In early 2012, the federal government initiated criminal prosecution of Jamshid Muhtorov (January 19) and Bakhityor Jumaev (March 14) in the U.S. District Court for the District of Colorado. The government charged each of these defendants with providing, conspiring to provide, and attempting to provide material support and resources to a foreign terrorist organization, in violation of Title 18, U.S.C. § 2339B. Defendants were represented by the American Civil Liberties Union (ACLU), the ACLU of Colorado, and the Federal Public Defender.

This case is in the Clearinghouse because the parties are litigating the constitutionality of Section 702 of the FISA Amendments Act (FAA). While Section 702 is the focus of this summary, more details on the underlying criminal prosecution are provided at the end. This case is also the first time the government notified a defendant of the government's intent to use information gained from a FISA warrantless wiretap after a 2013 DOJ internal policy change. These new notifications are eventually expected to reach the Supreme Court for a determination of whether or not the 2008 FISA Amendments Act is constitutional. All the cases regarding criminal challenges to warantless wiretapping are available in the Criminal cases challenging FISA surveillance special collection.

In addition to challenging the FAA, defendants also challenged evidence acquired through surveillance under other provisions of the Foreign Intelligence Surveillance Act (FISA); these issues are addressed briefly at the beginning.

At the start of the proceedings, the government notified defendants that it intended to use and offer into evidence information obtained through electronic surveillance and physical search conducted pursuant to FISA. Notice was made to Muhtorov on February 7, 2012 and to Jumaev on April 4, 2012. Muhtorov moved to suppress the use of FISA-acquired evidence for purposes of the hearing on defendants' detention pending trial on February 8, 2012. The government responded on February 10, claiming that a detention hearing could be held using FISA-derived information while FISA suppression litigation was pending.

On February 15, 2012, Magistrate Judge Michael E. Hegarty granted the government's motion for detention. Magistrate Judge Hegarty found that when a defendant moves to suppress FISA-acquired information which the government intends to use in a hearing, the court must determine whether the surveillance was lawfully authorized and conducted under FISA § 1806(f). However, a contradictory provision, 18 U.S.C. § 3142(f), states that the rules of admissibility do not apply to evidence used for determining pretrial detention. Magistrate Judge Hegarty ultimately relied on § 3142(f), as applied in United States v. Hightower, 203 F.3d 836 (10th Cir. 2000), which permitted reliance during detention on FISA material even if it was ultimately determined to be inadmissible.

Muhtorov asked the district court to revoke the Magistrate Judge's detention order and for a hearing de novo on March 1, 2012. District Judge John L. Kane denied that motion on April 11, 2012.

On May 25, 2012, Muhtorov filed a supplement to his motion to suppress FISA-acquired evidence during the trial. On July 30, 2012, Jumaev filed several FISA related motions, including a motion (1) to adopt Muhtorov's motion to suppress, (2) for disclosure of FISA materials, and (3) for leave to file a Franks motion after receipt of the government's discovery. Judge Kane denied Muhtorov's motion to suppress and Jumaev's FISA-related motions on September 24, 2012. After conducting an in camera review, Judge Kane found that the FISA motions failed because the facts supported a finding of probable cause to believe that defendants were agents of a foreign power under FISA.

Issues relating to Section 702 of the FAA arose on October 25, 2013 when the government filed a notice of intent to use information obtained under the FAA, § 1881(a), against Muhtorov. The government did not provide such notice to Jumaev.

Unlike traditional FISA, Section 702 of the FAA does not require the government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Further, it does not require the government to specify the nature of the surveillance or the particular location of where the electronic surveillance will occur. When the government makes an FAA application to the Foreign Intelligence Surveillance Court ("FISC"), it simply asks the court to approve the overall targeting and minimization procedures that will guide the government's surveillance. Until recently, the government had a policy of concealing from criminal defendants any connection between the FAA and their prosecutions. When the government's policy of withholding notice of FAA surveillance came to light after Clapper v. Amnesty International, 133 S. Ct. 1138 (2013), the DOJ changed its policy and affirmed its notice obligation. Muhtorov was the first person charged as a defendant in a criminal prosecution to receive notice of FAA surveillance.

