UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMSHID MUHTOROV, Defendant - Appellant.
No. 18-1366
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
December 8, 2021
PUBLISH. FILED United States Court of Appeals Tenth Circuit. Christopher M. Wolpert, Clerk of Court.
PETER FENN; LOCH JOHNSON; DAVID MEDINE; SHARON BRADFORD FRANKLIN; BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Amici Curiae.
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:12-CR-00033-JLK-1)
Patrick Toomey, American Civil Liberties Union Foundation, New York, New York (Ashley Gorski, American Civil Liberties Union Foundation, New York, New York, Virginia L. Grady, Federal Public Defender, Denver, Colorado, John C. Arceci, Assistant Federal Public Defender, Denver, Colorado, with him on the briefs), for Defendant-Appellant.
Joseph Palmer, National Security Division, U.S. Department of Justice, Washington, D.C. (Steven L. Lane, National Security Division, U.S. Department of Justice, Washington, D.C., Jason R. Dunn, former United States Attorney, Denver, Colorado, Matthew R. Kirsch, United States Attorney, Denver, Colorado, James C. Murphy, Assistant United States Attorney, District of Colorado, Denver, Colorado, John C. Demers, Assistant Attorney General, Denver, Colorado, with him on the briefs), for Plaintiff-Appellee.
Andrew Crocker and Aaron Mackey, Electronic Frontier Foundation, San Francisco, California, filed an amicus brief on behalf of Church Committee Staff in support of Defendant-Appellant.
Andrew C. Lillie, Jessica Black Livingston, Nathaniel H. Nesbitt, and Mark D. Gibson of Hogan Lovells US LLP, Denver, Colorado filed an amicus brief on behalf of David Medine and Sharon Bradford Franklin in support of Defendant-Appellant.
Elizabeth Goitein, of The Brennan Center for Justice at NYU School of Law, Washington, D.C., filed amicus brief in support of Defendant-Appellant.
Norman R. Mueller of Haddon, Morgan and Foreman, P.C., Denver, Colorado, and John D. Cline, Law Office of John D. Cline, San Francisco, California, filed an amicus brief on behalf of National Association of Criminal Defense Lawyers in support of Defendant-Appellant.
Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and EID, Circuit Judge.
TABLE OF CONTENTS
BACKGROUND.................................................................................................................... 1
A. Factual and Investigative Background.......................................................................... 1
B. Procedural History....................................................................................................... 3
C. Issues on Appeal........................................................................................................... 4
I. Fourth Amendment Challenge to Section 702-Derived Evidence................................... 6
A. Historical and Legal Background ................................................................................ 6
1. Pre-FISA Developments .......................................................................................... 6
2. Traditional FISA ..................................................................................................... 8
3. Executive Order 12333 ......................................................................................... 10
4. The Terrorist Surveillance Program and the PATRIOT Act ................................ 10
5. The Protect America Act....................................................................................... 11
6.
a. Mechanics of Section 702 ................................................................................. 13
i. Step One - Development of procedures ........................................................ 14
ii. Step Two - Submission for FISC review ..................................................... 16
iii. Step Three - Section 702 surveillance .......................................................... 16
iv. Step Four - Database storage ....................................................................... 19
b. Differences between Section 702 and traditional FISA ................................... 19
B. Investigative Background........................................................................................... 20
C. Procedural History...................................................................................................... 20
D. Challenge on Appeal ................................................................................................. 21
E. Standard of Review and Fourth Amendment Background ........................................ 25
F. Discussion.................................................................................................................. 26
1. No Warrant Required............................................................................................. 27
a. No warrant required to surveil a foreign target................................................. 27
b. Incidental collection of Mr. Muhtorov‘s communications ................................. 29
i. Legal background - incidental overhear and plain view .............................. 30
1) Incidental overhear.................................................................................. 30
a) Title III case law ................................................................................ 30
b) Applying the Kahn and Donovan dicta to the Fourth Amendment....................................................................................... 31
c) Applying the Kahn and Donovan dicta to foreign intelligence surveillance - FISCR, Second Circuit, and Ninth Circuit... 32
2) Plain view................................................................................................ 34
ii. Analysis ........................................................................................................ 36
1) Plain view and incidental collection without a warrant............................ 37
2) Foreign intelligence surveillance context - Section 702‘s statutory requirements........................................................................................... 39
3) Incidental overhear.................................................................................. 40
4) Mr. Muhtorov‘s objections ...................................................................... 41
2. Collection of Mr. Muhtorov‘s Communications Passed the Reasonableness Balancing Test................................................................................... 45
i
a. Reasonableness balancing test ............................................................................. 46
i. Government‘s interest .................................................................................... 46
ii. Mr. Muhtorov‘s privacy interest..................................................................... 47
iii. Privacy safeguards......................................................................................... 47
iv. Totality of the circumstances......................................................................... 48
b. Mr. Muhtorov‘s reasonableness arguments .......................................................... 49
II. Article III Challenge ....................................................................................................... 52
A. FISC Background....................................................................................................... 53
B. Discussion .................................................................................................................. 54
1. Prohibition of Advisory Opinions.......................................................................... 54
a. Advisory opinions background .......................................................................... 55
b. Analysis............................................................................................................. 56
i. Not advisory opinions .................................................................................... 57
ii. Mr. Muhtorov‘s counterarguments................................................................ 62
2. Separation of Powers and Article III ..................................................................... 63
a. Separation of powers background...................................................................... 65
b. Analysis............................................................................................................. 68
i. FISC does not trench upon executive prerogatives ....................................... 69
ii. FISC performs appropriate judicial functions ............................................... 70
iii. Additional considerations.............................................................................. 72
1) Deference to Congress ............................................................................ 72
2) Section 702 furthers privacy interests..................................................... 74
III. Nondisclosure of FISA and Section 702 Application Materials ................................... 76
A. Legal Background ..................................................................................................... 76
B. Procedural History...................................................................................................... 78
C. Standard of Review .................................................................................................... 80
D. Discussion .................................................................................................................. 80
1. Disclosure Under FISA.......................................................................................... 81
a. Traditional FISA application materials.............................................................. 81
b.
2. Due Process ........................................................................................................... 85
a. Due process and Brady ..................................................................................... 86
i. Legal background........................................................................................... 86
ii. Analysis ........................................................................................................ 86
b. Due Process and § 1806(f) - Mathews .............................................................. 88
i. Legal background........................................................................................... 88
ii. Analysis ........................................................................................................ 89
c. Due process and Franks .................................................................................... 90
i. Legal background........................................................................................... 90
ii. Analysis ........................................................................................................ 90
IV. Notice of Surveillance Methods and Discovery of Communications Therefrom ........ 92
A. Legal Background ..................................................................................................... 93
1.
ii
2. Federal Rule of Criminal Procedure 16 ................................................................ 95
3. CIPA...................................................................................................................... 95
B. Additional Procedural History ................................................................................... 97
C. Standard of Review .................................................................................................... 98
D. Discussion .................................................................................................................. 99
1. Due Process ........................................................................................................... 99
2.
3. Federal Rule of Criminal Procedure 16 .............................................................. 102
4. CIPA.................................................................................................................... 104
V. Speedy Trial................................................................................................................. 106
A. Background ............................................................................................................. 107
1. Legal Background ............................................................................................... 107
a. Sixth Amendment ............................................................................................ 107
b. Speedy Trial Act ............................................................................................. 108
2. Procedural History ............................................................................................... 109
a. Initial proceedings............................................................................................ 109
b. Speedy Trial Act orders ................................................................................... 109
c. Superseding indictment.................................................................................... 110
d. Discovery ........................................................................................................ 111
e. Section 702 notice and motion to suppress...................................................... 111
f. Third superseding indictment and second trial setting..................................... 112
g. Severance and third trial setting....................................................................... 112
h. Fourth trial setting........................................................................................... 112
i. District judge‘s medical condition and final trial setting ................................ 113
j. Disposition of speedy trial motions ................................................................ 113
k. Convictions and sentence................................................................................. 115
B. Discussion ................................................................................................................ 115
1. First Barker Factor: Length of the Delay............................................................. 115
a. Additional legal background ........................................................................... 115
b. Analysis........................................................................................................... 116
2. Second Barker Factor: Reasons for the Delay...................................................... 118
a. Additional legal background ........................................................................... 118
i. Quantifying the delay................................................................................... 119
1) Caused by defendant.............................................................................. 120
2) Caused by the prosecution .................................................................... 120
3) Caused by neither the defendant nor the prosecution .......................... 120
4) Overall considerations .......................................................................... 121
ii. Weighing the delay ..................................................................................... 121
b. Additional procedural background - discovery................................................ 122
c. Analysis........................................................................................................... 126
i. Quantifying the pretrial periods ................................................................... 127
a) Mr. Muhtorov‘s discovery requests ..................................................... 128
b) CIPA ................................................................................................... 129
iii
c) Translation issues................................................................................... 130
d) Government‘s discovery conduct ........................................................... 133
2) District judge‘s medical condition............................................................... 136
3) Overall quantification .............................................................................. 138
ii. Weighing the pretrial periods ......................................................................... 138
d. The Dissent ..................................................................................................... 138
3. Third Barker Factor: Assertion of Speedy Trial Right ......................................... 140
a. Additional legal background ........................................................................... 140
b. Additional procedural history .......................................................................... 142
c. Analysis........................................................................................................... 144
4. Fourth Barker Factor: Prejudice to the Defendant................................................ 147
a. Additional legal background ........................................................................... 147
i. Presumption of prejudice ............................................................................. 147
ii. Specific evidence of prejudice - three types ................................................ 148
1) Oppressive pretrial incarceration .......................................................... 148
2) Anxiety and concern ............................................................................. 149
3) Impairment to the defense...................................................................... 149
a) Particularity......................................................................................... 150
b) Causation............................................................................................. 150
c) Steps to preserve evidence .................................................................. 150
b. Additional procedural history .......................................................................... 151
c. Analysis........................................................................................................... 152
i. Presumptive prejudice.................................................................................. 152
ii. Specific prejudice ........................................................................................ 152
1) Oppressive
2) Anxiety and concern ............................................................................. 155
3) Impairment of the defense ..................................................................... 155
5. Balancing the Barker Factors............................................................................... 158
CONCLUSION .................................................................................................................. 163
iv
TABLE OF ACRONYMS
| Acronym | Title |
|---|---|
| AG | Attorney General |
| AUMF | Authorization for the Use of Military Force |
| CIA | Central Intelligence Agency |
| CIPA | Classified Information Procedures Act |
| DNI | Director of National Intelligence |
| FAA | FISA Amendments Act of 2008 |
| FBI | Federal Bureau of Investigation |
| FISA | Foreign Intelligence Surveillance Act of 1978 |
| FISC | Foreign Intelligence Surveillance Court |
| FISCR | Foreign Intelligence Surveillance Court of Review |
| FOIA | Freedom of Information Act |
| IJU | Islamic Jihad Union |
| ISP | Internet Service Provider |
| NSA | National Security Agency |
| PAA | Protect America Act of 2007 |
| Section 702 | Section 702 of the Foreign Intelligence Surveillance Amendments Act of 2008 |
| STA | Speedy Trial Act of 1974 |
| TSA | Transportation Security Administration |
| TSP | Terrorist Surveillance Program |
v
A jury convicted Jamshid Muhtorov on three counts of conspiring and providing material support to the Islamic Jihad Union (“IJU“), a State Department-designated foreign terrorist organization with ties to al-Qaeda, in violation of
BACKGROUND
The following provides an overview of (A) Mr. Muhtorov‘s criminal conduct and the government‘s investigation, (B) the procedural history between arrest and trial, and (C) the issues Mr. Muhtorov raises
A. Factual and Investigative Background
Mr. Muhtorov arrived in the United States in 2007 as a political refugee from Uzbekistan and became a legal permanent resident. In 2009, he met Bakhtiyor Jumaev, a fellow Uzbekistan refugee with a similar background. The two became friends and developed a shared interest in the IJU.
The government first became aware of Mr. Muhtorov‘s connection to the IJU through warrantless surveillance conducted under Section 702 of the Foreign Intelligence Surveillance Amendments Act of 2008 (“Section 702“), Pub. L. No. 110-261, 122 Stat. 2436 (codified at
After securing approval under FISA, the government intercepted email communications between Mr. Muhtorov and an administrator of the IJU‘s official website beginning in 2011. In these communications, Mr. Muhtorov expressed his “support of the [IJU], his profession of allegiance to them, and his profession of wanting to provide whatever support he could to them.” ROA, Vol. XI at 411. He discussed his intention to purchase portable satellite equipment and send $300 in cash, which he had received from Mr. Jumaev. He swore his “Bay‘ah,” or allegiance, to the IJU and said “he would do whatever is necessary for them or whatever they asked of him, even to the point of death.” Id. at 447.1
The government captured emails and roughly 39,000 audio recordings - mostly in the Russian, Uzbek, and Tajik languages - including emails and phone calls between Mr. Muhtorov and Mr. Jumaev regarding the IJU. They talked about joining the “wedding” (a common code word for the jihadist movement, martyrdom operations, or an armed struggle) and referenced the “wedding house” and the “wedding gift” (a common code
word for financial support). They discussed Mr. Muhtorov‘s going to Turkey to study at a madrassa - a religious school - along with Mr. Jumaev‘s son, and their desire to martyr themselves.
In December 2011, Mr. Muhtorov told an ostensible IJU sympathizer - in reality, an informant for the Federal Bureau of Investigation (“FBI“) - that he planned to travel to Turkey, and from there to join the IJU. On January 21, 2012, FBI agents arrested him at the Chicago airport as he was preparing to fly to Turkey on a one-way ticket. He was carrying nearly $3,000 in cash, two new iPhones, and a new iPad. His own phone contained videos showing combat against coalition forces, instructions on how to make explosive devices, and graphic images of jihadists beheading captured men.
B. Procedural History
Following Mr. Muhtorov‘s arrest, he and Mr. Jumaev were charged with conspiracy to provide material support, providing, and attempting to provide material support in the form of $300 to a designated foreign
Mr. Muhtorov remained incarcerated until his trial began with jury selection on May 14, 2018. The jury convicted him on June 21, 2018. In the years leading up to trial, the government made voluminous discovery disclosures that required significant resources to translate documents and communications from Russian, Uzbek, and Tajik into English. The district court oversaw the discovery process. Due to the nature of the investigative materials, the court conducted ex parte hearings in compliance with the Classified Information Procedures Act (“CIPA“),
After the jury convicted Mr. Muhtorov, the district court sentenced him to 11 years of incarceration. He was released from prison on June 18, 2021.
C. Issues on Appeal
Mr. Muhtorov does not contest the sufficiency of the evidence, but he challenges his conviction on five grounds.2
First, he asserts that the collection of his communications through Section 702 surveillance violated the Fourth Amendment. Although the government did not introduce Section 702 evidence at trial, Mr. Muhtorov claims the FISA evidence used at trial would not have been collected without the Section 702 surveillance. We reject this argument because the Section 702 surveillance of Mr. Muhtorov was lawful. The government did not need a warrant for the incidental collection of Mr. Muhtorov‘s communications
during the Section 702 surveillance of the foreign target located abroad. And the Section 702 surveillance was reasonable under the Fourth Amendment.
Second, he argues that Section 702 violates Article III of the Constitution and the separation of powers. Under Section 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. Although the FISC‘s role under Section 702 is novel, it comports with Article III and the separation of powers.
Third, he contends the district court should have granted him access to the classified applications and other related materials that supported the government‘s Section 702 and traditional FISA surveillance. He claims disclosure was required under the FISA provision governing disclosure,
Fourth, he argues the district court should have required the government to provide him notice of the specific surveillance techniques the government may have
Fifth, he claims that his Sixth Amendment speedy trial right was violated because nearly six-and-a-half years elapsed from his arrest in January 2012 until his conviction in June 2018, during which time he was incarcerated. After careful review of the record, we conclude there was no violation. Although six-and-a-half years is an unusually lengthy period of pre-conviction detention, it was principally due to Mr. Muhtorov‘s requests for broad discovery, the time and resources needed to translate voluminous materials, and the district court‘s need to comply with CIPA and manage classified information. On the unique facts of this case, those circumstances justified the length of the pretrial period.
I. FOURTH AMENDMENT CHALLENGE TO SECTION 702-DERIVED EVIDENCE
Mr. Muhtorov argues the traditional FISA evidence that was presented at trial should have been suppressed as fruit of the poisonous tree because it was derived from the incidental collection of his communications during Section 702 surveillance. He challenges the Section 702 surveillance under the Fourth Amendment.
A. Historical and Legal Background
The following provides historical and legal background for our discussion of the electronic surveillance that occurred in this case.
1. Pre-FISA Developments
In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court held that the Fourth Amendment applies to electronic surveillance of oral communications because such surveillance “violate[s] the privacy upon which [one] justifiably relie[s].” Id. at 353; see id. at 360 (Harlan, J., concurring) (finding an enclosed telephone booth is an area where one “has a constitutionally protected reasonable expectation of privacy“).
Shortly thereafter, Congress enacted Title III of the Omnibus Crime Control Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified as amended at
In United States v. U.S. District Court for the Eastern District of Michigan (“Keith“), 407 U.S. 297 (1972), the Supreme Court addressed the Fourth Amendment limits on executive authority to conduct surveillance for domestic security. The Attorney General (“AG“) had authorized electronic surveillance regarding domestic security matters without prior judicial approval. See id. at 299. The Court rejected the government‘s reliance on any inherent executive authority found in Article II of the Constitution, and held that “Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely
The Keith Court expressly limited its opinion to “domestic aspects of national security,” and gave “no opinion as to[] the issues which may be involved with respect to activities of foreign powers or their agents.” Id. at 321-22. The Court “recognize[d] that domestic security surveillance may involve different policy and practical considerations from the surveillance of ‘ordinary crime.‘” Id. at 322. It left open the possibility that “[d]ifferent standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.” Id. at 322-23. The “warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.” Id. at 323.
2. Traditional FISA
In the aftermath of Keith, Congress enacted FISA in 1978 “to authorize electronic surveillance to obtain foreign intelligence information.” 92 Stat. at 1783; see Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 402 (2013) (noting that in enacting FISA, “Congress legislated against the backdrop of [Keith],” which had “implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible“). Before FISA, “electronic surveillance undertaken for national security or foreign intelligence purposes was subject to little or no judicial or legislative oversight.” David S. Kris & J. Douglas Wilson, National Security Investigations and Prosecutions (“Kris & Wilson“) § 3:1 (3d ed. Sept. 2019 update).
As enacted in 1978, FISA applied to communications “sent by or intended to be received by a . . . United States person who is in the United States” or “to or from a person in the United States . . . if such acquisition occurs in the United States.”
collect information from a communication with a United States person.4 And it did not apply to communications occurring entirely outside the country.
FISA required the government to seek ex parte approval from the FISC to conduct electronic surveillance aimed at foreign intelligence. FISA created the FISC as a court of federal district judges appointed by the Chief Justice to review government surveillance applications in camera. See
Traditional FISA is akin to the familiar warrant process in criminal cases. But instead of needing to show probable cause of criminality, the government must show probable cause that the surveillance would be directed at a foreign power or agent of a foreign power. See United States v. Cavanagh, 807 F.2d 787, 789-90 (9th Cir. 1987);
United States v. Megahey, 553 F. Supp. 1180, 1191-92 (E.D.N.Y. 1982), aff‘d sub nom., United States v. Duggan, 743 F.2d 59 (2d Cir. 1984).
3. Executive Order 12333
FISA did not address “foreign-to-foreign electronic communications, foreign intelligence collection at home and abroad outside of FISA‘s definition of ‘electronic communications,’ and the incidental collection of U.S. persons’ communications [through the acquisition of international communications].” Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content (“Donohue“), 38 Harv. J.L. & Pub. Pol‘y 117, 145 (2015).
President Ronald Reagan‘s Executive Order 12333 provided the framework for this kind of surveillance. It directed “[a]gencies within the Intelligence Community [to] use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad.” Exec. Order No. 12333, 3 C.F.R. 200, § 2.4 (1982). The Order required each agency to establish procedures to govern collection methods that “protect constitutional and other legal rights and limit use of such information to lawful governmental purposes,” subject to the AG‘s approval. Id.
4. The Terrorist Surveillance Program and the PATRIOT Act
Following the September 11, 2001 terrorist attacks, President George W. Bush issued a secret executive order in early 2002 authorizing the National Security Agency (“NSA“) “to conduct warrantless wiretapping of telephone and e-mail communications where one party to the communication was located outside the United States” and one party was believed to be a member of al-Qaeda or an affiliated terrorist organization. Clapper, 568 U.S. at 403.
