WILLIAM P. JOHNSON, District Judge.
THIS MATTER comes before the Court upon Defendant's Amended Motion for Disclosure of FISA Applications and Certifications and to Suppress the Fruits of Interceptions Made Pursuant to the FISA Search Warrant, filed January 21, 2014 (Doc. 128). Having reviewed the parties' briefs and applicable law, the Court finds that Defendant's motion is not well-taken and, therefore, is denied.
In this motion, Defendant alleges a misuse of a Foreign Intelligence Surveillance Act (FISA) wiretap that was used to monitor Defendant's office and home phone from October 2011 through June 2012, and raises procedural and constitutional issues concerning the FISA application. The eight-count Superseding Indictment (Doc. 132, Redacted) charges Defendant with using U.S. government resources and equipment to conduct research for the People's Republic of China. Part of the alleged
Defendant challenges the FISA warrant and monitoring in this case on two grounds. First, he claims that the Government obtained Defendant's phone conversations while he was in the United States, which was a procedural violation of FISA. Second, Defendant contends that the FISA process was used to sidestep ordinary constitutional requirements to bolster a "traditional" criminal investigation. Defendant notes that an ongoing criminal investigation of Dr. Huang started prior to the approval in April 2011 of Dr. Huang's trip to China and that when the criminal investigation yielded no result, the government resorted to FISA surveillance. As a result, the Government violated the Fourth Amendment (substantive violation) by circumventing the probable cause requirements of a traditional Title III wiretap. Defendant argues that there is no evidence that Dr. Huang was acting as an `agent of a foreign power" and raises the possibility of Franks violations in the FISA application papers.
Defense counsel claims that, at a minimum, he and Dr. Huang should be permitted to review the warrant and affidavit, especially if any personnel from Sandia viewed such or had input into its formulation, in order to determine whether any of those individuals had motive or bias. Defendant argues that, at a minimum, this Court should view the FISA warrant and affidavit in camera to determine if there are any exculpatory matters that must be disclosed. However, the Court has carefully reviewed the FISA warrant, affidavit, and all supporting material, and has determined that a hearing is not necessary, and that disclosure is not appropriate.
The government filed a Notice (Doc. 20) that it intends to offer into evidence information obtained from FISA surveillance. The government opposes Defendant's requests but also maintains that the FISA information at issue was lawfully acquired and that the electronic surveillance and physical searches were conducted in conformity with an order of authorization or approval, and requests (1) that the Court deny the defendant's request that the FISA information be suppressed; and (2) order that none of the FISA materials be disclosed to the defense, and instead, that they be maintained by the United States under seal.
The FISA was enacted in 1978 and was subsequently amended. FISA authorizes the Chief Justice of the United States to designate eleven United States District Judges to sit as judges of the Foreign Intelligence Surveillance Court (FISC). 50 U.S.C. § 1803(a)(1). The FISC judges are empowered to consider ex parte applications submitted by the Executive Branch for electronic surveillance and physical searches when the government demonstrates that a "significant purpose" of the application is to obtain foreign intelligence information, as defined in FISA.
50 U.S.C. § 1804(a)(1)-(9). An application to conduct a physical search pursuant to FISA must contain similar information as an application to conduct electronic surveillance except that an application to conduct a physical search must also contain a statement of the facts and circumstances that justify an applicant's belief that "the premises or property to be searched contains foreign intelligence information" and that each "premises or property to be searched is or is about to be, owned, used, possessed by, or is in transit to or from" the target. 50 U.S.C. § 1823(a)(1)-(8).
Under the FISA Amendments Act of 2008, three main requirements must be met for the FISC to approve the application. First, the Government must establish, and a judge must find, probable cause to believe that the "target" of the surveillance is a "foreign power" or an "agent of a foreign power," and that the target is using, or is about to use, the "facility" that is the subject of the order. 50 U.S.C. § 1804(a)(3).
50 U.S.C. §§ 1805(a)(1)-(4), 1824(a)(1)-(4). If the court approves the application, the court's order must specify where and how the surveillance will be carried out, must limit the duration of the surveillance, and must require compliance with FISA's minimization procedures. §§ 1805(c)(1)(B)-(E), (c)(2)(A), (e)(1).
