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Case Name United States v. Hasbajrami NS-NY-0012
Docket / Court 1:11-cr-00623 ( E.D.N.Y. )
State/Territory New York
Case Type(s) National Security
Special Collection Criminal cases challenging FISA surveillance
Foreign Intelligence Surveillance Act -- All Matters
Foreign Intelligence Surveillance Act -- Foreign Targeting (702, 703, 704)
Case Summary
This case is the third time the government notified a criminal defendant that the evidence used against him was from a FISA warrantless wiretap. These notifications are eventually expected to reach the Supreme Court for a determination of whether or not the 2008 FISA Amendments Act is ... read more >
This case is the third time the government notified a criminal defendant that the evidence used against him was from a FISA warrantless wiretap. These 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.

On September 6, 2011, Agron Hasbajrami, an Albanian citizen and a lawful U.S. permanent resident, was arrested boarding a flight to Istanbul, Turkey on a one-way ticket. He was indicted two days later by a federal grand jury for providing and attempting to provide material support to terrorists. The government alleged that Hasbajrami provided funds to jihadist groups in Pakistan who had fought American forces in Afghanistan and intended to fly to Pakistan to assist those groups in that fight.

On September 9, 2011, the government moved for Hasbajrami's permanent detention given the seriousness of his crime, the danger he posed to the community, and the risk that he would flee the country using his international connections. The Court granted the motion that same day. On January 26, 2012, a superseding indictment was issued, charging him with four counts of provisions or attempting to provision material support to terrorists.

On April 12, 2012, Hasbajrami pleaded guilty to Count 2 of the indictment. The trial scheduled for July was cancelled and sentencing was set for September 14, 2012; however, a number of extensions were granted and final judgment was entered on January 16, 2013. Counts 1, 3, and 4 were dismissed and Hasbajrami was sentenced to 15 years in prison for Count 2 with a $100 special assessment fee.

On October 23, 2013, Hasbajrami sent a letter to Judge Gleeson, requesting a copy of the sentencing hearing minutes, docket sheets, grand jury transcripts, and criminal complaint. Judge Gleeson ruled that because Hasbajrami was convicted and had given no notice that he intended to appeal his conviction, his right to criminal discovery was "extinguished" and he was not entitled to the grand jury transcripts or complaint. However, given that the docket sheet and sentencing hearing minutes were easily obtained, the government should turn those over.

On December 3, 2013, the Court received a letter from Hasbajrami indicating that he had moved to have his sentence and conviction vacated. A new docket for his collateral motion was opened under no. 1:13-cv-06852-JG .

After discovery, Judge Gleeson granted Hasbajrami's motion on October 3, 2014, allowing Hasbajrami to withdraw his guilty plea and open further proceedings. Judge Gleeson noted that Hasbajrami's pro se filing only indicated that he believed the statute under which he was convicted was unconstitutionally vague and that the government disclosed new information that changed his case. In September 2011, before the guilty plea, the government indicated that it would use electronic surveillance evidence against Hasbajrami pursuant to FISA. In February 2014, the government disclosed that some of the information it would have used against Hasbajrami in trial, which included foreign intelligence, was obtained by warrantless wire-tapping.

Judge Gleeson allowed Hasbajrami to revoke his guilty plea because he was not sufficiently informed about the facts of his case and thus could not make an intelligent decision about his plea. The government failed to give him proper notice during the plea negotiations of the evidence it intended to use under the FISA Amendments Act of 2008 (FAA). By failing to give such notice, the government effectively implied that it would not use FAA-acquired evidence against him when that is exactly what it intended to do.

On November 26, 2014, Hasbajrami moved to suppress the fruits of FAA surveillance because of the statute's per se unconstitutionality and the government's "outrageous conduct" and his post-arrest statements. He also requested the Court's ruling on whether the government violated his Fifth Amendment right to Due Process, an order directing the government to reveal the witnesses it learned of during Hasbajrami's interrogation, an order directing the government to disclose the evidence that is subject to suppression, notice of the expert witnesses it intends to rely upon at trial, and disclosure of Brady/Giglio material and other evidence it intends to use at trial. On December 23, 2014, the government responded.

On February 20, 2015, Judge Gleeson denied Hasbajrami's motion to suppress the fruits of FAA surveillance and said he would issue a full opinion later. The government indicated that it would disclose some of Hasbajrami's requested information. Judge Gleeson set a status conference for February 27 to see if the government would offer the same plea bargain to Hasbajrami as it did back in 2012. The conference was rescheduled and Judge Gleeson denied Hasbajrami's request for discovery.

At the status conference on April 14, 2015, the government indicated that it would not offer the same plea bargain to Hasbajrami and go to trial, which was set for July 13, 2015. However, the parties began plea negotiations anyway, which were apparently successful. On June 26, 2015, the government issued a superseding information, charging Hasbajrami with one count of provisioning or attempting provision material support to terrorists and one count of conspiracy to provide material support to terrorists. Hasbajrami pleaded guilty to both counts. On July 15, 2015, Hasbajrami filed a sentencing memorandum requesting 60 months in prison. However, just five days later, Hasbajrami again moved to withdraw his guilty plea, arguing that his attorney forced him into it. On August 6, 2015, Judge Gleeson denied his motion to withdraw his plea and his request for new counsel.

