30 seconds long. It was saved in a folder labeled "anp" on both the Hitachi hard drive and the Western Digital hard drive;
f. "R@ygoldpeggy.avi," which contains four scenes depicting two prepubescent children, a boy and a girl, engaged in sexually explicit conduct. The girl and the boy are both approximately 10 to 12 years old. The first scene depicts the girl's genitals being penetrated by an adult male. The second scene depicts the girl orally copulating the boy. The third scene depicts the boy orally copulating the girl. The fourth scene depicts the boy and girl orally copulating an adult male. The video is approximately 12 minutes long. It was saved in a
7

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 9 of 19 Page ID #:9
folder labeled "BAD" on both the Hitachi hard drive and the Western Digital hard drive;
g. "BabyJ-su.avi," which depicts a prepubescent girl's genitals being penetrated by an adult male. The girl is approximately six to eight years old. The video is approximately 1 minute long. It was saved in a folder labeled "yg" on both the Hitachi hard drive and the Western Digital hard drive; and
h. "BabyJ-Hole.avi," which depicts a prepubescent girl being fondled and then vaginally penetrated by an adult male. The girl is approximately six to eight years old. The video is approximately 1 minute, 30 seconds long. It was saved in a folder labeled "yg" on both the Hitachi hard drive and the Western Digital hard drive.
11. In addition to being stored in the OrigData folders saved on the Hitachi and Western digital hard drives, each of the videos described above was also stored in the two OrigData folders saved on the Seagate hard drive.
12. On June 3, 2014, I sent a DVD containing videos of suspected child pornography obtained from the Hitachi, Western Digital, and Seagate hard drives to the National Center for Exploited Children ("NCMEC") . NCMEC reported that some of the video files contained images of identified minor victims, including four of the files identified above, specifically: "VickycompleteR.mpg," "R@ygoldStyleVickyCompilation(14m58s) .asf," "R@ygoldpeggy.avi," and "BabyJ-
8

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 10 of 19 Page ID #:10
su.avi." NCMEC also reported that many of the video files depicting an identified victim had been investigated outside of California, indicating that the video files traveled in interstate or foreign commerce because they were found on hard drives located in California.
2. Child Pornography on the Seagate hard drive (Acer Desktop AME600-UR378 Computer)
13. An examination of the copy of the Seagate hard drive, the storage drive for the Acer desktop computer, revealed that it, too, contained child pornography. One of the folders saved on the Seagate hard drive was labeled "edrive." Among other files, the edrive folder contained an identical copy of the OrigData folder saved on the Hitachi hard drive, including each of the video files described above in paragraph 10. Similarly, another one of the folders saved on the Seagate hard drive was labeled "fdrive." The fdrive folder contained an identical copy of the OrigData folder saved on the Western Digital hard drive, including each of the video files described above in paragraph 10.
14. An e-mail obtained pursuant to court-authorized surveillance of the e-mail account: "Kgartenlaub@yahoo.com" indicated that GARTENLAUB bought the computer containing the Seagate hard drive, an Acer Desktop AME600-UR378, on October 10, 2013, from Costco.com. Because identical copies of the OrigData folders saved on the Hitachi hard drive and the Western Digital hard drive were found on the Seagate hard drive, the OrigData
9

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 11 of 19 Page ID #:11
folders must have been copied to the Seagate hard drive after October 10, 2013, when GARTENLAUB ordered the computer that contained the Seagate hard drive. Because the OrigData folders contained files that appear to have been created by GARTENLAUB (described below in Part D), I suspect that GARTENLAUB copied the OrigData folders, including the video files described above in paragraph 10 to the Seagate hard drive. D. Search Results Indicate That GARTENLAUB Stored the Child
Pornography Found During the Search 1. GARTENLAUB's Personal Documents and Communications 15. In addition to child pornography, each of the OrigData folders saved to the hard drives also contained a subfolder labeled "OldSystem" containing more than a dozen documents that appear to have been written by GARTENLAUB, some as early as 1997. For example, each of the "OldSystem" folders contained the following files:
a. A document saved as "American.doc," dated September 16, 1997, which is a letter from GARTENLAUB to American Airlines regarding the airline's customer service;
b. A document saved as "deltabitch.doc," dated September 29, 1997, which is a letter from GARTENLAUB to Delta Airlines regarding the airline's customer service;
c. A document saved as "creditbureu2.doc," dated August 7, 1999, which is a letter from GARTENLAUB to the Trans Union Corporation. The letter includes GARTENLAUB's social security number, and previous phone number, and address.
10

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 12 of 19 Page ID #:12
16. An examination of the forensic images and copies obtained from the hard drives also revealed a saved copy of an e-mail that GARTENLAUB sent to a coworker on July 3, 2002. The e-mail, which was not sent from "Kgartenlaub@yahoo.com," contained three attachments. The recipient, at an e-mail address with a domain associated with GARTENLAUB's employer, replied in part "Thanks Keith." The e-mail that GARENTLAUB sent in response was signed "Keith" and contained GARTENLAUB's previous home telephone number.
17. An examination of the forensic images and copies obtained from the hard drives found no files or documents within the OrigData folders, or among its contents, that appeared to have been created, modified, or accessed by Tess Yi. For example, a separate folder called "Data" on the Hitachi hard drive contained folders for "Keith," "Owner," and "Tess." The folder~ labeled "Keith" and "Tess" each contained files that appeared to correspond to GARTENLAUB and Tess Yi respectively, such as photographs or other documents. (The "Owner" account contained no files.) The OrigData folder was stored in a different folder that did not appear to contain any files corresponding to Yi. Moreover, as explained below, the files contained in the OrigData folders had been saved in a way that suggests that GARTENLAUB organized them.
11

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 13 of 19 Page ID #:13
2. GARTENLAUB's Concealment of Child Pornography in Disguised Folder Locations
18. In addition to this evidence showing that GARTENLAUB used the computers that contained each of the hard drives, there is additional evidence showing that GARTENLAUB was the one who stored and organized the child pornography found in the ~origData" folders stored on the hard drives. Each of the OrigData folders was stored within several other folderp, suggesting that the person who saved the child pornography to the hard drives deliberately stored it where it would not be discovered easily or by accident. For the reasons set forth herein, the evidence shows that this person was GARTENLAUB.
19. Each of the child pornography files described in paragraph 10 had been hidden below several additional layers of file folders contained within the OrigData folders, which further shows that GARTENLAUB saved the child pornography in a manner that would help to conceal it. For example, as described above, on the Western Digital hard drive the child-pornography file ~R@ygoldstylebabyjgod.mpg," was saved in a folder labeled ~anp." This folder was one of several stored in a folder labeled ~tmp1," which was one of thirteen folders stored in the folder ~nmp." ~[N]mp" was stored in a folder labeled ~New Folder," which was one of at least six folders stored in the OrigData folder. The placement of child pornography deep within the hard drives' file directories suggests that the files were saved by someone who, like GARTENLAUB, is proficient with computers. Moreover, several documents saved within the
12

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 14 of 19 Page ID #:14

OrigData folder tree suggest that the contents of the folders

belonged to GARTENLAUB.

20. An example of a segment of the folder structure is

displayed below:

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; 1 ~..C)tC::h desktop
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21. The four OrigData folders 5 contained similar contents

and file structures. There were, however, some differences

5

The Hitachi hard drive contained one copy of the OrigData

folder. The Western Digital hard drive contained a second copy

of the OrigData folder. The Seagate hard drive contained two

13

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 15 of 19 Page ID #:15
among the contents. For example, the OrigData folder on one hard drive might not contain a subfolder that did exist in the OrigData folder saved on another hard drive. Similarly, some of the files stored in all four OrigData folders were saved in different subfolders. Based on my training and experience and my conversations with other agents, I believe these differences were likely due to GARTENLAUB having added, deleted, or moved certain files over time, which indicates that GARTENLAUB has continued to modify and access the files--including the child pornography files--within the "OrigData" folder.
22. One of the file folders contained in both the OrigData folders on the Hitachi hard drive and the edrive folder of the Seagate hard drive was labeled "tmp." The tmp folders, in turn, contained several folders, some of which contained suspected child pornography. I know, based on conversations with experienced agents, that the Microsoft Windows operating system -- which was the operating system installed on the Hitachi, Western Digital, and Acer hard drives -- automatically installs a folder called "Temp" that stores temporary files.
23. Unix operating systems, by contrast, automatically install a similarly-named folder for temporary files, but that folder is called "tmp." I learned from other agents who interviewed GARTENLAUB that he works as an application administrator for several applications that run in both Unix and
copies of the OrigData folder, one in a folder labeled edrive and another in a folder labeled fdrive.
14

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 16 of 19 Page ID #:16
Windows environments. This shows that the use of the folder name was designed to be deceptive, because it would lead a casual computer user, or an investigating law enforcement agent, to conclude that the folders contained only innocuous, systemgenerated files, rather than contraband, like the child pornography found in subfolders in each of the OrigData folders.
24. In light of GARTENLAUB's familiarity with computers running Unix-based operating systems, I believe that GARTENLAUB named the "tmp" file so that a cursory inspection of the hard drives' file structures would suggest that the "tmp" folder contained only innocuous, temporary files, rather than contraband. Only someone like GARTENLAUB, who works professionally with computers running Unix-based operating systems, would likely have labeled the folder "tmp," which is the same name as an automatically-generated folder on Unix systems, rather than "temp," which is the name of an analogous folder on Windows-based systems.
25. Similarly, the OrigData folder stored on the Hitachi hard drive, contains a folder called "system" in the following location: "OrigData/tmp/Administrator/system," which contains multiple pornographic videos and images. Although "system" is also the name of a folder that is automatically installed by the Windows operating systems, this is not the location where it is installed.
26. Other evidence has also shown that GARTENLAUB is familiar with and uses these folder locations. GARTENLAUB's
15

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 17 of 19 Page ID #:17
employer has been monitoring GARTENLAUB's computer use. On January 1, 2014, the screenshots captured by GARTENLAUB's employer show that GARTENLAUB logged into his home computer via a network using his work computer. Once he had logged in, GARTENLAUB navigated to a computer "BOB," which is the computer name for the Acer desktop with the Seagate hard drive. Once accessing that computer, GARTENLAUB navigated to the following folder: BOB\Users\Keith\Downloads\Movies\Keep\New Folder\. Once GARTENLAUB was in that folder called "New Folder," he created a new folder that he named "Recycle." The Windows operating system automatically installs a folder with the same name, but in a different location. This shows that GARTENLAUB uses folders buried multiple layers deep and named as if they do not contain content that a user would ordinarily keep there.
27. While GARTENLAUB was navigating to this folder location, he highlighted a number of files, such as "Deflowered Teenagers," "Deflowered Teenagers 2," and "Deflowered Teenagers 3," and files with "Defloration" in their titles. Although these files did not appear to be child pornography, it shows that GARTENLAUB continued to organize and manage the files on his computer that contained pornographic or other obscene content and that he did so within the reticulate folder structure he had created.
16

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 18 of 19 Page ID #:18
3. GARTENLAUB's Organization of Child and Adult Pornography
28. In my review of the contents of these three hard drives, I saw that while some folders contained child pornography videos that corresponded to the names of the folders where they were stored, some folders contained adult pornography or other obscene content that were also organized according to content and stored in folders with corresponding names. Based on the fact that the child pornography had been organized into folders based on its content, I believe that GARTENLAUB organized the child pornography and knowingly possessed it.
29. For example, some of the child pornography files described above that contained the name "Vicky" in the file name were stored in a folder labeled "vi," the first two letters of the name. Similarly, some of the child pornography files that depicted girls engaged in sexually explicit conduct were saved in a folder labeled "yg," which may be shorthand for "young girls."
30. Likewise, GARTENLAUB also stored adult pornography and other obscene content in folders with names that corresponded to the content. For example, video files depicting anal sex were saved in a folder labeled "anl." Similarly, one video file labeled "Hustler Barely Legal School Gym Orgy.mpg," and another labeled "Lily(barely legal) .mpg" were saved in a folder labeled "BL," which may be an abbreviation for "barely legal."
31. This shows that GARTENLAUB likely reviewed the child pornography videos and was familiar with their content such that
17

Case 8:14-cr-00173-CAS Document 1 Filed 08/27/14 Page 19 of 19 Page ID #:19

he was able to put the files into folders whose names corresponded to their content. GARTENLAUB's computers stored and organized both files that did contain child pornography and files that did not contain child pornography (but which had names suggesting they were child pornography) according to their contents.
IV. CONCLUSION 32. Based on the foregoing, I submit that there is probable cause to believe that GARTENLAUB has violated Title. 18, United States Code, Section 2252A(a) (5) (B) by knowingly possessing child pornography.

.r ~~PER, KENNETH F

Special Agent

Federal Bureau of Investigation

Subscribed to and sworn before me This~ day of August, 2014.
Jay C. Gandhi
HONORABLE UNITED STATES MAGISTRATE JUDGE

18

 
 Case 8:14-cr-00173-CAS Document 250 Filed 10/02/18 Page 1 of 5 Page ID #:3940

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
OCT 2 2018
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

No. 16-50339

Plaintiff-Appellee,

D.C. No.

8:14-cr-00173-CAS-1

v.

KEITH PRESTON GARTENLAUB, AKA MEMORANDUM* Keith Preson Gartenlaub,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted December 4, 2017 Pasadena, California
Before: WARDLAW and GOULD, Circuit Judges, and PIERSOL,** District Judge.
Keith Gartenlaub appeals his conviction for knowingly possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
** The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota, sitting by designation.

Case 8:14-cr-00173-CAS Document 250 Filed 10/02/18 Page 2 of 5 Page ID #:3941
under 28 U.S.C. § 1291, and we affirm.1 1. There was sufficient evidence to sustain Gartenlaub’s conviction for
knowing possession of child pornography. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime—including knowledge—beyond a reasonable doubt. The government presented sufficient evidence that Gartenlaub knew the child pornography was present on his computers. See 18 U.S.C. § 2252A(a)(5)(B) (requiring that the defendant must “knowingly possess[] . . . any . . . computer disk, or any other material that contains an image of child pornography that has been . . . transported using any means or facility of interstate or foreign commerce . . . including by computer”).
The government demonstrated that an individual intentionally downloaded child pornography, copied it onto Gartenlaub’s hard drives, and organized and reorganized the child pornography into folders reflecting the content of the videos. See 18 U.S.C. § 2252A(a)(5)(B). A rational jury could have concluded beyond a reasonable doubt that the user of the password-protected “Keith” account opened a folder containing obviously child-pornographic filenames and then copied those files onto a new computer, that “Keith” knowingly downloaded and organized the child pornography collection in the first place, and that “Keith” was Keith
1 The government’s motion to file an oversized brief, Dkt 51, is GRANTED. 2

Case 8:14-cr-00173-CAS Document 250 Filed 10/02/18 Page 3 of 5 Page ID #:3942
Gartenlaub himself. See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc); United States v. Willard, 230 F.3d 1093, 1095 (9th Cir. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
2. The district court did not commit plain error by failing to suppress the evidence from Gartenlaub’s computer as inadmissible for violating the Fourth Amendment.2
No controlling authority dictates the conclusion that the government’s Foreign Intelligence Surveillance Act (“FISA”) search and subsequent use of FISA-derived materials in a non-national security prosecution violates the Fourth Amendment, such that the district court’s failure to follow it was plain error. See United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011), as amended (Nov. 16, 2011). Our decision in United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc), abrogation recognized by Demaree v. Pederson, 887 F.3d 870 (9th Cir. 2018) (per curiam), is inapposite; it did not decide the question presented by this case and, in fact, addressed no national security concerns particular to the FISA context.
The idea that the government can decide that someone is a foreign agent based on secret information; on that basis obtain computers containing “[t]he sum
2 Plain error review is the appropriate standard because Gartenlaub did not assert the Fourth Amendment argument predicated on alleged misuse of the FISA warrant before the district court.
3

Case 8:14-cr-00173-CAS Document 250 Filed 10/02/18 Page 4 of 5 Page ID #:3943
of [that] individual’s private life,” Riley v. California, 134 S. Ct. 2473, 2489 (2014); and then prosecute that individual for completely unrelated crimes discovered as a result of rummaging through that computer comes perilously close to the exact abuses against which the Fourth Amendment was designed to protect.3 However, the district court did not commit plain error by concluding otherwise.
3. Based upon our independent review of the classified record evidence, we conclude that the FISA warrant was supported by probable cause. The FISA application and supporting materials demonstrated probable cause to believe that Gartenlaub was an agent of a foreign power when the FISA order was issued. See 50 U.S.C. §§ 1801(b), 1821(1), 1824(a)(2).4 The district court did not err in denying Gartenlaub a Franks hearing. The district court did not err in “finding that the government did not intentionally or recklessly make false statements.” United States v. Christie, 825 F.3d 1048, 1069 (9th Cir. 2016) (citation omitted); see Franks v. Delaware, 438 U.S. 154 (1978).
3 We thank amici curiae, Electronic Frontier Foundation and American Civil Liberties Union, for their thought-provoking briefing. 4 Although there is a split in the circuits as to what deference to afford a district court’s determination that a FISA order was based on probable cause, we do not resolve here which level of deference is appropriate as we are convinced probable cause existed under either a de novo or an abuse of discretion standard of review. See United States v. Turner, 840 F.3d 336, 340 (7th Cir. 2016) (applying a de novo standard of review); United States v. Hassan, 742 F.3d 104, 139 n.29 (4th Cir. 2014) (noting that the Fourth Circuit applies a de novo standard although the Fifth and Second Circuits apply a more deferential standard).
4

Case 8:14-cr-00173-CAS Document 250 Filed 10/02/18 Page 5 of 5 Page ID #:3944
4. We have conducted an in camera review of the underlying FISA materials. We conclude that the disclosure of the FISA materials to Gartenlaub was not “necessary to make an accurate determination of the legality of the search.” 50 U.S.C. § 1825(g); see also United States v. Ott, 827 F.2d 473, 476–77 (9th Cir. 1987) (finding “no indications of possible misrepresentation of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of non-foreign intelligence information, or any other factors that would indicate a need for disclosure” (internal quotation marks omitted)). In point of fact, disclosure was not necessary even under a less rigorous standard than that proposed by the government. As well, the non-disclosure violated neither Gartenlaub’s due process nor Brady rights. See Brady v. Maryland, 373 U.S. 83 (1963); Ott, 827 F.2d at 476–77.
AFFIRMED.
5

 
 NO. 16-50339
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
V. KEITH PRESTON GARTENLAUB,
DEFENDANT-APPELLANT.
On Appeal from the United States District Court for the Central District of California, Santa Ana
Case No. 14-cr-00173-CAS The Honorable Christina A. Snyder, District Court Judge

BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER FOUNDATION AND AMERICAN CIVIL LIBERTIES UNION IN SUPPORT OF DEFENDANT-APPELLANT AND REVERSAL

Mark Rumold Andrew Crocker ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Phone: (415) 436-9333 Fax: (415) 436-9993 mark@eff.org
Counsel for Amici Curiae

Patrick Toomey Ashley Gorski AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER ENTITIES WITH A DIRECT FINANCIAL INTEREST IN
LITIGATION Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici curiae state that no party to this brief is a publicly held corporation, issues stock, or has a parent corporation. Amici further state that no party or party’s counsel authored this brief or contributed money to fund the preparation or submission of this brief. No person other than amici, their members, and their counsel contributed money to fund the preparation or submission of this brief.
i	i  

TABLE OF CONTENTS
STATEMENTS OF INTEREST .............................................................................. 1	  
INTRODUCTION .................................................................................................... 2	  
FACTUAL AND PROCEDURAL BACKGROUND ............................................. 3	  
ARGUMENT............................................................................................................ 4	   I.	   FISA-AUTHORIZED SEARCHES OF ELECTRONIC DEVICES
PRESENT UNIQUE FOURTH AMENDMENT PROBLEMS. ...................... 4	   A.	   FISA authorizes broad searches, based on relaxed Fourth Amendment
standards, where the government seeks foreign intelligence information. .. 5	   B.	   Because of their breadth, FISA searches of personal electronic devices
raise unique Fourth Amendment problems.................................................. 9	   1.	   The Fourth Amendment protects information held in private places,
like computers and hard drives. ................................................................ 10	   2.	   This Court and others have imposed limitations on the searches of digital
devices to ensure those searches do not violate the Fourth Amendment. 11	   II.	   TO ENSURE COMPLIANCE WITH THE FOURTH AMENDMENT, THE
COURT SHOULD IMPOSE STRICT LIMITATIONS ON THE USE OF INFORMATION OBTAINED FROM FISA-AUTHORIZED, FORENSIC SEARCHES OF ELECTRONIC DEVICES. ................................................. 16	   III.	   THE DISTRICT COURT ERRED BY REFUSING TO DISCLOSE THE FISA MATERIALS TO DEFENDANT’S COUNSEL.................................. 23	  
CONCLUSION....................................................................................................... 26	  
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS PURSUANT TO FED. R. APP. P. 32.............................................................. 28	  
CERTIFICATE OF SERVICE ............................................................................... 29	  
ii	  i

TABLE OF AUTHORITIES
Cases	  
Camara v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523 (1967) .............................................................................................. 6
Franks v. Delaware, 438 U.S. 154 (1978) ............................................................................................ 25
Groh v. Ramirez, 540 U.S. 551 (2004) ............................................................................................ 15
Horton v. California, 496 U.S. 128 (1990) ............................................................................................ 15
Illinois v. Gates, 462 U.S. 213 (1983) .............................................................................................. 5
In re All Matters Submitted to the FISC, 218 F. Supp. 2d. 611 (FISC 2002) .................................................................... 7, 8
In re Grand Jury Subpoena, 828 F.3d 1083 (9th Cir. 2016)............................................................................. 10
In re Sealed Case, 310 F.3d 717 (FISCR 2002) ......................................................................... passim
Maryland v. Garrison, 480 U.S. 79 (1987) ................................................................................................ 5
Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Or. 2007)...................................................................... 8
Payton v. New York, 445 U.S. 573 (1980) .............................................................................................. 4
Riley v. California, 134 S. Ct. 2473 (2014) ............................................................................ 10, 11, 22
Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) ............................................................................................ 25
iv	  

Terry v. Ohio, 392 U.S. 1 (1968) ................................................................................................ 17
United States v. Abrams, 615 F.2d 541 (1st Cir. 1980) ............................................................................... 12
United States v. Bridges, 344 F.3d 1010 (9th Cir. 2003)............................................................................... 5
United States v. Carey, 172 F.3d 1268 (10th Cir. 1999)..................................................................... 19, 20
United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010)...................................................................... passim
United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013)......................................................................... 10, 11
United States v. Flyer, 633 F.3d 911 (9th Cir. 2011)............................................................................... 19
United States v. Galpin, 720 F.3d 436 (2d Cir. 2013) ................................................................................ 13
United States v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000)............................................................................... 25
United States v. Hill, 459 F.3d 966 (9th Cir. 2006)......................................................................... 15, 24
United States v. Jacobsen, 466 U.S. 109 (1984) ................................................................................ 17, 18, 22
United States v. Johnston, 789 F.3d 934 (9th Cir. 2015)......................................................................... 19, 20
United States v. Jones, 565 U.S. 400 (2012) ............................................................................................ 10
United States v. Lemus, 582 F.3d 958 (9th Cir. 2009)............................................................................... 15
v	  

United States v. Mann, 592 F.3d 779 (7th Cir. 2010)............................................................................... 19
United States v. Mohamud, No. 14-30217 (9th Cir. Sept. 2, 2016)................................................................. 26
United States v. Payton, 573 F.3d 859 (9th Cir. 2009)......................................................................... 11, 22
United States v. Phillips, 540 F.2d 319 (8th Cir. 1976)............................................................................... 25
United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988)......................................................................... 19, 21
United States v. Sedaghaty, 728 F.3d 885 (9th Cir. 2013)......................................................................... 17, 21
United States v. Tamura, 694 F.2d 591 (9th Cir. 1982)............................................................. 12, 13, 14, 17
United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980)................................................................................. 9
Warden v. Hayden, 387 U.S. 294 (1967) ............................................................................................ 17
Zurcher v. Stanford Daily, 436 U.S. 547 (1978) .............................................................................................. 5
Constitutional Provisions	  
U.S. Constitution, amendment IV.................................................................... passim
U.S. Constitution, amendment V ............................................................................ 25
Statutes	  
50 U.S.C. § 1801......................................................................................... 2, 6, 7, 22
50 U.S.C. § 1821......................................................................................... 21, 22, 24
50 U.S.C. § 1823................................................................................................... 3, 8
v	 i 

50 U.S.C. § 1824............................................................................................... 3, 6, 7 50 U.S.C. § 1825......................................................................................... 23, 24, 26 Other Authorities	   Department of Justice, Searching and Seizing Computers and Obtaining
Evidence in Criminal Investigations (2009)........................................................ 13 FISA 702 Minimization Procedures Used by the FBI (July 24, 2014) .................. 26 Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use
Restrictions on Nonresponsive Data, 48 Texas Tech L. Rev. 1 (2015) .............. 18 Standard Minimization Procedures for FBI Electronic Surveillance and Physical
Search Conducted Under FISA (2008) ............................................................... 26
vi	  i

STATEMENTS OF INTEREST This brief is filed pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure with the consent of all parties. The Electronic Frontier Foundation (“EFF”) is a member-supported, nonprofit civil liberties organization that has worked to protect free speech and privacy rights in the online and digital world for 25 years. With roughly 36,000 active donors, EFF represents the interests of technology users in court cases and broader policy debates surrounding the application of law in the digital age. EFF regularly participates as counsel or amicus in cases addressing the Fourth Amendment and electronic surveillance, including foreign intelligence surveillance. See, e.g., Jewel v. NSA, 673 F.3d 902 (9th Cir. 2011). The American Civil Liberties Union (“ACLU”) is a nationwide, nonprofit, nonpartisan organization with more than one million members dedicated to the principles of liberty and equality embodied in the Constitution and this nation’s laws. The ACLU has appeared before the federal courts in many cases involving the Fourth Amendment, including cases concerning foreign intelligence surveillance. The ACLU represented the plaintiffs in Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013), and is currently counsel in Wikimedia v. NSA, 152560 (4th Cir.), and United States v. Muhtorov, No. 12-cr-00033 (D. Colo.).
1	  

INTRODUCTION The unusual nature of this prosecution requires little elaboration. A citizen’s home and his electronic devices—containing decades’ worth of personal information—were secretly searched by federal agents. Yet neither he nor his attorneys have ever seen the authorization for that search. And despite the government’s invocation of national security to withhold this information, no national security-related prosecution was ever initiated. Rather, the government relied on its wide-ranging digital searches to initiate a prosecution for offenses related to child pornography. The digital searches in this case raise unique and profound Fourth Amendment problems. As an initial matter, where the government seeks foreign intelligence information pursuant to the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801, et seq., its searches are premised on relaxed constitutional standards, and they sweep more broadly than searches for evidence of criminal activity. Compounding the problem, the FISA-authorized searches in this case involved forensic searches of electronic devices—which pose their own unique Fourth Amendment concerns, as this Court has already recognized. This confluence of factors requires heightened vigilance to ensure that the government’s searches comport with the Constitution. Thus, to satisfy the Fourth Amendment, this Court should prohibit the use of non-foreign intelligence information in
2	  

criminal investigations and prosecutions when that information is obtained from FISA-authorized, forensic searches of electronic devices, as is the case here.
In addition, given the unusual nature of this prosecution, and the likelihood that the government improperly converted its foreign intelligence search into one for unrelated criminal activity, it is critical that defendant’s counsel have access to relevant FISA materials. Disclosure of this information to the defense will ensure that a meaningful and informed Fourth Amendment challenge may be brought.
FACTUAL AND PROCEDURAL BACKGROUND In January 2014, the FBI performed a secret search of Gartenlaub’s home and computers. E.R. 248. The search was authorized by the Foreign Intelligence Surveillance Court (“FISC”), a court with jurisdiction to authorize covert searches of locations within the United States to obtain foreign intelligence information. 50 U.S.C. §§ 1823, 1824. As part of its search, the FBI made wholesale copies of multiple hard drives and digital devices—devices that contained decades’ worth of information and hundreds of thousands of files. E.R. 198, 248-49. The FBI retained and later searched its copies of those devices. The search of three of the hard drives revealed images of child pornography stored on the drives. In August 2014, eight months after its initial search, the FBI obtained a second search warrant, this time from a magistrate judge in the Central District of California, to search for additional child pornography-related evidence in
3	  

Gartenlaub’s house, car, and storage units. E.R. 243. Gartenlaub was indicted for receipt and possession of child pornography.
E.R. 296. Through pretrial motions, he moved for disclosure of the government’s application to the FISC and the FISC’s order authorizing the search of his home and computers—information necessary to an informed Fourth Amendment challenge to the FISA searches. The district court denied that motion, adopting verbatim an 11-page proposed order submitted by the government. E.R. 21.
ARGUMENT I. FISA-AUTHORIZED SEARCHES OF ELECTRONIC DEVICES
PRESENT UNIQUE FOURTH AMENDMENT PROBLEMS. Two types of searches are implicated by this case: FISA-authorized searches and electronic searches of digital devices. Both raise unique and profound Fourth Amendment problems. “Indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.” Payton v. New York, 445 U.S. 573, 583 (1980). To guard against those prohibited invasions, the Fourth Amendment requires searches of private spaces to satisfy three familiar requirements: they must be authorized by warrants, based “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
4	  

things to be seized.” U.S. Const. amend. IV. The probable cause requirement ensures that “fruits, instrumentalities, or evidence of a crime will be found” in the place to be searched. Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978); see also Illinois v. Gates, 462 U.S. 213, 238 (1983). The particularity requirement ensures that “the search will be carefully tailored to its justifications” and does not “take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). Taken together, these requirements ensure that warrants, and the searches conducted pursuant to them, are not “so bountiful and expansive . . . that they constitute a virtual, allencompassing dragnet.” United States v. Bridges, 344 F.3d 1010, 1016 (9th Cir. 2003).
A. FISA authorizes broad searches, based on relaxed Fourth Amendment standards, where the government seeks foreign intelligence information.
Searches conducted for foreign intelligence purposes, pursuant to FISA, modify and relax these established constitutional imperatives. See In re Sealed Case, 310 F.3d 717, 741 (FISCR 2002) (acknowledging that “a FISA order may not be a ‘warrant’ contemplated by the Fourth Amendment”).
First, FISA-authorized searches are based on an altered probable-cause standard. Generally, probable cause to search exists when there is a fair probability that a search will result in evidence of a crime being discovered. Gates, 462 U.S. at
5	  

238. In the context of FISA searches, however, the government need not show that any evidence will be discovered, or even that a crime has been committed. In re Sealed Case, 310 F.3d at 738 (“Congress clearly intended a lesser showing of probable cause for these activities than that applicable to ordinary criminal cases.”). Rather, FISA search authorizations “shall” issue if a judge finds there is probable cause to believe “the target of the physical search is a foreign power or an agent of a foreign power,” and that “the premises or property to be searched” is owned, used, possessed or in transit to an “agent of a foreign power or a foreign power.” 50 U.S.C. § 1824(a)(2)(A), (B). Neither of these showings requires evidence of criminal activity.1
Second, FISA search authorizations are not particularized in the same way that traditional search warrants must be. As the Fourth Amendment commands, warrants must particularly describe the place to be searched and the persons or things to be seized. U.S. Const. amend. IV. In a typical case, the object of a search may be “to recover specific stolen or contraband goods” or to seize evidence of a crime. Camara v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523, 535 (1967). In contrast, the object of a FISA-authorized search, “foreign intelligence information,” is exceedingly broad. Under FISA, “foreign intelligence
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
1 FISA’s definitions of “foreign power” and “agent of a foreign power” encompass some criminal activity, but the definitions do not require it. See 50 U.S.C. § 1801(a), (b).
6	  

information” includes:
information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against . . . actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; . . . sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or . . . clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or . . . information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to . . . the national defense or the security of the United States; or . . . the conduct of the foreign affairs of the United States.
50 U.S.C. § 1801(e). Thus, under FISA, although the government must identify the
place it intends to search and the types of materials it intends to seize, see 50
U.S.C. § 1824(c)(1)(A) - (C), the object of its search is “foreign intelligence
information”—an unspecific and elastic category of information that encompasses
“the foreign affairs of the United States” and the “national defense or the security
of the United States,” among other broad categories. 50 U.S.C. § 1801(e)(2)(A),
(B).
Unsurprisingly, in practice, FISA’s relaxed requirements result in broad and
intrusive searches. As the FISC itself has observed, FISA countenances far more
sweeping searches of places and property than a typical warrant. See In re All
Matters Submitted to the FISC, 218 F. Supp. 2d. 611, 617 (FISC 2002) (describing
the “breadth” accorded the FBI in FISA searches of a target’s “residence, office,
vehicles, computer, safe deposit box and U.S. mails”), rev’d on other grounds, In
7	  

re Sealed Case, 310 F.3d 717. Indeed, because of the foreign intelligence needs that FISA searches serve, courts allow these searches to be more permissive along almost every axis—from their initial authorization, to their execution, to the government’s retention and analysis of seized material. See id. (cataloging the “practices and provisions” of FISA that render such searches exceptionally broad and intrusive).
Finally, one element of FISA renders these invasive searches especially susceptible to misuse: under the statute, obtaining “foreign intelligence information” need not be the only, or even the primary, purpose of a FISA search. Instead, since 2001, the statute has required only that a “significant purpose” of a search be “to obtain foreign intelligence information.” 50 U.S.C. § 1823(a)(6)(B); see In re Sealed Case, 310 F.3d at 736-746 (upholding “significant purpose” test while warning that “the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes”); see also Mayfield v. United States, 504 F. Supp. 2d 1023, 1042-43 (D. Or. 2007) (finding “significant purpose” standard violated Fourth Amendment), vacated, 588 F.3d 1252 (9th Cir. 2009). To be sure, there may be cases where the foreign intelligence information sought by a FISA search would also constitute evidence of criminal activity, and therefore is in service of a specific and overlapping criminal investigation. But this flexibility presents a considerable risk that investigators will use FISA—and the broad
8	  

searches it permits—as an end-run around the more restrictive Fourth Amendment
rules governing criminal investigations. Cf. United States v. Truong Dinh Hung,
629 F.2d 908, 915 (4th Cir. 1980) (rejecting the government’s view that “if
surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment”).2
In sum, FISA searches are, at best, countenanced on constitutionally
expansive showings of probable cause and particularity, predicated on the theory
that those searches are carried out to obtain foreign intelligence information,
broadly defined.
B. Because of their breadth, FISA searches of personal electronic devices raise unique Fourth Amendment problems.
Because FISA searches are broader and predicated on a lower standard than
traditional search warrants, they raise serious constitutional concerns. The problem
is compounded when those searches involve electronic devices containing vast
amounts of private information.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
2 The Congress that enacted FISA was well aware of these risks. “Congress was concerned about the government’s use of FISA surveillance to obtain information not truly intertwined with the government’s efforts to protect against threats from foreign powers.” In re Sealed Case, 310 F.3d at 725. The “significant purpose” amendment did not reflect a retreat from this concern, nor did it grant the government permission to use FISA to pursue unrelated criminal investigations. See id. at 736 (“[W]e see not the slightest indication that Congress meant to give that power to the Executive Branch.”).
9	  

1. The Fourth Amendment protects information held in private places, like computers and hard drives.
The Fourth Amendment expressly protects a person’s right to be “secure” in their “papers” and “effects” from government intrusion. U.S. Const. amend. IV. It “embod[ies] a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.” United States v. Jones, 565 U.S. 400, 406 (2012).
The Fourth Amendment extends to information stored digitally as well as in tangible papers and effects. “The papers we create and maintain not only in physical but also in digital form reflect our most private thoughts and activities.” United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc). Indeed, because of their immense storage capacity and increasing importance in daily tasks, computers, cell phones and other digital devices hold “a digital record of nearly every aspect of [users’] lives—from the mundane to the intimate.” Riley v. California, 134 S. Ct. 2473, 2490 (2014).
Because of the wealth of private information digital devices contain, the Supreme Court and this Court have emphasized that searches of personal electronic devices are different than searches in the physical world, requiring special attention to constitutional limitations. See In re Grand Jury Subpoena, JK-15-029, 828 F.3d 1083, 1090 (9th Cir. 2016).
This is true for several reasons. First, as the Supreme Court held in Riley,
1	0  

digital searches are not analogous to those of physical containers because digital devices have “immense storage capacity,” so the “intrusion on privacy is not physically limited in the same way when it comes to [digital devices].” Riley, 134 S. Ct. at 2489. Second, these devices have an “element of pervasiveness” in daily life; nearly everyone uses cell phones and computers on a regular basis for a wide variety of purposes, and a single device will routinely contain many different types of data unlikely to be stored in one place in the physical world. Id. at 2490. “Searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers.” United States v. Payton, 573 F.3d 859, 862 (9th Cir. 2009). The “uniquely sensitive nature of data on electronic devices” thus renders “an exhaustive exploratory search more intrusive than with other forms of property.” Cotterman, 709 F.3d at 966.
2. This Court and others have imposed limitations on the searches of digital devices to ensure those searches do not violate the Fourth Amendment.
This Court has recognized the potential for abuse—and the concomitant need for limitations—in searches of vast repositories of electronically stored private information.
Traditionally, courts have viewed the solution to circumscribing intrusive searches as “simple”: requiring the government to “get a warrant.” Riley, 134 S. Ct.
1	1  

at 2495. However, as early as 1982, this Court recognized that electronic storage might result in intermingling of items described in a warrant and other material that the government had no probable cause to seize. United States v. Tamura, 694 F.2d 591, 595-96 (9th Cir. 1982).
In Tamura, the government obtained a warrant to seize evidence of payments received by the defendant from records held by his employer. Id. at 594. In order to find this evidence, however, agents needed to peruse a lengthy printout of records, identify specific transactions, and obtain corresponding vouchers. Rather than doing so onsite, the government seized the entire set of records and sorted through them later. Id. at 595.
The Court held that this violated the Fourth Amendment. Id. It noted that “all items in a set of files may be inspected during a search, provided that sufficiently specific guidelines for identifying the documents sought are provided in the search warrant and are followed by the officers conducting the search.” Id. But “the wholesale seizure for later detailed examination of records not described in a warrant is significantly more intrusive, and has been characterized as ‘the kind of investigatory dragnet that the fourth amendment was designed to prevent.’” Id. (quoting United States v. Abrams, 615 F.2d 541, 543 (1st Cir. 1980)). To protect against “overseizure,” the Court outlined a protocol that would allow for offsite sorting and segregation of material not covered by the warrant. Id. at 596 & n.3.
1	2  

In the last 35 years, the problem of overseizure has gone from the “comparatively rare instance[]” described in Tamura, 694 F.2d at 595, to “an inherent part of the electronic search process.” United States v. Comprehensive Drug Testing, Inc. (“CDT”), 621 F.3d 1162, 1177 (9th Cir. 2010) (en banc). Indeed, “almost every hard drive encountered by law enforcement will contain records that have nothing to do with the investigation.” Department of Justice, Searching and Seizing Computers and Obtaining Evidence in Criminal Investigations 87 (2009).3 As a result, the government routinely applies for and receives “two-stage search” warrants: first to physically seize a digital storage device and make a complete digital copy or “image” of its contents, and then to analyze the copy using forensic software. Id. at 76, 86-87.
Even if overseizure is often necessary when conducting searches of digital devices, it cannot be exploited to evade the Fourth Amendment’s restrictions. No matter how investigators conduct a search, they must “avoid turning a limited search for particular information into a general search of office file systems and computer databases.” CDT, 621 F.3d at 1170; see also United States v. Galpin, 720 F.3d 436, 447 (2d Cir. 2013) (risk of digital searches becoming too general “demands a heightened sensitivity to the particularity requirement in the context of digital searches”).
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
3 Available at https://www.justice.gov/sites/default/files/criminalccips/legacy/2015/01/14/ssmanual2009.pdf.
1	3  

This Court’s opinion in CDT is an instructive example of why digital searches demand heightened sensitivity to the Fourth Amendment’s requirements. In that case, government investigators obtained a warrant for drug-testing records of ten Major League Baseball players. 621 F.3d at 1166-67. However, they seized electronic storage devices and copied a directory containing information about hundreds of players, in addition to the ten mentioned in the warrant, and searched all of the files in the directory, despite conditions in the warrant that precluded them from doing so. Id. at 1167-68. Nevertheless, the government argued it had complied with the conditions in the warrant and this Court’s guidance in Tamura because Tamura permitted overseizure in certain circumstances. Id. at 1170. The government therefore contended that the information it possessed about players outside the search warrant was nonetheless “lawfully seized” and in “plain view,” allowing it to be further retained, searched, and used in criminal investigations and prosecutions. Id.
The CDT Court forcefully rejected this argument because it “would make a mockery of Tamura.” Id. at 1171. The Court called for “greater vigilance on the part of judicial officers” and reiterated that “the process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect.” Id. at 1177. In a concurring opinion joined by four other judges, Judge Kozinski offered
1	4  

more specific guidance for how authorizing magistrates could impose ex ante search conditions to ensure digital searches remain tailored to evidence for which the government has probable cause. Id. at 1178 (Kozinski, J., concurring). These conditions include foreswearing reliance on the plain view doctrine,4 the use of an independent taint team, and use of a search protocol “designed to uncover only the information for which [the government] has probable cause.” Id. at 1180.
To avoid particularity problems, search warrants for electronic devices should, at the very least, establish at the outset appropriate safeguards—such as the use of taint teams—to ensure that government investigators access only the items for which there is probable cause. See Groh v. Ramirez, 540 U.S. 551, 561 (2004).
In addition, courts reviewing searches of electronic devices after the fact must scrutinize the “reasonableness of the officer’s acts both in executing the warrant and in performing a subsequent search of seized materials.” United States v. Hill, 459 F.3d 966, 978 (9th Cir. 2006). In particular, courts should be skeptical of evidence outside the scope of a warrant that the government claims was in plain view and was therefore lawfully obtained. CDT, 621 F.3d at 1171.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
4 The plain view doctrine allows an officer who is lawfully present in a place to seize an item if its illegal nature is “immediately apparent.” Horton v. California, 496 U.S. 128, 136-37 (1990); United States v. Lemus, 582 F.3d 958, 964 (9th Cir. 2009). It is not clear how the plain view doctrine should apply in the context of digital searches, if at all. See CDT, 621 F.3d at 1171.
1	5  

II. TO ENSURE COMPLIANCE WITH THE FOURTH AMENDMENT, THE COURT SHOULD IMPOSE STRICT LIMITATIONS ON THE USE OF INFORMATION OBTAINED FROM FISA-AUTHORIZED, FORENSIC SEARCHES OF ELECTRONIC DEVICES. FISA searches of electronic devices pose an unusually acute risk of
becoming general searches for evidence of criminal activity. Thus, to satisfy the Fourth Amendment, this Court should impose strict limitations on the use of information obtained through these searches.
Specifically, the Court should prohibit the government from using nonforeign intelligence information in criminal investigations and prosecutions when that information is obtained during a FISA-authorized, forensic search of an electronic device. See CDT, 621 at 1178 (noting such restrictions will ensure “future searches of electronic records” do not turn “all warrants for digital data into general warrants”) (Kozinski, J., concurring). In this case, such a prohibition would require the exclusion of the evidence of child pornography used to convict Gartenlaub.
This Court has already called for “vigilance” in “striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures” when searching electronic devices. CDT, 621 at 1177. The extraordinary facts of this case require precisely that kind of vigilance. The Court should not allow foreign intelligence searches, with all of their attendant breadth and secrecy, to become a backdoor to the
1	6  

exploratory rummaging that is plainly forbidden under the Fourth Amendment. Two rationales independently support such a use restriction. First, as this
Court has recognized, reliance on plain view in electronic searches forms a hazardous constitutional basis for obtaining evidence. See CDT 621 F.3d at 1171; see also id. at 1180 (Kozinski, J., concurring) (recommending that digital search warrants require foreswearing reliance on plain view). It is inconsistent with CDT and Tamura to argue that “plain view” can apply to files outside the scope of the warrant. A use restriction on non-foreign intelligence information obtained in a FISA search ensures fidelity to the Fourth Amendment limits set out in those cases. Alternatively, even if an initial seizure of information is itself “reasonable”—the ultimate touchstone of the Fourth Amendment—subsequent uses of lawfully seized information can still violate the Fourth Amendment. See United States v. Jacobsen, 466 U.S. 109, 124-125 (1984); United States v. Sedaghaty, 728 F.3d 885, 914 (9th Cir. 2013) (invalidating computer search where agents sought to retain and use “information beyond the scope of the warrant” and insisting that agents “should have sought a further warrant”); cf. Terry v. Ohio, 392 U.S. 1, 19 (1968) (“The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.”) (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring)). Thus, while the seizure of Gartenlaub’s devices may have been permissible at the outset, the later use of information
1	7  

outside the scope of the FISA authorization was not. See Jacobsen, 466 U.S. at 125; see also Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Texas Tech L. Rev. 1, 27-29 (2015).
Under either rationale, as this Court recognized in CDT, “[e]veryone’s interests are best served if there are clear rules to follow that strike a fair balance” between the needs of the government in conducting searches and “the rights of individuals . . . to the privacy that is at the heart of the Fourth Amendment.” 621 F.3d at 1177. The prohibition on the use of non-foreign intelligence information obtained through a search of an electronic device is precisely this type of necessary “clear rule.” See Kerr, Executing Warrants for Digital Evidence at 18 (“The best way to minimize the unwarranted intrusions upon privacy for computer searches is to impose use restrictions on the nonresponsive data revealed in the course of the search.”).
Although the government has not explained how it found the child pornography on the imaged devices, it seems highly likely that investigators employed techniques or software that went beyond the foreign intelligence purpose of the initial FISA search. Forensic software allows investigators to sift through even very large numbers of files in ways that would be impossible unaided by a computer. For example, common software can scan a computer’s contents for child pornography by generating an “overview” of all photos on a computer and
1	8  

automatically flagging images based on “a library of known files previously submitted by law enforcement—most of which are images of child pornography.” United States v. Mann, 592 F.3d 779, 781 (7th Cir. 2010). Investigators may have also employed other forensic techniques to search for child pornography. For instance, in United States v. Johnston, 789 F.3d 934, 941-42 (9th Cir. 2015), officers executing a search warrant for child pornography conducted several different forensic searches: a “forensic preview” that copied the entire contents of the defendant’s computer and flagged child pornography “within five to ten minutes,” a subsequent scan that resulted in a gallery of all image and video files on the computer, and, years later, an exhaustive scan of email, chat logs, and “unallocated space” on the computer.5
Crucially, if the government “abandoned” its foreign intelligence search and affirmatively searched for evidence of unrelated crimes, the search violated the Fourth Amendment. Johnston, 789 F.3d at 942; United States v. Carey, 172 F.3d 1268, 1273 (10th Cir. 1999); United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988); see also In re Sealed Case, 310 F.3d at 736 (“[T]he FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes.”). While the exact course of the government’s investigation has never been disclosed,
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
5 “Unallocated space is space on a hard drive that contains deleted data, usually emptied from the operating system’s trash or recycle bin folder, that cannot be seen or accessed by the user without the use of forensic software.” United States v. Flyer, 633 F.3d 911, 919 (9th Cir. 2011).
1	9  

this could have occurred in a number of ways. Investigators may have used forensic software that automatically flagged files known or suspected to contain child pornography near the start of their searches of Gartenlaub’s hard drives. Or investigators may have decided to apply those tools only once they grew frustrated at their inability to find evidence of espionage, in the hope of leveraging any evidence of unrelated criminal activity into an espionage confession. In either case, the government’s FISA searches were necessarily restricted to “foreign intelligence information,” so it is difficult to see how an automated scan for child pornography would serve an authorized purpose.
If the government relied on child pornography-detecting software, similar to that used in Johnston, 789 F.3d at 941-42, it plainly exceeded the scope of the FISA authorization. But even if the files were identified manually, the search may have been unlawful. For instance, investigators may have opened individual image or video files located in directories or with file names that had no apparent connection to their foreign intelligence search. See Carey, 172 F.3d at 1273 (agent executing warrant for information about drug trafficking violated Fourth Amendment by opening files expecting to find child pornography). Or agents may have encountered images that they suspected contained child pornography, and then applied the FBI’s own forensic tools to analyze the images or shared them with the National Center for Missing and Exploited Children for analytic
2	0  

purposes—without first obtaining a criminal warrant. United States v. Sedaghaty, 728 F.3d at 914 (government must obtain a “further warrant” in conducting computer search when it seeks information beyond the scope of its original warrant); see also Sarkissian, 841 F.2d at 965 (“At no point was this case an ordinary criminal investigation.”). Each of these examples represents a way the government’s search of Gartenlaub’s devices may have transgressed Fourth Amendment limitations.6
The fact that FISA’s minimization procedures anticipate the retention and dissemination of “evidence of a crime” in no way alters this analysis. See 50 U.S.C. § 1821(4)(C). Unsurprisingly, Congress’s primary impetus for allowing this use was to facilitate the prosecution of crimes related to foreign intelligence and national security. See In re Sealed Case, 310 F.3d at 724-25 (citing H.R. Rep. No. 95-1283 at 49 (1978)). But even if Congress also contemplated the retention and dissemination of evidence of crimes wholly unrelated to national security, it could not have anticipated the types of searches and seizures at issue here. Congress adopted this rule long before personal electronic devices, storing vast amounts of private information, became widespread. Indeed, when Congress expanded FISA to include physical searches in 1994, it largely imported the minimization
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
6 At a minimum, it is clear that the manner in which the electronic searches were conducted matters immensely, yet none of that information has been provided to the defense. See Section III; Appellant’s Brief 36.
2	1  

requirements applicable to FISA electronic surveillance, which dated to 1978. Compare 50 U.S.C. § 1801(h), with 50 U.S.C. § 1821(4).
Without discounting the intrusiveness of traditional wiretaps or physical searches (intrusions that are, without question, substantial), a search of all the information stored on an individual’s electronic device represents “a degree of intrusiveness much greater in quantity, if not different in kind.” Payton, 573 F.3d at 862. As Riley teaches, searches of electronic devices may be even more intrusive than a physical search of a person’s home: an electronic device “not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.” 134 S. Ct. at 2491; see also id. at 2489 (describing types of sensitive data found on electronic devices). Such was the case here: the government obtained, reviewed, and ultimately used information stored on Gartenlaub’s devices that spanned nearly two decades. See E.R. 256 (describing letters allegedly written in 1997). However reasonable Section 1821(4)(C) may be as a general matter, the provision becomes unreasonable when interpreted to authorize a search through two decades of an individual’s digital life—and the subsequent use of that information in a criminal prosecution. See Jacobsen, 466 U.S. at 125.
The government has argued that it must be able to search broadly for concealed foreign intelligence information. That may well be true, but it cannot be
2	2  

that the government thereby obtains a general warrant to search personal electronic devices—with all the private information they contain—and can use the fruits of those general searches in wholly unrelated criminal prosecutions. CDT, 621 F.3d at 1176-77. To allow that would only amplify the constitutional problems presented by both FISA searches and digital searches in the first instance. III. THE DISTRICT COURT ERRED BY REFUSING TO DISCLOSE
THE FISA MATERIALS TO DEFENDANT’S COUNSEL. As described above, this case presents serious questions concerning the constitutionality and scope of FISA-authorized searches of electronic devices. Amici believe that even on the limited public record in this case, this Court should hold that the searches of Gartenlaub’s hard drives exceeded the government’s authority. But even if the Court does not now hold that the FISA search violated the Fourth Amendment, it cannot overlook that it was difficult—if not impossible—for Gartenlaub to meaningfully challenge the lawfulness of those searches and seizures, because the district court denied his counsel the opportunity to review the underlying FISA materials and other critical information about how those searches were actually carried out. The Court should therefore hold, at minimum, that disclosure was necessary to the resolution of Gartenlaub’s motions and remand to the district court. See 50 U.S.C. § 1825(g). The confluence of factors in this case—of constitutionally relaxed FISAauthorized searches; the constitutionally suspect search of electronic devices; and
2	3  

the unusual nature of this investigation and prosecution—all counsel in favor of the need for disclosure of the FISA materials to the defense.
Gartenlaub seeks access to the FISA application and the FISC order that resulted in the search of his house and the seizure of his electronic devices in January 2014. Opening Br. at 36. For the reasons described above, he should also be entitled to any materials describing the protocols imposed by the FISC on the search of his electronic devices, including the government’s statutorily required minimization procedures. See 50 U.S.C. § 1821(4)(A) (requiring protocols “to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons”). In addition, Gartenlaub’s security-cleared counsel should have the opportunity to review information about how the FISA search was actually carried out, since this is crucial to assessing the constitutionality of the government’s discovery and use of the evidence against him in this prosecution. See Hill, 459 F.3d at 978.
The district court’s construction of 50 U.S.C. § 1825(g) conflicts with Gartenlaub’s constitutional right to seek suppression of illegally obtained evidence, and this Court should construe Section 1825(g) to require disclosure of FISA materials in at least those cases where, as here, the physical search raises unusually
2	4  

complex questions of fact and law.7
Finally, because due process requires a careful weighing of competing
interests in disclosure, this Court should scrutinize the government’s claims of
privilege closely. Information in the public record undermines the government’s
repeated, categorical claim that it must withhold all FISA materials from defense
counsel. Indeed, it has made identical claims—that any disclosure would threaten
national security—in every FISA case for the past 35 years. Those general claims
of harm are overbroad, given that the government has often disclosed similar
information publicly. For example, in this case, the government apparently refused
to disclose the relevant FBI minimization procedures to Gartenlaub’s counsel even
though other versions of those minimization procedures are publicly available. See
Standard Minimization Procedures for FBI Electronic Surveillance and Physical
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
7 Both the Fourth and Fifth Amendments require that defendants be afforded a meaningful opportunity to seek suppression of evidence that was obtained illegally. Sanchez-Llamas v. Oregon, 548 U.S. 331, 348 (2006); Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (hearing on veracity of warrant required where defendant makes “substantial preliminary showing” that affidavit contains false statements or omissions); see also United States v. Phillips, 540 F.2d 319, 325–26 (8th Cir. 1976) (due process requires means for defendant to seek suppression remedy). Part of that process, as this Court has held, requires that the government disclose information to a defendant that could affect the outcome of a suppression hearing. See, e.g., United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000).
2	5  

Search Conducted Under FISA (2008).8 In other instances, the government has withheld critical information concerning FISA surveillance for years only to inexplicably reverse course when pressed by the courts. See, e.g., Gov’t Ex Parte Notice in Response to the Court’s Ex Parte Order, United States v. Mohamud, No. 14-30217 (9th Cir. Sept. 2, 2016) (ECF 109-2) (explaining that, following courtordered declassification review, certain FISA information could be released after all). These releases make clear that the Court should not take at face value the government’s all-encompassing claim that any disclosure to defense counsel, even under an appropriate protective order, would cause harm.
Under these circumstances, disclosure of FISA materials under appropriate security measures is “necessary” for “an accurate determination of the legality of the physical search.” 50 U.S.C. § 1825(g). It is also necessary as a matter of constitutional right.
CONCLUSION For the reasons explained above, the Court should prohibit the use of nonforeign intelligence information in criminal investigations and prosecutions when
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	 	   
8 Available at https://www.aclu.org/files/pdfs/natsec/faafoia 20101129/FAAFBI0707.pdf (obtained via Freedom of Information Act). The government has publicly released other FISA-related minimization procedures as well. See, e.g., FISA 702 Minimization Procedures Used by the FBI (July 24, 2014), available at https://www.dni.gov/files/documents/ppd28/2014%20FBI%20702%20Minimization%20Procedures.pdf.
2	6  

that information is obtained during FISA-authorized, forensic searches of electronic devices. Alternatively and independently, the Court should require that FISA materials be disclosed to the defense.

