United States v. Muhtorov

20 F.4th 558

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 8, 2021
• Docket: 18-1366
• Status: Published

Opinion

Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 8, 2021

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMSHID MUHTOROV, No. 18-1366

Defendant - Appellant.

------------------------------

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. Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 2

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. _________________________________

MATHESON, Circuit Judge. _________________________________ Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 3

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 Pre-FISA Developments ........................................................................ 6 Traditional FISA .................................................................................... 8 Executive Order 12333 ........................................................................ 10 The Terrorist Surveillance Program and the PATRIOT Act ............... 10 The Protect America Act...................................................................... 11 The FISA Amendments Act of 2008 ................................................... 12 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 No Warrant Required ............................................................................. 27 a. No warrant required to surveil a foreign target .................................. 27 b. Incidental collection of Mr. Muhtorov’s communications ................ 29 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 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 Collection of Mr. Muhtorov’s Communications Passed the Reasonableness Balancing Test ............................................................................. 45 i Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 4

a. Reasonableness balancing test ........................................................... 46 Government’s interest .................................................................... 46 Mr. Muhtorov’s privacy interest .................................................... 47 Privacy safeguards......................................................................... 47 Totality of the circumstances ........................................................ 48 b. Mr. Muhtorov’s reasonableness arguments ....................................... 49 II. Article III Challenge .......................................................................................... 52 A. FISC Background ...................................................................................... 53 B. Discussion ................................................................................................. 54 Prohibition of Advisory Opinions ........................................................ 54 a. Advisory opinions background .......................................................... 55 b. Analysis.............................................................................................. 56 Not advisory opinions .................................................................... 57 Mr. Muhtorov’s counterarguments ................................................ 62 Separation of Powers and Article III ................................................... 63 a. Separation of powers background ...................................................... 65 b. Analysis.............................................................................................. 68 FISC does not trench upon executive prerogatives ....................... 69 FISC performs appropriate judicial functions ............................... 70 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 Disclosure Under FISA ........................................................................ 81 a. Traditional FISA application materials .............................................. 81 b. Section 702 application materials ...................................................... 83 Due Process .......................................................................................... 85 a. Due process and Brady ...................................................................... 86 Legal background........................................................................... 86 Analysis ......................................................................................... 86 b. Due Process and § 1806(f) – Mathews .............................................. 88 Legal background........................................................................... 88 Analysis ......................................................................................... 89 c. Due process and Franks ..................................................................... 90 Legal background........................................................................... 90 Analysis ......................................................................................... 90 IV. Notice of Surveillance Methods and Discovery of Communications Therefrom ....................................................................................................................... 92 A. Legal Background ..................................................................................... 93 18 U.S.C. § 3504 .................................................................................. 93 ii Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 5

Federal Rule of Criminal Procedure 16 ............................................... 95 CIPA..................................................................................................... 95 B. Additional Procedural History .................................................................. 97 C. Standard of Review ................................................................................... 98 D. Discussion ................................................................................................. 99 Due Process .......................................................................................... 99 18 U.S.C. § 3504 ................................................................................ 101 Federal Rule of Criminal Procedure 16 ............................................. 102 CIPA................................................................................................... 104 V. Speedy Trial..................................................................................................... 106 A. Background ............................................................................................. 107 Legal Background .............................................................................. 107 a. Sixth Amendment ............................................................................ 107 b. Speedy Trial Act .............................................................................. 108 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 First Barker Factor: Length of the Delay .......................................... 115 a. Additional legal background ............................................................ 115 b. Analysis............................................................................................ 116 Second Barker Factor: Reasons for the Delay .................................. 118 a. Additional legal background ............................................................ 118 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 Weighing the delay ...................................................................... 121 b. Additional procedural background – discovery ............................... 122 c. Analysis ............................................................................................ 126 Quantifying the pretrial periods ................................................... 127 1) Discovery period .................................................................... 127 a) Mr. Muhtorov’s discovery requests ................................... 128 b) CIPA .................................................................................. 129 iii Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 6

c) Translation issues ............................................................... 130 d) Government’s discovery conduct ...................................... 133 2) District judge’s medical condition ......................................... 136 3) Overall quantification ............................................................ 138 Weighing the pretrial periods ...................................................... 138 d. The Dissent ...................................................................................... 138 Third Barker Factor: Assertion of Speedy Trial Right ..................... 140 a. Additional legal background ............................................................ 140 b. Additional procedural history .......................................................... 142 c. Analysis ............................................................................................ 144 Fourth Barker Factor: Prejudice to the Defendant............................ 147 a. Additional legal background ............................................................ 147 Presumption of prejudice ............................................................. 147 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 Presumptive prejudice .................................................................. 152 Specific prejudice ........................................................................ 152 1) Oppressive pretrial incarceration ........................................... 152 2) Anxiety and concern .............................................................. 155 3) Impairment of the defense ..................................................... 155 Balancing the Barker Factors............................................................. 158 CONCLUSION .................................................................................................... 163

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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

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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 18 U.S.C. § 2339B.

On appeal, he argues the foreign intelligence surveillance methods the government used

to collect his communications were unconstitutional. He also questions the district

court’s refusal to disclose the classified materials the government used to secure

approvals for the surveillance, the types of surveillance techniques used, and the evidence

derived therefrom. Finally, Mr. Muhtorov claims his Sixth Amendment speedy trial right

was violated. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

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 on appeal. We provide additional background during

our discussion of each issue.

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.

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2436 (codified at 50 U.S.C. § 1881a). The Section 702 surveillance did not target Mr.

Muhtorov. Rather, the government targeted a non-United States person living abroad,

and in the process the government incidentally collected Mr. Muhtorov’s

communications with the target. The government then used those communications to

support applications to surveil Mr. Muhtorov under the Foreign Intelligence Surveillance

Act of 1978 (“FISA” or “traditional FISA”), Pub. L. No. 95-511, 92 Stat. 1783.

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

1 “Bay’ah” sometimes is spelled in the record as “bayot” or “bayat.”

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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 terrorist organization in violation of

18 U.S.C. § 2339B. Mr. Muhtorov was also charged with providing and attempting to

provide material support to the IJU, including his own services and communications

equipment.

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

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investigative materials, the court conducted ex parte hearings in compliance with the

Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 §§ 1-16, to balance

the government’s interest in keeping classified materials secret against Mr. Muhtorov’s

right to certain kinds of information. During the pretrial period, Mr. Muhtorov and Mr.

Jumaev sought, unsuccessfully, to suppress evidence derived from Section 702

surveillance.

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

2 Mr. Muhtorov’s appeal was procedurally consolidated with United States v. Jumaev, No. 18-1296. In a separate trial, a jury convicted Mr. Jumaev of two counts of violating § 2339B, and the court sentenced him to time served on both counts—that is, 76 months and 3 days (to be served concurrently)—and 10 years of supervised release on both counts (to be served concurrently). We resolve that appeal by separate opinion.

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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, 50 U.S.C. § 1806(f), and as a matter of due

process. We find that the district court did not err in denying 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 used

during its investigation and the evidence collected using those techniques. We reject this

argument because Mr. Muhtorov has failed to point to authority that required disclosure

of the government’s surveillance techniques. To the extent Mr. Muhtorov seeks the fruits

of surveillance, the government has complied with its discovery obligations.

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

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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.

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 18 U.S.C. §§ 2510-23),

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which requires judicial warrants to authorize wiretaps for law enforcement purposes.

“Title III authorizes the interception of private wire and oral communications, but only

when law enforcement officials are investigating specified serious crimes and receive

prior judicial approval, an approval that may not be given except upon compliance with

stringent conditions.” Gelbard v. United States, 408 U.S. 41, 46 (1972).

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 within the discretion of the

Executive Branch.” Id. at 316-17.

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

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application may vary according to the governmental interest to be enforced and the nature

of citizen rights deserving protection.” Id. at 323.

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.” 50 U.S.C.

§ 1801(f)(1)-(2).3 FISA originally did not regulate electronic surveillance conducted

abroad and directed at non-United States persons, even if the government happened to

3 FISA originally addressed only electronic surveillance, but amendments in 1994 added physical searches of places within the United States. See Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, § 807, 108 Stat. 3423, 3443-53 (1994) (codified, as amended, at 50 U.S.C. §§ 1821-29).