On August 17, 2015, final judgment was entered. Hasbajrami was sentenced to 15 years in prison for Count 1 and one year in prison for Count 2, to run consecutively, for a total of 16 years in prison. He was also charged a $200 special assessment fee and a judicial order for removal to Albania was issued. On August 21, 2015, Hasbajrami appealed his conviction and sentence.

On March 8, 2016, Judge Gleeson released his opinion for why he denied Hasbajrami's motion to suppress. Judgle Gleeson refused to examine his facial challenge to the FAA and instead focused on Hasbajrami's as-applied challenge. He held that warrantless surveillance against non-U.S. persons is lawful and does not violate the Fourth Amendment and the incidental collection of U.S.-based persons' information in the lawful targeting of foreign individuals does not trigger the warrant requirement. Further, Judge Gleeson held that the collection of this information was reasonable and that the collection of traditional FISA surveillance was lawfully acquired baed on a warrant supported by probable cause.

On August 3, 2016, Hasbajrami's case was reassigned to Judge Irizarry. His case has been held in abeyance until Judge Irizarry is able to rule on Hasbajrami's motion to receive Judge Gleeson's full unredacted opinion on his motion to suppress.

Craig Streit - 03/09/2017


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Issues and Causes of Action
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Issues
Affected Gender
Male
Constitutional Clause
Due Process
Unreasonable search and seizure
General
Terrorism/Post 9-11 issues
Plaintiff Type
U.S. Dept of Justice plaintiff
Causes of Action FISA Title I Warrant (Electronic Surveillance), 50 U.S.C. §§ 1801-1812
Defendant(s) Agron Hasbajrami
Plaintiff Description This is a criminal case against Defendant Hasbajrami for providing material support to terrorists.
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Criminal Conviction
Source of Relief Litigation
Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Case Closing Year 2016
Case Ongoing Yes
Docket(s)
1:13−cv−06852−JG (E.D.N.Y.)
NS-NY-0012-9001.pdf | Detail
Date: 10/03/2014
Source: PACER [Public Access to Court Electronic Records]
1:11-cr-00623-JG-1 (E.D.N.Y.)
NS-NY-0012-9000.pdf | Detail
Date: 09/06/2016
Source: PACER [Public Access to Court Electronic Records]
General Documents
Provision of Material Support to Terrorists [ECF# 1]
NS-NY-0012-0001.pdf | Detail
Date: 09/08/2011
Source: PACER [Public Access to Court Electronic Records]
Superseding Indictment [ECF# 20]
NS-NY-0012-0004.pdf | Detail
Date: 01/26/2012
Source: PACER [Public Access to Court Electronic Records]
Sentencing Memorandum [ECF# 39]
NS-NY-0012-0005.pdf | Detail
Date: 11/21/2012
Source: PACER [Public Access to Court Electronic Records]
Judgment [ECF# 45] (E.D.N.Y.)
NS-NY-0012-0006.pdf | Detail
Date: 01/16/2013
Source: PACER [Public Access to Court Electronic Records]
Letter to Agron Hasbajrami [ECF# 65]
NS-NY-0012-0002.pdf | Detail
Date: 02/24/2014
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 85] (E.D.N.Y.)
NS-NY-0012-0007.pdf | Detail
Date: 10/02/2014
Source: PACER [Public Access to Court Electronic Records]
Defendant Agron Hasbajrami's Pretrial Omnibus Motions and Incorporated Memorandum of Law in Support Thereof [ECF# 92]
NS-NY-0012-0008.pdf | Detail
Date: 11/26/2014
Source: PACER [Public Access to Court Electronic Records]
Superseding Information [ECF# 141]
NS-NY-0012-0009.pdf | Detail
Date: 06/26/2015
Source: PACER [Public Access to Court Electronic Records]
Order of Judicial Removal [ECF# 150] (E.D.N.Y.)
NS-NY-0012-0010.pdf | Detail
Date: 08/17/2015
Source: PACER [Public Access to Court Electronic Records]
Second Ordered Judgment [ECF# 161] (E.D.N.Y.)
NS-NY-0012-0011.pdf | Detail
Date: 11/03/2015
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 165] (E.D.N.Y.)
NS-NY-0012-0012.pdf | Detail
Date: 02/18/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Gleeson, John (E.D.N.Y.)
NS-NY-0012-0006 | NS-NY-0012-0007 | NS-NY-0012-0010 | NS-NY-0012-0011 | NS-NY-0012-0012 | NS-NY-0012-9001
Plaintiff's Lawyers Amatruda, Matthew S. (New York)
NS-NY-0012-0001 | NS-NY-0012-0005 | NS-NY-0012-9000 | NS-NY-0012-9001
Currie, Kelly T. (New York)
NS-NY-0012-0009
DuCharme, Seth David (New York)
NS-NY-0012-0002 | NS-NY-0012-0005 | NS-NY-0012-9000 | NS-NY-0012-9001
Komatireddy, Saritha (New York)
NS-NY-0012-9000
Lynch, Loretta (New York)
NS-NY-0012-0001 | NS-NY-0012-0002 | NS-NY-0012-0004 | NS-NY-0012-0005
Defendant's Lawyers Bachrach, Michael K. (New York)
NS-NY-0012-0008 | NS-NY-0012-9000 | NS-NY-0012-9001
Ennis, Nancy Lee (New York)
NS-NY-0012-9000
Zissou, Steve (New York)
NS-NY-0012-0008 | NS-NY-0012-9000 | NS-NY-0012-9001
Other Lawyers Toomey, Patrick Christopher (New York)
NS-NY-0012-9000

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