Dated: February 15, 2017

Respectfully submitted,
By: /s/ Mark Rumold Mark Rumold Andrew Crocker ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 mark@eff.org
Counsel for Amici Curiae
Of Counsel: Patrick Toomey Ashley Gorski AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 549-2500 Fax: (212) 549-2654 ptoomey@aclu.org

	  

2	7  

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE
REQUIREMENTS PURSUANT TO FED. R. APP. P. 32 Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify as follows:
1. This Brief of Amici Curiae Electronic Frontier Foundation In Support of Defendant-Appellant complies with the type-volume limitation, because this brief contains 6,151 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011, the word processing system used to prepare the brief, in 14 point font in Times New Roman font.

Dated: February 15, 2017

By: /s/ Mark Rumold Mark Rumold
Counsel for Amici Curiae

2	8  

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on February 15, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: February 15, 2017

By: /s/ Mark Rumold__ Mark Rumold
Counsel for Amici Curiae

2	9  

 
 Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 1 of 67 Page ID #:645

1 STEPHANIE YONEKURA Acting United States Attorney

2 ROBERT E. DUGDALE Assistant United States Attorney

3 Chief, Criminal Division ANTHONY J. LEWIS (Cal. Bar No. 231825)

4 Assistant United States Attorney National Security Section

5

1300 United States Courthouse

312 North Spring Street

6

Los Angeles, California 90012

Telephone: (213) 894-1786

7

Facsimile: (213) 894-6436

E-mail:

anthony.lewis@usdoj.gov

8 CASEY ARROWOOD Trial Attorney

9 Counterespionage Section National Security Division

10 Attorneys for Plaintiff

11 UNITED STATES OF AMERICA

12

UNITED STATES DISTRICT COURT

13

FOR THE CENTRAL DISTRICT OF CALIFORNIA

14 UNITED STATES OF AMERICA,

No. SA CR 14-173-CAS

15

Plaintiff,

16

v.

17 KEITH PRESTON GARTENLAUB,

18

Defendant.

19

20

GOVERNMENT’S UNCLASSIFIED MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR DISCLOSURE OF FISA MATERIAL AND MEMORANDUM OF POINT AND AUTHORITIES TO SUPPRESS THE FRUITS OR DERIVATIVES OF ANY EVIDENCE COLLECTED PURSUANT TO FISA OR ANY OTHER FOREIGN INTELLIGENCE GATHERING

21

Plaintiff United States of America, by and through its counsel

22 of record, the United States Attorney for the Central District of

23 California and Assistant United States Attorney Anthony Lewis,

24 hereby files the Government’s Unclassified Memorandum in Opposition

25 to Defendant’s Motion for Disclosure of FISA Material and Memorandum

26 of Point and Authorities to Suppress the Fruits or Derivatives of

27 Any Evidence Collected Pursuant to FISA or Other Foreign

28 Intelligence Gathering.

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 2 of 67 Page ID #:646

1

This memorandum in opposition is based upon the attached

2 memorandum of points and authorities, the files and records in this

3 case, and such further evidence and argument as the Court may permit.

4

5 Dated: May 4, 2015

Respectfully submitted,

6

STEPHANIE YONEKURA

Acting United States Attorney

7

ROBERT E. DUGDALE

8

Assistant United States Attorney

Chief, Criminal Division

9

10

Is/

ANTHONY LEWIS

11

Assistant United States Attorney

12

CASEY ARROWOOD

Trial Attorney

13

Attorneys for Plaintiff

14

UNITED STATES OF AMERICA

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 3 of 67 Page ID #:647

1

TABLE OF CONTENTS

2 DESCRIPTION

PAGE

3

TABLE OF CONTENTS

4

I. Introduction ................................................ 1

5

A. Background ............................................. 2

6

B. Overview of the FISA Authorities ....................... 3

1. [CLASSIFIED MATERIAL REDACTED] . . . . . . . . . . . . . . . . . . . . 3

7

2. The FISC's Findings ............................... 3

8 II. The FISA Process ........................................... 4

9

A. Overview of FISA ....................................... 4

B. The FISA Application ................................... 6

10

1. The Certification ................................ 8

11

2. Minimization Procedures .......................... 9

3. Attorney General's Approval ..................... 10

12

C. The FISC's Orders ..................................... 10

13 III. District Court Review of FISC Orders ..................... 15

A. The Review Is to Be Conducted In Camera and Ex Parte .. 16

14

1. In Camera, Ex Parte Review is the Rule ........... 18

15

2. In Camera, Ex Parte Review is Constitutional ..... 23

B. The District Court's Substantive Review ............... 25

16

1. Standard of Review ............................... 25

17

2. Probable Cause Standard .......................... 27

3. Standard of Review of Certifications ............. 28

18

4. FISA is Subject to the "Good-Faith" Exception .... 30

19 IV. The FISA Information Was Lawfully Acquired and the

20

Electronic Surveillance and Physical Searches Were

Made in Conformity with an Order of Authorization or

21

Approval .................................................. 32

22

A. The Instant FISA Applications Met FISA's Probable

Cause Standard ........................................ 32

23

1. [CLASSIFIED MATERIAL REDACTED] . . . . . . . . . . . . . . . , ... 32

24

2. [CLASSIFIED MATERIAL REDACTED] . . . . . . . . . . . . . . . . . . . 32

3. [CLASSIFIED MATERIAL REDACTED] . . . . . . . . . . . . . . . . . . . 32

25

a. [CLASSIFIED MATERIAL REDACTED] . . . . . . . . . . . . . . 32

26

b. [CLASSIFIED MATERIAL REDACTED] . . . . . . . . . . . . . . 32

c. Conclusion: The Information Acquired from

27

the Targeted Facilities, Places, Property,

28

or Promises Was Lawfully Acquired .......... 32

i

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TABLE OF CONTENTS

DESCRIPTION

PAGE

1

B. The Certifications Complied with FISA ................. 33

2

1. Foreign Intelligence Information ................. 33

3

2. "A Significant Purpose" .......................... 33

3. Information Not Reasonably Obtainable

4

Through Normal Investigative Techniques .......... 33

5

C. [CLASSIFIED MATERIAL REDACTED] . . . . . . . . . . . . . . . . . . . . . . . . 33

6

D. All Electronic Surveillance and Physical Searches

Were Conducted in Conformity with an Order of

7

Authorization or Approval ............................. 33

8

1. The Standard Minimization Procedures ............. 34

2. The FISA Information Was Appropriately Minimized . 39

9

3. [CLASSIFIED MATERIAL REDACTED] . . . . . . . . . . . . . . . . . . . 40

10 V. The Court Should Reject the Defendant's Legal Arguments .... 40

A. The Defendant's Constitutional Arguments Lack Merit

40

11

1. The FISA Applications Were Not Based Solely on

12

Protected First Amendment Activity ............... 41

2. The Probable Cause Standard of FISA Complies

13

with the Fourth Amendment's Reasonableness

14

Requirement ...................................... 41

15

3. The Court's In Camera and Ex Parte Review

Comports with the Fifth Amendment's Due Process

16

and Sixth Amendment's Counsel and

17

Confrontation Clauses ............................ 43

B. The Defendant Has Not Established Any Basis to

18

Disclose the FISA Materials ........................... 45

19

C. The Defendant Has Not Established Any Basis

for the Court to Conduct a Franks Hearing ............. 48

20

D. The Defendant Has Not Established Any Basis for

21

the Court to Suppress the FISA information ............ 52

VI. Conclusion: There is No Basis to Disclose the FISA

22

Materials, to Conduct a Franks Hearing, or to Suppress

23

the FISA Information ...................................... 53

24

25

26
27

28
ii

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TABLE OF AUTHORITIES

DESCRIPTION

PAGE

1 FEDERAL CASES

2 ACLU Found. of So. Cal. v. Barr, 952 F.2d 457 (D.C. Cir. 1991) .......................... 23, 33
3

4

CIA v. Sims,
471 u.s. 159 (1985) .................................... 21, 22

5

Franks v. Delaware,

6

438 u.s. 154 (1978) ................................ 28, 49, 50

7 Halperin v. CIA,

8

629 F.2d 144 (D.C. Cir. 1980) .............................. 22

9 In re Grand Jury Proceedings of the Spec. Apr. 2002 Grand Jury, 347 F.3d 197 (7th Cir. 2003) ........................... 19, 29

10

In re Kevork,

11

634 F. Supp. 1002 (C.D. Cal. 1985), aff'd,

788 F.2d 566 (9th Cir. 1986) ........................... 20, 35 12

13

In re Sealed Case, 310 F. 3d 717 (FISA Ct. Rev. 2002) .............. 27, 34, 35, 42

14

Massachusetts v. Sheppard,

15

468 u.s. 981 (1984) ....................................... 31

16 Phillippi v. CIA,

17

655 F.2d 1325 (D.C. Cir. 1981) ............................. 21

18

San Francisco Arts & Athletics, Inc., v. United States Olympic Comm.,
483 u.s. 522 (1987) ........................................ 40

19

Scott v. United States,

20

436 u.s. 128 (1978) ........................................ 38

21 United States v. Abu-Jihaad,

22

531 F. Supp. 2d 299 (D. Conn. 2008), aff'd,

630 F.3d 102 (2d Cir. 2010) ............................ passim

23

United States v. Ahmed,

24

No. 1:06-CR-147, 2009 U.S. Dist. Lexis 120007

25

(N.D. Ga. Mar. 19, 2009) ............. 26, 27, 28, 29, 31, 55

26

27

28

i

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TABLE OF AUTHORITIES

DESCRIPTION

PAGE

1

FEDERAL CASES CONT'D

2

United States v. Alwan,

3

No. 1:11-CR-13, 2012 WL 399154 (W.D. Ky. Feb. 7, 2012) ... 29

4 United States v. Badia,

5

827 F.2d 1458 (11th Cir. 1987) ............... 20, 28, 29, 41

6 United States v. Belfield
692 F. 2d 141 (D.C. cir. 1982) ........................ passim

7

8

United States v. Benkahla r 437 F. Supp. 2d 541 (E. D. Va. 2006) . . . . . . . . . . . . . . . . . . 24, 44

9 United States v. Bin Laden,

10

126 F. Supp. 2d 264 (S.D.N. Y. 2000) . . . . . . . . . . . . . . . . . . 34, 35

11 United States v. Butenko,

4 94 F.2d 593 (3th Ci r. 1974), cert. denied sub nom.

12

Ivanov v. United States, 419 U.S. 881 (1974) ............. 53

13 United States v. CamJ2a,

14

529 F.3d 980 (11th cir. 2008) ........................ 28, 29

15 United States v. Canfield r
212 F.3d 713 (2d Cir. 2000) ............................. 31 16

17

United States v. Cavanagh r 807 F.2d 787 (9th Cir. 1987) ..................... 27, 28, 42

18

United States v. Colkley,

19

899 F.2d 2 97, (4th cir. 1990) ............................ 49

20 United States v. Craighead,
539 F. 3d 1073 (9th cir. 2008) ............................ 49
21

22

United States v. Damrah, 412 F. 3d 618 (6th Cir. 2005) ..................... 23, 43, 53

23

United States v. Daoud,

24

2014 WL 321384 (N.D. Ill. Jan. 29, 2014), rev'd

755 F.3d 479, (7th cir. 2014) ........................ passim
25

26

27

28

ii

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TABLE OF AUTHORITIES

DESCRIPTION

PAGE

1

FEDERAL CASES CONT'D

2

United States v. Duggan,

3

743 F.2d 59 (2d Cir. 1984) ... 17, 18, 28, 29, 30, 31, 42, 46

4 United States v. Duka,

5

671 F. 3d 329 (3d Cir. 2011) ...................... 16, 28, 30

6 United States v. El-Mezain ,
664 F.3d 467 (5th Cir. 2011) ........ 16, 17, 18, 19, 23, 28

7

United States v. Falcone,

8

364 F. Supp. 877 (D.N .J. 1973),

9

aff'd, 500 F.2d 1401 (3rd Cir. 1974) ................. 38, 39

10 United States v. Falvey, 540 F. Supp. 1306 (E. D.N. Y. 1982) . . . . . . . . . . . . . . . . 24, 43, 45

11

United States v. Garcia,

12

413 F. 3d 201 (2d Cir. 2005) .............................. 30

13 United States v. Gowadia,

14

No. 05-00486, 2009 WL 1649714

(D. Haw. June 8, 2009 ) ............................... 19,23

15

United States v. Hamrnoud,

16

381 F. 3d 316 (4th Cir . 2004), rev'd on other grounds,

17

543 u.s. 1097 (2005), op. reinstated in pertinent part,
405 F. 3d 1034 (4th Cir. 2005) ................ 26, 35, 37, 38

18 United States v. Hassoun,

19

No. 04-60001, 2007 WL 1068127

(S.D. Fla. Apr. 4, 20 07) ............................. 20, 51

20

United States v. Hill,

21

459 F.3d 966, (9th Ci r. 2006) ............................ 27

22 United States v. Hussein,

23

No. 13CR1514-JM, 2014 WL 1682845

(S.D. Cal. April 2 9, 2014) .............................. 44

24

United States v. I sa,

25

923 F. 2d 1300 (8th Ci r. 1991) .................... 19, 38, 44

26

27

28

iii

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 8 of 67 Page ID #:652

TABLE OF AUTHORITIES

DESCRIPTION

PAGE

1

FEDERAL CASES CONT'D

2

United States v. Islamic Am. Relief Agency

3

No. 07-00087-CR-W-NKL, 2009 WL 516953 6

(W.D. Mo. Dec. 21, 2009) • 0 0 0 • • • • • • • • •

17, 21, 29, 30,38

4

5

United States v. Jamal,
2011 u.s. Dist. LEX IS 12224 (D. Az. February 11, 2011) ... 44

6

United States v. Jayyousi,

7

No. 04-60001, 2007 WL 851278 (S.D. Fl a. Mar. 15, 2007),

aff'd, 657 F. 3d 1085 (11th Cir. 2011) ................ 19, 24 8

9 United States v. JoseJ2h, 709 F. 3d 1082 (11th Cir. 2013) 0 0 •• 0 • 0 .................... 27

10 United States v. Kabir,

11

5:12-CR-00092-VAP, Doc. No. 277

(C. D. Cal., May 5, 2014) 0 •• 0 ••••••••• . . . . . . . . . . . . . . ,.24, 26 12

13

United States v. Kashmiri, No. 09-CR-830-4, 2010 WL 4705159

14

(N.D. Ill. Nov. 10, 2010) ........ 17, 18, 19, 26, 29, 30, 51

15 United States v. Ketzeback,
358 F. 3d 987 (8th Cir. 2004) • 0 ••••• 0 • • . • • • • • . • • . • • • . • • • • • 4 9 16

United States v. Krupa,

17

658 F. 3d 1174 (9th Cir. 2011) 0 0 0 • 0 0 • 0 . . . • • • • • • . . . . . . . . . . . 2 6

18 United States v. Lahiji,

19

2013 WL 550492 (D. Or. February 12, 2 013) . . . . . . . . . . . . . . . . 44

20 United States v. Leon,

u.s. 468

897 (1984) . . . . . . . . . . . . 30, • • • • • • 0 0 0 0 0 0 • • • • • • 31, 54

21

22 United States v. Martin, 615 F.2d 318 (5th Cir. 1980) •• 0 •••••• •••••..•.•.........• 49

23

United States v. Medunjanin,

24

No. 10-CR-19-1, 2012 WL 526428

(S.D.N.Y. Feb. 16, 2012) 0 ••••••••• 0 •• . ............... 39, 47 25

. ... 26

United States v. Megahey, 553 F. Supp. 1180 (E.D.N.Y. 1982)

................ 24, 44

27

28

iv

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 9 of 67 Page ID #:653

TABLE OF AUTHORITIES

DESCRIPTION

PAGE

1

FEDERAL CASES CONT'D

2

United States v. Mihalik,

3

11-CR-833 (A), Doc. No . 108

(C. D. Cal., Oct. 3, 2 012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 4

5

United States v. Mohamud, No. 3:10-CR-00475-KI- 1, 2014 WL 2866749

6

(D.Or., June 24, 2014 ) • • • • • • • • • • • • • • • • • • • • • • • • • . • • • • • • • • • 47

7 United States v. Mubayyid,

521 F. Supp. 2d 125

8

(D.

Mass.

2007)

.. ........... 19,
0 ••••

36,

38,

43,

51,

52,

55

9 United States v. Nicholson

10

No. 09-CR-40, 2010 WL 1641167

(D. Or. Apr. 21, 2010 ) ....... 17, 18, 19, 24, 26, 29, 44, 55

11

United States v. Ning Wen,

12

477 F. 3d 896 (7th Cir . 2007) ..................... 30, 42, 54

13 United States v. Ott,

14

827 F. 2d 473 (9th Cir . 1987) ......................... 21, 23

15 United States v. Pelton,
835 F.2d 1067 (4th Ci r. 1987) ........................ 16, 43 16

United States v. Rahman,

17

861 F. Supp. 247 (S. D.N.Y. 1994), aff'd,

18

189 F.3d 88 (2d Cir. 1999) ................... 13, 29, 34, 36

19 United States v. Robinson, 724 F. 3d 878 (7th Cir . 2013) ............................. 27
20

United States v. Rosen,

21

447 F. Supp. 2d 538

22

(E. D.

Va.

2006)

.. .............. 13,
0 •• 0 ••

18,

19,

26,

29,

36

23 United States v. Sa1ameh, 152 F. 3d 88 (2d Cir. 1998) ............................... 35

24

United States v. Sattar,

25

No. 02-CR-395, 2003 wL 22137012 (S.D.N.Y. 2003) .......... 19

26 United States v. Sherifi,

27

793 F. Supp. 2d 751 (E.D.N.C. 2011) .................. 28, 29

28

v

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 10 of 67 Page ID #:654

TABLE OF AUTHORITIES

DESCRIPTION

PAGE

1

FEDERAL CASES CONT'D

2

United States v. Shnewer,

3

2008 U.S. Dist. LEXIS 112001, at 38 (2009) ........... 49, 51

4 United States v. Spanjol,

5

720 F. Supp. 55 (E.D. Pa. 1989), aff'd, 958 F. 2d 365 (3d Cir. 1992) .................. 18, 19, 23, 53

6

United States v. Stewart,

7

590 F. 3d 93 (2d Cir. 2009) ............................... 19

8 United States v. Thomson,

9

752 F. Supp. 75 (W.D.N. Y. 1990) . . . . . . . . . . . . . . 19, 20, 35, 37

10

United States v. United States District Court,
407 u.s. 297 (1972) .......................... 28, 37, 41, 42

11

United States v. U.S. Gypsum Co.,

12

333 u.s. 364 (1948) ...................................... 30

13 United States v. Warsame,

14

547 F. Supp. 2d 982 (D. Minn. 2008) .................. passim

15 United States v. Yunis,
867 F.2d 617 (D.C. Cir. 1989) ............................ 22 16

17

18

19

20

21

22

23

24

25

26

27

28

vi

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 11 of 67 Page ID #:655

DESCRIPTION 1

TABLE OF AUTHORITIES

PAGE

U.S. CONSTITUTION 2

Amend. I ..................................... 13, 40, 41, 45, 48 3

4 Amend. IV .................... 2 4, 2 7, 30, 37, 40, 41, 42, 43, 44

5 Amend. V ............................................. 40, 43, 45

6 Amend. VI ........................................ 40, 43, 44, 45

7 Amend. XIV ................................................... 84

8 FEDERAL STATUTES

9 50 u. S . c . § 18 01 .......................................... passim

10 50 u.s.c. §§ 1801-1812 ......................................... 1

11 50 u.s.c. § 1803 ............................................. 4,5

12 50 U.S.C. § 1804 .......................................... passim
50 u.s.c. § 1805 .................................. 14, 20, 23, 24
13 50 U.S.C. § 1806 .......................................... passim
14 50 U.S.C. § 1821 .......................................... passim

15 50 u.s.c. §§ 1821-1829 ...................................... 1, 2

16 50 u.s.c. § 1823 ..................................... 6, 8, 9, 10

17 50 u.s.c. § 1824 ................................ 5, 6, 10, 13, 14

50 U.S.C. § 1825 .......................................... passim 18

Uniting and Strengthening America by Providing Appropriate Tools

19

Required to Intercept and Obstruct Terrorism Act ("PATRIOT

Act"), Pub. L. No. 107-56, 115 Stat. 272 (2001) ........... 4 20

21 OTHER AUTHORITIES

Fed. R. Crim. P. 41 ........................................... 27 22

H.R. Rep. No. 95-1283, 95th Cong., 2d Sess.,

23

Pt. 1 (1978) ................................. 3 5, 3 6, 37, 39

24 s. Rep. No. 95-701, 95th Cong., 2d Sess.

25

(1978) ...................................... 37' 38, 42, 46, 47

26

27

28

vii

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 12 of 67 Page ID #:656

1 I . INTRODUCTION

2

The Government is filing this unclassified memorandum in

3 opposition to defendant Keith Preston Gartenlaub' s (Gartenlaub)
4 Motion for Disclosure and Memorandum of Point and Authorities to 5
Suppress the Fruits or Derivatives of Any Evidence Collected Pursuant 6
to FISA or Other Foreign Intelligence Gathering (defendant ' s motion) 7 8 (Docket Entry (Doc . ) 70) . The defendant seeks : (1 ) disclosure of the
9 documents underlying electronic surveillance and physical searches

10 conducted pursuant to the Foreign Intelligence Surveillance Act

11 (FISA) (i . e ., the FISA materials) ; and (2) suppression of any

12 evidence derived from FISA search or surveillance (i . e ., the FISA

13 information) . Doc . 70 at pp . 2-3. . 1

14 [CLASSIFIED MATERIAL REDACTED] 2 • 3
15

16

For the reasons set forth below and from the Court ' s in camera ,

17 ex parte review of the FISA materials submitted herewith , it is

18 conclus i vely established that : (1 ) the electronic surveillance and

19 physical searches at issue were both lawfully authorized and lawfully

20

1 [CLASSIFIED MATERIAL REDACTED]

21 2 The provisions of FISA that address electronic surveillance are

22 found at 50 U. S . C . §§ 1801-1812 ; those that address physical searches are found at 50 U. S . C . §§ 1821-1829 . These two sets of provisions

23 are in many respects parallel and almost identical . Citations herein

are generally to the two sets of provisions in parallel , with the 24 first citation being to the relevant electronic surveillance

25

provision , and the second citation being to the relevant physical search provision .

26 3 The Attorney General ' s affidavit ("Declaration and Claim of

27

Privilege") is filed both publicly and as an exhibit in the Sealed Appendix to this unclassified filing . See Sealed Exhibit 1 .

28

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 13 of 67 Page ID #:657

1 conducted in compliance with FISA; (2) disclosure to the defendant of
2 the FISA materials and the Government's classified submissions is not
3 authorized because the Court is able to make an accurate 4
determination of the legality of the surveillance and searches 5
without disclosing the FISA materials or portions thereof; (3) the 6 7 fruits of the electronic surveillance and physical searches should
8 not be suppressed; (4) the defendant's motion should be denied to the

9 extent that it seeks disclosure of FISA materials; and (5) no hearing

10 is required.

11

A. BACKGROUND

12 [CLASSIFIED MATERIAL REDACTED]
13 On August 27, 2014, pursuant to 50 U.S.C. §§ 1806(c) and
14
15 1825(d), the United States provided notice to the defendant that it

16 "intends to offer into evidence, or otherwise use or disclose in any

17 proceedings in the above-captioned matter, information obtained or

18 derived from electronic surveillance and physical search conducted

19 pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA),

20 as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829.n Doc. 9. On
21 February 2, 2015, the defendant filed, under seal, his motion which
22 seeks, among other things, disclosure of the FISA materials and
23
24 suppression of the FISA information. Doc. 70.

25

[CLASSIFIED MATERIAL REDACTED] 4

26 4 As a result of the redactions, the pagination and footnote 27 numbering of the classified memorandum and the unclassified
memorandum are different.
28

2

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 14 of 67 Page ID #:658

1

In subsequent sections of this Memorandum, the Government will:

2 (1) present an overview of the FISA authorities at issue in this
3 case; (2) discuss the FISA process; (3) address the manner in which
4 the Court should conduct its in camera, ex parte review of the FISA
5 materials; (4) summarize the facts supporting the FISC's probable
6 cause determinations at issue (all of which information is contained
7
8 fully in the exhibits in the Sealed Appendix); (5) discuss the

9 relevant minimization procedures; and (6) address the defendant's

10 arguments in support of his motion. All of the Government's
11 pleadings and supporting FISA materials are being submitted not only 12
to oppose the defendant's motion, but also to support the United 13
States' request, pursuant to FISA, that this Court: (1) conduct an in 14
camera, ex parte review of the FISA materials; (2) find that the FISA 15 16 information at issue was lawfully acquired and that the electronic
17 surveillance and physical searches were conducted in conformity with
18 an order of authorization or approval; (3) deny the defendant's

19 request that the FISA information be suppressed; and (4) order that

20 none of the FISA materials be disclosed to the defense, and instead,

21 that they be maintained by the United States under seal.
22 B. OVERVIEW OF THE FISA AUTHORITIES
23
[CLASSIFIED MATERIAL REDACTED] 24

25

1. [CLASSIFIED MATERIAL REDACTED]

26

[CLASSIFIED MATERIAL REDACTED]

27

2. The FISC's Findings

28

[CLASSIFIED MATERIAL REDACTED]

3

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 15 of 67 Page ID #:659

1 II. THE FISA PROCESS

2

A. OVERVIEW OF FISA

3

Enacted in 1978, and subsequently amended, FISA authorizes the

4 Chief Justice of the United States to designate eleven United States
5
District Judges to sit as judges of the FISC. 50 u.s.c.
6
7 § 1803 (a) (1). The FISC judges are empowered to consider ex parte

8 applications submitted by the Executive Branch for electronic

9 surveillance and physical searches when a significant purpose of the

10 application is to obtain foreign intelligence information, as defined

11 in FISA. Rulings of the FISC are subject to review by the Foreign

12 Intelligence Surveillance Court of Review (FISC of Review), which is
13 composed of three United States District or Circuit Judges who are
14
designated by the Chief Justice. 50 u.s.c. § 1803(b).
15

16

As originally enacted, FISA required that a high-ranking member

17 of the Executive Branch of Government certify that "the purpose" of

18 the FISA application was to obtain foreign intelligence information.
19 In 2001, FISA was amended as part of the Uniting and Strengthening
20 America by Providing Appropriate Tools Required to Intercept and 21 Obstruct Terrorism Act ("USA PATRIOT Act"). 5 One change to FISA 22
accomplished by the USA PATRIOT Act is that a high-ranking official 23 24 is now required to certify that the acquisition of foreign 25 intelligence information is "a significant purpose" of the requested
26 surveillance. 50 U.S.C. § 1804(a) (6) (B).

27 5 Pub. L. No. 107-56, 115 Stat. 272 (2001).
28

4

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 16 of 67 Page ID #:660

1

FISA provides that the Attorney General may authorize the

2 emergency employment of electronic surveillance and physical searches

3 if the Attorney General

4 (A) reasonably determines that an emergency situation

5

exists with respect to the employment of electronic

surveillance [or physical search] to obtain foreign

6

intelligence information before an order authorizing

such surveillance can with due diligence be obtained;
7

8

(B) reasonably determines that the factual basis for

the issuance of an order under this title to approve

9

such electronic surveillance [or physical search]

exists;

10

(C) informs, either personally or through a designee,

11

a judge having jurisdiction under [50 U.S.C. § 1803]

12

at the time of such authorization that the decision

has been made to employ emergency electronic

13

surveillance [or physical search]; and

14

(D) makes an application in accordance with this

title to a judge having jurisdiction under section 103

15

as soon as practicable, but not later than seven days

16

after the Attorney General authorizes such electronic surveillance [or physical search].

17 50 U.S.C. §§ 1805(e) (1), 1824(e) (1) . 6 Emergency electronic
18 surveillance or physical searches must comport with FISA's
19
20 minimization requirements, which are discussed below. 50 u.s.c.

21 §§ 1805 (e) (2), 1824 (e) (2). 7

22 6 [CLASSIFIED MATERIAL REDACTED]
23

24 7 If no FISC order authorizing the electronic surveillance or physical searches is issued, emergency surveillance or searches must

25 terminate when the information sought is obtained, when the FISC

denies an application for an order, or after the expiration of seven 26 days from the time of the emergency employment, whichever is

27

earliest. See 50 U.S.C. §§ 1805 (e) (3), 1824 (e) (3). Moreover, if no FISC order is issued, absent a showing of good cause, the FISC shall

28 cause to be served on any U.S. person named in the application, and (footnote cont'd on next page)

5

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 17 of 67 Page ID #:661

1

B. THE FISA APPLICATION

2

FISA provides a statutory procedure whereby the Executive Branch

3 may obtain a judicial order authorizing the use of electronic
4 surveillance, physical searches, or both, within the United States
5 where a significant purpose is the collection of foreign intelligence
6 information. 8 50 U.S.C. §§ 1804 (a) (6) (B), 1823 (a) (6) (B). Under
7

8 FISA, " [f] oreign intelligence information" means:

9

(1) information that relates to, and if concerning a

United States person9 is necessary to, the ability of the

10

United States to protect against -

11

(A) actual or potential attack or other grave hostile

12

acts of a foreign power or an agent of a foreign

power;

13

(B) sabotage, international terrorism, or the

14

international proliferation of weapons of mass

destruction by a foreign power or an agent of a

15

foreign power; or

16

(C) clandestine intelligence activities by an

17

intelligence service or network of a foreign power or

18

others in the FISC's discretion, notice of the fact of the 19 application, the period of the surveillance, and the fact that during

the period information was or was not obtained. See 50 U.S.C. 20 § 1806(j); see also 50 U.S.C. § 1824 (j) (1) (physical searches). In

21 addition, if no FISC order is issued, neither information obtained nor evidence derived from the emergency electronic surveillance or

22 physical search may be disclosed in any court or other proceeding,

and no information concerning a United States person acquired from

23 the electronic surveillance or physical search may be used in any

other manner by Federal officers or employees without the person's 24 consent, except with the approval of the Attorney General if the

25

information indicates a threat of death or serious bodily harm.
50 u.s.c. §§ 1805(e) (5), 1824(e) (5).

See

26 8 [CLASSIFIED MATERIAL REDACTED]

27 9 [CLASSIFIED MATERIAL REDACTED]

28

6

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 18 of 67 Page ID #:662

1

by an agent of a foreign power; or

2

(2) information with respect to a foreign power or foreign

3

territory that relates to, and if concerning a United States person is necessary to -

4

(A) the national defense or the security of the

5

United States; or

6

(B) the conduct of the foreign affairs of the United

7

States.

8 50 U.S.C. § 1801(e). See also 50 U.S.C. § 1821(1), adopting the

9 definitions from 50 U.S.C. § 1801. With the exception of emergency

10 authorizations, FISA requires that a court order be obtained before

11 any electronic surveillance or physical searches may be conducted.

12

An application to conduct electronic surveillance pursuant to

13
FISA must contain, among other things: 14

15

(1) the identity of the federal officer making the application;

16

(2) the identity, if known, or a description of the

17

specific target of the electronic surveillance;

18

(3) a statement of the facts and circumstances supporting

probable cause to believe that the target is a foreign

19

power or an agent of a foreign power, and that each

20

facility or place at which the electronic surveillance is directed is being used, or is about to be used, by a

21

foreign power or an agent of a foreign power;

22

(4) a statement of the proposed minimization procedures to

be followed;

23

24

(5) a description of the nature of the information sought and the type of communications or activities to be

25

subjected to the surveillance;

26

(6) a certification, discussed below, of a high-ranking

official;

27

28

(7) a summary of the manner or means by which the electronic surveillance will be effected and a statement

7

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 19 of 67 Page ID #:663

1

whether physical entry is required to effect the electronic

surveillance;

2

3

(8) the facts concerning and the action taken on all previous FISA applications involving any of the persons,

4

facilities, or places specified in the application; and

5

(9) the proposed duration of the electronic surveillance.

6 50 U.S.C. § 1804 (a) (1)-(9).

7

An application to conduct a physical search pursuant to FISA

8 must contain similar information as an application to conduct
9
electronic surveillance except that an application to conduct a 10
physical search must also contain a statement of the facts and 11
circumstances that justify an applicant's belief that "the premises 12
13 or property to be searched contains foreign intelligence information"

14 and that each "premises or property to be searched is or is about to

15 be, owned, used, possessed by, or is in transit to or from" the

16 target. 50 U.S.C. §§ 1823 (a) (1)- (8).

17

1. The Certification

18 An application to the FISC for a FISA order must include a
19 certification from a high-ranking executive branch official with
20

21 national security responsibilities that:

22

(A) the certifying official deems the information sought

to be foreign intelligence information;

23

(B) a significant purpose of the surveillance is to obtain

24

foreign intelligence information;

25

(C) such information cannot reasonably be obtained by

26

normal investigative techniques;

27

(D) designates the type of foreign intelligence

information being sought according to the categories

28

described in [50 U.S.C. §] 1801(e); and

8

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 20 of 67 Page ID #:664

1

(E) includes a statement of the basis for the

2

certification that -

3

(i) the information sought is the type of foreign

4

intelligence information designated; and

5

(ii) such information cannot reasonably be obtained

by normal investigative techniques.

6

50 U.S. C. § 1804 (a) (6); see also 50 U.S.C. § 1823 (a) (6). 7

8

2. Minimization Procedures

9

The Attorney General has adopted, and the FISC has approved,

10 minimization procedures that regulate the acquisition, retention, and

11 dissemination of non-publicly available information concerning

12 unconsenting United States persons obtained through FISC-approved
13 electronic surveillance or physical searches, including persons who
14 are not the targets of the FISA authorities. FISA requires that such
15
16 minimization procedures be:

17

reasonably designed in light of the purpose and

technique of the particular surveillance, to minimize

18

the acquisition and retention, and prohibit the

dissemination, of nonpublicly available information

19

concerning unconsenting United States persons

consistent with the need of the United States to

20

obtain, produce, and disseminate foreign intelligence

21

information.

22 50 U.S.C. §§ 180l(h) (1), 1821(4) (A).

23

In addition, minimization procedures also include "procedures

24 that allow for the retention and dissemination of information that is
25 evidence of a crime which has been, is being, or is about to be
26 committed and that is to be retained or disseminated for law
27 enforcement purposes." 50 U.S.C. §§ 1801 (h) (3), 1821 (4) (c).
28

9

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 21 of 67 Page ID #:665

1

[CLASSIFIED MATERIAL REDACTED]

2

3. Attorney General's Approval

3

FISA further requires that the Attorney General approve

4 applications for electronic surveillance, physical searches, or both,
5 before they are presented to the FISC.
6
C. THE FISC'S ORDERS
7

8

Once approved by the Attorney General, the application is

9 submitted to the FISC and assigned to one of its judges. The FISC

10 may approve the requested electronic surveillance, physical searches,

11 or both, only upon finding, among other things, that:

12

(1) the application has been made by a "Federal

13

officeru and has been approved by the Attorney

General;

14

(2) there is probable cause to believe that (A) the

15

target of the electronic surveillance and/or physical

16

search is a foreign power or an agent of a foreign power, and that (B) the facilities or places at which

17

the electronic surveillance is directed are being

used, or are about to be used, by a foreign power or

18

an agent of a foreign power (or that the premises or

property to be searched is, or is about to be, owned,

19

used, possessed by, or is in transit to or from, a

20

foreign power or an agent of a foreign power);

21

(3) the proposed minimization procedures meet the

statutory requirements set forth in 50 U.S.C.

22

§ 1801(h) (electronic surveillance) and 50 U.S.C.

§ 1821 (4) (physical search);

23

(4) the application contains all of the statements

24

and certifications required by Section 1804 or Section

25

1823; and

26

(5) if the target is a United States person, that the

certifications are not clearly erroneous.

27

50 U. S. C. §§ 18 0 5 (a) (1) - ( 4 ) , 18 2 4 (a) (1) - ( 4) . 28

10

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 22 of 67 Page ID #:666

1

FISA defines "foreign power" to mean -

2

(1) a foreign government or any component, thereof,

3

whether or not recognized by the United States;

4

(2) a faction of a foreign nation or nations, not

substantially composed of United States persons;

5

(3) an entity that is openly acknowledged by a

6

foreign government or governments to be directed and

7

controlled by such foreign government or governments;

8

(4) a group engaged in international terrorism or

activities in preparation therefor,

9

(5) a foreign-based political organization, not

10

substantially composed of United States persons;

11

(6) an entity that is directed and controlled by a

12

foreign government or governments; or

13

(7) an entity not substantially composed of United

States persons that is engaged in the international

14

proliferation of weapons of mass destruction.

15 50 U.S.C. §§ 1801(a) (1)-(7); see also 50 U.S.C. § 1821(1), adopting

16 definitions from 50 U.S.C. § 1801.

17 "Agent of a foreign power" means -
18

(1) any person other than a United States person,

19

who-

20

(A) acts in the United States as an officer or

21

employee of a foreign power, or as a member of a

foreign power as defined in subsection (a) (4);

22

(B) acts for or on behalf of a foreign power

23

which engages in clandestine intelligence

24

activities in the United States contrary to the interests of the United States, when the

25

circumstances of such person's presence in the

United States indicate that such person may

26

engage in such activities in the United States,

or when such person knowingly aids or abets any

27

person in the conduct of such activities or

knowingly conspires with any person to engage in

28

such activities;

11

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 23 of 67 Page ID #:667

1

(C) engages in international terrorism or

2

activities in preparation therefore [sic];

3

(D) engages in the international proliferation

4

of weapons of mass destruction, or activities in

preparation therefor; or

5

(E) engages in the international proliferation

6

of weapons of mass destruction, or activities in

preparation therefor for or on behalf of a

7

foreign power; or

8 (2) any person who -

9

(A) knowingly engages in clandestine

10

intelligence gathering activities for or on

behalf of a foreign power, which activities

11

involve or may involve a violation of the

12

criminal statutes of the United States;

13

(B) pursuant to the direction of an intelligence

service or network of a foreign power, knowingly

14

engages in any other clandestine intelligence

activities for or on behalf of such foreign

15

power, which activities involve or are about to

16

involve a violation of the criminal statutes of the United States;

17 (C) knowingly engages in sabotage or

18

international terrorism, or activities that are

in preparation therefor, for or on behalf of a

19

foreign power;

20

(D) knowingly enters the United States under a

21

false or fraudulent identity for or on behalf of

a foreign power or, while in the United States,

22

knowingly assumes a false or fraudulent identity

for or on behalf of a foreign power; or

23

(E) knowingly aids or abets any person in the

24

conduct of activities described in [the

25

subparagraphs above] . . . or knowingly conspires

with any person to engage in activities described

26

in [the subparagraphs above.]

27 50 U.S.C. §§ 1801 (b) (1) and (2); see also 50 U.S.C. § 1821 (1), 28 adopting definitions from 50 U.S.C. § 1801.
12

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 24 of 67 Page ID #:668

1

FISA specifies that no United States person may be considered a

2 foreign power or an agent of a foreign power solely on the basis of
3 activities protected by the First Amendment to the Constitution of 4
the United States. 50 U.S.C. §§ 1805(a) (2) (A), 1824(a) (2) (A). 5
Although protected First Amendment activities cannot form the sole
6
basis for FISC-approved electronic surveillance or physical searches,
7
8 they may be considered by the FISC if there is other activity
9 indicative that the target is an agent of a foreign power. United

10 States v. Rosen, 447 F. Supp. 2d 538, 549-50 (E.D. Va. 2006); United

11 States v. Rahman, 861 F. Supp. 247, 252 (S.D.N.Y. 1994), aff'd, 189

12 F. 3d 88 (2d Cir. 1999). Additionally, FISA provides that "[i]n

13 determining whether or not probable cause exists .

. a judge may

14

consider past activities of the target, as well as facts and 15

16 circumstances relating to current or future activities of the

17 target." 50 U.S.C. §§ 1805(b), 1824(b).

18

If the FISC has made all of the necessary findings and is

19 satisfied that the FISA application meets the statutory provisions,

20 the FISC issues an ex parte order approving the electronic

21 surveillance, physical searches, or both, requested in the
22 application. 50 U.S.C. §§ 1805(a), 1824(a). The order must specify:
23

(1) the identity, if known, or a description of the

24

specific target of the collection;

25

(2) the nature and location of each facility or place

26

at which the electronic surveillance will be directed

or of each of the premises or properties that will be

27

searched;

28

(3) the type of information sought to be acquired and

13

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 25 of 67 Page ID #:669

1

the type of communications or activities that are to

be subjected to the electronic surveillance, or the

2

type of information, material, or property that is to

3

be seized, altered, or reproduced through the physical search;

4 (4) the manner and means by which electronic

5

surveillance will be effected and whether physical

entry will be necessary to effect that surveillance,

6

or a statement of the manner in which the physical

search will be conducted; 7

8

(5) the period of time during which electronic

surveillance is approved and/or the authorized scope

9

of each physical search; and

10

(6) the applicable minimization procedures.

11 50 u.s.c. §§ 1805 (c) (1) and 2 (A); 1824 (c) (1) and 2 (A).
12 Under FISA, electronic surveillance or physical searches
13 targeting a United States person may be approved for up to ninety
14 days, and those targeting a non-United States person may be approved
15
16 for up to one-hundred and twenty days. 50 u.s.c. §§ 1805(d) (1)'
17 1824 (d) (1) . 10 Extensions may be granted, but only if the United

18 States submits another application that complies with FISA's

19 requirements. An extension for electronic surveillance or physical
20 searches targeting a United States person may be approved for up to 21
ninety days, and one targeting a non-United States person may be 22
approved for up to one year. 11 50 U.S.C. §§ 1805(d)(2), 1824(d)(2). 23

24

25 10 [CLASSIFIED MATERIAL REDACTED]

26 11 The FISC also retains the authority to review, before the end of

27

the authorized period of electronic surveillance or physical searches, the Government's compliance with the requisite minimization

28 procedures. 50 U.S.C. §§ 1805 (d) (3), 1824 (d) (3).

14

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 26 of 67 Page ID #:670

1 III. DISTRICT COURT REVIEW OF FISC ORDERS

2

FISA authorizes the use of information obtained or derived from

3 any FISC-approved electronic surveillance or physical search in a
4 criminal prosecution, provided that advance authorization is obtained
5 from the Attorney General, 50 U.S.C. §§ 1806(b), 1825(c), and that
6
proper notice is subsequently given to the court and to each
7
8 aggrieved person against whom the information is to be used. 12 50

9 U.S.C. §§ 1806(c), (d), 1825(d), (e). Upon receiving notice, an

10 aggrieved person against whom the information is to be used may move

11 to suppress the use of the FISA information on two grounds: (1) that
12 the information was unlawfully acquired; or (2) that the electronic
13 surveillance or physical search was not conducted in conformity with
14 an order of authorization or approval. 50 U.S.C. §§ 1806(e),
15
16 1825 (f). In addition, FISA contemplates that a defendant may file a
17 motion or request under any other statute or rule of the United

18 States to discover or obtain applications or orders or other

19 materials relating to electronic surveillance or physical searches,

20 i.e., the FISA materials, 50 U.S.C. §§ 1806(f), 1825(g). When a

21 defendant moves to suppress FISA information under 50 U.S.C.
22

23 12 An "aggrieved personn is defined as the target of electronic surveillance or "any other person whose communications or activities

24 were subject to electronic surveillance,n 50 U.S.C. § 1801(k), as well as "a person whose premises, property, information, or material

25 is the target of physical searchn or "whose premises, property,

information, or material was subject to physical search. 50 U.S.C. 26 § 1821(2). Gartenlaub is an "aggrieved personn under FISA, and was

27

provided with notice of his status as such and of the Government's intent to use FISA-obtained or -derived information against him at

28 trial.

15

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 27 of 67 Page ID #:671

1 §§ 1806(e) or 1825(f), or seeks to discover the FISA materials under

2 some other statute or rule, the motion or request is evaluated using
3 FISA's probable cause standard, which is discussed below, and not the 4
probable cause standard applicable to criminal warrants. See, ~' 5
United States v. El-Mezain, 664 F.3d 467, 564 (5th Cir. 2011); United 6 7 States v. Duka, 671 F.3d 329, 336-37 (3d Cir. 2011) (rejecting
8 appellant's challenge to FISA's probable cause standard because it
9 does not require any indication that a crime has been committed);

10 United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987).

11

A. THE REVIEW IS TO BE CONDUCTED IN CAMERA AND EX PARTE

12

In assessing the legality of FISC-approved electronic

13 surveillance and physical searches, or both, the district court,
14

shall, notwithstanding any other law, if the

15

Attorney General files [as he has filed in this

16

proceeding] an affidavit or declaration under oath that disclosure or an adversary hearing

17

would harm the national security of the United

States, review in camera and ex parte the

18

application, order, and such other materials

relating to the surveillance as may be necessary

19

to determine whether the surveillance of the

20

aggrieved person was lawfully authorized ahd conducted. 13

21 50 U.S.C. §§ 1806(f), 1825(g). On the filing of the Attorney
22 General's affidavit or declaration, the court ~may disclose to the
23
24 aggrieved person, under appropriate security procedures and

25 protective orders, portions of the application, order, or other

26 materials relating to the surveillance [or physical search] only

27 13 [CLASSIFIED MATERIAL REDACTED]
28

16

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 28 of 67 Page ID #:672

1 where such disclosure is necessary to make an accurate determination
2 of the legality of the surveillance [or search]."14 50 U.S.C.
3 §§ 1806(f), 1825(g) (emphasis added). Thus, the propriety of the 4
disclosure of any FISA applications or orders to the defendant may 5
not even be considered unless and until the district court has first
6
7 concluded that it is unable to make an accurate determination of the 8 legality of the acquired collection after reviewing the Government's
9 submissions (and any supplemental pleadings that the district court

10 may request) in camera and ex parte. See United States v. Daoud, 755

11 F.3d 479, 481-82 (7th Cir. 2014); El-Mezain, 664 F.3d at 565; United
12 States v. Abu-Jihaad (Abu-Jihaad II), 630 F.3d 102, 129 (2d Cir.
13 2010); United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982);
14 United States v. Nicholson, No. 09-CR-40, 2010 WL 1641167, at *4 (D.
15 16 Or. Apr. 21, 2010) (~After an in-camera review, the court 'has the
17 discretion to disclose portions of the documents, under appropriate

18 protective procedures, only if [the court] decides that such

19 disclosure is necessary to make an accurate determination of the
20 legality of the surveillance.'") (quoting United States v. Duggan,
21 743 F.2d 59, 78 (2d Cir. 1984); United States v. Kashmiri, 2010 WL
22 4705159, at *2 (N.D. Ill. Nov. 10, 2010); United States v. Islamic
23

24 14 In United States v. Warsame, 547 F. Supp. 2d 982, 987 (D. Minn.

2008), the court addressed the meaning of ~necessary" in this 25 context: ~[t]he legislative history explains that such disclosure is

26

'necessary' only where the court's initial review indicates that the question of legality may be complicated" by factual

27 misrepresentations, insufficient identification of the target, or failure to comply with the minimization standards in the order.

28

17

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 29 of 67 Page ID #:673

1 Am. Relief Agency ("IARA"), No. 07-00087-CR-W-NKL, 2009 WL 5169536,

2 at *3-4 (W.D. Mo. Dec. 21, 2009).

3

If the district court is able to make an accurate determination

4 of the legality of the electronic surveillance, physical searches, or
5 both, based on its in camera, ex parte review of the materials
6
submitted by the United States, then the court may not order
7

8 disclosure of any of the FISA materials to the defense, unless

9 otherwise required by due process. Daoud, 755 F.3d 479, 484-85; El-

10 Mezain, 664 F.3d at 566; Duggan, 743 F.2d at 78; Kashmiri, 2010 WL

11 4705159, at *2.

12

1. In Camera, Ex Parte Review is the Rule

13 Federal courts have repeatedly and consistently held that FISA
14
"anticipates that an ex parte, in camera determination is to be the 15

16 rule," with disclosure and an adversarial hearing being the

17 "exception, occurring only when necessary." Belfield, 692 F.2d at

18 147 (emphasis in original); accord, El-Mezain, 664 F.3d at 567

19 ("[D]isclosure of FISA materials is the exception and ex parte, in

20 camera determination is the rule") (citing Abu-Jihaad II, 630 F. 3d at

21 129); Duggan, 743 F.2d at 78; Rosen, 447 F. Supp. 2d at 546;
22 Nicholson, 2010 WL 1641167 at *3-4; United States v. Spanjol, 720 F.
23
24 Supp. 55, 59 (E.D. Pa. 1989), aff'd, 958 F.2d 365 (3d Cir. 1992).

25

In fact, every court but one that has addressed a motion to

26 disclose FISA materials or to suppress FISA information has been able

27 to reach a conclusion as to the legality of the FISA collection at 28

18

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 30 of 67 Page ID #:674

1 issue based on its in camera, ex parte review. 15 See, e.g., El-
2 Mezain, 664 F.3d at 566 (quoting district court's statement that no
3 court has ever held an adversarial hearing to assist the court); In 4
re Grand Jury Proceedings of the Special Apr. 2002 Grand Jury ("In re 5
Grand Jury Proceedings"), 347 F.3d 197, 203 (7th Cir. 2003) (noting 6
that no court had up to that time ordered disclosure of FISA
7
8 materials); United States v. Isa, 923 F.2d 1300, 1306 (8th Cir.
9 1991); Spanjol, 720 F. Supp. at 58-59; United States v. Sattar, No.

10 02-CR-395, 2003 WL 22137012, at *6 (S.D.N.Y. 2003) (citing Nicholson,

11 955 F. Supp. at 592 & n. 11 (noting "this court knows of no instance
12 in which a court has required an adversary hearing or disclosure in
13 determining the legality of a FISA surveillance"); United States. v.
14 Stewart, 590 F.3d 93 (2d Cir. 2009); United States v. Thomson, 752 F.
15 16 Supp. 75, 79 (W.D.N.Y. 1990); Abu-Jihaad I, 531 F. Supp. 2d at 310;
17 United States v. Mubayyid, 521 F. Supp. 2d 125, 130 (D. Mass. 2007);

18 Rosen, 447 F. Supp. 2d at 546; United States v. Gowadia, No. 05-

19 00486, 2009 WL 1649714, at *2 (D. Haw. June 8, 2009); Kashmiri, 2010

20 WL 4705159, at *2-3; United States v. Jayyousi, No. 04-60001, 2007 WL

21 851278, at *7-8 (S.D. Fla. Mar. 15, 2007), aff'd, 657 F.3d 1085 (11th

22

23

15 The district court in nnit.Arl St.At.P.s v. Daoud, No. 12-CR-723 (N.D. Ill. Jan. 29, 2014), ruled that it was capable of making the

24 determination, but nevertheless ordered the disclosure of FISA materials. The Government appealed the Daoud court's order to the

25 U.S. Court of Appeals for the Seventh Circuit, which overturned the

district court's decision to disclose, stating, "[s]o clear is it 26 that the materials were properly withheld from defense counsel that

27

there is no need for a remand to enable the district judge to come to the same conclusion, because she would have to do so." Daoud, 755

28 F.3d at 485.

19

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 31 of 67 Page ID #:675
1 Cir. 2011) ; 16 United States v. Hassoun, 2007 WL 1068127, *4 (S.D. Fla.
2 April 2, 2007); United States v. Badia, 827 F.2d 1458, 1463 (11th 3 Cir. 1987). 4
As the Court will see from its examination of the exhibits in 5
the Sealed Appendix, there is nothing extraordinary about the instant 6
FISC-approved electronic surveillance and physical searches that
7
8 would justify the production and disclosure of highly sensitive and
9 classified material or the suppression of the FISA-obtained or
10 -derived evidence. The FISA materials are well-organized and easily
11 reviewable by the Court in camera and ex parte, and they are fully 12
and facially sufficient to allow the Court to make an accurate 13
determination that the FISA information was lawfully acquired and 14
that the electronic surveillance and physical searches were made in 15 16 conformity with an order of authorization or approval. In other
17 words, the materials presented "are straightforward and readily
18 understood." In re K~vork, 634 F. Supp. 1002, 1008 (C.D. Cal. 1985),
19 aff'd, 788 F.2d 566 (9th Cir. 1986). Moreover, as in other cases, 20 "[t]he determination of legality in this case is not complex." 21
Belfield, 692 F.2d at 147; see also Warsame, 547 F. Supp. 2d at 987 22
("issues presented by the FISA applications are straightforward and 23 24 uncontroversial"); Abu-Jihaad I, 531 F. Supp. 2d at 310; Thomson, 752 25 F. Supp. at 79. This Court, much like the aforementioned courts, is
26 16 All citations to Jayyousi herein are to the Magistrate Judge's 27 Report and Recommendation which was adopted and incorporated into the
District Court's Opinion. 28
20

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1 capable of reviewing the FISA materials in camera and ex parte and

2 making the requisite legal determination without an adversarial
3 hearing. 4
In addition to the specific harm that would result from the 5
disclosure of the FISA materials in this case, which is detailed in
6
the classified declaration of a high-ranking FBI official in support 7
8 of the Attorney General's Declaration and Claim of Privilege, the
9 underlying rationale for non-disclosure is clear: "In the sensitive

10 area of foreign intelligence gathering, the need for extreme caution
11 and sometimes even secrecy may not be overemphasized." United States
12 v. Ott, 827 F.2d 473, 477 (9th Cir. 1987) ("Congress has a legitimate 13
interest in authorizing the Attorney General to invoke procedures 14
designed to ensure that sensitive security information is not 15 16 unnecessarily disseminated to anyone not involved in the surveillance
17 operation in question."); accord IARA, 2009 WL 5169536, at *3-4.