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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 id. § 1803. A FISC judge could grant an application for an

order approving electronic surveillance to obtain foreign intelligence information if

“there [wa]s probable cause to believe that . . . the target of the electronic surveillance is a

foreign power or an agent of a foreign power.” Id. § 1805(a)(2)(A). The FISC judge

needed to determine that the government would employ adequate “minimization”

measures. Id. §§ 1805(a)(3), 1824(a)(3).5 This process is now known as “traditional”

FISA surveillance. See Kris & Wilson §§ 16:2, 17:18.

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);

4 A “United States person” includes citizens, aliens lawfully admitted for permanent residence, and United States corporations. See 50 U.S.C. § 1801(i). 5 The government could appeal the denial of a FISA application to the newly created Foreign Intelligence Surveillance Court of Review (“FISCR”), and then to the Supreme Court. See 50 U.S.C. § 1803(b), (j)-(k).

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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).

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.

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

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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).

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 world. It also recognized that FISA, by its

own terms, increasingly applied to foreign-to-foreign communications due to the use of

servers located in the United States to store communications even when the sender and

recipient were located abroad. See United States v. Hasbajrami, 945 F.3d 641, 650 (2d

Cir. 2019). Previously, FISA procedures did not constrain surveillance of foreign-to-

foreign communications if the communications were not stored on servers in the United

States. See id.

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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

50 U.S.C. § 1805b (2007)).

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, 50 U.S.C.

§ 1881a, which provides the intelligence community with “additional authority to meet

the challenges of modern technology and international terrorism.” Clapper, 568 U.S. at

403-04; see generally Kris & Wilson ch. 16 (discussing FISA modernization).

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.” 50 U.S.C. § 1881a(a), (b)(2). The FISC must annually preapprove the

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procedures used to conduct the warrantless surveillance as reasonably designed to target

foreigners outside the United States and to minimize the risk of surveilling United States

persons. Id. § 1881a(a), (d)-(f), (j). Congress also included a technical fix to allow

wiretapping of communications that are routed through United States

telecommunications switches if the target is a non-United States person located abroad.

See Kris & Wilson § 16:17.6

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.

Section 702 surveillance is subject to procedures relating to targeting, collection,

minimization (including retention and dissemination), storage, and, beginning in 2018,

querying databases containing Section 702 communications. In addition, the acquisition

of foreign intelligence information must “be conducted in a manner consistent with the

fourth amendment.” 50 U.S.C. § 1881a(b)(6).

6 Congress reauthorized Section 702 in January 2018 for six years. See FISA Amendments Reauthorization Act of 2017, Pub. L. No. 115-18, 132 Stat. 3 (2018). The Reauthorization Act enhances foreign intelligence collection and safeguards, accountability, and oversight; increases penalties for the unauthorized removal and retention of classified materials; and amends and improves the FISCR’s procedures. These changes were not in effect during the investigation of the foreign target who communicated with Mr. Muhtorov.

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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. Id. § 1881a(d)(1), (e)(1), (f)(1). These procedures “govern

how the program functions at each agency tasked with Section 702 surveillance”—the

NSA, the FBI, and the Central Intelligence Agency (“CIA”). The procedures are tailored

to each agency’s mission. See Hasbajrami, 945 F.3d at 652-53.

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.

50 U.S.C. § 1881a(d)(1). These requirements implement Section 702’s directive that the

government may not “intentionally target” anyone located in the United States or a

United States person located abroad. Id. § 1881a(b)(1), (3). Likewise, the government

“may not intentionally target a person reasonably believed to be located outside the

United States if the purpose of such acquisition is to target a particular, known person

reasonably believed to be in the United States.” Id. § 1881a(b)(2). The targeting

procedures are intended to prevent acquisition of the communications of United States

persons or anyone in the United States. See Hasbajrami, 945 F.3d at 652. The

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procedures must “protect the constitutional privacy rights of Americans and comply with

the Fourth Amendment inside the United States.” Id.

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. 50 U.S.C.

§ 1881a(e)(1). They are “specific procedures . . . adopted by the Attorney General[] that

are reasonably designed . . . to minimize the acquisition and retention, and prohibit the

dissemination, of nonpublicly available information concerning unconsenting United

States persons consistent with the need of the United States to obtain, produce, and

disseminate foreign intelligence information.” Id. § 1801(h).

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.” Id.

§ 1881a(f)(1)(A).7

7 Congress added the requirement to develop querying procedures in 2018 when it extended Section 702. See Pub. L. No. 115-18, § 101 (codified at 50 U.S.C. § 1881a(f)). It was not in place when the foreign target under investigation communicated with Mr. Muhtorov.

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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. 50 U.S.C. § 1881a(d)(2), (e)(2), (f)(1)(C),

(j)(2)(B)-(D). If the FISC finds the procedures “are consistent with the [statutory]

requirements . . . and with the fourth amendment,” the court enters an order approving

them. Id. § 1881a(j)(3)(A). “[J]udicial review of Section 702 functions as a form of

programmatic pre-clearance.” Hasbajrami, 945 F.3d at 652. This pre-clearance is

effective for one year. 50 U.S.C. § 1881a(a). The AG and DNI must therefore submit

Section 702 procedures to the FISC annually.8

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,

8 As is the case for traditional FISA, the government may appeal an adverse ruling to the FISCR, and then to the Supreme Court. 50 U.S.C. § 1881a(j)(4). 9 In exigent circumstances, the AG and DNI may issue their own authorization to begin collecting Section 702 intelligence without first obtaining FISC approval. 50 U.S.C. § 1881a(c)(2). Such an authorization also lasts for one year. Id. § 1881a(a).

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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. 50 U.S.C.

§ 1881a(i)(1)(A). A service provider may challenge directives before the FISC, and the

FISC may order compliance. Id. § 1881a(i)(4)-(5). The service provider may appeal the

FISC’s order. Id. § 1881a(i)(6).

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 identified

email account. See Hasbajrami, 945 F.3d at 653. “PRISM, therefore, collects only the

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e-mails a given user sends from his or her account, and the e-mails he or she receives

from others through that account.” Id.

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.

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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

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specific individual or his or her accounts under those Section 702 procedures.” Id. at

651. Second, traditional FISA does not apply to targets located abroad. Section 702

authorizes surveillance of foreign targets and “eliminates the need for a traditional FISA

order even if the surveillance (or other acquisition activity) targeting a non-U.S. person

located abroad occurs inside the United States.” Kris & Wilson § 17:18.

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

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that information in camera under the procedures set out in 50 U.S.C. § 1806(f), found no

infirmities, and denied the motion. Mr. Muhtorov does not challenge that ruling.10

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

10 The district court also denied Mr. Muhtorov’s request for disclosure of classified FISA application materials. As explained below, he appeals this denial.

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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) (discussing suppression of evidence obtained using a

warrant when unconstitutionally collected evidence tainted the warrant application). He

asserts two Fourth Amendment violations concerning the Section 702 surveillance.

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

11 In City of Los Angeles v. Patel, 576 U.S. 409 (2015), the Supreme Court stated that a Fourth Amendment facial challenge to a statute authorizing warrantless searches succeeds when a challenger establishes that a “law is unconstitutional in all of its applications,” considering only those “searches that the law actually authorizes, not those for which it is irrelevant.” Id. at 418. Because we conclude that the incidental collection of Mr. Muhtorov’s communications during surveillance authorized by Section 702 and properly carried out according to the statute was constitutional, Mr. Muhtorov’s facial challenge necessarily fails. See United States v. Durham, 902 F.3d 1180, 1192 n.3 (10th Cir. 2018).

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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 at

issue was not obtained or derived from queries using terms associated with Muhtorov.”

