United States v. C. Gregory Turner

Opinion

ln the L)`n.'r\ed Srma Cou.n of Appenls

l-'o: the chcnth C`u'cui\

____

No. 15-1175 REDACTEB l CLEARED FOR PuBLlC RELEAsE UNrm: STA'res oz A,~smca, ' P!ain!:f-App¢llee, v. C. GnEc;oRY Turms=_a. D¢f¢ndnnr-App¢!lom

.-'\ppcll from lh¢ Ur'.ll¢d Sme\ Distr|c! Coux¢ for she Notthem Dlslrid of lllinois. F.o.slum Div'ision. No. 13 CR 572-fhlml E. Bu¢klo, judge

ARCL`|£D OCTOBF.R 25, 2015 - DECmED SEPTEMBER 9, 2016

SUPFLEMENTAL CLA=;§IF!ED Ol'l.\'lON -» DECmED SEPTEMBF.R 9, 2016

Before K.A.\' NF.. ROVNF.R. and SYKES. Circuit judg¢s.

KAN.\'E, Circuz`¢ ludge. A.q noted in the general unclassified opinion in this cas¢, Defendan! Gregory Tumer was con- victed of willfully conspl:ing, with Prince Asi.el Ben lscac-L to provide services for Zi.mbabwean Specillly Deslgmved Na- tionals ("SD!\'s”). a group d government officials and re-

2 No. 15~1175 -

lifted individuals deemed to be blocking the demonatic pm» ceases or institutions of Zimbabwe. 30th Tumer and Ben ls:ael are U.S. personal

'I‘nlx ix the supplemental classified opinion addressing Tumer's claims. on appeal tim eha government’s lnvestiga~ tim violated the Foreign himiligence Suwelllam'e Ac't {“FISA") and that the obtained or derived evidence should have izeen suppressed Having reviewed the unclassified and classified xecord, we find that the order of !he &isi~rict court denying suppression of the PISA evidmce and its evi- dentiary frui!s was proper.

I. Backgmund living the sam approach as with the unclassified opin- ion. we begin with a brief synopsis cf the relevant legal framework for Tumer’a claims under FISA. ’l'hen, we mim- marize the FESA collections against ‘l`umer and the pertinem procedural history

A. FI$'A siegal Pr¢zmmrk

in 1978, C

FISA authorizes electronic survel£iance and physical searches eithu' with or withoui a conn arden Tumer’s cwa

N¢. 15~;175 3 _

onIy concerns PISA authorization with a court ordec, also known as a FISA warrant §§ 1805, 1824.‘

FISA established the Foreign In?elligence Surveillance Cmm (”FZSC”) m grantor deny government applications for a FIBA wmam. § 1803, 1822. 'I°he mth also established the Fereign Ineelligence Surveillmce Court cf Revlew (”FISCR"} to review P?SC denials of govemment applications for a FISA wmanz. Id.

fn under for the F!SC to issue an darden it must find that the government met certain requiremenm im:h.\d.wg arab- !ishing probable cause, certification and proposed minimization procedures. §§ 183‘)4{¢'»1)z 1895(a}, 1823(1), lazéia). "I“he FISC must find that the government demcn» shared ”probab]e cause” tim the rarget "Ls a foreign powe: or am agent of a foreign yower" and bhd each of the targeted Eaacifities cr properties is being used by a foreign power m an agent of a foreign power. §§ 1804{a}(3), ESGB{a}(Z), 1823{a}(3), 1824(1\)(23. The HSC also must find that she govem;:m yro~ vided “w:in:en certificadon” from a high»levei executive branch official that a "sz'gm'ficant purpose" of the proposed ssrveillance or search "is to obi'ain foreign inte}ligmce infor- mation." §§ 1804(a)(6). fBDS(a){§). 1823{:¢)(6). 1824{&]{4). Pi~ nally. the ?LSC must find that the govenunmr‘s proposed "ndrduxizarion procedures" are reasonably designed "ro minimize the acquisition and retention and prohibi? the dis-

v H$A comma mann bus !argz!y parall¢l, provisions governing simms mweillxnce, 50 U.S.C §§ ISGI-}SIZ_. md physical

anches. §§ 1821-1829.

4 N<>. 15~1`175

semina!icn of nonpublic!y avai!ab!e infommn’m concerning unconsendng limited Smes pmcns,” as well as provide ad¢ diti

if the FISA judge makes the necessary findings he or she than issues am order authorizing the electrode survek!lmce or physical search §§ 1805(&), 1824{9.}.'1`!'1¢ FISC order must contain specific wonnat£on on the urges relevant locatim, type cf information sought mem duration coverage, and applicable minimizadon procedures §§ 1805{¢)-(€1), 1824{€)- (d).