18

Confidentiality is critical to national security. "If

19 potentially valuable intelligence sources" believe that the United
20 States "will be unable to maintain the confidentiality of its 21
relationship to them, many [of those sources] could well refuse to 22
supply information." CIA v. Sims, 471 U.S. 159, 175 (1985); see also 23
Phillippi v. CIA, 655 F.2d 1325, 1332-33 (D.C. Cir. 1981). When a 24
25 question is raised as to whether the disclosure of classified
26 sources, methods, techniques, or information would harm the national

27 security, federal courts have expressed a great reluctance to replace 28 the considered judgment of Executive Branch officials charged with
21

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 33 of 67 Page ID #:677

1 the responsibility of weighing a variety of subtle and complex

2 factors in determining whether the disclosure of information may lead
3 to an unacceptable risk of compromising the intelligence-gathering 4
process, and determining whether foreign agents, spies, and 5
terrorists are capable of piecing together a mosaic of information
6
that, when revealed, could reasonably be expected to harm the
7
8 national security of the United States. See Sims, 471 U.S. at 180;

9 United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) ("Things

10 that did not make sense to the District Judge would make all too much
11 sense to a foreign counter-intelligence specialist who could learn
12 much about this nation's intelligence-gathering capabilities from
13 what these documents revealed about sources and methods.n); Halperin
14 v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980) ("each individual piece of
15 16 intelligence information, much like a piece of jigsaw puzzle, may aid
17 in piecing together other bits of information even when the

18 individual piece is not of obvious importance in itselfn). An

19 adversary hearing is not only unnecessary to aid the Court in the

20 straightforward task before it, but such a hearing would create

21 potential dangers that courts have consistently sought to avoid.
22
As the Belfield court explained: 23

24

Congress recognized the need for the Executive to engage in and employ the fruits of clandestine

25

surveillance without being constantly hamstrung by

disclosure requirements. The statute is meant to

26

"reconcile national intelligence and counter-

intelligence needs with constitutional principles in a

27

way that is consistent with both national security and

individual rights.n In FISA the privacy rights of

28

individuals are ensured not through mandatory

22

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 34 of 67 Page ID #:678

1

disclosure, but through its provisions for in-depth

oversight of FISA surveillance by all three branches

2

of government and by a statutory scheme that to a

3

large degree centers on an expanded conception of minimization that differs from that which governs law

4

enforcement surveillance.

5 692 F.2d at 148 (footnotes and citations omitted); see also ACLU

6 Found. of So. Cal. v. Barr, 952 F.2d 457, 465 (D.C. Cir. 1991)
7 (citing Belfield for the proposition that Section 1806(f) "is an
8 acceptable means of adjudicating the constitutional rights of persons
9 who have been subjected to FISA surveillance"). As the Daoud court
10 noted, "[e]veryone recognizes that privacy is a legally protectable
11
12 interest, and it is not an interest of private individuals alone.
13 [FISA] is an attempt to strike a balance between the interest in full

14 openness of legal proceedings and the interest in national security,

15 which requires a degree of secrecy concerning the government's
16 efforts to protect the nation." 755 F.3d at 483. 17
2. In Camera, Ex Parte Review is Constitutional 18
The constitutionality of FISA's in camera, ex parte review 19
provisions has been affirmed by every federal court that has 20 21 considered the matter, including the Ninth Circuit. See Ott, 827
22 F.2d at 476-77 (FISA's review procedures do not deprive a defendant

23 of due process); see also El-Mezain, 664 F.3d at 567; Abu-Jihaad II,

24 630 F.3d at 117; Spanjol, 720 F. Supp. at 58-59; United States v.
25 Damrah, 412 F.3d 618, 624 (6th Cir. 2005) ("FISA's requirement that
26 the district court conduct an ex parte, in camera review of FISA
27 materials does not deprive a defendant of due process."); Gowadia,
28

23

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 35 of 67 Page ID #:679

1 2009 WL 1649714, at *2; Jayyousi, 2007 WL 851278, at *7-8; United

2 States v. Benkahla, 437 F. Supp. 2d 541, 554 (E.D. Va. 2006); ACLU
3 Found., 952 F.2d at 465; United States v. Megahey, 553 F. Supp. 1180, 4
1194 (E.D.N.Y. 1982) ("ex parte, in camera procedures provided in 50 5
U.S.C. § 1806(f) are constitutionally sufficient to determine the 6
lawfulness of the electronic surveillance at issue while safeguarding
7
8 defendant's Fourth amendment rights"); United States v. Falvey, 540
9 F. Supp. 1306, 1315-16 (E.D.N.Y. 1982) (a "massive body of pre-FISA

10 case law of the Supreme Court, [the Second] Circuit and others"
11 supports the conclusion that the legality of electronic surveillance
12 should be determined on an in camera, ex parte basis); Belfield, 692 13
F.2d at 148-49; Nicholson, 2010 WL 1641167, at *3-4. Another Court 14
in this District has recently conducted an in camera, ex parte review 15 16 of FISA materials in denying a defendant's motion to suppress FISA
17 information. United States v. Kabir, 5:12-CR-00092-VAP, Doc. No.

18 277, at 2 (C.D. Cal., May 5, 2014) (CR 277, unpublished order denying

19 motion to suppress FISA information after conducting "a thorough in

20 camera, ex parte examination of the documents contained in the Sealed

21 Appendix, the Government's classified version of the Opposition, and
22 the Attorney General's unclassified Declaration and Claim of
23
Privilege and the classified supporting declarations"). 24

25

In summary, FISA mandates a process by which the district court

26 must conduct an initial in camera, ex parte review of FISA

27 applications, orders, and related materials in order to determine 28 whether the FISA information was lawfully acquired and whether the
24

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 36 of 67 Page ID #:680

1 surveillance and searches were made in conformity with an order of

2 authorization or approval. Such in camera, ex parte review is the
3 rule in these cases, and that procedure is constitutional. In this 4
case, the Attorney General has filed the required declaration
5
invoking that procedure, and has declared that disclosure or an
6
adversary hearing would harm national security. Accordingly, an in
7
8 camera, ex parte review by this Court is the appropriate venue in
9 which to determine whether the FISA information was lawfully acquired

10 and whether the surveillance and searches were made in conformity

11 with an order of authorization or approval.

12

B. THE DISTRICT COURT'S SUBSTANTIVE REVIEW

13 1. Standard of Review
14
In evaluating the legality of the FISA collection, the district 15

16 court's review should determine: (1) whether the certification

17 submitted by the Executive Branch in support of a FISA application

18 was properly made; (2) whether the application established the

19 probable cause required by FISA; and (3) whether the collection was
20 properly minimized. See Abu-Jihaad II, 630 F.3d at 130-31. See also 21
50 u.s.c. §§ 1806(f), 1825(g).
22
Although federal courts are not in agreement as to whether the 23
probable cause determinations of the FISC should be reviewed de novo 24
25 or accorded due deference, the material under review here satisfies
26 either standard of review. See Abu-Jihaad II, 630 F.3d at 130

27 ("Although the established standard of judicial review applicable to 28 FISA warrants is deferential, the government's detailed and complete
25

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 37 of 67 Page ID #:681

1 submissions in this case would easily allow it to clear a higher

2 standard of review.") The Government respectfully submits that it is
3 appropriate to accord due deference to the findings of the FISC, but 4
notes that a number of courts, citing the ex parte nature of the 5
proceedings, have also reviewed the FISC's probable cause 6
determination de novo. 17 While in the minority, other courts, 7
8 including the Second Circuit in Abu-Jihaad, 630 F.3d at 130, have
9 afforded due deference to the findings of the FISC; accord, United

10 States v. Ahmed, No. 1:06-CR-147, 2009 U.S. Dist. Lexis 120007 at
11 *21-22 (N.D. Ga. Mar. 19, 2009) (FISC's "determination of probable
12 cause should be given 'great deference' by the reviewing court") 13
(citing Illinois v. Gates, 462 U.S. at 236). 14
In the analogous area of criminal searches and surveillance, the 15 16 law in the Ninth Circuit, as well as that in other federal circuits,
17 accords great deference to a magistrate judge's probable cause

18 determinations. See, e.g., United States v. Krupa, 658 F.3d 1174,

19 17 See, e.g., Kabir, Doc. No. 277, at 2 (in which "the Court engaged

20 in a de novo review of the [FISA] documents); Nicholson, 2010 WL

1641167, *5 (in which a district court in this circuit conducted a de 21 novo review of the FISC's findings of probable cause); United State

22

v. Hammoud, 381 F.3d 316, 332 (4th Cir. 2004), rev'd on other grounds, 543 U.S. 1097 (2005), ~reinstated in pertinent part, 405

23 F.3d 1034 (4th Cir. 2005); Rosen, 447 F. Supp. 2d at 545; Warsame, 547 F. Supp. 2d at 990-91 (the required showing is "a practical,
24 common-sense decision whether, given all the circumstances set forth in the affidavit . . . , there is a fair probability" that the search
25 will be fruitful (citing Illinois v. Gates, 462 U.S. 231, 238

(1983)); and Kashmiri, 2010 WL 4705159, at *1. In each of these 26 cases, the courts applied a de novo standard in reviewing the FISC's

27 probable cause findings, and each court found the applications before it contained probable cause.

28

26

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 38 of 67 Page ID #:682

1 1177 (9th Cir. 2011) ("We review for clear error a magistrate's

2 finding of probable cause to issue an arrest warrant, and give 'great
3 deference' to such findings."); United States v. Hill, 459 F.3d 966, 4
970 (9th Cir. 2006); see also United States v. Joseph, 709 F.3d 1082, 5
1093 (11th Cir. 2013) (citing Illinois v. Gates, 462 U.S. at 236); 6 7 United States v. Robinson, 724 F.3d 878, 884 (7th Cir. 2013). It
8 would thus be consistent for a court that is reviewing FISC-approved
9 electronic surveillance and physical searches to adopt the same

10 posture it would when reviewing the probable cause determination of a
11 criminal search warrant issued pursuant to Rule 41 of the Federal 12 Rules of Criminal Procedure. See Ahmed, 2009 U.S. Dist. LEXIS 13
120007, at *21-22 (according FISC's probable cause determinations the 14
same deference as a magistrate's criminal probable cause 15 16 determination); cf. United States v. Cavanagh, 807 F.2d 787, 790 (9th
17 Cir. 1987) (concluding that FISA order can be considered a warrant

18 since it is issued by a detached judicial officer and is based on a

19 reasonable showing of probable cause); In reSealed Case, 310 F.3d
20 717, 774 (FISC Ct. Rev. 2002) (declining to decide whether a FISA 21
order constitutes a warrant, but noting "that to the extent a FISA 22
order comes close to meeting Title III, that certainly bears on its 23 24 reasonableness under the Fourth Amendment"); but Cf. Warsame, 547 F.
25 Supp. 2d at 992 n.lO (noting that the need for foreign intelligence
26 justifies an exception to the warrant requirement).

27

2. Probable Cause Standard

28

FISA requires findings of probable cause to believe that the

27

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 39 of 67 Page ID #:683

1 target is a foreign power, or an agent of a foreign power, and that
2 each facility or place at which the electronic surveillance is
3 directed is being used, or is about to be used, or that the property 4
or premises to be searched is, or is about to be, owned, used, 5
possessed by, or is in transit to or from, a foreign power or an 6
agent of a foreign power. It is this standard - not the standard
7
8 applicable to criminal search warrants - that this Court must apply.
9 See El-Mezain, 664 F.3d at 564 ("[t]his probable cause standard is

10 different from the standard in the typical criminal case because,
11 rather than focusing on probable cause to believe that a person has
12 committed a crime, the FISA standard focuses on the status of the 13
target as a foreign power or an agent of a foreign power"); Abu14
Jihaad II, 630 F.3d at 130-31; Duka, 671 F.3d at 338; Cavanagh, 807 15 16 F.2d. at 790 (citing United States v. United States District Court
17 (Keith), 407 U.S. 297, 322 (1972)). This "different, and arguably

18 lower, probable cause standard .

reflects the purpose for which

19 FISA search orders are issued." Ahmed, 2009 U.S. Dist. LEXIS 120007,
20 at *22. 21
[CLASSIFIED MATERIAL REDACTED] 22
3. Standard of Review of Certifications 23
Certifications submitted in support of a FISA application should 24
25 be "subjected only to minimal scrutiny by the courts," Badia, 827
26 F.2d at 1463, and are "presumed valid." Duggan, 743 F.2d at 77 & n.6

27 (citing Franks v. Delaware, 438 U.S. 154, 171 (1978)); United States 28 v. Campa, 529 F.3d 980, 993 (11th Cir. 2008); United States v.
28

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 40 of 67 Page ID #:684

1 Sherifi, 793 F. Supp. 2d 751, 760 (E.D.N.C. 2011) ("a presumption of

2 validity [is] accorded to the certifications"); Nicholson, 2010 WL
3 1641167, at *5 (quoting Rosen, 447 F. Supp. 2d at 545); Warsame, 547 4
F. Supp. 2d at 990 ("a presumption of validity [is] accorded to the 5
certifications"). When a FISA application is presented to the FISC, 6
"[t]he FISA Judge, in reviewing the application, is not to second-
7
8 guess the executive branch official's certification that the
9 objective of the surveillance is foreign intelligence information."

10 Duggan, 743 F.2d at 77. Likewise, Congress intended that the

11 reviewing district court should "have no greater authority to second-
12 guess the executive branch's certifications than has the FISA judge" 13
id.; see also In re Grand Jury Proceedings, 347 F.3d at 204-05; 14
Badia, 827 F.2d at 1463; Rahman, 861 F. Supp. at 250; IARA, 2009 WL 15
16 5169536, at *4; Kashmiri, 2010 WL 4705159, at *1.

17

The district court's review should determine whether the

18 certifications were made in accordance with FISA's requirements. See

19 United States v. Alwan, No. 1:11-CR-13, 2012 WL 399154, at *7 (W.D.
20 Ky. Feb. 7, 2012) ("the [c]ourt is not to second-guess whether the 21
certifications were correct, but merely to ensure they were properly 22
made"), quoting Ahmed, 2009 U.S. Dist. LEXIS 120007, at *20; see also 23
Campa, 529 F.3d at 993 ("in the absence of a prima facie showing of a 24
25 fraudulent statement by the certifying officer, procedural regularity
26 is the only determination to be made if a non-United States person is

27 the target" [quoting Badia, 827 F.2d at 1463]). When the target is a

28 United States person, then the district court should also ensure that 29

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 41 of 67 Page ID #:685

1 each certification is not "clearly erroneous." Id. at 994; Duggan,

2 743 F.2d at 77; Kashmiri, 2010 WL 4705159, at *2. A "clearly
3 erroneous" finding is established only when "although there is 4
evidence to support it, the reviewing court on the [basis of the] 5
entire evidence is left with the definite and firm conviction that a
6
mistake has been committed." United States v. U.S. Gypsum Co., 333
7
8 U.S. 364, 395 (1948); United States v. Garcia, 413 F.3d 201, 222 (2d
9 Cir. 2005); IARA, 2009 WL 5169536, at *4 (identifying "clearly

10 erroneous" standard of review for FISA certifications).

11

4. FISA is Subject to the "Good-Faith" Exception

12

Even assuming arguendo that this Court determines that a

13 particular FISC order was not supported by probable cause, or that
14 one or more of the FISA certification requirements were not in fact
15 met, the Government respectfully submits that the evidence obtained
16
17 or derived from the FISC-approved electronic surveillance and

18 physical searches is, nonetheless, admissible under the "good faith"

19 exception to the exclusionary rule articulated in United States v.

20 Leon, 468 U.S. 897 (1984) . 18 The Seventh Circuit, relying on Leon,

21 held that federal officers were entitled to rely in good faith on a
22 FISA warrant. United States v. Ning Wen, 477 F.3d 896, 897 (7th Cir.
23

24 18 "[E] ven if we were to conclude that amended FISA is

unconstitutional, evidence derived from it would nevertheless have 25 been admissible in the government's case . . . . The exclusionary rule

26

precludes the admission of evidence tainted by a Fourth Amendment violation" only in those cases where its application will deter

27 police misconduct. Duka, 671 F.3d at 346 (citing Leon, 468 U.S. at

918) .

28

30

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 42 of 67 Page ID #:686

1 2007). As the court stated:

2

[T]he exclusionary rule must not be applied to evidence

3

seized on the authority of a warrant, even if the warrant turns out to be defective, unless the affidavit supporting

4

the warrant was false or misleading, or probable cause was

so transparently missing that "no reasonably well trained

5

officer [would] rely on the warrant."

6 Id. (quoting Leon) (alteration in original); see also Duggan, 743

7 F.2d at 77 n.6 (Franks principles apply to review of FISA orders);
8 Ahmed, 2009 U.S. Dist. LEXIS 120007, at *25 n.8, 26-27 ("[t]he FISA
9 evidence obtained . . . would be admissible under Leon's 'good faith'
10 11 exception to the exclusionary rule were it not otherwise admissible
12 under a valid warrant").

13

The FISC-approved electronic surveillance and physical searches

14 at issue in this case would fall squarely within this "good faith"
15 exception. As discussed below, notwithstanding the speculation by
16 the defense, there is no basis to find that any declarations or 17
certifications at issue in this case were deliberately or recklessly 18
false. See Leon, 468 u.s. at 914-15; see also Massachusetts v.
19 20 Sheppard, 468 U.S. 981 (1984); United States v. Canfield, 212 F.3d
2l 713, 717-18 (2d Cir. 2000). Further, there are no facts indicating

22 that the FISC failed to act in a neutral and detached manner in

23 authorizing the surveillance and searches at issue. Leon, 468 U.S.
24 at 914-15. Moreover, as the Court will see from its in camera, ex
25 parte review of the FISA materials, facts establishing the requisite 26
probable cause were submitted to the FISC, the FISC's orders 27 28 contained all of the requisite findings, and "well-trained officers"

31

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 43 of 67 Page ID #:687

1 reasonably relied on those orders. Therefore, in the event that the

2 Court questions whether a particular FISC order was supported by

3 sufficient probable cause, the information obtained pursuant to those

4 orders would be admissible under Leon's "good faith" exception to the
5 exclusionary rule.
6

IV. THE FISA INFORMATION WAS LAWFULLY ACQUIRED AND THE

7

ELECTRONIC SURVEILLANCE AND PHYSICAL SEARCHES WERE MADE IN

8

CONFORMITY WITH AN ORDER OF AUTHORIZATION OR APPROVAL

9

[CLASSIFIED MATERIAL REDACTED]

10

A. THE INSTANT FISA APPLICATIONS MET FISA'S PROBABLE CAUSE

STANDARD 11

12

[CLASSIFIED MATERIAL REDACTED]

13

1. [CLASSIFIED MATERIAL REDACTED]

14

[CLASSIFIED MATERIAL REDACTED]

15

2. [CLASSIFIED MATERIAL REDACTED]

16

[CLASSIFIED MATERIAL REDACTED]

17 3. [CLASSIFIED MATERIAL REDACTED]
18
[CLASSIFIED MATERIAL REDACTED] 19

a. [CLASSIFIED MATERIAL REDACTED] 20

21

[CLASSIFIED MATERIAL REDACTED]

22

b. [CLASSIFIED MATERIAL REDACTED]

23

[CLASSIFIED MATERIAL REDACTED]

24

c. Conclusion: The Information Acquired From the

25

Targeted Facilities, Places, Property, or Promises

Was Lawfully Acquired

26 [CLASSIFIED MATERIAL REDACTED]
27

28

32

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 44 of 67 Page ID #:688

1

B. THE CERTIFICATIONS COMPLIED WITH FISA

2

[CLASSIFIED MATERIAL REDACTED]

3

1. Foreign Intelligence Information

4 [CLASSIFIED MATERIAL REDACTED]
5 2. "A Significant Purpose"
6
[CLASSIFIED MATERIAL REDACTED] 7

8

3. Information Not Reasonably Obtainable Through

Normal Investigative Techniques

9 [CLASSIFIED MATERIAL REDACTED]
10

For all of the above reasons, the FISC correctly found that the 11

12 certifications were not clearly erroneous.

13

C. [CLASSIFIED MATERIAL REDACTED]

14

[CLASSIFIED MATERIAL REDACTED]

15

D. ALL ELECTRONIC SURVEILLANCE AND PHYSICAL SEARCHES WERE

16

CONDUCTED IN CONFORMITY WITH AN ORDER OF AUTHORIZATION OR APPROVAL

17 This Court's in camera, ex parte review of the FISA materials
18 will demonstrate not only that the FISA information was lawfully
19
20 acquired, but also that the electronic surveillance and physical

21 searches were lawfully conducted. That is, the FISA-obtained or

22 -derived information that will be offered into evidence in this case

23 was acquired, retained, and disseminated by the FBI in accordance
24 with FISA's minimization requirements, the standard minimization
25 procedures ("SMPs") adopted by the Attorney General and approved by
26
the FISC, and all relevant FISC orders. 27

28

33

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 45 of 67 Page ID #:689

1

1. The Standard Minimization Procedures

2

Once a reviewing court is satisfied that the electronic

3 surveillance or physical searches were properly certified and the
4 information was lawfully acquired pursuant to FISA, it must then
5 examine whether the electronic surveillance or physical searches were
6
lawfully conducted. See 50 U.S.C. §§ 1806 (e) (2), 1825 (f) (1) (B). In
7
8 order to examine whether the electronic surveillance or physical

9 searches were lawfully conducted, the reviewing court must determine

10 whether the Government followed the relevant minimization procedures

11 to appropriately minimize the information acquired pursuant to FISA.

12

[CLASSIFIED MATERIAL REDACTED]

13 FISA's legislative history and the applicable case law
14
demonstrate that the definitions of "minimization procedures" and 15

16 "foreign intelligence information" were intended to take into account

17 the realities of collecting foreign intelligence, because the

18 activities of persons engaged in clandestine intelligence gathering

19 or international terrorism are often not obvious on their face. See
20 Rahman, 861 F. Supp. at 252-53. The degree to which information is 21
required to be minimized varies somewhat given the specifics of a 22
particular investigation, such that less minimization at acquisition 23
is justified when "the investigation is focusing on what is thought 24
25 to be a widespread conspiracy" and more extensive surveillance is
26 necessary "to determine the precise scope of the enterprise." In re

27 Sealed Case, 310 F.3d at 741; see also United States v. Bin Laden, 28 126 F. Supp. 2d 264, 286 (S.D.N.Y. 2000) ("more extensive monitoring
34

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 46 of 67 Page ID #:690
1 and greater leeway in minimization efforts are permitted in a case
2 like this given the world-wide, covert and diffuse nature of the 3 international terrorist group(s) targeted" [internal quotation marks 4
omitted]). Furthermore, the activities of foreign powers and their 5
agents are often not obvious from an initial or cursory overhear of 6
conversations. To the contrary, agents of foreign powers frequently 7 8 engage in coded communications, compartmentalized operations, the use
9 of false identities and other practices designed to conceal the
10 breadth and aim of their operations, organization, activities and
11 plans. See, e.g., United States v. Salameh, 152 F.3d 88, 154 (2d 12 Cir. 1998) (noting that two conspirators involved in the 1993 bombing 13
of the World Trade Center in New York referred to the bomb plot as 14
the "study" and to terrorist materials as "university papers") . As 15 16 one court explained, "[i]nnocuous-sounding conversations may in fact 17 be signals of important activity; information on its face innocent
18 when analyzed or considered with other information may become
19 critical." Kevork, 634 F. Supp. at 1017 (quoting H.R. Rep. No. 9520 1283, 95th Cong., 2d Sess., Pt. 1, at 55 (1978) (hereinafter "House 21
Report")); see also Hammoud, 381 F.3d at 334 (citing Salameh, 152 22
F.3d at 154); In reSealed Case, 310 F.3d at 740-41; Thomson, 752 F. 23 24 Supp. at 81 (noting that it is permissible to retain and disseminate 25 "bits and pieces" of information until the information's "full
26 significance becomes apparent") (citing House Report, part 1, at 58);
27 Bin Laden, 126 F. Supp. 2d at 286. Likewise, "individual items of
28 information, not apparently significant when taken in isolation, may 35

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 47 of 67 Page ID #:691

1 become highly significant when considered together over time."
2 Rahman, 861 F. Supp. at 252-53 (citing House Report, part 1, at 55,
3 59) . The Government must be given flexibility where the 4
conversations are carried out in a foreign language. Mubayyid, 521 5
F. Supp. 2d at 134; Rahman, 861 F. Supp. at 252. As a result, 6 7 "courts have construed 'foreign intelligence information' broadly and 8 sensibly allowed the government some latitude in its determination of
9 what is foreign intelligence information." Rosen, 447 F. Supp. 2d at

10 551.

11

The nature of the foreign intelligence information sought also

12 impacts implementation of the minimization procedures at the
13 retention and dissemination stages. There is a legitimate need to
14 conduct a thorough post-acquisition review of FISA information that
15

16 involves a United States person who is acting as an agent of a

17 foreign power. As Congress explained:

18

It is "necessary" to identify anyone working with him

in this network, feeding him information, or to whom

19

he reports. Therefore, it is necessary to acquire,

20

retain and disseminate information concerning all his contacts and acquaintances and his movements. Among

21

his contacts and acquaintances, however, there are

likely to be a large number of innocent persons. Yet,

22

information concerning these persons must be retained

at least until it is determined that they are not

23

involved in the clandestine intelligence activities

24

and may have to be disseminated in order to determine their innocence.

25 House Report, part 1, at 58. Indeed, at least one court has
26 cautioned that, when a U.S. person communicates with an agent of a
27
foreign power, the Government would be "remiss in meeting its foreign 28

36

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 48 of 67 Page ID #:692
1 counterintelligence responsibilities" if it did not thoroughly
2 "investigate such contacts and gather information to determine the 3 nature of those activities." Thomson, 752 F. Supp. at 82. 4
Congress also recognized that agents of a foreign power are 5
often very sophisticated and skilled at hiding their activities. Cf. 6
Thomson, 752 F. Supp. at 81 (quoting House Report part 1, at 58). 7 8 Accordingly, to pursue leads, Congress intended that the Government
9 be given "a significant degree of latitude" with respect to the
10 "retention of information and the dissemination of information
11 between and among counterintelligence components of the Government." 12
Cf. Id. 13
In light of these realities, Congress recognized that "no 14
electronic surveillance can be so conducted that innocent 15 16 conversations can be totally eliminated." See S. Rep. No. 95-701, 17 95th Cong., 2d Sess., 39 (quoting Keith, 407 U.S. at 323) (1978)
18 ("Senate Report") . The Fourth Circuit reached the same conclusion in
19 Hammoud, stating that the "mere fact that innocent conversations were 20 recorded, without more, does not establish that the government failed 21
to appropriately minimize surveillance." 381 F.3d at 334. 22
Accordingly, in reviewing the adequacy of minimization efforts, 23
the test to be applied is neither whether innocent conversations were 24 25 intercepted, nor whether mistakes were made with respect to
26 particular communications. Rather, as the United States Supreme
27 Court stated in the context of Title III surveillance, there should
28 be an "objective assessment of the [agents'] actions in light of the 37

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 49 of 67 Page ID #:693

1 facts and circumstances confronting [them] at the time." Scott v.
2 United States, 436 U.S. 128, 136 (1978). "The test of compliance is
3 'whether a good-faith effort to minimize was made.'" Mubayyid, 521 4
F. Supp. 2d at 135; see also Hammoud, 381 F.3d at 334 ("[t]he 5
minimization requirement obligates the Government to make a good 6
faith effort to minimize the acquisition and retention of irrelevant 7
8 information"); see also Senate Report at 39-40 (stating that the
9 court's role is to determine whether "on the whole, the agents have

10 shown a high regard for the right of privacy and have done all they
11 reasonably could do to avoid unnecessary intrusion"); IARA, 2009 WL 12
5169536, at *6 (quoting Senate Report at 39-40). 13
Moreover, as noted above, FISA expressly states that the 14
Government is not required to minimize information that is "evidence 15 16 of a crime," whether or not it is also foreign intelligence
17 information. 50 U.S.C. §§ 1801 (h) (3), 1821 (4) (c); see also Isa, 923

18 F.2d at 1304 (noting that "[t]here is no requirement that the 'crime'

19 be related to foreign intelligence"). As a result, to the extent

20 that certain communications of a United States person may be evidence
21 of a crime or otherwise may establish an element of a substantive or
22 conspiratorial offense, such communications need not be minimized.
23
See Id. at 1305. 24

25

Even assuming, arguendo, that certain communications were not

26 properly minimized, suppression would not be the appropriate remedy

27 with respect to those communications that met the standard. Cf. 28 United States v. Falcone, 364 F. Supp. 877, 886-87 (D.N.J. 1973),
38

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 50 of 67 Page ID #:694

1 aff'd, 500 F.2d 1401 (3d Cir. 1974) (Title III). As discussed above,

2 absent evidence that "on the whole" there has been a "complete"
3 disregard for the minimization procedures, the fact that some 4
communications should have been minimized does not affect the 5
admissibility of others that were properly acquired and retained. 6
Indeed, Congress specifically intended that the only evidence that 7
8 should be suppressed is the "evidence which was obtained unlawfully."

9 House Report at 93. FISA's legislative history reflects that

10 Congress intended only a limited sanction for errors of minimization:

11

As the language of the bill makes clear, only that

12

evidence which was obtained unlawfully or derived from

information obtained unlawfully would be suppressed.

13

If, for example, some information should have been

minimized but was not, only that information should be

14

suppressed; the other information obtained lawfully

should not be suppressed. 15

16 Id.; see also Falcone, 364 F. Supp. at 886-87; accord, United States

17 v. Medunjanin, No. 10-CR-19-1, 2012 WL 526428, at *12 (E.D.N.Y. Feb.

18 16, 2012) (disclosure and suppression not warranted where "failure to

19 adhere to [the minimization] protocol was de minimis").

20

2. The FISA Information Was Appropriately Minimized

21 [CLASSIFIED MATERIAL REDACTED]
22 Based upon this information, the Government respectfully
23
submits that it lawfully conducted the FISA-authorized collections 24

25 discussed herein. Consequently, for the reasons stated above, the

26 Court should find that the FISA-authorized collections discussed

27 herein were lawfully conducted under the minimization procedures 28 approved by the FISC and applicable to the FISA-authorized
39

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 51 of 67 Page ID #:695

1 collections discussed herein.

2

3. [CLASSIFIED MATERIAL REDACTED]

3

[CLASSIFIED MATERIAL REDACTED]

4 V. THE COURT SHOULD REJECT THE DEFENDANT'S LEGAL ARGUMENTS
5 In his motion, the defendant makes several constitutional claims
6
and requests that the Court: "1) review all FISA applications and
7

8 warrants, 2) order disclosure of the documents to defense counsel, 3)

9 conduct an evidentiary hearing pursuant to Franks . . . , and 4) as a

10 result, suppress all FISA intercepts and seizures and any fruits

11 derived therefrom. ''"9 Doc. 70 at p. 28. For the reasons set forth
12 below, the Court should reject the defendant's arguments. 13
A. THE DEFENDANT'S CONSTITUTIONAL ARGUMENTS LACK MERIT 14
The defendant raises a number of constitutional challenges, 15
under the First, Fourth, Fifth, and Sixth Amendments, that have 16 17 repeatedly been rejected by other courts. 20 These arguments lack
18 merit, and the Government will respond to each below.

19 19 The defendant argues for de novo review by this Court of the FISA

20 materials, or even a review "more exacting than the FISC's review,"

Doc. 70 at p. 15, a position that has no basis in the law. However, 21 the Government respectfully submits that the Court will find that the

22

FISA-authorized electronic surveillance and physical searches were legally authorized and the FISA information was lawfully acquired,

23 under either de novo review or a due deference review.

20 The defendant also suggests, without further explanation, that the 24 Government's actions may have been in violation of the Fourteenth

25

Amendment, Doc. 70 at p. 3, which "applies to actions by a State." San Francisco Arts & Athletics, Inc., v. United States Olympic

26 Committee, 483 U.S. 522, 542 n. 21 (1987). The defendant does not allege any State action.

27

The defendant references the FISA Amendments Act of 2008 and

28 "several controversial programs, such as Prism and Upstream," and (footnote cont'd on next page)

40

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 52 of 67 Page ID #:696

1

1. The FISA Applications Were Not Based Solely on

Protected First Amendment Activity

2

3

[CLASSIFIED MATERIAL REDACTED]

4

2. The Probable Cause Standard of FISA Complies with

the Fourth Amendment's Reasonableness Requirement

5 The defendant argues that he "has a right to a determination as
6

to whether the most invasive of intrusions into his home violated the 7

8 Fourth Amendment." Doc. 70 at p. 24. Again, the defendant merely

9 concludes, without factual support, that the Government "may have

10 violated" the Fourth Amendment. Id. at p. 3 (emphasis added). The
11 probable cause threshold that the Government must satisfy before 12 receiving authorization to conduct electronic surveillance or 13
physical searches under FISA complies with the Fourth Amendment's 14
reasonableness standard. The Supreme Court has stated that 15 16 "[d]ifferent standards may be compatible with the Fourth Amendment if
17 they are reasonable both in relation to the legitimate need of the
18 Government for intelligence information and the protected rights of

19 our citizens." Keith, 407 U.S. at 322-23 (recognizing that domestic
20 security surveillance "may involve different policy and practical 21
considerations than the surveillance of 'ordinary crime'"). In 22
Keith, the Supreme Court acknowledged that: (1) the "focus of . 23
surveillance (in domestic security investigations] may be less 24
25 precise than that directed against more conventional types of crime";
26 (2) unlike ordinary criminal investigations, "[t]he gathering of

27 then concedes that they are not at issue in this case. Doc. 70 at 28 pp. 9-10.
41

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 53 of 67 Page ID #:697

1 security intelligence is often long range and involves the

2 interrelation of various sources and types of information"; and (3)
3 the "exact targets of such surveillance may be more difficult to 4
identify" than in surveillance operations of ordinary crimes under 5
Title III. Id. Although Keith was decided before FISA's enactment 6
and addressed purely domestic security surveillance, the rationale 7 8 underlying Keith applies ~ fortiori to foreign intelligence
9 surveillance, where the Government's interest, at least from a

10 national security perspective, would typically be more pronounced.

11

FISA was enacted partly in response to Keith. In constructing

12 FISA's framework, Congress addressed Keith's question of whether
13 departures from traditional Fourth Amendment procedures "are
14 reasonable, both in relation to the legitimate need of Government for
15
16 intelligence information and the protected rights of our citizens,"

17 and "concluded that such departures are reasonable." See Senate

18 Report at 11. Similarly, many courts - including the Ninth Circuit

19 and the FISC of Review - have relied on Keith in holding that FISA
20 collection conducted pursuant to a FISC order is reasonable under the 21
Fourth Amendment. See Cavanagh, 807 F.2d at 790-91 (holding that 22
FISA satisfies the Fourth Amendment requirements of probable cause 23
and particularity); In reSealed Case, 310 F.3d at 738, 746 (finding 24 25 that while many of FISA's requirements differ from those in Title
26 III, few of those differences have constitutional relevance); Duggan,
27 743 F.2d at 74 (holding that FISA does not violate the Fourth
28 Amendment); see also Ning Wen, 477 F. 3d at 898 (holding that FISA is 42

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 54 of 67 Page ID #:698

1 constitutional despite using "a definition of 'probable cause' that

2 does not depend on whether a domestic crime has been committed");
3 Damrah, 412 F.3d at 625 (denying the defendant's claim that FISA's
4
procedures violate the Fourth Amendment); Pelton, 835 F.2d at 1075 5
(finding FISA's procedures compatible with the Fourth Amendment); 6
Warsame, 547 F. Supp. 2d at 993-94 (holding that FISA's probable 7
8 cause and particularity requirements satisfy the reasonableness
9 requirement of the Fourth Amendment); Mubayyid, 521 F. Supp. 2d at

10 135-41 (rejecting claim that FISA violates the Fourth Amendment's

11 judicial review, probable cause, notice, and particularity

12 requirements); Falvey, 540 F. Supp. at 1311-14 (finding that FISA

13

procedures satisfy the Fourth Amendment's warrant requirement).

14

3. The Court's In Camera and Ex Parte Review Comports with

15

the Fifth Amendment's Due Process and the Sixth

16

Amendment's Counsel and Confrontation Clauses

17

The defendant states that "[u]nder the Fifth Amendment's Due

18 Process Clause, defendants must be afforded a process that permits

19 them to seek the suppression remedy," Doc. 70 at p. 24, but fails to
20 explain how he has been denied that remedy here, where FISA expressly
21 provides a statutory suppression remedy, 50 U.S.C. §§ 1806(e),
22 1825(f), of which he has availed himself by filing this motion.
23 Citing to authorities that did not address FISA, the defendant
24
25 further argues that "[t]he Court's review in camera is not a
26 substitute for the defense counsel's participation," and that without

27 such participation he "is not receiving the Sixth Amendment

28 constitutional benefit of adequate representation of counsel." Doc. 43

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 55 of 67 Page ID #:699

1 70 at p. 27. Accordingly, the defendant claims, under the "Sixth

2 Amendment and/or the Due Process clause, disclosure of the FISA
3 materials is authorized and appropriate in this case." Id.
4 Several District Courts in the Ninth Circuit have addressed the
5 right to confrontation in this context and found that "FISA's in
6
7 camera review provisions have been held to be constitutional."
8 Nicholson, 2010 U.S. Dist. LEXIS 45126, citing Isa, 923 F.2d at 1037-

9 08 (Sixth Amendment right of confrontation is not violated by FISA's

10 in camera review procedure); -se-e -a-ls-o United States v. Lahiji, 2013 11 WL 550492 (D. Or. February 12, 2013), *4 (Court found no violation of
12 defendants' Fourth, Fifth, or Sixth Amendment rights); United States
13 v. Jamal, 2011 U.S. Dist. LEXIS 12224 (D. Az. February 11, 2011), *5
14 (Movant's Sixth Amendment rights were not violated by trial counsel's
15
16 inability to discuss FISA materials); United States v. Hussein, 2014
17 WL 1682845 (S.D. Cal. April 29, 2014), *3 (the "in camera, ex parte

18 review process under FISA satisfies due process under the United

19 States Constitution").

20

A Sixth Amendment argument similar to the defendant's was

21 advanced unsuccessfully in Warsame, 547 F. Supp. 2d at 988 n.4
22
(finding argument "without merit" and citing to Nicholson, 955 F. 23

24 Supp. at 592). Other courts have also consistently rejected the

25 Sixth Amendment argument. See Belfield, 692 F.2d at 148 (rejecting

26 Sixth Amendment challenge); Isa, 923 F.2d at 1306-07 (rejecting Sixth

27 Amendment challenge); Megahey, 553 F. Supp. at 1193 (rejecting Sixth 28 Amendment challenge); Benkhala, 437 F. Supp. 2d at 554 (rejecting
44

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 56 of 67 Page ID #:700

1 Sixth Amendment right to counsel challenge); Falvey, 540 F. Supp. at

2 1315-16 (rejecting First, Fifth, and Sixth Amendment challenges and
3 noting that a "massive body of pre-FISA case law of the Supreme 4 Court, [the Second] Circuit and others" supports the conclusion that 5
the legality of electronic surveillance should be determined on an in 6
camera, ex parte basis). In overturning a district court's order to 7
8 disclose FISA materials to the defense, the Daoud court described the
9 belief that "adversary procedure is always essential to resolve

10 contested issues of fact" as "an incomplete description of the

11 American legal system in general and the federal judicial system in

12 particular." 755 F.3d at 482.

13 B. THE DEFENDANT HAS NOT ESTABLISHED ANY BASIS TO DISCLOSE

14

THE FISA MATERIALS

15

In support of his argument to disclose the FISA materials, the

16 defendant asserts that: (1) there is "a significant question about
17 whether any need for secrecy persists" with regard to the FISA
18 materials (Doc. 70 at p. 12); and (2) the affiant in the FISA
19 20 materials "intentionally or recklessly made materially false
21 statements and/or omitted material information . . . " 21 Doc. 70 at p.

22 14. On these bases, the defendant seeks the disclosure of classified

23 FISA materials, which are protected from such disclosure, except as
24 provided in 50 U.S.C. §§ 1806(f)-(g) and l825(g)-(h). As discussed 25 below, Congress's clear intention is that FISA materials should be 26

27 21 [CLASSIFIED MATERIAL REDACTED] 28

45

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 57 of 67 Page ID #:701

1 reviewed in camera and ex parte and in a manner consistent with the

2 realities of modern intelligence needs and investigative techniques.
3 Indeed, this Court will find upon its own review that there is
4 nothing extraordinary about this case that would prompt this Court to
5 order the disclosure of highly sensitive and classified FISA
6 7 materials and that the defendant has failed to present any colorable
8 basis for the Court to order disclosure of the FISA materials.

9

There is only one reason to disclose the FISA materials to

10 defense counsel. The Court must conduct its review of those
11 materials in camera and ex parte, and disclosure is within the
12 Court's discretion only following that review and only if the Court 13
is unable to determine the legality of the electronic surveillance, 14
physical searches, or both, without the assistance of defense 15
16 counsel. 50 u. s . c. §§ 18 0 6 (f) ' 18 2 5 (g) . Duggan, 743 F.2d at 78; see
17 also Daoud, 755 F.3d at 482. Duggan's holding is fully supported by

18 the legislative history of Section 1806(f) of FISA, which states:

19 "The court may order disclosure to [the defense] only if it finds

20 that such disclosure is necessary to make an accurate determination

21 of the legality of the surveillance . . . Once a judicial
22 determination is made that the surveillance was lawful, a motion for
23
24 discovery . . . must be denied." Senate Report at 64-65.

25

The defendant seeks the "opportunity to prove that the affiant

26 intentionally or recklessly made materially false statements and/or

27 omitted material information from the FISA applications." Doc. 70 at 28 p. 14. However, FISA's plain language precludes defense counsel from
46

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 58 of 67 Page ID #:702

1 accessing the classified FISA materials to conduct a fishing

2 expedition. In Medunjanin, the court noted that "[d]efense counsel

3

may not inspect the FISA dockets to construct a better argument

4 for inspecting the FISA dockets. Such a circular exercise would be

5 patently inconsistent with FISA .
6

2012 WL 526428 at *10. See

7 Badia, 827 F.2d at 1462 (rejecting the defendant's request for

8 "disclosure of the FISA application, ostensibly so that he may review

9 it for errors").

10

The defendant asserts that disclosure is necessary as it is

11 "impossible for the Court and government counsel to review the
12 purportedly secret documents and determine if additional things of 13
this nature, those things personal to [him], were correct." Doc. 70 14
at p. 27. However, as this Court will see from its review, the FISA 15 16 materials are presented in a well-organized and straightforward
17 manner that will allow the Court to make its determination of the

18 lawfulness of the FISA collection without seeking input from defense

19 counsel. Again, defendant's claim that the Court would need
20 assistance from defense counsel is merely an attempt to circumvent
21 the clear language of the statute. See 50 U.S.C. §§ 1806(f),
22 1825(g). As the Belfield court stated: "Congress was adamant, in
23 24 enacting FISA, that [its] 'carefully drawn procedure[s]' are not to
2S be bypassed." Belfield, 692 F.2d at 146 (citing Senate Report at

26 63); see also United States v. Mohamud, 2014 WL 2866749, *32 (D.Or.,

27 June 24, 2014) ("[o]bviously it would be helpful to the court to have 28 defense counsel review the materials prior to making arguments.
47

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 59 of 67 Page ID #:703

1 Congress, however, did not put 'helpful' in the statute; it chose

2 'necessary.'") As the Daoud Court stated, "the defendant's

3 misreading of the statute" would circumvent the required in camera,
4 ex parte review whenever a defense counsel "believed disclosure
5 necessary, since if the judge does not conduct the ex parte review,
6 she will have no basis for doubting the lawyer's claim of necessity."
7

8 755 F.3d at 842.

9

[CLASSIFIED MATERIAL REDACTED]

10

The defendant's arguments in support of disclosure of the FISA

11 materials have no basis in the law, and disclosure of the FISA
12 materials would cause exceptionally grave damage to the national 13
security. In summary, the defendant is not entitled to the FISA 14
materials for the purpose of challenging the lawfulness of the FISA 15 16 authorities and the complete record presented to the FISC has been
17 provided to this Court in well-organized and straightforward manner,

18 obviating the defendant's claim that this Court would not be able to

19 review and make a determination as to the legality of the FISA

20 collection without the assistance of defense counsel. 21

22

COURT TO CONDUCT A FRANKS HEARING

23

The defendant alleges that the "FISA applications likely contain

24 intentional or reckless material falsehoods or omissions, and
25 therefore violate the Fourth Amendment principles identified in 26
Franks . . . ,"and requests that the Court conduct a Franks hearing. 27
Doc. 70 at pp. 2-4. The Court should decline to hold such a hearing. 28

48

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 60 of 67 Page ID #:704

1

To merit a Franks hearing, a defendant must make a "concrete and

2 substantial preliminary showing" that the affiant deliberately or
3 recklessly included false statements, or failed to include material
4 information, in the affidavit, and that the resulting
5 misrepresentation was essential to the finding of probable cause.
6 Franks, 438 U.S. at 155-56; United States v. Craighead, 539 F.3d
7
8 1073, 1080 (9th Cir. 2008). The Franks threshold is not met even by

9 an offer of proof of an impropriety that might have affected the

10 outcome of the probable cause determination, but rather requires one
11 that was "necessary to the finding of probable cause." United States 12 v. Colkley, 899 F.2d 297, 301-02 (4th Cir. 1990); see also United 13
States v. Shnewer, 2008 U.S. Dist. LEXIS 112001, at 38 (2009) 14
("[E]ven if the Court were to determine there existed a reckless or 15 16 intentional falsehood or omission in the FISA application materials,
17 the evidence obtained still should not be suppressed unless the Court
18 makes the further finding that the falsehood or omission was material

19 to the probable cause determination.").

20

Only after a defendant makes the requisite showing22 may the

21 Court conduct a Franks hearing to determine if there are material
22

23 22 Indeed, even if a defendant offers sufficient proof to show that an 24 affidavit involved false statements or omissions, a hearing should
not be held where the affidavit would still provide probable cause if 25 the allegedly false material were eliminated, or if the allegedly
omitted information were included. Franks, 438 U.S. at 171; Colkley, 26 899 F.2d at 300; United States v. Ketzeback, 358 F.3d 987, 990 (8th 27 Cir. 2004); United States v. Martin, 615 F.2d 318, 328 (5th Cir.
1980).
28

49

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 61 of 67 Page ID #:705
1 misrepresentations of fact, or omissions of material fact, in the
2 FISA applications sufficient to warrant suppression of the FISA-
3 obtained or -derived evidence. Franks, 438 U.S. at 171. The 4
defendant, however, ignores this burden and simply incorporates by 5
reference his Motion to Traverse Search Warrants SA14-315M, SA146
316M, SA14-317M, and SA14-318M, and Request for Franks Hearing (Doc. 7 8 73) (hereinafter, "Motion to Traversen) . 23 He speculates that,
9 because the FISA applications "presumably present[] much of the same
10 informationn as an affidavit supporting one of the criminal search
11 warrants, the FISA applications must have contained "serious 12 misrepresentations and omissions.n Doc. 70 at pp. 13-14. 13
[CLASSIFIED MATERIAL REDACTED] 14
As noted supra, the defendant seeks the "opportunity to prove 15
that the affiant intentionally or recklessly made materially false 16 17 statements and/or omitted material information from the FISA
18 applications,n Doc. 70 at p. 14, which would allow him, and
19 defendants in every case, to obtain the FISA materials by merely
20 alleging some impropriety. 24 Disclosing FISA materials to defendants 21
would. then become the rule, violating Congress' clear intention, set 22
23 In response to the defendant's challenges to the criminal search 23 warrants, the Government filed a Consolidated Opposition to
Defendant's Motion to Traverse and to Quash Search Warrant at the 24 time this response was filed. 25
24 The Hon. Josephine Staton Tucker in this district referred to this 26 as "backwards reasoningn in denying a defendant's motion to suppress
FISA-derived evidence. United States v. Mihalik, ll-CR-833(A), Doc. 27 No. 108, at 2 (C.D. Cal., Oct. 3, 2012) (Minute Order Denying 28 Defendant's Motion to Suppress FISA Derived Evidence).
50

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 62 of 67 Page ID #:706

1 forth in 50 U.S.C. §§ 1806(f) and 1825(g), that the FISA materials be
2 reviewed in camera and ex parte in a manner consistent with the
3 realities of modern intelligence needs and investigative techniques. 4
Courts have acknowledged that the FISA statute does not envision such 5
disclosure without establishing a basis for it. In Belfield, for 6
example, the court noted that "Congress was also aware of these 7 8 difficulties [faced by defense counsel without access to FISA
9 materials and) chose to resolve them through means other than

10 mandatory disclosure." Belfield, 692 F.2d at 148. As Judge

11 Leinenweber framed the difficulty facing defense counsel:

12 Nevertheless, to challenge the veracity of the FISA

13

application, Defendant must offer substantial proof

that the FISC re~ied on an intentional or reckless

14

misrepresentation by the government to grant the FISA

order. The quest to satisfy the Franks requirement

15

might feel like a wild-goose chase, as Defendant lacks

16

access to the materials that would provide this proof. This perceived practical impossibility to obtain a

17

hearing, however, does not constitute a legal

impossibility.

18

Kashmiri, 2010 U.S. Dist. LEXIS 119470, at * 17. 19

20

Moreover, courts have rejected other defendants' attempts to

21 force a Franks hearing by positing unsupported speculation to

22 challenge the validity of FISC orders, and this Court should do so

23 here. See Abu-Jihaad, 531 F. Supp. 2d at 309; Hassoun, 2007 WL
24 1068127 at *4; Mubayyid, 521 F. Supp. 2d at 130-31; Kashmiri, 2010 25
U.S. Dist. LEXIS 119470, at *17 (noting that the court "has already 26
undertaken a process akin to a Franks hearing through its ex parte, 27
in camera review"); Shnewer, 2008 U.S. Dist. LEXIS 112001, at 37 28
51

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 63 of 67 Page ID #:707

1 ("This catch-22 has not troubled courts, however, and they defer to

2 FISA's statutory scheme."); Mubayyid, 521 F. Supp. 2d at 131 ("The
3 balance struck under FISA--which is intended to permit the gathering 4
of foreign intelligence under conditions of strict secrecy, while 5
providing for judicial review and other appropriate safeguards--would 6 7 be substantially undermined if criminal defendants were granted a
8 right of disclosure simply to ensure against the possibility of a
9 Franks violation.") . 25

10

The defendant has failed to carry the burden of establishing the

11 prerequisites for a Franks hearing, and his attempt to obtain
12 disclosure of the FISA materials to meet that burden is unprecedented
13 and runs counter to the plain language of FISA, the clear directive
14
of the Franks court itself, and the intent of Congress. The 15
16 defendant's failure to make a threshold showing of a falsehood in the
17 FISA applications is fatal to a Franks motion. For these reasons,

18 the Court should therefore deny the defendant's request for a Franks

19 hearing and his request for disclosure of the FISA materials.

20

D. THE DEFENDANT HAS NOT ESTABLISHED ANY BASIS FOR THE

21

COURT TO SUPPRESS THE FISA INFORMATION

22

The defendant requests in his motion that the Court suppress any

23 evidence obtained or derived from searches or surveillance conducted

24 pursuant to FISA (i.e., the FISA information). Doc. 70 at p. 4. In

25

25 The defendant ignores this balance, claiming that "the focus must 26 now be on the rights of the defendant, rather than general interests

27

of intelligence gathering." Doc. 70 at p. 15. His approach contravenes FISA, which was carefully drafted to take both

28 considerations into account.

52

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 64 of 67 Page ID #:708

1 support of this argument, the defendant alleges that the Government

2 "may" have committed various improprieties. Id. at pp. 2-3.

3

[CLASSIFIED MATERIAL REDACTED]

4 As the Court will see from its ex parte, in camera review of the
5 FISA materials, the Government complied with all of FISA's statutory
6
7 requirements. Accordingly, the Government submits that there is no

8 basis to suppress the FISA information in the present case.

9 VI. CONCLUSION: THERE IS NO BASIS FOR THE COURT TO DISCLOSE THE

FISA MATERIALS, TO CONDUCT A FRANKS HEARING, OR TO SUPPRESS

10

THE FISA INFORMATION

11

The defendant's Motion should be denied in its entirety. FISA's

12 provisions for in camera, ex parte review comport with the due
13 process requirements of the United States Constitution. See, e.g.,
14 Spanjol, 720 F. Supp. at 58-59; United States v. Butenko, 494 F.2d
15
16 593, 607 (3d Cir.), cert denied sub nom Ivanov v. United States, 419

17 U.S. 881 (1974); Damrah, 412 F.3d at 624; Warsame, 547 F. Supp. 2d at

18 988-89. The defendant advances no argument to justify any deviation

19 from these well-established precedents.

20

The Attorney General has filed a declaration in this case

21 stating that disclosure of the FISA materials or an adversary _he<J~ing
22 would harm the national security of the United States. Therefore,
23
24 FISA mandates that this Court conduct an in camera, ex parte review

25 of the challenged FISA materials to determine whether the information

26 was lawfully acquired and the electronic surveillance and physical

27 searches were made in conformity with an order of authorization or

28 approval. In conducting that review, the Court may disclose the FISA 53

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 65 of 67 Page ID #:709

1 materials "only where such disclosure is necessary to make an

2 accurate determination of the legality of the surveillance [or
3 search]." 50 U.S.C. §§ 1806(f), 1825(g). Congress, in enacting 4
FISA' s procedures for in camera, ex parte j.udicial review, has 5
balanced and accommodated the competing interests of the Government 6
and criminal defendants, and has articulated the proper standard for
7
8 disclosure; that is, only where the Court determines that disclosure
9 is necessary to the Court's accurate determination of the legality of

10 the FISA collection.

11

The Court can make this determination without disclosing the

12 classified and highly sensitive FISA materials to the defendant. The
13 FISA materials at issue here are organized and readily understood,
14 and an overview of them has been presented herein as a frame of
15
16 reference. This Court will be able to render a determination based

17 on its in camera, ex parte review, and the defendant has failed to

18 present any colorable basis for supplanting Congress' reasoned

19 judgment with a different proposed standard of review.

20

[CLASSIFIED MATERIAL REDACTED]

21 Even if this Court were to determine that the acquisition of the
22 FISA information had not been lawfully acquired or that the
23
electronic surveillance was not made in conformity with an order of 24

25 authorization or approval, the FISA evidence would nevertheless be

26 admissible under the "good faith" exception to the exclusionary rule

27 articulated in Leon, 468 U.S. 897. See also Ning Wen, 477 F.3d at

28 897 (holding that the Leon good-faith exception applies to FISA 54

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 66 of 67 Page ID #:710
1 orders); Mubayyid, 521 F. Supp. 2d at 140 n. 12 (noting that the
2 Government could proceed in good-faith reliance on FISA orders even 3 if FISA were deemed unconstitutional); Ahmed, 2009 U.S. Dist. LEXIS 4
120007, at *25 n. 8; Nicholson, 2010 WL 1641167, at *6. 5
Based on the foregoing analysis, the Government respectfully 6
submits that the Court must conduct an in camera, ex parte review of 7 8 the FISA materials and the Government's classified submission and 9 should: (1) find that the electronic surveillance and physical
10 searches at issue in this case were both lawfully authorized and
11 lawfully conducted; (2) hold that disclosure to the defendant of the 12 FISA materials and the Government's classified submission is not 13
authorized because the Court is able to make an accurate 14
determination of the legality of the electronic surveillance and 15 16 physical searches without disclosing the FISA materials or any 17 portions thereof; (3) hold that the fruits of electronic
18 surveillance, physical searches, or both, should not be suppressed;
19 (4) order that the FISA materials and the Government's classified 20 submissions be maintained under seal by the Court Security Officer or 21
II
22
II
23
24 II 25 II
26
27
28
55

Case 8:14-cr-00173-CAS Document 82 Filed 05/04/15 Page 67 of 67 Page ID #:711

1 his or her designee; and (5) deny the defendant's Motion without an

2 evidentiary hearing. 26 3 DATED: May 4, 2015 4 5 6 7 8 9 10 11 12

Respectfully submitted,
STEPHANIE YONEKURA Acting United States Attorney
/s/ ANTHONY LEWIS Assistant United States Attorney
CASEY ARROWOOD Trial Attorney Counterespionage Section National Security Division

13

14

15

16

17

18

19

20

26 A district court order granting motions or requests under 50 U.S.C. 21 §§ 1806(g) or 1825(h), a decision that electronic surveillance or

22 physical searches were not lawfully authorized or conducted, and an order requiring the disclosure of FISA materials is a final order for

23 purposes of appeal. 50 U.S.C. §§ 1806(h), 1825(i). Should the Court conclude that disclosure of any item within any of the FISA materials

24 or suppression of any FISA-obtained or -derived information may be

required, given the significant national security consequences that 25 would result from such disclosure or suppression, the Government

26

would expect to pursue an appeal. Accordingly, the Government respectfully requests that the Court indicate its intent to do so

27 before issuing any order, and that the Court stay any such order pending an appeal by the United States of that order.