Aplee. Br. at 45. The government further explains that “the Section 702 communications

that the government described in the FISA applications were not the fruit of any queries

using search terms associated with Muhtorov” and that “[t]he record therefore shows that

12 The dissent joins Mr. Muhtorov in speculating that “the decision to seek traditional FISA authority” may have been “influenced by . . . querying of § 702 databases by the FBI using identifiers associated with [Mr.] Muhtorov” or “by information collected in other intelligence surveillance programs[.]” Dissent at 31. Without finding any support in the record, it instead suggests querying may have happened based on its reading of the PCLOB report. See id. at 33. But whatever light that report sheds on national security surveillance programs generally, it is not evidence in the record here. Nor is the FBI Domestic and Investigations Guide dated December 16, 2008, which the dissent cites (Dissent at 30), but the district court and the parties never mentioned. 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 50 U.S.C. § 1881a(f)(1)(A), (B)). And the dissent’s reference to FBI minimization procedures in the 2014 PCLOB report similarly tells us nothing about what rules may have applied during the Section 702 surveillance here, let alone whether there was FBI “non-compliance.” Dissent at 33. None of this changes that querying, as we have determined based on our independent review of the record, is not an issue in this case. 23 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 31

the Section 702 information submitted to the FISC was not based on queries using terms

associated with Muhtorov.” Redacted Aplee. Suppl. Br. at 10-11. “Thus, the evidence

Muhtorov sought to suppress was not obtained or derived from any queries associated

with him.” Id. at 11.

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.

13 The dissent thus incorrectly asserts that we are “avoid[ing] difficult constitutional questions by accepting as true unsupported factual assertions” in the government’s brief, see Dissent at 24, or “pay[ing] mere lip service” to reviewing the classified record, id. at 29 n.25. We have conducted a careful and thorough de novo review of the classified and public records and disagree with the dissent’s unfounded assertions.

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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[.]” U.S.

Const. amend. IV. A search or seizure satisfies the Fourth Amendment if it is reasonable.

See Riley v. California, 573 U.S. 373, 381-82 (2014). “[R]easonableness generally

requires the obtaining of a judicial warrant.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S.

646, 653 (1995). “In the absence of a warrant, a search is reasonable only if it falls

within a specific exception to the warrant requirement.” Riley, 573 U.S. at 382.

“Because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the

warrant requirement is subject to certain exceptions.” Brigham City v. Stuart, 547 U.S.

398, 403 (2006). Thus, “searches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—

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subject only to a few specifically established and well-delineated exceptions.” Katz, 389

U.S. at 357 (footnote omitted).

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

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communications during the lawful Section 702 surveillance of a non-United States person

did not violate the defendant’s Fourth Amendment rights.

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. But “it was never suggested that the provision was intended to

restrain the actions of the Federal Government against aliens outside of the United States

territory” or “to apply to activities of the United States directed against aliens in foreign

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territory.” Id. at 266-67. Applying the Fourth Amendment to law enforcement

operations designed to protect national security “could significantly disrupt the ability of

the political branches to respond to foreign situations involving our national interest.” Id.

at 273-74.

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

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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.

The courts in Mohamud and Hasbajrami reached the same conclusion about

similar incidental collections during lawful Section 702 surveillance. They relied on the

“incidental overhear” doctrine developed in Title III wiretap cases. Although that

doctrine lends support to our holding, we further rely on the “plain view” doctrine and the

14 As discussed above, PRISM and upstream collection are two different ways to collect communications under Section 702. The government represents that “[t]his case does not involve upstream collection.” ROA, Vol. III at 600; accord Aplee. Br. at 29 n.12. The dissent contends this assertion is “unsupported,” Dissent at 29 n.24, noting that “no evidence in the record excludes” the possibility that upstream collection was used to gather Mr. Muhtorov’s communication, id. But our own independent review of the public and classified records supports the government’s representation. As an appellate court, we rely on the record and avoid conjecture about extra-record occurrences. See Davis, 576 U.S. at 281. 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.

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foreign surveillance context of the investigation. To explain our rationale, we first

provide legal background on incidental overhear and plain view.

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

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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 lawful surveillance is not violative of the

Fourth Amendment.” United States v. Bin Laden, 126 F. Supp. 2d 264, 280 (S.D.N.Y.

2000), aff’d sub nom. In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d

157 (2d Cir. 2008); see also United States v. Reed, No. Cr. 07-10221-19-MLB, 2009 WL

31 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 39

10695690, at *1 (D. Kan. Sept. 29, 2009) (declining to suppress the communications of

an individual not named in the Title III order); United States v. Butenko, 494 F.2d 593,

608 (3d Cir. 1974) (en banc) (holding incidental overhearing during surveillance under

the Communications Act of 1934 did not violate the Fourth Amendment).

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

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.” 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.”

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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.” 945 F.3d

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

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American comes to light during the lawful surveillance of a foreign operative abroad, it is

entirely reasonable within the meaning of the Fourth Amendment for the government to

continue monitoring the conversations of that operative with the American . . . .” Id.

at 667.

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

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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 files was “general exploratory rummaging,” when the incriminating nature

15 Although Coolidge characterized the plain view doctrine as an “exception to the warrant requirement,” a Supreme Court plurality has suggested that “this description may be somewhat inaccurate.” Texas v. Brown, 460 U.S. 730, 738 (1983) (plurality opinion). Under that view, the plain view doctrine “provides grounds for seizure of an item when an officer’s access to an object has some prior justification under the Fourth Amendment.” Id. Thus, plain view is perhaps “better understood, . . . not as an independent ‘exception’ to the warrant clause, but simply as an extension of whatever the prior justification for an officer’s ‘access to an object’ may be.” Id. at 738-39.

35 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 43

of the files was not immediately apparent and the computer was out of the defendant’s

control so there was no exigency).

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 Fourth

Amendment’s central requirement of reasonableness to the law governing seizures of

property.” Soldal v. Cook Cnty., 506 U.S. 56, 66 (1992) (quotations omitted). When a

warrantless seizure complies with the plain view requirements, it is upheld because it

complies with the “ultimate touchstone of the Fourth Amendment,” that is,

reasonableness. Brigham City, 547 U.S. at 403.16

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

16 Thus, once a court determines that the government satisfied the plain view doctrine’s requirements, it does not continue to determine whether the warrantless seizure was reasonable under the Fourth Amendment balancing test because the test already accounts for the interests of the government and the defendant embodied in the “central requirement of reasonableness.” Soldal, 506 U.S. at 66; see also, e.g., Naugle, 997 F.2d at 822-23. We apply the reasonableness balancing test below because we do not rely solely on the plain view doctrine to conclude no warrant was required. 36 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 44

of Mr. Muhtorov’s communications under Section 702 without a warrant. Then we

address (4) Mr. Muhtorov’s objections.

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 Section 702 surveillance was consistent with the

justifications for the plain view doctrine.

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 Section 702 surveillance.17 As discussed

above, the government did not conduct upstream collection, only PRISM collection.

Once it was targeting the foreign national under PRISM, the government was lawfully

“in” the two-way communications. See Naugle, 997 F.2d at 822. In that position, it

collected communications sent to and from the target. If Mr. Muhtorov happened to be

the sender of a communication received by the target, or was the recipient of a

communication sent by the target, then his communications could not be disentangled

17 Our analysis of whether a warrant was required and our discussion below about whether the surveillance in this case passed the reasonableness balancing test overlap. The touchstone of any determination that a warrant was not required is “reasonableness,” Brigham City, 547 U.S. at 403, and even when a warrant was not required, the search must still be “reasonable” under the balancing test in Maryland v. King, 569 U.S. at 448.

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from the target’s. The nature of PRISM surveillance and the commonsense notion that a

communication involves at least two people means that Mr. Muhtorov’s communications

were necessarily in “plain view” of the government’s Section 702 surveillance targeting

the foreign national.

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 Title III order. This is particularly so in

cases like Mr. Muhtorov’s, in which the “prevention or apprehension of terrorism

suspects” is at the heart of the government’s surveillance efforts. See In re Directives,

551 F.3d at 1011. “Compulsory compliance with the warrant requirement would

introduce an element of delay, thus frustrating the government’s ability to collect

information in a timely manner.” Id. at 1011-12.

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).

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2) Foreign intelligence surveillance context – Section 702’s statutory requirements

Two of Section 702’s statutory requirements limited the scope of the incidental

collection of Mr. Muhtorov’s communications. Consistent with the plain view doctrine,

these statutory limitations prevented the surveillance from becoming a “general

exploratory search from one [communication] to another until something incriminating at

last emerge[d].” See Carey, 172 F.3d at 1272 (quoting Coolidge, 403 U.S. at 466).