The purpose of judicial review is to ascertain whether the FISA information was lawfully acquired. In evaluating the legality of the FISA collection, the district court's review should determine: (1) whether the application established the probable cause required by FISA; (2) whether the certification submitted by the Executive Branch in support of a FISA application was properly made; and (3) whether the collection was properly minimized. See U.S. v. Abu-Jihaad, 630 F.3d 102, 130-31 (2d Cir.2010).
FISA envisions that initial review of a FISC Order is to be conducted in camera and ex parte. On the filing of the Attorney General's affidavit or declaration, the court "may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance [or physical search] only where such disclosure is necessary to make an accurate determination of the legality of the surveillance [or search]." 50 U.S.C. §§ 1806(f), 1825(g) (emphasis added). In this case, the Attorney General has filed the requisite affidavit ("Declaration and Claim of Privilege") that triggers this process and has declared that disclosure or an adversary hearing would harm national security. See Ex. 1 (Doc. 207-1). The constitutionality of FISA's in camera, ex parte review provisions has been affirmed by every federal court that has considered the matter. See, e.g., El-Mezain, 664 F.3d at 567; Abu-Jihaad, 630 F.3d at 117; United States v. Damrah, 412 F.3d 618 (6th Cir.2005); U.S. v. Belfield, 692 F.2d 141 (D.C.Cir.1982) (§ 1806(f) "is
The in camera, ex parte review of FISA applications and related materials is done in order to determine whether FISA information was lawfully acquired and whether the surveillance and searches were made in conformity with an order of authorization or approval. Disclosure may be ordered only if the district court cannot make an accurate determination of the legality of the surveillance or search. Such a need might arise:
United States v. Duggan, 743 F.2d 59, 78 (2d Cir.1984) (emphasis added); 50 U.S.C. § 1806(f) (permitting disclosure only where the court finds that it is unable to determine legality of the surveillance based on its in camera, ex parte review alone and without the assistance of defense counsel). This means that the propriety of the disclosure of any FISA applications or orders to the defendant may not even be considered unless and until the district court has first concluded that it is unable to make an accurate determination of the legality of the acquired collection of information after reviewing the government's submissions (and any supplemental pleadings that the district court may request) in camera and ex parte. See El-Mezain, 664 F.3d at 565; United States v. Abu-Jihaad, 630 F.3d 102, 129 (2d Cir.2010). Further, if the district court is able to make an accurate determination of the legality of the electronic surveillance, physical searches, or both, based on its in camera, ex parte review of the materials submitted by the United States, then the court may not order disclosure of any of the FISA materials to the defense, unless otherwise required by due process. El-Mezain, 664 F.3d at 566; Duggan, 743 F.2d at 78.
The Tenth Circuit has not determined whether a de novo or deferential standard of review applies to FISC's probable cause determination. The government contends that the material under review here will satisfy either standard, but concedes that many courts have reviewed the FISC's probable cause determination from a de novo standard, and only a small group of other courts, including Abu-Jihaad in the Second Circuit, have afforded due deference to the findings of the FISC.
The probable cause standard applicable to a review of a FISA warrant is different from probable cause determinations
Defendant's contention that the FISA wiretap circumvented the probable cause requirement of a traditional Title III wiretap is meritless. While the FISA probable cause standard is not premised on the commission of a crime, nevertheless it has been found to comport with the Fourth Amendment. U.S. v. Isa, 923 F.2d 1300, 1304 (8th Cir.1991); U.S. v. Ning Wen, 477 F.3d 896, 898 (7th Cir.2007) (holding that FISA is constitutional despite using "a definition of `probable cause' that does not depend on whether a domestic crime) (quoting United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752) (1972); Duggan, 743 F.2d at 73-74 (holding that FISA does not violate the Fourth Amendment). Contrary to Defendant's representations, this standard does not eliminate the requirement that the target is found to be an agent of a foreign power. See 50 U.S.C. § 1804(a)(3)(A). Defendant also raises an argument that surveillance in this case violated FISA because it was conducted while Defendant was still in the United States, but in doing so, makes the mistake of relying on 50 U.S.C. § 1881. These are FISA provisions relating to "Additional Procedures Regarding Certain Persons Outside the United States," contained in Subchapter VI. Contrary to Defendant's inferred argument, FISA does not specifically prohibit surveillance and search of United States persons, which is governed by the provisions in Subchapter I (electronic surveillance) and Subchapter II (physical searches); see n. 2 above referring to § 1801(b)(2)(A) and 50 U.S.C. § 1821 (relying on definitions in section 1801).