The government may also use infonnad

In response the aggrieved person may move to éiscover the materials rela%wg ho the surveiilance and search "¢mly where such djadosu:e is necessary to malice an accurate de- bennination of the iegality of" the surveillance or search §§ 1806(£), 1325(§). The aggrieved perm may also move to suppress evidence obtained or derived from the surveillance or search if ”the information was unfawfully acquired" or if it "was not made in ccm£ormity with an ordex of authoriza-

tion or approva!." §§ 3806{€). 3825(£}, If the aggrieved gerson

NO. i$»l‘l?§ 5

files a maxim §o

B. FISA Cafleciions On _, the FISC ,‘mmd probable cause to

believe that -J.S. pers»c~z~\sl were agents of a forei wer. The FISC authorized

electronic w Wei!iance

’I`he I"T$C's initial authorization was £or a period cf- _AH€: an additional appiication by the government the HSC subsequmtiy ref-authorized the

f the Sama facili' ties for am additionaf period of approximatel- To»

ie£her, these two carriers covered the time period from-

At m'al, the government introduced evidence obtamed or derived from the

6 No\ 1$-1`1?5 _

C. PTuccduraf F‘Iis\‘vry_

On August 20, 2013. the government pmde no£ice to Tumer that it "intmds to offer into evidence, cr otherwise use or disclose in amy proceedings in this matter." informa-

tion obtained or derived fromW _wndmd on er , m

§§ 1806{¢), zazs{d).

A week lawn on August 2?, 2013, a grand }uxy returned an indictment against 'l'umer. charging the following: (1} Count One alleged conspiring to act in the United States as an agent of a foreign govemmm§ without prior notificaiion to the Atiormzy General, in vio¥ation of 18 U.S.C. §§ 3?}, 951(3}; {2'} Ccrunt ‘I‘wo alleged acting 111 the United Staw.s as an agent of a foreign government without pn`or nod£ica&on fo the Atwmey Genera¥, in violation ¢f 13 U§.C. § 951{;}; and (3) Count 'f"n.ree alleged willfuliy conspiring to provide services on behalf o£. or for the benefit of, Zimbabwean SDN$, in violation of the IEEPA, 50 U.S.C. § 1?05(::), and 31 C§.R. §§ 5§1.2£5'1, 541.204, and 543A{)5.

On Febmary 27, 2014, Tizmer filed a motion for discio~ sure of FIBA materials and a motion to suppress evidence obta’m;ed or derived from ¥lSA. The govenu~:\ent resp¢mded to these motions with a chszified brief and sealed appendix submitted ex parte m the district omni and a redac€ed, im» dassiiied version served w Tumer. Additionaiiy. the gov' erma-m fined a "Declarazion and Claim of Privi§ege” by the Attorney C§enerai that declared "i: would ha:m the national security of the Urdred Staees to disc!ose or hoid an ad~

No. 15-'1175 P'

versatial hearing wi&\ ¥eg_ards w the Fl,SA Materials," ;‘.1'\:1'5‘.1m aunt to §§ 1806(¥), 1.825(§).

On IuIy 25, ZO’M=, the district south in a thorough and well-reasoned oph\ion, denied Tumerr”s motion for disclo- sure and his motion to suppress.’ ’H\e disde began by

comma w w F _werc "§awfu¥iy au. orized, because the gwem~

want p:eseneed sufficémt evidence co the I~'ISC to support a finding of probable cause that-was the ”agent of a foreign powcr.” 'I`he court then determined that the lawfuliy authorized FESA warrants targeting qua executed "’in confoan with an order or aufhonza cm or approval" because the government had properly mmimized its collec~ dons.

'l`umer’s trial began am Sepwmbez 29, 2914. Ultimahe£y,- the jury acquitted Turner of Counts One and ’I`wo but con» victed him of Ccvnt 'I'hree. 'fhe district court se:c\m‘\ced Turner to 15 montI'Ls' imprisonment and one year of super~ vised zelease` Iudgmmr was entered against ‘I‘umer on Iamz- a:y 21_, 2015. Turner's appeal £oilarwed.

..._..i.._...._.m__,..

Gn aypen¥, ‘f`ume: does mr chai§engi !he d\s!xicl cows denial of bid marion to disdou the ?I`SA mlwillr» Thzrefoa'¢, this claim is weived, md we do riot address it Se¢ Un|m! Stszes n. Dnbn¢y, 198 F.$cf €55, 460 {781 Ci.r. 2007} (”Bmum the mgmt was m wind or developed in we opening

brqu h is waxved.“$.