First, Section 702 surveillance must be intended to “acquire foreign intelligence

information.” 50 U.S.C. § 1881a(a). This requirement limits Section 702 surveillance to

situations in which the government’s power “to collect time-sensitive information” is

paramount. See In re Directives, 551 F.3d at 1011. The statute’s restriction to the

foreign intelligence context, where the “government has the greatest need for speed,

stealth, and secrecy,” United States v. Hung, 629 F.2d 908, 915 (4th Cir. 1980), confines

Section 702 surveillance to the “exigencies which justify its initiation”—that is, the

foreign intelligence surveillance of foreigners located abroad, see Horton, 496 U.S. at

139-40.

Second, Section 702 requires that surveillance be conducted “to minimize the

acquisition and retention . . . of nonpublicly available information concerning

unconsenting United States persons.” 50 U.S.C. § 1801(h)(1). It forbids the government

from “intentionally target[ing]” persons located in the United States, or outside the

United States if the “purpose of such acquisition is to target a particular” person in the

United States. Id. § 1881a(b)(1)-(2). The minimization and targeting limitations on

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Section 702 surveillance are similar to the requirements described above that prevent

plain view searches from becoming unreasonable general exploratory searches.

In sum, Section 702’s statutory requirements—surveillance limited to foreign

intelligence, and minimization and targeting limitations—helped to make the incidental

collection of Mr. Muhtorov’s communications “minimally intrusive[,] and [the]

operational necessities render[ed] it the only practicable means of detecting certain types

of crime.” See Arizona v. Hicks, 480 U.S. 321, 327 (1987).

3) Incidental overhear

The Fourth Amendment principles discussed in the Kahn, Donovan, and later

“incidental overhear” cases are rooted in the plain view doctrine and support our

conclusion that no warrant was required.

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 Title

III order and were lawfully listening to a conversation, they could seize a non-target’s

incriminating statements in “overheard” conversations without a warrant because the

Fourth Amendment does not require “that all those likely to be overheard engaging in

incriminating conversations be named.” Donovan, 429 U.S. at 427 n.15. Such a

warrantless seizure would satisfy all three plain view requirements. See Castorena-

Jaime, 285 F.3d at 924. As the Second Circuit noted in Hasbajrami, the “‘incidental

overhear’ doctrine is closely related to the ‘plain view’ doctrine applied in connection

with physical searches.” 945 F.3d at 664 n.17.

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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 [Title III]

order that authorizes interception of calls of ‘others as yet unknown’ is not strictly limited

to only those who are specifically named in the authorizing order,” Figueroa, 757 F.2d at

473, neither is lawfully initiated Section 702 surveillance that authorizes collection of a

foreign target’s communications strictly limited to collecting only that target’s

communications with non-United States persons.

* * * *

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

Title III order supported the initial intrusion. But the lack of a warrant is not dispositive

of the Fourth Amendment question. Rather, a search that proceeds in two steps—an

initial intrusion and then a warrantless seizure of materials in plain view—is

constitutional when each of them independently complies with the Fourth Amendment.

That can occur when the first step is lawful—either because there was a warrant or

because a warrant was not required.

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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 Title III] strictly

limit the extent of any ‘overhearing.’” Aplt. Reply Br. at 15. But, like Mohamud and

Hasbajrami, we draw on Fourth Amendment reasonableness, the touchstone for the

warrant requirement and its exceptions, not the particularities of Title III surveillance.

Section 702 targeting and minimization requirements are akin to the statutory limits

placed on Title III overhearing.

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 Section 702, see Aplt Br. at 29-30 & n.14 (citing PCLOB-2014

at 82, 86-87), there is no evidence this occurred here.

18 Mr. Muhtorov also asserts that courts have required the government to obtain a warrant after an initial seizure of an electronic device to conduct a further search of the device’s contents. For example, in Riley, 573 U.S. at 401, the Supreme Court said that law enforcement usually must get a warrant to search a cell phone that had been seized in a search. But Mr. Muhtorov has not explained why Riley’s discussion of cell phones applies to this situation, in which the government first lawfully seized the contents of Mr. Muhtorov’s communications.

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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

Amendment. See Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective

intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”). The

government may anticipate that it might discover and collect evidence found in plain

view. That does not, however, render a seizure unconstitutional so long as the

“warrantless search [is] circumscribed by the exigencies which justify its initiation.” See

Horton, 496 U.S. at 139-40. Further, Section 702 forbids the government from

“intentionally target[ing] a person reasonably believed to be located outside the United

States if the purpose of such acquisition is to target a particular, known person reasonably

believed to be in the United States.” 50 U.S.C. § 1881a(b)(2). Nothing in the record

suggests the government did not follow that directive here.

Fourth, Mr. Muhtorov contends that the sheer volume of communications gathered

under Section 702 makes their collection unconstitutional. He does not explain how

quantity renders the collection unconstitutional. He simply notes that the quantity

“dwarfs that of communications intercepted incidentally under the original provisions of

FISA or Title III.” Aplt. Br. at 30. Rather than bear on whether we should find that the

incidental collection of Mr. Muhtorov’s communications was lawful without a warrant,

this argument concerns whether the overall search was reasonable. But as explained

below, Section 702 has adequate minimization and targeting procedures to prevent it

from becoming an unreasonably broad surveillance program.

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For these reasons, the government was not required to obtain a warrant before it

incidentally collected Mr. Muhtorov’s communications during lawful Section 702

surveillance conducted for foreign intelligence purposes. A contrary holding would

result in the suppression of evidence obtained through lawful foreign intelligence

collection simply because the government did not have earlier knowledge that a United

States person was corresponding with a foreign target.

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 Fourth Amendment reasonableness

determinations, the Supreme Court has developed the plain view doctrine. See Coolidge,

403 U.S. at 465. The Court also has recognized the incidental overhear doctrine in the

Title III surveillance context. Though the plain view doctrine arose from physical search

cases, and though courts initially recognized an incidental overhear doctrine in Title III

cases, those doctrines along with the foreign intelligence surveillance context justify

finding that no warrant was required here.

Our conclusion that the incidental collection of Mr. Muhtorov’s communications

under Section 702 PRISM surveillance did not require a warrant, like the plain view

doctrine, “merely reflects an application of the Fourth Amendment’s central requirement

of reasonableness to the law governing seizures of property.” See Soldal, 506 U.S. at 66

(quotations omitted). Though the Fourth Amendment disfavors warrantless searches and

seizures, we find that the nature of Section 702 PRISM surveillance, the foreign

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intelligence context of the surveillance, and long-standing Fourth Amendment principles

demonstrate that a warrant was not required.

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 Section 702 per se unreasonable, that does not

end the analysis. The search must still be “reasonable in its scope and manner of

execution.” Maryland v. King, 569 U.S. at 448. The incidental collection of Mr.

Muhtorov’s communications was reasonable due largely to Section 702’s provisions that

constrained the government.

“As the text of the Fourth Amendment indicates, the ultimate measure of the

constitutionality of a governmental search is ‘reasonableness.’” Vernonia Sch. Dist., 515

U.S. at 652. In assessing reasonableness, we examine the totality of the circumstances.

Samson v. California, 547 U.S. 843, 848 (2006); see also United States v. Duka, 671 F.3d

329, 339 (3d Cir. 2011) (“What is reasonable . . . depends on the nature of the search.”).

We balance “the promotion of legitimate governmental interests against the degree to

which the search intrudes upon an individual’s privacy.” Maryland v. King, 569 U.S. at

448 (brackets and quotations omitted); see also McArthur, 531 U.S. at 331 (“[W]e

balance the privacy-related and law enforcement-related concerns.”).

The reasonableness balancing test is particularly concerned with ensuring that a

search and seizure is “both limited and tailored reasonably to secure law enforcement

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needs while protecting privacy interests.” McArthur, 531 U.S. at 337; see also id. at

332-33.19

a. Reasonableness balancing test

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.

19 As explained below, Mr. Muhtorov’s reasonableness argument focuses on the government’s alleged ability to “retain, use, and deliberately query” Section 702 databases. Aplt. Br. at 36. He does not specifically argue that the incidental collection of his communications, as opposed to the post-seizure use of those communications, fails the Fourth Amendment’s balancing test. We conduct the reasonableness balancing test for the sake of completeness before addressing Mr. Muhtorov’s specific arguments.

