973 F.3d 977
9th Cir.2020Background
- Four Somali‑diaspora defendants (Moalin, M. Mohamud, Doreh, Nasir Mohamud) were convicted of conspiring to send $10,900 to Somalia to support al‑Shabaab; principal evidence was a FISA Subchapter I wiretap of Moalin and hawala (Shidaal Express) transfer records.
- The NSA had been collecting bulk telephony metadata under FISA Subchapter IV (the “metadata program”); public disclosures (Snowden) and official comments linked that program to reopening the FBI’s investigation of Moalin.
- Defendants moved to suppress evidence as tainted by allegedly unlawful metadata collection and challenged the statute authorizing bulk collection (50 U.S.C. § 1861); the district court denied suppression and refused to release classified FISA materials to cleared defense counsel.
- On appeal the Ninth Circuit held the metadata program violated § 1861 and may have violated the Fourth Amendment, but suppression of trial evidence was not warranted because the court’s review of the classified record showed the later FISA Subchapter I wiretap and evidence introduced at trial were not tainted by the metadata collection.
- The court confirmed the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to use information obtained or derived from foreign‑intelligence surveillance, but found no prejudice here and declined to order suppression or other relief.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument | Held |
|---|---|---|---|
| Legality of bulk telephony metadata collection under the Fourth Amendment | Smith v. Maryland controls; no reasonable expectation of privacy in records held by third parties | Metadata collection is qualitatively and quantitatively different from Smith; Carpenter and modern technology undermine the third‑party doctrine | Court: Metadata program may have violated the Fourth Amendment but did not suppress on these facts because wiretap evidence was not tainted |
| Compliance with FISA § 1861 (relevance requirement) | Bulk collection was permissible because bulk data enables metadata analysis and is relevant to counterterrorism generally | § 1861 requires reasonable grounds that tangible things are relevant to a particular authorized investigation; bulk collection exceeds that scope | Held: Program exceeded § 1861 and violated FISA Subchapter IV |
| Remedy: suppression / ‘‘fruits’’ of unlawful collection | Evidence obtained via the Subchapter I wiretap was lawfully authorized; suppression not required | Suppress metadata and any derivative evidence (wiretap) as fruits of unlawful collection | Held: § 1861 does not clearly contemplate suppression of the third‑party records; classified record showed the wiretap evidence was not the fruit of the unlawful metadata collection, so suppression denied |
| Notice requirement when using foreign‑intelligence surveillance in prosecutions | FISA/FAA notice provisions and secrecy justify limited notice; government complied with FISA Subchapter I notice for wiretap evidence | Defendants lacked notice of metadata collection and possible other surveillance (FAA or EO 12,333) and thus were deprived of ability to litigate Fourth Amendment claims | Held: Constitution requires notice when prosecution intends to use information obtained/derived from foreign‑intelligence surveillance; on these facts any failure to give notice caused no prejudice, so conviction stands |
| Brady / discovery & evidentiary claims | Classified material was reviewed in camera and appropriate substituted disclosures were made under CIPA; no material favorable evidence withheld | Government withheld or failed to produce exculpatory classified materials (e.g., FIG assessment, linguist questionnaire); evidentiary rulings prejudiced defense | Held: District court’s sealed Brady rulings were correct; no material favorable evidence withheld; contested evidentiary rulings (exclusion of some testimony, refusal to compel safe passage or video deposition) were harmless; convictions affirmed |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (1967) (established reasonable expectation of privacy test)
- Smith v. Maryland, 442 U.S. 735 (1979) (pen register and third‑party doctrine)
- United States v. Miller, 425 U.S. 435 (1976) (no expectation of privacy in certain bank records held by third parties)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (narrowed third‑party rule for prolonged, detailed cell‑site location records)
- Am. Civil Liberties Union v. Clapper, 785 F.3d 787 (2d Cir. 2015) (held § 1861 did not authorize bulk telephony‑records program)
- Wong Sun v. United States, 371 U.S. 471 (1963) (fruit‑of‑the‑poisonous‑tree and attenuation principles)
- Dalia v. United States, 441 U.S. 238 (1979) (wiretap context and requirement for substitute post‑surveillance notice)
- Berger v. New York, 388 U.S. 41 (1967) (Fourth Amendment notice and prior restraint concerns)
- United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) (suppression is disfavored; statutory suppression only where clearly contemplated)
- United States v. Plunk, 153 F.3d 1011 (9th Cir. 1998) (standing to challenge third‑party subpoenas)