28

56

 
 No. 16-50339

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT __________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

KEITH PRESTON GARTENLAUB, Defendant-Appellant. __________________

On Appeal From the United States District Court For the Central District of California, Case No. SACR 14-173-CAS
Honorable Christina A. Snyder __________________

BRIEF FOR APPELLANT

__________________

Tor Ekeland TOR EKELAND, P.C. 43 West 43rd Street Suite 50 New York, NY 10036 Telephone: (646) 287-0135

John D. Cline LAW OFFICE OF JOHN D. CLINE 235 Montgomery St., Suite 1070 San Francisco, CA 94104 Telephone: (415) 662-2260
Attorneys for Defendant-Appellant KEITH PRESTON GARTENLAUB

TABLE OF CONTENTS

Page

JURISDICTION, TIMELINESS, AND BAIL STATUS ........................................ 1 ISSUES PRESENTED ............................................................................................ 1 STATEMENT OF THE CASE................................................................................ 2
I. PROCEDURAL HISTORY ................................................................ 3 II. RELEVANT FACTS .......................................................................... 5
A. The Investigation of Gartenlaub ............................................... 5 B. The Evidence at Trial ................................................................ 8 III. RULINGS PRESENTED FOR REVIEW........................................... 9 SUMMARY OF ARGUMENT ............................................................................... 9 ARGUMENT ......................................................................................................... 11 I. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN GARTENLAUB'S CONVICTION ................................................... 11 A. Standard of Review ................................................................. 11 B. The Evidence Does Not Establish That Gartenlaub
Knowingly Possessed Child Pornography .............................. 12 II. THE GOVERNMENT'S SEARCH OF GARTENLAUB'S
COMPUTERS IN JANUARY 2014 VIOLATED HIS FOURTH AMENDMENT RIGHTS ................................................ 18 A. Standard of Review ................................................................. 18 B. The Fourth Amendment Implications of Computer
Searches .................................................................................. 20 C. The January 2014 Search Was Not Supported By
Probable Cause........................................................................ 22 D. The District Court Erred in Refusing to Order a Franks
Hearing.................................................................................... 29 E. The January 2014 Search and Seizure Exceeded the
Scope of the FISC Order Authorizing It ................................. 30 III. THE DISTRICT COURT ERRED IN REFUSING TO ORDER
DISCLOSURE OF THE FISC APPLICATION AND ORDER ...... 36 A. Standard of Review ................................................................. 36
i

TABLE OF CONTENTS (continued)

Page

B. The Meaning of the Term "Necessary"................................... 36 C. Disclosure Is Necessary Here, Particularly on the Franks
Issue ........................................................................................ 45 D. Disclosure Is Required As a Matter of Due Process ............... 47 E. Disclosure Is Required Under Brady ...................................... 55 CONCLUSION...................................................................................................... 56 STATEMENT CONCERNING ORAL ARGUMENT ......................................... 56 STATEMENT OF RELATED CASES ................................................................. 56

ii

TABLE OF AUTHORITIES

CASES

Page

Alderman v. United States, 394 U.S. 165 (1969)............................................................................... 49, 50, 51

American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (9th Cir. 1995) ................................................................. 47, 49, 53

Brady v. Maryland, 373 U.S. 83 (1963)............................................................................................. 55

Cellco Partnership v. FCC, 357 F.3d 88 (D.C. Cir. 2004) ............................................................................. 36

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)........................................................................................... 43

Commissioner v. Tellier, 383 U.S. 687 (1966)........................................................................................... 37

CT&IA v. FCC, 330 F.3d 502 (D.C. Cir. 2003) ........................................................................... 37

Franks v. Delaware, 438 U.S. 154 (1978)................................................. 1, 4, 9, 18, 28, 29, 45, 50, 51

FTC v. Rockefeller, 591 F.2d 182 (2d Cir. 1979) .............................................................................. 37

Grand Jury Subpoena v. Kitzhaber, 828 F.3d 1083 (9th Cir. 2016) ..................................................................... 21, 33

Hall v. United States, 566 U.S. 506 (2012)........................................................................................... 42

Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336 (9th Cir. 1970) ........................................................................... 19

In re All Matters, 218 F. Supp. 2d 611 (FISC), rev'd, 310 F.3d 717 (FISCR 2002) ...................... 51
iii

In re FBI, 2009 U.S. Dist. LEXIS 132935 (FISC Sep. 25, 2009) ...................................... 51
In re Kevork, 788 F.2d 566 (9th Cir. 1986) ............................................................................. 43
Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D.N.J. 1999) .......................................................... 47, 49, 53
Kindhearts for Charitable Humanitarian Development, Inc. v. Geithner, 710 F. Supp. 2d 637 (N.D. Ohio 2010) ............................................................. 48
Mathews v. Eldridge, 424 U.S. 319 (1976)............................................................................... 47, 48, 52
Prometheus Radio Project v. FCC, 373 F.3d 372 (3d Cir. 2004) .............................................................................. 37
Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989) ........................................................................... 47
Rafeedie v. INS, 795 F. Supp. 13 (D.D.C. 1992) .......................................................................... 53
[Redacted], 2011 U.S. Dist. LEXIS 157706 (FISC Oct. 3, 2011) ........................................ 52
Riley v. California, 134 S. Ct. 2473 (2014)........................................................................... 19, 20, 21
Snider v. United States, 468 F.3d 500 (8th Cir. 2006) ............................................................................. 37
Stead Motors of Walnut Creek v. Automotive Machinists Lodge 1173, 886 F.2d 1200 (9th Cir. 1989) ........................................................................... 19
United States v. Andrews, 75 F.3d 552 (9th Cir. 1996) ......................................................................... 11, 17
United States v. Chung, 659 F.3d 815 (9th Cir. 2011) ............................................................................... 5
iv

United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc) ................................... 21, 31, 32, 33, 35
United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) ....................................................................... 20, 21
United States v. Daoud, 755 F.3d 479 (7th Cir. 2014), cert. denied, 135 S. Ct. 1456 (2015)...... 28, 45, 46
United States v. Dinkane, 17 F.3d 1192 (9th Cir. 1994) ....................................................................... 11, 17
United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) ............................................................................. 36
United States v. Flores, 802 F.3d 1028 (9th Cir. 2015), cert. denied, 137 S. Ct. 36 (2016).................... 33
United States v. Flyer, 633 F.3d 911 (9th Cir. 2011) ..................................................... 14, 15, 17, 18, 35
United States v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000) ............................................................................. 55
United States v. Giberson, 527 F.3d 882 (9th Cir. 2008) ....................................................................... 34, 35
United States v. Gowadia, 2010 U.S. Dist. LEXIS 80572 (D. Haw. May 8, 2010)..................................... 54
United States v. Hernandez-Orellana, 539 F.3d 944 (9th Cir. 2008) ............................................................................. 11
United States v. James Daniel Good Real Property, 510 U.S. 43 (1993)....................................................................................... 48, 49
United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006) ................................................................. 13, 15, 17
United States v. Lee, 2000 U.S. App. LEXIS 3082 (10th Cir. Feb. 29, 2000) .................................... 54
v

United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016) ............................................................................. 18
United States v. Mohrbacher, 182 F.3d 1041 (9th Cir. 1999) ........................................................................... 12
United States v. Nessland, 601 Fed. Appx. 576 (9th Cir. 2015)............................................................. 34, 35
United States v. Parish, 308 F.3d 1025 (9th Cir. 2002) ........................................................................... 12
United States v. Posey, 864 F.2d 1487 (9th Cir. 1989) ........................................................................... 22
United States v. Romm, 455 F.3d 990 (9th Cir. 2006) ........................................................... 12, 13, 14, 15
United States v. Shryock, 342 F.3d 948 (9th Cir. 2003) ............................................................................. 18
United States v. Willard, 230 F.3d 1093 (9th Cir. 2000) ........................................................................... 11
Yates v. United States, 135 S. Ct. 1074 (2015)....................................................................................... 43
CONSTITUTION, STATUTES, AND RULES
U.S. Const. Amend. IV .................................................................................... passim
U.S. Const. Amend. V ............................................................................................ 47
18 U.S.C. § 3231....................................................................................................... 1
18 U.S.C. § App. 3, § 3 ........................................................................................... 53
18 U.S.C. § App. 3, § 4 ........................................................................................... 54
18 U.S.C. § App. 3, § 6(e) ...................................................................................... 41
28 U.S.C. § 1291....................................................................................................... 1
50 U.S.C. § 1801(b) ............................................................................................ 1, 22
vi

50 U.S.C. § 1801(e) ................................................................................................ 30 50 U.S.C. § 1801(e) .............................................................................. 30, 41, 42, 43 50 U.S.C. § 1801(h)(2) ..................................................................................... 42, 43 50 U.S.C. § 1806(f)................................................. 36, 37, 41, 42, 43, 44, 46, 52, 55 50 U.S.C. § 1806(g) ................................................................................................ 47 50 U.S.C. § 1822(b) ................................................................................................ 30 50 U.S.C. § 1823(a)(3)(A) ...................................................................................... 22 50 U.S.C. § 1823(a)(6)(A) ...................................................................................... 30 50 U.S.C. § 1824(a)(2)(A) ...................................................................................... 22 50 U.S.C. § 1824(a)(4)............................................................................................ 30 50 U.S.C. § 1825(g) ...................................................... 10, 35, 36, 37, 44, 46, 52, 55 50 U.S.C. § 1825(h) ................................................................................................ 47 OTHER AUTHORITIES H. Conf. Rep. 1720, 95th Cong., 2d Sess. (Oct. 5, 1978) ....................................... 42 S. Rep. 604(I), 95th Cong., 1st Sess.,
reprinted in 1978 U.S.C.C.A.N. 3904 ....................................... 23, 38, 40, 41, 43 S. Rep. 701, 95th Cong., 1st Sess.,
reprinted in 1978 U.S.C.C.A.N. 3973 ............................................. 38, 40, 42, 44
vii

JURISDICTION, TIMELINESS, AND BAIL STATUS This appeal is from a judgment of conviction. The judgment is final as to all parties. The district court had subject matter jurisdiction under 18 U.S.C. § 3231. The court entered the judgment on September 6, 2016. ER1.1 Gartenlaub filed his notice of appeal on September 8, 2016. ER32. This Court has jurisdiction under 28 U.S.C. § 1291. The district court and this Court have denied appellant's motions for bail pending appeal. Doc. 243. Appellant must self-surrender by noon on February 14, 2017. Doc. 247.
ISSUES PRESENTED 1. Is the evidence sufficient for a rational jury to find beyond a reasonable doubt that appellant Gartenlaub knowingly possessed child pornography? 2. Did the government's application to the Foreign Intelligence Surveillance Court establish probable cause to believe that appellant was an "agent of a foreign power," as defined at 50 U.S.C. §§ 1801(b) and 1821(1)? 3. Did the district court err in refusing to order a Franks hearing? 4. Did the government exceed the scope of the Foreign Intelligence Surveillance Court order authorizing agents to search appellant's computers for foreign intelligence information, and thus violate the Fourth Amendment, by 1 Appellant's Excerpts of Record are cited as "ER." His sealed Excerpts of Record are cited as "Sealed ER." District court filings are cited by docket number and page. Transcripts are cited by date and page.

searching every file on the computers and seizing child pornography that it found in the course of the search?
5. Did the district court err in refusing to order disclosure to the defense of the application the government submitted to the Foreign Intelligence Surveillance Court and the order of that court authorizing the search of appellant's home and computers?
STATEMENT OF THE CASE This is--in the district court's words--a "one-of-a-kind" child pornography case. T.8/29/16 at 7. Keith Gartenlaub stands convicted of a single count of possession, based on the presence on several computer hard drives of fewer than 100 files containing child pornography. The child pornography files had not been downloaded to any of the hard drives; rather, they had been copied to one of the drives in 2005 and then copied (along with thousands of other files as part of an enormous folder with multiple subfolders called "Origdata") from that drive to the next and so on. No one could say who originally downloaded the child pornography files or who placed them initially on Gartenlaub's computer. Three facts are undisputed, however: there is no evidence that anyone opened any of the child pornography files at any point from when they were first copied to one of Gartenlaub's hard drives in 2005 until the government seized the drives in 2014; no new files containing child pornography were added to any of the hard drives after
2

the initial copying in 2005; and numerous people had access to and used Gartenlaub's computer during the period when the child pornography files were first placed on one of his hard drives.
As the district court recognized at sentencing, T.8/29/16 at 5-7, the absence of evidence that Gartenlaub originally downloaded the child pornography files, that he added to the child pornography files between 2005 and 2014, or that he ever opened those files sets this case apart from every previous child pornography prosecution.
Apart from the unique facts concerning the never-opened child pornography files, how the government found those files on Gartenlaub's hard drives in the first place sets this case apart. The government's searches of those hard drives--first secretly under the Foreign Intelligence Surveillance Act and then under a warrant that relied on what the FISA search had found--represent a startling invasion of an American citizen's privacy. As discussed below, those searches violated Gartenlaub's Fourth Amendment protection against unreasonable searches and seizures. I. PROCEDURAL HISTORY.
On October 23, 2014, the grand jury indicted Gartenlaub for receipt and possession of child pornography. ER296. Through pretrial motions, he challenged a January 2014 FISA search of his home and computers and an August 2014
3

search of his computers on Fourth Amendment and other grounds. He sought disclosure of the underlying FISA application and order, and he requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978), at which he could establish that the FISA application and the August 2014 search warrant application contained intentional or reckless material falsehoods and omissions. Docs. 67, 70, 73.
The government submitted a largely classified, ex parte opposition to Gartenlaub's FISA motion.2 The district court reviewed the FISA application and order, together with the classified portions of the government's opposition, in camera and ex parte. In an 11-page opinion drafted by the government and signed without change by the district court, the court refused to disclose to the defense the FISA application and order and denied Gartenlaub's motion to suppress the fruits of the FISA search. ER21. Later, however, the court expressed some misgivings; it declared, "I do have some personal questions regarding the propriety of the FISA court proceeding even though that certainly seems to be legally authorized." T.4/18/16 at 9-10. The court also denied Gartenlaub's motion to suppress the evidence obtained through the August 2014 searches. ER321.
The jury found Gartenlaub guilty on both counts. The district court dismissed the receipt count (Count 1) as multiplicitous. Doc. 210. On August 29,
2 The defense received a heavily redacted version of the government's opposition. Doc. 82.
4

2016, the court sentenced Gartenlaub to 41 months imprisonment and $3430 in restitution. ER1. The district court and this Court denied Gartenlaub's motion for bail pending appeal. He must self-surrender by noon on February 14, 2017. Doc. 247. II. RELEVANT FACTS.
A. The Investigation of Gartenlaub. In 2013, Wesley Harris, an FBI agent in Los Angeles, read an article from Wired.com noting that the Chinese had developed a military transport plane "in roughly the same class as the U.S. C-17 or the Russian Il-76." ER378. The article asserted that the Russian Il-76 "seems to be the basis of the Y-20's design," but added that "'Beijing may also have acquired some of the C-17's blueprints from a spy working at Boeing." ER379.3 The agent read a second article, which asserted that "hackers" may have compromised the Boeing C-17 and other Boeing aircraft. Id. Based on these articles, Agent Harris launched an investigation that swiftly focused on Gartenlaub, who worked at Boeing. There was never a shred of

3 A previous version of the Wired.com article, published in December 2012,

identified the potential Boeing spy as Dongfan Chung.

https://www.wired.com/2012/12/china-debuts-giant-transport/.

Chung was

convicted in 2010 of providing Boeing trade secrets to China (although the

conviction did not involve the C-17), and this Court affirmed in 2011. United

States v. Chung, 659 F.3d 815 (9th Cir. 2011). The Harris affidavit does not

mention Chung.

5

evidence that Gartenlaub had provided C-17 information to China. There was no such evidence in 2012, and there is none today. But Agent Harris seized on two principal facts: that Gartenlaub's position at Boeing allegedly gave him access to C-17 data and that his wife was born in China (although she is a naturalized U.S. citizen), as a result of which he has traveled to China, communicated with his wife's relatives in China, and owned property in China jointly with his wife. Agent Harris learned that Gartenlaub disclosed his Chinese travel to Boeing and received approval. He learned that Gartenlaub's communications with China had nothing to do with the C-17 and were easily explained by his family relationship. He learned that many others had access to the C-17 data. Nonetheless, Agent Harris used Gartenlaub's alleged access (which the agent misunderstood and exaggerated), his Chinese-born wife, and other innocuous facts to construct a fictitious picture of Gartenlaub as a spy for China.
In June 2013, Agent Harris took his theory to a Magistrate Judge in Los Angeles and obtained a search warrant for Gartenlaub's and his wife's personal email accounts. As discussed below, the affidavit in support of the warrant does not come close to establishing probable cause that the emails contain evidence that Gartenlaub spied for China. The Harris affidavit is, in any event, rife with material falsehoods and omissions.
6

The emails, once produced in response to the warrant, provided no support for Agent Harris' theory. Undeterred, the FBI turned to the Foreign Intelligence Surveillance Court ("FISC"). Based on a secret submission which has never been disclosed to the defense--but which presumably sought to establish probable cause to believe that Gartenlaub was an "agent of a foreign power," namely China--the FISC authorized a search of Gartenlaub's home and computers. On January 29 and 30, 2014, agents conducted the secret search and imaged three hard drives they found in the home. Over the following months, agents pored through the massive amount of data they had obtained. The FBI found no evidence that Gartenlaub had provided C-17 data to China or otherwise acted as a spy for China. But the agents did find, among the thousands of files on the hard drives, a handful containing child pornography.
The agents dropped the theory that Gartenlaub was a spy for China and embraced instead the theory that he collected child pornography. In August 2014, the FBI obtained a search warrant for premises associated with Gartenlaub, seeking evidence that he received and possessed child pornography. ER243. The application for the August 2014 warrant relied heavily on the fact that the secret FISA search from January 2014 (described in the warrant application as "a courtauthorized search without notice" to the occupants) had found child pornography on hard drives associated with Gartenlaub. ER248-49. The FBI search led to the
7

seizure of three hard drives that the FBI had imaged during the FISA search, plus a fourth that contained a copy of the "Origdata" folder structure, including the files with child pornography.
B. The Evidence at Trial. The evidence at trial showed that in 2005 fewer than 100 files containing child pornography were copied to a hard drive found later in Gartenlaub's possession and that no new child pornography files were added after that date. ER194-95, 199-200.4 There was no evidence showing who initially downloaded the child pornography files, or to what hard drive. ER193-95, 217. The child pornography files were copied--along with tens of thousands of other files in an enormous folder structure called "Origdata"--to three other hard drives found in Gartenlaub's possession. There was no evidence that Gartenlaub or anyone else opened the files containing child pornography at any point from 2005 when they were first copied to one of the hard drives until the hard drives were seized in 2014. See generally ER193-230 (cross-examination of government computer forensic expert Bruce Pixley). The evidence also showed that a number of other people had access to Gartenlaub's computer during the period when the child
4 There was some question about the number of child pornography files found on Gartenlaub's hard drives. A review by the National Center for Missing and Exploited Children identified 22 such files. The additional 70 or so alleged child pornography files apparently were identified by non-expert agents. E.g., T.12/4/15 at 72, 92-94.
8

pornography files were first copied to his hard drive. T.12/9/15 at 403-05, 412-16, 421-23.
We discuss the trial evidence in more detail in Part I of the argument. III. RULINGS PRESENTED FOR REVIEW.
Gartenlaub seeks review of (1) the district court's order denying his motion for judgment of acquittal, ER8; (2) the district court's order finding that the government's application to the FISC established probable cause to believe that Gartenlaub was an agent of a foreign power, ER23-24, 28; (3) the district court's refusal to order a Franks hearing, ER25, 29-30; and (4) the district court's order denying Gartenlaub's motion for disclosure of the government's application to the FISC and the FISC order authorizing the search of his home and computers, ER2528. Gartenlaub's trial counsel did not raise the issue concerning the scope of the government's search and seizure under the FISC order; that issue is reviewed for plain error.
SUMMARY OF ARGUMENT 1. On Count 2--the sole count of conviction--the government was required to prove that on or about August 27, 2014, Gartenlaub "knowingly possessed a computer disk or any other material that defendant knew contained a visual depiction . . . of a minor engaged in sexually explicit conduct." T.12/9/15 at 450. As we demonstrate below, no rational juror could find beyond a reasonable
9

doubt that Gartenlaub knowingly possessed the child pornography found on his hard drives.
2. The government's secret search of Gartenlaub's computers in January 2014 violated his Fourth Amendment rights in several respects. First, the government's application to the FISC--to the extent was complete and accurate-did not establish probable cause to believe that he is an "agent of a foreign power" (China). Second, the application to the FISC likely contained intentional or reckless material falsehoods or omissions, requiring a Franks hearing. Third, under FISA the FISC order could only authorize a search for "foreign intelligence information." By seizing and then examining files containing child pornography-which plainly is not "foreign intelligence information"--the government exceeded the scope of the FISC order. Because the August 2014 search warrant affidavit relied heavily on the child pornography evidence obtained through the unlawful January 2014 search, the fruits of that search--including all of the child pornography files at issue--must be suppressed.
3. The district court erred in denying the defense access to the government's application to the FISC and to the FISC order authorizing the January 2014 search of Gartenlaub's home and computers. Disclosure was both "necessary to make an accurate determination of the legality of the physical search," 50 U.S.C. § 1825(g), and required as a matter of due process.
10

ARGUMENT I. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN
GARTENLAUB'S CONVICTION. On Count 2--the sole count of conviction--the government was required to prove that on or about August 27, 2014, Gartenlaub "knowingly possessed a computer disk or any other material that defendant knew contained a visual depiction . . . of a minor engaged in sexually explicit conduct." T.12/9/15 at 450. As we demonstrate below, no rational juror could find beyond a reasonable doubt that Gartenlaub knowingly possessed the child pornography on his hard drives. A. Standard of Review. This Court reviews sufficiency of the evidence de novo. The sufficiency of the evidence depends on "whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Willard, 230 F.3d 1093, 1095 (9th Cir. 2000). Circumstantial evidence may support a conviction, but "mere suspicion or speculation . . . does not rise to the level of sufficient evidence." United States v. Hernandez-Orellana, 539 F.3d 994, 1004 (9th Cir. 2008) (quotation omitted); see, e.g., United States v. Andrews, 75 F.3d 552, 556 (9th Cir. 1996); United States v. Dinkane, 17 F.3d 1192, 1196 (9th Cir. 1994).
11

B. The Evidence Did Not Establish That Gartenlaub Knowingly Possessed Child Pornography.
Three cases from this Court frame the sufficiency issue. First, in United
States v. Romm, 455 F.3d 990 (9th Cir. 2006), the defendant--who had prior child
pornography convictions--admitted viewing child pornography on his laptop; he
admitted downloading or saving the child pornography images for five minutes and
then deleting them; and 42 of the images were found in the internet cache on his
computer.5 There was no evidence the defendant ever went into the internet cache
or accessed files there. See id. at 994-96.
This Court began its analysis by noting that it had previously upheld the
conviction of a defendant who downloaded child pornography to his computer.
See id. at 999 (citing United States v. Mohrbacher, 182 F.3d 1041, 1048-51 (9th
Cir. 1999)). On the facts before it, the Court reached the same conclusion where
the child pornography files were cached, rather than downloaded. As the Court
summarized the evidence:
By his own admission to ICE, Romm repeatedly sought out child pornography over the internet. When he found images he "liked," he would "view them, save them to his computer, look at them for about five minutes [] and then delete them." Either while
5 "The 'internet cache' or 'internet temporary folder' is a 'set of files kept by a web browser to avoid having to download the same material repeatedly.'" Romm, 455 F.3d at 993 n.1 (quoting Douglas Downing et al., Dictionary of Computer and Internet Terms 149 (Barron's 8th ed. 2003)). Unlike downloading, caching occurs automatically. See, e.g., United States v. Parish, 308 F.3d 1025, 1030-31 (9th Cir. 2002).
12

viewing the images or shortly thereafter, Romm twice masturbated. He described his activities as the "saving" and "downloading" of the images. While the images were displayed on screen and simultaneously stored to his cache, Romm could print them, email them, or save them as copies elsewhere. Romm could destroy the copy of the images that his browser stored to his cache. And according to detective Luckie, Romm did just that, either manually, or by instructing his browser to do so. Forensic evidence showed that Romm had enlarged several thumbnail images for better viewing. In short, given the indicia that Romm exercised control over the images in his cache, there was sufficient evidence for the jury to find that Romm committed the act of knowing possession. Id. at 1000-01. The Court found this evidence sufficient to establish knowing
possession. Id. at 1001.
Second, in United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006), a
sentencing appeal, the Court (citing Romm) reiterated that "a person does
knowingly receive and possess child pornography images when he seeks them out
over the internet and then downloads them to his computer." Id. at 861 (footnote
omitted). The defendant acknowledged that he had downloaded 110 images of
child pornography, for which he was responsible at sentencing. But thousands
more images appeared in the cache file on his computer; the issue was whether the
defendant knowingly possessed those images as well. Because the Court found
that the defendant "lack[ed] knowledge about the cache files, and concomitantly
lack[ed] access to and control over those files," it concluded that the images in the
cache files should not count for sentencing purposes. Id. at 863.
13

Finally, in United States v. Flyer, 633 F.3d 911 (9th Cir. 2011), the child pornography images were found in "unallocated space" on the defendant's computer. See id. at 918. "Unallocated space is space on a hard drive that contains deleted data, usually emptied from the operating system's trash or recycle bin folder, that cannot be seen or accessed by the user without the use of forensic software." Id. The Court distinguished Romm: "Unlike Romm, there is no evidence here that Flyer had accessed, enlarged, or manipulated any of the charged images, and he made no admission that he had viewed the charged images on or near the time alleged in the indictment." Id. at 919. The government argued that the deletion of the files (resulting in their placement in unallocated space) sufficed to establish that the defendant knowingly possessed them. The Court rejected the government's position: "[D]eletion of an image alone does not support a conviction for knowing possession of child pornography on or about a certain date within the meaning of § 2252(a)(4)(B) (2004). No evidence indicated that on or about April 13, 2004, Flyer could recover or view any of the charged images in unallocated space or that he even knew of their presence there. Accordingly, the district court committed plain error, and we reverse Flyer's conviction on [the possession charge]." Id. at 920.
Under these decisions, the evidence is insufficient to prove that Gartenlaub knowingly possessed child pornography "[o]n or about August 27, 2014," as
14

charged in the indictment. ER297. Unlike Romm (the case in which the Court found the evidence sufficient) and like Flyer (where the Court found the evidence insufficient), "there is no evidence here that [Gartenlaub] had accessed, enlarged, or manipulated any of the charged images, and he made no admission that he had viewed the charged images on or near the time alleged in the indictment." Flyer, 633 F.3d at 919. In fact, the argument for reversal is even stronger than in Flyer, where there was evidence--lacking here--that the defendant had deleted the child pornography images and thus that he had accessed them at some point.
The images here were on Gartenlaub's hard drives--not in cache files or unallocated space, as in Romm, Kuchinski, and Flyer. But given the absence of evidence that Gartenlaub downloaded them or that he accessed them at any point in the nine years preceding August 27, 2014, the location of the files on his hard drives should not matter. Nor does the copying of the files supply the missing evidence of knowing possession on the date in question. Each instance of copying represented the transfer of the thousands of files in the "Origdata" structure (and, indeed, on the entire drive) from one hard drive to another--exactly the kind of general copying that occurs when a person transfers files from an old computer to a new one. ER200-01. There was no evidence that any of the files containing child pornography was copied except as part of a mass migration of files from one computer to another.
15

In its order denying Gartenlaub's motion for judgment of acquittal, the district court noted several facts that, in its view, permitted a rational jury to find knowing possession beyond a reasonable doubt. ER9, 11. The court observed, for example, that some folders included in the "Origdata" structure contained Gartenlaub's personal documents. ER11. But those were different folders than the folders containing child pornography. The fact that Gartenlaub accessed other folders on the computer (which contained hundreds of folders) has no bearing on his knowledge of the contents of the folders containing child pornography. Moreover, the examples the government offered of Gartenlaub's personal documents--GX48-54--all predated the initial placement of the child pornography on his hard drive in 2005 and even the initial download of the files by an unknown person to an unknown hard drive in 2002 or 2003.
The court noted that "several files and folders on defendant's hard drives containing child pornography were renamed or moved by a person with access to defendant's computer." ER11. But there was no evidence who did the renaming or moving, and--according to the government's computer expert--it occurred between March 2005 and March 2006, ER144-49--more than eight years before the date on which Gartenlaub allegedly knowingly possessed the child pornography.
The district court asserted that "someone configured the settings on defendant's computer so as not to maintain recently played video footage." ER11.
16

But there was no evidence of that anyone undertook any such "configuration"; the video player on one of the computers simply did not maintain a record of what videos were played. ER175-76. Moreover, the court did not explain how this "configuration," even if attributed to Gartenlaub, would show knowing possession of child pornography.
Finally, the district court noted that "someone had accessed a folder on one of defendant's hard drives with file names indicating child pornography was contained therein." ER11; see ER175-79. But there is no evidence who opened the folder (the account name was "Keith," but the evidence showed that a number of people had access to the computer during the relevant period, T.12/9/15 at 40305, 412-16, 421-23), or for how long the folder was open, or whether the unidentified person who opened it read the names of the files it contained. Government expert Pixley confirmed, however, that he found no evidence that the user viewed specific files. ER175-76.
None of the evidence the district court cited permits a rational juror to find beyond a reasonable doubt that Gartenlaub knowingly possessed child pornography in August 2014. As Kuchinski and Flyer confirm, such a finding would require precisely the "speculation" that this Court forbids. HernandezOrellana, 539 F.3d at 1004 (quotation omitted); see, e.g., Andrews, 75 F.3d at 556; Dinkane, 17 F.3d at 1196. The Court should order Gartenlaub acquitted.
17

II. THE GOVERNMENT'S SEARCH OF GARTENLAUB'S COMPUTERS IN JANUARY 2014 VIOLATED HIS FOURTH AMENDMENT RIGHTS. The government's secret search of Gartenlaub's computers in January 2014
violated his Fourth Amendment rights in several respects. First, the government's application to the FISC--to the extent was complete and accurate--did not establish probable cause to believe that he is an "agent of a foreign power" (China). Second, the application to the FISC likely contained intentional or reckless material falsehoods or omissions, requiring a Franks hearing. Third, under FISA the FISC order could only authorize a search for "foreign intelligence information." By seizing and then examining files containing child pornography--which plainly is not "foreign intelligence information"--the government exceeded the scope of the FISC order. Because the August 2014 search warrant affidavit relied heavily on the child pornography evidence obtained through the unlawful January 2014 search, the fruits of that search--including all of the child pornography files at issue--must be suppressed.
A. Standard of Review. This Court reviews the denial of a motion to suppress de novo, but "underlying factual findings are reviewed for clear error." United States v. Mohamud, 843 F.3d 420, 432 (9th Cir. 2016). The Court reviews a district court's denial of a Franks hearing de novo. See United States v. Shryock, 342 F.3d 948,
18

975 (9th Cir. 2003). Where no objection is made in the district court, this Court reviews for plain error. "Under plain-error review, reversal is permitted only when there is (1) error that is (2) plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." Flyer, 633 F.3d at 917 (quotation omitted).
As noted above, the district court adopted verbatim an 11-page proposed opinion on the FISA suppression and disclosure issues written by government counsel. ER21. This Court has repeatedly criticized the practice of adopting verbatim one party's proposed order, noting that it "generally makes appellate review more difficult and invites distortion and overstatement by the prevailing party." Stead Motors of Walnut Creek v. Automotive Machinists Lodge 1173, 886 F.2d 1200, 1204 n.5 (9th Cir. 1989) (citing cases); see, e.g., Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339-40 (9th Cir. 1970) (same). The criticism in Stead Motors concerned a relatively simple two-page order. The concerns voiced there apply with even greater force to the full-blown opinion at issue here, replete with findings and conclusions on a range of issues. Because the district court merely signed the government's proposed opinion, this Court should review that opinion with particular care.
19

B. The Fourth Amendment Implications of Computer Searches.
The analysis of the government's searches of Gartenlaub's hard drives begins
with the principle that computers enjoy heightened protection under the Fourth
Amendment, because of the extraordinary volume of intensely personal
information they contain. The Supreme Court's unanimous opinion in Riley v.
California, 134 S. Ct. 2473 (2014), summarized the profound privacy concerns of
a cell phone (and, by the same logic, other modern computers):
The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information--an address, a note, a prescription, a bank statement, a video--that reveal much more in combination than any isolated record. Second, a cell phone's capacity allows even just one type of information to convey far more than previously possible. The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone. Id. at 2489. The Court observed that the data on a cell phone (or any other
computer) differs from physical records qualitatively as well as by quantity. As
the Court found, "a cell phone search would typically expose to the government far
more than the most exhaustive search of a house: A phone not only contains in
digital form many sensitive records previously found in the home; it also contains a
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broad array of private information never found in a home in any form--unless the
phone is." Id. at 2491 (emphasis in original).
This Court as well has emphasized the privacy concerns that computer
searches implicate. In United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013)
(en banc), for example, the Court observed:
Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails. This type of material implicates the Fourth Amendment's specific guarantee of the people's right to be secure in their "papers." U.S. Const. amend. IV. The express listing of papers reflects the Founders' deep concern with safeguarding the privacy of thoughts and ideas--what we might call freedom of conscience--from invasion by the government. Id. at 964; see Grand Jury Subpoena v. Kitzhaber, 828 F.3d 1083, 1090 (9th Cir.
2016) (same). The Court added that "[e]lectronic devices often retain sensitive and
confidential information far beyond the perceived point of erasure, notably in the
form of browsing histories and records of deleted files." Cotterman, 709 F.3d at
965; see United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176
(9th Cir. 2010) (en banc) (noting the "serious risk that every warrant for electronic
information will become, in effect, a general warrant, rendering the Fourth
Amendment irrelevant").
This case powerfully implicates the privacy concerns that Riley and
Cotterman highlight. Based on the entirely speculative theory that Gartenlaub was
21

a spy for China, government agents secretly entered his home, imaged his computer hard drives, and then spent months rummaging through the electronic data looking for evidence of wrongdoing. They did not find what they were looking for--evidence that Gartenlaub was a spy for China--but among the thousands of files they found a handful containing child pornography and thus launched this prosecution. For the reasons outlined below, that course of action violated his Fourth Amendment rights.
C. The January 2014 Search Was Not Supported By Probable Cause. The government's application to the FISC for an order authorizing the January 2014 search of Gartenlaub's home and computers was required to include "a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that . . . the target of the physical search [Gartenlaub] is . . . an agent of a foreign power."6 In turn, the FISC was required to find "probable cause to believe that . . . [Gartenlaub] is . . . an agent of a foreign power."7 An "agent of a foreign power," as applied to a "United States person" such as Gartenlaub, means (as potentially relevant here) "any person who knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes
6 50 U.S.C. § 1823(a)(3)(A); see United States v. Posey, 864 F.2d 1487, 1490 (9th Cir. 1989).
7 50 U.S.C. § 1824(a)(2)(A).
22

of the United States," and "any person who knowingly aids or abets [or conspires with] any person in the conduct of activities" described above.8
The government's application to the FISC to search Gartenlaub's home and computers--to the extent it was accurate and did not omit material facts--did not establish probable cause to believe that he was an "agent of a foreign power." There is no evidence that Gartenlaub acted "for or on behalf of" China, the relevant "foreign power." As the Senate Judiciary Committee explained, "Under this standard the person to be [searched] must be shown to have a knowing and substantial connection with the foreign power for whom he is working. There must be a principal-agent relationship under which the alleged agent has undertaken to provide services for his foreign principal." S. Rep. 95-604(I), 95th Cong., 1st Sess. 22, reprinted in 1978 U.S.C.C.A.N. 3904, 3923. No evidence supports the theory that Gartenlaub had a "knowing and substantial connection" or a "principal-agent relationship" with the Chinese government.
Of course, the defense has been denied access to the government's application to the FISC, so we cannot address its specific allegations. But that application likely recycled the "Gartenlaub as spy" theory that Agent Harris presented in June 2013 in his affidavit in support of the warrant for Gartenlaub's emails. The Harris affidavit falls far short of establishing probable cause to believe
8 50 U.S.C. § 1801(b)(2)(A), (E) (ellipses omitted; emphasis added); see id. § 1821(1).
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that Gartenlaub was a spy for China. To begin with, the affidavit's premise--that someone at Boeing provided information concerning the C-17 to China--rests on two magazine articles (from Wired.com and aionline.com). ER378-79. But neither article supports that theory. The Wired.com article asserted that the Russian Il-76 "seems to be the basis of the Y-20's design," but added that "'Beijing may also have acquired some of the C-17's blueprints from a spy working at Boeing." ER379. That speculation in a magazine article--"may also have acquired some of the C-17's blueprints from a spy working at Boeing"--hardly amounts to probable cause. The aionline.com article provides even less support for Agent Harris' theory; that article asserted that "hackers"--not an internal Boeing spy--may have compromised the Boeing C-17 and other Boeing aircraft. Id.9
The Harris affidavit is no more compelling when it turns specifically to Gartenlaub. The affidavit lacks any evidence--because there is none--that Gartenlaub removed C-17 information from Boeing's internal computer network and provided that information to the Chinese government.
Lacking any such evidence, the Harris affidavit resorts to innuendo. For example, the affidavit recites various innocuous statements that Gartenlaub made
9 Indeed, in 2014 the government alleged that a Canadian businessman, Su Bin, hacked into the Boeing computer system and stole military information, likely including information about the C-17. Doc. 73 at 22-24 (describing Su Bin case and attaching government affidavit in support of complaint in that case). Su Bin's hacking, of course, had nothing to do with Gartenlaub.
24

to the agents--about his interactions with Boeing security when traveling to China, about the difficulty of working on classified projects with an uncleared supervisor, and so on--and then asserts, based on Agent Harris' "experiences and training as an FBI agent" and without further explanation, that those statements are "suspicious in nature." ER388-91. The affidavit notes that, during the period when the interviews were occurring, Gartenlaub received two emails from a Boeing employee "stating that there were over 900 part files missing on the C-17 SAN, or Storage Area Network," but did not report the email to the FBI agents when they interviewed him several days later. ER388, 390, 403. But the affidavit makes no effort to connect the allegedly missing part files to Gartenlaub, or to the Chinese government, or to the new Chinese airplane. It merely notes that Agent Harris had requested additional information from Boeing on the subject and leaves the matter hanging. ER404.
The Harris affidavit relies upon the comments of an unnamed Boeing project security officer. The officer told Agent Harris that his "impression" was that Gartenlaub "always felt he was above the rules." He told Agent Harris that Gartenlaub's wife was from China and they would "travel there to visit family." At one point, according to the officer, the rules changed, and Gartenlaub was told he could not make a trip to China for which he had already bought tickets. According to the officer, "Gartenlaub told us that he canceled the trip but I always suspected
25

he went anyway, but had no proof." ER391-92.10 The unnamed security officer
added that "nobody trusted [Gartenlaub]" and that "his transfer off of a sensitive
project and onto the C-17 was the C-17's loss and the sensitive project's gain."
ER392. It is remarkable that an American's privacy can be breached, and his home
and computers secretly ransacked, based on this sort of vague character
assassination.
Agent Harris devotes several pages of his affidavit to the so-called "Fish
Fork" email. This was an email that Gartenlaub's wife forwarded to him at his
Boeing email address, to which he did not respond. ER395-97. We note below the
misleading omissions in Agent Harris' description of the email. But even as
portrayed in the affidavit, the email has nothing to do with the C-17 or confidential
Boeing information and reveals no wrongdoing by Gartenlaub.
Agent Harris describes a photo that Gartenlaub's wife sent to him in May
2013 (in other words, after the FBI had interviewed Gartenlaub repeatedly about
the C-17) at his Boeing email address. The photo (included in the affidavit)
depicts Gartenlaub and his wife. He is wearing "a white collared shirt, red scarf, 10 Agent Harris notes that, according to a "government database showing
U.S. border crossings," there is no evidence of Gartenlaub taking the trip in question. In other words, Gartenlaub told the security officer the truth, and the officer's suspicion was unfounded--which makes one wonder why Agent Harris included it in the first place. ER392. Agent Harris also notes that Gartenlaub properly and accurately reported to Boeing security all of his international travel, including his travel to China, with the possible exception of one entry into the United States from Canada in September 2008. ER392-95.
26

red arm sash with Chinese characters, and a black cross-body strap." ER405. Gartenlaub's wife is dressed similarly, and, Agent Harris notes, "[b]oth . . . are smiling." Id. Based on "open source materials" that Agent Harris reviewed, he concludes that Gartenlaub is wearing the "typical dress uniform[] of the Young Pioneers of China," which is "worn by children commemorating various nationalistic holidays in the PRC." ER405-06. The reader is left to surmise the significance of the adult Gartenlaub purportedly wearing the uniform of "children commemorating various nationalistic holidays" in China.
Agent Harris next turns to his "financial investigation." ER407. He notes that Gartenlaub and his wife have accounts at various financial institutions and that, over a three-year period between August 2009 and December 2012, they made 61 ATM deposits into their Bank of America account totaling $58,628.26. They made additional, non-ATM deposits, including a $25,000 wire transfer from the Industrial Bank of China (where his wife had an account) into their joint Bank of America account. ER407. Without a shred of supporting evidence (and without even a rudimentary follow-up investigation), Agent Harris concludes: "FBI LA believes that Gartenlaub and [his wife] were compensated for assisting in the intrusion [into Boeing's computer network] via cash payments. FBILA believes Gartenlaub and [his wife] have been slowly depositing the cash into multiple bank accounts and transferring the money to other accounts in order to hide the source
27

of the funds." ER407. Agent Harris does not explain why a spy receiving secret payments from China would deposit cash in a U.S. account, held in his own name, where it could easily be found. And he does not offer a shred of evidence showing that the money in question actually came from the Chinese government, or had anything to do with the alleged theft of Boeing data. The remainder of Agent Harris' "financial investigation" rests on similar speculation and innuendo. ER40709.
Agent Harris' summary of the information purportedly linking Gartenlaub to a possible compromise of C-17 information--largely a rehash of the information discussed above--appears at pages 42-46 of his affidavit. ER412-16. That information, even taken at face value (which it cannot be, for reasons outlined below), falls far short of providing probable cause that Gartenlaub was a spy for China. The application to the FISC for an order authorizing the search of Gartenlaub's home and computers very likely relied on much of the same unfounded innuendo and speculation. We have not seen that application, of course, because the district court refused to disclose it to the defense--but, to the extent it was truthful, it could not have established probable cause to believe that Gartenlaub was an "agent of a foreign power."
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D. The District Court Erred in Refusing To Order a Franks Hearing. Under Franks v. Delaware, 438 U.S. 154 (1978), a court must hold an evidentiary hearing on the veracity of a warrant affidavit if the defendant makes a "substantial preliminary showing" that the affidavit contains intentional or reckless false statements or omissions and that the false or omitted information was material to the probable cause finding. See id. at 155-56. Courts have repeatedly recognized that Franks applies to FISA applications. See United States v. Daoud, 755 F.3d 479, 489 (7th Cir. 2014) (Rovner, J., concurring) (collecting cases), cert. denied, 135 S. Ct. 1456 (2015). The defense could not address the allegations contained in the January 2014 FISA application, to which it was denied access, but it identified an astonishing array of material falsehoods and omissions in the June 2013 Harris affidavit, covering virtually every aspect of Agent Harris' "Gartenlaub as spy" theory. Doc. 73 at 18-34. To cite a few examples, Agent Harris misstated Gartenlaub's access to the relevant Boeing documents, Doc. 73 at 27-30; omitted information concerning the Boeing employee's emails about "missing" files, Doc. 73 at 30-31; omitted information concerning Gartenlaub's finances that, if included, would have refuted the sinister innuendo that Agent Harris sought to foster, Doc. 73 at 31-33; and omitted exculpatory information concerning the so-called "Fish Fork" email that Gartenlaub's wife forwarded to him, including the actual email--which contains a
29

photograph showing that the supposedly sensitive parts in question consist of a carriage bolt and a bracket, Doc. 73 at 34. It seems highly likely that the government's FISC application, submitted just a few months after the Harris affidavit, reflects at least some of the same material falsehoods and omissions and possibly others. Based on its ex parte review of the application, the district court should have ordered a Franks hearing.
E. The January 2014 Search and Seizure Exceeded the Scope of the FISC Order Authorizing It.
The FISC can only authorize the government to search for and seize "foreign intelligence information." 50 U.S.C. §§ 1822(b), 1823(a)(6)(A), 1824(a)(4). The order authorizing the January 2014 search of Gartenlaub's home and computers presumably complied with this restriction. "Foreign intelligence information" (defined at 50 U.S.C. §§ 1801(e) and 1821(1)) does not include child pornography. Nonetheless, as detailed in the government's application for the August 2014 search warrant, the agents imaged Gartenlaub's computers in their entirety, reviewed every file, and--upon discovering that some of the files contained possible child pornography--subjected those and related files to detailed scrutiny, including sending them to the National Center for Exploited Children for analysis. ER248-56, 262-68. In an effort to establish that Gartenlaub had downloaded the child pornography, the agents also examined and analyzed a number of other files
30

on the computers, none of which had anything to do with "foreign intelligence information." ER255-62, 268-70.
As far as the record shows, the agents conducted this detailed, far-ranging analysis without obtaining any court authorization beyond the initial FISC order. In other words, after encountering suspected child pornography files, the agents did not stop their search and seek a warrant authorizing them to open and review those files and other potentially related files. Instead, they opened, examined, and analyzed the suspected child pornography files and a number of other files having nothing to do with foreign intelligence information. They then incorporated the results of that analysis into the August 2014 search warrant application. ER24849. That application, in turn, produced the warrant that gave the agents authority to search for and seize the very materials that they had already seized and searched under the purported authority of the January 2014 FISC order.
How did agents authorized to search for "foreign intelligence information" end up opening, examining, and analyzing suspected child pornography files and a number of other files that had nothing to do with the only authorized object of the search? The agents apparently relied on the following argument: To determine whether Gartenlaub's computers contained foreign intelligence information, it was necessary to open and review every file; after all, a foreign spy might cleverly conceal such information in .jpg files with sex-themed names or in other non-
31

obvious locations. And after opening the files, the child pornography and other information was in "plain view" and thus could be lawfully seized under the Fourth Amendment.
This Court, sitting en banc, confronted a similar government argument in United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc). In that case, agents had warrants authorizing the seizure of drug testing records relating to ten named baseball players. In the course of the search, however, the agents encountered records relating to a number of other players. They seized and examined those records, relying on the plain view exception to the Fourth Amendment. Three district courts rejected the government's position and found that the search and seizure of the other players' records violated the Fourth Amendment. This Court affirmed.
The Court recognized that law enforcement officers searching a computer for a particular, limited category of evidence may have to review every file to ensure that evidence in that category has not been concealed. See id. at 1176. But the Court cautioned that the need for comprehensive review, coupled with the plain view doctrine, "creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant." Id. The Court concluded with the warning that "[t]he process of segregating electronic data that is seizable from that which is not must not become
32

a vehicle for the government to gain access to data which it has no probable cause
to collect." Id. at 1177; see, e.g., Kitzhaber, 828 F.3d at 1090 (noting that
subpoena for emails "will, if complied with, allow federal government agents
seeking out the messages that bear relevance to their investigation to peruse all
manner of private communications that do not").
In a concurrence, Chief Judge Kozinski, joined by Judges Kleinfeld, W.
Fletcher, Paez, and M. Smith, went further in providing guidance for future
computer searches. As relevant here, the concurrence declared:
When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium to search for certain incriminating files, or when a search for evidence could result in the seizure of a computer . . . magistrate judges should insist that the government forswear reliance on the plain view doctrine. They should also require the government to forswear reliance on any similar doctrine that would allow retention of data obtained only because the government was required to segregate seizable from non-seizable data. This will ensure that future searches of electronic records do not "make a mockery of [United States v. Tamura, 694 F.2d 591 (9th Cir. 1982]--indeed, the Fourth Amendment--by turning all warrants for digital data into general warrants. . . . If the government doesn't consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.
Id. at 1178 (Kozinski, J., concurring).
The opinions in Comprehensive Drug Testing leave no doubt that this Court
disfavors routine application of the plain view doctrine in the context of computer
searches, because of the danger of turning every computer warrant into a forbidden
33

general warrant. See, e.g., United States v. Flores, 802 F.3d 1028, 1045 (9th Cir. 2015) ("We also cautioned in CDT against retaining unresponsive data based on the 'plain view' doctrine, and recognized the importance of protecting third parties' rights."), cert. denied, 137 S. Ct. 36 (2016). The Comprehensive Drug Testing majority addresses this problem through strict segregation of material within the scope of the warrant, while the concurrence would preclude use of the plain view doctrine entirely in the computer search context. It is quite clear that neither the majority nor the concurrence (nor perhaps even the dissent) would approve what occurred here: a FISC order authorizing a computer search for a limited category of information--"foreign intelligence information"--becomes the basis for the government to seize, open, examine, and analyze hundreds of files that have absolutely nothing to do with such information.
In its opposition to Gartenlaub's bail motion, government cited United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), and United States v. Nessland, 601 Fed. Appx. 576 (9th Cir. 2015) (unpublished). In both of those cases, however, the agents limited themselves to searching for the items specified in the warrant; they happened upon child pornography inadvertently; and before continuing to search for and seize the child pornography, they obtained a separate warrant. See Nessland, 601 Fed. Appx. at 576 (upon coming across child pornography images in plain view, agents "stopped their search, and did not return to it until they obtained
34

another warrant that covered the new type of images"); Giberson, 527 F.3d at 890 (searching agent "inadvertently" came across child pornography and government "only searched for child pornography after obtaining the . . . search warrant authorizing it to do so").
Here, by contrast with Nessland and Giberson, the searching agents did not stop their search and obtain a new warrant before searching for, seizing, and examining child pornography. Instead, based solely on the January 2014 FISC order and before obtaining the August 2014 warrant, the agents conducted a detailed examination of the child pornography files, including sending them to the National Center for Exploited Children for analysis. ER248-56, 262-68. In an effort to establish that Gartenlaub had downloaded the child pornography, the agents also examined and analyzed a number of other files on the computers, none of which had anything to do with "foreign intelligence information." ER255-62, 268-70. Thus, even if Giberson and Nessland can be reconciled with the en banc decision in Comprehensive Drug Testing, they do not come close to supporting what the government did here.
Because Gartenlaub's counsel did not raise this issue in the district court, review is for plain error. That standard is satisfied here. In light of Comprehensive Drug Testing, the search for and seizure of child pornography files was error; that error was plain; it affected Gartenlaub's "substantial rights" under the Fourth
35