46 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 54

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.

Mr. Muhtorov’s privacy interest

We assume Mr. Muhtorov had a reasonable expectation of privacy in his

communications that were monitored and intercepted through Section 702 surveillance.

See id. at 666 (assuming the defendant had a privacy interest in his email

communications and “that the government may not eavesdrop, without reasonable

justification, on the conversations of United States persons (even abroad) with foreign

nationals, simply because the United States person is interacting with a foreigner”).

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”).

Section 702 requires safeguards for privacy interests. The targeting and

minimization procedures are designed to limit Section 702 surveillance only “to acquire

foreign intelligence information.” 50 U.S.C. § 1881a(a). Section 702 requires the AG

and DNI to develop procedures to comply with the statute’s targeting, minimization, and

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querying requirements, and the FISC to review and approve these procedures. In

addition, though intercepted communications might be voluminous, PRISM collection,

unlike other surveillance programs, is more targeted and narrow in scope. See PCLOB-

2014 at 33-36 (contrasting PRISM and upstream collection).

Totality of the circumstances

Under the totality of the circumstances, we find Mr. Muhtorov’s privacy interest

was “outweighed by the government’s manifest need to monitor the communications of

foreign agents of terrorist organizations operating abroad”—a need that “makes the

incidental collection of communications between such foreigners and United States

persons reasonable.” Hasbajrami, 945 F.3d at 666 (quotations omitted). The

government has a strong interest in conducting foreign intelligence surveillance targeting

those abroad.

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 Section 702 surveillance

here was to safeguard national security rather than “to generate evidence for law

enforcement purposes.” See Ferguson v. City of Charleston, 532 U.S. 67, 83 (2001)

(emphasis omitted); United States v. Ning Wen, 477 F.3d 896, 899 (7th Cir. 2007)

(“Interception of [the defendant’s] conversations was adequately justified under FISA’s

terms, so there is no constitutional obstacle to using evidence of any domestic crimes he

committed.”).

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In addition, the Section 702 program used to surveil Mr. Muhtorov is subject to

targeting and minimization procedures and the overarching requirement that it be used for

foreign intelligence gathering only. This is particularly true for PRISM collection. See

Schuchardt v. Trump, No. 14-705, 2019 WL 426482, at *2 (W.D. Pa. Feb. 4, 2019) (“[I]n

light of the record now before the Court, PRISM has not been shown to be the dragnet-

type collection mechanism suggested.”).

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 Section

702 databases for the emails of known Americans, without ever satisfying bedrock

Fourth Amendment requirements.” Aplt. Br. at 36, 40. His arguments are inapposite or

unpersuasive.

First, his argument about post-seizure querying is inapposite because, as explained

above, the trial evidence was not derived from querying a Section 702 database.

Querying might raise difficult Fourth Amendment questions that we need not address

here. See Hasbajrami, 945 F.3d at 672-73.20

20 In Hasbajrami, the Second Circuit remanded “[b]ecause the district court was not even aware whether such querying had occurred,” and the district court had to determine, in the first instance, whether a constitutional violation had occurred. See 945 F.3d at 676. This case is different. As the government points out, Mr. Hasbajrami’s 49 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 57

Second, Mr. Muhtorov argues “reasonableness requires” that “agents must obtain

individualized judicial approval at the point when they seek to . . . use an American’s

communications.” Aplt. Br. at 37. We reject this argument because mere “use” of

already collected Section 702 communications without reliance on querying does not

trigger the Fourth Amendment.

The Fourth Amendment does not apply unless there has been a “search,” see

United States v. Jones, 565 U.S. 400, 404-05 (2012), or a “seizure,” see Torres v. Madrid,

141 S. Ct. 989, 995 (2021). The later use of Mr. Muhtorov’s lawfully collected

communications resembles use of seized evidence to prepare affidavits for warrants to

obtain additional evidence for trial, which is not a separate Fourth Amendment event.

See Bell v. City of Chicago, 835 F.3d 736, 741 (7th Cir. 2016) (rejecting a Fourth

Amendment challenge to post-seizure police procedures because “once an individual has

been meaningfully dispossessed, the seizure of the property is complete” (brackets and

guilty plea and resulting lack of a trial “limited the reviewing court’s ability to determine whether there might have been evidence potentially derived from queries.” Redacted Aplee. Suppl. Br. at 12. Here, there was a trial, and we have determined, based on our own independent review of the classified record (including the government’s classified brief, the traditional FISA applications, and the chronology filed with the district court on November 10, 2015), that the only Section 702 evidence at issue—the incidentally collected communications that supported the traditional FISA applications—was not the product of querying. The dissent believes the government’s representation that it did not use querying to prepare the traditional FISA applications is “directly contradicted by other government representations in its classified brief.” Dissent at 25. We discern no contradiction. We also disagree that “we are left to guess at the answers to critically important questions in the derivative evidence inquiry, e.g., which communications the government received at which times, whether and when querying occurred, and what information motivated the government to seek traditional FISA authorization.” Id. at 32 n.28.

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quotations omitted)); United States v. Leon, 468 U.S. 897, 906 (1984) (noting that “the

use of fruits of a past unlawful search or seizure works no new Fourth Amendment

wrong” as the wrong was “fully accomplished by the unlawful search or seizure itself”

(brackets and quotations omitted)).21

Third, Mr. Muhtorov’s argument that Section 702 surveillance “abandons three

core safeguards—individualized judicial review, a finding of probable cause, and

particularity”—lacks merit. Aplt. Br. at 38. Although these safeguards are embodied in

the warrant requirement, they are “presumption[s] [that] may be overcome in some

circumstances because the ultimate touchstone of the Fourth Amendment is

reasonableness.” Kentucky v. King, 563 U.S. 452, 459 (2011) (quotations omitted). As

discussed above, it is a reasonable extension of long-standing Fourth Amendment

21 Querying is a technical term defined as “the use of one or more terms to retrieve the unminimized contents or noncontents located in electronic and data storage systems of communications of or concerning United States persons obtained through acquisitions authorized [in Section 702].” 50 U.S.C. § 1881a(f)(3)(B). “Use” of already collected evidence, as distinct from querying, does not constitute a separate Fourth Amendment event. The dissent appears to concede that the use of already collected Section 702 communications without reliance on querying does not trigger the Fourth Amendment. We agree. See Dissent at 36 n.31. 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 Section 702 communications to support traditional FISA applications, the dissent relies on the Second Circuit’s discussion of querying, which is not pertinent to this case. See Dissent at 36 n.30 (citing Hasbajrami, 945 F.3d at 670-73). Instead, the relevant portion of Hasbajrami fully supports our position: “[B]oth the collection of such communications and the dissemination of information from such collection about potential criminal actions within the country to domestic law enforcement are reasonable under the Fourth Amendment.” 945 F.3d at 667-68. The dissent makes the same mistake with Riley, which concerned the search of a phone after it had been seized. See Dissent at 37-38. For why Riley does not apply here, see footnote 18, supra.

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doctrines—including Verdugo-Urquidez and plain view—to exempt incidental Section

702 collection of a United States person’s communications from the warrant requirement.

The Section 702 surveillance here was appropriately particularized and “narrowly

tailored to the government’s foreign intelligence-gathering prerogatives.” ROA, Vol. III

at 119. The warrantless incidental collection of Mr. Muhtorov’s communications through

Section 702 surveillance was reasonable in its purpose, operation, and restrictions and did

not violate the Fourth Amendment.22

II. ARTICLE III CHALLENGE

In addition to his Fourth Amendment challenge to the Section 702 surveillance,

Mr. Muhtorov urges suppression of trial evidence derived from the fruits of the Section

702 surveillance on a separate constitutional ground.

He argues Section 702 is unconstitutional to the extent it “assigns to an Article III

court a role that is fundamentally incompatible with the case-or-controversy

requirement.” Aplt. Br. at 48. Mr. Muhtorov contends that Section 702 “requires the

[FISC] to review the legality and constitutionality of the government’s procedures in the

abstract,” id. at 47, and thus “requires FISC judges to issue advisory opinions addressing

the constitutionality of abstract procedures in the absence of concrete facts,” Aplt. Reply

22 Because we find there was no Fourth Amendment violation, and therefore no need to suppress evidence, we need not address the government’s alternative argument that the good faith exception to the exclusionary rule applies.

