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United States v. Muhtorov.

No. 18-1366. D.Colo. Judge Matheson. Federal Intelligence Surveillance Act—§ 702 Warrantless Surveillance—Fourth Amendment—Separation of Powers—Discovery and Disclosure Requirements with Classified Information—Sixth Amendment Right to Speedy Trial.

December 8, 2021

Defendant arrived in the United States in 2007 as a political refugee from Uzbekistan. He became a legal permanent resident and befriended Jumaev, a fellow Uzbekistan refugee, in 2009. Sometime thereafter, defendant and Jumaev became interested in the Islamic Jihad Union (IJU), a State Department-designated foreign terrorist organization with ties to al-Qaeda.

The government learned of defendant’s connection to the IJU through incidental information it collected through warrantless surveillance conducted under § 702 of the Foreign Intelligence Surveillance Amendments Act of 2008 (§ 702) on a non-US individual living abroad. The government relied on those communications to support applications to monitor defendant’s communications under the Foreign Intelligence Surveillance Act of 1978 (FISA). After obtaining approval under FISA, the government intercepted emails between defendant and an administrator of the IJU’s website in which defendant expressed his support of and allegiance to the organization and stated his intention to purchase satellite equipment and send money to the IJU. The government also obtained emails and thousands of recordings between defendant and Jumaev regarding the IJU in which they discussed joining the jihadist movement and providing it with financial support and going to Turkey to study at a madrassa. Defendant later told an FBI informant that he planned to travel to Turkey and join the IJU.

In January 2012, FBI agents arrested defendant at a Chicago airport as he was preparing to fly to Turkey on a one-way ticket. His phone contained instructions on how to make explosive devices and graphic images of jihadists beheading captured men. Defendant was charged with conspiring to provide, providing, and attempting to provide material support to a designated foreign terrorist organization, as well as providing and attempting to provide material support to the IJU. During the pretrial period, defendant sought, unsuccessfully, to suppress evidence derived from the § 702 surveillance. Defendant remained in custody until his trial began in May 2018. He was convicted in June 2018 and sentenced to 11 years of incarceration but was released from prison in June 2021.

Defendant argued on appeal that the collection of communications under § 702 violated the Fourth Amendment and the fruit of the poisonous tree doctrine. However, the government did not need a warrant for the incidental collection of defendant’s communications during the § 702 surveillance of the foreign target located abroad, and the § 702 surveillance was reasonable under the Fourth Amendment.

Defendant also argued that § 702 violates Article III of the Constitution and separation of powers. Under § 702, the Foreign Intelligence Surveillance Court (FISC) does not issue individualized warrants; instead, it approves procedures in advance under which the government conducts warrantless foreign intelligence surveillance. While the FISC’s role is novel, § 702 complies with Article III of the Constitution and the separation of powers.

Defendant also contended that the district court should have granted him access to classified applications and documents that supported the § 702 and FISA surveillance. Here, the court carefully complied with FISA in determining the materials that could be disclosed, and defendant did not demonstrate that due process required disclosure of the classified materials. Therefore, the district court did not err.

Defendant further contended that the district court should have required the government to provide notice of the surveillance techniques it used and the evidence collected using the techniques. However, defendant did not provide any authority requiring the government to disclose its surveillance techniques, and the government complied with its discovery obligations to produce evidence derived from the investigation.

Lastly, defendant argued that his Sixth Amendment speedy trial right was violated because nearly six-and-a-half years elapsed from his arrest to his conviction. Here, the lengthy pretrial incarceration was primarily due to defendant’s requests for broad discovery; the time and resources consumed in translating voluminous materials from Russian, Uzbek, and Tajik; and the district court’s need to comply with the Classified Information Procedures Act and manage the dissemination of classified information. Those circumstances justified the length of the pretrial period.

The convictions and judgment were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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