Around the time this Terrorist Surveillance Program (“TSP“) was launched and implemented, but before Congress became aware of it, Congress amended FISA to provide greater flexibility to uncover terrorist plots. The USA PATRIOT Act provided extra judges, authorized roving and multi-point surveillance, and lowered the surveillance threshold from a primary purpose of securing foreign intelligence to “a significant purpose.” Pub. L. No. 107-56, 115 Stat. 272, §§ 201-225 (2001).
5. The Protect America Act
Congress and the public became aware of the TSP through a New York Times article in December 2005. See Donohue, 38 Harv. J.L. & Pub. Pol‘y at 126. To justify the program, the AG explained to congressional leaders that traditional FISA lacked the flexibility needed to identify potential threats. Id. at 126-27.
At the time, Congress determined that FISA restricted the government‘s agility in responding to terrorist threats in a post-9/11
Congress temporarily replaced the TSP with the Protect America Act of 2007 (“PAA“), Pub. L. No. 110-55, 121 Stat. 552, as a stop-gap measure to stay in place until February 2008 pending further review of the NSA wiretapping program. See In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act (“In re Directives“), 551 F.3d 1004, 1006-07 (FISA Ct. Rev. 2008). The PAA empowered the Director of National Intelligence (“DNI“) and the AG to authorize, without court order and for one year, “acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States.” Pub. L. No. 110-52, § 2 (codified at
6. The FISA Amendments Act of 2008
Congress enacted the FISA Amendments Act of 2008 (“FAA“), a major overhaul of FISA that set up two tracks for foreign intelligence surveillance. Under the FAA, traditional FISA continues to require a FISC-approved warrant for individual surveillance applications to target United States persons. The FAA added Section 702,
Section 702 is structurally similar to the PAA. It broadens wiretap authority to allow warrantless surveillance of foreign targets reasonably believed to be overseas even if they may be communicating with people in the United States so long as the “purpose” is not to “target a particular, known person reasonably believed to be in the United States.”
a. Mechanics of Section 702
Under Section 702, the government may compel telecommunications service providers located in the United States (including internet service providers and companies that maintain communications infrastructure) to provide emails or other electronic communications to, from, or about individuals the government believes are (a) not United States persons and (b) located abroad. See Hasbajrami, 945 F.3d at 650-51.
The Section 702 process works as follows:
i. Step One – Development of procedures
The AG and DNI must develop “targeting,” “minimization,” and, beginning in 2018, “querying” procedures.
Targeting procedures must be “reasonably designed” to
(A) ensure that any acquisition [of electronic communications] is limited to targeting persons reasonably believed to be located outside the United States; and
(B) prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.
Minimization “describes the manner in which the government processes communications after they have been collected and seeks to provide safeguards against the misuse of Section 702 information.” Id. at 655 (emphasis omitted). Section 702 minimization procedures must “meet the definition of minimization procedures” for traditional FISA electronic surveillance or traditional FISA physical searches.
Querying involves searching through collected communications databases to find information relevant to a particular investigation or agency function. “[Q]uerying procedures do not govern the acquisition of information, but only the searches of already-acquired information contained in storage.” Kris & Wilson § 17:3 n.15. Querying procedures must be “consistent with the requirements of the fourth amendment.”
ii. Step Two – Submission for FISC review
The AG and DNI submit their targeting, minimization, and, beginning in 2018, querying procedures to the FISC for review.
iii. Step Three – Section 702 surveillance
Subject to limited exceptions, FISC approval is required to surveil targets under Section 702. “[T]he Attorney General and the Director of National Intelligence can execute a Section 702 authorization only after the FISC enters an order approving the proposed acquisition.” In re DNI/AG 702(h) Certifications 2018, 941 F.3d 547, 552 (FISA Ct. Rev. 2019) (per curiam).9
After it receives FISC pre-clearance or an exigent-circumstances authorization, an intelligence agency “can begin surveilling individuals it seeks to target.” Hasbajrami, 945 F.3d at 653. “Section 702 surveillance usually begins when an agency ‘tasks’ a specific ‘selector’ or ‘facility,’ usually an e-mail address or telephone number.” Id. The AG and DNI may then “direct, in writing, an electronic communication service provider to . . . immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition” from that selector or facility.
The NSA operates two collection programs under Section 702: (1) “PRISM collection” and (2) “upstream collection.” See Hasbajrami, 945 F.3d at 653.
If the government issues a directive to an internet service provider (“ISP“), such as Google or Microsoft, the resulting surveillance is known as “PRISM collection.” Id. “PRISM collection does not include the acquisition of telephone calls.” Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 7 (July 2, 2014) (“PCLOB-2014“); see also Schuchardt v. President of the U.S., 839 F.3d 336, 350 (3d Cir. 2016) (“NSA analysts receive the content of emails collected as part of the [PRISM] program.“).
Under PRISM, the government sends a certain identifier, such as an email address, to the ISP. The ISP then provides all communications sent to or from that
For upstream collection, the government does not compel information from an ISP, but instead from the providers that control the underlying infrastructure over which telecommunications take place. See PCLOB-2014 at 7. Unlike PRISM, which collects only those communications that are sent from or to a target account hosted on a particular ISP, upstream collection casts a wider net not limited to a single ISP. It can capture communications that are about the target, even if the target is not the sender or recipient of the communication. See Kris & Wilson § 17:11. The scope of upstream collection is thus much broader than PRISM. See id.
“While the government cannot target U.S. persons or people located in the United States, it is permitted to acquire and in some cases retain and use communications in which a U.S. person is in contact with a target.” PCLOB-2014 at 114. This “incidental collection” concerns communications of a United States person or someone in the United States that are swept up through Section 702 surveillance because the person is communicating with a targeted non-United States person located abroad. See Hasbajrami, 945 F.3d at 654. Incidental collection “would occur under PRISM, for instance, if the NSA has targeted the e-mail address of a non-United States person in another country, and a United States person e-mails that targeted individual.” Id. In such situations the “ISP would be required to provide the NSA with any such e-mails as part of its compliance with a Section 702 directive targeting the non-United States party to the communication.” Id.
iv. Step Four – Database storage
“Once communications are acquired under Section 702, they go into one or more databases at the NSA, CIA, and FBI.” PCLOB-2014 at 127. In theory, minimization procedures should lead to deletion of incidentally collected communications that have no relevance to foreign intelligence. See Hasbajrami, 945 F.3d at 655 (in the Section 702 context, “information is ‘minimized’ by non-retention“). But deletion rarely happens. PCLOB-2014 at 128-29. “Instead, those communications often remain in the agency‘s databases unreviewed until they are retrieved in response to a database query, or . . . deleted upon expiration of their retention period, without ever having been reviewed.” Id. at 129.
Thus, through Section 702, the government amasses large databases of communications, including communications to or from United States persons in the United States. And the government may later query these databases, such as for a name or email address. After-the-fact queries are sometimes called “backdoor searches.” Hasbajrami, 945 F.3d at 657 (quotations omitted).
b. Differences between Section 702 and traditional FISA
Section 702 differs from traditional FISA procedures in several key respects. See id. at 650-51. First, traditional FISA requires a FISA warrant for a specific target supported by probable cause and specifying the nature and location of the facilities to be surveilled. But under Section 702, the FISC approves “procedures in advance, targeting non-United States persons located abroad as a category, and the government does not have to return to the FISC to seek approval before it undertakes surveillance of any specific individual or his or her accounts under those Section
B. Investigative Background
Details of how Section 702 surveillance was used in this case are classified. In its brief, the government explained what occurred in broad strokes:
In this case, the government acquired under Section 702 the communications of a non-U.S. person abroad and, in so doing, incidentally collected communications to which Muhtorov was a party. The government used some of these incidentally collected communications to support its application for traditional FISA orders. The fruits of that traditional FISA collection were therefore partially “derived from” information collected under Section 702. Evidence obtained and/or derived from that traditional FISA collection was, in turn, used at trial.
Aplee. Br. at 11 (citations omitted). The government‘s well-supported representation that no upstream collection occurred, see Aplee Br. at 29 n.12, indicates that the Section 702 surveillance involved PRISM collection only.
C. Procedural History
Before he knew about the Section 702 surveillance, Mr. Muhtorov moved to suppress the information collected through traditional FISA. The district court reviewed that information in camera under the procedures set out in
A month later, the government filed notice that it had used Section 702 to develop evidence against Mr. Muhtorov. He again moved to suppress the traditional FISA surveillance, arguing it was fruit of the poisonous tree because it was derived from warrantless Section 702 surveillance. Mr. Muhtorov argued that Section 702 violates the Fourth Amendment on its face because its purpose and effect is to give the government access to United States persons’ communications without a warrant and probable cause. And he contended that even if the Fourth Amendment does not require a warrant, Section 702 fails the Fourth Amendment‘s reasonableness balancing test. He further argued that the Section 702 surveillance in this case violated the Fourth Amendment as applied to him.
The district court found the collection of Mr. Muhtorov‘s communications under Section 702 did not violate the Fourth Amendment, so it denied the motion.
D. Challenge on Appeal
Mr. Muhtorov claims the government violated the Fourth Amendment when it incidentally collected his communications under Section 702. Because the government relied on those communications to obtain traditional FISA surveillance orders, he contends the resulting traditional FISA evidence introduced at trial should have been suppressed as fruit of the poisonous tree. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (discussing the fruit of the poisonous tree doctrine); United States v. Hatfield, 333 F.3d 1189, 1194 (10th Cir. 2003)
First, Mr. Muhtorov argues the government violated the Fourth Amendment when it incidentally collected his communications through Section 702 surveillance without a warrant. And even if a warrant was not required, he contends the surveillance was unreasonable. As in the district court, Mr. Muhtorov brings facial and as-applied challenges. We need address only the latter—whether the collection of his communications violated the Fourth Amendment.11
Second, he asserts the government unconstitutionally queried Section 702 databases using identifiers associated with his name without a warrant. He contends that querying led to retrieval of communications or other information that were used to support the traditional FISA applications. But this is sheer speculation. There is nothing in the record to support that evidence derived from queries was used to support the traditional FISA applications.12
The government affirmatively represents that “the Section 702-derived evidence
Our careful and independent review of the classified record, including the traditional FISA applications, confirms these representations are accurate. The record confirms that the relevant evidence did not arise from querying. We therefore do not address Mr. Muhtorov‘s second Fourth Amendment argument. See United States v. Thomas, 475 F.2d 115, 117 (10th Cir. 1973) (declining to entertain a contention for reversal where “the record below reflect[ed] that th[e] contention [wa]s unfounded“).13
The Fourth Amendment question turns, “as so often in Fourth Amendment cases, [on] what precisely the facts show.” United States v. Lyles, 910 F.3d 787, 793 (4th Cir. 2018). Here, the record shows that Mr. Muhtorov‘s communications were incidentally collected under Section 702 and were used to support the traditional FISA applications. Mr. Muhtorov‘s as-applied challenge thus begins and ends with whether the incidental collection of his Section 702 communications was constitutional. It was. We thus reject Mr. Muhtorov‘s Fourth Amendment argument.
E. Standard of Review and Fourth Amendment Background
“When reviewing a denial of a defendant‘s motion to suppress, we view the evidence in the light most favorable to the government.” United States v. Cruz, 977 F.3d 998, 1003 (10th Cir. 2020). We review the district court‘s factual findings for clear error. Id. at 1003-04. But “we review de novo the ultimate question of reasonableness under the Fourth Amendment,” id. at 1004, and other legal conclusions, United States v. Soza, 643 F.3d 1289, 1291 (10th Cir. 2011). “The final determination whether a warrantless search was reasonable under the Fourth Amendment is a question of law to be reviewed de novo.” United States v. Palmer, 360 F.3d 1243, 1245 (10th Cir. 2004).
The Fourth Amendment provides that “[t]he 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[.]”
Even when a warrant is not required, the “search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution.” Maryland v. King, 569 U.S. 435, 448 (2013). “To say that no warrant is required is merely to acknowledge that ‘rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.‘” Id. (quoting Illinois v. McArthur, 531 U.S. 326, 331 (2001)).
F. Discussion
Based on the foregoing, our analysis proceeds in two steps. First, we must determine whether the absence of a warrant rendered the incidental collection of Mr. Muhtorov‘s communications “per se unreasonable.” See Katz, 389 U.S. at 357. We determine that a warrant was not required, and the incidental collection was therefore not per se unreasonable. Second, we apply the Maryland v. King reasonableness balancing test to the surveillance in this case. We conclude that it passes the reasonableness balancing test.
In rejecting Mr. Muhtorov‘s argument that the warrantless collection of his communications during Section 702 surveillance violated the Fourth Amendment, we join the Ninth Circuit in United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016), and the Second Circuit in United States v. Hasbajrami, 945 F.3d 641 (2d Cir. 2019). Those courts found that similar warrantless incidental collection of a United States person‘s communications during the lawful Section 702 surveillance of a non-United States person did not violate the defendant‘s Fourth Amendment rights.
1. No Warrant Required
In the course of surveilling a non-United States person located abroad under Section 702, the government incidentally collected Mr. Muhtorov‘s communications. We conclude no warrant was required for (a) the Section 702 surveillance of the foreign target and (b) the incidental collection of Mr. Muhtorov‘s communications.
a. No warrant required to surveil a foreign target
In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court held that the Fourth Amendment had “no application” to a search in Mexico of a citizen and resident of Mexico who had no voluntary attachment to the United States. Id. at 274-75. The Court held the Fourth Amendment does not apply to foreign persons outside the United States, but only “to ‘the people‘“—a constitutional “term of art” that “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” Id. at 265.
The Court further explained that the Fourth Amendment “protect[s] the people of the United States against arbitrary action by their own Government” and “restrict[s] searches and seizures which might be conducted by the United States in domestic matters.” Id. at 266.
Thus, “aliens receive constitutional protections [only] when they have come within the territory of the United States and developed substantial connections with this country.” Id. at 271; see also Agency for Int‘l Dev. v. All. for Open Soc‘y Int‘l, Inc., 140 S. Ct. 2082, 2086 (2020) (“[I]t is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.“).
Mohamud and Hasbajrami applied Verdugo-Urquidez to Section 702 surveillance of foreigners abroad. The Ninth Circuit observed that “the Fourth Amendment does not apply to searches and seizures by the United States against a non-resident alien in a foreign country.” Mohamud, 843 F.3d at 439 (quotations omitted). Thus, “the government‘s monitoring of the overseas foreign national‘s email fell outside the Fourth Amendment.” Id. Similarly, the Second Circuit noted that “the Fourth Amendment does not apply extraterritorially to the surveillance of persons abroad.” Hasbajrami, 945 F.3d at 662.
We agree with Mohamud and Hasbajrami. When the target of Section 702 surveillance is a foreign national located abroad having no substantial connections with the United States, that target is not entitled to Fourth Amendment protections. Even if the instrumentalities of surveillance were located in the United States, the foreign target does not have Fourth Amendment protection because “what matters here is the location of the target, and not where the government literally obtained the electronic data.” Mohamud, 843 F.3d at 439 (quotations omitted). In this case, therefore, the government was not required to obtain a warrant before conducting the surveillance that targeted a non-United States person located abroad.
b. Incidental collection of Mr. Muhtorov‘s communications
We turn to whether the government needed a warrant to collect Mr. Muhtorov‘s communications during the lawful Section 702 PRISM surveillance targeting a non-United States person located abroad.14 It did not.
i. Legal background – incidental overhear and plain view
1) Incidental overhear
a) Title III case law
The Supreme Court first discussed how the Fourth Amendment applies when the government incidentally overhears non-targets during electronic surveillance in two Title III cases: United States v. Kahn, 415 U.S. 143 (1974), and United States v. Donovan, 429 U.S. 413 (1977).
In Kahn, the Supreme Court heard a challenge to Title III surveillance when the Title III order omitted the name of a person whose communications were collected. The Court found that such collection does not offend the statutory text of Title III because “[a] requirement that the Government fully investigate the possibility that any likely user of a telephone was engaging in criminal activities before applying for an interception order would greatly subvert the effectiveness of the law enforcement mechanism that Congress constructed.” Id. at 153; see also Donovan, 429 U.S. at 423 (“[T]he Government is not required to identify an individual in the application unless it has probable cause to believe (i) that the individual is engaged in the criminal activity under investigation and (ii) that the individual‘s conversations will be intercepted over the target telephone.“).
In Kahn, the Court noted in dicta that the Title III order was not a “general warrant” forbidden by the Fourth Amendment. Analogizing to physical searches, it stated that if there had been a warrant to search a home for records of a gambling operation, “a subsequent seizure of such records” bearing the handwriting of someone not identified in the warrant would comport with the Fourth Amendment. Id. at 155 n.15. Similarly, in Donovan, the Court noted in dicta that the Fourth Amendment requirement that a warrant specify the “place to be searched, and persons or things to be seized” does not require “that all those likely to be overheard engaging in incriminating conversations be named.” Id. at 427 n.15.
b) Applying the Kahn and Donovan dicta to the Fourth Amendment
Courts have applied the Kahn and Donovan dicta to Fourth Amendment challenges.
For example, the Second Circuit considered a Fourth Amendment challenge to a Title III order permitting the interception of calls made by persons not explicitly named in the Title III order from a particular prison phone suspected to be used to coordinate a narcotics conspiracy. Citing the Kahn and Donovan dicta, the court said the order did not violate the Fourth Amendment. See United States v. Figueroa, 757 F.2d 466, 472-73 (2d Cir. 1985).
As another court put it, “in the Title III context, incidental interception of a person‘s conversations during an otherwise
c) Applying the Kahn and Donovan dicta to foreign intelligence surveillance – FISCR, Second Circuit, and Ninth Circuit
Three courts have extended the “incidental overhear” doctrine discussed in the Kahn and Donovan dicta to Fourth Amendment challenges to foreign intelligence surveillance.
In In re Directives, the FISCR applied the Title III incidental overhear doctrine to a Fourth Amendment challenge to incidental collections under the PAA, a statute substantially the same as Section 702. Citing Kahn, the FISCR held that “[i]t is settled beyond peradventure that incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.” In re Directives, 551 F.3d at 1015.
Next, citing In re Directives, the Ninth Circuit in Mohamud held that “where a search was not directed at a U.S. person‘s communications, though some were incidentally swept up in it,” no warrant was required “because the search was targeted at a non-U.S. person with no Fourth Amendment right.” Mohamud, 843 F.3d at 439. The Ninth Circuit acknowledged the defendant‘s argument that “prior cases [in the Title III wiretapping context] upholding incidental collection involved prior judicial review or a narrowly drawn exception to the warrant requirement, as opposed to the collection here.” Id. at 440 (quotations omitted). But it disagreed that the lack of prior judicial review under Section 702 raised a Fourth Amendment concern because “the guiding principle behind [the Title III incidental overhear cases] applies with equal force here: when surveillance is lawful in the first place—whether it is the domestic surveillance of U.S. persons pursuant to a warrant, or the warrantless surveillance of non-U.S. persons who are abroad—the incidental interception of non-targeted U.S. persons’ communications with the targeted persons is also lawful.” Id. at 440-41 (quoting United States v. Hasbajrami, No. 11-cr-623 (JG), 2016 WL 1029500, at *9 (E.D.N.Y. Mar. 8, 2016)).
Finally, the Second Circuit in Hasbajrami joined the Ninth Circuit in rejecting a Fourth Amendment challenge to the incidental collection of a United States person‘s communications during Section 702 surveillance. It found no warrant was required because “law enforcement officers do not need to seek an additional warrant or probable cause determination to continue surveillance when, in the course of executing a warrant or engaging in other lawful search activities, they come upon evidence of other criminal activity outside the scope of the warrant or the rationale justifying the search, or the participation of individuals not the subject of that initial warrant or search.” Hasbajrami, 945 F.3d at 662.
The Second Circuit also noted, with little elaboration, that “[t]he ‘incidental overhear’ doctrine is closely related to the ‘plain view’ doctrine applied in connection with physical searches.” Id. at 664 n.17 (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-67 (1971)). Just as the “seizure of evidence of a crime in plain view without a warrant is a reasonable seizure . . ., when evidence of a potential crime involving an”
American comes to light during the lawful surveillance of a foreign operative abroad, it is entirely reasonable within the meaning of the
2) Plain view
In Coolidge, the Supreme Court explained the reasoning behind the “plain view exception to the warrant requirement,” 403 U.S. at 464, stating that “[i]t is well established that under certain circumstances the police may seize evidence in plain view without a warrant.” Id. at 465. The plain view doctrine applies when “the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character.” Id. The plain view exception also applies “[w]here the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement,” such as the “hot pursuit” exception or the “search incident to arrest” exception. Id. The crucial point is that “the police officer . . . had a prior justification for an intrusion.” Id. at 466. But “plain view alone is never enough to justify the warrantless seizure of evidence.” Horton v. California, 496 U.S. 128, 136 (1990) (quotations omitted).