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Br. at 24.23 We construe his argument to assert that (1) the FISC’s role under Section 702

violates Article III’s prohibition on advisory opinions; and (2) Section 702 violates the

separation of powers.24 We disagree as to both.25

A. FISC Background

Under Section 702, the FISC has jurisdiction to review the government’s

targeting, minimization, and, as of 2018, querying procedures that apply to Section 702

surveillance. See 50 U.S.C. § 1881a(d)-(f), (j). Section 702 “requires the AG and the

DNI to adopt [such] procedures each year that will govern how the program functions at

each agency tasked with Section 702 surveillance.” Hasbajrami, 945 F.3d at 652.

Thus, “the FISC approves Section 702 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

23 The district court discussed these arguments but “le[ft] to a higher court” to determine whether Section 702 violates Article III. ROA, Vol. III at 137. It stated that, “[f]or purposes of [this case], my judgment is that it does not.” Id. 24 As explained below, Article III justiciability is rooted in separation of powers principles. 25 In so doing, we join the Ninth Circuit in Mohamud, the only other circuit court to address a similar challenge. In a brief footnote, it first found 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. It also found “the FISC survives separation of powers and non-delegation challenges, as FISC review of § 702 surveillance applications does not ‘interfere with the prerogatives of another branch of government beyond requiring the executive branch to conform to the statute,’ and is ‘central to the mission of the judiciary’ as it is similar to ‘the review of search warrants and wiretap applications.’” Id. (brackets omitted) (quoting Mistretta v. United States, 488 U.S. 361, 388 (1989)).

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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 Article III, and (2) conforms to the

separation of powers.

Prohibition of Advisory Opinions

The FISC’s role under Section 702 complies with the Article III prohibition on

advisory opinions. The FISC decides matters that “are traditionally thought to be capable

of resolution through the judicial process.” See Flast v. Cohen, 392 U.S. 83, 97 (1968).

It applies law to facts to render binding Section 702 decisions that authorize or

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disapprove of foreign surveillance procedures, and thus does not render advisory

opinions.26

a. Advisory opinions background

Article III of the Constitution vests the “judicial Power of the United States” in the

“supreme Court, and [the] inferior Courts.” U.S. Const. art. III, § 1. It further provides

that the “judicial Power shall extend” only to certain “Cases” and “Controversies.” Id.

§ 2. Article III limits the judicial power to disputes that are “consistent with a system of

separated powers and which are traditionally thought to be capable of resolution through

the judicial process.” Flast, 392 U.S. at 97. That is, “[w]henever the law provides a

remedy enforceable in the courts according to the regular course of legal procedure, and

that remedy is pursued, there arises a case within the meaning of the Constitution.”

Tutun v. United States, 270 U.S. 568, 577 (1926).

One limitation on the judicial power is the prohibition of advisory opinions, which

requires that courts must adjudicate only “concrete legal issues, presented in actual cases,

26 The parties do not dispute that the FISC is an Article III court. Indeed, the FISC and FISCR have long recognized that it is. See, e.g., In re Opinions & Orders, No. Misc. 13-08, 2020 WL 897659, at *4 (FISC Feb. 11, 2020) (describing the ancillary and inherent powers the FISC possesses “[a]s an Article III court”); In re Sealed Case, 310 F.3d 717, 731, 732 n.19 (FISA Ct. Rev. 2002) (per curiam) (rejecting an argument that “the statutory responsibilities of the FISA court are inconsistent with Article III case and controversy responsibilities”). Other federal courts also have so recognized. See ACLU v. Clapper, 785 F.3d 787, 828 (2d Cir. 2015) (Sack, J., concurring) (“The FISC, like the quotidian federal district courts and courts of appeals, is established under Article III of the Constitution.”); Megahey, 553 F. Supp. at 1196-97 (rejecting arguments that the FISC is not properly constituted under Article III).

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not abstractions.” Golden v. Zwickler, 394 U.S. 103, 108 (1969) (quotations omitted).

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, Article III

requires that judicial power be exercised only in the “application of principles of law or

equity to facts.” Vermont v. New York, 417 U.S. 270, 277 (1974).

b. Analysis

We acknowledge that FISC’s Section 702 role does not conform to traditional

notions of Article III adjudication. But on close inspection, its Section 702 role is

constitutional because the FISC applies legal principles to facts and its Section 702

determinations are not merely advisory but instead have immediate and legally binding

consequences.

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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 Fourth Amendment).27 The FISC thus does not

“decide hypothetical issues,” Princeton Univ. v. Schmid, 455 U.S. 100, 102 (1982), or

proceed from “speculative contingencies,” Hall, 396 U.S. at 49. It determines whether

the government’s proposed procedures, which are revised each year and embody specific

approaches to targeting, minimization and (as of 2018) querying, comply with Section

702 and the Constitution.

27 As noted above, Congress added the requirement for the government to adopt, and the FISC to approve, querying procedures in 2018. See Kris & Wilson § 3:9. Before 2018, only targeting and minimization procedures were reviewed in Section 702 proceedings.

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Relatedly, the questions that the FISC must answer during Section 702 review are

“pressed before the [FISC] with . . . clear concreteness.” See United States v. Fruehauf,

365 U.S. 146, 157 (1961). Section 702 does not call on the FISC to express “[a]dvance

expressions of legal judgment upon issues which remain unfocused.” See id.

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

28 The FISC’s most recent certification decisions confirm that it continues to apply law and its own precedent to the government’s specific factual submissions. See Redacted (FISC Nov. 18, 2020), https://perma.cc/G9NQ-XTLS; Redacted (FISC Dec. 6, 2019), https://perma.cc/49X6-5N5G; Redacted, 402 F. Supp. 3d 45, 52 (FISC 2018). 29 Although the dissent notes “the absence of adverse parties or adverse legal interests,” Dissent at 47 & 44 n.34, Mr. Muhtorov does not object to the non-adversarial nature of Section 702 proceedings, see Aplt. Reply Br. at 24 (“The problem is not that the FISC’s review is one-sided . . . .”). We agree with Mr. Muhtorov. 58 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 66

The ex parte Section 702 proceedings are comparable to other adjudication that does not raise Article III concerns, such as courts’ issuing traditional warrants and Title III orders, and the FISC’s issuing traditional FISA orders. See Megahey, 553 F. Supp. at 1196 (rejecting an Article III challenge to traditional FISA and finding no “basis for concluding that a court exercising exclusively ex parte powers is constitutionally improper because of the case or controversy jurisdictional requirement inherent in Article III”); In re Sealed Case, 310 F.3d at 732 n.19 (“[W]e do not think there is much left to an argument made by an opponent of FISA in 1978 that the statutory responsibilities of the FISA court are inconsistent with Article III case and controversy responsibilities of federal judges because of the secret, non-adversary process.”); James E. Pfander & Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non- Contentious Jurisdiction, 124 Yale L.J. 1346, 1416 (2015) (“[T]he uncontroversial decision to include equity and admiralty ‘cases’ in the federal constitutional catalog provides solid evidence that non-contentious jurisdiction was considered an acceptable dimension of the business of Article III courts.”). 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 Art. III adverseness.” United States v. Windsor, 570 U.S. 744, 760 (2013) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). The latter is present when the court’s decision “will have real meaning.” INS v. Chadha, 462 U.S. 919, 939-40 (1983). Section 702 proceedings have “real meaning” for the government, the ISPs that respond to Section 702 orders, and the individuals to be surveilled. The ISPs and the individual targets of surveillance are not known at the time of the Section 702 proceedings and thus cannot present “adverse legal arguments.” But they have “adverse legal interests” to the government, which satisfies Article III.

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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

§ 1881a(j)(3)(A), or it can direct the government to correct deficiencies or “cease, or not

begin, the implementation of the authorization for which such certification was

submitted” under § 1881a(j)(3)(B). If authorized, the AG and DNI can immediately

direct an electronic communication provider to comply with an authorization under

§ 1881a(i)(1), which providers can then challenge under § 1881a(i)(4). Without pre-

authorization or a relevant exception, any surveillance is unlawful under the statute. See

In re 702(h) Certifications 2018, 941 F.3d at 552 (“[T]he [AG] and [DNI] can execute a

Section 702 authorization only after the FISC enters an order approving the proposed

acquisition.” (emphasis added)). Also, a criminal defendant may move to suppress any

evidence derived from unauthorized Section 702 surveillance. See id. § 1806(e).