The Court has considered the material submitted by the government in camera and ex parte, and is thoroughly persuaded that this probable cause standard was met in the FISA applications as the basis for the FISA warrants.
The current version of FISA requires that "a significant purpose" of the surveillance
The Court here applies a de novo review to determine the legality of the FISA surveillance and search, but also acknowledges that deference is to be afforded in a review of the certifications. Certifications submitted in support of a FISA application should be "subjected only to minimal scrutiny by the courts," U.S. v. Badia, 827 F.2d 1458, 1463 (11th Cir.1987), Badia, 827 F.2d at 1463, and are "presumed valid." Duggan, 743 F.2d at 77 & n. 6 (citing Franks v. Delaware, 438 U.S. at 171, 98 S.Ct. 2674); United States v. Sherifi, 793 F.Supp.2d 751, 760 (E.D.N.C.2011) ("a presumption of validity [is] accorded to the certifications"). When a FISA application is presented to the FISC, "[t]he FISA Judge, in reviewing the application, is not to second-guess the executive branch official's certification that the objective of the surveillance is foreign intelligence information." Duggan, 743 F.2d at 77. Likewise, Congress intended that the reviewing district court should "have no greater authority to second-guess the executive branch's certifications than has the FISA judge." Id.
Thus, the purpose of the Court's review here is to determine whether the certifications were made in accordance with FISA's requirements. See United States v. Alwan, No. 1:11-CR-13, 2012 WL 399154, at *7 (W.D.Ky. Feb. 7, 2012) ("the [c]ourt is not to second-guess whether the certifications were correct, but merely to ensure they were properly made"). When the target is a United States person, then the district court should also ensure that each certification is not "clearly erroneous." Badia, 827 F.2d at 1463. A "clearly erroneous" finding is established only when "although there is evidence to support it, the reviewing court on the [basis of the] entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); United States v. Garcia, 413 F.3d 201, 222 (2d Cir.2005); United States v. Islamic Am. Relief Agency ("IARA"), No. 07-00087-CR-W-NKL, 2009 WL 5169536, at *4 (W.D.Mo. Dec. 21, 2009) (identifying "clearly erroneous" standard of review for FISA certifications).
Defendant claims that the government did not have a "significant purpose" in obtaining "foreign intelligence information" but instead, the FISA wiretap was an excuse to build whatever legal case it could against Dr. Huang. Defendant seems to infer that the initiation of criminal prosecution against Dr. Huang eliminated the need for foreign intelligence gathering, and thus there was no "significant purpose" to the wiretap. However, Defendant is incorrect that a criminal prosecution is inconsistent with the "significant purpose" requirement in FISA, because FISA allows the use of evidence derived from FISA surveillance and searches in criminal prosecutions. 50 U.S.C. §§ 1806(a), 1825(a). In re Sealed Case, 310 F.3d 717, 725 (FISC of Rev.2002) (noting that government's foreign policy concerns do not recede once the government moves to criminal prosecution, since "arresting and prosecuting ... spies for ... a foreign
The Court has carefully reviewed the materials provided by the government for in camera review and finds that the certification submitted by the Executive Branch in support of a FISA application was properly made and fulfills all FISA requirements for certification.
The Attorney General has adopted, and the FISC has approved, minimization procedures that regulate the acquisition, retention, and dissemination of non-publicly available information concerning unconsenting United States persons obtained through FISC-authorized electronic surveillance or physical searches, including persons who are not the targets of the FISA authorities. FISA requires that such minimization procedures be:
50 U.S.C. §§ 1801(h)(1), 1821(4)(A). The Court has carefully reviewed the FISA collection submitted ex parte and in camera and finds that the government followed the relevant minimization procedures to appropriately minimize the information acquired pursuant to FISA. In addition, the materials contain the requisite signature and approval by the Attorney General regarding electronic surveillance, physical searches, or both, before the application was presented to the FISC.