Amendment; and permitting such patently unlawful government action to stand would "seriously affect[] the fairness, integrity, or public reputation of judicial proceedings." Flyer, 633 F.3d at 917 (quotation omitted). IV. THE DISTRICT COURT ERRED IN REFUSING TO ORDER
DISCLOSURE OF THE FISC APPLICATION AND ORDER. In its government-drafted order, the district court denied the defense access to the government's application to the FISC and to the FISC order authorizing the January 2014 search of Gartenlaub's home and computers. ER25, 27-28. As demonstrated below, the district court erred. Disclosure was both "necessary to make an accurate determination of the legality of the physical search," 50 U.S.C. § 1825(g), and required as a matter of due process. A. Standard of Review. Courts review for abuse of discretion a district court's decision whether to order disclosure of FISA applications and orders. See, e.g., United States v. ElMezain, 664 F.3d 467, 567 (5th Cir. 2011). To the extent the court's ruling turns on questions of statutory interpretation, review is de novo. B. The Meaning of the Term "Necessary." The district court's order does not analyze the language, legislative history, and statutory purposes of the FISA disclosure provisions, 50 U.S.C. §§ 1806(f) and 1825(g). The government routinely argues, however, that the plain meaning of the phrase "necessary to make an accurate determination of the legality of the physical
36

search" in 50 U.S.C. § 1825(g) (and the similar phrase in § 1806(f)) forbids disclosure unless essential or indispensable to the district court's ruling on a suppression motion. That is wrong. Analysis of the legislative history and statutory purpose demonstrates that disclosure is "necessary" under §§ 1806(f) and 1825(g) when it would substantially promote an accurate determination of legality. That is certainly the case here, especially with respect to the Franks issue.
To begin, the word "necessary" has no plain meaning. As the D.C. Circuit has observed, "The term 'necessary' is a chameleon-like word whose meaning . . . may be influenced by its context . . . . [It] is not language of plain meaning." Cellco Partnership v. FCC, 357 F.3d 88, 96-97 (D.C. Cir. 2004)). Courts have frequently interpreted "necessary" to mean "less than absolutely essential, and have explicitly found that a measure may be 'necessary' even though acceptable alternatives have not been exhausted." CT&IA v. FCC, 330 F.3d 502, 510 (D.C. Cir. 2003) (quotation omitted). In Commissioner v. Tellier, 383 U.S. 687 (1966), for example, the Supreme Court found that the word "necessary" in the phrase "ordinary and necessary [business] expenses" imposes "only the minimal requirement that the expense be appropriate and helpful for the development of the taxpayer's business." Id. at 689 (quotations and brackets omitted); see, e.g., Snider v. United States, 468 F.3d 500, 513 (8th Cir. 2006) (interpreting "necessary" in 26 U.S.C. § 6103; court rejects "strictly essential" and holds that the "'appropriate or
37

helpful' meaning of 'necessary' is the only practical interpretation in this context"); Prometheus Radio Project v. FCC, 373 F.3d 372, 393-94 (3d Cir. 2004) (interpreting "necessary" in § 202(h) of the Telecommunications Act of 1996 to mean "'convenient,' 'useful,' or 'helpful,' not 'essential' or 'indispensable'"); FTC v. Rockefeller, 591 F.2d 182, 188 (2d Cir. 1979) (interpreting "necessary" in 15 U.S.C. § 46; court holds that FTC's authority to conduct an ancillary investigation of a bank when "necessary" did not require investigation to be "absolutely needed" or "inescapable," but instead that it "arise reasonably and logically out of the main investigation").
These cases confirm that the word "necessary" in §§ 1806(f) and 1825(g) does not plainly mean essential or indispensable. Instead, the term must be read in light of the legislative history of FISA and the statutory purposes. These interpretive aids demonstrate that, in this context, "necessary" means that disclosure would substantially promote the accuracy of the court's determination of legality.
Two authoritative Senate Reports--one from the Senate Judiciary Committee and the other from the Senate Intelligence Committee--discuss in detail the provisions that became § 1806. The Reports observe:
The extent to which the government should be required to surrender to the parties in a criminal trial the underlying documentation used to justify electronic surveillance raises delicate problems and competing interests. On the one hand, broad rights of
38

access to the documentation and subsequent intelligence information can threaten the secrecy necessary to effective intelligence practices. However, the defendant's constitutional guarantee of a fair trial could seriously be undercut if he is denied the materials needed to present a proper defense. The Committee believes that a just, effective balance has been struck in this section.
S. Rep. 604(I), 95th Cong., 1st Sess. 53, reprinted in 1978 U.S.C.C.A.N. 3904,
3954; see S. Rep. 701, 95th Cong., 1st Sess. 59 (similar passage in Senate
Intelligence Committee Report), reprinted in 1978 U.S.C.C.A.N. 3973, 4028.
Turning to § 1806(f), the Committees summed up the disclosure provision as
follows:
The committee views the procedures set forth in this subsection as striking 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.
The decision whether it is necessary to order disclosure to a person is for the Court to make after reviewing the underlying documentation and determining its volume, scope and complexity. The committee has noted the reasoned discussion of these matters in the opinion of the Court in United States v. Butenko, [494 F.2d 593 (3d Cir. 1974) (en banc)]. There, the Court, faced with the difficult problem of determining what standard to follow in balancing national security interests with the right to a fair trial stated:
"The distinguished district court judge reviewed in camera the records of the wiretaps at issue here before holding the surveillances to be legal . . . Since the question confronting the district court as to the second set of interceptions was the legality of the taps, not the existence of tainted evidence, it was within his discretion to grant or deny Ivanov's request for disclosure and a hearing. The exercise of this discretion is to be guided by an evaluation of the complexity of the factors to be considered by the court and by the
39

likelihood that adversary presentation would substantially promote a more accurate decision." (494 F.2d at 607.)
Thus, in some cases, the Court will likely be able to determine the legality of the surveillance without any disclosure to the defendant. In other cases, however, the question may be more complex because of, for example, indications of possible misrepresentation of fact, vague identification of the persons to be surveilled or surveillance records which includes [sic] a significant amount of nonforeign intelligence information, calling into question compliance with the minimization standards contained in the order. In such cases, the committee contemplates that the court will likely decide to order disclosure to the defendant, in whole or in part since such disclosure "is necessary to make an accurate determination of the legality of the surveillance." [Footnote omitted.]
Cases may arise, of course, where the Court believes that disclosure is necessary to make an accurate determination of legality, but the Government argues that to do so, even given the Court's broad discretionary power to excise certain sensitive portions, would damage national security. In such situations the Government must choose--either disclose the material or forego the use of the surveillance-based evidence. Indeed, if the Government objects to the disclosure, thus preventing a proper adjudication of legality, the prosecution would probably have to be dismissed . . . .
S. Rep. 604(I), supra, at 58-59 (footnote omitted; ellipsis in original), reprinted in
1978 U.S.C.C.A.N. at 3959-60; see S. Rep. 701, supra, at 64-65 (identical
language in Senate Intelligence Committee Report), reprinted in 1978
U.S.C.C.A.N. at 4033-44.
Several points are evident from this passage. First, the Senate Judiciary and
Intelligence Committees plainly did not intend to erect an insuperable barrier to
disclosure. To the contrary, in choosing a balanced approach, the Committees
specifically eschewed "an entirely in camera proceeding."
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Second, the Committees--through their reliance on Butenko--suggest that the "necessary" standard is met when the district court determines that "adversary presentation would substantially promote a more accurate decision."
Third, the Committees noted the district court's "broad discretionary power to excise certain sensitive portions" from the FISA materials before disclosure. This recognition of the district court's inherent power to take necessary protective measures finds a statutory basis both in § 1806(f) itself and in CIPA (discussed below). That power substantially ameliorates any national security concerns.
Finally, the Senate Judiciary and Intelligence Committees contemplated-and did not shy away from--the possibility that the court would order disclosure, the government would refuse to comply, and the court would suppress the surveillance or dismiss the prosecution. Just as Congress did in CIPA, 18 U.S.C. App. 3 § 6(e), the Committees left the choice with the government: either comply with the disclosure order or refuse and suffer appropriate sanctions.
Two other portions of the legislative history are relevant as well. First, an early version of the definition of "foreign intelligence information" included the words "necessary" and "essential." "Necessary," according to the Senate Judiciary Committee, "requires more than a showing that the information would be useful or convenient." S. Rep. 604(I), supra, at 31, reprinted in 1978 U.S.C.C.A.N. at 3933. "Essential" requires "a showing that the information is important and required but
41

not that it is of utmost importance or indispensable." Id. Thus, "necessary" merely meant something more than "useful or convenient," and not even "essential" required a showing that information was "indispensable."
The Senate Intelligence Committee deleted "essential" from the final definition of "foreign intelligence information" (codified at 50 U.S.C. § 1801(e)). The Intelligence Committee declared that by the term "necessary," it "intends to require more than a showing that the information would be useful or convenient. The committee intends to require that the information is both important and required. The use of this standard is intended to mandate that a significant need be demonstrated by those seeking the surveillance." S. Rep. 701, supra, at 31 (emphasis added), reprinted in 1978 U.S.C.C.A.N. at 4000.
Second, the minimization procedures in 50 U.S.C. § 1801(h)(2) bar dissemination of nonpublicly available information in a manner that identifies any United States person without the person's consent, "unless such person's identity is necessary to understand foreign intelligence information or assess its importance." The House Conference Report explains that "[b]y 'necessary' the conferees do not mean that the identity must be essential to understand the information or assess its importance. The word necessary requires that a knowledgeable intelligence analyst make a determination that the identity will contribute in a meaningful way to the ability of the recipient of the information to understand the information or
42

assess its importance." H. Conf. Rep. 1720, 95th Cong., 2d Sess. 23 (Oct. 5, 1978).
The use of "necessary" in §§ 1801(e) and 1801(h)(2) sheds light on the word's meaning in §§ 1806(f) and 1825(g). As the Supreme Court has observed, "[I]dentical words and phrases within the same statute should normally be given the same meaning." Hall v. United States, 566 U.S. 506, 519 (2012) (quotation omitted). Under this principle, the meanings ascribed to "necessary" in §§ 1801(e), 1801(h)(2), 1806(f), and 1825(g) should be the same, absent an indication to the contrary. And, according to the legislative history, the meanings are very similar: "significant need" in § 1801(e), "contribute in a meaningful way" in § 1801(h)(2), and "substantially promote" in § 1806(f) and § 1825(g).
A court must construe a statutory term "in a manner consistent with the [statute's] purpose." Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 118 (2001); see, e.g., Yates v. United States, 135 S. Ct. 1074, 1081-82 (2015) (plurality opinion) (looking to "broader context of the statute as a whole" to determine meaning of statutory phrase) (quotation omitted). FISA "was enacted to create a framework whereby the Executive could conduct electronic surveillance for foreign intelligence purposes without violating the rights of citizens."11 The Act
11 United States v. Hammoud, 381 F.3d 316, 332 (4th Cir. 2004) (en banc), vacated on other grounds, 543 U.S. 1097 (2005), reinstated in relevant part, 405 F.3d 1034 (4th Cir. 2005) (en banc).
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"was intended to strike a sound balance between the need for such surveillance and the protection of civil liberties."12 Interpreting "necessary" in § 1806(f) and §
1825(g) to mean "substantially promote" is fully consistent with FISA's effort to
balance civil liberties and the need for surveillance.
Interpreting "necessary" so strictly that disclosure never occurs--the
government's favored--does nothing to advance civil liberties. To the contrary, a
system that operates in secret, with no adversarial input, as the FISA process has
functioned for 39 years, is almost certain to breed abuse. The stark fact is that the
FISA system, interpreted by the courts to require ex parte proceedings in every
case and never to grant defense counsel access to FISA applications and orders,
has failed to protect civil liberties. Interpreting §§ 1806(f) and 1825(g) as
Congress intended, to permit disclosure when adversarial proceedings will
substantially promote the accuracy of the district court's determination, marks an
important step toward restoring the balance that Congress sought to strike in 1978.
12 In re Kevork, 788 F.2d 566, 569 (9th Cir. 1986) (quotation omitted); see, e.g., S. Rep. 604(I), supra, at 4 (Senate Judiciary Committee Report notes Attorney General Griffin Bell's view that "this bill strikes the balance, sacrifices neither our security nor our civil liberties, and assures that the abuses of the past will remain in the past . . . ."), reprinted in 1978 U.S.C.C.A.N. at 3905-06; id. at 7 (bill "goes a long way in striking a fair and just balance between protection of national security and protection of personal liberties"), reprinted in 1978 U.S.C.C.A.N. at 3908; id. at 9 ("Striking a sound balance between the need for such surveillance and the protection of civil liberties lies at the heart of S. 1566."), reprinted in 1978 U.S.C.C.A.N. at 3910; S. Rep. 701, supra, at 7, 16 (Senate Intelligence Committee Report with similar remarks), reprinted in 1978 U.S.C.C.A.N. at 3975, 3985.
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C. Disclosure Is "Necessary" Here, Particularly for the Franks Issue.
The need to interpret the disclosure provisions of FISA as Congress intended
is particularly stark when--as here--a defendant challenges a FISC order under
Franks. Without access to the underlying applications, orders, and related
materials (affidavits accompanying the applications, for example), the defense can
only speculate; it cannot identify specific falsehoods or omissions to make the
"substantial preliminary showing" that Franks requires for an evidentiary hearing.
438 U.S. at 155-56. As Judge Ilana Rovner recently acknowledged, "Thirty-six
years after the enactment of FISA, it is well past time to recognize that it is
virtually impossible for a FISA defendant to make the showing that Franks
requires in order to convene an evidentiary hearing." United States v. Daoud, 755
F.3d 479, 496 (7th Cir. 2014) (Rovner, J., concurring), cert. denied, 135 S. Ct.
1456 (2015). Judge Rovner added:
A Franks motion is premised on material misrepresentations and omissions in the warrant affidavit; but without access to that affidavit, a defendant cannot identify such misrepresentations or omissions, let alone establish that they were intentionally or recklessly made. As a practical matter, the secrecy shrouding the FISA process renders it impossible for a defendant to meaningfully obtain relief under Franks absent a patent inconsistency in the FISA application itself or a sua sponte disclosure by the government that the FISA application contained a material misstatement or omission. Id. at 486 (Rovner, J., concurring). The district court, lacking access to the
discovery, to the information the defense possesses through its own knowledge and
45

investigation, and to investigative resources, cannot assess on its own whether the applications contain falsehoods, or whether they omit information that would change the probable cause assessment. See id. ("[T]he court, which does have access to the application, cannot, for the most part, independently evaluate the accuracy of that application on its own without the defendant's knowledge of the underlying facts.").
Judge Rovner recognized that "Franks serves as an indispensable check on potential abuses of the warrant process, and means must be found to keep Franks from becoming a dead letter in the FISA context." Id. Those "means" are readily available here: provide defense counsel access to the FISA applications, orders, and other materials, as Congress intended.
The government invariably resists disclosure of FISA materials to defense counsel on the ground that any disclosure of FISA materials, ever, to any defense counsel, under any circumstances, will cause irreparable damage to national security. The Senate Judiciary and Intelligence Committees did not accept that view in 1978, as their Reports confirm. As we discuss below, the argument is even more clearly wrong now, following the enactment of the Classified Information Procedures Act in 1980 (two years after the enactment of FISA) and the extensive experience that courts, prosecutors, and defense counsel have had with the statute since then. Through the use of "appropriate security procedures and protective
46

orders," 50 U.S.C. §§ 1806(f), 1825(g), including the procedures that CIPA provides, a district court can order disclosure in a manner that adequately protects legitimate national security concerns.
D. Disclosure Is Required as a Matter of Due Process. Production of the FISA application, order, and related materials is required as well under 50 U.S.C. § 1825(h) and the Fifth Amendment Due Process Clause.13 To determine whether due process requires disclosure, the Court must consider the three factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976): (1) "the private interest that will be affected by the official action," (2) "the risk of an erroneous deprivation of such interest through the procedures used" and "the probable value, if any, of additional or substitute procedural safeguards," and (3) "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail." Id. at 335; see, e.g., American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1068-71 (9th Cir. 1995) (applying Mathews test to determine whether use of secret evidence violates due process); Rafeedie v. INS, 880 F.2d 506, 524-25 (D.C. Cir. 1989) (Mathews balancing test governs process
13 Section 1825(h) provides in relevant part that "[i]f the court determines that the physical search was lawfully authorized or conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure." 50 U.S.C. § 1825(h) (emphasis added). Section 1806(g) contains a similar provision.
47

due alien in exclusion proceeding, including use of secret evidence), on remand, 795 F. Supp. 13, 18-20 (D.D.C. 1992) (same); Kindhearts for Charitable Humanitarian Development, Inc. v. Geithner, 710 F. Supp. 2d 637, 659 (N.D. Ohio 2010) ("Courts have found that their duty to protect individual rights extends to requiring disclosure of classified information to give a party an ability to respond to allegations made against it."); Kiareldeen v. Reno, 71 F. Supp. 2d 402, 413-14 (D.N.J. 1999) (same). Application of the Mathews test confirms that Gartenlaub must be granted access to the FISA materials as a matter of due process.
First, Gartenlaub's "private interests" here are extremely weighty. He seeks an accurate determination of his claim that the government's secret search of his home and computers violated his rights under FISA and the Fourth Amendment. He seeks to vindicate his constitutionally protected right to privacy. More generally, he seeks through the processes of this Court to avoid deprivation of his liberty. If mere property interests "weigh heavily in the Mathews balance," as the Supreme Court has held, United States v. James Daniel Good Real Property, 510 U.S. 43, 54-55 (1993), Gartenlaub's privacy and liberty interests have even greater significance.
Turning to the second Mathews factor, the adjudication of Gartenlaub''s rights under FISA and the Fourth Amendment through ex parte review of materials that his counsel had no opportunity to examine or challenge carries a notoriously
48

significant "risk of an erroneous deprivation" of the liberty interests at issue, and "additional . . . procedural safeguards"--access to the FISA materials and an opportunity to address them--carry substantial "probable value." Mathews, 424 U.S. at 335. The Supreme Court has declared that "'[f]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.'" James Daniel Good, 510 U.S. at 55 (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-72 (1951) (Frankfurter, J., concurring)). As this Court observed in a secret evidence case, "'One would be hard pressed to design a procedure more likely to result in erroneous 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, 70 F.3d at 1069 (quoting district court); see, e.g., id. at 1070 (noting "enormous risk of error" in use of secret evidence); Kiareldeen, 71 F. Supp. 2d at 412-14 (same).
In the Fourth Amendment context, the Supreme Court has twice rejected the use of ex parte proceedings on grounds that apply equally here. In Alderman v. United States, 394 U.S. 165 (1969), the Court addressed the procedures to be followed in determining whether government eavesdropping in violation of the
49

Fourth Amendment contributed to its case against the defendants. The Court
rejected the government's suggestion that the district court make that determination
ex parte and in camera. The Court observed that
[a]n apparently innocent phrase, a chance remark, a reference to what appears to be a neutral person or event, the identity of a caller or the individual on the other end of a telephone, or even the manner of speaking or using words 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, 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.
Similarly, the Court held in Franks that a defendant must be permitted to
attack the veracity of the affidavit underlying a search warrant, upon a preliminary
showing of an intentional or reckless material falsehood. The Court rested its
decision in significant part on the ex parte nature of the procedure for issuing a
search warrant and the value of adversarial proceedings:
[T]he 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
50

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 pre-search 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.
438 U.S. at 169.
The same considerations that the Supreme Court found compelling in
Alderman and Franks militate against ex parte procedures in the FISA context. As
the FISC itself has acknowledged, for example, without adversarial proceedings,
systematic executive branch misconduct–-including submission of dozens of FISA
applications with "erroneous statements" and "omissions of material facts"--went
entirely undetected by the courts until the DOJ chose to reveal it. See In re All
Matters, 218 F. Supp. 2d 611, 620-21 (FISC), rev'd, 310 F.3d 717 (FISCR 2002).14
In 2009, the FISC declared itself "deeply troubled" by incidents in which the NSA
violated the court's orders. It noted that those incidents "occurred only a few
weeks following the completion of an 'end to end review' by the government of
NSA's procedures and processes for handling the BR metadata, and its submission
14 The FISC was sufficiently alarmed by these erroneous applications that it "decided not to accept inaccurate affidavits from FBI agents whether or not intentionally false," and "[o]ne FBI agent was barred from appearing before the Court as a FISA affiant." In re All Matters, 218 F. Supp. 2d at 621.
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of a report intended to assure the Court that NSA had addressed and corrected the
issues giving rise to the history of serious and widespread compliance problems in
this matter and had taken the necessary steps to ensure compliance with the Court's
orders going forward." In re FBI, 2009 U.S. Dist. LEXIS 132935, at *4 (FISC
Sept. 25, 2009). And again in 2011, the FISC was "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."
[Redacted], 2011 U.S. Dist. LEXIS 157706, at *20 n.14 (FISC Oct. 3, 2011).
Three stark statistics underscore the dysfunction of the current FISA system:
(1) year in and year out, the FISC approves without modification the
overwhelming majority of the FISA applications the government presents and rejects only a tiny handful--if that--out of more than a thousand;15 (2) no court has
ever granted defense counsel access to FISA applications and orders under §
1806(f) and § 1825(g), so no adversarial eye has ever scrutinized them; and (3) no
15 According to the Attorney General's annual reports (available at http://fas.org/irp/agency/doj/fisa), since 1978 the FISC has approved (either as submitted or with modifications) well over 20,000 applications or extensions authorizing FISA surveillance, more than 99% of the total applications submitted. The FISC has rejected outright only a handful of applications, and the DOJ has successfully resubmitted some of those. The statistics for 2015 are typical: the government made 1,499 applications for electronic surveillance; none were denied in whole or in part; the government withdrew one application; and the FISC modified the proposed order in 80 applications.
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court has ever granted a motion to suppress the fruits of FISA surveillance. As these statistics suggest, ex parte review does not adequately protect the surveillance target's constitutional and statutory rights. The "additional . . . procedural safeguards" that Gartenlaub requests--access to the FISA materials and an opportunity to address them-–thus carry substantial "probable value." Mathews, 424 U.S. at 335.
Finally, the Court must consider the government's purported interest in maintaining the secrecy of the FISA materials. The government typically asserts its generalized interest in avoiding damage to "national security," without any effort to demonstrate that disclosure of the FISA materials to defense counsel under the circumstances of this case would cause such damage. Courts have previously rejected such diffuse claims of national security. See, e.g., ArabAmerican Anti-Discrimination Committee, 70 F.3d at 1070 ("We cannot in good conscience find that the President's broad generalization regarding a distant foreign policy concern and a related national security threat suffices to support a process that is inherently unfair because of the enormous risk of error and the substantial personal interests involved."); Kiareldeen, 71 F. Supp. 2d at 414 (same); Rafeedie, 795 F. Supp. at 19 (same).
The government's asserted national security interest in withholding the FISA materials from the defense is particularly weak in light of the protections available
53

under CIPA. Most critically, CIPA provides for entry of a protective order.16 The CIPA protective order--the standard terms of which are largely settled after decades of experience--sets the conditions under which defense counsel may review classified discovery, requires defense counsel and staff to have security clearances, establishes procedures for filing classified pleadings, and prohibits anyone associated with the defense from revealing publicly the classified information to which access is granted. See, e.g., United States v. Gowadia, 2010 U.S. Dist. LEXIS 80572 (D. Haw. May 8, 2010) (entering a typical CIPA protective order).
CIPA § 4 governs classified discovery. That provision allows the court to authorize the government, "upon a sufficient showing," to delete classified information from the discovery it provides or to furnish substitutions for the classified information in the form of summaries or admissions. The statute adds that "[t]he court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone." 18 U.S.C. App. 3 § 4.
CIPA has been in existence for 37 years. During that time huge volumes of enormously sensitive classified information have been made available under its strict security measures to cleared defense counsel in scores of federal criminal
16 18 U.S.C. App. 3 § 3.
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cases--without, as far as counsel are aware, a serious security violation by the defense. In one case, for example, the CIPA procedures successfully protected nuclear weapon codes that government scientists testified under oath were capable of "changing the strategic global balance" and thus "represent[ed] the gravest possible security risk to the United States." United States v. Lee, 2000 U.S. App. LEXIS 3082, at *5-*6 (10th Cir. Feb. 29, 2000). If the CIPA procedures could adequately protect those secrets (and other sensitive classified information in many other cases), they can surely protect the secrets contained in the FISA materials at issue here. In short, CIPA provides precisely the "appropriate security procedures and protective orders" that Congress contemplated would accompany disclosure when it enacted FISA. 50 U.S.C. §§ 1806(f), 1825(g).
E. Disclosure Is Also Required Under Brady. Brady requires production of material evidence that would be favorable to the defendant on a motion to suppress. See United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) ("The suppression of material evidence helpful to the accused, whether at trial or on a motion to suppress, violates due process if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.") (emphasis added). For the reasons we have outlined, the government's application to the FISC and the FISC order authorizing the search of Gartenlaub's home and computers are helpful to the
55

defense in preparing the motion to suppress the FISA-derived evidence. Brady thus requires their disclosure.
CONCLUSION For the foregoing reasons, the Court should reverse Gartenlaub's conviction.
STATEMENT CONCERNING ORAL ARGUMENT Appellant requests oral argument. Argument will permit counsel to address the complex legal and factual questions that this case presents.

DATED: Feb. 8, 2017

Respectfully submitted,

/s/ John D. Cline John D. Cline Attorney for Defendant-Appellant KEITH PRESTON GARTENLAUB
STATEMENT OF RELATED CASES Counsel is not aware of any related cases before this Court.

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CERTIFICATE OF SERVICE When All Case Participants Are Registered For
The Appellate CM/ECF System U.S. Court of Appeals Docket Number: 16-50339 I hereby certify that on the 8th day of February, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeal for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ John D. Cline John D. Cline
57

CERTIFICATION U.S. Court of Appeals Docket Number: 16-50339 I hereby certify that the bound copy of the Brief of Appellant provided to the Ninth Circuit Court of Appeals is identical to the version submitted electronically.
/s/ John D. Cline John D. Cline
58

CERTIFICATE OF COMPLIANCE PURSUANT TO NINTH CIRCUIT RULE 32-1

Case No. 16-50339

I certify that this brief complies with the length limits permitted by Ninth

Circuit Rule 32-1. The brief is 13586 words, excluding the portions exempted by

Fed. R. App. P. 32(f). The brief's type size and type face comply with Fed. R. App.

P. 32(a)(5) and (6).

/s/ John D. Cline John D. Cline

STATUTORY APPENDIX

50 U.S.C. § 1801

50 USCS § 1801
Current through PL 114-327, approved 12/16/16.
United States Code Service - Titles 1 through 54 > TITLE 50. WAR AND NATIONAL DEFENSE > CHAPTER 36. FOREIGN INTELLIGENCE SURVEILLANCE > ELECTRONIC SURVEILLANCE
§ 1801. Definitions [Caution: See prospective amendment note below.]
As used in this title [50 USCS §§ 1801 et seq.]: (a) "Foreign power" means--
(1) a foreign government or any component thereof whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and
controlled by such foreign government or governments; (4) a group engaged in international terrorism or activities in preparation therefor; (5) a foreign-based political organization, not substantially composed of United States persons; (6) an entity that is directed and controlled by a foreign government or governments; or (7) an entity not substantially composed of United States persons that is engaged in the international
proliferation of weapons of mass destruction. (b) "Agent of a foreign power" means--
(1) any person other than a United States person, who-(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4), irrespective of whether the person is inside the United States; (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; (C) engages in international terrorism or activities in preparation therefore; (D) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor; or (E) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor, for or on behalf of a foreign power, or knowingly aids or abets any person in the conduct of such proliferation or activities in preparation therefor, or knowingly conspires with any person to engage in such proliferation or activities in preparation therefor; or
(2) any person who--
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(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
(c) "International terrorism" means activities that--
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.
(d) "Sabotage" means activities that involve a violation of chapter 105 of title 18, United States Code [18 USCS §§ 2151 et seq.], or that would involve such a violation if committed against the United States.
(e) "Foreign intelligence information" means--
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against--
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to--
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
(f) "Electronic surveillance" means--

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(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18, United States Code;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
(g) "Attorney General" means the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28, United States Code.
(h) "Minimization procedures", with respect to electronic surveillance, means--
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 102(a) [50 USCS § 1802(a)], procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 105 [50 USCS § 1805] is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
(i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act [8 USCS § 1101(a)(20)]), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3).

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(j) "United States", when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.
(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.
(l) "Wire communication" means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.
(m) "Person" means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.
(n) "Contents", when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
(o) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.
(p) "Weapon of mass destruction" means--
(1) any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;
(2) any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;
(3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United States Code) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or
(4) any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.

History

(Oct. 25, 1978,P.L. 95-511, Title I, § 101, 92 Stat. 1783; Dec. 3, 1999, P.L. 106-120, Title VI, § 601, 113 Stat. 1619; Oct. 26, 2001, P.L. 107-56, Title X, § 1003, 115 Stat. 392; Dec. 28, 2001, P.L. 107-108, Title III, § 314(a)(1), (c)(2), 115 Stat. 1402, 1403; Dec. 17, 2004, P.L. 108-458, Title VI, Subtitle A, § 6001(a), 118 Stat. 3742; March 9, 2006, P.L. 109-177, Title V, § 506(a)(5), 120 Stat. 248; July 10, 2008, P.L. 110-261, Title I, § 110(a), 122 Stat. 2465; Oct. 7, 2010, P.L. 111-259, Title VIII, § 801(1), 124 Stat. 2746.)
(As amended June 2, 2015,P.L. 114-23, Title VII, §§ 702, 703, 129 Stat. 300.)
Annotations
Notes
Prospective amendment:
Termination of Dec. 17, 2004 amendment, effective December 15, 2019. Pursuant to § 6001(b) of Act Dec. 17, 2004, P.L. 108-458, as amended, which appears as a note to this section, the addition of para. (b)(1)(C) of this section by § 6001(a) of such Act shall cease to have effect on 12/15/2019, subject to certain savings provisions.
Amendments:

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1999 . Act Dec. 3, 1999, in subsec. (b)(2), in subpara. (C), deleted "or" after the concluding semicolon, redesignated subpara. (D) as subpara. (E), and added a new subpara. (D).

2001 . Act Oct. 26, 2001, as amended by Act Dec. 28, 2001 (effective as of the enactment of Act Oct. 26, 2001, and as if included in Act Oct. 26, 2001 as originally enacted, as provided by § 314(c) of Act Dec. 28, 2001), in subsec. (f)(2), inserted ", but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18, United States Code".
Act Dec. 28, 2001, in subsec. (h)(4), substituted "72 hours" for "twenty-four hours".
Such Act further (effective as of the enactment of Act Oct. 26, 2001, and as if included in Act Oct. 26, 2001 as originally enacted, as provided by § 314(c) of Act Dec. 28, 2001), amended the directory language of Act Oct. 26, 2001, without affecting the text of this section.
2004 . Act Dec. 17, 2004, in subsec. (b)(1), added subpara. (C).

2006 . Act March 9, 2006, in subsec. (g), substituted ", the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28, United States Code" for "or the Deputy Attorney General".
2008 . Act July 10, 2008 (effective on enactment, subject to certain exceptions, as provided by § 402 of such Act, which appears as a note to this section), in subsec. (a), in para. (5), substituted "persons;" for "persons; or", in para. (6), substituted "; or" for a concluding period, and added para. (7); in subsec. (b)(1), in subparas. (B) and (C), deleted "or" following the concluding semicolon, and added subparas. (D) and (E); in subsec. (e)(1)(B), substituted "sabotage, international terrorism, or the international proliferation of weapons of mass destruction" for "sabotage or international terrorism"; and added subsec. (p).
2010 . Act Oct. 7, 2010, corrected alignments without affecting the text of this section.
2015 . Act June 2, 2015, in subsec. (b)(1), in subpara. (A), inserted ", irrespective of whether the person is inside the United States", in subpara. (B), deleted "of such person's presence in the United States" following "circumstances of" and substituted "such activities" for "such activities in the United States", and substituted subpara. (E) for one which read: "(E) engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor for or on behalf of a foreign power; or".

Short titles:
Act Oct. 25, 1978, P.L. 95-511, § 1, 92 Stat. 1783, provides: "This Act [50 USCS §§ 1801 et seq. generally; for full classification, consult USCS Tables volumes] may be cited as the 'Foreign Intelligence Surveillance Act of 1978'.".
Act Dec. 27, 2000, P.L. 106-567, Title VI, § 601, 114 Stat. 2850, provides: "This title may be cited as the 'Counterintelligence Reform Act of 2000'.". For full classification of such Title, consult USCS Tables volumes.

Act Aug. 5, 2007, P.L. 110-55, § 1, 121 Stat. 552, provides: "This Act [adding 50 USCS §§ 1805a et seq., amending 50 USCS § 1803(e), appearing in part as 50 USCS § 1803 note, and unclassified in part] may be cited as the 'Protect America Act of 2007'.". For full classification of such Act, consult USCS Tables volumes.
Act July 10, 2008, P.L. 110-261, § 1(a), 122 Stat. 2436, provides: "This Act may be cited as the 'Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008' or the 'FISA Amendments Act of 2008'.". For full classification of such Act, consult USCS Tables volumes.
Act Feb. 25, 2011, P.L. 112-3, § 1, 125 Stat. 5, provides: "This Act [amending 50 USCS §§ 1805, 1861, and 1862, and notes to 50 USCS §§ 1801 and 1805] may be cited as the 'FISA Sunsets Extension Act of 2011'.". For full classification of such Act, consult USCS Tables volumes.

Act May 26, 2011, P.L. 112-14, § 1, 125 Stat. 216, provides: "This Act [amending 50 USCS §§ 1805, 1861, and 1862, and notes to 50 USCS §§ 1801 and 1805] may be cited as the 'PATRIOT Sunsets Extension Act of 2011'.". For full classification of such Act, consult USCS Tables volumes.

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Act Dec. 30, 2012, P.L. 112-238, § 1, 126 Stat. 1631, provides: "This Act [amending 18 USCS § 2511 note, and notes to 50 USCS §§ 1801 and 1881] may be cited as the 'FISA Amendments Act Reauthorization Act of 2012'.".
Act June 2, 2015, P.L. 114-23, § 1, 129 Stat. 268, provides: "This Act may be cited as the 'Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015' or the 'USA FREEDOM Act of 2015'.". For full classification of such Act, consult USCS Tables volumes.

Other provisions:

Repeal of provisions relating to the effective date of Act Oct. 25, 1978 and exception. Act Oct. 25, 1978, P.L. 95-511, Title VII [Title VI] [Title IV] [Title III], § 701 [601] [401] [301], 92 Stat. 1798; Oct. 14, 1994, P.L. 103-359, Title VIII, § 807(a)(1), (2), 108 Stat. 3443 (effective as provided by § 807(c) of such Act, which appears as 50 USCS § 1821 note); Oct. 20, 1998, P.L. 105-272, Title VI, §§ 601(1), 603(a), 112 Stat. 2404, 2412; Dec. 17, 2004, P.L. 108458, Title VI, Subtitle A, § 6002(a)(1), 118 Stat. 3743, which formerly appeared as a note to this section, was repealed by Act July 10, 2008, P.L. 110-261, Title I, § 101(a)(1), 122 Stat. 2437 (effective on enactment, subject to certain exceptions, as provided by § 402 of such Act, which appears as a note to this section). It provided that Act Oct. 25, 1978 was effective on enactment except that any electronic surveillance approved by the Attorney General to gather foreign intelligence information shall not be deemed unlawful for failure to follow the procedures of the Act, if that surveillance is terminated or an order approving that surveillance is obtained under title I of the Act within ninety days following the designation of the first judge pursuant to section 103 of the Act.

Termination of Trust Territory of the Pacific Islands. For termination of Trust Territory of the Pacific Islands, see note preceding 48 USCS § 1681.
Counterintelligence Reform Act of 2000; severability provision. Act Dec. 27, 2000, P.L. 106-567, Title VI, § 608, 114 Stat. 2856, provides: "If any provision of this title (including an amendment made by this title) [for full classification, consult USCS Tables volumes], or the application thereof, to any person or circumstance, is held invalid, the remainder of this title (including the amendments made by this title), and the application thereof, to other persons or circumstances shall not be affected thereby.".

Effective date of amendments made by § 314(c) of Act Dec. 28, 2001. Act Dec. 28, 2001, P.L. 107-108, Title III, § 314(c), 115 Stat. 1402, provides that the amendments made by such section to §§ 207(b)(1) and 1003 of Act Oct. 26, 2001, P.L. 107-56 (amending 50 USCS §§ 1801 and 1805), are effective as of the enactment of such Act Oct. 26, 2001, and as if included therein as originally enacted.
Subsec. (b)(1)(C); sunset provision. Act Dec. 17, 2004, P.L. 108-458, Title VI, Subtitle A, § 6001(b), 118 Stat. 3742; March 9, 2006, P.L. 109-177, Title I, § 103, 120 Stat. 195; Dec. 19, 2009, P.L. 111-119, Div B, § 1004(b), 123 Stat. 3470; Feb. 27, 2010, P.L. 111-141, § 1(b), 124 Stat. 37; Feb. 25, 2011, P.L. 112-3, § 2(b), 125 Stat. 5; May 26, 2011, P.L. 112-14, § 2(b), 125 Stat. 216; June 2, 2015, P.L. 114-23, Title VII, § 705(b), 129 Stat. 300, provides:
"(1) In general. Except as provided in paragraph (2), the amendment made by subsection (a) [adding subsec. (b)(1)(C) of this section] shall cease to have effect on December 15, 2019.
"(2) Exception. With respect to any particular foreign intelligence investigation that began before the date on which the provisions referred to in paragraph (1) cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which the provisions cease to have effect, such provisions shall continue in effect.".

FISA Amendments Act of 2008; severability provision. Act July 10, 2008, P.L. 110-261, Title IV, § 401, 122 Stat. 2473, provides: "If any provision of this Act [full classification, consult USCS Tables volumes], any amendment made by this Act [full classification, consult USCS Tables volumes], or the application thereof to any person or circumstances is held invalid, the validity of the remainder of the Act, of any such amendments, and of the application of such provisions to other persons and circumstances shall not be affected thereby.".

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Effective date of July 10, 2008 amendments. Act July 10, 2008, P.L. 110-261, Title IV, § 402, 122 Stat. 2473, provides: "Except as provided in section 404 [note to this section], the amendments made by this Act [full classification, consult USCS Tables volumes] shall take effect on the date of the enactment of this Act.".

FISA Amendments Act of 2008; transition procedures. Act July 10, 2008, P.L. 110-261, Title IV, § 404, 122 Stat. 2474; Dec. 30, 2012, P.L. 112-238, § 2(b), 126 Stat. 1631, provides:
"(a) Transition procedures for Protect America Act of 2007 [Act Aug. 5, 2007, P.L. 110-55; for full classification, consult USCS Tables volumes] provisions.

(1) Continued effect of orders, authorizations, directives. Except as provided in paragraph (7), notwithstanding any other provision of law, any order, authorization, or directive issued or made pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978 [50 USCS § 1805b], as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 552), shall continue in effect until the expiration of such order, authorization, or directive.

"(2) Applicability of Protect America Act of 2007 to continued orders, authorizations, directives. Notwithstanding any other provision of this Act [for full classification, consult USCS Tables volumes], any amendment made by this Act [for full classification, consult USCS Tables volumes], or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)--

"(A) subject to paragraph (3), section 105A of such Act [50 USCS § 1805a], as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 552), shall continue to apply to any acquisition conducted pursuant to an order, authorization, or directive referred to in paragraph (1); and

"(B) sections 105B and 105C of the Foreign Intelligence Surveillance Act of 1978 [50 USCS §§ 1805b and 1805c], as added by sections 2 and 3, respectively, of the Protect America Act of 2007, shall continue to apply with respect to an order, authorization, or directive referred to in paragraph (1) until the later of--
"(i) the expiration of such order, authorization, or directive; or
"(ii) the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.

"(3) Use of information. Information acquired from an acquisition conducted pursuant to an order, authorization, or directive referred to in paragraph (1) shall be deemed to be information acquired from an electronic surveillance pursuant to title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) for purposes of section 106 of such Act (50 U.S.C. 1806), except for purposes of subsection (j) of such section.

"(4) Protection from liability. Subsection (l) of section 105B of the Foreign Intelligence Surveillance Act of 1978 [50 USCS § 1805b], as added by section 2 of the Protect America Act of 2007, shall continue to apply with respect to any directives issued pursuant to such section 105B.

"(5) Jurisdiction of foreign intelligence surveillance court. Notwithstanding any other provision of this Act [for full classification, consult USCS Tables volumes] or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 103(e) of the Foreign Intelligence Surveillance Act (50 U.S.C. 1803(e)), as amended by section 5(a) of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 556), shall continue to apply with respect to a directive issued pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978 [50 USCS § 1805b], as added by section 2 of the Protect America Act of 2007, until the later of--
"(A) the expiration of all orders, authorizations, or directives referred to in paragraph (1); or
"(B) the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.
"(6) Reporting requirements.

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(A) Continued applicability. Notwithstanding any other provision of this Act [for full classification, consult USCS Tables volumes], any amendment made by this Act [for full classification, consult USCS Tables volumes], the Protect America Act of 2007 (Public Law 110-55), or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 4 of the Protect America Act of 2007 [unclassified] shall continue to apply until the date that the certification described in subparagraph (B) is submitted.
"(B) Certification. The certification described in this subparagraph is a certification--

"(i) made by the Attorney General;

"(ii) submitted as part of a semi-annual report required by section 4 of the Protect America Act of 2007 [unclassified];

"(iii) that states that there will be no further acquisitions carried out under section 105B of the Foreign Intelligence Surveillance Act of 1978 [50 USCS § 1805b], as added by section 2 of the Protect America Act of 2007, after the date of such certification; and

"(iv) that states that the information required to be included under such section 4 relating to any acquisition conducted under such section 105B [50 USCS § 1805b] has been included in a semi-annual report required by such section 4.
"(7) Replacement of orders, authorizations, and directives.

(A) In general. If the Attorney General and the Director of National Intelligence seek to replace an authorization issued pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978 [50 USCS § 1805b], as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), with an authorization under section 702 of the Foreign Intelligence Surveillance Act of 1978 [50 USCS § 1881a] (as added by section 101(a) of this Act), the Attorney General and the Director of National Intelligence shall, to the extent practicable, submit to the Foreign Intelligence Surveillance Court (as such term is defined in section 701(b)(2) of such Act [50 USCS § 1881(b)(2)] (as so added)) a certification prepared in accordance with subsection (g) of such section 702 and the procedures adopted in accordance with subsections (d) and (e) of such section 702 at least 30 days before the expiration of such authorization.

"(B) Continuation of existing orders. If the Attorney General and the Director of National Intelligence seek to replace an authorization made pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978 [50 USCS § 1805b], as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 522), by filing a certification in accordance with subparagraph (A), that authorization, and any directives issued thereunder and any order related thereto, shall remain in effect, notwithstanding the expiration provided for in subsection (a) of such section 105B [50 USCS § 1805b], until the Foreign Intelligence Surveillance Court (as such term is defined in section 701(b)(2) of the Foreign Intelligence Surveillance Act of 1978 [50 USCS § 1881(b)(2)] (as so added)) issues an order with respect to that certification under section 702(i)(3) of such Act [50 USCS § 1881a(i)(3)] (as so added) at which time the provisions of that section and of section 702(i)(4) of such Act [50 USCS § 1881a(i)(4)] (as so added) shall apply.
"(8) Effective date. Paragraphs (1) through (7) shall take effect as if enacted on August 5, 2007.

"(b) Transition Procedures for FISA Amendments Act of 2008 provisions.

(1) Orders in effect on December 31, 2017. Notwithstanding any other provision of this Act [for full classification, consult USCS Tables volumes], any amendment made by this Act [for full classification, consult USCS Tables volumes], or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), any order, authorization, or directive issued or made under title VII of the Foreign Intelligence Surveillance Act of 1978 [50 USCS §§ 1881 et seq.], as amended by section 101(a), shall continue in effect until the date of the expiration of such order, authorization, or directive.

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"(2) Applicability of Title VII of FISA to continued orders, authorizations, directives. Notwithstanding any other provision of this Act [for full classification, consult USCS Tables volumes], any amendment made by this Act [for full classification, consult USCS Tables volumes], or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), with respect to any order, authorization, or directive referred to in paragraph (1), title VII of such Act [50 USCS §§ 1881 et seq.], as amended by section 101(a), shall continue to apply until the later of--
"(A) the expiration of such order, authorization, or directive; or

"(B) the date on which final judgment is entered for any petition or other litigation relating to such order, authorization, or directive.

"(3) Challenge of directives; protection from liability; use of information. Notwithstanding any other provision of this Act [for full classification, consult USCS Tables volumes] or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)--

"(A) section 103(e) of such Act [50 USCS § 1803(e)], as amended by section 403(a)(1)(B)(ii), shall continue to apply with respect to any directive issued pursuant to section 702(h) of such Act [50 USCS § 1881a(h)], as added by section 101(a);

"(B) section 702(h)(3) of such Act [50 USCS § 1881a(h)(3)] (as so added) shall continue to apply with respect to any directive issued pursuant to section 702(h) of such Act [50 USCS § 1881a(h)] (as so added);

"(C) section 703(e) of such Act [50 USCS § 1881b(e)] (as so added) shall continue to apply with respect to an order or request for emergency assistance under that section;

"(D) section 706 of such Act [50 USCS § 1881e] (as so added) shall continue to apply to an acquisition conducted under section 702 or 703 of such Act [50 USCS § 1881a or 1881b] (as so added); and

"(E) section 2511(2)(a)(ii)(A) of title 18, United States Code, as amended by section 101(c)(1), shall continue to apply to an order issued pursuant to section 704 of the Foreign Intelligence Surveillance Act of 1978 [50 USCS § 1881c], as added by section 101(a).
"(4) Reporting requirements.

(A) Continued applicability. Notwithstanding any other provision of this Act or of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section 601(a) of such Act (50 U.S.C. 1871(a)), as amended by section 101(c)(2), and sections 702(l) and 707 of such Act [50 USCS § 1881a(l) and 1881f], as added by section 101(a), shall continue to apply until the date that the certification described in subparagraph (B) is submitted.
"(B) Certification. The certification described in this subparagraph is a certification--
"(i) made by the Attorney General;
"(ii) submitted to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the Committees on the Judiciary of the Senate and the House of Representatives;

"(iii) that states that there will be no further acquisitions carried out under title VII of the Foreign Intelligence Surveillance Act of 1978 [50 USCS §§ 1881 et seq.], as amended by section 101(a), after the date of such certification; and

"(iv) that states that the information required to be included in a review, assessment, or report under section 601 of such Act [50 USCS § 1871], as amended by section 101(c), or section 702(l) or 707 of such Act [50 USCS § 1881a(l) or 1881f], as added by section 101(a), relating to any acquisition conducted under title VII of such Act [50 USCS §§ 1881 et seq.], as amended by section 101(a), has been included in a review, assessment, or report under such section 601, 702(l), or 707 [50 USCS § 1871, 1881a(l), or 1881f].

JOHN CLINE

50 U.S.C. § 1806

50 USCS § 1806
Current through PL 114-327, approved 12/16/16.
United States Code Service - Titles 1 through 54 > TITLE 50. WAR AND NATIONAL DEFENSE > CHAPTER 36. FOREIGN INTELLIGENCE SURVEILLANCE > ELECTRONIC SURVEILLANCE
§ 1806. Use of information
(a) Compliance with minimization procedures; privileged communications; lawful purposes. Information acquired from an electronic surveillance conducted pursuant to this title [50 USCS §§ 1801 et seq.] concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this title [50 USCS §§ 1801 et seq.]. No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this title [50 USCS §§ 1801 et seq.] shall lose its privileged character. No information acquired from an electronic surveillance pursuant to this title [50 USCS §§ 1801 et seq.] may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) Statement for disclosure. No information acquired pursuant to this title [50 USCS §§ 1801 et seq.] shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(c) Notification by United States. Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this title [50 USCS §§ 1801 et seq.], 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.
(d) Notification by States or political subdivisions. Whenever any State or political subdivision thereof 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 a State or a political subdivision thereof, against an aggrieved person any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this title [50 USCS §§ 1801 et seq.], the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(e) Motion to suppress. Any person against whom evidence obtained or derived from an electronic surveillance to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such electronic surveillance on the grounds that--
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an order of authorization or approval.
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50 USCS § 1806

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Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.
(f) In camera and ex parte review by district court. Whenever a court or other authority is notified pursuant to subsection (c) or (d), or whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States of any State before any court or other authority of the United States or any state to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this Act, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
(g) Suppression of evidence; denial of motion. If the United States district court pursuant to subsection (f) 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. 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.
(h) Finality of orders. Orders granting motions or requests under subsection (g), decisions under this section that electronic surveillance was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to a surveillance shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.
(i) Destruction of unintentionally acquired information. In circumstances involving the unintentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person.
(j) Notification of emergency employment of electronic surveillance; contents; postponement, suspension or elimination. If an emergency employment of electronic surveillance is authorized under subsection (e) or (f) of section 105 [50 USCS § 1805] and a subsequent order approving the surveillance is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to electronic surveillance as the judge may determine in his discretion it is in the interest of justice to serve, notice of--
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not obtained.
On an ex parte showing of good cause to the judge the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed ninety days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
(k) Coordination with law enforcement on national security matters.

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50 USCS § 1806

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(1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title [50 USCS §§ 1801 et seq.] may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision) to coordinate efforts to investigate or protect against--
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 104(a)(7)(B) or the entry of an order under section 105 [50 USCS § 1805].

History

(Oct. 25, 1978,P.L. 95-511, Title I, § 106, 92 Stat. 1793; Oct. 26, 2001, P.L. 107-56, Title V, § 504(a), 115 Stat. 364; Nov. 25, 2002, P.L. 107-296, Title VIII, Subtitle I, § 898, 116 Stat. 2258; July 10, 2008, P.L. 110-261, Title I, §§ 106, 110(b)(1), 122 Stat. 2462, 2466.)
(As amended June 2, 2015,P.L. 114-23, Title VII, § 701(b), 129 Stat. 299.)
Annotations
Notes
References in text:
"This Act", referred to in subsec. (f), is Act Oct. 25, 1978, P.L. 95-511, popularly known as the Foreign Intelligence Surveillance Act of 1978, which is generally classified to 50 USCS §§ 1801 et seq. For full classification of such Act, consult USCS Tables volumes.
"Section 104(a)(7)(B)", referred to in subsec. (k)(2), is § 104(a)(7)(B) of Act Oct. 25, 1978, P.L. 95-511, which was redesignated § 104(a)(6)(B) of such Act by Act July 10, 2008, P.L. 110-261, Title I, § 104(1)(B), 122 Stat. 2461, and appears as 50 USCS § 1804(a)(6)(B).
Amendments: 2001 . Act Oct. 26, 2001 added subsec. (k).
2002 . Act Nov. 25, 2002 (effective 60 days after enactment, as provided by § 4 of such Act, which appears as 6 USCS § 101 note), in subsec. (k)(1), in the introductory matter, inserted "or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision)".
2008 . Act July 10, 2008 (effective on enactment, subject to certain exception, as provided by § 402 of such Act, which appears as 50 USCS § 1801 note), in subsec. (i), substituted "communication" for "radio communication"; and, in subsec. (k)(1)(B), substituted "sabotage, international terrorism, or the international proliferation of weapons of mass destruction" for "sabotage or international terrorism". 2015 . Act June 2, 2015, in subsec. (j), in the introductory matter, substituted "subsection (e) or (f) of section 105" for "section 105(e)".

JOHN CLINE

50 U.S.C. § 1821

50 USCS § 1821
Current through PL 114-244, approved 10/14/16
United States Code Service - Titles 1 through 54 > TITLE 50. WAR AND NATIONAL DEFENSE > CHAPTER 36. FOREIGN INTELLIGENCE SURVEILLANCE > PHYSICAL SEARCHES
§ 1821. Definitions
As used in this title [50 USCS §§ 1821 et seq.]:
(1) The terms "foreign power", "agent of a foreign power", "international terrorism", "sabotage", "foreign intelligence information", "Attorney General", "United States person", "United States", "person", "weapon of mass destruction", and "State" shall have the same meanings as in section 101 of this Act [50 USCS § 1801], except as specifically provided by this title [50 USCS §§ 1821 et seq.].
(2) "Aggrieved person" means a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.
(3) "Foreign Intelligence Surveillance Court" means the court established by section 103(a) of this Act [50 USCS § 1803(a)].
(4) "Minimization procedures" with respect to physical search, means--
(A) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and technique of the particular 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;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 101(e)(1) of this Act [50 USCS § 1801(e)(1)], shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand such foreign intelligence information or assess its importance;
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(D) notwithstanding subparagraphs (A), (B), and (C), with respect to any physical search approved pursuant to section 302(a) [50 USCS § 1822(a)], procedures that require that no information, material, or property of a United States person shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 304 [50 USCS § 1824] is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
(5) "Physical search" means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include (A) "electronic surveillance", as defined in section 101(f) of this Act [50 USCS § 1801(f)], or (B) the acquisition by the United States Government of foreign
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intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101(f) of this Act [50 USCS § 1801(f)].

History

(Oct. 25, 1978,P.L. 95-511, Title III, § 301, as added Oct. 14, 1994, P.L. 103-359, Title VIII, § 807(a)(3), 108 Stat. 3443; Dec. 28, 2001, P.L. 107-108, Title III, § 314(a)(3), 115 Stat. 1402; July 10, 2008, P.L. 110-261, Title I, § 110(c)(2), 122 Stat. 2467; Oct. 7, 2010, P.L. 111-259, Title VIII, § 801(4), 124 Stat. 2746.)
Annotations
Notes
Effective date of section:
This section took effect 90 days after enactment, with certain exceptions, pursuant to § 807(c) of Oct. 14, 1994, P.L. 103-359, which appears as a note to this section.
Amendments: 2001 . Act Dec. 28, 2001, in para. (4)(D), substituted "72 hours" for "24 hours".
2008 . Act July 10, 2008 (effective on enactment, as provided by § 402 of such Act, which appears as 50 USCS § 1801 note), in para. (1), inserted "weapon of mass destruction,". 2010 . Act Oct. 7, 2010, in para. (1), inserted the quotation marks around "weapon of mass destruction".
Other provisions:
Effective date and application of Oct. 14, 1994 amendments. Act Oct. 14, 1994, P.L. 103-359, Title VIII, § 807(c), 108 Stat. 3453, provides: "The amendments made by subsections (a) [adding 50 USCS §§ 1821 et seq., among other things; for full classification, consult USCS Tables volumes] and (b) [unclassified] shall take effect 90 days after the date of enactment of this Act, except that any physical search approved by the Attorney General of the United States to gather foreign intelligence information shall not be deemed unlawful for failure to follow the procedures of title III of the Foreign Intelligence Surveillance Act of 1978 [50 USCS §§ 1821 et seq.] (as added by this Act), if that search is conducted within 180 days after the date of enactment of this Act pursuant to regulations issued by the Attorney General, which were in the possession of the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives before the date of enactment of this Act.".
Research References & Practice Aids
Related Statutes & Rules:
This section is referred to in 50 USCS § 1822.
Law Review Articles:
Donohue. Symposium: Moving Targets: Issues at the Intersection of National Security & American Criminal Law: Article: The Limits of National Security. 48 Am Crim L Rev 1573, Fall 2011.
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Donohue. Criminal Law: Anglo-American Privacy And Surveillance. 96 J Crim L & Criminology 1059, Spring 2006.

Hall. Constitutional Regulation of National Security Investigation: Minimizing the Use of Unrelated Evidence. 41 Wake Forest L Rev 61, Spring 2006.

UNITED STATES CODE SERVICE

Copyright © 2016 Matthew Bender & Company, Inc. a member of the LexisNexis Group ™ All rights reserved.

End of Document

JOHN CLINE

50 U.S.C. § 1823

50 USCS § 1823
Current through PL 114-244, approved 10/14/16
United States Code Service - Titles 1 through 54 > TITLE 50. WAR AND NATIONAL DEFENSE > CHAPTER 36. FOREIGN INTELLIGENCE SURVEILLANCE > PHYSICAL SEARCHES
§ 1823. Application for order
(a) Submission by Federal officer; approval of Attorney General; contents. Each application for an order approving a physical search under this title [50 USCS §§ 1821 et seq.] shall be made by a Federal officer in writing upon oath or affirmation to a judge of the Foreign Intelligence Surveillance Court. Each application shall require the approval of the Attorney General based upon the Attorney General's finding that it satisfies the criteria and requirements for such application as set forth in this title [50 USCS §§ 1821 et seq.]. Each application shall include-(1) the identity of the Federal officer making the application; (2) the identity, if known, or a description of the target of the search, and a description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered; (3) a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that-(A) the target of the physical search is a foreign power or an agent of a foreign power; (B) the premises or property to be searched contains foreign intelligence information; and (C) the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power; (4) a statement of the proposed minimization procedures; (5) a statement of the nature of the foreign intelligence sought and the manner in which the physical search is to be conducted; (6) a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive branch officers employed in the area of national security or defense and appointed by the President, by and with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official-(A) that the certifying official deems the information sought to be foreign intelligence information; (B) that a significant purpose of the search is to obtain foreign intelligence information; (C) that such information cannot reasonably be obtained by normal investigative techniques; (D) that designates the type of foreign intelligence information being sought according to the categories described in section 101(e) [50 USCS § 1801(e)]; and (E) includes a statement explaining the basis for the certifications required by subparagraphs (C) and (D); (7) where the physical search involves a search of the residence of a United States person, the Attorney General shall state what investigative techniques have previously been utilized to obtain the foreign
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intelligence information concerned and the degree to which these techniques resulted in acquiring such information; and
(8) a statement of the facts concerning all previous applications that have been made to any judge under this title [50 USCS §§ 1821 et seq.] involving any of the persons, premises, or property specified in the application, and the action taken on each previous application.
(b) Additional affidavits or certifications. The Attorney General may require any other affidavit or certification from any other officer in connection with the application.
(c) Additional information. The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 304 [50 USCS § 1824].
(d) Personal review by Attorney General.
(1) (A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under subsection (a) an application under that subsection for a target described in section 101(b)(2) [50 USCS § 1801(b)(2)].
(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.
(2) (A) If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) for purposes of making the application under this section.
(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.

History

(Oct. 25, 1978,P.L. 95-511, Title III, § 303, as added Oct. 14, 1994, P.L. 103-359, Title VIII, § 807(a)(3), 108 Stat. JOHN CLINE

50 USCS § 1823

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3446; Dec. 27, 2000, P.L. 106-567, Title VI, § 603(a), 114 Stat. 2852; Oct. 26, 2001, P.L. 107-56, Title II, § 218, 115 Stat. 291; Dec. 17, 2004, P.L. 108-458, Title I, Subtitle G, § 1071(e), 118 Stat. 3691; July 10, 2008, P.L. 110-261, Title I, § 107(a), 122 Stat. 2462; Oct. 7, 2010, P.L. 111-259, Title VIII, § 806(a)(2), 124 Stat. 2748.)