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.

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The “nature and effect” of these proceedings shows that they constitute judicial

activity under Article III. See In re Summers, 325 U.S. 561, 567 (1945). The FISC

renders “dispositive judgments” that “conclusively resolve[] [a] case,” Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995) (quotations omitted).

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

In short, by enacting Section 702, Congress “provide[d] a remedy enforceable in

the courts” for the government to pursue. See Tutun, 270 U.S. at 577. The FISC’s

Section 702 orders are “remedies” in the sense that the government’s inability to conduct

Section 702 surveillance in the absence of Section 702 certifications may be “redressed

by a favorable judicial decision” from the FISC. See Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547 (2016).

30 We take guidance from courts addressing whether a plaintiff’s request for a declaratory judgment would result in an advisory opinion. This court has explained that “what makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109-10 (10th Cir. 2010) (quotations omitted). In other words, judicial resolution “would affect the behavior of the particular parties.” Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011).

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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

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do not comply with 50 U.S.C. § 1881a(d)-(f). The FISC adjudicates whether the

government’s proposed procedures will be approved, rejected, or modified.31

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.

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 Article III justiciability doctrines

further separation of powers principles. For example, Article III standing furthers “the

31 The dissent asserts there is no difference between Section 702 proceedings and President Washington’s attempt in 1793 to obtain an advisory opinion from the Supreme Court on treaty relations with France. See Dissent at 45; Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 176 (2016) (Roberts, C.J., dissenting) (describing the circumstances of President Washington’s request to the Supreme Court). According to the dissent, “[h]ad the Court answered [President Washington], its answers too would have had immediate real-world consequences and binding legal force.” Dissent at 45. But any such answers would not have had any formal legal force. President Washington would have been free to ignore the Supreme Court’s advice without immediate legal consequence. In contrast, a FISC Section 702 order has immediate legal effect on the government’s ability to surveil individuals. So long as a Section 702 authorization is in effect, an electronic communication service provider must “immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition” whenever the AG and DNI direct the service provider to do so. 50 U.S.C. § 1881a(i)(1)(A). And a criminal defendant would be able to suppress any evidence derived from unauthorized Section 702 surveillance. See id. § 1806(e).

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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 Art. III standing

is built on a single basic idea—the idea of separation of powers.” (quotations omitted));

Allen v. Wright, 468 U.S. 737, 750 (1984) (“[T]he ‘case or controversy’ requirement

defines with respect to the Judicial Branch the idea of separation of powers on which the

Federal Government is founded.”).

Similarly, the Court has repeatedly explained the connection between the

separation of powers and the Article III prohibition of advisory opinions, which prevents

courts from “expand[ing] their power so as to bring under their jurisdiction ill defined

controversies,” an “abuse of judicial power [that] would properly meet rebuke and

restriction from other branches.” United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330

U.S. 75, 90-91 (1947). The prohibition limits judicial power “to those disputes which

confine federal courts to a rule consistent with a system of separated powers.” Flast, 392

U.S. at 97. As the Court said recently, the power to issue advisory opinions “would

threaten to grant unelected judges a general authority to conduct oversight of decisions of

the elected branches of Government.” California v. Texas, 141 S. Ct. 2104, 2116 (2021).

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

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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

a. Separation of powers background

“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).

32 Importantly, unlike the typical situation in which an Article III court restrains itself from issuing an advisory opinion on an issue that a litigant would like answered because the real-world results of the opinion would be non-existent or “speculative,” see, e.g., Preiser, 422 U.S. at 403-04, the FISC’s Section 702 actions are taken at the behest of Congress and the Attorney General under a statutory command, see generally 50 U.S.C. § 1881a. Congress’s role in directing the AG and DNI to seek FISC review is relevant to the Article III challenge. See Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851 (1986) (“[I]n reviewing Article III challenges, we have weighed a number of factors . . . with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary.”). Here, the Article III concern about advisory opinions, which is rooted in the separation of powers, is lessened—not heightened—when the FISC acts with the express authorization and direction of Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (“[The Constitution] enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”).

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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

28 U.S.C. § 991(a)). It consists of seven voting members appointed by the President,

including at least three federal judges. Id. The Commission’s responsibilities include

promulgating sentence guidelines, reviewing and revising guidelines, issuing general

policy statements about the application of the guidelines, and overseeing the functions of

federal sentencing. See id. at 369.

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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 Article III judges, to exercise not only their judicial authority, but legislative

authority—the making of sentencing policy—as well”; and (2) “Congress . . . upset the

balance among the Branches by co-opting federal judges into the quintessentially

political work of establishing sentencing guidelines, by subjecting those judges to the

political whims of the Chief Executive, and by forcing judges to share their power with

nonjudges.” Id. at 383-84.

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

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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.

Id. at 396-97.

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 Article III court the power to adjudicate the lawfulness of

surveillance procedures ex parte, on a categorical basis, and prospectively. Still, “[o]ur

constitutional principles of separated powers are not violated . . . by mere anomaly or

innovation.” Mistretta, 488 U.S. at 385. Indeed, when we are “asked to invalidate a

statutory provision that has been approved by both Houses of the Congress and signed by

the President, particularly an Act of Congress that confronts a deeply vexing national

problem, [we] should only do so for the most compelling constitutional reasons.” Id. at

384 (quoting Bowsher v. Synar, 478 U.S. 714, 736 (1986) (Stevens, J., concurring)).

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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

FISC does not trench upon executive prerogatives

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

33 These two inquiries necessarily overlap because the closer courts hew to their “central mission,” the less they will “trench upon the prerogatives of another Branch.” Mistretta, 488 U.S. at 388.

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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 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 Article III judges perform. See id. at 681. The FISC finds facts through

witness testimony and documentary evidence and then applies constitutional and

statutory law to those facts to determine the lawfulness of imminent government conduct.

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

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“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 special authority to determine the

sentencing factors to be applied in any given case.” Id. at 390. In other words, the

Sentencing Commission drew upon its traditional judicial competency in performing its

functions. Similarly, the FISC’s Section 702 functions draw upon core competencies it

uses in the traditional FISA context.

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 50 U.S.C. § 1804(a)

(traditional FISA), with id. § 1881a(d)-(f) (Section 702).34

34 In making this comparison, we do not suggest that the FISC’s Section 702 functions are strictly analogous to the issuance of search warrants, Title III wiretap orders, or traditional FISA warrants, all of which may issue only after particularized judicial findings that applicable statutory and constitutional requirements are met with respect to the specific facts of the search or surveillance to be conducted. See Illinois v. Gates, 462 U.S. 213, 230 (1983) (holding that a warrant may issue only when probable cause exists under the “totality-of-the-circumstances”); Donovan, 429 U.S. at 428 (“[A] wiretap application [under Title III] must name an individual if the Government has probable cause to believe that the individual is engaged in the criminal activity under investigation and expects to intercept the individual’s conversations over the target telephone.”); United States v. Abu-Jihaad, 630 F.3d 102, 128-31 (2d Cir. 2010) (reviewing on the facts of the case whether a FISA warrant properly complied with the requirements that the “executive . . . is in good faith pursuing foreign intelligence gathering,” and that probable cause existed that the individual surveilled was a foreign agent).

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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).

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

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area has the Court accorded Congress greater deference” than “in the context of

Congress’ authority over national defense and military affairs”).

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”).

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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, 50

U.S.C. § 1881a(b)(1), and requires the government “to minimize the acquisition and

retention” of their communications, id. §§ 1801(h), 1881a(e). It further requires

compliance with the Fourth Amendment, id. § 1881a(b)(6), which does not apply to

foreign targets, see Verdugo-Urquidez, 494 U.S. at 261.

