937 F.3d 8
1st Cir.2019Background
- From 2014, David Wright, his uncle Usaamah Rahim, and Nicholas Rovinski discussed ISIS and a plot to behead Pamela Geller and kill police; FBI surveilled communications (including FISA surveillance); Rahim was shot and killed June 2015.
- Wright was indicted on multiple counts: conspiracy to provide material support to a designated FTO (Count One), conspiracy and obstruction counts (Counts Two, Three, Five), and conspiracy to commit terrorism transcending national boundaries (Count Four).
- At trial the government limited its § 2339B theory to “personnel” (recruits/self) and proceeded on alternative theories that the conspiracy was either “at the direction of” or “in coordination with” ISIS.
- The district court denied motions to suppress (including challenges to FISA emergency authorizations, device searches, and admission of unrecorded statements), excused a juror after an off‑record restaurant encounter with an FBI agent, and gave challenged jury instructions.
- Jury convicted on all counts; court sentenced Wright to 28 years. First Circuit affirmed Counts Two–Five, vacated Count One (material‑support conviction) because of an erroneous jury instruction and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity / suppression of evidence obtained under FISA Emergency Provision | Wright argued the Emergency Provision is facially unconstitutional (permits warrantless surveillance) or must be narrowly construed to exigent, imminent‑life‑threat situations | Gov't said FISA procedures complied and Emergency Provision is constitutional; Wright waived some FISA claims | Court rejected facial challenge and narrow‑construction claim for lack of tailored showing; suppression denied (no reversible error) |
| Search/seizure and off‑site search of electronic devices (warrant scope) | Wright argued warrant did not authorize searching electronic media after seizure (Riley concern) | Warrant explicitly cross‑referenced Attachment A which authorized off‑site searching of electronic media | Warrant permissibly authorized seizure and off‑site search; suppression denied |
| Admission of unrecorded custodial statements (due process) | Wright argued failure to record his interview violated due process and warranted suppression | Gov't: no federal constitutional right to recorded custodial interrogation; DOJ policy isn't a private right | Court held no constitutional right to recorded custodial interviews; suppression denial proper |
| Juror contact with FBI agent during trial | Wright argued district court should have further investigated possible juror taint beyond excusing Juror 25 | Gov't and court noted contact was non‑substantive; Juror 25 excused and remaining jurors affirmed no exposure to case substance | No abuse of discretion; investigation adequate and no shown prejudice |
| Permissive inference on intent (jury instruction) | Wright said instruction highlighted words (speech) and allowed improper inference of intent | Gov't relied on First Circuit pattern permissive inference language | Instruction acceptable; jury told to consider all evidence and required to find intent beyond reasonable doubt |
| Material‑support (§ 2339B) instruction — definition of "coordination" (Count One) | Wright argued the court’s instruction allowed conviction for merely acting in line with ISIS publicly available strategy/tactics (too broad) | Gov't argued instruction read as requiring coordination with organization; interpretation favors gov’t view | Court found instruction misstated law by permitting coordination with mere strategy/tactics (constitutional error). Error not harmless because evidence that Wright acted "at the direction of" ISIS was not overwhelming; Count One vacated and remanded |
| Sufficiency and instruction on terrorism transcending national boundaries (Count Four) | Wright contended evidence of overseas conduct was not "substantial" and he lacked requisite intent/knowledge | Gov't presented evidence linking overseas actor (Junaid Hussain/Abu Hussain) to plot and showing Wright knew of overseas communications; instruction permitted communication as qualifying conduct | Court rejected sufficiency challenge; instruction proper when read as whole; conviction on Count Four affirmed |
Key Cases Cited
- United States v. United States District Court (Keith), 407 U.S. 297 (1972) (domestic security surveillance may require prior judicial oversight; limited to domestic aspects)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (noting Keith suggests a special framework may be permissible for foreign‑intelligence surveillance)
- Riley v. California, 134 S. Ct. 2473 (2014) (smartphone searches implicate privacy interests; warrants generally required for cell‑phone searches)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (construing § 2339B; knowledge requirement, and that "service" can include coordinated advocacy)
- Neder v. United States, 527 U.S. 1 (1999) (constitutional instruction errors are subject to Chapman harmless‑error standard)
- Chapman v. California, 386 U.S. 18 (1967) (constitutional error requires harmless‑beyond‑a‑reasonable‑doubt analysis)
- City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015) (standards for facial challenges to statutes authorizing warrantless searches)