There is no requirement that officers come across the evidence in plain view inadvertently. “The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement.” Id. at 138.15
The plain view doctrine has three requirements before an item may be lawfully seized. “A warrantless seizure of evidence is sustainable if (1) the police officer was lawfully located in a place from which to plainly view the item; (2) the officer had a lawful right of access to the item; and (3) it was immediately apparent that the seized item was incriminating on its face.” United States v. Castorena-Jaime, 285 F.3d 916, 924 (10th Cir. 2002); see also United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993). In addition, “a warrantless search [must] be circumscribed by the exigencies which justify its initiation,” whether it be hot pursuit, search incident to arrest, or some other exception to the warrant requirement. Horton, 496 U.S. at 139-40. This and the “immediately apparent” requirement prevent a reasonable search from becoming an unreasonable general exploratory search. See United States v. Carey, 172 F.3d 1268, 1272-76 (10th Cir. 1999) (rejecting a plain view argument, and finding the search of a computer for
Although the typical plain view scenario occurs when an officer sees an incriminating object and then seizes it, courts have applied the doctrine to the full range of senses, including plain hearing, see, e.g., United States v. Ceballos, 385 F.3d 1120, 1124 (7th Cir. 2004), plain smell, see, e.g., United States v. Gault, 92 F.3d 990, 992 (10th Cir. 1996), and plain feel, see, e.g., United States v. Campbell, 549 F.3d 364, 373 (6th Cir. 2008).
Overall, “[t]he plain view doctrine merely reflects an application of the
ii. Analysis
We explain why (1) the plain view doctrine, (2) the foreign intelligence surveillance context, and (3) the incidental overhear cases justify the incidental collection of Mr. Muhtorov“s communications under
1) Plain view and incidental collection without a warrant
The incidental collection of Mr. Muhtorov“s communications without a warrant during the course of otherwise lawful
The “initial intrusion” that brought the government into contact with Mr. Muhtorov“s communications was “supported . . . by one of the recognized exceptions to the warrant requirement.” See Coolidge, 403 U.S. at 465. It was lawful because, under Verdugo-Urquidez, no warrant is required to surveil foreigners located abroad.
It was then reasonable for the government to collect Mr. Muhtorov“s communications during the otherwise lawful
Moreover, it is impracticable to require the government to cease PRISM surveillance of a foreign target communicating with a United States person and immediately seek a traditional FISC warrant or
As the Second Circuit put it, “the overall practice of surveilling foreigners abroad of interest to the legitimate purpose of gathering foreign intelligence information may predictably lead to the interception of communications with United States persons.” Hasbajrami, 945 F.3d at 665. This predictability does not undermine the government“s argument that no warrant was required for the incidental collection of Mr. Muhtorov“s communications. See United States v. Khan, 989 F.3d 806, 818 (10th Cir. 2021) (discussing the lack of an inadvertent discovery requirement for the plain view doctrine to apply).
2) Foreign intelligence surveillance context — Section 702 “s statutory requirements
Two of
First,
Second,
3) Incidental overhear
The
First, plain view has been a mostly unspoken premise of the “incidental overhear” cases. Kahn and Donovan suggested that, once the surveilling officers obtained a
Second, the cases finding no warrant was required to seize communications of persons overheard on a wiretap are factually similar to the incidental collection of Mr. Muhtorov“s communications. Both involve lawfully initiated electronic surveillance in which a non-target communicates with the target. Just as “surveillance under a [
* * * *
Based on the foregoing, we find no warrant was required for the incidental collection of Mr. Muhtorov“s communications.
4) Mr. Muhtorov“s objections
Mr. Muhtorov“s objections to the absence of a warrant lack merit.
First, he contrasts the absence of any warrant in this case with cases in which a
Even though the government did not obtain a warrant before surveilling the non-United States target, Verdugo-Urquidez supported the initial warrantless intrusion. Just as the plain view doctrine can apply when “the initial intrusion that brings the police within plain view . . . is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement,” Horton, 496 U.S. at 135, here the initial intrusion was justified at its inception.18
Second, Mr. Muhtorov argues that “multiple preconditions [in
Third, Mr. Muhtorov contends the communications were not “incidental” because the monitoring of communications between foreign targets and United States persons was contemplated and desired. Although Mr. Muhtorov cites a report suggesting this may sometimes happen under
In addition, the subjective motivations of the surveilling officers normally are not material to whether a particular item was seized in compliance with the
Fourth, Mr. Muhtorov contends that the sheer volume of communications gathered under
* * * *
For these reasons, the government was not required to obtain a warrant before it incidentally collected Mr. Muhtorov“s communications during lawful
In concluding that no warrant was required, we heed this court“s admonition against adopting “an amorphous “reasonableness” test.” United States v. Bute, 43 F.3d 531, 534-35 (10th Cir. 1994). Through case-by-case
Our conclusion that the incidental collection of Mr. Muhtorov“s communications under
2. Collection of Mr. Muhtorov“s Communications Passed the Reasonableness Balancing Test
Although we find that the lack of a warrant did not render the incidental collection of Mr. Muhtorov“s communications under
“As the text of the
The reasonableness balancing test is particularly concerned with ensuring that a search and seizure is “both limited and tailored reasonably to secure law enforcement needs while protecting privacy interests.” McArthur, 531 U.S. at 337; see also id. at 332-33.19
i. Government“s interest
The Supreme Court has labeled “the Government“s interest in combating terrorism . . . an urgent objective of the highest order.” Holder v. Humanitarian L. Project, 561 U.S. 1, 28 (2010); accord Haig v. Agee, 453 U.S. 280, 307 (1981) (“It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” (quotations omitted)); see also Hasbajrami, 945 F.3d at 663 (discussing “the paramount national interest in preventing foreign attacks on our nation and its people“); Duka, 671 F.3d at 340 (“The government“s interests in security and intelligence are entitled to particular deference.“); In re Directives, 551 F.3d at 1012 (“[T]he relevant governmental interest—the interest in national security—is of the highest order of magnitude.“). “Efforts to monitor the activities of [agents of terrorist organizations] to detect and forestall possible terrorist attacks on this country present a paradigm case of a compelling government interest.” Hasbajrami, 945 F.3d at 663.
This interest is implicated when the target of surveillance communicates with persons in the United States, such as Mr. Muhtorov, because “[t]he recruitment of persons inside the United States or the placement of agents here to carry out terrorist attacks is one of the very threats that make it vital to surveil terrorist actors abroad.” Id. at 666-67.
ii. Mr. Muhtorov“s privacy interest
We assume Mr. Muhtorov had a reasonable expectation of privacy in his communications that were monitored and intercepted through
iii. Privacy safeguards
“An important component of the reasonableness inquiry is whether the FISC-approved targeting and minimization measures sufficiently protect the privacy interests of U.S. persons.” Mohamud, 843 F.3d at 443; see, e.g., In re Directives, 551 F.3d at 1015 (the minimization procedures under the PAA “serve . . . as a means of reducing the impact of incidental intrusions into the privacy on non-targeted United States persons“).
iv. Totality of the circumstances
Under the totality of the circumstances, we find Mr. Muhtorov“s privacy interest
The threat to the United States when foreign actors coordinate with and recruit United States persons bolsters the reasonableness of the incidental collection of United States persons” communications during lawful foreign intelligence surveillance directed at foreign nationals abroad. The “immediate objective” of the
In addition, the
* * * *
We find the warrantless incidental collection of Mr. Muhtorov“s communications was constitutional under the reasonableness balancing test.
b. Mr. Muhtorov“s reasonableness arguments
Mr. Muhtorov principally focuses on the alleged lack of post-seizure restrictions and the government“s “ability to retain, use, and deliberately query its massive
First, his argument about post-seizure querying is inapposite because, as explained above, the trial evidence was not derived from querying a
The
Third, Mr. Muhtorov“s argument that
* * * *
The
II. ARTICLE III CHALLENGE
In addition to his
He argues
A. FISC Background
Under
Thus, “the FISC approves
individual or his or her accounts under those Section 702 [procedures].” Id. at 651.
“[T]he FISC reviews for more than form, and must determine whether the targeting procedures are indeed ‘reasonably designed’ to achieve their statutory goals, and whether the minimization procedures and querying procedures ‘meet the definition’ and ‘comply with the requirements in the statute.‘” Kris & Wilson § 17:9 (quoting
50 U.S.C. § 1881a(j)(2)(B) -(D)).
The FISC “has repeatedly noted that the government‘s targeting and minimization procedures must be considered in light of the communications actually acquired.” Redacted, 2011 WL 10945618, at *9. It considers the procedures in light of the “volume and nature” of communications being acquired. Id. In making this determination, the FISC considers not only the government‘s proposed procedures and accompanying affidavits, but also “responses to FISC orders to supplement the record, and the sworn testimony of witnesses at hearings.” PCLOB-2014 at 28-29 (footnotes omitted).
B. Discussion
We explain why Section 702 (1) complies with
1. Prohibition of Advisory Opinions
The FISC‘s role under Section 702 complies with the
a. Advisory opinions background
One limitation on the judicial power is the prohibition of advisory opinions,
This court described the origins of the advisory opinion doctrine as follows:
The rule prohibiting federal courts from rendering advisory opinions was first enunciated in 1793 when the Supreme Court refused to answer questions of international law submitted to Chief Justice Jay by Secretary of State Jefferson on behalf of President Washington. 3 Correspondence and Public Papers of John Jay, 488-89 (1890). Since then, the Court has sought on numerous occasions to delineate factors which separate a “case” or “controversy” from a dispute that is hypothetical, abstract or academic in character.
Kunkel v. Continental Cas. Co., 866 F.2d 1269, 1273 (10th Cir. 1989).
Thus, a case must be a “present, live controversy” for courts to “avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam). “[A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quotations omitted). In short,
b. Analysis
We acknowledge that FISC‘s Section 702 role does not conform to traditional notions of
i. Not advisory opinions
The FISC‘s Section 702 pre-clearance rulings are not advisory opinions. The FISC applies law to real-world issues, not abstract questions, and makes decisions that bind the executive.
First, the FISC applies “principles of law” to “facts.” Vermont v. New York, 417 U.S. at 277. It must examine the detailed factual submissions of the government—the proposed targeting, minimization, and querying procedures—to ensure compliance with Section 702 and applicable constitutional provisions. See, e.g., Redacted, 2011 WL 10945618, at *9 (finding that the NSA‘s proposed targeting procedures were “consistent with the requirements of” Section 702, proposed minimization procedures were inconsistent with the requirements of Section 702, and the targeting and minimization procedures were inconsistent with the
For example, in 2011, the FISC reviewed targeting and minimization procedures submitted by the AG and DNI to ensure compliance with Section 702. See Redacted, 2011 WL 10945618, at *5. To assess the proposed targeting and minimization procedures for Section 702 surveillance, the FISC considered the factual realities of proposed upstream surveillance. It said that newly revealed factual developments—the “government‘s revelations as to the manner in which NSA acquires Internet communications“—required it to change its legal conclusion. See id. at *9. This example shows that the FISC must answer concrete questions based on factual developments concerning electronic surveillance.28
In sum, the FISC‘s Section 702 determinations resemble non-advisory judicial adjudication. They are grounded in evidentiary submissions, not abstract and hypothetical questions.29
The ex parte Section 702 proceedings are comparable to other adjudication that does not raise
As the Supreme Court observed:
[F]ederal courts and judges have long performed a variety of functions that, like the functions involved here, do not necessarily or directly involve adversarial proceedings within a trial or appellate court. For example, federal courts have traditionally supervised grand juries and assisted in their “investigative function” by, if necessary, compelling the testimony of witnesses. Federal courts also participate in the issuance of search warrants, and review applications for wiretaps, both of which may require a court to consider the nature and scope of criminal investigations on the basis of evidence or affidavits submitted in an ex parte proceeding.
Morrison v. Olson, 487 U.S. 654, 681 n.20 (1988) (citations omitted).
The dissent relies on a distinction between “adverse legal arguments” and “adverse legal interests.” See Anne Woolhandler, Adverse Interests and Article III, 111 Nw. U. L. Rev. 1025, 1032 (2017). The Supreme Court has drawn a similar distinction between the “prudential” preference for concrete adverseness, “which sharpens the presentation of the issues,” and “adequate
Second, the FISC‘s decision to grant, deny, or modify the government‘s proposed Section 702 procedures has immediate consequences that are legally binding on the executive. The FISC can approve the procedures and authorize acquisitions under
To illustrate the practical and legally binding effects of the FISC‘s Section 702 determinations, consider when the FISC in 2011 granted in part and denied in part the government‘s request for surveillance approval. It said, “the ‘upstream collection’ of Internet transactions containing multiple communications . . . is, in some respects, deficient on statutory and constitutional grounds.” Redacted, 2011 WL 10945618 at *29. The FISC ordered the government to correct the deficiencies within 30 days or “cease the implementation of [surveillance under the proposed procedures] insofar as they permit the acquisition” of statutorily and constitutionally suspect communications. Id. at *30.
The “nature and effect” of these proceedings shows that they constitute judicial activity under
The FISC thus makes “a present determination of the issues offered [that] will have some effect in the real world.” Wyoming v. U.S. Dep‘t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005). We agree with the Ninth Circuit that “FISC opinions are not advisory because the FISC either approves or denies the requested acquisition (and electronic communication service providers must follow the directives or challenge them).” Mohamud, 843 F.3d at 444 n.28.30
ii. Mr. Muhtorov‘s counterarguments
Mr. Muhtorov‘s arguments to the contrary are without merit. He contends that the “FISC‘s role is limited to evaluating in a vacuum whether the government‘s proposed targeting and minimization procedures comply with the statute and the Constitution, without any concrete factual context relating to particular targets.” Aplt. Br. at 49. But even though the FISC lacks factual information about the particular targets who will be surveilled, its Section 702 review is based on the factual realities of electronic surveillance. Before approving or disapproving the government‘s proposed procedures, the FISC applies specific statutory criteria to concrete facts about the government‘s Section 702 procedures to determine whether the proposed procedures are lawful. The FISC does not make that determination in a vacuum, but rather in accord with the role of courts to determine the “lawfulness of the conduct.” See Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013).
Mr. Muhtorov‘s focus on “particular targets,” meaning the people who might be surveilled under Section 702 upon the FISC‘s approval of the government‘s proposed procedures, is misplaced. The FISC does not make Section 702 determinations with knowledge about the particular people who will be surveilled. But that does not turn the Section 702 determination into an exercise of “advising what the law would be upon a hypothetical state of facts.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quotations omitted). The government‘s proposed targeting, minimization, and (as of 2018) querying procedures are not “hypothetical.” The FISC does not give abstract advice about the procedures’ legality, but rather offers a definite declaration that the policies either do or do not comply with
* * *
The FISC does not issue advisory opinions because its Section 702 determinations involve the application of specific statutory criteria to the concrete facts of the government‘s proposed Section 702 surveillance procedures, and those determinations have immediate real-world consequences and legally binding force.
2. Separation of Powers and Article III
Section 702‘s compliance with the separation of powers bolsters our conclusion that the FISC‘s Section 702 orders are not advisory opinions.
The Supreme Court has long emphasized that
Constitution‘s central mechanism of separation of powers,” which “depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 559-60 (1992); see also TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (“The law of
Similarly, the Court has repeatedly explained the connection between the separation of powers and the
Section 702 is consistent with the separation of powers. FISC orders stem from judicial balancing of national security and individual privacy interests. The political branches, legislating in service of our national security, conferred this judicial responsibility on the FISC. Section 702‘s compliance with the separation of powers bolsters our conclusion that FISC judges do not possess “a general authority to conduct oversight of decisions of the elected branches of Government” by issuing advisory opinions. See id.32
“The Constitution sought to divide the delegated powers of the new federal government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility.” I.N.S. v. Chadha, 462 U.S. 919, 951 (1983). “To the legislative department has been committed the duty of making laws, to the executive the duty of executing them, and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts.” Massachusetts v. Mellon, 262 U.S. 447, 488 (1923).
Under our constitutional framework, “the separate powers were not intended to operate with absolute independence.” United States v. Nixon, 418 U.S. 683, 707 (1974). Our constitutional structure embodies “the more pragmatic, flexible approach of Madison in the Federalist Papers,” Nixon v. Admin. of Gen. Servs., 433 U.S. 425, 442 (1977), that only “where the whole power of one department is exercised by the same hands which possess the whole power of another department [are] the fundamental principles of a free constitution . . . subverted,” The Federalist No. 47 at 325-36 (J. Cooke ed. 1961). The Constitution envisions both the separation and sharing of power among the branches. So, “[w]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring). This means, for example, that “the exercise of [executive] powers is vindicated, not eroded, when confirmed by the Judicial Branch.” Boumediene v. Bush, 553 U.S. 723, 797 (2008).
The Supreme Court has upheld novel governmental arrangements under this flexible and pragmatic approach to the separation of powers. For example, in Mistretta v. United States, 488 U.S. 361 (1989), the Supreme Court upheld the constitutionality of the United States Sentencing Commission. The Commission was established as “an independent commission in the judicial branch of the United States.” Id. at 368 (quoting
The defendant in Mistretta challenged his sentence under the guidelines, arguing that the legislation creating the Commission violated the separation of powers by “effect[ing] an unconstitutional accumulation of power within the Judicial Branch while at the same time undermining the Judiciary‘s independence and integrity.” Id. at 383. He argued that (1) “Congress unconstitutionally has required the [Judicial] Branch, and individual
The Supreme Court rejected this challenge. It first noted that the Commission was “a peculiar institution within the framework of our Government” because it was “placed” in the Judicial Branch but did “not exercise judicial power.” Id. at 384-85. This placement, however, did not offend the separation of powers. Id. at 390. The Court held that “Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another branch and that are appropriate to the central mission of the Judiciary.” Id. at 388. “[T]he sentencing function long has been a peculiarly shared responsibility among the Branches of Government and has never been thought of as the exclusive constitutional province of any one Branch.” Id. at 390. The Court also held placement of the Commission within the Judicial Branch did not weaken the Branch by preventing it “from accomplishing its constitutionally assigned functions.” Id. at 396 (quoting Nixon v. Admin. of Gen. Servs., 433 U.S. at 443). Thus,
[S]ince substantive judgment in the field of sentencing has been and remains appropriate to the Judicial Branch, and the methodology of rulemaking has been and remains appropriate to the Branch, Congress’ considered decision to combine these functions in an independent Sentencing Commission and to locate that Commission within the Judicial Branch does not violate the principle of separation of powers.
b. Analysis
As explained above, the FISC‘s Section 702 role does not involve rendering advisory opinions. This leaves the question whether Congress “violate[d] the constitutional principle of separation of powers” when it enacted Section 702. See Mistretta, 488 U.S. at 380. It did not.
Section 702 is unusual. See Bank Markazi v. Peterson, 136 S. Ct. 1310, 1317 (2016). It grants to an
The Mistretta Court‘s analysis guides us here as to whether (i) the FISC‘s Section 702 functions “trench upon the prerogatives of another Branch,” Mistretta, 488 U.S. at 388; and (ii) those functions “are appropriate to the central mission of the Judiciary,” id.33
The FISC‘s Section 702 functions do not “trench upon the prerogatives of [the executive] branch.” Id.
The Mistretta Court held that the Sentencing Commission does not encroach upon the prerogatives of the legislative branch because “the sentencing function long has been a peculiarly shared responsibility among the Branches of Government and has never been thought of as the exclusive constitutional province of any one Branch.” 488 U.S. at 390. So too has the regulation and implementation of foreign intelligence surveillance long been a governmental function administered jointly by the judiciary and the executive.
Congress passed FISA in 1978 in the aftermath of the Supreme Court‘s decision in Keith. In Keith, the Court rejected “the Government‘s argument that internal security matters are too subtle and complex for judicial evaluation,” and found no merit to the idea that “prior judicial approval will fracture the secrecy essential to official intelligence gathering.” 407 U.S. at 320. Congress created the FISC to provide judicial oversight of executive surveillance of foreign powers and their agents. Congress passed the FISA Amendments Act of 2008 in the aftermath of the September 11, 2001 attacks and
President Bush‘s warrantless surveillance program. Section 702 expanded the executive‘s ability to conduct foreign surveillance under FISA while preserving the FISC‘s role in overseeing such surveillance.