3 No¢ 15-1275

ll ANA].¥S]S

03 appeal, Tnmer claims that the govemmem's irwn€~ gadon violated FISA and that me obtained or dedved evi- dence should have been suppressed Pirsi, ‘I`urner argues that the FISC erred in finding that the govenunmt met its probable cause md certification requirements $econd, ‘mmer contends that after receiving the hwfu! 'FISC order. the government did not properiy minimize its mneciions under FISA. Th§rd. Tume: oontenda that the PlSA investiga~ don violated his protected rights under the Pirst Amend- warth

A. FISC Order

ms court reviews de nova the district courfs ruling on the propriety of the FISC‘s order1 L£n£ted Stms v. Dnmz‘s£. 424 P.Sd 566, 578 (7£1'\ Cir. 2005}. fn other words, in review- ing the adequacy of a FISA applicauem, this conn conducts thesame zeviewastheFISC.£n re Gm¢d,lury Proc. qf$p¢ciai Apr. 2002 Gmnd jury, 347 F.Sd 15-1?'l 204 {?th Cir. ZGDB}.

After reviewing the classified record, we ho!d that the FISC proper¥y found than the govenment's application met the requirements of probable cause and wiificadom under F.ISA.

No. 35~11`?5 9 1. Pn'$b¢zblc szs¢

‘I'his court reviews we probable cause determination of the FISC de nova Dumziax`, 424 F;Zd at 57'8~?‘9, nld'aough we more that some of our sister courts have applied z more de!» urentia£ standaré of review ¢,g., Urz:'ted Stat€s v. Abu~jfhnad, 630 F.Gd 1024 130 ich C.ir. Z€FJD} (“the established standard of judicial review applicable m FISA warrsz is defermtia}”).

According to FISA. the FISC mus% find max the govem~ mem dmonstraned pz’obable cause that the target "ia a for* eign power or an agent of a foreign power” and §l'lat each of the targeted facilities or properties is being used by a foreign power or an agent of a foreign pow¢.~’r. §§ 1804(¢1){3), 1805{1\){2), 1823(a){3), 1824(2\){2). We apply this statutory standard but acknowledge that some of our sister courts have sought to distinguish bemeers probable cause under FISA and probable cause under a "typicai cri:n'\inal case." E.g”, Um`ted Swtzs v, Ei»Mezsr‘n. 664 P.Sd 45‘7, 564 (5£}\ Ci.r. 2021) ("[FLSA‘§} probable cause standard is different from the smude in the typical crimina¥ case lm:ucamsse.>r rather than focusing on probable cause to believe that a person has com- mitted a crime, the PISA standard focuses on fha status of the target as a foreign power or an agent of a foreign power."). Even if there is a distinction between the two stan- dards, it does not affect our analysis.

la the present case, the PISA applicatiom by the govern- ment su; owed the HSC’; robabie came findin that

No. 15-`1175

NO. 15-1175 11

Additionalfy. the YISA appiicatim’rs supported the P`ISC findings cf probable cause for the propelled

PISA applications included evidence showing that

Accord.ing%y, the FISC properly found that the govern- ment demonstrated "p:ababie cause" haw “agemt of a foreign power“ and that the

were “being used or about

Tux:mz' contends that "FLSA appears w require the com~ mmcations subject to surveillance of a Unined States person must relate directly m activities involving international ter- rorism as defined in FISA." (Appelfax:t Br. 38.) ?ume: mis- states the law. FISA is not limited co activities involving ire- tematianal terrorism FISA authorizes surveillance and searches based on probable cause that the target is an *'age~nt of a foreign power;' which seizures to "any pers

12 No. 15~1{75

wh££e in the Un£ted States assum{ing] a false or fraudu- lent idan&ty.“ §§ 1801{3:}{2). 1821{1). These activities are listed in addition to "intzrmti

Tumer also argues thai if the sole purpose of the FISA warrant was to gather evidmoe for a manual pmsecuiicm.

“che intercept was improper." {Appeikant Br. 5$.)

‘I`umex'*a argument is meritless. FISA, as amended isn 2008. “elimmawd my jusdf!cation for the FISA court to ba§» anne the re§ative weight the government pfaces on crim prosecution as compared to maker comberinzeiligmce re- sponses." fn re Seuled Case, 310 F.Ed 717, 735 (FISA C&. Rev. 2802). fn other words, while the government must "have a mumable foreign intemgm purpose other dam just rsde prosecuzion,“ the mmdad m name “dm not obng the graer to denmu:ace to me FISA court that iv primary purpose in conducting electronic summance is not criminal prosecution.” Id. at 735‘3& (sheration in origi¢ nal).