Under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the government is required to disclose to the defense evidence pertaining to the credibility of government witnesses. United States v. Molina, 75 F.3d 600, 602 (10th Cir.), cert. denied, 517 U.S. 1249, 116 S.Ct. 2510, 135 L.Ed.2d 199 (1996) (citation omitted). Defense counsel has intimated that the FISA collection submitted for the Court's review contains material which implicates Giglio, in that certain individuals at Sandia had been given access to FISA materials and shown FISA information, and that such information could impeach that person's credibility. See Doc. 128 at 6. However, counsel offers no basis at all for this speculation and thus, there is no reason for disclosure of any of the FISA collection on that basis. See, e.g., U.S. v. Aguilar, 2010 WL 2977708, at *7 (D.N.M. June 28, 2010) (where court noted that it had been given "no reason to conclude that background information on the [confidential informant] will be inherently exculpatory").
In addition to requesting the FISA affidavit or application, Defendant requests that the Court conduct an adversary hearing in order to determine the issues raised by the Motion to Suppress. Defendant argues that there is no evidence that Dr. Huang was acting as an "agent of a foreign power" and raises the possibility of Franks
Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), a hearing on the veracity of the affidavit supporting a warrant is required if the defendant makes a substantial showing that the affidavit contains intentional or reckless false statements and that the misrepresentation was essential to the finding of probable cause. 438 U.S. at 155-56, 98 S.Ct. 2674. The defendant's burden in establishing the basis for a Franks hearing is a heavy one. United States v. Jeffus, 22 F.3d 554, 558 (4th Cir.1994). A defendant's "attack must be more than conclusory and must be supported by more than a mere desire to cross-examine." Franks, 438 U.S. at 171, 98 S.Ct. 2674; U.S. v. Kashmiri, 2010 WL 4705159, at *6 (N.D.Ill. Nov. 10, 2010) (without a showing that an Executive Branch officer knowingly and intentionally, or recklessly, included a false statement in the FISA application, defendant was foreclosed from obtaining a hearing); Duggan, 743 F.2d at 77 n. 6. Failure of the defendant "to satisfy either of these two prongs proves fatal to a Franks hearing." Kashmiri, 2010 WL 4705159, at *5; U.S. v. Mubayyid, 521 F.Supp.2d 125, 130-31 (D.Mass.2007).
Defendant has not offered anything more than conclusory speculations about allegations of falsehoods in the FISA affidavit. The Court acknowledges that without access to the FISA affidavit, Defendant is constrained from making an examination of the affidavit in the first place. However, as the government notes, this is no reason to abandon the Franks threshold. If a defendant need only allege a speculative Franks violation in order to force disclosure of FISA materials, the result would be incongruous with Congress' intention that FISA materials should be reviewed in camera and ex parte. See also U.S. v. Colkley, 899 F.2d 297, 301-02 (4th Cir.1990) (noting that the Franks threshold is not met even by an offer of proof of an impropriety that might have affected the outcome of the probable cause determination, but rather requires one that was "necessary to the finding of probable cause"). In the instant case, the Court finds that Defendant has not made a substantial showing that the FISA affidavit contained intentional or reckless false statements and that the misrepresentation was essential to the finding of probable cause. Accordingly, the Court finds there is no reason to have a Franks hearing, and thus no reason to suppress the fruits seized pursuant to the warrants.
In sum, the Court rejects all of Defendant's arguments for disclosure of the FISA application or other FISA related material. The Court had no difficulty determining the legality of the FISA surveillance and/or search so disclosure of FISA material is clearly not warranted in this case.
The Court also finds and concludes that the FISA materials did not contain any exculpatory information which the government is required to disclose under Giglio, and that the FISA application met the relevant probable cause and "significant purpose" standard. Part of the probable cause presentation in this case included the requisite certification from a high-ranking executive branch official with national security responsibilities, wherein it was certified that a "significant purpose" of the surveillance is to obtain foreign and that such information cannot reasonably be obtained by normal investigative techniques. This certification was legally supportable. Finally, the government followed the relevant minimization procedures to appropriately minimize the information acquired pursuant to FISA.
Finally, because the Court has determined that the FISC orders were supported by probable cause, and that all the relevant FISA certification requirements were met, there is no need to consider the "good faith" exception to the exclusionary rule articulated in U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (exclusionary rule precludes admission of evidence tainted by a Fourth Amendment violation in cases where its application will deter police misconduct).