Thus, for over 40 years, the FISC has regularly reviewed executive branch applications to conduct electronic surveillance for foreign intelligence purposes. In that time, foreign intelligence surveillance has been a “peculiarly shared responsibility among the Branches of Government.” See Mistretta, 488 U.S. at 390. Section 702, which preserves the FISC‘s role in placing judicial limits on foreign intelligence surveillance, does not encroach on the traditional prerogatives of the executive because the oversight of foreign surveillance has been a peculiar function of the judiciary, and the FISC in particular, for many decades. In other words, “[t]his is not a case in which judges are given power . . . in an area in which they have no special knowledge or expertise.” Morrison v. Olson, 487 U.S. 654, 676 n.13 (1988). The FISC‘s work under Section 702 conforms to the functions that
ii. FISC performs appropriate judicial functions
The prospective, ex parte, and categorical nature of the FISC‘s Section 702 functions does not violate the separation of powers because these functions are “appropriate to the central mission of the Judiciary.” See Mistretta, 488 U.S. at 388.
In Mistretta, the Sentencing Commission promulgated guidelines that would apply prospectively and categorically. Nevertheless, the Supreme Court found that the “rulemaking” function of the Commission complied with the separation of powers because “federal judges have enjoyed wide discretion to determine the appropriate sentence in individual cases and have exercised
For over 40 years, the FISC has overseen traditional FISA applications, in which it makes ex parte decisions that balance the government‘s foreign intelligence interests against the privacy and liberty interests of those surveilled. Striking that balance is a critical part of the FISC‘s Section 702 role as well. Compare
Nor is the categorical nature of Section 702 proceedings a departure from traditional judicial functions. In deciding individual cases, courts frequently assess the lawfulness of a governmental program or statute on a broader scale that necessarily accounts for the interests of third parties not before the court. This occurs, for example, when a court finds a statute facially unconstitutional, see, e.g., United States v. Stevens, 559 U.S. 460, 482 (2010), or in administrative law cases concerning a rule‘s lawfulness, see, e.g., Dep‘t of Com. v. New York, 139 S. Ct. 2551 (2019).
iii. Additional considerations
Two additional considerations show that Section 702 is consistent with the separation of powers. First, we owe Congress deference when it balances individual liberty interests and national security concerns. Second, Section 702 procedures provide some protections for individual privacy interests.
1) Deference to Congress
When, in the aftermath of President Bush‘s warrantless surveillance program, Congress enacted Section 702, it sought to balance national security interests and individual privacy interests. It did so by retaining flexibility for the executive to conduct foreign intelligence surveillance while providing a role for the judiciary. We owe deference to Congress‘s efforts to balance these interests. See Boumediene, 553 U.S. at 796 (“In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches.“); Rostker v. Goldberg, 453 U.S. 57, 63-64 (1981) (noting that “in no other area has the Court accorded Congress greater deference” than “in the context of Congress’
Indeed, the Supreme Court rejected a separation of powers challenge to an “unusual” statute that made assets available to satisfy judgments in an action that the statute expressly identified by docket number. See Bank Markazi, 136 S. Ct. at 1328. To bolster its determination that the statute was not one in which Congress was unlawfully prescribing rules of decision in pending cases, see id. at 1323, the Court noted the statute was “an exercise of congressional authority regarding foreign affairs, a domain in which the controlling role of the political branches is both necessary and proper,” id. at 1328. We owe similar deference to Congress‘s policy judgment “regarding foreign affairs” in designing the FISC‘s Section 702 role.
The Supreme Court has recognized that separation of powers favors—rather than condemns—the kind of interbranch cooperation that occurred here when Congress defined the executive and judicial branches’ roles in implementing and regulating foreign surveillance. See Nixon v. Admin. of Gen. Servs., 433 U.S. at 441 (rejecting a separation of powers argument raised by President Nixon against an act regulating the disposition of presidential materials because the Executive Branch assented to the Act when President Ford signed it into law). The constitutionality of a governmental act is more likely when the branches work together. See Youngstown, 343 U.S. at 635-37 (Jackson, J., concurring) (noting that presidential power is at its greatest when acting “pursuant to an express or implied authorization of Congress“).
2) Section 702 furthers privacy interests
Section 702 does not infringe the separation of powers in part because the FISC‘s Section 702 functions interpose judicial review between government surveillance and the individuals to be surveilled. As explained above, warrantless surveillance of foreign nationals abroad is categorically permissible under Verdugo-Urquidez. Section 702 prevents the government from “intentionally target[ing]” United States persons,
By requiring FISC oversight of these limitations on foreign intelligence surveillance, Congress provided judicial protection for United States persons whose communications were previously surveilled without any judicial check under the TSP.35
Congress has thus impeded the “accumulat[ion]” of broad powers in a single “organ” of government, namely the executive. See Chadha, 462 U.S. at 949. “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004). Because it interposes judicial review of foreign surveillance programs and provides individuals with at least some privacy protections, Section 702 is “not in derogation of the separation of powers, but . . . maintain[s] their proper balance,” to the extent that the separation of powers exists to protect individual liberty and privacy from an overreaching executive branch. See Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982).36
* * * *
Section 702 complies with Article III.37
III. NONDISCLOSURE OF FISA AND SECTION 702 APPLICATION MATERIALS
Mr. Muhtorov argues the district court erred by not requiring the government to disclose the classified applications, orders, and other materials (the “application materials“) that allowed the government to conduct traditional FISA and Section 702 surveillance in this case.38 He claims disclosure was required under the FISA provision governing disclosure,
A. Legal Background
Under FISA, when
- a party moves “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” FISA, and
- “the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States,”
-
the district court must “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 United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982), the D.C. Circuit articulated a standard for courts to apply when considering whether FISA disclosure is “necessary” under
disclosure is necessary only where the court‘s initial review of the application, order, and fruits of the surveillance indicates that the question of legality may be complicated by factors such as indications of possible misrepresentation of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of nonforeign intelligence information, calling into question compliance with the minimization standards contained in the order.
Id. at 147 (quotations omitted). “The language of section 1806(f) clearly anticipates that an ex parte, in camera determination is to be the rule. Disclosure and an adversary hearing are the exception, occurring only when necessary.” Id. Other circuits have applied Belfield to decide questions arising under
If, after the in camera and ex parte review required under
B. Procedural History
Mr. Muhtorov filed separate motions to suppress traditional FISA-acquired evidence and Section 702-derived evidence. Those motions also sought access to classified application materials to allow defense counsel to assess the legality of the surveillance. The district court denied Mr. Muhtorov‘s requests for access to classified application materials when it denied both motions to suppress.
In the first motion, Mr. Muhtorov asked to review applications, extensions, orders, and related materials concerning the traditional FISA surveillance of him, as well as applications related to surveillance of third-party targets in which Mr. Muhtorov‘s
The AG filed an affidavit under
In the second motion, Mr. Muhtorov asked to review the following materials so he could craft a tailored suppression motion and mount a defense at trial:
the government‘s applications to the FISC seeking authorization for, and the FISC‘s orders authorizing, the [Section 702] surveillance that intercepted communications to or from Mr. Muhtorov; notice of all communications to or from Mr. Muhtorov intercepted under [Section 702]; all evidence obtained under [Section 702] that the government intends to use at trial or that is material to Mr. Muhtorov‘s defense; all evidence derived from communications intercepted under [Section 702] that the government intends to use at trial; and records indicating how Mr. Muhtorov‘s communications were intercepted and identified under [Section 702] or were derived from communications collected under [Section 702].
Id. at 712-13. He again requested that his counsel have access to the application materials under CIPA.
The district court performed an “exhaustive” in camera and ex parte review of the classified application materials and “supplemental classified materials prepared at [the court‘s] request” and found the Section 702 surveillance was lawful. ROA, Vol. III at 148. The court advised that it would address Mr. Muhtorov‘s request for specific, additional discovery and declassification in a separate order after an upcoming CIPA hearing. Mr. Muhtorov never received access to the classified application materials he requested.
C. Standard of Review
The parties disagree about the standard of review. Mr. Muhtorov implied in district court that the court‘s “discretion” governed the choice to disclose. See ROA, Vol. I at 380. He now asserts that whether FISA or due process required disclosure is subject to de novo review. The government asserts that an abuse of discretion standard applies.
This court has not addressed this question. We join other circuits in reviewing a decision not to disclose materials under
But we evaluate whether due process required disclosure de novo. See Ali, 799 F.3d at 1021-22. This accords with our normal practice to “review questions of constitutional law de novo.” ClearOne Comm‘cns, Inc. v. Bowers, 651 F.3d 1200, 1216 (10th Cir. 2011) (quotations omitted).
We discuss Mr. Muhtorov‘s arguments that disclosure was required (1) under
1. Disclosure Under FISA
This court has carefully reviewed the traditional FISA and Section 702 application materials to determine whether the district court acted within its discretion in concluding that disclosure to Mr. Muhtorov was not “necessary to make an accurate determination of the legality of the surveillance.”
a. Traditional FISA application materials
The district court did not abuse its discretion by declining to order disclosure of the traditional FISA application materials.
Mr. Muhtorov argues that disclosure was necessary for the district court “to make an accurate determination of the legality of the [traditional FISA] surveillance.”
First, he argues that the district court “had to evaluate whether the various FISA techniques complied with the Fourth Amendment and the statute,” and that the “district court does not appear to have considered the Fourth Amendment issues presented by these techniques.” Aplt. Br. at 59. But the district court concluded that there was “probable cause to believe that Defendants Muhtorov and Jumaev . . . were agents of a foreign power as defined by statute.” ROA, Vol. I at 481. It said, “there was no basis to question ‘the near unanimous view that FISA does not violate the Fourth Amendment,’ particularly when ‘the electronic surveillance is directed at the activities of a foreign power and its agents and the criminal prosecution is merely incidental to that dominant purpose.‘” Id. at 482.
Second, he argues the district court had to assess whether “the government‘s applications to the FISC contained material omissions or misrepresentations of fact.” Aplt. Br. at 59. This argument is without merit for reasons explained below when we discuss Mr. Muhtorov‘s claim that the Supreme Court‘s decision in Franks v. Delaware required disclosure as a matter of due process.
Third, Mr. Muhtorov argues the district court “had to determine whether the FISA applications were tainted by other unconstitutional searches” using “other novel or illegal techniques, such as the warrantless collection of cell-site location data or the bulk collection of call records.” Id. at 60. But the court made such a determination. After the AG filed an affidavit stating that disclosure would harm national security, the court conscientiously reviewed the classified materials in camera
In sum, Mr. Muhtorov has failed to show that the district court, which carefully followed the procedures in
b. Section 702 application materials
Mr. Muhtorov has also not shown that the district court abused its discretion by declining to order disclosure of the Section 702 application materials.
Mr. Muhtorov argues that Belfield and FISA‘s legislative history call for disclosure based on three factors allegedly present here: (1) complex and novel legal questions concerning the lawfulness of the Section 702 surveillance, (2) indications of possible misrepresentations of fact, and (3) the volume, scope, and complexity of the surveillance materials. Aplt. Br. at 56. His arguments are unpersuasive.
First, neither the Senate Report relied on in Belfield nor Belfield itself identify “complex legal questions” as a reason for disclosure. The Report says a court should review “the underlying documentation” and “determin[e] its volume, scope, and complexity” in assessing whether it is necessary to order disclosure. S. Rep. No. 95-701, at 64 (1978). “Complexity” refers to the documentation under review, not the legal issues.
Nor is there merit to Mr. Muhtorov‘s suggestion that the novelty of the legal issues and the presence of “legal issues of first impression in this circuit” warranted disclosure. See Aplt. Br. at 55. This kind of novelty was not a basis for disclosure in Belfield, which declined to order disclosure just four years after Congress enacted FISA, when nearly all FISA issues were novel. Mr. Muhtorov has not pointed to any authority supporting a rule that the alleged novelty of a legal issue makes it any less likely that the district court “was capable of reviewing the lawfulness of the FISA surveillance without assistance from defense counsel.” El-Mezain, 664 F.3d at 566.
Second, Mr. Muhtorov‘s misrepresentation theory is speculative. It is based solely on the government‘s behavior in other cases. His brief cites Redacted, slip op. at 19 (FISC Apr. 26, 2017), https://perma.cc/7X2S-VAS7 (identifying problems with backdoor searches and referencing “an institutional ‘lack of candor’ on NSA‘s part“); and Redacted, 2011 WL 10945618, at *9 (FISC Oct. 3, 2011) (holding that the upstream collection of certain internet transactions violated the Fourth Amendment and stating that “the volume and nature of the information” the government had been collecting was “fundamentally different from what the Court had been led to believe“). The district court here did not identify any misrepresentations during its in camera and ex parte review. And as explained above, the evidence in this case was not derived from querying or upstream collection techniques.
Third, the alleged volume, scope, and complexity of surveillance materials is not a reason to reverse the district court. These factors could warrant disclosure if “the court‘s initial review of the application, order, and fruits of the surveillance indicate[d] that the questions of legality
* * * *
Disclosure of classified FISA materials is the exception, not the rule. The district court did not abuse its discretion by declining to order disclosure under
2. Due Process
Mr. Muhtorov argues that “due process requires discovery or disclosure,”
- under Brady v. Maryland, 373 U.S. 83 (1963), due process requires a meaningful opportunity to pursue suppression as the primary means of enforcing the Fourth Amendment;
- under Mathews v. Eldridge, 424 U.S. 319 (1976), due process requires the disclosure of FISA and Section 702 materials and an adversarial process where, as here, the surveillance raises novel or complex factual and legal issues; and
- the district court‘s decision not to disclose classified materials is at odds with Franks v. Delaware, 438 U.S. 154 (1978), which entitles a criminal defendant to an evidentiary hearing upon a substantial preliminary showing that a warrant affidavit includes a knowing or reckless false statement.
Aplt. Br. at 63-66. None of these arguments has merit.
a. Due process and Brady
i. Legal background
Due process requires the government to disclose “evidence favorable to an accused upon request where the evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87. “To establish a Brady violation, a defendant must demonstrate that (1) the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3) the evidence was material to the defense.” Hooks v. Workman, 689 F.3d 1148, 1179 (10th Cir. 2012) (quotations omitted).
Although some courts have extended Brady to evidence that is material to suppression, see, e.g., United States v. Gamez-Orduño, 235 F.3d 453, 461 (9th Cir. 2000); Smith v. Black, 904 F.2d 950, 965-66 (5th Cir. 1990), vacated on other grounds, 503 U.S. 930 (1992), we have stated that “[w]hether Brady‘s disclosure requirements even apply at the motion to suppress stage is an open question,” United States v. Lee Vang Lor, 706 F.3d 1252, 1256 n.2 (10th Cir. 2013); see also United States v. Stott, 245 F.3d 890, 902 (7th Cir. 2001) (describing a circuit split on the issue).41
We reject Mr. Muhtorov‘s Brady-based due process argument. Assuming without deciding that Brady applies at the motion to suppress stage, no violation occurred.
The district court denied both of Mr. Muhtorov‘s suppression motions. In both motions, Mr. Muhtorov argued that Brady required disclosure. The district court did not order disclosure of the traditional FISA or Section 702 application materials.
Our independent review of the traditional FISA and Section 702 application materials confirms that those materials were not “favorable” or “material” to his suppression motions. See United States v. Brooks, 727 F.3d 1291, 1300 n.7 (10th Cir. 2013).42 Thus, the district court did not err under Brady when it denied Mr. Muhtorov‘s requests for disclosure of the application materials because Brady did not “require[] discovery or disclosure.”
b. Due Process and § 1806(f) – Mathews
Mr. Muhtorov argues that
i. Legal background
Courts have not been consistent as to whether a Mathews claim is available in the
Under Mathews, whether due process was satisfied “requires analysis of the governmental and private interests that are affected.” Mathews, 424 U.S. at 334. Courts should consider “three distinct factors“:
First, the private interest that will be affected by the official action; second, 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 finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
ii. Analysis
Mr. Muhtorov argues that due process required an adversarial proceeding rather than the in camera and ex parte proceeding provided for in
- he has a substantial interest in accurately determining whether the government‘s surveillance violated his rights;
- in camera and ex parte proceedings have an unacceptably high risk of error when factual and legal issues are complex; and
- the government‘s interests in secrecy are overblown because the court could order disclosure under a protective order and the government has declassified and publicly disclosed certain Section 702 procedures, FISC opinions, and FISA materials in other cases.
Aplt. Br. at 65-68.
The district court properly weighed Mr. Muhtorov‘s and the government‘s interests in light of the sensitivity of the application materials. We assume that Mr. Muhtorov has an interest in determining the lawfulness of the government‘s surveillance. But his other assertions are misplaced. Mr. Muhtorov‘s claim that in camera and ex parte FISA proceedings have a high risk of error is unfounded. It does not help him to the extent his claim derives from other cases. Nor has Mr. Muhtorov explained why the government‘s disclosure in other cases renders Congress‘s carefully crafted disclosure scheme in
In sum, as numerous courts have held, FISA‘s in camera and ex parte procedures provide adequate procedural protections for the defendant‘s due process rights. See, e.g., El-Mezain, 664 F.3d at 567-68; Abu-Jihaad, 630 F.3d at 129; Damrah, 412 F.3d at 624; Isa, 923 F.2d at 1306-07; United States v. Ott, 827 F.2d 473, 476-77 (9th Cir. 1987); Belfield, 692 F.2d at 148-49; see also Ali, 799 F.3d at 1022 (upholding FISA‘s in camera, ex parte procedure and stating that courts have “uniformly” rejected the argument that such procedure violates a defendant‘s right to due process). Mr. Muhtorov has not provided a convincing basis to deviate from this substantial authority.
c. Due process and Franks44
i. Legal background
In Franks v. Delaware, the Supreme Court held that a criminal defendant is entitled to an evidentiary hearing under the Fourth Amendment only after “mak[ing] a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” 438 U.S. at 155-56.
ii. Analysis
Mr. Muhtorov does not contest that he has not made a Franks showing for either the traditional FISA or Section
We note the “difficulty of reconciling [Franks] with a proceeding in which the defense has no access to the FISA application [or Section 702 materials] that resulted in court-authorized surveillance of the defendant.” See United States v. Daoud, 755 F.3d 479, 485-86 (7th Cir. 2014) (Rovner, J., concurring). And it may be that “[a]s 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 that the FISA application contained a material misstatement or omissions.” Id. at 486. But we decline to second-guess Congress‘s determination that “the additional benefit of an unconditional adversarial process was outweighed by the Nation‘s interest in protecting itself from foreign threats.” United States v. Dhirane, 896 F.3d 295, 301 (4th Cir. 2018).
Under prevailing law, we detect no error in the district court‘s handling of Mr. Muhtorov‘s Franks challenge.
* * * *
Mr. Muhtorov has not demonstrated that FISA or due process warranted disclosure of the classified traditional FISA and Section 702 application materials.46
IV. NOTICE OF SURVEILLANCE METHODS AND DISCOVERY OF COMMUNICATIONS THEREFROM
Mr. Muhtorov argues he should have received notice of “other novel surveillance tools,” that the government may have used in its investigation. Aplt. Br. at 69.47 He bases this request on speculation rather than actual knowledge of the government‘s use of other investigative techniques. He
Mr. Muhtorov seeks notice of “how [the government] obtained much of [the] evidence” in the case, as well as discovery of “an unknown number of [his] communications, which [the government] obtained using an undisclosed set of surveillance techniques.” Aplt. Br. at 71. He thus appears to request (1) information about surveillance methods the government may have used, and (2) the fruits of that surveillance.49
Mr. Muhtorov relies on due process,
A. Legal Background
1. 18 U.S.C. § 3504
“In any trial, hearing, or other proceeding in or before any court . . . of the United States,” a “party aggrieved” may “claim . . . that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act.”
In evaluating a defendant‘s
The statute thus contemplates a multi-step process. The defendant must allege
2. Federal Rule of Criminal Procedure 16
3. CIPA
CIPA,
District courts have a “duty [under CIPA] to balance the government‘s need for confidentiality with the defendant‘s right to a fair trial.” Id. CIPA treats classified information as privileged, meaning that it might not be discoverable even if relevant. See United States v. Yunis, 867 F.2d 617, 622-23 (D.C. Cir. 1989) (CIPA protects the government‘s “national security privilege“); see also United States v. Apperson, 441 F.3d 1162, 1192 n.8 (10th Cir. 2006) (“By its plain terms, [CIPA] evidences Congress‘s intent to protect classified information from unnecessary disclosure at any stage of a criminal trial.” (alterations and quotations omitted)). CIPA also contemplates that a criminal defendant may need to see classified information. See
In lieu of full disclosure to the defendant,
B. Additional Procedural History
In response to Mr. Muhtorov‘s motion containing
The government submitted numerous CIPA filings to the district court. The court held 18 in camera and ex parte classified hearings. It entered seven classified orders. Some were accompanied by an unclassified order describing their general subject matter.
Mr. Muhtorov renewed his motion and again asked the government to confirm or deny under
The district court denied the motion and overruled the CIPA objection without explanation, stating it would address the government‘s concerns regarding reference to surveillance techniques as they occur at trial. At a hearing the following month, the court said it was allowing the government to withhold classified information under CIPA, particularly information about how it gathered evidence against Mr. Muhtorov, because it is important to protect methodology in the intelligence-gathering field.