Here, as discussed, the HSA applications by the govern- menf supported the FISC‘s probable cause finding &\at

asan"z mich ford owe:"beca

consumed “a measurabie foreign wmngcnze purpoze” and thus, Tumex's argument fnils,

Pinaliy, Tumer claims that the "FISA applicadm may contain intentiom.§ or reckless material falsehoods." {Appe}¢ iam Br. 39.) fn reviewing the mcfaas§fied and classified rev

No. 15'1175 13

mrd,weh@vemade “ameank\gfu!$ortmcm\§rm&seac- curacy of the [FI$A§ appiicau‘m“ Uni!ed Smtes v. Daoud, 755 F.Sd 479, 494-95 (7&1 Cir. 2014} ('Rovner. }., ccncurxing) (characwrizfng this review as serving “the same interest thata?m:ksmotiomserves”}.'f?u‘sreviewmumns!hatthe F¥SA applications did not centum inm&¢nal or reddess ma- wiai falsehoods

2. Cerf$cation

'I`ume:raisodzailmges&w¥!£€‘s£indingthat&mgovem- ment properly cerii§ed that a '*significznt purpose of“ the proposed surveillance or search ”is to obtain foreign infalli- gence information." §§ 1864{¢}{6}, }SOS{a}{é), 3823(;}(6}, 1824(-}(4;

FBA expready provides than far muveil!mce or searches targeting U.S. person the FISC must assure on§y that the govenment's evaluations m “noz clearly erroneousf' §§1805{¢){4), 1824{&)(4}.

111 reviewing the adequacy of the Z*ESA application this courts mnductsd\enmereviewas§\e I»',E»C¢ andourrole”is nor w second~guzss the executive branch o£§dal‘s certifica- tion," fn r¢' Grm¢d jury Proc., 34’? F.Bd at 204.

mdmase,afte:rmdewwg&\eckssifiedrecord,we§nd that the govemmmf's requisite w§£ications were pmpa nw governth presented the P!SC with su&cimt evidence tha

gmummt*l certifica-

tions mm not ’*c!eui:y emmz,s.”

l4 No. 15»1}35

- A, Mz'nimiz¢tiox

Undet FL€A, after receiving lawwl FISC orders, the gov~ mm must employ "::dnimlzatlon promdures," proposed in its applicadon, that are reascm.ebly designed "to minimize the acquisition md retention md prohibit the dissemination of nonpublicly available information concerning unconsentng limited Slate's pmo:xs,‘” as well as provide ad- ditional provectlmrs relating co ln£orma:im and cmnmunim- tions involving US, pmoml. §§ lSi}‘l(h), 1804(&}(4), L&CIS{a}($), 1821 (4), 1833(&}{4), §824(§)(3).

'I`he Attorney General has adapted Standard malden !’rocedum i"SM?s"). which are maintained cnfilemtl'\ Hw¥l$€andincoq:ormdbyreferminw ev-

PlSA a licatl

lrs Tumm"s mse, aim receiving lawful FISC orders, the govm\ment properly minimized the FlSA infomeion it col- lected in accordance with the SMPs. 'l'l\e classified record shows mm memmdngmszscmer,wmé¢rm¢d

the facilities subject to the approved _and wl subseun , e ms

were conducted during &\e approved times using the least physical intrusion necessary Thc classified record also i:ndl» cates that only authorized md trained I-`BI personnel :e~ viewed translated analyfetL mci used the collected FBA i:*£ormatim and dwydidaQMththepurpm of deteann» ing whether the hussmann rasmis appeared m meet the retention standard, Pur&zermme, it appears that any in-

No. 15»117$ 15

fomticm mdwmwre¥miim\standard washer that wm€iga_ted, analyzed. md disseminated in accordmce with the SE\rfPs. Pimily, the dwified md provides partic~ alex amd converse widow that only 1 permage of the §ISAcoHectionmetrheSWmndardwrretemwu antidis- marion

This is mf&ciem w demonstrate that the government propariy admim§zed the information mikech pursuant to its !-‘ISC order¢ `

B. z'~'frs!j£m¢ndmcm

’!Xxm¢r also daims that the ¥ISA investigation violated his ”proteched First Amend.mex'zt activity related m his belief in she wisdom and humanity in iif\irg economic summons against the chub!ic of Embabwe.' {Appe!}ant Br. 38.)

FISA provides ”thathnsz Smte.\ perm maybecon- sideredaforeign powexormqento&afomignpmver solelyupontlwba.sisofactividcsprozectedby&\e&rst amendment of the Cm\sdt:zb`m cf the Urdtmi Sta‘tes." 50 US~C» §§ 1895{¢}(2){$), 1324(3)(2}{5)-

Tumm’s daim is madden In me present cae, as dis~ cusaed, the classified records shaw that the govemme:\z es- tablished probable came that-va am agent of a for- eign powex, completer independent of any protecned F£rst Ammdmem activity $e¢ Dumfs:', 424 F,Sd at 578-?9 mirchm ing _a First Ammzdmenf claim against FISA evidemn by a publisher of an mbic imng newspaper because "the g¥>vex‘xmxent provided probable cause ’B\at fhwa defendmt}

16 No. 15¢1175

was an agent of a foreign power entirely mcadam of any of his jountch Mdv£dea”). III. CoNch!oN F-o