Annotations

Notes

Effective date of section:
This section took effect 90 days after enactment, with certain exceptions, pursuant to § 807(c) of Oct. 14, 1994, P.L. 103-359, which appears as 50 USCS § 1821 note.
Amendments: 2000 . Act Dec. 27, 2000, added subsec. (d). 2001 . Act Oct. 26, 2001, in subsec. (a)(7)(B), substituted "a significant purpose" for "the purpose".
2004 . Act Dec. 17, 2004 (effective not later than six months after enactment, as provided by § 1097 of such Act, which appears as 50 USCS § 3001 note), in subsec. (d)(1)(A), substituted "Director of National Intelligence" for "Director of Central Intelligence". [For determination by the President that the amendment should take effect on 4/21/2005, see Pres. Mem. of April 21, 2005, 70 Fed. Reg. 23925, which appears as 50 USCS § 3001 note.]
2008 . Act July 10, 2008 (effective on enactment, subject to certain exceptions, as provided by § 402 of such Act, which appears as 50 USCS § 1801 note), in subsec. (a), deleted para. (2) which read: "(2) the authority conferred on the Attorney General by the President and the approval of the Attorney General to make the application;", redesignated paras. (3)-(9) as paras. (2)-(8), respectively, in para. (2) as redesignated, deleted "detailed" preceding "description", in para. (3)(C) as redesignated, inserted "or is about to be", in para. (6) as redesignated, in the introductory matter, substituted "Affairs," for "Affairs or", and substituted "Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official--" for "Senate--"; and, in subsec. (d)(1)(A), substituted "the Director of National Intelligence, or the Director of the Central Intelligence Agency" for "or the Director of National Intelligence". 2010 . Act Oct. 7, 2010, amended the directory language of Act Dec. 17, 2004, without affecting the text of this section.
Other provisions:
Officials designate to make certifications. For provisions listing officials designate by the President to make certifications required by subsec. (a)(7) of this section, see Ex. Or. No. 12949 of Feb. 9, 1995, § 3, 60 Fed. Reg. 8169, which appears as 50 USCS § 1822 note.
Case Notes

1. 2. Significant purpose

Generally

1. Generally

While defendants argued, with respect to government's surveillance that had been authorized under Foreign Intelligence Surveillance Act, that government "may have" violated procedures that Act required to minimize acquisition and retention, and prohibit dissemination, of nonpublicly available information concerning unconsenting United States persons under 50 USCS §§ 1801(h), former 1804(a)(5), former 1823(a)(5), and they based that

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50 U.S.C. § 1824

50 USCS § 1824
Current through PL 114-244, approved 10/14/16
United States Code Service - Titles 1 through 54 > TITLE 50. WAR AND NATIONAL DEFENSE > CHAPTER 36. FOREIGN INTELLIGENCE SURVEILLANCE > PHYSICAL SEARCHES
§ 1824. Issuance of an order
(a) Necessary findings. Upon an application made pursuant to section 303 [50 USCS § 1823], the judge shall enter an ex parte order as requested or as modified approving the physical search if the judge finds that-(1) the application has been made by a Federal officer and approved by the Attorney General; (2) on the basis of the facts submitted by the applicant there is probable cause to believe that-(A) the target of the physical search is a foreign power or an agent of a foreign power, except that no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and (B) the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power; (3) the proposed minimization procedures meet the definition of minimization contained in this title [50 USCS §§ 1821 et seq.]; and (4) the application which has been filed contains all statements and certifications required by section 303 [50 USCS § 1823], and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 303(a)(6)(E) [50 USCS 1823(a)(6)(E)] and any other information furnished under section 303(c) [50 USCS § 1823(c)].
(b) Determination of probable cause. In determining whether or not probable cause exists for purposes of an order under subsection (a)(2), a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.
(c) Specifications and directions of orders. An order approving a physical search under this section shall-(1) specify-(A) the identity, if known, or a description of the target of the physical search; (B) the nature and location of each of the premises or property to be searched; (C) the type of information, material, or property to be seized, altered, or reproduced; (D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search; and (E) the period of time during which physical searches are approved; and (2) direct-(A) that the minimization procedures be followed; (B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference
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with the services that such landlord, custodian, or other person is providing the target of the physical search;
(C) that such landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the search or the aid furnished that such person wishes to retain;
(D) that the applicant compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid; and
(E) that the Federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search.
(d) Duration of order; extensions; assessment of compliance.
(1) An order issued under this section may approve a physical search for the period necessary to achieve its purpose, or for 90 days, whichever is less, except that (A) an order under this section shall approve a physical search targeted against a foreign power, as defined in paragraph (1), (2), or (3) of section 101(a) [50 USCS § 1801(a)], for the period specified in the application or for one year, whichever is less, and (B) an order under this section for a physical search targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.
(2) Extensions of an order issued under this title [50 USCS §§ 1821 et seq.] may be granted on the same basis as the original order upon an application for an extension and new findings made in the same manner as required for the original order, except that an extension of an order under this Act for a physical search targeted against a foreign power, as defined in paragraph (5), (6), or (7) of section 101(a) [50 USCS § 1801(a)], or against a foreign power, as defined in section 101(a)(4) [50 USCS § 1801(a)(4)], that is not a United States person, or against an agent of a foreign power who is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no property of any individual United States person will be acquired during the period.
(3) At or before the end of the period of time for which a physical search is approved by an order or an extension, or at any time after a physical search is carried out, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(e) Emergency orders.
(1) Notwithstanding any other provision of this title [50 USCS §§ 1821 et seq.], the Attorney General may authorize the emergency employment of a physical search if the Attorney General--
(A) reasonably determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained;
(B) reasonably determines that the factual basis for issuance of an order under this title [50 USCS §§ 1821 et seq.] to approve such physical search exists;
(C) informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization that the decision has been made to employ an emergency physical search; and
(D) makes an application in accordance with this title [50 USCS §§ 1821 et seq.] to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such physical search.
(2) If the Attorney General authorizes the emergency employment of a physical search under paragraph (1), the Attorney General shall require that the minimization procedures required by this title [50 USCS §§ 1821 et seq.] for the issuance of a judicial order be followed.

JOHN CLINE

50 USCS § 1824

Page 4 of 7

(3) In the absence of a judicial order approving such physical search, the physical search shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) A denial of the application made under this subsection may be reviewed as provided in section 103 [50 USCS § 1803].
(5) In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the physical search, no information obtained or evidence derived from such physical search shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such physical search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the requirements of paragraph (5).
(f) Retention of applications and orders. Applications made and orders granted under this title [50 USCS §§ 1821 et seq.] shall be retained for a period of at least 10 years from the date of the application.

History

(Oct. 25, 1978,P.L. 95-511, Title III, § 304, as added Oct. 14, 1994, P.L. 103-359, Title VIII, § 807(a)(3), 108 Stat. 3447; Dec. 27, 2000, P.L. 106-567, Title VI, § 603(b), 114 Stat. 2853; Oct. 26, 2001, P.L. 107-56, Title II, § 207(a)(2), (b)(2), 115 Stat. 282; Dec. 28, 2001, P.L. 107-108, Title III, § 314(a)(4), 115 Stat. 1402; Dec. 17, 2004, P.L. 108-458, Title I, Subtitle G, § 1071(e), 118 Stat. 3691; March 9, 2006, P.L. 109-177, Title I, § 105(b), 120 Stat. 195; July 10, 2008, P.L. 110-261, Title I, §§ 107(b), (c)(1), 110(c)(3), 122 Stat. 2463, 2467; Oct. 7, 2010, P.L. 111259, Title VIII, §§ 801(5), 806(a)(2), 124 Stat. 2746, 2748.)
Annotations
Notes
References in text:
"This Act", referred to in this section, is Act Oct. 25, 1978, P.L. 95-511, popularly known as the Foreign Intelligence Surveillance Act of 1978, which appears generally as 50 USCS §§ 1801 et seq. For full classification of such Act, consult USCS Tables volumes.
Effective date of section:
This section took effect 90 days after enactment, with certain exceptions, pursuant to § 807(c) of Act Oct. 14, 1994, P.L. 103-359, which appears as 50 USCS § 1821 note.
Amendments: 2000 . Act Dec. 27, 2000, redesignated subsecs. (b)-(e) as subsecs. (c)-(f), respectively; and inserted new subsec. (b). 2001 . Act Oct. 26, 2001, in subsec. (d), in para. (1), substituted "90" for "forty-five" and inserted "(A)", and ", and (B) an order under this section for a physical search targeted against an agent of a foreign power as defined in section 101(b)(1)(A) may be for the period specified in the application or for 120 days, whichever is less", and, in
JOHN CLINE

50 USCS § 1824

Page 5 of 7

para. (2), inserted "or against an agent of a foreign power as defined in section 101(b)(1)(A),". Act Dec. 28, 2001, in subsec. (e), in paras. (1)(A)(ii) and (3)(C), substituted "72 hours" for "24 hours".

2004 . Act Dec. 17, 2004 (effective not later than six months after enactment, as provided by § 1097 of such Act, which appears as 50 USCS § 3001 note), in subsec. (c)(2)(C), substituted "Director of National Intelligence" for "Director of Central Intelligence". [For determination by the President that the amendment should take effect on 4/21/2005, see Pres. Mem. of April 21, 2005, 70 Fed. Reg. 23925, which appears as 50 USCS § 3001 note.]
2006 . Act March 9, 2006, in subsec. (d), in paras. (1)(B) and (2), substituted "who is not a United States person" for "as defined in section 101(b)(1)(A)".

2008 . Act July 10, 2008 (effective on enactment, subject to certain exception, as provided by § 402 of such Act, which appears as 50 USCS § 1801 note), in subsec. (a), deleted para. (1) which read: "(1) the President has authorized the Attorney General to approve applications for physical searches for foreign intelligence purposes;", redesignated paras. (2)-(5) as paras. (1)-(4), respectively, in para. (2)(B) as redesignated, inserted "or is about to be", and, in para. (4) as redesignated, substituted "303(a)(6)(E)" for "303(a)(7)(E)"; in subsec. (d)(2), substituted "paragraph (5), (6), or (7) of section 101(a)" for "section 101(a) (5) or (6)"; and substituted subsec. (e) for one which read:
"(e) Emergency orders.
(1)
(A) Notwithstanding any other provision of this title, whenever the Attorney General reasonably makes the determination specified in subparagraph (B), the Attorney General may authorize the execution of an emergency physical search if--
"(i) a judge having jurisdiction under section 103 is informed by the Attorney General or the Attorney General's designee at the time of such authorization that the decision has been made to execute an emergency search, and
"(ii) an application in accordance with this title is made to that judge as soon as practicable but not more than 72 hours after the Attorney General authorizes such search.
"(B) The determination referred to in subparagraph (A) is a determination that--
"(i) an emergency situation exists with respect to the execution of a physical search to obtain foreign intelligence information before an order authorizing such search can with due diligence be obtained, and
"(ii) the factual basis for issuance of an order under this title to approve such a search exists.
"(2) If the Attorney General authorizes an emergency search under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.
"(3) In the absence of a judicial order approving such a physical search, the search shall terminate the earlier of--

"(A) the date on which the information sought is obtained; "(B) the date on which the application for the order is denied; or "(C) the expiration of 72 hours from the time of authorization by the Attorney General.

"(4) In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the search, no information obtained or evidence derived from such search shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person
JOHN CLINE

50 U.S.C. § 1825

50 USCS § 1825
Current through PL 114-244, approved 10/14/16
United States Code Service - Titles 1 through 54 > TITLE 50. WAR AND NATIONAL DEFENSE > CHAPTER 36. FOREIGN INTELLIGENCE SURVEILLANCE > PHYSICAL SEARCHES
§ 1825. Use of information
(a) Compliance with minimization procedures; lawful purposes. Information acquired from a physical search conducted pursuant to this title [50 USCS §§ 1821 et seq.] concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this title [50 USCS §§ 1821 et seq.]. No information acquired from a physical search pursuant to this title [50 USCS §§ 1821 et seq.] may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) Notice of search and identification of property seized, altered, or reproduced. Where a physical search authorized and conducted pursuant to section 304 [50 USCS § 1824] involves the residence of a United States person, and, at any time after the search the Attorney General determines there is no national security interest in continuing to maintain the secrecy of the search, the Attorney General shall provide notice to the United States person whose residence was searched of the fact of the search conducted pursuant to this Act and shall identify any property of such person seized, altered, or reproduced during such search.
(c) Statement for disclosure. No information acquired pursuant to this title [50 USCS §§ 1821 et seq.] shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(d) Notification by United States. Whenever the United States 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 a physical search pursuant to the authority of this title [50 USCS §§ 1821 et seq.], the United States shall, prior to the trial, hearing, or the 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 United States intends to so disclose or so use such information.
(e) Notification by States or political subdivisions. Whenever any State or political subdivision thereof 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 a State or a political subdivision thereof against an aggrieved person any information obtained or derived from a physical search pursuant to the authority of this title [50 USCS §§ 1821 et seq.], the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(f) Motion to suppress.
(1) Any person against whom evidence obtained or derived from a physical search to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority
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50 USCS § 1825

Page 3 of 6

of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such search on the grounds that--
(A) the information was unlawfully acquired; or
(B) the physical search was not made in conformity with an order of authorization or approval.
(2) Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.
(g) In camera and ex parte review by district court. Whenever a court or other authority is notified pursuant to subsection (d) or (e), or whenever a motion is made pursuant to subsection (f), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to a physical search authorized by this title [50 USCS §§ 1821 et seq.] or to discover, obtain, or suppress evidence or information obtained or derived from a physical search authorized by this title [50 USCS §§ 1821 et seq.], the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority shall, notwithstanding any other provision of law, if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the physical search as may be necessary to determine whether the physical search of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the physical search, or may require the Attorney General to provide to the aggrieved person a summary of such materials, only where such disclosure is necessary to make an accurate determination of the legality of the physical search.
(h) Suppression of evidence; denial of motion. If the United States district court pursuant to subsection (g) determines that the physical search 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 the physical search of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the physical search was lawfully authorized or conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(i) Finality of orders. Orders granting motions or requests under subsection (h), decisions under this section that a physical search was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to the physical search shall be final orders and binding upon all courts of the United States and the several States except a United States Court of Appeals or the Supreme Court.
(j) Notification of emergency execution of physical search; contents; postponement, suspension, or elimination.
(1) If an emergency execution of a physical search is authorized under section 304(d) and a subsequent order approving the search is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to the search as the judge may determine in his discretion it is in the interests of justice to serve, notice of--
(A) the fact of the application;
(B) the period of the search; and
(C) the fact that during the period information was or was not obtained.
(2) On an ex parte showing of good cause to the judge, the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed 90 days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
(k) Coordination with law enforcement on national security matters.

JOHN CLINE

50 USCS § 1825

Page 4 of 6

(1) Federal officers who conduct physical searches to acquire foreign intelligence information under this title [50 USCS §§ 1821 et seq.] may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision) to coordinate efforts to investigate or protect against--
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 303(a)(6) [50 USCS § 1823(a)(6)] or the entry of an order under section 304 [50 USCS § 1824].

History

(Oct. 25, 1978,P.L. 95-511, Title III, § 305, as added Oct. 14, 1994, P.L. 103-359, Title VIII, § 807(a)(3), 108 Stat. 3449; Oct. 26, 2001, P.L. 107-56, Title V, § 504(b), 115 Stat. 364; Nov. 25, 2002, P.L. 107-296, Title VIII, Subtitle I, § 899, 116 Stat. 2258; July 10, 2008, P.L. 110-261, Title I, §§ 107(c)(2), 110(b)(2), 122 Stat. 2464, 2466.)
Annotations
Notes
References in text:
"This Act", referred to in this section, is Act Oct. 25, 1978, P.L. 95-511, popularly known as the Foreign Intelligence Surveillance Act of 1978, which appears generally as 50 USCS §§ 1801 et seq. For full classification of such Act, consult USCS Tables volumes.
"Section 304(d)", referred to in subsec. (j)(1), is § 304(d) of Act Oct. 25, 1978, P.L. 95-511, which was redesignated § 304(e) of such Act by Act Dec. 27, 2000, P.L. 106-567, Title VI, § 603(b)(1), 114 Stat. 2853, and appears as 50 USCS § 1824(e).
Effective date of section:
This section took effect 90 days after enactment, with certain exceptions, pursuant to § 807(c) of Oct. 14, 1994, P.L. 103-359, which appears as 50 USCS § 1821 note.
Amendments: 2001 . Act Oct. 26, 2001 added subsec. (k).
2002 . Act Nov. 25, 2002 (effective 60 days after enactment, as provided by § 4 of such Act, which appears as 6 USCS § 101 note), in subsec. (k)(1), in the introductory matter, inserted "or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision)".
2008 . Act July 10, 2008 (effective on enactment, subject to certain exceptions, as provided by § 402 of such Act, which appears as 50 USCS § 1801 note), in subsec. (k), in para. (1)(B), substituted "sabotage, international terrorism, or the international proliferation of weapons of mass destruction" for "sabotage or international terrorism", and, in para. (2), substituted "303(a)(6)" for "303(a)(7)".
JOHN CLINE

 
 February 24, 2018
VIA ECF Ms. Molly C. Dwyer, Clerk United States Court of Appeals for the Ninth Circuit 95 7th Street San Francisco, CA 94103

Dear Ms. Dwyer:

Re: United States v. Keith Gartenlaub, No. 16-50339--Rule 28(j) letter concerning HPSCI memoranda

I write under Fed.R.App.P. 28(j). This matter was argued December 4, 2017 and is awaiting decision.

Throughout this litigation, the government has maintained that disclosure of the underlying FISA application, even with redactions, would cause grave damage to national security. The district court accepted the government's argument, as has every court since FISA was enacted (with the exception of one district court, which was later reversed).

On February 2, 2018, the President--head of the same Executive Branch that is prosecuting appellant Gartenlaub--declassified and approved release of a House Permanent Select Committee on Intelligence ("HPSCI") majority memorandum (attached as Exhibit A) that summarizes portions of a FISA application targeting an American citizen. According to the cover letter from the Counsel to the President, the President declassified the memorandum because "the public interest in disclosure outweighs any need to protect the information." The Speaker of the House of Representatives observed that release of the HPSCI memorandum "provide[s] greater transparency" concerning FISA and helps "ensure the FISA system works as intended and Americans' rights are properly safeguarded." Al Weaver, Paul Ryan: Nunes memo lays out a 'specific, legitimate' worry about surveillance, Washington Examiner, Feb. 2, 2018.

On February 24, 2018, HPSCI released a redacted, declassified version of a minority memorandum (attached as Exhibit B), which challenges certain assertions made in the majority memorandum. The minority memorandum, like the majority memorandum, summarizes portions of the underlying FISA application.

Ms. Molly C. Dwyer, Clerk February 24, 2018 Page | 2
The declassification of the HPSCI memoranda demonstrates that it is possible to discuss publicly the merits of a FISA application without damaging national security. In addition, the declassification of the memoranda highlights the absurdity of the government's assertion, in this and other cases involving motions to suppress FISA surveillance, that any disclosure of a FISA application, even to cleared defense counsel under the protections of CIPA, would harm national security. If the HPSCI memoranda can be disclosed without harming national security, as the Executive Branch has determined, at least comparable disclosure of the Gartenlaub FISA application can be made to cleared defense counsel under CIPA without causing such harm.

Very truly yours,

Enclosures

John D. Cline

EXHIBIT A

EXHIBIT B

CERTIFICATE OF SERVICE When All Case Participants Are Registered For
The Appellate CM/ECF System U.S. Court of Appeals Docket Number: 16-50339 I hereby certify that on the 24th day of February, 2018, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
/s/ John D. Cline John D. Cline

 
 No. 18-
In the
Supreme Court of the United States

KEITH PRESTON GARTENLAUB, AKA Keith Preson Gartenlaub, Petitioner, v.
UNITED STATES OF AMERICA, Respondent.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI

Tor Ekeland Counsel of Record
Mark Jaffe Lydia Fields Tor Ekeland Law PLLC 195 Montague Street, 14th Floor Brooklyn, NY 11201 (718) 737-7264 tor@torekeland.com
Counsel for Petitioner

287073

A
(800) 274-3321 • (800) 359-6859

i
QUESTIONS PRESENTED
(1) Does a secret, Foreign Intelligence Surveillance Act (“FISA”) authorized computer search violate the Fourth Amendment’s prohibition against general warrants when the government searches every file on a hard drive in the name of national security?
(2) Does the Fourth Amendment impose use restrictions on non-responsive evidence of regular, nonnational security crimes, obtained from a FISA computer search?
(3) Whether the District Court’s Denying Gartenlaub a Franks Hearing on the secret FISA Warrant Requires Suppression of the Fruits of that Warrant?
(4) Does the fact that Gartenlaub wasn’t allowed to investigate, and adversarially challenge, the secret FISA search warrant application and materials used against him violate the Fourth, Fifth, and Sixth Amendments’ fundamental criminal procedure protections?
(5) Did the District Court err in denying Gartenlaub’s post-trial motion for a judgment of acquittal because the jury never heard the secret FISA evidence, and Gartenlaub never got to challenge it or argue it to the jury, thereby giving the Jury an insufficient picture of the evidence to convict?

ii
TABLE OF CONTENTS Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . v
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS  . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3
REASONS FOR GRANTING THE PETITION . . . . 14
I. The Cour t Should Grant Cer tiorar i Because the FISA Search Warrant in this Case is a General Warrant  . . . . . . . . . . . . . . . . .  17
II. The Cour t Should Grant Cer tiorar i to Impose Use Restrictions on Non-Responsive Evidence of NonNational Security Crimes Obtained Through FISA Computer Searches . . . . . . . . . . 23

iii
Table of Contents
Page III. The Court Should Grant Certiorari to
Determine Whether the District Court’s Denying Gartenlaub a Franks Hearing on the FISA Warrant Requires Suppression of the Fruits of that Warrant . . . . . . . . . . . . . . . 25
IV. The Court Should Grant Certiorari Because In the 41 Year History of FISA No Defendant Has Ever Had Access to Their Case’s Secret FISA Application and this Violates the Fourth, Fifth, and Sixth Amendments . . . . . . . 28
V. The Cour t Should Grant Cer tiorar i Because FISA Contradicts our Republic’s Legal Traditions . . . . . . . . . . . . . . . . . . . . . . . . . . 31
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

iv
TABLE OF APPENDICES
Page
APPENDIX A — MEMORANDUM OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, FILED OCTOBER 2, 2018 . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — JUDGMENT AND PROBATION/COMMITMENT ORDER OF THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, FILED SEPTEMBER 6, 2016 . . . . . . . . . . . . . . . . . . . . . . . . . 6a
APPENDIX C — ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, FILED DECEMBER 7, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . 16a
APPENDIX D — RELEVANT STATUTORY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18a

v

TABLE OF CITED AUTHORITIES CASES

Page

Boyd v. United States, 116 U.S. 616 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . 18, 24

Carpenter v. United States, 138 S. Ct. 2206 (2018) . . . . . . . . . . . . . . . . . . . 14, 15, 24

Chamber’s Case, 79 Eng. Rep. 746 (K.B. 1630) . . . . . . . . . . . . . . . . . . . 32

Clapper v. Amnesty Intern. USA, 568 U.S. 398 (2013)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Franks v. Delaware, 438 U.S. 154 (1978)  . . . . . . . . . . . . . . . . . . . . . . 9, 13, 25

Jones v. Sec. & Exch. Comm’n, 298 U.S. 1 (1936)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Matter of Kevork, 788 F.2d 566 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . 29

Payton v. New York, 445 U.S. 573 (1980)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Riley v. California, 573 U.S. 373 (2014)  . . . . . . . . . . . . . . . . . . . . . 18, 23, 24

Stanford v. Texas, 379 U.S. 476 (1965)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

vi
Cited Authorities
Page United States v. Carey,
172 F.3d 1268 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . 23
United States v. Chi Ping Ho, No. 17 CR. 779 (LAP), 2018 WL 5777025 (S.D.N.Y. Nov. 2, 2018)  . . . . . . . . . . . . . . . . . . . . . . . . 29
United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010)  . . . . . . . . . . . . . . . . . . . 23
United States v. Di Re, 332 U.S. 581 (1948)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Ganias, 824 F.3d 199 (2d Cir 2016)  . . . . . . . . . . . . . . . . . . . . . 23
United States v. Gartenlaub, No. 16-50339, 2018 WL 4761630 (9th Cir. Oct. 2, 2018)  . . . . . . . . . . . . . . . . . . . . . passim
United States v. Gecas, 120 F.3d 1419 (11th Cir. 1997)  . . . . . . . . . . . . . . . . . . 31
United States v. Hawamda, No. Crim. 89-56-A, 1989 WL 235836 (E.D. Va. Apr. 17, 1989) . . . . . . . . . . . . . . . . . . . . . . . . 29
United States v. Isa, 923 F.2d 1300 (8th Cir. 1991) . . . . . . . . . . . . . . . . . . . 30

vii
Cited Authorities Page
United States v. Jae Shik Kim, 103 F. Supp. 3d 32 (D.C. 2015) . . . . . . . . . . . . . . . . . . 24
United States v. Johnson, 952 F.2d 565 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
United States v. Mann, 592 F.3d 779 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 23
United States v. Muhtorov, 187 F. Supp. 3d 1240 (D. Colo. 2015) . . . . . . . . . . 19, 29
United States v. Perez, 712 Fed. Appx. 136 (3rd Cir. 2017)  . . . . . . . . . . . . . . 24
United States v. Richards, 659 F.3d 527 (6th Cir. 2011)  . . . . . . . . . . . . . . . . . . . . 23
United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) . . . . . . . . . . . . . . . . .  23-24
United States v. Troung Dinh Hung, 629 F.2d 908 (4th Cir. 1980) . . . . . . . . . . . . . . . . . 21, 29
United States v. Weber, 923 F.2d 1338 (9th Cir. 1990) . . . . . . . . . . . . . . . . 22, 27
Wong Sun v. United States, 371 U.S. 471 (1963)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

viii

Cited Authorities STATUTES AND OTHER AUTHORITIES

Page

Fifth Amendment to the United States Constitution  . . . . . . . . . . . . . . . . passim

Fourth Amendment to the United States Constitution  . . . . . . . . . . . . . . . . passim

Sixth Amendment to the United States Constitution  . . . . . . . . . . . . . . . . passim

U.S. Const. Art. I, § 9, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . 32

U.S. Const, Art. III, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 16

18 U.S.C. § 2252A(a)(2)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 U.S.C. § 2252A(a)(5)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 U.S.C. § 2252A(a)(5)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 2252A(b)(2)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 3231  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1291  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

50 U.S.C. § 1801(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

50 U.S.C. § 1804  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ix Cited Authorities
Page 50 U.S.C. § 1804(a)(3)(A)  . . . . . . . . . . . . . . . . . . . . . . . 7, 21
50 U.S.C. § 1804-6  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
50 U.S.C. § 1805(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
50 U.S.C. § 1806(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
50 U.S.C. § 1821(4)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
50 U.S.C. § 1821-25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
50 U.S.C. § 1823  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Fed. R. Crim. P. 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9
Adam Benforado, Unfair: The New Science of Criminal Injustice (Broadway Books 2015) . . . . . . 26
Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (Yale University Press 1998) . . . . . 31
Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (Yale 1997) . . . . . . . . . 27
Anna Stolley Persky, A Cautionary Tale: The Ted Stevens Prosecution DC Bar, Oct. 2009  . . . . . . . . . 30

x
Cited Authorities
Page Charlie Savage, Carter Page FISA Documents
are Released by Justice Department N.Y. Times, July 21, 2018 . . . . . . . . . . . . . . . . . . . . . .  17
Conor Clarke, Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp? 66 Stan. L. Rev. Online 125 (2014)  . . . . . . . . . . . . . . 15
Elizabeth Goitein and Faiza Patel, What Went Wrong With the FISA Court, Brennan Center for Justice (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Fed’n Am. Scientists, Foreign Intelligence Surveillance Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Jeremy Herb and David Shortell, FBI Releases Carter Page Surveillance Warrant Documents, CNN, July 23, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Joseph J. Ellis, American Dialogue: The Founders and Us (Alfred A. Knopf 2018) . . . . . . . . . . . . . . . . . 33
Letter from the United States Commission on Civil Rights to Loretta E. Lynch, United States Attorney General (Nov. 18, 2015) . . . . . . . . . . 5
Matt Apuzzo, Former Espionage Suspect Sues, Accusing F.B.I. of Falsifying Evidence, N.Y. Times, May 10, 2017 . . . . . . . . . . . . . . . . . . . . . . . 5

xi
Cited Authorities
Page Matt Hamilton, Chinese Citizen is Sentenced
to Prison in the U.S. for Plotting to Steal Military Secrets, L.A. Times, July 13, 2016  . . . . . . . 4
Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Texas Tech. L. Rev. 1 (2015) . . . . . . . . . . . . . . . . . 24
S. Rep. No. 94-755, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities (April 26, 1976) . . . . . . . . . . . . . . . . . . . .7, 34
Spencer S. Hsu, FBI Admits Flaws in Hair Analysis Over Decades Wash. Post, April 18, 2015 . . . . . . . . . 30
Tim Cushing, DOJ Issues New Rules On Espionage Investigations to Keep it From Embarrassing Itself So Often, Techdirt, May 2, 2016  . . . . . . . . . . . . 6
Tor Ekeland, Suspending Habeas Corpus: Article I, Section 9, Clause 2, of the United States Constitution and the War on Terror Fordham L. Rev. 1475 (2005) . . . . . . . . . .33
William F. Duker, A Constitutional History of Habeas Corpus (Greenwood Press 1980) . . . . . . . . . 32

1
OPINIONS BELOW
On September 6, 2016, after a jury trial, the Federal District Court for the Central District of California entered judgment against Petitioner Keith Preston Gartenlaub.1 The court entered judgment against Gartenlaub for one count of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2), possession of child pornography.2 On October 2, 2018, in an unpublished five-page decision, the United States Court of Appeals for the Ninth Circuit affirmed the District Court’s judgment.3 On December 7, 2018, the United States Court of Appeals for the Ninth Circuit denied Mr. Gartenlaub’s petition for rehearing en banc.4
JURISDICTION
On September 6, 2016, the District Court, having jurisdiction under 18 U.S.C. § 3231, entered judgment. On October 2, 2018, the Ninth Circuit affirmed the District Court’s judgment. On December 7, 2018, the Ninth Circuit entered its order denying rehearing en banc. The Ninth Circuit had jurisdiction under 28 U.S.C. § 1291.
1.  (App. at 6a-15a); (District Ct. Dkt. No. 216 (United States v. Keith Preston Gartenlaub, 14-CR-00173-CAS (C.D. Ca.).)
2.  (App. at 7a.) 3.  (App. at 1a-5a.) 4.  (App. at 16a-17a; (United States v. Keith Gartenlaub, No. 16-50339 (9th Cir. 2018), (Appeal Dkt. No. 96.).)

2
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
The Fourth Amendment to the United States Constitution reads:
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.
The Fifth Amendment to the United States Constitution reads in relevant part “[n]o person shall be . . . be deprived of life, liberty, or property, without due process of law . . . .”
The Sixth Amendment to the United States Constitution reads in relevant part: “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The relevant portions of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. §§ 1804-6, 1821-25, are in the Appendix.

3
STATEMENT OF THE CASE
In 2013, Wesley Harris, an FBI agent in Los Angeles, read an article on Wired.com.5 The article speculated that a spy at the Boeing Company, the designer and manufacturer of the U.S. Military’s C-17 cargo plane, may have leaked the C-17’s blueprints to the Chinese.6 It suggested that the Chinese Military’s Y-20 cargo plane was based on the stolen C-17 blueprints. After reading a second article speculating that “hackers” may have compromised the Boeing C-17 program, Agent Harris launched an investigation.7 For reasons never revealed, the investigation targeted Petitioner Keith Preston Gartenlaub, a U.S. citizen, who at the time was an Engineering IT Manager at Boeing in Long Beach, California. No evidence exists, then or now, that
5.  (ER 378.) The following abbreviations refer to appellate filings in United States v. Keith Preston Gartenlaub, No. 1650339 (9th Cir.): “ER” refers to Excerpts from the Record (9th Cir. Dkt. No. 32); “AOB” refers to Appellant’s Opening Brief (Id. at 31); “GB” refers to the Government’s Opposition Brief (Id. at 53); “ARB” refers to the Appellant’s Reply Brief (Id. at 63); “BAC” refers to Brief of Amici Curiae Electronic Frontier Foundation and American Civil Liberties Union in Support of Defendant- Appellant And Reversal (Id. at 34). All record cites are in parenthesis.
6.  (ER 379.) A previous version of the Wired.com article, published in December 2012, identified the potential Boeing spy as Dongfan Chung. https://www.wired.com/2012/12/china-debutsgiant-transport/. Chung was convicted in 2010 of providing Boeing trade secrets to China (although the conviction did not involve the C-17), and the Ninth Circuit affirmed in 2011. See U.S. v. Chung, 659 F.3d 815 (9th Cir. 2011).
7.  (ER 378; AOB at 5.)

4
Gartenlaub provided C-17 designs to China. He has never been charged with any national security crimes.
In July 2016, Chinese Citizen Su Bin was sentenced for his role in plotting to steal the C-17 military cargo plane designs.8
Agent Harris’s investigation latched onto two principal facts: that Gartenlaub’s position at Boeing allegedly gave him access to C-17 data; and, that Gartenlaub’s wife, a naturalized U.S. citizen, was born in China. Understandably, Gartenlaub travelled to China and communicated with his family there. He also jointly owned property in China with his wife. Gartenlaub hid none of this.
Gartenlaub disclosed his Chinese travel to Boeing and received its approval. And Agent Harris knew this. He knew that Gartenlaub’s communications with China had nothing to do with the C-17 and were explained by his family there. He knew that numerous employees could access Boeings C-17 data. Nonetheless, Agent Harris used Gartenlaub’s alleged access—which Harris misunderstood and exaggerated—his Chinese-born wife, and other innocuous facts to concoct a fantasy of Gartenlaub as a Chinese spy.
Agent Harris’s investigation was one of many launched at the time under intense pressure on the FBI and DOJ
8.  See, e.g., Matt Hamilton, Chinese Citizen is Sentenced to Prison in the U.S. for Plotting to Steal Military Secrets, L.A. Times, July 13, 2016, available at http://www.latimes.com/local/ lanow/la-me-ln-chinese-boeing-hack-prison-sentencing-20160713snap-story.html.

5
to take action against Chinese espionage targeting U.S. military and trade secrets. This pressure led to questionable investigations and prosecutions. Regional DOJ offices used secret FISA search warrants to start several non-national security prosecutions for regular crimes. Many of these prosecutions collapsed for reasons including false evidentiary assumptions and accusations of racism against Chinese Americans.9
In November, 2015, these accusations of DOJ racism against Chinese Americans led the U.S. Commission on Civil Rights to send a letter to U.S. Attorney General Loretta E. Lynch asking for an investigation into the targeting of “Asian Americans for investigation, surveillance, and arrest, due to their race or national origin.”10 Eventually, the DOJ’s main office in Washington, D.C. addressed these accusations of racially motivated national security investigations.
In 2016, DOJ in Washington, D.C. issued new guidelines governing national security investigations under the Foreign Intelligence Surveillance Act (“FISA”). The guidelines require regional DOJ prosecutors to
9.  See, e.g., Matt Apuzzo, Former Espionage Suspect Sues, Accusing F.B.I. of Falsifying Evidence, N.Y. Times, May 10, 2017 (“Each case raised the specter of Chinese espionage without explicitly charging the suspects as spies.”), available at https:// w w w.ny times.com /2 017/05/10/us/politics/f bi-x i-x iaox ing.html.
10.  Letter from the United States Commission on Civil Rights to Loretta E. Lynch, United States Attorney General (Nov. 18, 2015) (documenting dubious DOJ espionage investigations targeting Asian Americans), available at https://www.usccr.gov/press/ archives/correspd/LettertoDOJreAsianAmericanProsecutions. pdf.

6
consult with national security prosecutors in Washington, D.C., before proceeding.11
But in 2013, these guidelines didn’t exist. And, initially, Agent Harris didn’t turn to FISA in his hunt for Chinese spies. In June 2013, Agent Harris’s applied under Federal Rule of Criminal Procedure 41 (“Rule 41”) in the Federal District Court for the Central District of California in Los Angeles for a criminal search warrant targeting Gartenlaub’s and his wife’s emails for evidence of espionage.12 The court approved the warrant. The subsequent search of the Gartenlaubs’ emails turned up no evidence of national security crimes, or any crimes whatsoever.
Undaunted, Agent Harris applied to the top secret, ex parte Foreign Intelligence Surveillance Court for a secret search warrant under FISA.
In 1978, Congress passed FISA because for decades the FBI and CIA engaged in illegal regular surveillance of, and action against, U.S. citizens. Congress intended FISA, and the Foreign Intelligence Surveillance Court, to prevent these abuses of power by federal law enforcement and intelligence agencies. The most infamous abuse being the FBI’s COINTELPRO activities that politically
11.  See, e.g., Tim Cushing, DOJ Issues New Rules On Espionage Investigations to Keep it From Embarrassing Itself So Often, Techdirt, May 2, 2016, available at https://www.techdirt. c om /a r t ic le s / 2 016 0 4 2 8 / 0 8 3 6 4 9 3 4 2 9 8 /doj -i s sue s -ne w-r u le s espionage-investigations-to-keep-it-embarrassing-itself-so-often. shtml.
12.  (See AOB at 7.)

7
targeted Americans like Martin Luther King, Jr.13 Thus, FISA limits searches targeting U.S. citizens to instances where there is probable cause that the citizen is an agent of a foreign power.14 The holds true whether for targeted surveillance, or a targeted physical search.15 No such evidence exists in the public record that Gartenlaub was a foreign agent and he’s never been charged with a national security crime.
The Foreign Intelligence Surveillance Court approved Agent Harris’s secret warrant application, presumably for the surveillance of Gartenlaub and a physical search of his home, computers and hard drives.16
The FBI Secretly Enters Gartenlaub’s Home and Images His Hard Drives
On January 29 and 30, 2014, FBI agents stealthily entered Gartenlaub’s home to execute a secret FISA
13.  See, e.g., S. Rep. No. 94-755, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, at 11 (April 26, 1976) (“The Church Report”) (“[T]he Committee’s investigation has uncovered a host of serious legal and constitutional issues relating to [domestic] intelligence activity and it is strong proof of the need for reform to note that scarcely any of those issues have been addressed in the courts.”), available at https://upload.wikimedia.org/wikipedia/ c om mon s / 7/ 7 9 /C hu r c h _C om m it t e e _ r ep or t _%2 8 B o ok _ I%2 C _ Foreig n_and_Militar y _Intelligence%29.pdf.
14.  See 50 U.S.C. § 1804 (a)(3)(A).
15.  Compare 50 U.S.C. § 1804 (surveillance) with 50 U.S.C. § 1823 (physical searches).
16.  (See AOB at 7.)

8
physical search warrant. Agents secretly searched and digitally imaged three hard drives they found there. Over the following months, the FBI rummaged through every file they found on those hard drives.
In its Opposition Brief before the Ninth Circuit, the government acknowledges that there were no limitations to its secret search of Gartenlaub’s hard drives, saying in a header: “The Government Was Permitted to Search Every File on Defendant’s Computers . . . .”17 And nothing in the record indicates that the government used any standard forensic techniques routinely used to particularize computer searches like: date limitations; targeted key word searches; image recognition scans; taint teams, or other routine, well established techniques to limit a digital search to its target and screen out privileged, confidential, and irrelevant information.
Despite its unlimited search, the FBI found no evidence that Gartenlaub had provided C-17 data to China, or otherwise acted as a spy for China. But the FBI did allegedly find, among the tens of thousands of files on the hard drives, a handful of files containing child pornography. Dropping its fantasy that Gartenlaub was a Chinese spy, the FBI turned to the theory he collected child pornography.
The Fed. R. Crim. P. 41 Warrants Based on the Fruits of the FISA Warrant
In August 2014, the FBI obtained a search warrant for Gartenlaub’s premises seeking evidence that he
17.  (See GB at 52.)

9
received and possessed child pornography.18 The August 2014 warrant application based its probable cause on the fruits of the secret FISA warrant secretly executed in January 2014, describing it as “a court-authorized search without notice” to the occupants. The probable cause affidavit further stated that the search discovered child pornography on Gartenlaub’s hard drives.19 The district court then granted the application for a normal Rule 41 search warrant.
With its August 2014 search warrant the FBI seized the three hard drives that it had already secretly imaged and searched for months under the FISA warrant. It also seized a fourth hard drive from Gartenlaub that contained a copy of the “Origdata” folder structure that allegedly contained the same files as the other three hard drives.
On October 23, 2014, a grand jury indicted Gartenlaub for receipt and possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and 2252A(a)(5).20
Through pretrial motions, he:
1. Challenged and sought suppression of the fruits of the January 2014 FISA search and the August 2014 searches of his home, computers, and hard drives, on Fourth Amendment and other grounds,
2. Requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to establish that the FISA
18.  (ER 243.)
19.  (ER 248-49.)
20.  (See ER 243, 248-49, 296-97; AOB at 7).

10
application, and the August 2014 search warrant application contained intentional or reckless material falsehoods and omissions, and
3. Sought disclosure of the underlying FISA application and order.21
In response, the government submitted a largely classified, ex parte opposition to Gartenlaub’s FISA challenges.22 The defense received a heavily redacted version of the government’s opposition. The District Court reviewed the FISA application and order, together with the classified portions of the government’s opposition, in camera and ex parte.
On August 6, 2015, in an 11-page opinion drafted by the government that the District Court signed unaltered, the court refused to disclose to the defense the FISA application and order, and denied Gartenlaub’s motion to suppress the fruits of the FISA search.23 Later, however, the court expressed misgivings, stating “I do have some personal questions regarding the propriety of the FISA court proceeding even though that certainly seems to be legally authorized.”24
An enormous folder on Gartenlaub’s drives with multiple subfolders called “Origdata” contained less than 100 child pornography files among thousands of other files.
21.  (District Ct. Dkt. Nos. 67, 70, 73.)
22.  (District Ct. Dkt. No. 82.)
23.  (ER 21, 321.)
24.  (District Ct Tr. at 9-10 (4/18/16).)

11
The exact number isn’t clear. A review by the National Center for Missing and Exploited Children identified 22 files. An additional 70 or so alleged child pornography files were identified by non-expert agents.25
The evidence at trial showed that the files date to 2005, when numerous people had access to Gartenlaub’s computer.26 No one knows who initially downloaded the files, or to what hard drive, or on to what computer initially.27 No new files were added after 2005, nor is there any definitive evidence that any of these files were opened until the FBI opened them in 2014.28The child pornography files were copied—along with tens of thousands of other files in an enormous folder structure—to three other of Gartenlaub’s hard drives. The files’ presence on four hard drives is consistent with someone copying the entire contents of an old hard drive to a newly purchased hard drive. No evidence, such as log files, screen shots, cached data, or chat logs of Mr. Gartenlaub ever visiting any sites related to child pornography exists. Likewise, there’s no evidence or testimony of any type that Gartenlaub groomed, solicited, or had sex with, minors. There is no evidence of the type that one would expect to find related to someone who collects child pornography.
25.  (See, e.g., District Ct. Tr. at 72, 92-94 (12/4/15).)
26.  (See ARB at 1-8.); (District Ct. Tr. at 403-05, 412-16, 421-23 (12/9/15).)
27.  (See ARB at 1.); (ER 193-95, 217)
28.  (See AOB at 8.); (ER 194-95, 199-200.); (See generally ER 193-230 (cross-examination of government computer forensic expert Bruce Pixley).)

12
As the District Court stated at sentencing, this is a “one-of-a-kind” child pornography case.29 The court noted the absence of evidence that Gartenlaub downloaded the child pornography files, the lack of evidence that the collection was ever added to from 2005 until the FBI seized it in 2014, and the lack of evidence he ever opened those files.30
Verdict
The jury found Gartenlaub guilty on both counts. The District Court dismissed the receipt count (Count 1) as multiplicitous.31 On August 29, 2016, the court sentenced Gartenlaub to 41 months imprisonment and $3,430 in restitution.32 The District Court, and the Ninth Circuit, denied Gartenlaub’s motion for bail pending appeal. On February 14, 2017, he self-surrendered into custody. He currently is out on supervised release.33
Ninth Circuit Appeal
On appeal to the Ninth Circuit, Gartenlaub sought review of:
1. The District Court’s order denying his motion for judgment of acquittal34
29.  (District Ct. Tr. at 7 (8/29/16).)
30.  (District Ct. Tr. at 5-7 (8/29/16).)
31.  (District Ct. Dkt. No. 210.)
32.  (ER 1.)
33.  (District Ct. Dkt. No. 247.)
34.  (ER 8.)

13
2. The District Court’s order finding that the government’s secret FISA application established probable cause to believe that Gartenlaub was an agent of a foreign power35
3. The District Court’s refusal to order a Franks hearing36 and,
4. The District Court’s order denying Gartenlaub’s motion for disclosure of the government’s FISA application, and the Foreign Intelligence Surveillance Court’s order authorizing the search of Gartenlaub’s home, computers and hard drive.37 Gartenlaub’s trial counsel didn’t raise the issue concerning the scope of the government’s search and seizure under the Foreign Intelligence Surveillance Court Order; thus the Ninth Circuit reviewed the issue only for plain error.38
On October 2, 2018, the Ninth Circuit affirmed the District Court’s judgment. On December 7, 2018, the Ninth Circuit, in an unpublished opinion, denied Gartenlaub’s petition for rehearing en banc.39
35.  (ER 23-24, 28.)
36.  (ER 25, 29-30.)
37.  (ER 25-28.)
38.  (App. at 3a.)
39.  (United States v. Keith Preston Gartenlaub, No. 16-50339 (Appeal Dkt. No. 96))

14
REASONS FOR GRANTING THE PETITION
This Court has never reviewed the relationship between the Fourth, Fifth, and Sixth Amendments’ fundamental criminal procedure protections and the Foreign Intelligence Surveillance Act (“FISA”). The Court has only heard one FISA case, involving the NSA’s bulk collection of phone metadata under FISA.
In Clapper v. Amnesty International, this Court reversed the Second Circuit’s holding that the plaintiffs’ had standing to challenge the constitutionality of FISA’s surveillance provisions targeting foreigners.40 Standing is not an issue here because this is a criminal case. The core issue here is whether the government can use secret FISA investigations and search warrants to prosecute regular, non-national security crimes, thereby bypassing, in the name of national security, the Constitution’s core criminal procedural guarantees.41
As this Court has long recognized, the primary purpose of the Fourth Amendment is to “secure the privacies of life against arbitrary power . . . and relatedly, that a central aim of the Framers was to place obstacles in the way of a too permeating police surveillance.”42 Gartenlaub’s case shows how, in the talismanic name of national security, FISA and the Foreign Intelligence Surveillance Court are contrary to this primary purpose.
40.  See Clapper v. Amnesty Intern. USA, 568 U.S. 398 (2013) (holding plaintiffs lacked standing to challenge the NSA’s warrantless surveillance of U.S. citizens.)
41.  “Regular crimes” refers to non-national security crimes.
42.  Carpenter v. United States, 138 S. Ct. 2206, 2213–14 (2018) (citations and internal quotation marks omitted).

15
The government’s use of the fruits of a secret FISA search warrant to prosecute an unrelated regular crime, as happened here, is a recipe for governmental abuse. In the 33 years between 1979 and 2012, the Foreign Intelligence Surveillance Court denied only 11 secret FISA applications and granted the rest. The Foreign Intelligence Surveillance Court has a 99.97% approval rating for warrant applications.43
Gartenlaub’s case demonstrates how easy it is to bypass the Constitution’s criminal procedure guarantees by getting a secret FISA search warrant and using it to prosecute regular crimes. And it is impossible for a criminal defendant to challenge a secret FISA warrant because the defendant cannot access any of the information underlying the FISA warrant due to its secrecy. This thwarts a criminal defendant’s Due Process right to test the government’s case in adversarial proceedings. For these reasons alone the Court should grant certiorari to clarify the use of non-responsive FISA evidence in regular criminal proceedings.
FISA contradicts the primary purpose of the Bill of Rights criminal procedure amendments – the Fourth, Fifth, and Sixth – in the name of national security. The primary purpose of curtailing arbitrary police power and pervasive government surveillance of citizens.44 Using
43.  See Conor Clarke, Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp? 66 Stan. L. Rev. Online 125, 125 (2014); see also, Fed’n Am. Scientists, Foreign Intelligence Surveillance Act, available at https://www.fas.org/irp/agency/doj/ fisa (last visited Mar. 06, 2019) (collecting the Foreign Intelligence Surveillance Court’s annual reports to Congress).)
44.  Carpenter, 138 S. Ct. at 2214.

16
FISA, the government can use national security concerns to override these purposes. This is a new phenomenon.
National security concerns existed at the time of the writing of the Bill of Rights, just as they exist now. The Constitution’s criminal procedure rights are older than the Republic, with Due Process dating back to the Magna Carta. They are nothing new.
What is new is the emergence in 1978 of FISA and the Foreign Intelligence Surveillance Court. They exhibit curious features relative to our legal traditions.
For instance, despite its awesome power to order secret surveillance and searches of U.S. citizens, the secret, ex parte Foreign Intelligence Surveillance Court isn’t a normal Article III court, if it is an Article III court at all. The court doesn’t hear any cases or controversies, and appears to have no adversarial proceedings.45 And it has a feature shared only by this Court - it is unchallengeable for a criminal defendant.
Another curiosity is the Foreign Intelligence Surveillance Court’s infallibility. FISA provides for disclosure of Foreign Intelligence Surveillance Court applications and orders to defendants. 46 But, in the 41-
45.  See U.S. Constitution, Art. III, § 2 (promulgating the judicial power of the U.S.).
46.  50 U.S.C. § 1806(f) (“In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”)

17
year history of the Foreign Intelligence Surveillance Court that’s never happened. Recently, some of Carter Page’s FISA materials were released in redacted form, but that was an exceptional circumstance in which the FBI responded to congressional and political pressure.47 But the fact remains that no defendant has ever been able to subject their case’s FISA application and materials to investigation and adversarial testing at trial. This doesn’t seem right, because no one bats 1000.
Gartenlaub’s case is an example of how the government can abuse a national security investigation under FISA to prosecute unrelated non-national security crimes. Because of this risk, the government should not be permitted to use secret national security warrants to prosecute regular crimes if it won’t submit those warrants and supporting materials to investigation and the adversarial process the criminal procedure amendments require. This Court should grant certiorari to analyze and clarify the scope of the 1978 FISA’s encroachment upon the fundamental, centuries old, criminal procedure protections of the Fourth, Fifth, and Sixth Amendments.
I. The Court Should Grant Certiorari Because the FISA Search Warrant in this Case is a General Warrant
The Framers despised general warrants:
47.  See, e.g., Charlie Savage, Carter Page FISA Documents are Released by Justice Department, N.Y. Times, July 21, 2018, available at https://www.nytimes.com/2018/07/21/us/politics/ carter-page-fisa.html

18
Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.” Writs of assistance were despised, as they gave customs officials unlimited authority to search where they wished for anything imported in violation of tax laws. James Otis denounced writs of assistance as “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” because they placed “the liberty of every man in the hands of every petty officer.” The use of writs of assistance birthed the movement toward independence. “Then and there,” said John Adams, “then and there 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.” 48
This Court has never held that FISA warrants are an exception to the Fourth Amendment’s strict prohibition on general warrants. The search of Gartenlaub’s hard drives has the hallmarks of a general warrant. There was no practical limitation to it. The government rummaged
48.  Payton v. New York, 445 U.S. 573, 584, 639 n. 21 (1980) (quoting Boyd v. United States, 116 U.S. 616 (1886); Stanford v. Texas, 379 U.S. 476, 481-82 (1965)); see also Riley v. California, 573 U.S. 373, 403, (2014) “(Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “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.”).

19
through every file on his hard drives. There were no date range limitations, key word searching, taint teams, or other routine procedures used to limit a computer search. The question isn’t: Why is the search of Gartenlaub’s hard drives a general warrant? It’s: Why isn’t it? The government’s answer is “national security.”
But national security is a limitation on the search of Gartenlaub’s hard drives only in name. That’s why the Ninth Circuit’s decision ignores the Fourth Amendment’s particularity clause and focuses on probable cause. There was no particularity to the government’s FISA search, so there was nothing to discuss.
By invoking national security to justify its search, the government is essentially using a limitation that FISA imposes on surveillance and searches - that they’re bounded by national security concerns - and saying it’s a justification for unbounded searching. Viewed this way, the government’s justification begs the question. National Security as a limiting principal for searches becomes national security as an unlimiting principal for searches.
But FISA is meant to limit secret national security searches to situations where there’s probable cause to think that an agent of a foreign power is committing a national security crime.49 It’s meant to limit the government’s search powers, not expand them. The Ninth Circuit skirts this issue when denying Gartenlaub’s appeal:
The idea that the government can decide that someone is a foreign agent based on secret
49.  (App. at 24a; 50 U.S.C. § 1805(a)(2); See also United States v. Muhtorov, 187 F. Supp. 3d 1240 (D. Colo. 2015).)

20
information; on that basis obtain computers containing “[t]he sum of [that] individual’s private life,” Riley v. California, 134 S.Ct. 2473, 2489 (2014); and then prosecute that individual for completely unrelated crimes discovered as a result of rummaging through that computer comes perilously close to the exact abuses against which the Fourth Amendment was designed to protect.50
Gartenlaub’s case doesn’t “come perilously close” to the Fourth Amendment’s protections, it’s the exact fact pattern the Fourth Amendment prohibits. The Ninth Circuit offers no explanation for why we’re just “perilously” close to a Fourth Amendment violation rather than right in the middle of one. Gartenlaub’s case has the earmarks of potential violations of the Fourth Amendment Probable Cause and Particularity clauses:
1. A secret, unlimited government search
2. Executed under a secret national security warrant, based on the probable cause that Gartenlaub is the agent of a foreign power
3. That turns up no evidence that Gartenlaub is a foreign agent
4. But does turn up evidence of an unrelated nonnational security crime
50.  (App. at 4a. (United States v. Gartenlaub, No. 16-50339, 2018 WL 4761630, at *1 (9th Cir. Oct. 2, 2018) (Appeal Dkt. 94.).)

21
5. Which then is used as probable cause for regular Rule 41 search warrants,
6. Resulting in Gartenlaub’s conviction for the unrelated, non-national security crime.
One is left to wonder how there could be probable cause for the FISA warrant when a methodical, months long rummaging through all of the files on Gartenlaub’s hard drives turned up no evidence he was a spy.
FISA warrants do enjoy a degree of flexibility that normal regular criminal warrants do not possess.51 But precisely because this flexibility is limited to matters of national security. And the fact that FISA searches are secret, easy to abuse, and prone to turning into general warrants, argue for more stringent review of probable cause determinations for FISA warrants rather than the lax ones. FISA warrants are only appropriate in particular circumstances, and the Fourth Amendment limits the scope of FISA. Courts recognize the government’s interest in speed, stealth, and secrecy in surveillance in national security investigations.52 But FISA doesn’t permit searches for evidence of regular crimes.53 FISA is not a license for the government to conduct fishing expeditions into the lives and data of private individuals.
51.  (See BAC at 7-8.)
52.  United States v. Troung Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980).
53.  See 50 U.S.C. § 1804(a)(3)(a) (requiring that the applicant for a Foreign Intelligence Surveillance Court warrant have a justified belief that “the target of the electronic surveillance is a foreign power or an agent of a foreign power . . . .”).