C. Standard of Review
Because Mr. Muhtorov‘s motion for disclosure of non-FISA surveillance materials was a discovery motion, we review the district court‘s ruling for abuse of discretion. See United States v. Bowers, 847 F.3d 1280, 1291 (10th Cir. 2017) (abuse of discretion standard applies to the denial of a motion for discovery in a criminal case); United States v. Simpson, 845 F.3d 1039, 1056 (10th Cir. 2017) (abuse of discretion standard applies to denial of
D. Discussion
Mr. Muhtorov argues that due process,
1. Due Process
Neither the Supreme Court nor this court has recognized a due process right to notice of specific techniques the government used to surveil the defendant in a foreign intelligence investigation, nor to evidence collected when the evidence is not grounded in a specific due process right, such as Brady. Mr. Muhtorov cites three Supreme Court cases to support his due process argument: the Keith case discussed above; Alderman v. United States, 394 U.S. 165 (1969); and Jencks v. United States, 353 U.S. 657 (1957). None of these cases entitles Mr. Muhtorov to the disclosure he seeks.
First, in Keith, the Supreme Court ruled that the government could not, consistent with the Fourth Amendment, engage in warrantless surveillance for domestic security purposes. The Court ordered disclosure of surveillance transcripts on the basis that the surveillance had been unlawful. See Keith, 407 U.S. at 318-24. But it declined to address the government‘s foreign intelligence surveillance powers. Nothing in Keith purported to create a due process right to broad disclosure of foreign intelligence surveillance techniques that may have been used and the evidence collected therefrom.
Second, in Alderman, the Supreme Court discussed the scope of the Fourth Amendment exclusionary rule and the district court‘s role in managing the suppression and disclosure of unlawfully collected evidence in a case touching on national security issues. See 394 U.S. at 171. The Court addressed whether, in light of unconstitutional electronic surveillance, the district court should inspect records in camera to determine the necessity of disclosure and what standards the district court should use when considering disclosure. See id. at 170 n.4. The Court found that the fruits of the unlawful surveillance should be disclosed to the defendants rather than simply submitted to the district court for in camera inspection so the parties could engage in an adversarial process as to what evidence could be used at trial. See id. at 182-84.
The disclosures were “limited to the transcripts of a defendant‘s own conversations and of those which took place on his premises.” Id. at 184. The Court reasoned that it could “be safely assumed that much of this he will already know, and disclosure should therefore involve a minimum hazard to others.” Id. at 184-85. The Court said this disclosure would “avoid an exorbitant expenditure of judicial time and energy and w[ould] not unduly prejudice others or the public interest.” Id. at 184.
Alderman does not help Mr. Muhtorov. In Alderman, the defendants and the government agreed there was unlawful surveillance. The question was whether disclosure was necessary so the parties could
Third, Jencks concerned the government‘s refusal to produce certain statements of government trial witnesses. 353 U.S. at 671. The Supreme Court held the statements should have been produced, stating the government cannot “invoke its governmental privileges to deprive the accused of anything which might be material to his defense.” Id. But Jencks concerned witness testimony, not surveillance techniques and evidence collected therefrom, and so is inapposite.
Because Mr. Muhtorov cannot point to any authority recognizing the due process right he asserts was violated here, we reject his due process claim.
2. 18 U.S.C. § 3504
Section 3504 does not support Mr. Muhtorov‘s request for disclosure.
First, Mr. Muhtorov‘s allegations of unlawful acts were insufficient to trigger the government‘s obligation to confirm or deny the use of surveillance techniques. On appeal, he lists various non-FISA and non-Section 702 surveillance tools that he suspects may have been used, but he has not distinguished between lawful and allegedly unlawful surveillance methods. He has not alleged unlawful acts with any “specificity,” nor has he marshaled any persuasive evidence “in support of the allegations” of unlawfulness. See Alvillar, 575 F.2d at 1321.
Second, even assuming his general allegations were sufficient, the government‘s denial that any evidence was derived from surveillance under Executive Order 12333 was sufficient to carry its burden under
3. Federal Rule of Criminal Procedure 16
Mr. Muhtorov argues that (1) he is entitled to discovery of his relevant recorded statements under
In addition to the statements he alleges the government has withheld, Mr. Muhtorov argues that
The district court acted within its discretion under
4. CIPA
Mr. Muhtorov argues that “[t]he government appears to have misused CIPA to conceal its use of novel surveillance techniques from the defense.” Suppl. Aplt. Reply Br. at 10. He speculates that a violation occurred based on (1) “strong[] suggest[ions]” in the unclassified record, see Aplt. Br. at 81; (2) a 2009 report by the DOJ‘s Inspector General on the government‘s conduct in the “Stellar Wind” surveillance program,52 id. at 83-84; (3) the government‘s statement that it summarized, substituted, or deleted some discovery under CIPA, id. at 82; (4) a ruling that the government could withhold certain of defendants’ recorded statements under CIPA, id.; and (5) the district court‘s statement that the methodology of how the government gathered information is classified and protected by CIPA, id.; see ROA, Vol. XIII at 415-16. He also guesses about the Fourth Amendment arguments the government “may have advanced” during CIPA proceedings. Id. at 86. He thus asks us to review the classified record, to order disclosure of the surveillance techniques used in the investigation of him (under appropriate security measures), and to remand to allow him to challenge those techniques and seek suppression. Aplt. Br. at 87-88.
To the extent Mr. Muhtorov argues the CIPA statute itself requires disclosure, that argument is without merit because CIPA “is a procedural statute . . . that does not give rise to an independent right to discovery.” Lustyik, 833 F.3d at 1271. To the extent he contends the district court and the government misused CIPA, that argument also is without merit. The district court recognized that “ex
Overall, the court correctly performed its role to act as “standby counsel for the defendants” by placing itself “in the shoes of defense counsel, the very ones that cannot see the classified record, and act[ing] with a view to their interests.” Amawi, 695 F.3d at 471. Our review of the district court record, including transcripts from the CIPA proceedings, shows the court performed its CIPA duties diligently, and that it did not allow the CIPA process to be an improper cover for the alleged used of unlawful surveillance techniques.53
The district court applied the three-part test in Yunis and determined that the classified materials the government wanted to withhold from discovery were not relevant or helpful to the defense. It found the substitutions offered for the withheld classified information provided Mr. Muhtorov with substantially the same capability to prepare his defense. The court did not abuse its discretion in denying Mr. Muhtorov‘s speculative demands for notice of additional, unknown surveillance techniques under CIPA.
*
*
*
The statutes applicable here—FISA, CIPA, and
V. SPEEDY TRIAL
For nearly six-and-a-half years, Mr. Muhtorov remained incarcerated until his conviction in June 2018. During this time, he filed unsuccessful motions to dismiss the indictment on the ground that pretrial delay violated his Sixth Amendment right to a speedy trial.
On appeal, Mr. Muhtorov argues the length of time between his arrest and conviction violated his Sixth Amendment right to a speedy trial. The pretrial period was lengthy, particularly given that Mr. Muhtorov
A. Background
We provide background on (1) a defendant‘s constitutional and statutory rights to a speedy trial, and (2) the district court proceedings.
1. Legal Background
a. Sixth Amendment
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
The Speedy Trial Clause “[r]eflect[s] the concern that a presumptively innocent person should not languish under an unresolved charge.” Betterman, 136 S. Ct. at 1614.
“The evils at which the Clause is directed are readily identified. It is intended to spare an accused those penalties and disabilities—incompatible with the presumption of innocence—that may spring from delay in the criminal process.” Dickey v. Florida, 398 U.S. 30, 41 (1970) (Brennan, J., concurring). “[A]lthough the right is somewhat amorphous, the remedy is severe: dismissal of the indictment.” Seltzer, 595 F.3d at 1175.
In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court identified four factors that guide our analysis: “(1) the length of delay; (2) the reason for the delay; (3) the defendant‘s assertion of his right; and (4) prejudice to the defendant.” Medina, 918 F.3d at 780 (quotations omitted). This test “necessarily compels courts to approach speedy trial cases on an ad hoc basis.” Barker, 407 U.S. at 530. “No one of the factors is necessary or sufficient to conclude a violation has occurred. Instead, the factors are related and must be considered together along with other relevant circumstances.” United States v. Toombs, 574 F.3d 1262, 1274 (10th Cir. 2009) (citation omitted).
b. Speedy Trial Act
The district court pushed back the trial date multiple times under the Speedy Trial Act of 1974 (“STA“),
“Under the [STA], a federal criminal trial must begin within seventy days of the filing of the indictment or from the date of the defendant‘s initial appearance, whichever occurs later.” United States v. Margheim, 770 F.3d 1312, 1318 (10th Cir. 2014) (citing
2. Procedural History
a. Initial proceedings
Following Mr. Muhtorov‘s arrest on January 21, 2012, a grand jury returned an indictment on January 23, which charged Mr. Muhtorov with providing or attempting to provide material support to a foreign terrorist organization, in violation of
b. Speedy Trial Act orders
On March 19, 2012, the district court issued the first of many orders under the STA that continued the trial date. It declared Mr. Muhtorov‘s case “complex” under the STA and excluded 90 days from speedy trial calculations. See
Mr. Muhtorov did not oppose five of the tolling motions. He opposed two, including one that he argued was “unnecessary under the circumstances.” ROA, Vol. XI at 345-46. The district court granted all the STA motions. The extensions tolled the case until July 2017.
c. Superseding indictment
On March 22, 2012, the grand jury returned a superseding indictment containing the charges that were eventually presented at trial. The grand jury charged Mr. Muhtorov and Mr. Jumaev with conspiracy to provide material support, providing, and attempting to provide material support to the IJU. It charged Mr. Muhtorov alone with providing and attempting to provide material support to the IJU in the form of communications equipment and services as well as his own personal participation.
d. Discovery
The government produced discovery in waves from early April 2012 through January 2018, just months before the trial. It repeatedly pushed back its estimated completion date and ultimately persuaded the district court to impose a discovery deadline of September 1, 2016—four-and-a-half years after Mr. Muhtorov‘s arrest. The district court closely oversaw the discovery process, particularly with respect to the production of classified materials, the imposition of protective orders, and the government‘s
e. Section 702 notice and motion to suppress
On October 25, 2013, the government gave Mr. Muhtorov notice of its intent to offer into evidence or otherwise use or disclose “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to [Section 702].” ROA, Vol. I at 552.55
In January 2014, Mr. Muhtorov filed a motion to suppress all evidence obtained or derived from Section 702 surveillance. The district court denied the motion in November 2015.
f. Third superseding indictment and second trial setting
In May 2016, the government filed a third superseding indictment against Mr. Muhtorov and Mr. Jumaev. It added two counts concerning the government‘s theory that Mr. Muhtorov and Mr. Jumaev conspired to provide material support to the IJU by arranging for Mr. Jumaev‘s son to study at a madrassa—an Islamic religious school—in Turkey. On June 7, 2016, the district court set a jury trial for the defendants, to begin on March 13, 2017. In March 2017, the government voluntarily dismissed the two counts added in the third superseding indictment.
g. Severance and third trial setting
In November 2016, the district court granted Mr. Muhtorov‘s motion to sever his trial from Mr. Jumaev‘s. The court reasoned that the need for separate interpreters for different languages would make a joint trial cumbersome. It also noted that Mr. Muhtorov intended to call Mr. Jumaev as a witness.
In December 2016, the court set a seven-week trial for Mr. Jumaev to begin on March 13, 2017, to be followed by a seven-week trial for Mr. Muhtorov beginning on July 31, 2017.
h. Fourth trial setting
On March 13, 2017, the district court denied Mr. Jumaev‘s motion to dismiss for violation of his Sixth Amendment right to a speedy trial and failure to timely disclose Brady materials. It granted his later request for a nine-month continuance to January 8, 2018. Because Mr. Muhtorov intended to call Mr. Jumaev as a witness, Mr. Jumaev‘s trial needed to precede Mr. Muhtorov‘s so Mr. Jumaev‘s “jeopardy would be over.” ROA, Vol. XV at 285 (quotations omitted). The court therefore reset Mr. Muhtorov‘s trial from July 31, 2017, to March 12, 2018.56
i. District judge‘s medical condition and final trial setting
In November 2017, the district judge notified the parties that he needed medical treatment. Although reassignment to another
j. Disposition of speedy trial motions
On March 29, 2017, Mr. Muhtorov filed a counseled motion to dismiss the indictment on speedy trial grounds. He argued that Mr. Jumaev‘s trial setting forced Mr. Muhtorov to choose between competing constitutional rights: his right to call Mr. Jumaev as a witness and his Sixth Amendment right to a speedy trial. See ROA, Vol. XV at 283.
The district court denied the motion. On the first Barker factor, the court said the length of delay “weighs very strongly” on Mr. Muhtorov‘s side because it is emotionally and physically troubling “to think of people being held in custody for the length of time that Mr. Muhtorov and Mr. Jumaev have been held, without having a trial on the merits
of the charges against” them. ROA, Vol. XII at 547. On the second factor, the court did not “see this as a question of fault or of deliberate intent to delay,” but rather that it was an understandable function of the “enormous amount of electronic generated data” and the complexity of the terrorism-related charges. Id. at 548, 550-51. It praised the attorneys for both sides—stating that the government‘s lawyers had been dedicated and had not deliberately intended to delay this case, while attributing defense counsels’ extensive motions practice to “the necessities of the case.” Id. at 551. The court found the third factor—defendant‘s assertion of the speedy trial right—favored Mr. Muhtorov. On the fourth factor, it found prejudice based on the “high” cost of “personal investment” and “the mere fact of being kept from one‘s loved ones.” Id. at 547. In the end, the court found the delay to be “regrettable” but “legitimate,” “justifiable,” and based on “reasonable” actions. Id. at 552-54.
Mr. Muhtorov renewed his motion to dismiss on speedy trial grounds at the beginning of the trial. In that motion, he focused on the recent death of a “key” defense witness, Vaslia Inoyatova, to argue the delay had caused prejudice from lost testimony. ROA, Vol. XV at 522. The district court denied the renewed motion. It incorporated its previous analysis and reiterated that “the complexities of the case, the matters of first impression, the confrontation of national security with the administration of justice are all matters that militate and justify under [Barker] the time that has been spent.” ROA, Vol. XX at 149. The court gave limited weight to the loss of Ms. Inoyatova‘s testimony.
k. Convictions and sentence
As explained above, a jury convicted Mr. Muhtorov on June 21, 2018, on three counts, but acquitted him of a fourth. The district court sentenced him to 132 months in prison, with a recommendation that he receive credit for his pretrial confinement. He received such credit and completed his sentence in June 2021.
B. Discussion
On appeal, Mr. Muhtorov argues that the six-and-a-half years it took to bring him to trial and convict him violated his speedy trial right. He blames the government for the delay and argues that he sufficiently asserted his speedy trial right in the district court. He contends that he suffered prejudice from his detention—oppressive
“We review a defendant‘s claim under the
1. First Barker Factor: Length of the Delay
The length of the delay—six-and-a-half years—strongly favors Mr. Muhtorov.
a. Additional legal background
“The first Barker factor involves a ‘double inquiry.‘” Medina, 918 F.3d at 780 (quoting Seltzer, 595 F.3d at 1176.). “First, ‘simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from “presumptively prejudicial” delay.‘” Seltzer, 595 F.3d at 1176 (brackets omitted) (quoting Doggett v. United States, 505 U.S. 647, 651-52 (1992)). Delays “approach[ing] one year” generally are sufficient to trigger review of all the Barker factors. Doggett, 505 U.S. at 652 n.1. The first Barker factor is a “gatekeeper” because we examine the remaining factors “only if a delay is long enough to be presumptively prejudicial.” United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006).
“Second, if the defendant establishes presumptive prejudice, ‘the court must then consider, as one factor among several,’ the length of the delay.” Medina, 918 F.3d at 780 (quoting Seltzer, 595 F.3d at 1176). The court considers the “extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Doggett, 505 U.S. at 652. “The greater the delay, the more that factor favors the defendant.” United States v. Hicks, 779 F.3d 1163, 1168 (10th Cir. 2015). When deciding whether, “given other factors,” a delay is “unreasonable . . ., a court should take into consideration the nature of the charges.” Seltzer, 595 F.3d at 1176.
b. Analysis
In May 2017, one year before the trial, the district court found that the length of delay “weighs very strongly” in favor of a speedy trial violation. ROA, Vol. XII at 547. We agree.
First, the six-and-a-half-year delay is well beyond the one-year delay that courts have deemed sufficient to clear the “gate” and allow consideration of the remaining three Barker factors. See Doggett, 505 U.S. at 652 n.1; Medina, 918 F.3d at 780. The government does not dispute that “the delay here warrants consideration of the remaining Barker factors.” Aplee. Br. at 72.
Second, the six-and-a-half-year delay weighs strongly in favor of Mr. Muhtorov when considered “as one factor among several.” Seltzer, 595 F.3d at 1176. The Supreme Court has called a delay of more than five years in a murder trial “clear[ly] . . . extraordinary.” Barker, 407 U.S. at 533. And we have concluded that shorter delays favor the defendant at the first Barker factor. See Margheim, 770 F.3d at 1326 (23-month delay “weigh[ed] entirely in [the defendant‘s] favor“); Seltzer, 595 F.3d at 1176-77 (two-year delay “weigh[ed] in favor of a finding of a violation of [the defendant‘s] speedy trial rights“); Batie, 433 F.3d at 1290-91 (17-month delay weighed in the defendant‘s favor); Jackson v. Ray, 390 F.3d 1254, 1261 (10th Cir. 2004) (four-and-one-third-year
In Barker, the Supreme Court noted that a longer delay would be more justified for a “serious, complex conspiracy charge” than for an “ordinary street crime.” 407 U.S. at 531. This consideration cuts in different directions in this case. On the one hand, the investigation included traditional
Even assuming that this case was “complex” for purposes of the first Barker factor, the six-and-a-half-year delay still strongly favors Mr. Muhtorov. See, e.g., United States v. Black, 918 F.3d 243, 255 (2d Cir. 2019) (a five-year-and-eight-month delay in a Hobbs Act conspiracy case was “easily . . . substantial and presumptively prejudicial“); United States v. Tigano, 880 F.3d 602, 612 (2d Cir. 2018) (“[N]early seven years of pretrial detention” was an “extreme length of delay” in case alleging marijuana-growing enterprise); United States v. Velazquez, 749 F.3d 161, 185-86 (3d Cir. 2014) (a five-year delay in bringing the defendant to trial in a drug conspiracy case was “extraordinary“).
2. Second Barker Factor: Reasons for the Delay
The delay in this case was principally attributable to a lengthy discovery process necessitated by the nature of the investigation and the breadth of Mr. Muhtorov‘s discovery requests. Throughout, the government acted diligently and without bad faith or negligence. This factor does not support finding a constitutional violation.
a. Additional legal background
“The second Barker factor—the reason for delay—is ‘the flag all litigants seek to capture.‘” Margheim, 770 F.3d at 1326 (brackets omitted) (quoting United States v. Loud Hawk, 474 U.S. 302, 315 (1986)). “Because the prosecutor and the court have an affirmative constitutional obligation to try the defendant in a timely manner the burden is on the prosecution to explain the cause of the pre-trial delay.” United States v. Brown, 169 F.3d 344, 349 (6th Cir. 1999) (ellipsis and quotations omitted); see also Dickey, 398 U.S. at 38 (“[T]he right to a prompt inquiry into criminal charges is fundamental[,] and the duty of the charging authority is to provide a prompt trial.“). Even when “there is no evidence that the government intentionally delayed the case for the explicit purpose of gaining some advantage, the government still bears the burden of bringing a case to trial in a timely fashion, absent sufficient justification.” Seltzer, 595 F.3d at 1179. Nonetheless, “pretrial delay is often both inevitable and wholly justifiable.” Doggett, 505 U.S. at 656. For example, “[t]he government may need time to collect witnesses against the accused [and to] oppose his pretrial motions.” Id.
Our cases show that this factor first requires quantifying and then weighing the delay.
i. Quantifying the delay
In the first part of the inquiry we attempt to “divide” the overall delay into
1) Caused by defendant
If we find the defendant is responsible for the delay, that period “do[es] not weigh against the government” in the speedy trial analysis. United States v. Abdush-Shakur, 465 F.3d 458, 465 (10th Cir. 2006). Such delays might include the defendant‘s “moving to suppress evidence,” Black, 830 F.3d at 1113, “requesting that the district court extend filing deadlines or continue hearings . . . [, or] chang[ing] counsel several times,” Hicks, 779 F.3d at 1168.