On January 29, 2014, Muhtorov filed a motion to suppress FAA-obtained evidence and a motion for discovery. He challenged the constitutionality of Section 702, claiming that such monitoring of his communications violated both the warrant and reasonableness requirements of the Fourth Amendment. He also claimed that Section 702 violates Article III, because it authorizes the FISC to issue mass acquisition orders in the absence of any case or controversy and review the legality of government procedures in the abstract. Muhtorov also moved for discovery to permit him to understand the role that the FAA played in the government's investigation so he could challenge the specific manner the FAA was used in his case. Muhtorov claimed that he was entitled to such discovery under FISA and the Due Process clause of the U.S. Constitution.

As Jumaev had not been provided notice that the government intended to use FAA-obtained evidence against him, on October 28, 2013 he moved for notice of whether the government intended to use such evidence. The government responded on November 19 that it would have provided notice if it intended to use FAA-obtained information. Jumaev filed a reply on January 10, 2014, claiming that there were grounds to believe that FAA-derived evidence was used against him. On January 30, 2014, he moved to adopt Muhtorov's motion to suppress.

On May 9, 2014, the government filed a response to Muhtorov's motion to suppress. Defense counsel was provided with a redacted, unclassified version of the response. On May 22, 2014, the government filed its classified response in camera, ex parte, and under seal. In the unclassified response, the government claimed as follows: that Jumaev lacked standing to challenge the FAA; that court review should be limited to an as applied (rather than facial) challenge; that 702 is constitutional as applied; that government actions were lawfully authorized and conducted in accordance with the FAA; that defendants' discovery requests should be denied to the extent they seek disclosure of FAA related materials; and that the good faith exception to exclusionary rule applied.

On June 12, 2014, Muhtorov moved to require the government to disclose or provide defense counsel access to its classified pleading and objecting to ex parte proceedings. On June 18, Jumaev filed a similar motion to disclose. On July 2, the government filed a combined response to the motions for disclosure, claiming that the FAA does not allow a defendant such relief unless the court finds, after conducting its own ex parte review of the FISA material, that disclosure of portions of that material is necessary to make an accurate determination of the legality of the surveillance.

On July 2, the government also supplemented its response to defendants' motion to suppress with the opinion in United States v. Mohamud, 2014 WL 2866749 (D. Or. June 24, 2014), which upheld the constitutionality of Section 702. Muhtorov filed a reply to the government's response on July 3, 2014, and Jumaev filed a reply on July 11.

On October 20, 2014, Jumaev filed an attorney surveillance motion requiring the government to provide notice of interceptions of defense counsel communications. Muhrotov moved to adopt this motion on October 28.

On November 19, 2015, Judge Kane denied the defendants' motion to suppress, holding that, both on its face and as applied to the defendants, Section 702 did not violate the Fourth Amendment. Judge Kane also held that Section 702 did not violate Article III, but did not offer any analysis as to how he reached this judgment, leaving this issue "to a higher court."

Details of the Criminal Case:

The government filed a criminal complaint against Muhtorov, a legal, permanent resident of the United States, on January 19, 2012. Muhtorov spent most of his life in Uzbekistan as a human rights activist, but resettled in Colorado in 2007 as a political refugee.

Muhtorov was accused of providing material support to the Islamic Jihad Union (IJU), an extremist organization. The FBI investigated Muhtorov's communications with an IJU-affiliated website, which allegedly include committing his allegiance to IJU and arranging to send funds to IJU. On January 21, 2012, Muhtorov was arrested on a federal warrant at O'Hare Airport while attempting to travel overseas. This case involves "numerous intrusive" searches of his computer, email accounts, personal residence, and personal effects, including interceptions of his communications.

On March 14, 2012, the government filed a complaint against Jumaev, a friend of Muhtorov who resided in Pennsylvania. He was arrested on March 16 and accused of the same charges. In particular, the government alleged that he pledged support for the IJU and sent Muhtorov $300 intended for the IJU.

The parties engaged in discovery and the court addressed a number of issues related to detention, a protective order, the Classified Information Procedure Act, and translation of documents. On October 25, 2013 the government filed a notice of intent to use FAA-obtained information as to Muhtorov, at which point the parties began litigating Section 702.

After an interview was given by defense counsel to a local broadcast journalist on October 29, 2014, the government filed a motion to clarify the protective order. On December 3, 2014, Judge Kane granted the motion to clarify the protective order. He noted that, with the exception of disclosing sensitive discovery materials, counsel were free to make extrajudicial statements and that there was no basis for sanctions in this situation. Judge Kane advised that it would be prudent for counsel not to make extrajudicial comments, but that the freedom of expression permitted it.

This case is currently ongoing in the district court.

Jessica Savoie - 09/28/2014
Samantha Kirby - 12/05/2014
John He - 12/23/2015


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