22
The Ninth Circuit doesn’t discuss the Fourth Amendment’s particularity clause in analyzing Gartenlaub’s secret FISA search. The Ninth Circuit only says its ex parte, in camera review, with the helpful presence of the government, supported the Foreign Intelligence Surveillance Court’s probable cause determination.54 But analyzing probable cause is just one part of the general warrant analysis. The analysis has to include the clause that specifically targets general warrants: the Particularity Clause.
The Fourth Amendment’s Probable Cause Clause and Particularity Clause are two logically, albeit interrelated, distinct clauses. A warrant can be supported by probable cause and still violate the Particularity Clause:
To satisfy the demands of the Warrant Clause, a warrant must comply with two related but distinct rules. First, it must describe the place to be searched or things to be seized with sufficient particularity, taking account of “the circumstances of the case and the types of items involved. Second, it must be no broader than the probable cause on which it is based. The particularity rule and the probable cause rule serve a common purpose: to protect privacy by prohibiting a general, exploratory rummaging in a person’s belongings. Although the two rules serve the same ultimate purpose, they achieve the purpose in distinct ways. 55
54.  (Id.)
55.  United States v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1990) (citations omitted).

23
There is good reason to think the FISA warrant at issue here lacked particularity. The government admits in its Opposition Brief that there was no practical limitation to the FISA warrant, and that it could search each and every file on Gartenlaub’s computer.56 The government makes no mention that it ever placed any of the recognized, standard limitations for digital searches like date limitations, key word searching, or taint teams, on its search of Gartenlaub’s digital storage devices. It just asserts it could search everything it wanted to, and it did so.
This Court should grant certiorari to prevent the government from using national security pretexts to make an end run around the Fourth Amendment’s prohibitions on general warrants.
II. The Court Should Grant Certiorari to Impose Use Restrictions on Non-Responsive Evidence of NonNational Security Crimes Obtained Through FISA Computer Searches
Computer searches are especially prone to turning into rummaging that amounts to a general warrant, and this Court, and others, have repeatedly expressed their concerns on this front.57 This has led courts and leading
56.  (See GB at 52.)
57.  See, e.g., Riley v. California, 573 U.S. 373, 403 (2014); United States v. Ganias, 824 F.3d 199 (2nd Cir 2016); United States v. Richards, 659 F.3d 527 (6th Cir. 2011); United States v. Comprehensive Drug Testing, Inc., 621 F. 3d 1162 (9th Cir. 2010); United States v. Mann, 592 F.3d 779 (7th Cir 2010); United States v. Carey, 172 F.3d 1268 (10th Cir 1999); United States v. Tamura,

24
computer law scholars to propose use restrictions upon digital information non-responsive to a search warrant.58 In the case of secret FISA evidence, these use restrictions would be on top of FISA’s required minimization techniques meant to limit the use of non-national security evidence.59 The Court should grant certiorari to consider these type of use restrictions on non-responsive evidence derived from FISA computer searches.
As this Court recently held in Carpenter, computer searches implicate two of the Framer’s core Fourth Amendment concerns: Securing “the privacies of life” against arbitrary police power and “plac[ing] obstacles in the way of a too permeating police surveillance.”60 The government rummaged through “the privacies” of Gartenlaub’s life when it examined every file in his hard drives.
Law enforcement is always alert to the broadest possible search methods. That’s part of their job. Invoking
694 F.2d 591, 595-96 (9th Cir. 1982); United States v. Jae Shik Kim, 103 F. Supp. 3d 32 (D.C. 2015); see also, United States v. Perez, 712 Fed. Appx. 136 (3rd Cir 2017); (BAC at 13-22).
58.  See, id; Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Texas Tech. L. Rev. 1, at 18 (2015).
59.  (App. at 45a-46a, (50 U.S.C. §§ 1801(h) and 1821(4).))
60.  Carpenter v. United States, 138 S. Ct. 2206, 2213–14, (2018) (citing Boyd v. United States, 116 U.S. 616, 630, (1886) and United States v. Di Re, 332 U.S. 581, 595 (1948)); see also Riley v. California, 573 U.S. 373, 395-96, (2014) (“An Internet search and browsing history . . . could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.”).

25
national security to search for evidence of a regular crime is a tempting and easy way to get around the Fourth, Fifth, and Sixth Amendments.
The problem of a computer search turning into a general warrant is more acute with a FISA case because the warrants aren’t subject to adversarial review. This practically means that the government’s actions aren’t subject to the defendant’s or the publics review. This Court should grant certiorari to impose use restrictions on evidence of non-national security regular crimes discovered during the execution of a secret, general FISA warrant, to prevent government abuse.
III. The Court Should Grant Certiorari to Determine Whether the District Court’s Denying Gartenlaub a Franks Hearing on the FISA Warrant Requires Suppression of the Fruits of that Warrant
The Fourth Amendment requires all warrants to issue only on probable cause.61 FISA limits this requirement further, mandating that FISA warrants only issue upon the Foreign Intelligence Surveillance Court’s finding of probable cause that someone is an agent of a foreign power.62 Presumably, the government’s application for a FISA warrant argued that Gartenlaub was spying by sending China plans for the U.S. military’s C-17 cargo plane. But skepticism is warranted here because there’s no evidence in the public record to support it.
61.  U.S. Const. Amend. IV (1789).
62.  (App. at 24a, (50 U.S.C. § 1805(a)(2).)).

26
Gartenlaub has never been charged with a national security crime. The original investigation launched during the same period of other false FISA investigations under similar national security pretexts. And it started with a whimper – when an FBI Agent read a magazine article, not with a bang from some dramatic event. The search warrant that resulted from the FBI’s online reading turned up nothing after it was executed on the Gartenlaubs’ emails. Neither did the FISA search, or it presumably would have led to a national security prosecution.
The defense, and the public, will never know. We must trust that the national security matters involved are so important that they eliminate the constitutional rights to public adversarial challenge. The defense, and the public, must trust that the secret, ex parte probable cause determinations made after secret conference between the government and the judiciary, at every step in this process, was free from confirmation bias, or other errors that the defendant could argue to the court or jury.63
This is not consistent with the underlying philosophy of the Bill of Rights, nor is it consistent with the adversarial foundation of our criminal justice system. Both are skeptical of government and rely on the adversarial system, as outlined in the Fourth, Fifth, and Sixth Amendments, to test the government. Both are skeptical of ex parte evidentiary determinations.
Towards the end of the recording of the Ninth Circuit oral arguments in this case, you can hear the court confirm
63.  See Adam Benforado, Unfair: The New Science of Criminal Injustice (Broadway Books 2015) (discussing confirmation bias and criminal evidence).

27
its upcoming, ex parte, meeting with the government to secretly review the FISA materials.64 The ex parte review of search warrants, to say nothing of secret search warrants, is precisely what the Framers sought to limit when they drafted the Fourth Amendment’s warrant clause. The Framers were seeking to minimize ex parte search warrants issued by the judiciary and government when they wrote the Fourth Amendment—not maximize their use—because of the abuse they suffered under such warrants. The history of the Foreign Intelligence Surveillance Court is validating the Framer’s concerns on this front.65 To study the drafting and intent of the Fourth Amendment is to learn how wary the Framers were of ex parte search warrants.
The Ninth Circuit’s decision analyzes the issues in Gartenlaub’s case solely from the perspective of probable cause. But the probable cause analysis can’t be properly evaluated because the opinion provides no reasoning or factual basis to evaluate whether the execution of the warrant was broader than that justified by its probable cause.66 An adversarial proceeding would have solved that issue.
64.  Oral Argument, United States v. Keith Preston Gartenlaub, No. 16-50339 (9th Cir., Dec. 4, 2017), available at https://www.ca9. uscourts.gov/media/view.php?pk_id=0000031669.
65.  See Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles, 1-45, 13 (Yale 1997) (“Warrants, then, were friends of the searcher, not the searched. They had to be limited; otherwise, central officers on the government payroll in ex parte proceedings would usurp the role of the good old jury in striking the proper balance between government and citizen after hearing lawyers on both sides.”).
66.  See Weber, 923 F.2d at 1345 (holding that “a blunderbuss warrant [in a CP case] was unjustified.”).

28
That Foreign Intelligence Surveillance Court probable cause determinations for FISA warrants aren’t subject to a defendant’s adversarial challenge raises the issue of whether evidence outside the scope of the probable cause for a FISA search, discovered as part of the FISA search, should be suppressed when it’s used in an unrelated nonnational security prosecution. The Court should grant certiorari to review the issue.
IV. The Court Should Grant Certiorari Because In the 41 Year History of FISA No Defendant Has Ever Had Access to Their Case’s Secret FISA Application and this Violates the Fourth, Fifth, and Sixth Amendments
Even though FISA provides for disclosing applications to defendants, that’s never happened in 41 years.67 The case law is opaque as to precisely why, because most of the facts are secret and thus aren’t in the decisions. This is harmful to stare decisis. Because if you don’t know the underlying facts to a decision in our common law system, then you don’t really know what’s been decided. And you cannot use that case to argue for your position, or against your adversaries.
FISA is distorting our adversarial, precedential, and common law system in subtle ways. For instance, in its denial of Gartenlaub’s appeal, the Ninth Circuit stated
67.  With the recent exception of Carter Page’s FISA materials. But that was outside the context of a criminal trial. See, Jeremy Herb and David Shortell, FBI Releases Carter Page Surveillance Warrant Documents, CNN, July 23, 2018, available at https://w w w.cnn.com/2018/07/21/politics/f bi-carter-pagesurveillance-warrant/index.html

29
that “[n]o controlling authority dictates the conclusion that the government’s [FISA] search and subsequent use of FISA-derived materials in a non-national security prosecution violates the Fourth Amendment, such that the district court’s failure to follow it was plain error.”68 But how is a defendant supposed to find case law for that proposition when the case law is factually opaque? Judicial decisions based on secret, undisclosed fact finding are inimical to stare decisis and the truth finding function of our adversarial system.
Because facts in FISA cases are murky, it’s hard to tell how many cases involve computer searches like in Gartenlaub’s. None are readily apparent. 69 Most reported FISA cases involving non-national security prosecutions seem to involve incidental surveillance of the regular crime as it happened, or a non-national security crime like wire fraud or money laundering, that was directly related to the national security investigation.
68.  (App. at 3a.) (United States v. Gartenlaub, No. 16-50339, 2018 WL 4761630, at *1 (9th Cir. Oct. 2, 2018).)
69.  See United States v. Chi Ping Ho, No. 17 CR. 779 (LAP), 2018 WL 5777025, at *8 (S.D.N.Y. Nov. 2, 2018) (denying suppression motion of evidence derived from FISA authorized physical search without detailing any facts); United States v. Hawamda, No. Crim. 89-56-A, 1989 WL 235836, at *2 (E.D. Va. Apr. 17, 1989) (requiring that those requesting information obtained from FISA warrants be a target of the surveillance); see also Matter of Kevork, 788 F.2d 566, 570 (9th Cir. 1986) (holding FISA did not bar use of surveillance evidence in foreign criminal prosecution); United States v. Muhtorov, 187 F. Supp. 3d 1240, 1250 (10th Cir) (stating the purpose of the surveillance cannot be a ruse); United States v. Johnson, 952 F.2d 565, 572 (FISA cannot be used as a run around to the Fourth Amendment’s prohibition of warrantless searches); United States v. Troung Dinh Hung, 629 F.2d 908, 916 (4th Cir. 1980).

30
The 27 year old FISA case of United States v. Isa appears to be one of the few instances where a prosecutor used the non-responsive fruits of a FISA search for an unrelated regular criminal prosecution.70 Isa upheld the use of a FISA surveillance recording, in a state prosecution, of the surveillance target’s murder of his 16-year-old daughter.71 During the course of the surveillance the murder occurred and was incidentally recorded. Unlike Gartenlaub’s case, the evidence was not obtained via the methodical rummaging over the course of months through the target’s computers.
Gartenlaub couldn’t access the secret FISA application and materials pre-trial and had no way to forensically authenticate the government’s search. FBI forensics labs have a documented history of falsifying evidence and testimony spanning decades.72 And the government has withheld Brady evidence in cases.73
70.  United States v. Isa, 923 F.2d 1300 (8th Cir. 1991)
71.  Id. at 1302.
72.  See, e.g., Spencer S. Hsu, FBI Admits Flaws in Hair Analysis Over Decades Wash. Post, April 18, 2015, available at: https://www.washingtonpost.com/local/crime/fbioverstated-forensic-hair-matches-in-nearly-all-criminal-trialsfor-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_ story.html?noredirect=on&utm_term=.96fe7c98dfd4
73.  See, e.g., Anna Stolley Persky, A Cautionary Tale: The Ted Stevens Prosecution, DC Bar, Oct. 2009, available at: https:// w w w.dcba r.org / ba r-resou rces /publ ications / washing ton-law yer/ articles/october-2009-ted-stevens.cfm; Brady v. Maryland, 373 U.S. 83, 87 (1963).

31
The Court should grant certiorari to review how the District Court’s denying Gartenlaub access to the secret FISA application and materials impacts his fundamental criminal procedure rights under the Fourth, Fifth, and Sixth Amendments. And whether that merits suppression of the fruits of the FISA warrant.74
V. The Court Should Grant Certiorari Because FISA Contradicts our Republic’s Legal Traditions
In the 1630’s the infamous Star Chamber tried and convicted English Lawyer William Prynne. For the crime of “writing books and pamphlets,” Prynne’s “ears were first cut off by court order and . . . subsequently, by another court order, . . . his remaining ear stumps [were] gouged out while he was on a pillory.”75
The Foreign Intelligence Surveillance Court isn’t the Star Chamber. Yet. But the fact that even a mild comparison can be made should give pause. The Star Chamber was a secret, virtually infallible, inquisitorial English court that did the monarch’s bidding. 76 It too,
74.  See, e.g., Wong Sun v. United States, 371 U.S. 471 (1963) (holding that evidence obtained through the exploitation of an illegal search is fruit of the poisonous tree, which should be suppressed).
75.  Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction, 82 (Yale University Press 1998)
76.  See Jones v. Sec. & Exch. Comm’n, 298 U.S. 1, 28 (1936) (discussing the “ intolerable abuses of the Star Chamber, which brought that institution to an end at the hands of the Long Parliament in 1640”); United States v. Gecas, 120 F.3d 1419, 1446 (11th Cir. 1997) (discussing history of the Star Chamber in depth).

32
was held in the highest regard and deference by the judiciary. The King’s Bench held that “the Court of the Star Chamber was . . . one of the most high and honourable Courts of Justice . . . .”77 Notably, when the Long Parliament abolished the Star Chamber in 1641, it did so with the statute that enscribed the writ of habeas corpus into the law books for the first time. Habeas corpus, “the great writ” is the fundamental guarantor of our right to challenge government prosecution, and the Constitution’s only named privilege.78 It was no coincidence.
FISA and the Foreign Intelligence Surveillance Court contradict our Republic’s traditions. The Framers had ample opportunity and cause to establish secret national security courts in the early days of our Republic. Despite the threats to our country at the time, they chose not to.
George Washington was no stranger to national security threats and President of the Constitutional Convention. When the Framers drafted the Constitution the U.S. faced threats on all sides. Ten thousand British troops were still stationed on the Northwestern Frontier encouraging the Native Americans to engage in border warfare with the States. The Spanish controlled Florida and the mouth of the Mississippi. Shay’s Rebellion had just occurred, and our disgruntled European creditors were making rumblings of war over our unpaid Revolutionary
77.  William F. Duker, A Constitutional History of Habeas Corpus, 46-47 (Greenwood Press 1980) (quoting Chamber’s Case, 79 Eng. Rep. 746, 747 (K.B. 1630).)
78.  Duker, at 47; U.S. Const. Art. I, §9, cl. 2.

33
War debts. 79 George Washington knew better than anyone the risks our nation faced. Yet none of them instituted a secret court like Foreign Intelligence Surveillance Court. They would rightly view the Foreign Intelligence Surveillance Court, and FISA, with suspicion and concern.
Because they fought a revolution against secrecy, arbitrary government power, and government prying in our private lives. And they fixed these values in the criminal procedural protections of the Fourth, Fifth. and Sixth Amendments. The Constitution would never have passed without these protections. The States wouldn’t have ratified the Constitution if they hadn’t been promised the Bill of Rights and its criminal procedural guarantees.
FISA and the Foreign Intelligence Surveillance Court are newcomers to this tradition. It’s only in 1978, over 200 years after the founding of our nation and the multiple wars we’ve fought and threats we’ve faced, that a secret national security court emerges. The irony of FISA and the Foreign Intelligence Surveillance Court is that Congress created them to protect us from an internal threat, but only made that threat worse.
FISA came into being not as a response to any new external threat to our national security. Congress passed
79.  See, Joseph J. Ellis, American Dialogue: The Founders and Us, 194 (Alfred A. Knopf 2018); Tor Ekeland, Suspending Habeas Corpus: Article I, Section 9, Clause 2, of the United States Constitution and the War on Terror, 74 Fordham L. Rev. 1475, 1482 (2005 (“On May 14, 1787, when the Federal Constitutional Convention assembled, the United States faced substantial threats to its security on all sides.”), available at https://ir.lawnet.fordham. edu/cgi/viewcontent.cgi?article=4129&context=flr.

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FISA because of the FBI’s and CIA’s illegal spying and actions against U.S. citizens that the courts failed to address. The Church Committee Report, which led to FISA’s passage details this in depth.80 But now, as Gartenlaub’s case demonstrates, history is repeating itself and the FISA is slowly eroding the fundamental protections of the Constitution’s criminal procedure guarantees.
This Court should grant certiorari to strike the right balance between the Fourth, Fifth, and Sixth Amendments’ criminal procedure protections and our national security interests. And to keep those national security interests from encroaching on our Liberty.
80.  See S. Rep. No. 94-755, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, at 11 (April 26, 1976) (“[T]he Committee’s investigation has uncovered a host of serious legal and constitutional issues relating to [domestic] intelligence activity and it is strong proof of the need for reform to note that scarcely any of those issues have been addressed in the courts.”), available at https://upload. w i k i me d i a .or g / w i k ip e d i a /com mon s / 7/ 79/Chu r ch _Com m it t e e _ report_%28Book_I%2C_Foreign_and_Military_Intelligence%29. pdf; see also, Elizabeth Goitein and Faiza Patel, What Went Wrong With the FISA Court, Brennan Center for Justice (2015), available at https://www.brennancenter.org/sites/default/files/publications/ W hat _Went _%20Wrong _With_The_FISA _Cour t.pdf.

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CONCLUSION
This case shows how easily the government can bypass the fundamental criminal procedure protections of the Fourth, Fifth, and Sixth Amendments by invoking national security under FISA. This Court should grant certiorari to review the proper balance between the fundamental criminal procedure protections of the Fourth, Fifth, and Sixth Amendments, FISA, and the Foreign Intelligence Surveillance Court, and to reverse Gartenlaub’s conviction.
Respectfully submitted,
Tor Ekeland Counsel of Record
Mark Jaffe Lydia Fields Tor Ekeland Law PLLC 195 Montague Street, 14th Floor Brooklyn, NY 11201 (718) 737-7264 tor@torekeland.com
Counsel for Petitioner

APPENDIX

1a
APPENDIX A —AMppEeMndOixRAANDUM OF THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT, FILED OCTOBER 2, 2018
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Docket No. 16-50339
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH PRESTON GARTENLAUB, AKA KEITH PRESON GARTENLAUB,
Defendant-Appellant.
December 4, 2017, Argued and Submitted, Pasadena, California;
October 2, 2018, Filed
Appeal from the United States District Court for the Central District of California. D.C. No. 8:14-cr-00173CAS-1. Christina A. Snyder, District Judge, Presiding.

2a
Appendix A
MEMORANDUM*
Before: WARDLAW and GOULD, Circuit Judges, and PIERSOL,** District Judge.
Keith Gartenlaub appeals his conviction for knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1
1. There was sufficient evidence to sustain Gartenlaub’s conviction for knowing possession of child pornography. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime—including knowledge—beyond a reasonable doubt. The government presented sufficient evidence that Gartenlaub knew the child pornography was present on his computers. See 18 U.S.C. § 2252A(a)(5)(B) (requiring that the defendant must “knowingly possess[] . . . any . . . computer disk, or any other material that contains an image of child pornography that has been . . . transported using any means or facility of interstate or foreign commerce . . . including by computer”).
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
** The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota, sitting by designation.
1.  The government’s motion to file an oversized brief, Dkt 51, is GRANTED.

3a
Appendix A
The government demonstrated that an individual intentionally downloaded child pornography, copied it onto Gartenlaub’s hard drives, and organized and reorganized the child pornography into folders reflecting the content of the videos. See 18 U.S.C. § 2252A(a)(5)(B). A rational jury could have concluded beyond a reasonable doubt that the user of the password-protected “Keith” account opened a folder containing obviously child-pornographic filenames and then copied those files onto a new computer, that “Keith” knowingly downloaded and organized the child pornography collection in the first place, and that “Keith” was Keith Gartenlaub himself. See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc); United States v. Willard, 230 F.3d 1093, 1095 (9th Cir. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
2. The district court did not commit plain error by failing to suppress the evidence from Gartenlaub’s computer as inadmissible for violating the Fourth Amendment.2
No controlling authority dictates the conclusion that the government’s Foreign Intelligence Surveillance Act (“FISA”) search and subsequent use of FISA-derived materials in a non-national security prosecution violates the Fourth Amendment, such that the district court’s failure to follow it was plain error. See United States v.
2.  Plain error review is the appropriate standard because Gartenlaub did not assert the Fourth Amendment argument predicated on alleged misuse of the FISA warrant before the district court.

4a
Appendix A
Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011), as amended (Nov. 16, 2011). Our decision in United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (en banc), abrogation recognized by Demaree v. Pederson, 887 F.3d 870 (9th Cir. 2018) (per curiam), is inapposite; it did not decide the question presented by this case and, in fact, addressed no national security concerns particular to the FISA context.
The idea that the government can decide that someone is a foreign agent based on secret information; on that basis obtain computers containing “[t]he sum of [that] individual’s private life,” Riley v. California, 134 S. Ct. 2473, 2489, 189 L. Ed. 2d 430 (2014); and then prosecute that individual for completely unrelated crimes discovered as a result of rummaging through that computer comes perilously close to the exact abuses against which the Fourth Amendment was designed to protect.3 However, the district court did not commit plain error by concluding otherwise.
3. Based upon our independent review of the classified record evidence, we conclude that the FISA warrant was supported by probable cause. The FISA application and supporting materials demonstrated probable cause to believe that Gartenlaub was an agent of a foreign power when the FISA order was issued. See 50 U.S.C. §§ 1801(b), 1821(1), 1824(a)(2).4 The district court did not
3.  We thank amici curiae, Electronic Frontier Foundation and American Civil Liberties Union, for their thought-provoking briefing.
4.  Although there is a split in the circuits as to what deference to afford a district court’s determination that a FISA order was based

5a
Appendix A
err in denying Gartenlaub a Franks hearing. The district court did not err in “finding that the government did not intentionally or recklessly make false statements.” United States v. Christie, 825 F.3d 1048, 1069 (9th Cir. 2016) (citation omitted); see Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
4. We have conducted an in camera review of the underlying FISA materials. We conclude that the disclosure of the FISA materials to Gartenlaub was not “necessary to make an accurate determination of the legality of the search.” 50 U.S.C. § 1825(g); see also United States v. Ott, 827 F.2d 473, 476-77 (9th Cir. 1987) (finding “no indications of possible misrepresentation of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of non-foreign intelligence information, or any other factors that would indicate a need for disclosure” (internal quotation marks omitted)). In point of fact, disclosure was not necessary even under a less rigorous standard than that proposed by the government. As well, the nondisclosure violated neither Gartenlaub’s due process nor Brady rights. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Ott, 827 F.2d at 476-77.
AFFIRMED.
on probable cause, we do not resolve here which level of deference is appropriate as we are convinced probable cause existed under either a de novo or an abuse of discretion standard of review. See United States v. Turner, 840 F.3d 336, 340 (7th Cir. 2016) (applying a de novo standard of review); United States v. Hassan, 742 F.3d 104, 139 n.29 (4th Cir. 2014) (noting that the Fourth Circuit applies a de novo standard although the Fifth and Second Circuits apply a more deferential standard).

6a
APPENDIX B — JUADpGpeMnEdiNx TBAND PROBATION/ COMMITMENT ORDER OF THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT
OF CALIFORNIA, FILED SEPTEMBER 6, 2016 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA vs.
Defendant KEITH PRESTON GARTENLAUB
akas: N/A
Docket No. SACR14-173-CAS
Social Security No. 9 4 2 9 (Last 4 digits)
JUDGMENT AND PROBATION/ COMMITMENT ORDER
In the presence of the attorney for the government, the defendant appeared in person on this date. MONTH 08 DAY 29 YEAR 2016

COUNSEL

Mark Werksman, Retained (Name of Counsel)

PLEA

 GUILTY, and the court being satisfied that there is a factual basis for the plea.  NOLO CONTENDERE  NOT GUILTY

7a Appendix B

There being a finding/verdict of GUILTY, defendant has been convicted as charged of the offense(s) of:

FINDING

Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), 2252a(b)(2), as charged in Count 2 of the Indictment.

The Court asked whether there was any reason why judgment should not be pronounced. Because no sufficient cause to the contrary was shown, or appeared to the Court, the Court adjudged the JUDGMENT defendant guilty as charged and convicted AND PROB/ and ordered that:

COMM ORDER

Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant is hereby committed to Count 2 of the 2-Count Indictment to the custody of the Bureau of Prisons to be imprisoned for a term of: FORTY-ONE (41) MONTHS.

It is ordered that the defendant shall pay to the United States a special assessment of $100.00, which is due immediately. Any unpaid balance shall be due during the period of imprisonment, at the rate of not less than $25.00 per quarter, and pursuant to the Bureau of Prisons’ Inmate Financial Responsibility Program.

The defendant shall comply with General Order No. 01-05.

8a
Appendix B
All fines are waived as it is found that such sanction would place an undue burden on the defendant’s dependent.
It is ordered that the defendant shall pay restitution in the total amount of $3,430.00, pursuant to 18 U.S.C. § 3663A.
The amount of restitution ordered shall be paid to the victim as set forth in a separate victim list prepared by the probation office which this Court adopts and which reflects the Court’s determination of the amount of restitution due to each victim. The victim list, which shall be forwarded to the fiscal section of the clerk’s office, shall remain confidential to protect the privacy interests of the victim. Restitution shall be due during the period of imprisonment, at the rate of not less than $25.00 per quarter, and pursuant to the Bureau of Prisons’ Inmate Financial Responsibility Program. If any amount of the restitution remains unpaid after release from custody, nominal monthly payments of at least $100.00 or ten percent of the defendant’s gross monthly income, whichever is greater, shall be made during the period of supervised release. These payments shall begin 30 days after the commencement of supervision. Nominal restitution payments are ordered as the Court finds that the defendant’s economic circumstances do not allow for either immediate or future payment of the amount ordered.
Pursuant to 18 U.S.C. § 3612(f)(3)(A), interest on the restitution ordered is waived because the defendant does not have the ability to pay interest. Payments may be subject to penalties for default and delinquency pursuant to 18 U.S.C. § 3612(g).

9a
Appendix B
Upon release from imprisonment, the defendant shall be placed on supervised release for a term of life under the following terms and conditions:
1. The defendant shall comply with the rules and regulations of the United States Probation Office, General Order 05-02, and General Order 01-05, including the three special conditions delineated in General Order 01-05;
2. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one (1) drug test within 15 days of release from imprisonment and at and at least two (2) periodic drug tests thereafter, not to exceed eight (8) tests per month, as directed by the Probation Officer;
3. As directed by the Probation Officer, the defendant shall pay all or part of the costs of the defendant’s mental health treatment to the aftercare contractors during the period of community supervision, pursuant to 18 U.S.C. § 3672. The defendant shall provide payment and proof of payment as directed by the Probation Officer;
4. During the period of community supervision, the defendant shall pay the special assessment in accordance with this judgment’s orders pertaining to such payment;
5. The defendant shall cooperate in the collection of a DNA sample from the defendant;

10a
Appendix B
6. The defendant shall possess and use only those computers and computer-related devices, screen user names, passwords, email accounts, and internet service providers (ISPs) that have been disclosed to the Probation Officer upon commencement of supervision. Any changes or additions are to be disclosed to the Probation Officer prior to the first use. Computers and computer-related devices include personal computers, personal data assistants (PDAs), internet appliances, electronic games, cellular telephones, and digital storage media, as well as their peripheral equipment, that can access, or can be modified to access, the internet, electronic bulletin boards, and other computers;
7. All computers, computer-related devices, and their peripheral equipment, used by the defendant shall be subject to search and seizure. This shall not apply to items used at the employment’s site, which are maintained and monitored by the employer;
8. The defendant shall comply with the rules and regulations of the Computer Monitoring Program. The defendant shall pay the cost of the Computer Monitoring Program, in an amount not to exceed $32.00 per month per device connected to the internet
9. The defendant shall register as a sex offender, and keep the registration current, in each jurisdiction where he resides, where he is an employee, and where he is a student, to the extent the registration procedures have been established in each jurisdiction.

11a
Appendix B
When registering for the first time, the defendant shall also register in the jurisdiction in which the conviction occurred if different from his jurisdiction of residence. The defendant shall provide proof of registration to the Probation Officer within three days of release from imprisonment;
10. The defendant shall participate in a psychological counseling or psychiatric treatment or a sex offender treatment program, as approved and directed by the Probation Officer. The defendant shall abide by all rules, requirements, and conditions of such program;
11. The defendant shall not view or possess any materials, including pictures, photographs, books, writings, drawings, videos, or video games depicting and/or describing “sexually explicit conduct”, as defined at 18 U.S.C. § 2256(2);
12. The defendant shall not view or possess any materials, including pictures, photographs, books, writings, drawings, videos, or video games depicting and/or describing child pornography, as defined at 18 U.S.C. § 2256(8). This condition does not prohibit the defendant from possessing materials solely because they are necessary to, and used for, a collateral attack, nor does it prohibit him from possessing materials prepared and used for the purposes of his Court-mandated sex offender treatment, when the defendant’s treatment provider or the probation officer has approved of his possession of the materials in advance;

12a
Appendix B
13. The defendant shall not own, use or have access to the services of any commercial mail-receiving agency, nor shall he open or maintain a post office box, without the prior written approval of the Probation Officer;
14. The defendant shall not frequent, or loiter, within 100 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18, unless the defendant receives written permission from the Probation Officer;
15. The defendant shall not associate or have verbal, written, telephonic, or electronic communication with any person under the age of 18, except: (a) in the presence of the parent or legal guardian of said minor; and (b) on the condition that the defendant notify said parent or legal guardian of his conviction in the instant offense. This provision does not encompass persons under the age of 18, such as waiters, cashiers, ticket vendors, etc., whom the defendant must interact with in order to obtain ordinary and usual commercial services;
16. The defendant shall not affiliate with, own, control, volunteer or be employed in any capacity by a business and/or organization that causes the defendant to regularly contact persons under the age of 18;
17. The defendant shall not affiliate with, own, control, or be employed in any capacity by a business whose principal product is the production or selling of

13a
Appendix B
materials depicting or describing “sexually explicit conduct,” as defined at 18 U.S.C. § 2256(2);
18. The defendant’s employment shall be approved by the Probation Officer, and any change in employment must be pre-approved by the Probation Officer. The defendant shall submit the name and address of the proposed employer to the Probation Officer at least ten days prior to any scheduled change; and
19. The defendant shall submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects to search at any time, with or without warrant, by any law enforcement or Probation Officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, and by any Probation Officer in the lawful discharge of the officer’s supervision function.
The Court authorizes the Probation Office to disclose the Presentence Report to the substance abuse treatment provider to facilitate the defendant’s treatment for narcotic addiction or drug dependency. Further redisclosure of the Presentence Report by the treatment provider is prohibited without the consent of the sentencing judge.
The Court further authorizes the Probation Officer to disclose the Presentence Report, and/or any previous mental health evaluations or reports, to the mental health treatment provider. The treatment provider may provide

14a
Appendix B
information (excluding the Presentence report), to State or local social service agencies (such as the State of California, Department of Social Service), for the purpose of the client’s rehabilitation. It is further ordered that the defendant surrender himself to the institution designated by the Bureau of Prisons at or before 12 noon, October 31, 2016. In the absence of such designation, the defendant shall report on or before the same date and time, to the United States Marshal located at United States District Court, 3470 Twelfth Street, Room G122, Riverside, CA 92501.
Defendant is informed of his right to appeal.
Bond is exonerated upon surrender.
The Court hereby recommends that defendant be designated to a facility in Southern California, or as close thereto as possible.
The Court further recommends that defendant be placed in the Bureau of Prisons 500-hour Drug and Alcohol Program, if eligible.
Defendant’s oral motion to remain on bond pending appeal is hereby denied.
In addition to the special conditions of supervision imposed above, it is hereby ordered that the Standard Conditions of Probation and Supervised Release within this judgment be imposed. The Court may change the conditions of supervision, reduce or extend the period of supervision,

15a

Appendix B
and at any time during the supervision period or within the maximum period permitted by law, may issue a warrant and revoke supervision for a violation occurring during the supervision period.

September 6, 2016 Date

/s/ Christina A. Snyder, U. S. District Judge

It is ordered that the Clerk deliver a copy of this Judgment and Probation/Commitment Order to the U.S. Marshal or other qualified officer.

Clerk, U.S. District Court

September 6, 2016 By

/s/

Filed Date		 C. Jeang, Deputy Clerk

16a
APPENDIX C —AOpRpeDnEdiRx OCF THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT, FILED DECEMBER 7, 2018
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 16-50339
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH PRESTON GARTENLAUB, AKA KEITH PRESON GARTENLAUB,
Defendant-Appellant.
D.C. No. 8:14-cr-00173-CAS-1 Central District of California, Santa Ana
December 7, 2018, Filed
ORDER
Before: WARDLAW and GOULD, Circuit Judges, and PIERSOL,* District Judge.
The panel has voted unanimously to deny the petition for panel rehearing. Judges Wardlaw and Gould vote to
*  The Honorable Lawrence L. Piersol, United States District Judge for the District of South Dakota, sitting by designation.

17a
Appendix C
deny the petition for rehearing en banc, and Judge Piersol so recommends.
The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petitions for rehearing en banc is DENIED.

18a
APPENDIX D —ARppEeLnEdiVxADNT STATUTORY PROVISIONS
50 U.S.C.A. § 1804
§ 1804. Applications for court orders
(a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include--
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the specific target of the electronic surveillance;
(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that--
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or

19a
Appendix D
is about to be used, by a foreign power or an agent of a foreign power;
(4) a statement of the proposed minimization procedures;
(5) a description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(6) a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official--
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and

20a
Appendix D
(E) including a statement of the basis for the certification that--
(i) the information sought is the type of foreign intelligence information designated; and
(ii) such information cannot reasonably be obtained by normal investigative techniques;
(7) a summary statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance;
(8) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; and
(9) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this subchapter should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter.

21a
Appendix D
(b) Additional affidavits or certifications
The Attorney General may require any other affidavit or certification from any other officer in connection with the application.
(c) Additional information
The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 1805 of this title.
(d) Personal review by Attorney General
(1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under subsection (a) of this section an application under that subsection for a target described in section 1801(b)(2) of this title.
(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in

22a
Appendix D
advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.
(2)(A) If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) of this section for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) of this section for purposes of making the application under this section.

23a
Appendix D
(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.

24a
Appendix D
50 U.S.C.A. § 1805
§ 1805. Issuance of order
(a) Necessary findings
Upon an application made pursuant to section 1804 of this title, the judge shall enter an ex parte order as requested or as modified approving the electronic surveillance if he finds that--
(1) the application has been made by a Federal officer and approved by the Attorney General;
(2) on the basis of the facts submitted by the applicant there is probable cause to believe that--
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power;
(3) the proposed minimization procedures meet the definition of minimization procedures under section 1801(h) of this title; and

25a
Appendix D
(4) the application which has been filed contains all statements and certifications required by section 1804 of this title and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1804(a)(7)(E) of this title and any other information furnished under section 1804(d) of this title.
(b) Determination of probable cause
In determining whether or not probable cause exists for purposes of an order under subsection (a)(2) of this section, a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.
(c) Specifications and directions of orders
(1) Specif﻿ications
An order approving an electronic surveillance under this section shall specify--
(A) the identity, if known, or a description of the specific target of the electronic surveillance identified or described in the application pursuant to section 1804(a)(3) of this title;
(B) the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known;

26a
Appendix D
(C) the type of information sought to be acquired and the type of communications or activities to be subjected to the surveillance;
(D) the means by which the electronic surveillance will be effected and whether physical entry will be used to effect the surveillance; and
(E) the period of time during which the electronic surveillance is approved.
(2) Directions
An order approving an electronic surveillance under this section shall direct--
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified communication or other common carrier, landlord, custodian, or other specified person, or in circumstances where the Court finds, based upon specific facts provided in the application, that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons, furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier, landlord, custodian, or other person is providing that target of electronic surveillance;

27a
Appendix D
(C) that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished that such person wishes to retain; and
(D) that the applicant compensate, at the prevailing rate, such carrier, landlord, custodian, or other person for furnishing such aid.
(3) Special directions for certain orders
An order approving an electronic surveillance under this section in circumstances where the nature and location of each of the facilities or places at which the surveillance will be directed is unknown shall direct the applicant to provide notice to the court within ten days after the date on which surveillance begins to be directed at any new facility or place, unless the court finds good cause to justify a longer period of up to 60 days, of--
(A) the nature and location of each new facility or place at which the electronic surveillance is directed;
(B) the facts and circumstances relied upon by the applicant to justify the applicant’s belief that each new facility or place at which the electronic surveillance is directed is or was being used, or is about to be used, by the target of the surveillance;

28a
Appendix D
(C) a statement of any proposed minimization procedures that differ from those contained in the original application or order, that may be necessitated by a change in the facility or place at which the electronic surveillance is directed; and
(D) the total number of electronic surveillances that have been or are being conducted under the authority of the order.
(d) Duration of order; extensions; review of circumstances under which information was acquired, retained or disseminated
(1) An order issued under this section may approve an electronic surveillance for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that (A) an order under this section shall approve an electronic surveillance targeted against a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title, for the period specified in the application or for one year, whichever is less, and (B) an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.
(2) Extensions of an order issued under this subchapter may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order, except that (A) an extension of an order under

29a
Appendix D
this chapter for a surveillance targeted against a foreign power, as defined in paragraph (5), (6), or (7) of section 1801(a) of this title, or against a foreign power as defined in section 1801(a)(4) of this title that is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no communication of any individual United States person will be acquired during the period, and (B) an extension of an order under this chapter for a surveillance targeted against an agent of a foreign power who is not a United States person may be for a period not to exceed 1 year.
(3) At or before the end of the period of time for which electronic surveillance is approved by an order or an extension, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(4) A denial of the application made under section 1804 of this title may be reviewed as provided in section 1803 of this title.
(e) Emergency orders
(1) Notwithstanding any other provision of this subchapter, the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General--

30a
Appendix D
(A) reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained;
(B) reasonably determines that the factual basis for the issuance of an order under this subchapter to approve such electronic surveillance exists;
(C) informs, either personally or through a designee, a judge having jurisdiction under section 1803 of this title at the time of such authorization that the decision has been made to employ emergency electronic surveillance; and
(D) makes an application in accordance with this subchapter to a judge having jurisdiction under section 1803 of this title as soon as practicable, but not later than 7 days after the Attorney General authorizes such surveillance.
(2) If the Attorney General authorizes the emergency employment of electronic surveillance under paragraph (1), the Attorney General shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after

31a
Appendix D
the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.
(5) In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the requirements of paragraph (5).
(f) Emergencies involving non-United States persons
(1) Notwithstanding any other provision of this chapter, the lawfully authorized targeting of a non-

32a
Appendix D
United States person previously believed to be located outside the United States for the acquisition of foreign intelligence information may continue for a period not to exceed 72 hours from the time that the non-United States person is reasonably believed to be located inside the United States and the acquisition is subject to this subchapter or to subchapter II of this chapter, provided that the head of an element of the intelligence community--
(A) reasonably determines that a lapse in the targeting of such non-United States person poses a threat of death or serious bodily harm to any person;
(B) promptly notifies the Attorney General of a determination under subparagraph (A); and
(C) requests, as soon as practicable, the employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to section 1824(e) of this title, as warranted.
(2) The authority under this subsection to continue the acquisition of foreign intelligence information is limited to a period not to exceed 72 hours and shall cease upon the earlier of the following:
(A) The employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to section 1824(e) of this title.

33a
Appendix D
(B) An issuance of a court order under this subchapter or subchapter II of this chapter.
(C) The Attorney General provides direction that the acquisition be terminated.
(D) The head of the element of the intelligence community conducting the acquisition determines that a request under paragraph (1)(C) is not warranted.
(E) When the threat of death or serious bodily harm to any person is no longer reasonably believed to exist.
(3) Nonpublicly available information concerning unconsenting United States persons acquired under this subsection shall not be disseminated during the 72 hour time period under paragraph (1) unless necessary to investigate, reduce, or eliminate the threat of death or serious bodily harm to any person.
(4) If the Attorney General declines to authorize the employment of emergency electronic surveillance under subsection (e) or the employment of an emergency physical search pursuant to section 1824(e) of this title, or a court order is not obtained under this subchapter or subchapter II of this chapter, information obtained during the 72 hour acquisition time period under paragraph (1) shall not be retained, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.

34a
Appendix D
(5) Paragraphs (5) and (6) of subsection (e) shall apply to this subsection.
(g) Testing of electronic equipment; discovering unauthorized electronic surveillance; training of intelligence personnel
Notwithstanding any other provision of this subchapter, officers, employees, or agents of the United States are authorized in the normal course of their official duties to conduct electronic surveillance not targeted against the communications of any particular person or persons, under procedures approved by the Attorney General, solely to--
(1) test the capability of electronic equipment, if--
(A) it is not reasonable to obtain the consent of the persons incidentally subjected to the surveillance;
(B) the test is limited in extent and duration to that necessary to determine the capability of the equipment;
(C) the contents of any communication acquired are retained and used only for the purpose of determining the capability of the equipment, are disclosed only to test personnel, and are destroyed before or immediately upon completion of the test; and:

35a
Appendix D
(D) Provided, That the test may exceed ninety days only with the prior approval of the Attorney General;
(2) determine the existence and capability of electronic surveillance equipment being used by persons not authorized to conduct electronic surveillance, if--
(A) it is not reasonable to obtain the consent of persons incidentally subjected to the surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to determine the existence and capability of such equipment; and
(C) any information acquired by such surveillance is used only to enforce chapter 119 of Title 18, or section 605 of Title 47, or to protect information from unauthorized surveillance; or
(3) train intelligence personnel in the use of electronic surveillance equipment, if--
(A) it is not reasonable to--
(i) obtain the consent of the persons incidentally subjected to the surveillance;
(ii) train persons in the course of surveillances otherwise authorized by this subchapter; or

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(iii) train persons in the use of such equipment without engaging in electronic surveillance;
(B) such electronic surveillance is limited in extent and duration to that necessary to train the personnel in the use of the equipment; and
(C) no contents of any communication acquired are retained or disseminated for any purpose, but are destroyed as soon as reasonably possible.
(h) Retention of certifications, applications and orders
Certifications made by the Attorney General pursuant to section 1802(a) of this title and applications made and orders granted under this subchapter shall be retained for a period of at least ten years from the date of the certification or application.
(i) Bar to legal action
No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this chapter for electronic surveillance or physical search.

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(j) Pen registers and trap and trace devices
In any case in which the Government makes an application to a judge under this subchapter to conduct electronic surveillance involving communications and the judge grants such application, upon the request of the applicant, the judge shall also authorize the installation and use of pen registers and trap and trace devices, and direct the disclosure of the information set forth in section 1842(d) (2) of this title.

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50 U.S.C.A. § 1806
§ 1806. Use of information
(a) Compliance with minimization procedures; privileged communications; lawful purposes
Information acquired from an electronic surveillance conducted pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this subchapter. No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this subchapter shall lose its privileged character. No information acquired from an electronic surveillance pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) Statement for disclosure
No information acquired pursuant to this subchapter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.

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(c) Notification by United States
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.
(d) Notification by States or political subdivisions
Whenever any State or political subdivision thereof 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 a State or a political subdivision thereof, 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 State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.

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(e) Motion to suppress
Any person against whom evidence obtained or derived from an electronic surveillance to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such electronic surveillance on the grounds that--
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an order of authorization or approval.
Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.
(f) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials

41a
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relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
(g) Suppression of evidence; denial of motion
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. 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.

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(h) Finality of orders
Orders granting motions or requests under subsection (g) of this section, decisions under this section that electronic surveillance was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to a surveillance shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.
(i) Destruction of unintentionally acquired information
In circumstances involving the unintentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person.
(j) Notification of emergency employment of electronic surveillance; contents; postponement, suspension or elimination
If an emergency employment of electronic surveillance is authorized under subsection (e) or (f) of section 1805 of this title and a subsequent order approving the surveillance

43a
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is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to electronic surveillance as the judge may determine in his discretion it is in the interest of justice to serve, notice of--
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not obtained.
On an ex parte showing of good cause to the judge the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed ninety days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
(k) Coordination with law enforcement on national security matters
(1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this subchapter may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision) to coordinate efforts to investigate or protect against

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(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 1804(a)(7)(B) of this title or the entry of an order under section 1805 of this title.

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50 U.S.C.A. § 1821
§ 1821. Definitions
As used in this subchapter:
(1) The terms “foreign power”, “agent of a foreign power”, “international terrorism”, “sabotage”, “foreign intelligence information”, “Attorney General”, “United States person”, “United States”, “person”, “weapon of mass destruction”, and “State” shall have the same meanings as in section 1801 of this title, except as specifically provided by this subchapter.
(2) “Aggrieved person” means a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.
(3) “Foreign Intelligence Surveillance Court” means the court established by section 1803(a) of this title.
(4) “Minimization procedures” with respect to physical search, means--
(A) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and technique of the particular physical search, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information

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concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 1801(e)(1) of this title, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand such foreign intelligence information or assess its importance;
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(D) notwithstanding subparagraphs (A), (B), and (C), with respect to any physical search approved pursuant to section 1822(a) of this title, procedures that require that no information, material, or property of a United States person shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1824 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

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(5) “Physical search” means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include (A) “electronic surveillance”, as defined in section 1801(f) of this title, or (B) the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 1801(f) of this title.

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50 U.S.C.A. § 1823
§ 1823. Application for order
(a) Submission by Federal officer; approval of Attorney General; contents
Each application for an order approving a physical search under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge of the Foreign Intelligence Surveillance Court. Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements for such application as set forth in this subchapter. Each application shall include--
(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the target of the search, and a description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered;
(3) a statement of the facts and circumstances relied upon by the applicant to justify the applicant’s belief that--
(A) the target of the physical search is a foreign power or an agent of a foreign power;

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(B) the premises or property to be searched contains foreign intelligence information; and
(C) the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power;
(4) a statement of the proposed minimization procedures;
(5) a statement of the nature of the foreign intelligence sought and the manner in which the physical search is to be conducted;
(6) a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive branch officers employed in the area of national security or defense and appointed by the President, by and with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official--
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the search is to obtain foreign intelligence information;

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(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in section 1801(e) of this title; and
(E) includes a statement explaining the basis for the certifications required by subparagraphs (C) and (D);
(7) where the physical search involves a search of the residence of a United States person, the Attorney General shall state what investigative techniques have previously been utilized to obtain the foreign intelligence information concerned and the degree to which these techniques resulted in acquiring such information; and
(8) a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, premises, or property specified in the application, and the action taken on each previous application.
(b) Additional affidavits or certifications
The Attorney General may require any other affidavit or certification from any other officer in connection with the application.

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(c) Additional information
The judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 1824 of this title.
(d) Personal review by Attorney General
(1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under subsection (a) of this section an application under that subsection for a target described in section 1801(b)(2) of this title.
(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.
(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.

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(2)(A) If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) of this section for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.
(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) of this section for purposes of making the application under this section.
(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is

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warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.

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50 U.S.C.A. § 1824
§ 1824. Issuance of order
(a) Necessary findings
Upon an application made pursuant to section 1823 of this title, the judge shall enter an ex parte order as requested or as modified approving the physical search if the judge finds that--
(1) the application has been made by a Federal officer and approved by the Attorney General;
(2) on the basis of the facts submitted by the applicant there is probable cause to believe that--
(A) the target of the physical search is a foreign power or an agent of a foreign power, except that no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and
(B) the premises or property to be searched is or is about to be owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power;
(3) the proposed minimization procedures meet the definition of minimization contained in this subchapter; and

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(4) the application which has been filed contains all statements and certifications required by section 1823 of this title, and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 1823(a)(6)(E) of this title and any other information furnished under section 1823(c) of this title.
(b) Determination of probable cause
In determining whether or not probable cause exists for purposes of an order under subsection (a)(2), a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.
(c) Specifications and directions of orders
An order approving a physical search under this section shall--
(1) specify--
(A) the identity, if known, or a description of the target of the physical search;
(B) the nature and location of each of the premises or property to be searched;
(C) the type of information, material, or property to be seized, altered, or reproduced;

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(D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search; and
(E) the period of time during which physical searches are approved; and
(2) direct--
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing the target of the physical search;
(C) that such landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the search or the aid furnished that such person wishes to retain;
(D) that the applicant compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid; and

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(E) that the Federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search.
(d) Duration of order; extensions; assessment of compliance
(1) An order issued under this section may approve a physical search for the period necessary to achieve its purpose, or for 90 days, whichever is less, except that (A) an order under this section shall approve a physical search targeted against a foreign power, as defined in paragraph (1), (2), or (3) of section 1801(a) of this title, for the period specified in the application or for one year, whichever is less, and (B) an order under this section for a physical search targeted against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 days, whichever is less.
(2) Extensions of an order issued under this subchapter may be granted on the same basis as the original order upon an application for an extension and new findings made in the same manner as required for the original order, except that an extension of an order under this chapter for a physical search targeted against a foreign power, as defined in paragraph (5), (6), or (7) of section 1801(a)of this title, or against a foreign power, as defined in section 1801(a)(4) of this title, that is not a United States person, or against an agent of a foreign power who is not a United States person, may be for a period not to exceed one year if the judge

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finds probable cause to believe that no property of any individual United States person will be acquired during the period.
(3) At or before the end of the period of time for which a physical search is approved by an order or an extension, or at any time after a physical search is carried out, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.
(e) Emergency orders
(1) Notwithstanding any other provision of this subchapter, the Attorney General may authorize the emergency employment of a physical search if the Attorney General--
(A) reasonably determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained;
(B) reasonably determines that the factual basis for issuance of an order under this subchapter to approve such physical search exists;
(C) informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization

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that the decision has been made to employ an emergency physical search; and
(D) makes an application in accordance with this subchapter to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such physical search.
(2) If the Attorney General authorizes the emergency employment of a physical search under paragraph (1), the Attorney General shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving such physical search, the physical search shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.
(5) In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the physical search, no information obtained or evidence derived from such physical search shall be received in evidence or otherwise disclosed in any trial, hearing,

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or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such physical search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the requirements of paragraph (5).
(f) Retention of applications and orders
Applications made and orders granted under this subchapter shall be retained for a period of at least 10 years from the date of the application.

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50 U.S.C.A. § 1825
§ 1825. Use of information
(a) Compliance with minimization procedures; lawful purposes
Information acquired from a physical search conducted pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this subchapter. No information acquired from a physical search pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.
(b) Notice of search and identification of property seized, altered, or reproduced
Where a physical search authorized and conducted pursuant to section 1824 of this title involves the residence of a United States person, and, at any time after the search the Attorney General determines there is no national security interest in continuing to maintain the secrecy of the search, the Attorney General shall provide notice to the United States person whose residence was searched of the fact of the search conducted pursuant to this chapter and shall identify any property of such person seized, altered, or reproduced during such search.

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(c) Statement for disclosure
No information acquired pursuant to this subchapter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(d) Notification by United States
Whenever the United States 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 a physical search pursuant to the authority of this subchapter, the United States shall, prior to the trial, hearing, or the 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 United States intends to so disclose or so use such information.
(e) Notification by States or political subdivisions
Whenever any State or political subdivision thereof 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 a State or a political subdivision thereof

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against an aggrieved person any information obtained or derived from a physical search pursuant to the authority of this subchapter, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
(f) Motion to suppress
(1) Any person against whom evidence obtained or derived from a physical search to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the evidence obtained or derived from such search on the grounds that--
(A) the information was unlawfully acquired; or
(B) the physical search was not made in conformity with an order of authorization or approval.
(2) Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.

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(g) In camera and ex parte review by district court
Whenever a court or other authority is notified pursuant to subsection (d) or (e) of this section, or whenever a motion is made pursuant to subsection (f) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to a physical search authorized by this subchapter or to discover, obtain, or suppress evidence or information obtained or derived from a physical search authorized by this subchapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority shall, notwithstanding any other provision of law, if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the physical search as may be necessary to determine whether the physical search of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the physical search, or may require the Attorney General to provide to the aggrieved person a summary of such materials, only where such disclosure is necessary to make an accurate determination of the legality of the physical search.

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(h) Suppression of evidence; denial of motion
If the United States district court pursuant to subsection (g) of this section determines that the physical search 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 the physical search of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the physical search was lawfully authorized or conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
(i) Finality of orders
Orders granting motions or requests under subsection (h) of this section, decisions under this section that a physical search was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to the physical search shall be final orders and binding upon all courts of the United States and the several States except a United States Court of Appeals or the Supreme Court.
(j) Notification of emergency execution of physical search; contents; postponement, suspension, or elimination
(1) If an emergency execution of a physical search is authorized under section 1824(d) of this title and a

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subsequent order approving the search is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to the search as the judge may determine in his discretion it is in the interests of justice to serve, notice of--
(A) the fact of the application;
(B) the period of the search; and
(C) the fact that during the period information was or was not obtained.
(2) On an ex parte showing of good cause to the judge, the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed 90 days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.
(k) Coordination with law enforcement on national security matters
(1) Federal officers who conduct physical searches to acquire foreign intelligence information under this subchapter may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State (including the chief executive officer of that State or political subdivision who has the authority to appoint or direct the chief

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law enforcement officer of that State or political subdivision) to coordinate efforts to investigate or protect against
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 1823(a)(6) of this title or the entry of an order under section 1824 of this title.