2) Caused by the prosecution
Delay caused by the prosecution will weigh in favor of finding a constitutional violation. For example, if the prosecution moves for a continuance and the defendant objects or the continuance does not benefit the defendant, that will favor a violation. See Black, 830 F.3d at 1118. Similarly, if the government is “negligent in moving the case forward,” including in the production of discovery, we attribute that period of delay toward finding a constitutional violation. United States v. Young, 657 F.3d 408, 415 (6th Cir. 2011).
3) Caused by neither the defendant nor the prosecution
When neither the prosecution nor the defendant is to blame, the delay can still favor one side or the other. See Barker, 407 U.S. at 531 (discussing “neutral reason[s]” for delay like “overcrowded courts“). For example, a delay traceable to limited judicial resources is weighed against the government, though “less heavily” than factors within its control. Id. But “a valid reason, such as a missing witness, should serve to justify appropriate delay.” Id.
4) Overall considerations
Overall, this part of the inquiry “is not a search for a blameless party.” Wilson v. Mitchell, 250 F.3d 388, 395 (6th Cir. 2001). Instead, for each discrete period, the question is “whether the government or the criminal defendant is more to blame for [the] delay.” Doggett, 505 U.S. at 651.
ii. Weighing the delay
After “numerically assess[ing] the reason-for-the-delay factor,” Black, 830 F.3d at 1120, we must then “determin[e] how heavily the delay weighs” in the overall constitutional analysis, Gould, 672 F.3d at 937. When the government and the defendant each contributed to the delay, “the second Barker factor isn‘t purely an arithmetic exercise where the party responsible for less of the delay prevails under the factor.” Black, 830 F.3d at 1120. “The root cause of the delay is equally important.” Id. For example, “even if the defendant is responsible for a majority of the delay, we could weigh the second Barker factor against the government if the government delayed the trial to gain an advantage over the defendant or to deprive the defendant of his ability to defend himself at trial.” Id.
In conducting this part of the inquiry, we look to the circumstances that caused the delay to determine how strongly to weigh it.
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Barker, 407 U.S. at 531 (footnote omitted).58
b. Additional procedural background – discovery
The partially classified nature of the record prevents discussion here of some details surrounding the government‘s discovery productions. The following summary is sufficient for us to rule on the speedy trial issue.
The discovery process began almost immediately. The parties filed a joint report under
In September 2012, Mr. Muhtorov and Mr. Jumaev jointly moved for broad discovery of their “statements.” ROA, Vol. I at 463. They clarified “they mean not just the statements made or given to government investigators or agents, but also all recorded conversations or communications including e mails and other written communications that they are alleged to have authored, as well as any statements made to third parties in whatever form.” Id. They added that the motion “also seeks discovery of any transcriptions or summaries of any such statements and translations into English thereof.” Id. At around the same time, Mr. Muhtorov and Mr. Jumaev moved for the disclosure of grand jury materials. Id. at 504-05. They also requested exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United States, 405 U.S. 150, 154-55 (1972).
Mr. Muhtorov‘s and Mr. Jumaev‘s broad requests precipitated a vast and multi-faceted discovery production. Much of it was audio files of intercepted communications in Russian, Uzbek, and Tajik—39,000 of them, spanning 1,862 hours. The government produced summary translations known as “tech cuts” for approximately 150 of those recordings. See ROA, Vol. XI at 204-05.
The government repeatedly represented it was producing discovery as expeditiously as possible. It attributed the pace of discovery to the collection of materials under
A persistent theme before trial was that “the massive volume of intercepted conversations were in Uzbek with others in Russian and Tajik.” ROA, Vol. XV at 394. The government explained that “the overall challenge of the government, the Court, and the defendants in finding linguists caused substantial delay,” adding that “one Uzbek translator . . . [even] absconded from a court appointment.” Id. at 396. The government said, “The issue [in finding translators] complicated the government attorneys’ review of evidence.” Id.
At first, in October 2012, the government gave June 2013 as its target deadline for producing discovery in compliance with
In June 2016, the district court set a final discovery deadline of September 1, 2016. See ROA, Vol. XI at 375, 377. The district court also set a deadline of October 1, 2016, for Mr. Muhtorov to file motions under
Throughout the six-and-a-half years, the district court‘s views concerning the pace of discovery evolved. In January 2013, about one year after Mr. Muhtorov‘s arrest, the court noted that it was “satisfied that discovery is proceeding apace.” ROA, Vol. I at 525. At that point, it had already overseen discovery disputes and motions involving the government‘s Brady and Giglio obligations, and had overseen the beginning of the
Later, the district court became more impatient with the pace of discovery, though it repeatedly emphasized that any delay was due to the nature of the case, not the conduct of the parties. For example, at a June 2016 conference, the court commented, “The case has dragged on and on and on, and it‘s not the fault of the prosecution or the defense. It‘s the essential nature of security belonging to the Executive Branch and constitutional issues belonging to the Judicial Branch.” ROA, Vol. XI at 369-70. And in March 2017, the court characterized the discovery process as “opaque and painstakingly slow,” and lamented that it “has surely inured to Defendants’ detriment.” Suppl. ROA, Vol. 2 at 14. But it noted there was no “fault or . . . deliberate intent to delay” by the government, that “the government and its counsel have been dedicated,” and the “record shows, beyond any dispute, the
c. Analysis
The government and Mr. Muhtorov blame each other for the pretrial delay. They argue that the necessities of the case explain their own contribution to the delay.
The government points to the “complexity” of the case and the nature of the investigation. Mr. Muhtorov‘s broad discovery requests required translating voluminous materials from Russian, Uzbek, and Tajik into English and complying with
Mr. Muhtorov argues that, despite the case‘s complexities, the government‘s discovery productions were unreasonably slow, largely because it failed to find translators. He also points to the nearly two years between his arrest and the notice of
Although a close question, we find the government has carried its burden “to provide an acceptable rationale for the delay.” Seltzer, 595 F.3d at 1177. We (i) quantify the periods in which the indictment was pending that favor finding a constitutional violation and those that do not, and (ii) weigh the entire pretrial period as a whole.
i. Quantifying the pretrial periods
The first step of the second Barker factor analysis entails dividing the pretrial period into smaller “periods during which an indictment was pending” and analyzing each in turn. Black, 830 F.3d at 1113. The relevant periods here covered (1) Mr. Muhtorov‘s arrest in January 2012 until the last discovery production in January 2018;62 and (2) the district judge‘s medical treatment, which postponed the trial from March 12, 2018, to May 14, 2018. Our discussion focuses on the discovery period because the two-month delay caused by the judge‘s medical treatment was relatively brief.
1) Discovery period
The discovery process began with
We discuss (a) Mr. Muhtorov‘s discovery requests, (b) the
a) Mr. Muhtorov‘s discovery requests
Mr. Muhtorov exercised his right to make broad discovery requests under Brady, Giglio, and
The government‘s need for time to comply with Mr. Muhtorov‘s broad requests does not point to a constitutional violation. See United States v. Johnson, 990 F.3d 661, 670 (8th Cir. 2021) (“[T]he heavy discovery in this case mitigates the delay‘s length.“); United States v. Ashford, 924 F.2d 1416, 1420 (7th Cir. 1991) (finding the defendant‘s “decision to file numerous discovery requests . . . served to justify appropriate delay” (brackets and quotations omitted)); see also Black, 830 F.3d at 1117 (counting against the defendant time spent litigating a motion to dismiss); United States v. Carpenter, 781 F.3d 599, 613 (1st Cir. 2015) (even if an “avalanche of filings” by a defendant is justified, they “cut against” the defendant in the speedy trial analysis). Time for the prosecution to fulfill its discovery obligations is “both inevitable and wholly justifiable.” See Doggett, 505 U.S. at 656.
b)
The district court‘s and the parties’ obligations to comply with
As explained above,
The national security investigation compelled the government and the district court to conduct
The dissent contends the government did not diligently manage the
c) Translation issues
The dearth of Uzbek and Tajik translators does not weigh in favor of a constitutional violation. Since 2009, the government was familiar with the investigation. It would have known about the need for translation and perhaps the shortage of Uzbek and Tajik translators. But the record reveals that the government made diligent attempts to translate the discovery. The pace of translation and Mr. Muhtorov‘s broad discovery requests were intertwined. Given the volume of materials requested, meeting those requests required time, particularly when the materials had to be translated from uncommon languages—Uzbek and Tajik—by translators with security clearances.
The time needed to translate materials should not count against the government. Unlike delays caused by “mismanagement of resources,” see Harris v. Champion, 15 F.3d 1538, 1547 (10th Cir. 1994), the time taken to translate materials was needed for the benefit of Mr. Muhtorov and the preparation of his defense, see United States v. Rice, 746 F.3d 1074, 1079 (D.C. Cir. 2014) (noting that the need to translate thousands of hours of taped conversations into English justified delay under the STA because defense counsel could not provide adequate representation without the translations). In addition, there is no evidence the government was unwilling to obtain more translation resources. The public and classified record confirms that the government actively sought Uzbek and Tajik translators with clearances.66
Whether under the
d) Government‘s discovery conduct
The combination of Mr. Muhtorov‘s broad discovery requests, the
The district court found no government “fault or . . . deliberate intent to delay,” but instead found the government was “dedicated” and had displayed “due diligence.” ROA, Vol. XII at 551. The court made this finding after having reviewed numerous disclosures during in camera and ex parte
court was in the
Mr. Muhtorov, adopting Mr. Jumaev‘s more extensive briefing on the issue, makes conclusory and unsupported allegations about “the government‘s administrative failures” and “discovery delays.” Aplt. Br. at 90. Mr. Jumaev‘s primary argument is that “[t]he government‘s dump of more than 39,000 recordings of the defendants’ statements on the [September 1, 2016] deadline, which admittedly includ[ed] Brady materials, further shows that the government did not meet its discovery obligations earlier in the case.” Jumaev Br. at 35. But the record—including the classified record—tells a different story: the government worked diligently to fulfill its discovery obligations under
Although the district court noted in March 2017 that discovery had “dragged on and on and on,” ROA, Vol. XI at 369, that comment was consistent with a process in which the government had collected voluminous materials, much of them classified; Mr. Muhtorov demanded to see all of them; and the government needed to translate them while complying with
* * * *
In sum, the first period from the arrest through the date of the last discovery production in January 2018 does not favor
2) District judge‘s medical condition
We next consider the two-month delay due to the district judge‘s need for medical treatment. In United States v. Gomez, 67 F.3d 1515, 1522 & n.8 (10th Cir. 1995), we found a three-week delay due to the district court‘s scheduling conflict weighed only slightly in favor of finding a constitutional violation, as the two months should here.
The Seventh Circuit has defined “institutional delay” as delay that is “not attributable to the ordinary demands of the judicial system.” Williams v. Bartow, 481 F.3d 492, 505 n.6 (7th Cir. 2007) (quotations omitted). Courts have found a judge‘s illness to be an institutional delay that weighs against the government. See United States v. Carini, 562 F.2d 144, 149-50 (2d Cir. 1977); United States v. Lane, 561 F.2d 1075, 1079 (2d Cir. 1977); Francis v. People, 63 V.I. 724, 751 (2015) (holding that “delays caused by both the judge‘s and prosecution‘s family emergencies are attributable to the [government], although the weight of these delays is treated as minor“).
The government states it is “unclear why [it] would be faulted here,” Jumaev Aplee. Br. at 32, but this is not a matter of fault. Barker itself instructs that institutional delays within the judiciary count against the government, though “less heavily” than other delays. See Barker, 407 U.S. at 531; cf. United States v. Tranakos, 911 F.2d 1422, 1428 (10th Cir. 1990) (“The difficulty in finding a judge to handle the case weighs against the government.“). Although the government believed the case should have been transferred to another judge, we understand Mr. Muhtorov‘s wanting to keep the case with the judge who had overseen complicated proceedings for more than six years. It is unlikely that any transferee judge could have become familiar with the case in less time than the roughly 10 weeks the district judge was absent.
We thus consider the delay due to the judge‘s medical treatment to have minimal weight.
3) Overall quantification
Based on the foregoing, the length of time that elapsed for discovery did not weigh in favor of a constitutional violation. The two-month delay from March 12, 2018, to May 14, 2018, due to the district judge‘s medical treatment weighs only slightly in favor.
ii. Weighing the pretrial periods
“We‘ve now numerically assessed the reason-for-the-delay factor. But ‘in determining how heavily the delay weighs . . . we must also assess the cause of the delay.‘” Black, 830 F.3d at 1120 (quoting Gould, 672 F.3d at 937).
Here, the primary reason the trial started in May 2018 was the discovery process. Discovery unfolded at a pace proportional to the necessities of the case, including Mr. Muhtorov‘s broad discovery requests, the need to comply with
d. The Dissent
The dissent takes a different view of the pretrial period. It contends that (1) the government‘s “delay” in giving § 702 notice is “uncontestably attributable to the government” in the speedy trial analysis, Dissent at 4; (2) the government‘s decision to file and then dismiss the third superseding indictment caused “significant delay,” id. at 21; and (3) a “primary concern is the government‘s opposition to defense motions for the appointment of cleared defense counsel,” id. at 14. We disagree that these considerations tip the second Barker factor in favor of Mr. Muhtorov.
As to the first two contentions, even if the government could be criticized for the timing of its Section 702 notice and for filing—and then dismissing—a third superseding indictment against Mr. Muhtorov and Mr. Jumaev, those actions did not extend the pretrial period, and the dissent fails to explain otherwise.73 Rather, the vast and multifaceted discovery process—fueled by Mr. Muhtorov‘s exhaustive discovery demands that enmeshed the parties and the court in
The dissent also contends that the government should be faulted because it opposed Mr. Muhtorov‘s requests for defense counsel to receive security clearances. Neither Mr. Muhtorov‘s nor Mr. Jumaev‘s opening brief raises this issue. Mr. Muhtorov therefore waived this argument, and we need not consider it. See United States v. Bowline, 917 F.3d 1227, 1231-32 (10th Cir. 2019).74
Even so, the dissent fails to explain how granting defense counsel security clearances would have expedited the trial date. As the government explained when it opposed this request, “the mere possession of a clearance does not entitle defense counsel access to classified information. Counsel must also have a ‘need to know.‘” ROA, Vol. I at 912 (citing Exec. Order No. 13,526). Having cleared defense counsel would not have eliminated the need for the district court to determine, on a document-by-document
3. Third Barker Factor: Assertion of Speedy Trial Right
Mr. Muhtorov sufficiently asserted his speedy trial right in the district court in counseled and pro se filings. This factor weighs in favor of finding a constitutional violation, though it does not weigh heavily, as we explain.
a. Additional legal background
The defendant has the “burden of showing he desired a speedy trial.” See Gould, 672 F.3d at 938. “The defendant‘s assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether [he] is being deprived of the right.” Barker, 407 U.S. at 531-32. Conversely, the Supreme Court has emphasized, “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532.
In Barker, the Supreme Court explained that there is a fundamental “difference between the right to speedy trial and the accused‘s other constitutional rights.” Id. at 521. Although pretrial delays can harm the defendant, sometimes “deprivation of the right may work to the accused‘s advantage.” Id. For example, “witnesses may become unavailable or their memories may fade,” which may weaken the prosecution‘s case if it depends on witness testimony. Id.
In recognition of this double-edged nature of trial delay, the Barker Court rejected a rule whereby “a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial.” Id. at 525. First, “presuming waiver of a fundamental right from inaction . . . is inconsistent” with the maxim against “[p]resuming waiver from a silent record.” Id. at 525-26 (footnote and quotations omitted). Second, although there is no “precise time in the process when the right must be asserted or waived, . . . the State has th[e] duty [to bring the accused to trial] as well as the duty of insuring that the trial is consistent with due process.” Id. at 527. Third, such a rigid rule “places defense counsel in an awkward position” because “[u]nless he demands a trial early and often, he is in danger of frustrating his client‘s right,” but “[i]f counsel is willing to tolerate some delay . . . he may be unable to obtain a speedy trial for his client at the end of that time.” Id. at 527.
Instead, the Barker Court found the “defendant‘s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.” Id. at 528. In line with this approach, we have said that the ultimate inquiry is “whether the defendant‘s behavior during the course of litigation evinces a desire to go to trial with dispatch.” Batie, 433 F.3d at 1291. “[W]e may weigh the frequency and force of his objections to the delay.” Margheim, 770 F.3d at 1328 (brackets and quotations omitted). “A defendant‘s early and persistent assertion of his right to a speedy trial will tip the third factor in his favor, but efforts to stall the proceedings, such as moving for many continuances, will tip the balance of this factor heavily against the defendant.” Medina, 918 F.3d at 781 (quotations omitted).
In addition to the two counseled motions asserting a speedy trial violation—filed in March 2017 and in May 2018 at the start of trial—Mr. Muhtorov asserted his speedy trial rights in pro se filings.
In February 2017, he filed a pro se motion titled “Motion to Assert Speedy Trial Violation and Dismiss.” See ROA, Vol. XV at 305-07. The motion included analysis of the four Barker factors. It included the following statement on the third factor:
Defendant‘s assertion may not have been made in Court, however, he has numerous times asked Counsel and expressed his desire to a prompt disposition of his case. Throughout the time period of five years, Defendant has made repeated request to his Attorneys that he wants a speedy trial, and therefore, these assertions should weigh in his favor. Defendant reminds the Court he does not speak nor understand the English language, or the law for that matter. As such, the failure to properly assert through a Motion should be excused under these circumstances. Defendant has not been allowed to speak in Court, his letters to the Court and Counsel have been ignored.
Id. at 306.
Mr. Muhtorov filed additional pro se motions asserting his right to a speedy trial, including several in May 2017. These motions expressed his frustration with delays. They revealed an apparent divide between his counsel‘s trial strategy and his own desire to proceed to trial forthwith. Mr. Muhtorov even alleged ineffective assistance of trial counsel.76
In June 2017, Mr. Muhtorov filed a pro se habeas application under
c. Analysis
Mr. Muhtorov argues that he asserted his constitutional right to a speedy trial by (1) filing two counseled motions to dismiss, (2) filing pro se motions seeking similar relief, and (3) objecting to the slow pace of the government‘s discovery efforts throughout the proceedings. Like the district court, we find that this factor weighs in Mr. Muhtorov‘s favor.78
Beginning in February 2017 and continuing until the May 2018 trial, Mr. Muhtorov repeatedly asserted his right to a
Overall, the multiple counseled and pro se motions showed that Mr. Muhtorov wished to proceed to trial quickly. See Brown v. Bobby, 656 F.3d 325, 332 (6th Cir. 2011) (the third factor weighed in the counseled defendant‘s favor because he “asserted his right to a speedy trial several times,” including in a “pro se motion to dismiss the indictment on speedy trial grounds“).79
Mr. Muhtorov‘s speedy trial right assertions have force because his other conduct throughout the pretrial proceedings did not “indicate[] a contrary desire” to delay proceedings. Tranakos, 911 F.2d at 1429. For example, he did not request any continuances. See United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir. 1994) (weighing this factor against a defendant who moved for a continuance); Batie, 433 F.3d at 1291-92 (same). Rather, the STA continuances were always granted at the government‘s insistence. This case is different from Margheim, in which we faulted a defendant for asserting a speedy trial objection late in the proceedings and where the defendant‘s conduct, including “sever[ing] ties with three attorneys,” undermined any argument that he was “focused completely on proceeding to trial.” Margheim, 770 F.3d at 1329-30.
The government argues that Mr. Muhtorov‘s assertions of his speedy trial right came too late. It notes, for example, that Mr. Muhtorov did not object to the declaration of complexity on five of the seven STA tolling motions. The government is correct that Mr. Muhtorov could have asserted his right earlier than more than four years into the proceedings. Mr. Muhtorov does not satisfactorily explain why he did not do so.
His failure to object sooner was understandable in light of pending motions to suppress
But other evidence suggests Mr. Muhtorov was concerned about the delays before February 2017, yet he did not raise the objection sooner. And when Mr. Muhtorov asserted the speedy trial right in February 2017, the trial date was set for only a few months later, in July 2017. Although an assertion five months in advance of a trial date is entitled to some weight because it was not the eve of trial, the timeline does not demonstrate full diligence on Mr. Muhtorov‘s part. His assertions are therefore entitled to some weight but “are reduced in weight by their proximity to trial” relative to the total six-and-a-half-year pretrial period. Hakeem v. Beyer, 990 F.2d 750, 766 (3d Cir. 1993). We thus weigh this factor in favor of finding a constitutional violation, but “we do not think it weighs heavily.” Id.