 
 ACCO,2255
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:20-cv-03711-ODW

Keith Preston Gartenlaub v. United States of America Assigned to: Judge Otis D. Wright, II Case in other court: USDC Central District of
California, 8:14-cr-00173-CAS Cause: 28:2255 Motion to Vacate / Correct Illegal Sentence

Date Filed: 04/22/2020 Jury Demand: None Nature of Suit: 510 Prisoner: Vacate Sentence Jurisdiction: U.S. Government Defendant

Petitioner Keith Preston Gartenlaub

represented by Tor B. Ekeland Tor Ekeland Law PLLC 30 Wall Street 8th Floor New York, NY 10005 718-737-7264 Email: tor@torekeland.com PRO HAC VICE ATTORNEY TO BE NOTICED

Mark Jaffe TorMark Law LLP 2120 University Avenue Berkeley, CA 94704 415-770-0398 Fax: 718-504-5417 Email: mark@torekeland.com ATTORNEY TO BE NOTICED

V. Respondent United States of America

represented by Assistant 2241-2255 US Attorney LA-CR AUSA - Office of US Attorney Criminal Division - US Courthouse 312 North Spring Street Los Angeles, CA 90012-4700 213-894-2434 Email: USACAC.Criminal@usdoj.gov

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/22/2020
04/22/2020 04/23/2020 04/23/2020
04/29/2020 04/30/2020
04/30/2020

# Docket Text
1 **MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE** Filed as PETITION for Writ of Habeas Corpus by a Person in Federal Custody (28 USC 2241), Receipt No. ACACDC-26190894 for $5 filing fee, filed by Petitioner Keith Preston Gartenlaub. (Attachments: # 1 Memorandum, # 2 Declaration Keith Gartenlaub, # 3 Declaration Jeff Fischbach) (Attorney Mark Jaffe added to party Keith Preston Gartenlaub(pty:pet))(Jaffe, Mark) Modified on 5/1/2020 (et). (Entered: 04/22/2020)
2 CIVIL COVER SHEET filed by Petitioner Keith Preston Gartenlaub. (Jaffe, Mark) (Entered: 04/22/2020)
3 NOTICE OF ASSIGNMENT to District Judge Otis D. Wright, II for motion filed under 28 U.S.C. 2255. (jtil) (Entered: 04/23/2020)
4 NOTICE OF PRO HAC VICE APPLICATION DUE for Non-Resident Attorney Tor Ekeland. A document recently filed in this case lists you as an out-of-state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G-64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (jtil) (Entered: 04/23/2020)
5 Request for Clerk to Issue Summons on Petition for Writ of Habeas Corpus, 1 filed by Petitioner Keith Preston Gartenlaub. (Jaffe, Mark) (Entered: 04/29/2020)
6 NOTICE OF DEFICIENCIES in Request to Issue Summons RE: Summons Request 5 . The following error(s) was found: Summons are Not issued for Habeas Petitions. Court will order service as appropriate. NOTE: Please Disregard the form language re :" The summons cannot be issued until this defect has been corrected. Please correct the defect and refile your request"... AS THIS IS NOT APPLICABLE as cited above re Habeas Petitions. (lc) (Entered: 04/30/2020)
7 (STRICKEN PER 8/24/2020 MINUTES, DOCKET NO. 10). APPLICATION of Non-Resident Attorney Tor Ekeland to Appear Pro Hac Vice on behalf of Petitioner Keith Preston Gartenlaub (Pro Hac Vice Fee -

05/01/2020 05/01/2020 08/24/2020
08/27/2020 08/28/2020

$400 Fee Paid, Receipt No. ACACDC-26287907) filed by Petitioner Keith Preston Gartenlaub. (Attachments: # 1 Declaration Tor Ekeland, # 2 Declaration Mark Jaffe, # 3 Proposed Order) (Jaffe, Mark) Modified on 8/25/2020 (lc). (Entered: 04/30/2020)
8 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Tor Ekeland to Appear Pro Hac Vice on behalf of Petitioner Keith Preston Gartenlaub (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. ACACDC-26287907) 7 . The following error(s) was/were found: Local Rule 83-2.1.3.4 Local counsel does not maintain an office within the District. (Thrasher, Lupe) (Entered: 05/01/2020)
9 NOTICE OF CLERICAL ERROR: Due to clerical error Re: Notice of Deficiency in Electronically filed Pro Hac Vice Application (G-112C) optional html form, 8 The deficiency notice should not have been issued. Declaration of Local Counsel was submitted addressing his participation and qualifications to act as local counsel. (Thrasher, Lupe) (Entered: 05/01/2020)
10 MINUTES (IN CHAMBERS) by Judge Otis D. Wright, II: On April 30, 2020, counsel for Petitioner applied to appear in this matter pro hac vice 7 . The Clerk of Court issued a Notice of Deficiency on May 1, 2020, on the basis that the application failed to identify local counsel with an office within this District (ECF No. 8). Also on May 1, 2020, the Clerk issued a Notice of Clerical Error explaining that the Notice of Deficiency had been issued in error (ECF No. 9). An application to appear pro hac vice must be accompanied by a certificate of good standing from each state bar in which the applicant is a member, issued no more than 30 days before filing the application. C.D. Cal. L.R. 83-2.1.3.3. Here, the Certificate of Good Standing attached to the application is dated March 12, 2020, which is more than 30 days before the date the application was filed. Accordingly, the Court STRIKES the application filed at ECF No. 7, and the applicant is hereby ORDERED to resubmit a new application. The filing fee shall not be refunded, but the applicant need not submit a new fee with the new application. (lc) (Entered: 08/25/2020)
11 NOTICE OF MOTION AND MOTION to Supplement 28 U.S.C. § 2255 HABEAS CORPUS PETITION re Petition for Writ of Habeas Corpus, 1 filed by Petitioner Keith Preston Gartenlaub. (Attachments: # 1 Proposed Order) (Jaffe, Mark) (Entered: 08/27/2020)
12 ORDER GRANTING MOTION FOR LEAVE TO SUPPLEMENT MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 28 USC 2255 HABEAS CORPUS PETITION 11 by Judge Otis D. Wright, II: Petitioners Motion for Leave to Amend and Supplement his petition is granted. Plaintiff shall file his answer to the amended habeas petition a within 21 days of the date of this order. (lc) (Entered: 08/28/2020)

09/14/2020 09/14/2020 09/15/2020
09/22/2020 09/24/2020

13 (STRICKEN PER 9/15/2020 ORDER DOCKET NO. 15). APPLICATION of Non-Resident Attorney Tor Ekeland to Appear Pro Hac Vice on behalf of Petitioner Keith Preston Gartenlaub (Pro Hac Vice Fee - $400 Previously Paid on 4/30/2020, Receipt No. 26287907) filed by Petitioner Keith Preston Gartenlaub. (Attachments: # 1 Certificate of Good Standing of Tor Ekeland, # 2 Proposed Order) (Jaffe, Mark) Modified on 9/15/2020 (lc). (Entered: 09/14/2020)
14 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Tor Ekeland to Appear Pro Hac Vice on behalf of Petitioner Keith Preston Gartenlaub (Pro Hac Vice Fee - $400 Previously Paid on 4/30/2020, Receipt No. 26287907) 13 . The following error(s) was/were found: Local Rule 83-2.1.3.4 Local counsel does not maintain an office within the District. (Thrasher, Lupe) (Entered: 09/14/2020)
15 ORDER by Judge Otis D. Wright, II: the following document(s) be STRICKEN for failure to comply with the Local Rules, General Order and/or the Courts Case Management Order: APPLICATION of NonResident Attorney Tor Ekeland to Appear Pro Hac Vice on behalf of Petitioner Keith Preston Gartenlaub (Pro Hac Vice Fee - $400 Previously Paid on 4/30/2020, Receipt No. 26287907) 13 , for the following reasons: Comply with instructions on discrepancy doc no.14. Refile CORRECTLY and attach the proposed order to the e-filed document. Send proposed order in word to the judge's chambers email. This information is on the court's website. Review it for compliance! (lc) (Entered: 09/15/2020)
16 APPLICATION of Non-Resident Attorney Tor Ekeland to Appear Pro Hac Vice on behalf of Petitioner Keith Preston Gartenlaub (Pro Hac Vice Fee $400 Previously Paid on 4/30/2020, Receipt No. 26287907) filed by Petitioner Keith Preston Gartenlaub. (Attachments: # 1 Certificate of Good Standing of Tor Ekeland, # 2 Declaration of Mark Jaffe, # 3 Proposed Order) (Jaffe, Mark) (Entered: 09/22/2020)
17 ORDER GRANTING APPLICATION of Non-Resident Attorney Tor Ekeland to Appear Pro Hac Vice on behalf of Petitioner Keith Preston Gartenlaub and designating Mark Jaffe as local counsel 16 by Judge Otis D. Wright, II (lc) (Entered: 09/24/2020)

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1 Mark Jaffe (CA SBN 315950)
2 Email: mark@torekeland.com TOR EKELAND LAW, PLLC
3 2120 University Avenue #228
4 Berkley, CA 94704 5 Telephone: 415-770-0398

6 Tor Ekeland (pro hac vice forthcoming)

7

Email: tor@torekeland.com TOR EKELAND LAW, PLLC

8 195 Montague Street,

9

Brooklyn, NY 11201 Telephone: (718) 737-7264

10

11 Pro Bono Attorneys for Petitioner Keith Preston Gartenlaub

12

13

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA 14

15 United States of America,

16 Plaintiff
17

18

v.

19 Keith Preston Gartenlaub,
20 Petitioner,
21

Case No.: 2:20-cv-03711
NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 28 U.S.C. § 2255 HABEAS CORPUS PETITION

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NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 28 U.S.C. § 2255 HABEAS CORPUS PETITION

Case 2:20-cv-03711-ODW Document 1-1 Filed 04/22/20 Page 2 of 28 Page ID #:30

1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that in the United States District Court for the

3 Central District of California, located at 255 E. Temple Street, Los Angeles,

4 California 90012, Petitioner Keith Preston Gartenlaub (“Petitioner”) hereby does,

5 move this Court for an order:

6

(1) Vacating his conviction, or in the alternative

7

(2) Ordering a new trial; or

8

(3) Vacating his lifetime probation

9

This Motion is based on this Notice, the attached declarations of Jeff

10 Fischbach and Keith Preston Gartenlaub and the pleadings, files and other matters

11 in the record and that may be presented at the hearing.

12

13 14 DATED: April 22, 2020

TOR EKELAND, PLLC

15

By: /s/ Mark Jaffe

16 Mark Jaffe

17

Tor Ekeland

18 Pro Bono Attorneys for Petitioner
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NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 28 U.S.C. § 2255 HABEAS CORPUS PETITION

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1

TABLE OF CONTENTS

2 Introduction................................................................................................................1

3 Procedural History........................................................................................................5

4 Background..................................................................................................................5

5 The FBI Secretly Enters Gartenlaub's Home and Images His Hard Drives......................11

6 The Fed. R. Crim. P. 41 Warrants Based on the Fruits of the FISA Warrant .....................12

7 Verdict .......................................................................................................................15 The DOJ Inspector General FISAApplication Investigation ..........................................16
8 Argument ...................................................................................................................17

9 I. This Court Should Vacate Petitioner's Conviction, or Order a New Trial,

10

Because the Previously Unavailable New Evidence Taints the Integrity of the

11

Proceedings and Would Lead a Juror to Find Reasonable Doubt .....................18

12 A. The New Evidence Would Lead a Jury to Find Reasonable Doubt...............19

13 B. The Court Should Grant a New Trial Because the New Evidence of

Pervasive Errors in the FISA Application Process are Material and

14

Taint the Integrity of the Proceedings.............................................................21

15 II. This Court Should Grant the Petition Because Lack of the New Evidence

16

Denied Petitioner's Constitutional Right to Put on a Complete Defense ..........21

17

A. The Court Should Grant a New Trial to Subject the FISA Application to Discovery and the Adversarial Process...........................................................23

18 B. The Court Should Grant a New Trial so the New Evidence and FISA

19

Search Can be Argued to a Jury......................................................................23

20 III. In the Interests of Justice the Court Should Life Petitioner's Onerous Lifetime Probation Which Severely Hampers His Ability to Work and Live ..24
21 Conclusion ...............................................................................................................24
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1

TABLE OF AUTHORITIES

2 Cases .................................................................................................................Pages 3 California v. Trombetta, 467 U.S. 479, 485 (1984) ................................................22 4 Hall v. Dir. of Corr., 343 F.3d 976, 983-84 (9th Cir. Cal. September 8, 2003)......22

5 House v. Bell, 547 U.S. 518, 538 (2006) .................................................................19

6 Kyles v. Whitley, 514 U.S. 419, 434 (1995)...................................................... 21, 22

7 McCleskey v. Zant, 499 U.S. 467, 495 (1991) .........................................................19

8 Schlup v. Delo, 513 U.S. 298, 329 (1995) ...............................................................19 9 Smith v. Cain, 565 U.S. 73, 75-76 (2012)................................................................21

10

11 Statutes

12 50 U.S.C. § 1804 (a)(3)(A) ......................................................................................10

13

14 Other Authorities

15 Charlie Savage, Problems in FBI Wiretap Applications Go Beyond Trump Aide

16 Surveillance, Review Finds: The Bureau has Routinely Botched Work on

17 Surveillance Applications for its National Security Investigations, An Inspector 18 General Said, N.Y. TIMES (March 31, 2020) ....................................................2, 17

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1

Introduction

2

All the evidence in this case is the fruit of a top-secret Foreign Intelligence

3 Surveillance Act ("FISA") general search warrant, issued by the secretive, ex parte

4 Foreign Intelligence Surveillance Court ("FISC"). But this is not a national security

5 case, and Petitioner Keith Preston Gartenlaub has never been charged with a

6 national security crime. Nor has the government produced any evidence to date,

7 implicating Mr. Gartenlaub in any national security crime. But after what the

8 government admitted on appeal was a general rummaging through Petitioner's

9 computers, home, and life under the FISA Warrant, Petitioner was convicted for

10 receipt and possession of child pornography. The District Court would afterward

11 strike the receipt charge as multiplicitous. At every step of this proceeding

12 Petitioner Gartenlaub has been denied access to any information about the FISA

13 search, often after the courts have met ex parte, in camera, and off the record, with

14 the government. This happened at both the District Court level, and at the Ninth

15 Circuit.

16

The District Court, despite expressing misgivings about the FISA

17 proceedings on the record, denied Gartenlaub's motion for a Franks hearing to

18 challenge the probable cause behind the FISA search.1 Nor did the Jury ever learn

19 of the gaps in the evidentiary record left by the secret FISA search and the serious

20 questions it posed. The court had ruled squarely on the side of the government

21 when it came to the integrity of the secret search and evidence. It is an almost

22 impossible task to defend against something you cannot examine but are required

23 to trust. Particularly when the charges are as explosive as child pornography.

24

25

26 1 (District Ct Tr. at 9-10 (4/18/16). ("I do have some personal questions regarding the propriety
of the FISA court proceeding even though that certainly seems to be legally authorized.").

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1 Throughout, the courts has presumed the integrity of the FISA Application

2 and search.

3

But neither the courts, nor the Petitioner, were aware of the systemic,

4 pervasive and serious errors and omissions in all 29 of the FBI's FISA applications

5 recently reviewed by the Department of Justice's Inspector General (the "Inspector

6 General") spanning from September 2019 through October 2014. In four of these

7 cases the "Woods File," the file with the factual documentation supporting

8 the application, was missing entirely.2 This new evidence didn't emerge until

9 March 30, 2020. That’s when the Inspector General released a memorandum

10 (the "IG Memo") documenting errors, omissions, and procedural failures in

11 all 29 FBI FISA applications it reviewed spanning back through October

12 2014. As the New York Times reported upon its release, the IG Memo's

13 "finding of systemic incompetence is devastating for the FBI."3 Petitioner's

14 FISA Application was granted by the FISC in January 2014, a mere seven

15 months before the last case the Inspector General has reviewed to date.

16

The IG Memo followed a December 2019, 400 page "damning report"

17 (the "IG Report"),4 as the New York Times called it, of the serious errors

18 2 Michael E. Horowitz, Management Advisory Memorandum for the Director of the FBI

19 Regarding the Execution of Woods Procedures or Applications Filed with the Foreign

Intelligence Surveillance Court Relating to U.S. Persons, Office of the Inspector General, U.S.
20 Department of Justice, p. 2-3 (March 30, 2020), available at

21

https://oig.justice.gov/reports/2020/a20047.pdf (last accessed April 22, 2020) [hereinafter The 2020 IG Memo].

22 3 Charlie Savage, Problems in FBI Wiretap Applications Go Beyond Trump Aide Surveillance,
Review Finds: The Bureau has Routinely Botched Work on Surveillance Applications for its

23 National Security Investigations, An Inspector General Said, N.Y. TIMES (March 31, 2020) (quo,

https://www.nytimes.com/2020/03/31/us/politics/fbi-fisa-wiretap-
24 trump.html?referringSource=articleShare; see also Charlie Savage, We Just Got a Rare Look at

25

National Security Surveillance. It was Ugly, N.Y. TIMES (Dec. 11, 2019), https://www.nytimes.com/2019/12/11/us/politics/fisa-surveillance-fbi.html.

26 4 Office of the Inspector General, U.S. Department of Justice, Review of Four FISA Applications
and Other Aspects of the FBI's Crossfire Hurricane Investigation, at viii (as updated Dec. 20,

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1 and omissions in the FBI FISA applications targeting former presidential campaign

2 adviser Carter Page.5 Troubled by the seriousness of the pervasive errors and

3 omissions documented in the IG Report, the Inspector General undertook a limited

4 review of prior FBI FISA applications and, as documented in the IG Memo, found

5 errors and omissions in every case he looked at.

6

Our society trusts the awesome power of depriving citizens of their

7 liberty only to the government. Fundamental to this trust is that the

8 government conduct its prosecutions with integrity, credibility, and

9 reliability. And nowhere is this more important than when the government

10 executes unreviewable top-secret national security searches. Our national

11 security is supposed to protect our liberty, not take it away.

12

Throughout this process, whether on pretrial release, supervised release

13 before reporting for his sentence, serving his sentence, and to date, Petitioner Keith

14 Gartenlaub has a clean record. Indeed, the only thing on his record is this

15 conviction.6 He's never been accused of any inappropriate contact with children.

16 The computer files in question here date back to 2005, and the evidence at trial is

17 consistent with the files never having been opened.7 But despite his good behavior

18 and having served his prison sentence without event, he now lives under the

19 onerous conditions of a lifetime probation that severely circumscribes where he

20 can live and work.8 The IG Memo and Report call into question the integrity of the

21 government's case and raise disturbing and fundamental constitutional questions

22 about the validity of the FBI's error laden FISA application practice and procedure.

23

2019), available at https://oig.justice.gov/reports/2019/o20012.pdf (last accessed April 19, 2020)
24 [hereinafter The 2019 IG Report].

25

5 Id. 6 (Decl. of K. Gartenlaub, at ¶ 7 (Ex. A.).

26

7 (Decl. of J. Fischbach, at P. 3 Lns. 16-17 (Ex. B). 8 (Decl. of K. Gartenlaub, at ¶ 8 (Ex. A.).

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1 Given that fact, and for the reasons argued below, this Court should vacate

2 Petitioner's conviction. In the alternative, it should order a new trial and lift the

3 onerous conditions of his lifetime probation.

4

First, the "systemic incompetence" documented in the IG Memo listing

5 errors and omissions in every FISA Application, reviewed so far, is new evidence,

6 unavailable until this point. That evidence would have been material to the District

7 and Appellate Courts’ review of this matter, as well as, material to the jury's

8 determination of reasonable doubt. The lack of this evidence, which was

9 impossible for the Defense to discover because the IG Memo and Report

10 didn't come out until last month, prejudiced Gartenlaub. The IG Memo and

11 Report directly questions the integrity and credibility of the government’s

12 case, and raises far more than the likelihood of a different outcome if both

13 judge and jury were aware of the systemic nature of the errors and omissions

14 in the FISA application process.

15

Second, the lack of this new evidence of systemic errors and

16 omissions, combined with the District Court's denying the Defense any

17 access to the FISA Application, and any related evidence, was a denial of

18 Gartenlaub's constitutional right to put on a complete defense. Knowledge of

19 the systemic, pervasive errors and omissions in the FBI's FISA application

20 process would have led the defense to aggressively challenge the FISA

21 Application, search, and lack of any forensic record from the government on

22 this point. As affirmed in the attached declarations, the Defense would have

23 put on its computer expert to challenge the procedural and evidentiary black

24 hole that is the period of the FISA search in this case. And the Defense

25 would have aggressively argued reasonable doubt based of the vagaries of

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1 the FISA search to the jury and the fact there is no way to prove evidence wasn't

2 altered.

3

For these reasons, and as detailed below, this Court should vacate

4 Gartenlaub's conviction. In the alternative, it should grant a new trial so that the

5 government's FISA Application, search, and computer evidence can be properly

6 challenged in adversarial, and not error laden ex parte, proceedings; or this Court

7 should eliminate or modify the terms of his unjust probation.

8

Procedural History

9

On September 6, 2016, after a jury trial, the Federal District Court for the

10 Central District of California entered judgment against Petitioner Keith Preston

11 Gartenlaub.9 The court entered judgment against Gartenlaub for one count of 18

12 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2), possession of child pornography.10 On

13 October 2, 2018, in an unpublished five-page decision, the United States Court of

14 Appeals for the Ninth Circuit affirmed the District Court's judgment.11 On

15 December 7, 2018, the United States Court of Appeals for the Ninth Circuit denied

16 Mr. Gartenlaub's petition for rehearing en banc.12 On April 22, 2019 the United

17 States Supreme Court denied a petition for a writ of certiorari.13

18

19

20

Background

21 9 (District Ct. Dkt. No. 216 (United States v. Keith Preston Gartenlaub, 14-CR-00173-CAS

22

(C.D. Cal. 2016).) 10 Id.

23 11 App. at 16a-17a; (United States v. Keith Gartenlaub, No. 16-50339 (9th Cir. 2018), (Appeal

Dkt. No. 96.).)
24 12 Id.

25

13 United States Supreme Court Docket, Keith Preston Gartenlaub v. United States,No. 18-201 (April 22, 2019), available at

26 https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-
1201.html.

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1

In 2013, Wesley Harris, an FBI agent in Los Angeles, read an article

2 on Wired.com.14 The article speculated that a spy at the Boeing Company,

3 the designer and manufacturer of the U.S. Military's C-17 cargo plane, may

4 have leaked the C-17’s blueprints to the Chinese.15 It suggested that the

5 Chinese Military's Y-20 cargo plane was based on the stolen C-17

6 blueprints. After reading a second article speculating that "hackers" may

7 have compromised the Boeing C-17 program, Agent Harris launched an

8 investigation.16 For reasons never revealed, the investigation targeted

9 Petitioner Keith Preston Gartenlaub, a U.S. citizen, who at the time was an

10 Engineering IT Manager at Boeing in Long Beach, California. No evidence

11 exists, then or now, that Gartenlaub provided C-17 designs to China. He has

12 never been charged with any national security crimes.

13

In July 2016, Chinese Citizen Su Bin was sentenced for his role in

14 plotting to steal the C-17 military cargo plane designs.17

15

Agent Harris's investigation latched onto two principal facts: that

16 Gartenlaub's position at Boeing allegedly gave him access to C-17 data; and,

17

18 14 (ER 378.) The following abbreviations refer to appellate filings in United States v. Keith
Preston Gartenlaub, No. 16-50339 (9th Cir.): "ER" refers to Excerpts from the Record (9th Cir.

19 Dkt. No. 32); "AOB" refers to Appellant's Opening Brief (Id. at 31); "GB" refers to the

Government's Opposition Brief (Id. at 53); "ARB" refers to the Appellant's Reply Brief (Id. at
20 63); "BAC" refers to Brief of Amici Curiae Electronic Frontier Foundation and American Civil

21

Liberties Union in Support of Defendant- Appellant And Reversal (Id. at 34). All record cites are in parenthesis.

22 15 (ER 379.) A previous version of the Wired.com article, published in December 2012,
identified the potential Boeing spy as Dongfan Chung. https://www.wired.com/2012/12/china-

23 debuts-giant-transport/. Chung was convicted in 2010 of providing Boeing trade secrets to China

(although the conviction did not involve the C-17), and the Ninth Circuit affirmed in 2011. See
24 U.S. v. Chung, 659 F.3d 815 (9th Cir. 2011).

25

16 (ER 378; AOB at 5.) 17 See, e.g., Matt Hamilton, Chinese Citizen is Sentenced to Prison in the U.S. for Plotting to

26 Steal Military Secrets, L.A. TIMES (July 13, 2016), http://www.latimes.com/local/lanow/la-me-
ln-chinese-boeing-hack-prison-sentencing-20160713-snap-story.html.

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1 that Gartenlaub's wife, a naturalized U.S. citizen, was born in China.

2 Understandably, Gartenlaub travelled to China and communicated with his

3 family there. He also jointly owned property in China with his wife.

4 Gartenlaub hid none of this. Petitioner's wife has never been charged with

5 any espionage related crimes, nor has any evidence ever been produced

6 linking her to espionage.

7

Gartenlaub disclosed his Chinese travel to Boeing and received its

8 approval. And Agent Harris knew this. He knew that Gartenlaub's

9 communications with China had nothing to do with the C-17 and were

10 explained by his family there. He knew that numerous employees could

11 access Boeings C-17 data. Nonetheless, Agent Harris used Gartenlaub's

12 alleged access, which Harris misunderstood and exaggerated, his Chinese-

13 born wife, and other innocuous facts to get a FISA warrant.

14

In his affidavit Agent Harris falsely stated that Gartenlaub was the only

15 employee at Boeing with “the combination of access to the C-17 data, knowledge

16 of the computer network and systems, suspicious behavior and concerns by 17 security personnel who worked with him, and connections and travel to China.”18

18 A simple investigation into Gartenlaub’s career at Boeing reveals this isn't true. As

19 the Washington Post reports, but apparently the FBI didn't check, Gartenlaub never

20 had access to the Boeing C-17 data, and Boeing employees have expressed

21 confusion as to why the FBI suspected Gartenlaub for stealing C-17 data he 22 couldn't access.19 Further, Agent Harris falsely identified Gartenlaub’s position as

23

24 18 (Harris Aff.) The Harris Affidavit is available from the District Court Docket, or the Excerpts

25

from the Record on the Ninth Circuit docket. 19 See Ellen Nakashima, A former Boeing manager suspected of spying for China says that he,

26 like Carter Page, was the victim of a flawed national security investigation, WASH. POST. (Feb.
25, 2020), https://www.washingtonpost.com/national-security/a-former-boeing-manager-

27

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1 “the nation-wide UNIX military administrator for Boeing” – a position 2 which did not and never has existed.20

3

In January of 2014, the FISC approved the FBI's FISA search warrant. FISA

4 requires that there be probable cause that an American citizen targeted for a search 5 be an agent of a foreign power.21 For the next three months the FBI secretly

6 entered Petitioner's home, imaged his hard drives, searched whatever they wanted

7 without limitation and wire tapped Petitioner. Despite their unfettered rummaging

8 through every corner of Petitioner's life, they never have charged Petitioner

9 with national security crimes or produced a shred of evidence implicating

10 him in any. Instead, it took the fruits of its Top Secret FISA search and used

11 it in a domestic criminal prosecution having nothing to do with national

12 security.

13

Agent Harris's investigation was one of many launched at a time of

14 intense pressure on the FBI and DOJ to take action against Chinese

15 espionage targeting U.S. military and trade secrets. This pressure led to

16 questionable investigations and prosecutions that have led to accusations of

17 racism against Chinese Americans like Petitioner's wife. Regional DOJ

18 offices used secret FISA search warrants to start several non-national

19

20 suspected-of-spying-for-china-says-that-he-like-carter-page-was-the-victim-of-a-flawed-

21

national-security-investigation/2020/02/18/9371dd60-4dd3-11ea-9b5c-eac5b16dafaa_story.html 20 (Harris Aff.); Ellen Nakashima, A former Boeing manager suspected of spying for China says

22 that he, like Carter Page, was the victim of a flawed national security investigation, WASH.
POST., Feb. 25, 2020.

23 21 See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402-03 (2013) (“In FISA, Congress

authorized judges of the Foreign Intelligence Surveillance Court (FISC) to approve electronic
24 surveillance for foreign intelligence purposes if there is probable cause to believe that “the target

25

of the electronic surveillance is a foreign power or an 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

26 is about to be used, by a foreign power or an agent of a foreign power.” §105(a)(3), 92 Stat.
1790”).

27

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1 security prosecutions for domestic crimes. Most, if not all, of these prosecutions

2 collapsed for reasons including false evidentiary assumptions and accusations of

3 racism against Chinese Americans.22

4

In November 2015, these accusations of DOJ racism against Chinese

5 Americans led the U.S. Commission on Civil Rights to send a letter to U.S.

6 Attorney General Loretta E. Lynch. The letter was asking for an

7 investigation into the targeting of "Asian Americans for investigation,

8 surveillance, and arrest, due to their race or national origin."23 Eventually,

9 the DOJ's main office in Washington, D.C. addressed these accusations of

10 racially motivated national security investigations.

11

In 2016, the DOJ in Washington, D.C. issued new guidelines governing

12 national security investigations under FISA. Judging by the IG Report and Memo,

13 they are a failure. The guidelines require regional DOJ prosecutors to consult with

14 national security prosecutors in Washington, D.C., before proceeding.24

15

But in 2013, these guidelines didn't exist. And, initially, Agent Harris didn't

16 turn to FISA in his hunt for Chinese spies. In June 2013, Agent Harris applied,

17 under Federal Rule of Criminal Procedure 41 ("Rule 41") in the Federal District

18 Court for the Central District of California in Los Angeles, for a criminal search

19
22 See, e.g., Matt Apuzzo, Former Espionage Suspect Sues, Accusing F.B.I. of Falsifying
20 Evidence, N.Y. TIMES (May 10, 2017), https://www.nytimes.com/2017/05/10/us/politics/fbi-xi-

21

xiaoxing.html ("Each case raised the specter of Chinese espionage without explicitly charging the suspects as spies.").

22 23 Martin R. Castro, et. al., Letter from the United States Commission on Civil Rights to Loretta
E. Lynch, United States Attorney General, UNITED STATES COMMISSION ON CIVIL RIGHTS (Nov.

23 18, 2015),

https://www.usccr.gov/press/archives/correspd/LettertoDOJreAsianAmericanProsecutions.pdf,
24 (documenting dubious DOJ espionage investigations targeting Asian Americans).

25

24 See, e.g., Tim Cushing, DOJ Issues New Rules On Espionage Investigations to Keep it From Embarrassing Itself So Often, TECHDIRT (May 2, 2016),

26 https://www.techdirt.com/articles/20160428/08364934298/doj-issues-new-rules-espionage-
investigations-to-keep-it-embarrassing-itself-so-often.shtml.

27

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1 warrant targeting Gartenlaub's and his wife's emails for evidence of

2 espionage.25 The court approved the warrant. The subsequent search of the

3 Gartenlaub’s emails turned up no evidence of national security crimes, or

4 any crimes whatsoever.

5

Undaunted, Agent Harris applied to the top secret, ex parte FISC for a secret

6 search warrant under FISA.

7

In 1978, Congress passed FISA because, for decades, the FBI and CIA

8 engaged in illegal domestic surveillance of, and action against, U.S. citizens.

9 Congress intended FISA, and the FISC, to prevent abuses of power by federal law 10 enforcement and intelligence agencies.26 Thus, FISA limits searches targeting U.S.

11 citizens to instances where there is probable cause that the citizen is an agent of a

12 foreign power.27 This holds true whether for targeted surveillance, or a targeted 13 physical search.28

14

In January 2014, the FISC approved Agent Harris's secret warrant

15 application, presumably for the surveillance of Gartenlaub and a physical

16 search of his home, computers and hard drives.29 The Defense has never had

17 access to FISA Application, or been able to forensically examine, or

18

19
25 (See AOB at 7.)
20 26 The most infamous abuse being the FBI's COINTELPRO activities that politically targeted

21

Americans like Martin Luther King, Jr. See, e.g., S. Rep. No. 94-755, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, at 11

22 (April 26, 1976) ("[T]he Committee's investigation has uncovered a host of serious legal and
constitutional issues relating to [domestic] intelligence activity and it is strong proof of the need

23 for reform to note that scarcely any of those issues have been addressed in the courts."), available

at
24 https://upload.wikimedia.org/wikipedia/commons/7/79/Church_Committee_report_%28Book_I

25

%2C_Foreign_and_Military_Intelligence%29.pdf. 27 See 50 U.S.C. § 1804 (a)(3)(A).

26

28 Compare 50 U.S.C. § 1804 (surveillance) with 50 U.S.C. § 1823 (physical searches). 29 (See AOB at 7.)

27

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1 otherwise subject to its independent analysis anything related to this FISA search.

2 It's an evidentiary black hole for the Defense.

3

The FBI Secretly Enters Gartenlaub's Home and Images His Hard Drives

4

On January 29 and 30 of 2014, FBI agents stealthily entered

5 Gartenlaub's home to execute the secret FISA physical search warrant.

6 Agents searched and digitally imaged three hard drives they found there.

7 Over the following months, the FBI rummaged through every file they found

8 on those hard drives. The Defense has never had access to any

9 documentation of this unrestrained search and has seen no evidence that

10 demonstrates that files on Gartenlaub's computers weren't altered in the 11 process.30

12

In its Opposition Brief before the Ninth Circuit, the government

13 acknowledges that there were no limitations to its secret search of Gartenlaub's

14 hard drives, saying in a header: "The Government Was Permitted to Search Every

15 File on Defendant's Computers...."31 And nothing in the record indicates that the

16 government used any standard forensic techniques routinely used to particularize

17 computer searches like: date limitations; targeted key word searches; image

18 recognition scans; taint teams, or other routine, well established techniques to limit

19 a digital search to its target and screen privileged, confidential, and irrelevant

20 information.

21

Despite its unlimited search, the FBI found no evidence that Gartenlaub had

22 provided C-17 data to China, or otherwise acted as a spy for China. But the FBI

23 did allegedly find, among the tens of thousands of files on the hard drives, a

24 handful of files containing child pornography. Abandoning the false probable

25

26

30 (Decl. of J. Fischbach, at P.3 Lns. 5-15, 22-24 (Ex. B).) 31 (See GB at 52.)

27

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1 cause premise that Gartenlaub was a Chinese spy. The FBI then pivoted to a

2 theory that he collected child pornography based on its unreviewable - for

3 the Defense - secret search that has never been tested in the adversarial

4 process. The process which is the foundation of the criminal justice system

5 because of national security doctrines articulated nowhere in the

6 Constitution.

7

The Fed. R. Crim. P. 41 Warrants Based on the Fruits of the FISA Warrant

8

In August 2014, the FBI obtained a search warrant for Gartenlaub's

9 premises seeking evidence that he received and possessed child

10 pornography.32 The August 2014 warrant application based its probable

11 cause on the fruits of the secret FISA warrant executed in January 2014,

12 describing it as "a court-authorized search without notice" to the occupants.

13 Of course, the government was seeking to seize and search computers it had

14 already seized and searched and had unrestrained access to under the FISA

15 search warrant. The probable cause affidavit further stated that the search

16 discovered child pornography on Gartenlaub's hard drives.33 The District

17 Court then granted the application for a normal Rule 41 search warrant.

18

With its August 2014 search warrant, the FBI search seized the three

19 hard drives that it had already secretly imaged and searched for months

20 under the FISA warrant. It also allegedly seized a fourth hard drive from

21 Gartenlaub that contained a copy of the "Origdata" folder structure that

22 allegedly contained the same files as the other three hard drives.

23

24

25

26

32 (ER 243.) 33 (ER 248-49.)

27

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1

On October 23, 2014, a grand jury indicted Gartenlaub for receipt and

2 possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)

3 and 2252A(a)(5).34

4

Through pretrial motions, he:

5 1. Challenged and sought suppression of the fruits of the January 2014 FISA

6 search and the August 2014 searches of his home, computers, and hard drives, on

7 Fourth Amendment and other grounds,

8 2. Requested a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to

9 establish that the FISA Application, and the August 2014 search warrant

10 application contained intentional or reckless material falsehoods and omissions,

11 and

12 3. Sought disclosure of the underlying FISA Application and order.35

13

In response, the government submitted a largely classified, ex parte

14 opposition to Gartenlaub's FISA challenges.36 The defense received a heavily

15 redacted version of the government's opposition. The District Court reviewed the

16 FISA Application and order, together with the classified portions of the

17 government's opposition, in camera and ex parte.

18

On August 6, 2015, in an 11-page opinion drafted by the government and

19 signed unaltered by the District Court, the Court refused to disclose the FISA

20 Application and order to the Defense, and denied Gartenlaub's motion to suppress

21 the fruits of the FISA search.37 Later, however, the court expressed misgivings,

22 stating "I do have some personal questions regarding the propriety of the FISA

23 court proceeding even though that certainly seems to be legally authorized."38

24 34 (See ER 243, 248-49, 296-97; AOB at 7).

25

35 (District Ct. Dkt. Nos. 67, 70, 73.) 36 (District Ct. Dkt. No. 82.)

26

37 (ER 21, 321.) 38 (District Ct Tr. at 9-10 (4/18/16).)

27

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1

An enormous folder on Gartenlaub's drives with multiple subfolders

2 called "Origdata" contained less than 100 child pornography files among

3 thousands of other files. The exact number isn't clear. A review by the

4 National Center for Missing and Exploited Children identified 22 files. An

5 additional 70 or so alleged child pornography files were identified by non-

6 expert agents.39

7

The evidence at trial showed that the files date to 2005, when

8 numerous people had access to Gartenlaub's computer while he lived at a

9 beach house.40 No one knows who initially downloaded the files, or to what

10 hard drive, or on to what computer.41 No new files were added after 2005,

11 nor is there any definitive evidence that any of these files were opened until

12 the FBI opened them in 2014.42 The child pornography files were copied,

13 along with tens of thousands of other files in an enormous folder structure,

14 to three other of Gartenlaub's hard drives. The files’ presence on four hard

15 drives is consistent with someone copying the entire contents of an old hard

16 drive to a newly purchased hard drive. No evidence, such as log files, screen

17 shots, cached data, or chat logs of Mr. Gartenlaub ever visiting any sites

18 related to child pornography exists. Likewise, there's no evidence or

19 testimony of any type that Gartenlaub groomed, solicited, or had sex with,

20 minors. There is no evidence of the type that one would expect to find

21 related to someone who collects child pornography.

22

23

24 39 (See, e.g., District Ct. Tr. at 72, 92-94 (12/4/15).)

25

40 (See ARB at 1-8.); (District Ct. Tr. at 403-05, 412-16, 421-23 (12/9/15).) 41 (See ARB at 1.); (ER 193-95, 217.)

26 42 (See AOB at 8.); (ER 194-95, 199-200.); (See generally ER 193-230 (cross-examination of
government computer forensic expert Bruce Pixley).)

27

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1

As the District Court stated at sentencing, this is a "one-of-a-kind" child

2 pornography case.43 The court noted the absence of evidence that Gartenlaub

3 downloaded the child pornography files, the lack of evidence that the collection

4 was ever added to from 2005 until the FBI seized it in 2014, and the lack of

5 evidence he ever opened those files.44 Given the troubling nature of the FISA

6 proceedings in this case, it has attracted media scrutiny - as well it should, given

7 that the issues here go directly to the public's faith in the integrity of our criminal 8 justice system.45 The recent IG Report and Memo serve to validate the public's

9 concern on this point.

10

Verdict

11

After the guilty verdict, the District Court dismissed the receipt count (Count

12 1) as multiplicitous.46 On August 29, 2016, the court sentenced Gartenlaub to 41

13 months imprisonment and $3,430 in restitution.47 The District Court, and the Ninth

14 Circuit, denied Gartenlaub's motion for bail pending appeal.48 On February 14,

15 2017, he self-surrendered into custody. After serving his prison sentence without

16 event, he was released from custody. He currently is out of physical custody, but is 17 subject to the terms of an onerous and unjust lifetime probation.49

18

19 43 (District Ct. Tr. at 7 (8/29/16).)
44 (District Ct. Tr. at 5-7 (8/29/16).)
20 45 Ellen Nakashima, A former Boeing manager suspected of spying for China says that he, like

21

Carter Page, was the victim of a flawed national security investigation, WASH. POST (Feb. 25, 2020); Ellen Nakashima, How a federal spy case turned into a child pornography prosecution,

22 WASH. POST (Apr. 5, 2016), https://www.washingtonpost.com/world/national-security/how-
national-security-powers-are-underpinning-some-ordinary-criminal-cases/2016/04/05/1a7685f4-

23 fa36-11e5-80e4-c381214de1a3_story.html; Jeff Stein, Keith Gartenlaub, Target in China Spy

Probe, Appealing Porn Sentence, NEWSWEEK (Oct. 3, 2016), https://www.newsweek.com/keith-
24 gartenlaub-spy-china-appeal-505572.

25

46 (District Ct. Dkt. No. 210.) 47 (ER 1.)

26

48 (District Ct. Dkt. No. 247.) 49 (See, Decl. K. Gartenlaub, at ¶ 8-9. (Ex. A).)

27

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1

The DOJ Inspector General FISA Application Investigation

2

On December 9, 2019, the Inspector General released its report on the FISA

3 applications in presidential campaign aide Carter Page's case.50 The report's 400

4 plus pages documented "significant inaccuracies and omissions" in the FBI's four 5 FISA applications in that case.51 Troubled by what he saw, the Inspector General

6 began a limited audit of FISA applications from DOJ offices across the country,

7 finding errors and omissions in all 29 reviewed, including four that were missing

8 files containing the information justifying the application.52

9

The March 30, 2020 IG Memo documents before now unknown serious and

10 pervasive errors and omissions in the FBI's top secret ex parte FISC search warrant 11 application process.53 The IG Memo covers the period of October 2014 to

12 September 2019. (Petitioner's FISA Application is from January 2014). It says in

13 relevant part that the IG is not confident the FBI is following their own

14 protocols designed to protect U.S. citizens from surveillance by the FBI.54

15 Of the 29 files they reviewed, the factual support part of the file (the “Woods

16 Files”) for 4 were missing and may have never been created. The Memo

17 notes “errors or inadequately supported facts in all of the 25 applications

18 [with Woods Files] reviewed,” and that “FBI and NSD officials we

19 interviewed indicated to us that there were no efforts by the FBI to use

20 existing FBI and NSD oversight mechanisms to perform comprehensive,

21 strategic assessments of the efficacy of the Woods Procedures or FISA

22

23

24 50 The 2019 IG Report.

25

51 Id. at viii. 52 The 2020 IG Memo at p. 2-3.

26

53 Id. 54 Id.

27

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1 accuracy, to include identifying the need for enhancements to training and 2 improvements in the process, or increased accountability measures.”55

3

Argument

4

The "damning" IG Report and Memo that document the "systematic

5 incompetence," of the FBI's FISA search warrant application practice and

6 procedure is hitherto inaccessible new material evidence concealed by the

7 government. This concealed evidence taints the integrity, credibility, and 8 reliability of all the proceedings and evidence in this case.56 Given these

9 revelations, the ex parte, in camera assertions of the government, whatever they

10 may have been, concerning the integrity of its secret search, are unworthy of the

11 presumption of credibility. The evidence of systemic and pervasive error is

12 indispensable to any court’s review of this case. These are material facts that

13 should have been presented to the jury. Any reasonable juror would, more likely

14 than not, conclude that there's reasonable doubt as to integrity, credibility, and

15 reliability of the government’s case. Particularly, when confronted with the

16 government's pervasive and systemic errors in all the FISA applications reviewed

17 to date, combined with the government's refusal to allow the Defense any access to

18 its FISA Application and search. If the government wants to rebut this reasonable

19 accusation of taint in this case, then it should produce the FISA Application and all

20 related evidence to the Defense and subject it to testing in our adversarial system.

21

Moreover, the government's concealment of the serious systemic errors in

22 the FISA application process - doubtless aggravated by the FISA application

23

24

25

55 Id. 56 Charlie Savage, Problems in FBI Wiretap Applications Go Beyond Trump Aide Surveillance,

26 Review Finds: The Bureau has Routinely Botched Work on Surveillance Applications for its
National Security Investigations, An Inspector General Said, N.Y. Times (March 31, 2020).

27

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1 process's ex parte nature - are material to Gartenlaub's case and deprived

2 Gartenlaub of his right to a complete defense.

3

The government's use of the fruits of a secret FISA search warrant to

4 prosecute an unrelated domestic crime, as happened here, is a recipe for

5 governmental abuse. In the 33 years between 1979 and 2012, the FISC denied only

6 11 secret FISA applications and granted the rest. The FISC has a 99.97% approval 7 rating for warrant applications.57 This is only beat by the 100% error rate

8 discovered by the Inspector General's review of FISA applications to date.

9 There is no reason for the public to trust the integrity of the FISA application

10 and FISC review process. Nor is there any reason for the courts to extend

11 such trust when unsubstantiated national security interests are used to cloak

12 a domestic criminal prosecution in secrecy and ex parte proceedings.

13 I. This Court Should Vacate Petitioner's Conviction, or Order a New

14

Trial, Because the Previously Unavailable New Evidence Taints the

15

Integrity of the Proceedings and Would Lead a Juror to Find Reasonable Doubt

16

17

Neither the District Court nor the Jury had the benefit of the IG's

18 Report and Memo. The pattern of errors, omissions, and missing case files

19 documented in the IG's Report and Memo evidence serious systemic and

20 institutional practical and procedural flaws in every FISA application

21 reviewed so far by the Inspector General. Reasonable Jurors when presented

22 with this evidence alongside the fact that the government refuses to disclose

23 anything about the FISA Application would find reasonable doubt. And the

24

25

57 See Conor Clarke, Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp? 66 STAN. L. REV. ONLINE 125, 125 (2014); see also, Fed’n Am. Scientists, Foreign Intelligence

26 Surveillance Act, available at https://www.fas.org/irp/agency/doj/fisa (last visited Mar. 06, 2019)
(collecting the Foreign Intelligence Surveillance Court's annual reports to Congress).)

27

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1 District Court is likely to have ruled in favor of Petitioner's Franks motion, and

2 other FISA related motions, given that the Court stated its misgivings about the

3 FISA Application on the record, to say nothing of how knowledge of the IG Report 4 and Memo would have affected the Defense's strategy.58

5

A. The New Evidence Would Lead a Jury to Find Reasonable Doubt

6

7

The Court should vacate Petitioner's conviction because the new evidence

8 would lead a jury to a finding of reasonable doubt. In order to overturn a

9 conviction or grant a new trial based on new evidence it must be “more likely than 10 not any reasonable juror would have reasonable doubt.”59 In Schulp v. Deloi the

11 United States Supreme Court held that the standard for habeas corpus actual

12 innocence on new evidence claims requires that “a petitioner must "support his

13 allegations of constitutional error with new reliable evidence - whether it be

14 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 15 physical evidence-that was not presented at trial."”60 Then the habeas court will

16 consider "all the evidence, old and new, incriminating and exculpatory, without

17 regard to whether it would necessarily be admitted under rules of admissibility that 18 would govern at trial."61 All this is provided, however, that “the factual predicate

19 for the claim could not have been discovered previously through the exercise of 20 due diligence.”62

21

There is no way that Petitioner could have discovered the systemic and

22 pervasive errors the Inspector General found. Gartenlaub has never had access to

23

58 (Decl. of K. Gartenlaub, (Ex. A)); (Decl. of J. Fischbach, (Ex. B).)
24 59 House v. Bell, 547 U.S. 518, 538 (2006).

25

60 Schlup v. Delo, 513 U.S. 298, 329 (1995); see also McQuiggin v. Perkins, 569 U.S. 383 (2013).

26

61 House, 547 U.S. at 538. 62 McQuiggin, 569 U.S. at 396 (citing McCleskey v. Zant, 499 U.S. 467, 495 (1991)).

27

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1 his FISA Application case file. What the IG Report and Memo indicate is

2 that there's a high likelihood that Petitioner's FISA Application is tainted by

3 the same lack of diligence and accuracy documented by the IG's Report or

4 Memo. Implicit in the denial of Petitioner's access to his FISA Application

5 and its underlying materials, as well as all the courts secret ex parte

6 meetings with the government in this case, is that the FISA application

7 process and search have integrity. The IG Memo and Report contradict this

8 premise.

9

The new evidence contained in the IG Report and Memo not only call

10 into question the District Court's denial of Petitioner's motion for a Franks

11 hearing and the Defense any access to the FISA Application and related

12 evidence, it goes directly to the integrity, credibility, and reliability of the

13 government's witnesses and evidence at trial. Given that every FISA

14 application examined by the Inspector General so far contain errors and

15 omissions, including four that are missing their case files entirely, it’s

16 reasonable to expect that Petitioner's FISA Application, is tainted with errors

17 and omissions. And again, if the government wishes to be trusted on this

18 point then it should produce Petitioner's FISA Application and related

19 evidence to the Defense for adversarial testing. Because the IG Report and

20 Memo demonstrate that the government's representations as to the integrity

21 of its FISA application practice and procedure can't be trusted. And in

22 retrospect, what look like they could be isolated factual errors in Petitioner's

23 case take on a different light in the context of the serious systemic problems

24 the Inspector General documents.

25

26

27

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1

B. The Court Should Grant a New Trial Because the New Evidence of Pervasive Errors in the FISA Application Process are Material

2

and Taint the Integrity of the Proceedings

3 The District Court, had it been aware of the systemic errors
4 5 documented in the IG Report and Memo, likely would have granted the Defense's 6 Franks motion. The point of a Franks hearing is to test the validity of a 7 government search warrant application, and it’s reasonable to assume that a court 8 presented with a list of systemic errors in other FISA applications would want to
test the FISA application in front of them for the same errors. Likewise, if the jury 9 10 learned of the serious pervasive errors in FISA applications it would put the 11 government's refusal to produce it in a different light. It follows that "the likelihood 12 of a different [trial] result is great enough to 'undermine [] confidence in the
outcome of the trial.'"63 13

14 II. 15

This Court Should Grant the Petition Because Lack of the New Evidence Denied Petitioner's Constitutional Right to Put on a Complete Defense

16

17

Had the Defense known about the systemic errors and omissions

18 documented in the IG's Report and Memo it would have materially impacted their 19 case in two ways. First, as the declarations of Petitioner and Jeff Fischbach, the 20 Defense's computer expert at trial, attest, both of them would have aggressively 21 sought to have Mr. Fischbach testify not only to the government's faulty forensics, 22 but on the fact that the FISA search is an evidentiary black hole to the Defense. 23 Second, as both attached Declarations assert,64 the Defense would have 24 aggressively sought to place the issue of FISA in front of the jury. The fact that

25 they were denied this evidence, through no lack of due diligence on their part,

26

63 Smith v. Cain, 565 U.S. 73, 75-76 (2012) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995). 64 (Decl. of Fischbach, P. 2 Lns. 18-25 (Ex. B)); (Decl. of Gartenlaub, ¶¶ 2-3 (Ex. A).)

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1 constitutes a denial of Gartenlaub's right to put on a complete defense.65 The

2 test is not whether the new evidence necessitates a different verdict, but

3 rather whether its lack deprived Petitioner of a fair trial.66

4

As Mr. Fischbach states in his declaration, had he known about the

5 systematic and pervasive errors in the FISA application process he would

6 have insisted on testifying. Fischbach sets out in his declaration how he

7 would have noted any discrepancies between the two search warrants, would

8 have insisted on putting the FISA search in front of the jury to make clear

9 the second search was based on the fruits of the FISA search, and that there

10 were anomalies in the government’s evidence which could have been the 11 result of FBI errors.67 He further would have testified that the evidence was

12 consistent with no one having ever opened the files after they were

13 downloaded in 2005, and that in fact someone other than Gartenlaub

14 downloaded them. This would certainly have raised reasonable doubt in the

15 eyes of the jury when viewed together with the evidence that Gartenlaub did

16 not share any of the normal markers of a child pornographer such as

17 continuous collection of such materials – a fact that even the judge found

18 remarkable.

19

20

21

65 See Su Chia v. Cambra, 360 F.3d 997, 1003-04 (9th Cir. 2004);California v. Trombetta, 467 U.S. 479, 485 (1984); see also, United States v. Cronic, 466 U.S. 648, 656 (1984); Crane v.

22

Kentucky, 476 U.S. 683, 690-91 (1986). 66 See Hall v. Dir. of Corr., 343 F.3d 976, 983-84 (9th Cir. Cal. September 8, 2003) (“The

23 question is not whether the defendant would more likely than not have received a different

verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial
24 resulting in a verdict worthy of confidence.”); Kyles, 514 U.S. at 434 (reversing and remanding

25

where evidence, undisclosed by the state, was found to be "material," meaning that it was favorable to the defendant, and the absence of this evidence at trial undermined confidence in the

26

outcome of the trial). 67 (Decl. of Fischbach, P. 3 Lns. 1-4 (Ex. B).)

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1

A. The Court Should Grant a New Trial to Subject the FISA Application to Discovery and the Adversarial Process

2

3

The facts surrounding the technology of copying and accessing files

4 was complex and proved confusing for both the judge and the jury. The

5 defendant’s expert witness, has a great deal of experience testifying in child 6 pornography cases and is highly credentialed.68 At a new trial Mr. Fischbach

7 would testify to the proper protocols for executing FISA searches and

8 surveillance; that deficiencies in following proper protocols may have

9 resulted in damaged or destroyed evidence; and that there was no evidence 10 of who downloaded the files or that they had ever been viewed.69 And any

11 new trial would involve a Franks motion and a renewed demand to see the FISA

12 Application and supporting materials at issue here.

13

B. The Court Should Grant a New Trial so the New Evidence and

14

FISA Search Can be Argued to a Jury

15 The Jury in this case never learned of the FISA search that led to all the
16 evidence in this case. The systemic errors documented by the IG Report and Memo
17 go directly to the weight and credibility of the government's case because it proves
18 the government's FISA application process is unreliable. Missing case files for top-
19 secret, ex parte search warrants applications in matters where the government
20 seeks to deprive someone of their liberty does not inspire confidence in the
21 government's procedure. Combine that with the fact that the FISA search in this
22 case is an evidentiary black hole for the Defense because the government refuses to
23 let the Defense see it raises the possibility that the real reason the government is
24 hiding the file is not national security interests but self-interests.
25

26

68 (Id. at P. 1 Lns. 3-10.) 69 (Id. at P. 3.)

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1

III.

In the Interests of Justice the Court Should Life Petitioner's Onerous Lifetime Probation Which Severely Hampers His Ability to Work and

2

Live

3 Mr. Gartenlaub has served his time but as things stand, his
4 Kafkaesque experience will never end. For the rest of his life he will be on
5 probation. He will have to remain on a sex offender registry. He will be
6 prevented from living in certain locations and the government will track his
7 movements and whereabouts.
8 If this court cannot bring itself to overturn this conviction or grant a
9 new trial, we ask that this court in the interest of justice, vacate Gartenlaub’s
10 lifetime probation so he may move on.
11 Conclusion
12 The Department of Justice's Inspector General's Report and Memo
13 documenting systemic incompetence, errors, and omissions - including
14 missing case files for FISA applications - taint the integrity of the
15 proceedings in this case and corrode the public's trust in our criminal justice
16 system. The Court should vacate Mr. Gartenlaub's conviction, or in the
17 alternative, grant a new trial or vacate his lifetime probation.
18

19 DATED: April 22, 2020 20
21

TOR EKELAND LAW, PLLC By: /s/ Mark Jaffe

22

Mark Jaffe

23

Tor Ekeland (NYS Bar No. TE5608)

24

Pro Bono Attorneys for Petitioner

25

26

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