4. Fourth Barker Factor: Prejudice to the Defendant
The fourth factor favors Mr. Muhtorov because he suffered prejudice due to six-and-a-half years of incarceration and the untimely death of a defense witness on the eve of trial.
a. Additional legal background
The fourth factor considers “prejudice to the defendant” from the delay. Barker, 407 U.S. at 530. “The individual claiming the Sixth Amendment violation has the burden of showing prejudice.” Toombs, 574 F.3d at 1275; see also Medina, 918 F.3d at 781. A defendant can establish prejudice by two different means: (1) a presumption of prejudice, or (2) specific evidence of prejudice.
i. Presumption of prejudice
In cases of “extreme delay, the defendant need not present specific evidence of prejudice and may instead rely on the presumption of prejudice created by the extreme delay.” Toombs, 574 F.3d at 1275. “Generally, the court requires a delay of six years before allowing the delay itself to constitute prejudice.” Seltzer, 595 F.3d at 1180 n.3. This rule stems from Doggett, in which the Supreme Court found an “extraordinary” delay when more than eight years passed between indictment and arrest, six of which were attributed to the government‘s “inexcusable oversights.” 505 U.S. at 652, 657-58 (quotations omitted). Thus, for purposes of establishing presumptive prejudice, “we should consider only the delay attributable to the government, and not the delay attributable to the defendant.” Hicks, 779 F.3d at 1168-69 & n.2.81
ii. Specific evidence of prejudice – three types
Absent presumptive prejudice, the defendant must provide evidence of prejudice with “sufficient particularity.” Margheim, 770 F.3d at 1329. “[I]n most circumstances, failure to specify prejudice will eviscerate the defendant‘s claim.” Id.;
The Supreme Court has identified three interests relating to specific prejudice: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532.
1) Oppressive pretrial incarceration
After impairment to the defense, the “second most important [prejudice] factor” is oppressive pretrial incarceration “[b]ecause the seriousness of a post-accusation delay worsens when the wait is accompanied by pretrial incarceration.” Jackson, 390 F.3d at 1264; see also Seltzer, 595 F.3d at 1180 (“[P]rolonged pretrial incarceration is a well-established type of prejudice that a defendant may rely upon in making a Sixth Amendment speedy trial claim.“).82
2) Anxiety and concern
A defendant must allege “special harm suffered which distinguishes his case from that of any other arrestee awaiting trial.” Dirden, 38 F.3d at 1138. “[G]eneralized and conclusory references to the anxiety and distress that purportedly are intrinsic to incarceration are not sufficient to demonstrate particularized prejudice.” United States v. Larson, 627 F.3d 1198, 1210-11 (10th Cir. 2010).
3) Impairment to the defense
The “most serious” interest is impairment to the defense because a defendant‘s inability to prepare and present his case “skews the fairness of the entire system.” Barker, 407 U.S. at 532.
Impairment of the defense can be the result of lost witnesses, see id., “defense witnesses [who] are unable to recall accurately events of the distant past,” id.; see Seltzer, 595 F.3d at 1172 n.2, or lost evidence, see Toombs, 574 F.3d at 1275. Courts require the following three showings to establish impairment from lost testimony.
a) Particularity
We have required “a defendant [to] state with particularity what exculpatory testimony would have been offered.” Jackson, 390 F.3d at 1265 (brackets and quotations omitted). In more recent cases, though still requiring the defendant to identify lost testimony with particularity, we have not required the testimony to be exculpatory, and we have instead required the defendant to explain how the lost testimony was “material,” Margheim, 770 F.3d at 1330, or “meaningful,” Medina, 918 F.3d at 782.
The particularity requirement thus ensures both that the lost testimony itself is sufficiently important to the defense to cause impairment and that the defendant is not speculating about the testimony by “merely conjuring up potential witnesses.” Jackson, 390 F.3d at 1265.
b) Causation
The defendant must also “present evidence that the delay caused the . . .
c) Steps to preserve evidence
A final requirement is that the defendant “take steps, when possible, to preserve testimony.” Jackson, 390 F.3d at 1265; see United States v. Neal, 27 F.3d 1035, 1043 (10th Cir. 1994) (finding no prejudice where the defendant did not explain “why neither he nor his attorney took steps to preserve the witnesses’ testimony for trial“). But when a defendant is not “on notice of the need to preserve testimony” or has no “realistic opportunity to do so,” we have declined to view the failure to preserve testimony as fatal to a claim of prejudice. Jackson, 390 F.3d at 1265.
b. Additional procedural history
In support of his second motion to dismiss, Mr. Muhtorov outlined the credentials of Ms. Inoyatova, who was supposed to travel from Uzbekistan to testify in his defense. She died unexpectedly during an operation a month before trial. Mr. Muhtorov discussed her international reputation as “a world famous champion of human rights in her home country of Uzbekistan.” ROA, Vol. XV at 524. He proffered that she would have testified about his human rights work in Uzbekistan for her organization from 2001 to 2005. He said the repressive Karimov regime persecuted both of them for their human-rights work, so she “would have borne witness to the truth of Mr. Muhtorov‘s experience and been a counterweight to the government‘s attempts to paint him as a bearded ‘jihadi.‘” Id. at 528.
The district court denied the second motion to dismiss, reasoning that the proffer of Ms. Inoyatova‘s testimony “goes to an explanation of motivation and of background and not to the essence of the charge.” ROA, Vol. XX at 149. The court also suggested that Mr. Muhtorov make “an offer of proof . . . and see what the government‘s position is about admitting that statement from the now-deceased witness.” Id. at 149-50.83
c. Analysis
Mr. Muhtorov cannot demonstrate presumptive prejudice, but he can demonstrate specific prejudice based on oppressive pretrial incarceration and loss of witness testimony. This factor thus weighs in Mr. Muhtorov‘s favor, though the weight is lessened due to the non-exculpatory nature of Ms. Inoyatova‘s proffered testimony.
i. Presumption of prejudice
Mr. Muhtorov cannot demonstrate presumptive prejudice. Based on our discussion of the second Barker factor, we cannot attribute six years of delay to the government.
ii. Specific prejudice
1) Oppressive pretrial incarceration
Mr. Muhtorov first points to the oppressiveness of his six-and-a-half years in pretrial incarceration, including specific facets that prejudiced him. He argues that his time in custody was not typical or easy because he is an Uzbek- and Russian-speaking Muslim, and the experience as a whole “was well beyond the norm—substantively and temporally.” Aplt. Br. at 94.84 For the first two months, he was in
Mr. Muhtorov has established that the oppressiveness of his pretrial incarceration weighs in his favor.
First, the mere fact of his incarceration for six-and-a-half years weighs in favor of finding prejudice. See Barker, 407 U.S. at 533 (noting the “serious” “consequences” of incarcerating someone “who has not yet been convicted“). By any measure, six-and-a-half years of pretrial incarceration is extraordinary.
Second, Mr. Muhtorov claims prejudice from the restrictive environment due to the separation from his family, the animus he experienced due to his religion, and the time spent in lockdown. “[W]e credit his claim[s].” United States v. Cone, 310 F. App‘x 212, 220 (10th Cir. 2008) (unpublished) (crediting claims about the restrictive nature of the incarceration).85 Barker itself noted that time in jail for a pretrial detainee can disrupt family life and thereby be prejudicial. See 407 U.S. at 532. In addition, the two months spent on 24-hour lockdown count towards establishing prejudice. See Margheim, 770
F.3d at 1329-30 (noting that time spent in 18-hour lockdown supports a finding of actual prejudice).86
Third, all but a few weeks of Mr. Muhtorov‘s pretrial incarceration was in county penal facilities, which supports a finding of prejudice due to the lack of rehabilitation programs and visiting privileges in local jails that are offered by state and federal penal systems. See Barker, 407 U.S. at 520 (noting that confinement “in a local jail . . . has a destructive effect on human character and makes the rehabilitation of the individual offender much more difficult” (quotations omitted)); Tigano, 880 F.3d at 618 (“In addition to the sheer passage of time, a defendant‘s confinement in local jails makes those years particularly oppressive.“); United States v. James, 712 F. App‘x 154, 163 (3d Cir. 2017) (unpublished) (“We have recognized that there may be cognizable prejudice stemming from being confined to a local jail rather than a state (or, presumably, federal) prison better equipped for long-term incarceration.“). Mr. Muhtorov‘s time spent in “pretrial detention in local jails—before the defendant has been convicted of any crime—is precisely the type of prejudice contemplated by the right to a speedy trial.” Tigano, 880 F.3d at 618.
In sum, Mr. Muhtorov has established prejudice due to the nature and length of his six-and-a-half years of incarceration.
2) Anxiety and concern
Mr. Muhtorov‘s anxiety-and-concern argument is not well supported. He
As the government points out, however, Mr. Muhtorov reported to the probation officer who prepared the presentence report that he had not participated in mental health treatment and did not believe he needed any. See Aplee. Br. at 78-79. Without more, we cannot conclude that Mr. Muhtorov has established “special harm . . . which distinguishes his case from that of any other arrestee awaiting trial.” See Dirden, 38 F.3d at 1138.
3) Impairment of the defense
The last and “most important” type of specific prejudice is impairment of the defense. Larson, 627 F.3d at 1209. Mr. Muhtorov points to the “obvious” prejudice he suffered due to the death of Ms. Inoyatova. Aplt. Br. at 94-95 (quoting Barker, 407 U.S. at 532). He characterizes her lost testimony as “vital to explaining [his] past and how his hatred of the [repressive] Karimov regime explained his interest in conversing with a group like the IJU.” Aplt. Reply Br. at 46.
The government responds that Ms. Inoyatova‘s testimony would have been cumulative because other evidence about his human rights work in Uzbekistan was presented at trial. In addition to Mr. Muhtorov, who testified on his own behalf, at least three defense witnesses testified on this topic: his brother, Asil; Steve Swerdlow, a researcher and director at Human Rights Watch; and Michael Andersen, a journalist and human rights worker.
We find Mr. Muhtorov has established prejudice due to lost testimony because he has met all three requirements discussed above to establish impairment of the defense. He has first identified Ms. Inoyatova‘s lost testimony with necessary particularity. Though Ms. Inoyatova‘s testimony was akin to that of a character witness, it was at least “material to his case,” Margheim, 770 F.3d at 1330, and it arguably “would have aided [his] defense,” United States v. Trammell, 133 F.3d 1343, 1351 (10th Cir. 1998). Mr. Muhtorov has sufficiently explained that he has been “hindered in the sense that he was not able to defend the charges against him to the extent he desired.” Toombs, 574 F.3d at 1275; see also Larson, 627 F.3d at 1209; Seltzer, 595 F.3d at 1180 (concluding that the defendant “suffered an impairment of his ability to defend and prepare his case” (emphasis added)). He also has provided a description of the prejudice that goes beyond the “hazy description[] of prejudice” we cautioned against in Margheim. See 770 F.3d at 1331. “[T]here is no allegation that [Mr. Muhtorov] is merely conjuring up potential witnesses.” See Jackson, 390 F.3d at 1265. Because the lost testimony was at least “material” and Mr. Muhtorov has sufficiently identified the lost testimony, he has carried his burden on the particularity requirement.
Mr. Muhtorov also has met the second and third requirements because he has shown Ms. Inoyatova died on the eve of trial that had been delayed, and his failure to preserve Ms. Inoyatova‘s testimony is excusable considering the timing and unexpectedness of her death. Her travel arrangements were in place, and preserving her testimony for trial would have been difficult given that she lived halfway around the world.
Although Mr. Muhtorov has satisfied all three requirements and has therefore established
First, as the district court noted, Ms. Inoyatova‘s testimony would not have gone to the “gravamen” of the case. ROA, Vol. XX at 149. Her testimony would not have directly contradicted the terrorism charges against Mr. Muhtorov, as he was not performing human rights work when he corresponded with the IJU. She was not a “key witness,” Jackson, 390 F.3d at 1265, nor would she have been exculpatory.
Second, the government is correct that Ms. Inoyatova‘s testimony attesting to his human rights work would likely have been cumulative of the testimony of his brother, Mr. Swerdlow, and Mr. Andersen.87
Still, as explained above, Mr. Muhtorov has carried his burden to establish prejudice by establishing all three requirements. Viewing Ms. Inoyatova‘s death as prejudicial is consistent with the Supreme Court‘s statement that “time can tilt the case against either side, [and] one cannot generally be sure which of them it has prejudiced more severely.” Doggett, 505 U.S. at 655 (citation omitted). But for the reasons discussed, we do not find this prejudice substantial.
* * *
Mr. Muhtorov‘s six-and-a-half years of incarceration, most of it in county jail, is plainly a strong consideration in the prejudice analysis. That length is highly unusual and should not be tolerated without good reason, especially when, as here, Mr. Muhtorov lost a witness, Ms. Inoyatova. This factor thus weighs in favor of finding a constitutional violation due to the nature and length of Mr. Muhtorov‘s incarceration and the loss of a witness, though not as much as if Ms. Inoyatova had been an exculpatory witness.
5. Balancing the Barker Factors
In review, (1) the first factor—length of the delay—weighs heavily in favor of finding a constitutional violation; (2) the second factor—reasons for the delay—does not weigh in favor of a violation; (3) the third factor—the defendant‘s assertion of the speedy trial right—weighs in favor of a violation, although not heavily; and (4) the fourth factor—prejudice to the defendant—weighs in favor of a violation due to the oppressive pretrial incarceration and the loss of a witness, though it does not weigh as heavily as it would had Ms. Inoyatova‘s testimony been central to his defense.
In balancing the factors, we are mindful that “none of the four factors . . . [is] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Barker, 407 U.S. at 533. Under the circumstances of this case, a primary consideration is that the delay was attributable to necessities of
First, in United States v. Casas, 425 F.3d 23 (1st Cir. 2005), the First Circuit rejected a speedy trial claim. The court found that the first and third Barker factors weighed in favor of the defendants, who spent 41 months of pretrial delay incarcerated. Id. at 33-34. The court did not weigh the fourth factor in favor of the defendants, rejecting claims of oppressive incarceration and the loss of witnesses. Id. at 34-36.
At the second factor, the First Circuit rejected the defendants’ argument that “delay was caused largely by the unpreparedness of the government, and the inability of the judicial system to cope with their case,” and instead found that the delay was justified because the case was a “complex drug conspiracy” with “over 350 pretrial motions,” there was “no bad faith effort by the government to delay the proceedings,” and the district court “moved the case along to trial.” Id. at 33-34. In balancing the Barker factors, the First Circuit noted that “[t]he forty-one months that passed between appellants’ initial indictment and trial constituted an unusually long wait, particularly for defendants held in pretrial detention,” but it found that “the large and complex nature of the proceedings and the district court‘s obligation to consider the multitude of pretrial matters” resulted in “no violation of the Sixth Amendment as a result of pretrial delay.” Id. at 36.
Second, in Tigano, the Second Circuit found a speedy trial violation and dismissed the indictment. It noted that “no single, extraordinary factor caused the cumulative . . . years of pretrial delay.” 880 F.3d at 606. It found that seven years of delay was “the result of countless small choices and neglects, none of which was individually responsible for the injustice suffered by [the defendant], but which together created [an] extreme instance of a Sixth Amendment violation.” Id. There, “[a] review of the procedural history reveal[ed] . . . poor trial management and general indifference at every level toward [a] low-priority defendant in a straightforward case.” Id.
Casas and Tigano help demonstrate why the second factor tips the balance in this case. As in Casas, the first and third factors weigh in favor of Mr. Muhtorov. Although the Casas court found the fourth factor did not weigh in favor of a constitutional violation, that case is analogous to ours because in both the defendants were incarcerated during the pretrial period, and here we do not weigh the loss of Ms. Inoyatova‘s testimony heavily.
The second factor drove the outcome in Casas due to the complexity of the case and the government‘s and the district court‘s diligence in bringing the case to trial. Here, too, there was undoubtedly substantial delay. Six-and-a-half years in pretrial detention is unusually long. But very little about this prosecution was usual. The complexity of pretrial discovery, beset by CIPA requirements, translation issues, and Mr. Muhtorov‘s own broad discovery requests, created unavoidable delays. Throughout it all, the government did not act in bad faith, and the district court did a commendable job, under difficult circumstances, to bring the case to trial. Thus, it is appropriate for the second factor to drive the balancing analysis here, just as it did in Casas.
In another respect, the six-and-a-half-year delay here mirrored the seven-year delay in Tigano. As in Tigano, the delay here was not the result of a “single, extraordinary
On the distinctive facts of this case, we find the second Barker factor tips the balance in favor of not finding a constitutional violation. The district court recognized the challenges of the discovery process and properly applied the STA to push back the trial date. Mr. Muhtorov does not challenge the district court‘s application of the STA, and it is “unusually to find a Sixth Amendment violation when the Speedy Trial Act has been satisfied.” United States v. Koerber, 10 F.4th 1083, 1109 (10th Cir. 2021) (quotations omitted). There was no Sixth Amendment violation. This is so even though six-and-a-half years of pretrial delay is concerning, particularly when the defendant was incarcerated for that entire period. Due to the record-intensive nature of this case, this length of time does not, as the dissent contends, “set[] a new Sixth Amendment ‘standard of speed.‘” Dissent at 5. The pretrial period was lengthy. But given the quantity and nature of the discovery, and the overall good faith and diligence of the government and the district court in bringing this case to trial, we affirm the district court‘s conclusion that there was no violation of Mr. Muhtorov‘s speedy trial rights.88
We affirm Mr. Muhtorov‘s convictions and the district court‘s judgment.89
18-1366, United States v. Muhtorov
LUCERO, Senior Judge, dissenting:
Because of the extreme departure by my respected colleagues from accepted norms of constitutional and procedural law affecting this case, I must respectfully dissent. This extraordinary divergence falls into three distinct categories in which the majority: (1) Improvidently evaluates the criteria set forth in Barker v. Wingo, 407 U.S. 514 (1972), and declares a trial that commenced six years and four months after the date of arrest to be an acceptable speedy trial under the
Rarely do we have before us a criminal case that does not involve countervailing considerations of the respective rights of a defendant balanced against the duties and obligations of the government. This case presents no exception. Before us is a case involving the conviction of defendant Jamshid Muhtorov of national security crimes. He appeals denial of his right to a speedy trial under the
I
The right to a speedy trial, embodied in the
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”
Counterbalancing the right to a speedy and just trial in this case is the significant governmental interest in protecting national security information. See Haig v. Agee, 453 U.S. 280, 307 (1981) (there is “no governmental interest . . . more compelling than the security of the Nation,” and “[m]easures to protect the secrecy of our Government‘s foreign intelligence operations plainly serve these interests“). No governmental
I am well cognizant that the government has a “compelling interest in protecting . . . the secrecy of information important to our national security.” Snepp v. United States, 444 U.S. 507, 509 n.3 (1980). In respecting this governmental interest, however, we must not overlook the constitutional promise that a “presumptively innocent person” should not languish in confinement under unresolved charges. Betterman v. Montana, 136 S. Ct. 1609, 1614 (2016). For the reasons that follow, it is my conclusion that the progress of this case was deficient in both speed and orderly expedition. See Ewell, 383 U.S. at 120. As a result, Muhtorov has completed his prison sentence before his appeal becomes final. Assuredly, as my respected colleagues note, some of the delay is attributable to Muhtorov‘s discovery practice and the necessary provision of translation services. But regrettably, too much of the delay is directly attributable to discretionary decisions of the government.1 Those decisions needlessly
A
I begin with approximately two years of delay that are uncontestably attributable to the government. For just over 21 months, the government did not notify Muhtorov of the involvement of
bring national security cases, surely it must know, or should know, whether it is going to present
Swallowing this initial 21-month
Next, the government required four years, seven months, and eleven days to meaningfully respond to the defendant‘s discovery requests. A relative pittance of information was provided within the first four years followed by massive production in August 2016.4 At argument, this production of discovery material was described as a “discovery dump.” Muhtorov‘s counsel tell us that only then, after September 1, 2016, were they able to begin to assess the evidence against him. Additional discovery followed, extending well beyond the trial-court-imposed deadlines to the eve of trial in May 2018. Again, I recognize that the extensive nature of Muhtorov‘s discovery requests can account for part of the delay, but close to five years of delay cannot be explained away by such summary acceptance of governmental excuses.
Furthermore, the effects of delaying meaningful discovery production for 55 months were exacerbated by the continued production of evidence by the prosecution, which extended to the eve of trial. As I discuss in the Jumaev dissent, the government waited to produce evidence that had been in its possession for more than five years until shortly before Jumaev‘s first scheduled trial in March 2017. See United States v. Jumaev, No. 18-1296, slip op. at 3-4 (10th Cir.) (Lucero, Senior J., dissenting). Because Muhtorov and Jumaev were charged as co-conspirators, this unexplained belated discovery production on the eve of trial directly caused an additional one-year delay in Jumaev‘s trial. Muhtorov could not go to trial until after Jumaev‘s trial was completed, so this necessarily caused an additional one year‘s delay in Muhtorov‘s trial as well. The district court sanctioned the government for this belated discovery production, which occurred well after the discovery deadline.5
My colleagues focus on the second Barker factor, the reason for the delay,6 and sweepingly conclude that the “government has carried its burden to provide an acceptable rationale for the delay” because “discovery logistics—including CIPA and translation
necessities—drove the pace of proceedings.” (Op. at 126, 136 (quotations omitted).) Yet the majority fails to conduct the necessary Barker analysis that would critically assess the government‘s assertions as to these “discovery logistics.” Five years of delay cannot be justified by superficial assertions, for the government is responsible for “discovery logistics.” Accepting these government excuses without exacting scrutiny denigrates the instruction in Barker that our review “process must be carried out with full recognition that the accused‘s interest in a speedy trial is specifically affirmed in the Constitution.” 407 U.S. at 533. Surely the government, in bringing cases of this type, must be prepared to direct the resources necessary to comply with its constitutional obligations. Some delay is acceptable. Close to 55 months to provide constitutionally mandated discovery is not. My analysis of these aspects of the critical second Barker factor is contained at I.B, infra.
It is the government‘s burden to make a particularized showing “to explain why such a wait was necessary in a particular case.” United States v. Seltzer, 595 F.3d 1170, 1178 (10th Cir. 2010) (emphasis added). Bad faith or malevolence on the part of the government is not required to weigh (even heavily weigh) trial delays against it, for it remains the government‘s duty to bring the defendant to trial in a timely manner.7 Barker, 407 U.S. at 527; see also Seltzer, 595 F.3d at 1179.
Or the third? Reason dictates it could have.8 Finally, the government has failed to show the necessity of its delay of 55 months to provide the majority of the discovery to which Muhtorov was constitutionally entitled.
The right to a speedy trial does not allow the government to sit on its hands for 46 months before it begins to perform its duties.9 That Muhtorov languished in jail under an unresolved charge while the government actively avoided its constitutional duties is anathema to the
B
I also reject my colleagues’ acceptance of the government‘s position that the “complexity of the case,” including the national security context, the nature of Mr. Muhtorov‘s discovery requests, the CIPA obligations, and the need to translate voluminous materials from Russian, Uzbek, and Tajik into English, provide an acceptable rationale for the delay. (Op. at 128-36.) Review of the record does not support these governmental assertions. My colleagues overlook that these difficulties were well-known to the government during its investigation and prosecution of Muhtorov and in many instances arose from discretionary decisions made by the government. Because delay stemming from these decisions is attributable to the government, it is properly weighed against it under Barker.
These decisions include (1) opposing the appointment of cleared defense counsel; (2)
As we all recognize, the Executive appropriately possesses both the authority and the responsibility to take actions to protect national security and classified information, but it must do so within the confines of a constitutional system that reposes a primary responsibility to protect the rights of a criminal accused in the judiciary. The government‘s burden to ensure due process and a speedy trial are not negated by its responsibilities to protect classified information—if they conflict, due process must prevail or the prosecution must be foregone. See United States v. Abu Ali, 528 F.3d 210, 255 (4th Cir. 2008) (“CIPA contemplates and authorizes district courts to prevent the disclosure of classified information . . . so long as it does not deprive the defendant of a fair trial.“). When Congress passed CIPA it explicitly recognized that, in some cases, the Executive would be faced with difficult decisions about whether to protect classified information or to prosecute a criminal defendant within the bounds of due process required by our Constitution. The House Report discussed the CIPA substitution remedy as a solution to the “disclose or dismiss dilemma” presented by the competing interests of protecting classified information and prosecuting offenses in accordance with due process, but required “the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.” H.R. REP. NO. 96-831, Pt. 1, at 7, 19 (1980). Similarly, the Senate Report emphasized that the government‘s right to substitute classified evidence was subject to it not prejudicing defendant‘s right to a fair trial. S. REP. NO. 96-823, at 4 (1980).11
CIPA provisions accommodate both the interests of the defendant in a fair and speedy trial and of the government to protect classified information if the government acts expeditiously. Mere incantation of the phrase “national security” does not, and should not, in and of itself justify violations of the speedy trial right. Likewise, the terms “complex discovery” and “translation difficulties” should not stand stead for the term “national security.” It is the government‘s burden under Seltzer to show that the delays resulting from its discretionary decisions were necessary in light of available alternatives. In this case,
- Of primary concern is the government‘s opposition to defense motions for the appointment of cleared defense counsel in 2014 and 2015.12 Although discretionary, this singular decision directly affected the orderly expedition of this case before the district court—and continues to adversely affect our ability to review the constitutionality of Muhtorov‘s conviction on appeal. The exclusion of defense counsel by the government to the extent accomplished in this case denies courts of the normal honing of issues and sharp presentation of law that our adversarial process is designed to produce13—with attendant delays as defense counsel attempted to meet their constitutional responsibilities.
In conducting our balancing under Barker, it is important to recognize that neither CIPA nor FISA mandate the withholding of evidence from the defense or prohibit appointment of cleared defense counsel to access the sensitive information in a classified form. In these circumstances, cleared defense counsel undergo the same background checks, receive the same security clearances, and are subject to the same serious criminal sanctions for unauthorized disclosures of classified information as government prosecutors. In other serious terrorism prosecutions, the government has
The government is entitled to decide whether to use CIPA‘s substitution, summary, and redaction processes, as well as whether to grant access to classified information to defense counsel. If its decisions substantially delay the trial, however, that delay weighs against it. The government‘s decision to oppose appointing cleared defense counsel to whom classified evidence could be disclosed delayed this trial substantially. Ironically, the government itself recognized that having cleared counsel would have facilitated the orderly expedition of this case because it would have avoided defense motions to resolve inconsistencies in the discovery provided after CIPA substitutions. This delay should be weighed against the government.
This brings me to the government‘s assertion that it is Muhtorov‘s fault, that it was Muhtorov‘s “aggressive litigation strategy,” that substantially contributed to the delay. It complains that Muhtorov‘s “unsuccessful efforts to suppress evidence obtained or derived through traditional FISA and Section 702 and to gain access to classified information, including disclosures about the government‘s investigative techniques, were time-consuming for the parties and the district court.” In other words, the government blames the delay on Muhtorov‘s motion practice, which itself was necessitated by the government‘s refusal to share the information defense counsel required to fulfill their
- My colleagues view the volume of discovery and the need to translate materials from Russian, Tajik, and Uzbek as further justifying delay. (Op. at 131-35.) Yet the government was long aware of the nature of the evidence and the need to review for Brady, Giglio, and
Rule 16 material to proceed to trial. Review and translation of these materials was obviously required for any prosecution to occur and was solely within the government‘s control. After review of both records, I do not find persuasive the government‘s justifications for taking 55 months to accomplish these tasks. As we know from Barker, although a “more neutral reason [for a delay] such as negligence or overcrowded courts should be weighted less heavily [against the government, it] nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker, 407 U.S. at 531. “Where a State has failed to provide funding . . . and that lack of funding causes a delay, the defendant cannot reasonably be faulted. . . . States routinely make tradeoffs in the allocation of limited resources, and it is reasonable that a State bear the consequences of these choices.” Boyer v. Louisiana, 569 U.S. 238, 245 (2013) (Sotomayor, J., dissenting) (citation omitted).
As recounted by the district court, this record is replete with the “slow—and maybe even deliberately slow—pace of the Government‘s efforts to go from tech cuts
- Additional significant delay was caused by the government‘s decision to seek a third superseding indictment on May 18, 2016, almost 52 months after Muhtorov‘s arrest, in which it added two new broad conspiracy counts.18 As recognized by the district court, the addition of these new broad charges at this late date “mandated” delay of the scheduling of a trial. A little more than nine months later, on March 1, 2017, the government voluntarily dismissed these charges, in part based on its own expert witness contradicting the government‘s theory of liability for the two dismissed counts.19 In imposing sanctions, the district court specifically held that the “conversations on which those charges were based were intercepted before Mr.
Jumaev‘s arrest and were known to the Government for four and a half years before the Superseding Indictment was sought,” and their late addition in May 2016 “caused the defense team to have to revisit and reevaluate all of the discovery that had been provided to it by the Government before then.”
I can draw no other conclusion than that the late addition of these charges delayed Muhtorov‘s trial by an additional 23 months. This delay should weigh heavily against the government. Seeking a third superseding indictment 52 months after Muhtorov‘s arrest based on evidence in possession of the government before or at the time of his arrest can hardly be characterized as necessary. The government‘s ability to make discretionary prosecutorial decisions is accompanied by consequences under the Speedy Trial Clause.
- Although the process authorized under CIPA will necessarily require some delay, Barker nonetheless requires that this delay be subject to ad hoc scrutiny in which we weigh “the conduct of both the prosecution and the defendant.” 407 U.S. at 530. There is no national security exception to the constitutionally protected right to a speedy trial, nor should there be. Given the government‘s almost unilateral control of the CIPA processes, it is appropriate that any CIPA-related delays be weighed against the government. This is not to disparage the importance of the Executive‘s responsibility to appropriately protect classified information and national security, “[b]ut, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused‘s interest in a speedy trial is specifically affirmed in the Constitution.” Id. at 533.
After an initial June 2012 orientation for the district court on the types and sensitivity of the evidence involved in the case, the government, as discussed above, did not present its CIPA § 4 motions until January 2016. Its proposed measures on how specific classified information would be protected were not provided to the district court until August 2016, on the eve of the September 1, 2016 discovery deadline. Only then did the district court learn of protective techniques that the government proposed to implement under CIPA § 4 for the evidence in the case. The government did not seek prospective approval of its preferred approach, and the record shows that its approach resulted in a significant delay in the production of all discovery and continued to contribute to delays in the trial of the case even after the September 1, 2016 discovery deadline.
Muhtorov could not go to trial before the government satisfied its constitutional and statutory discovery obligations. Given the existing alternatives available to the government, including clearing defense counsel, the government‘s decision to choose the most difficult means to accomplish its national security responsibilities does not make the delays resulting from those choices “necessary” for the purposes of the speedy trial requirement. See Seltzer, 595 F.3d at 1178. How and why the government protects classified information is well within its discretion, but when the record shows that those measures significantly and unnecessarily delayed the trial, the resulting delays weigh heavily against the government.
C
When I weigh the foregoing delays as I am required to do under Barker, 407 U.S. at 530, and when I add to them the unexplained delays in providing the initial § 702 notice, the government‘s
My Barker analysis is a simple mathematical exercise. Factor one weighs against the government. Factor two weighs heavily against the government. Factor three weighs against the government. Factor four weighs heavily against the government. QED. I would reverse for denial of a speedy trial.
That would end my analysis. Because my colleagues disagree, I proceed to resolution of the other two major issues.
II
I have serious concerns about the majority‘s
A
Based in part on the government‘s “affirmativ[e] represent[ation]” in its brief, the majority rejects one of Muhtorov‘s principal arguments on appeal—that the government violated the
I agree with the majority‘s conclusion that the incidental collection of Muhtorov‘s communications with a target of § 702
1
Our
As a result, our review must include a searching inquiry into the existing record to evaluate defense arguments that might otherwise be considered as lacking specificity or as being waived or defaulted in other contexts. If the defense does not have access to the evidence or to arguments presented by the government in ex parte proceedings because of CIPA, any failure to make arguments with sufficient specificity, to assert specific grounds before the district court, or to produce evidence to contradict the government‘s presentation cannot be held against the defendant.22 The responsibility instead
2
If Congress has declared us inquisitors, then inquire we must. See Amawi, 695 F.3d at 471. Our inquiry, however, is almost immediately stymied by the record‘s silence on multiple facts that are crucial to the derivative evidence inquiry.23 Sidestepping our statutory duty to act as standby defense counsel, the majority accepts the government‘s unsupported assertions that “the Section 702-derived evidence at issue was not obtained or derived from queries using terms associated with Muhtorov.”24 (Op. at 23 (quotations omitted).) There is not one whit of evidence in the record to support this statement. To the contrary, the PCLOB Report, which provides the most-extensive declassified explanation of the § 702 program, indicates that the FBI almost certainly queried terms associated with Muhtorov prior to seeking a FISA warrant. Evidence in the classified record bolsters this conclusion
The PCLOB Report explains that “whenever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment.” The word choice is noteworthy—not “can” or “may,” but the FBI will query stored § 702 information whenever the FBI opens a new national security investigation. As concerns Muhtorov, we know from the declassified FBI Investigations and Operations Guide, the unclassified record, and the government‘s brief, that the FBI opened a full investigation a legally significant period of time before it sought a traditional FISA warrant. See FBI Domestic Investigations and Operations Guide, paras. 5.10, 6.9, 7.9, and 9.7 (2008).26 It blinks reality to assert that, in this one
instance, the FBI did not follow its standard operating procedure of querying
Understanding this, perhaps, the government tries to narrow our inquiry and contends that we need only be concerned with the specified number of communications that were included in the traditional
under the facts of this case? After full review of the classified record, I cannot resolve this derivative evidence question.
We can glean limited facts from the record. We know that a specified number of incidentally collected communications were submitted to support the traditional FISA application, which in turn led to the evidence at trial. We also know that the FBI had access to additional communications that were not included in the original FISA application.27 Finally, we know that the agent who prepared and submitted the traditional FISA application (and his supervisors who directed it be sought) had access to a broad array of law enforcement and intelligence information. What we do not know, and what the record is conspicuously silent on, is the sum total of information on which these agents relied when they decided to seek a traditional FISA warrant.28
Although the government presents the relevant targeting and minimization procedures for the relevant years in its classified record, it never describes in detail how and when the “acquisition” of the information occurred in Muhtorov‘s case. This may be explained by the FBI‘s documented history of widespread U.S. person querying and of non-compliance with its record-keeping responsibilities under its own minimization procedures.29 See
My review shows that it is likely that querying did occur prior to the traditional FISA application, that the FBI had access to unminimized stored
3
I briefly address one final
My colleagues rely on the plain view and incidental overhear doctrines to countenance the use of millions of
In 2011, “the government was annually acquiring over 250 million Internet communications, in addition to telephone conversations” under
Treating querying as a separate search under the
B
The majority concludes that, in annually approving the
Nonetheless, the remedy to that violation is not, in my mind, the invalidation of the entire program. Instead, it requires federal courts, when actually faced with a case or controversy that satisfies
1
The Constitution explicitly limits the judicial power exercised by federal courts to deciding “cases” or “controversies.” See
The second function of the case or controversy limitation on the constitutional authority on
These two functions of the case or controversy requirement come together in the prohibition against advisory opinions. “[T]he oldest and most consistent thread in
In the FAA, “Congress created a comprehensive scheme in which the [FISC] evaluates the Government‘s certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the
Additionally, the FISC only reviews the Executive‘s proposed procedures. It issues no dispositive judgment, a necessary element of the judicial power. See Plaut v. Spendthrift Farm, 514 U.S. 211, 218-19 (1995). Concerningly, the FAA deputizes “federal courts as virtually continuing monitors of the wisdom and soundness of Executive action, . . . [which] most emphatically, is not the role of the judiciary.” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 612 (2007) (quotations omitted). The FISC‘s determinations go against the most fundamental intent of the case or controversy requirement: “to assure that the federal courts will not intrude into areas committed to the other branches of government,” Flast 392 U.S. at 95, and to maintain “the proper—and properly limited—role of the courts in a democratic society,” Summers v. Earth Island Inst., 555 U.S. 488, 492-493 (2009).
However convenient the FISC‘s review may be in assuring the American people that intelligence agencies are not once again violating their
2
The majority concludes that the FISC‘s
I find the majority‘s reasoning puzzling. The FISC‘s application of legal principles to “real-world issues” and the fact that its “determinations have immediate consequences” that are “binding on the executive” do not save those determinations from being advisory opinions. To the contrary, the entire purpose of every executive officer who seeks an advisory opinion—from Jefferson‘s letter to the Attorney General‘s certifications to the FISC—is the desire to achieve a “judicial declaration of the validity” of government action that would have immediate real-world consequences and legally binding force. See Muskrat, 219 U.S. at 361. Imagine for a moment that a police department wished to implement a sobriety checkpoint program that included the presence of drug dogs and sought an advance determination from an
The majority‘s
Although I conclude that the FISC‘s annual reviews violate
impossible to conduct the necessary review on the current record. If not for the unambiguous violation of Muhtorov‘s speedy trial right that mandates his conviction be
III
Muhtorov was not required to trade his right to a speedy trial for his right to be tried in accordance with due process. The Constitution protects both. Confining a presumptively innocent individual for over six years as the government blocks his path to a timely trial with obstacles of its own creation is repugnant to the
I find it unacceptable to avoid complicated issues that strike to the core of the framework of our Constitution by accepting party declarations on appeal that are unsupported by the record. But for the speedy trial violation, which in my judgment requires the vacation of Muhtorov‘s conviction, I would vote to remand so that we could properly determine the remaining issues on a well-developed record.
Notes
That the evidence in this case originated from § 702 surveillance was not a surprise to the government; it formed the basis of the multi-year investigation of Muhtorov prior to his arrest. I need not speculate to conclude that the government‘s complete failure to explain this 21-month delay does not establish necessity under United States v. Seltzer, which placed the burden on the government to explain why delay was necessary in a particular case. 595 F.3d 1170, 1178 (10th Cir. 2010). Given the government‘s duty to “[e]nsure that the trial was consistent with due process,” this delay weighs heavily against the government. See Barker, 407 U.S. at 527.[U]ntil the Snowden leaks in 2013, the American public was led to believe that the government did not query or use FAA-acquired surveillance against non-targeted U.S. persons. See Clapper v. Amnesty Int‘l, USA, 133 S. Ct. 1138 (2013). The belated notice in this case was part of the Snowden fallout and the revelation, post-Clapper, that the Executive Branch does, in fact, use FAA-acquired information to investigate U.S. persons for suspected criminal activity, and that it intends to use it against Mr. Muhtorov here.
The dissent also states “there is no evidence in the record either that querying did not occur or that the government agents who directed or sought the traditional FISA application did not know of its existence.” Id. at 33. We generally do not require parties to prove a negative, see Elkins v. United States, 364 U.S. 206, 218 (1960), especially here where the record supports that querying was not used to prepare the traditional FISA applications. Appellate courts should not “speculate about what might have been.” See Davis v. Ayala, 576 U.S. 257, 281 (2015).
Indeed, the dissent goes beyond asking the government to prove a negative. It accuses the government, without substantiation, of “fail[ing] . . . to introduce any evidence that it complied with . . . record-keeping responsibilities” regarding queries, see Dissent at 33 & n.29. But there were no statutory record-keeping requirements during the investigation in this case. Some were added to Section 702 years later in 2018. See Pub. L. No. 115-118, § 101 (codified at
Just as we decline to address possible constitutional issues regarding querying of Section 702 databases, we decline to consider possible constitutional issues concerning upstream collection of communications. See Redacted, 2011 WL 10945618, at *25-26 (FISC Oct. 3, 2011) (discussing constitutional issues raised by upstream collection). The record contains no indication that either upstream collection or querying Section 702 databases led to the traditional FISA applications.
Early in this case, the government characterized the issue of clearing defense counsel as “irrelevant” at the time because ex parte CIPA § 4 review would still be required to establish the relevance of the information and defense counsel‘s “need-to-know” before they could access classified information. In May 2012, it categorically stated that the FISA information was and would remain classified and “be handled in an ex parte in-camera procedure and will not be produced.” The district court recognized that it was not a prosecutorial determination by the government to limit contextual information to the defense that was the issue but the prosecution‘s inability to extract it from the intelligence agencies “that don‘t want to disclose anything.” Nonetheless, it is the government that has the responsibility to promptly proceed to trial and show the necessity for delays. Delays resulting from internal governmental disagreement and bureaucratic disputes appropriately weigh against the government.The dissent believes the government“s representation that it did not use querying to prepare the traditional
Apart from this apparent concession, the dissent misreads Hasbajrami“s discussion of querying. In questioning our analysis upholding the government“s use of incidentally collected
William Pitt, Speech, House of Commons, Nov. 1783.Was it not necessity which had always been the plea of every illegal exertion of power, or exercise of oppression? Was not necessity the preten[s]e of every usurpation? Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
The Article III question here is different. Under Section 702, the government is legally powerless to conduct warrantless foreign surveillance previously carried out under the TSP without the FISC‘s authorization. The government‘s Section 702 orders to electronic service providers would be void ab initio. Criminal defendants would be entitled to suppression under
ROA, Vol. V at 526-27 (emphasis added).The recordings are gibberish and meaningless to the defense unless they are translated. Unless they are translated, defense counsel cannot discern whether they contain inculpatory statements that the government will introduce in its case in chief, or whether they contain exculpatory statements helpful to the defense. It is therefore necessary that they be translated by the government.”