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

35 As one national security law scholar has noted, “there are few, if any, feasible alternatives to the FISC’s [Section 702] role,” and “[o]ther potential forums for review, such as an executive agency or an Article I court . . . do not possess the independence and institutional credibility that an Article III court commands.” Peter Margulies, Searching for the Federal Judicial Power: Article III and the Foreign Intelligence Surveillance Court, 85 Geo. Wash. L. Rev. 800, 808 (2017).

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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

36 Mr. Muhtorov poses two hypotheticals. First, the Denver Police Department asks a federal court whether proposed use of force polices are constitutional. Second, the Transportation Security Administration (“TSA”) asks a federal court whether proposed agency procedures for airport screening are reasonable. Aplt. Reply Br. at 24. The dissent presents a similar hypothetical. Dissent at 46. 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 50 U.S.C. § 1806(e) without the need for determining whether the surveillance violated the Fourth Amendment. In the hypotheticals, the courts would dispense “advice” with no legal effect on the ability of the Denver Police Department or the TSA to, respectively, use force or screen people. Were the Denver Police Department or TSA to act without judicial authorization, their actions would not be void ab initio. 37 Because we conclude Section 702 is constitutional, we need not address the proper remedy were we to hold otherwise. The dissent would not invalidate the entire Section 702 program even if the FISC’s annual review violates Article III. Dissent at 47. But if Section 702 annual reviews are unconstitutional because the FISC lacks Article III jurisdiction, then surveillance conducted under that section is unlawful under the statute, and the program would effectively be invalidated. The dissent instead proposes “that the Fourth Amendment reasonableness determination be accomplished de novo when an actual case is presented to an Article III court.” Id. Yet this is precisely what courts— 75 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 83

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, 50 U.S.C. § 1806(f), and as a matter of due process. We disagree

and conclude the district court did not err.

A. Legal Background

Under FISA, when

(1) 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

(2) “the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States,”

(3) 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.”

including the district court and this court in the present case—already do when a criminal defendant seeks suppression of Section 702-derived evidence. 38 In making this request, Mr. Muhtorov does not seek discovery of the fruits of the traditional FISA and Section 702 surveillance. As explained below, the government has complied with its discovery obligations.

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50 U.S.C. § 1806(f);39 see also id. § 1825(g). “In making this determination, 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 only where such disclosure is necessary to make an accurate determination

of the legality of the surveillance.” Id. § 1806(f). The “lawfully authorized and

conducted” requirement entails compliance both with FISA and the Constitution because

“[t]he Constitution is law” for purposes of § 1806(f). ACLU Found. of S. Cal. v. Barr,

952 F.2d 459, 465 (D.C. Cir. 1991).

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 § 1806(f). After canvassing the text of FISA and the legislative

history, the court concluded that

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.

39 Section 1806(f) applies to Section 702 as well as traditional FISA. See 50 U.S.C. § 1881e(a)(1) (“Information acquired from an acquisition conducted under [Section 702] shall be deemed to be information acquired from an electronic surveillance pursuant to [Title] I for purposes of section 1806 of this title, except [in circumstances not relevant here].”).

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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 § 1806(f). See, e.g., United States v.

Stewart, 590 F.3d 93, 128 (2d Cir. 2009); United States v. Squillacote, 221 F.3d 542, 554

(4th Cir. 2000); United States v. Isa, 923 F.2d 1300, 1306-07 (8th Cir. 1991).

If, after the in camera and ex parte review required under § 1806(f), “the [district]

court determines that the surveillance was lawfully authorized and conducted, it shall

deny the motion of the aggrieved person except to the extent that due process requires

discovery or disclosure.” 50 U.S.C. § 1806(g).

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

communications were intercepted. He also requested that, at the very least, his counsel

have access to the requested information under CIPA.

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The AG filed an affidavit under § 1806(f) stating that disclosure would harm

national security. The district court then reviewed the application materials in camera

and ex parte to assess whether disclosure of the FISA materials was necessary to make an

accurate determination of the legality of the collection. The court concluded that “the

FISA materials need not and should not be disclosed in the interests of national security”

and that the traditional FISA surveillance was lawful. ROA, Vol. I at 480. It also found

“no basis for permitting defense counsel to review the FISA materials and no need to

order a Franks [v. Delaware, 438 U.S. 154 (1978)] hearing.” Id. at 482. Thus, it denied

Mr. Muhtorov’s motion.

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

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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 § 1806(f) for abuse of discretion. See United

States v. Ali, 799 F.3d 1008, 1022 (8th Cir. 2015); United States v. El-Mezain, 664 F.3d

467, 567 (5th Cir. 2011); United States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005);

United States v. Badia, 827 F.2d 1458, 1464 (11th Cir. 1987); Belfield, 692 F.2d at 147.

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).

D. Discussion

We discuss Mr. Muhtorov’s arguments that disclosure was required (1) under

§ 1806(f) and (2) as a matter of due process.

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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.” 50 U.S.C. § 1806(f).40 Recognizing that “[d]isclosure

and an adversary hearing are the exception, occurring only when necessary,” Belfield,

692 F.2d at 147, we find no abuse of discretion.

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.”

50 U.S.C. § 1806(f). But on appeal, Mr. Muhtorov does not challenge the traditional

FISA surveillance, except to the extent it was tainted by the allegedly unlawful Section

702 surveillance. Mr. Muhtorov’s failure to challenge the district court’s denial of the

first motion to suppress undermines his argument for disclosure on appeal. In addition,

Mr. Muhtorov’s specific arguments for disclosure are without merit.

40 Because § 1806(f) requires in camera and ex parte review by the district court before deciding whether to order disclosure, our analysis requires us to conduct our own “comprehensive review” of the materials “to determine whether the district court acted within its discretion.” Ali, 799 F.3d at 1022. We have done so.

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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 and ex parte and determined

their disclosure was not necessary because it was capable of making an accurate

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determination of the legality of the surveillance. The court determined the surveillance

was lawfully authorized and conducted under FISA and the Fourth Amendment. No

evidence in the record causes us to question the court’s findings.

In sum, Mr. Muhtorov has failed to show that the district court, which carefully

followed the procedures in § 1806(f), abused its discretion by declining to order

disclosure of the traditional FISA materials. Disclosure was not “necessary to make an

accurate determination of the legality of the surveillance.” 50 U.S.C. § 1806(f).

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.

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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

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questions of legality may be complicated” by the nature of the materials. Belfield, 692

F.2d at 147. But as the district court explained in denying Mr. Muhtorov’s motion to

suppress the Section 702-derived evidence, its “exhaustive in camera and ex parte review

of all relevant additional classified materials provided” led it to conclude the Section 702

surveillance was lawful. See ROA, Vol. III at 148. There is no indication that the

existence of an allegedly large quantity of complex surveillance materials hindered the

district court’s ability to decide this issue or that disclosure would have aided its analysis.

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 § 1806(f) after

carefully reviewing the traditional FISA and Section 702 application materials.

Due Process

Mr. Muhtorov argues that “due process requires discovery or disclosure,” 50

U.S.C. § 1806(g), because

(a) 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;

(b) 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

(c) 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.

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a. Due process and Brady

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.

41 We have hinted the answer is no: “Suppression hearings do not determine a defendant’s guilt or punishment, yet Brady rests on the idea that due process is violated when the withheld evidence is material either to guilt or to punishment.” Lee Vang Lor, 706 F.3d at 1256 n.2 (quotations and citation omitted).

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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.” 50 U.S.C. § 1806(g).43

42 Our determination that the government’s Section 702 surveillance did not violate Mr. Muhtorov’s Fourth Amendment rights turned largely on questions of law. Had the district court, or we, concluded that the surveillance of Mr. Muhtorov failed to comply with Section 702’s minimization and targeting requirements, he would have a stronger Brady argument. 43 Apart from his Brady-based argument, Mr. Muhtorov cites to Roviaro v. United States, 353 U.S. 53 (1957), to argue he was entitled to “information that is relevant and helpful” to his argument, see Aplt. Br. at 64. Roviaro provided that courts should determine whether to order disclosure of information about a confidential informant by “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense,” taking into account “the particular circumstances of [the] case, . . . the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Roviaro, 353 U.S. at 62. Roviaro is far removed from this case, and its balancing test does not favor Mr. Muhtorov because the “strong public interest in furthering effective law enforcement,” United States v. Mendoza-Salgado, 964 F.2d 993, 1000 (10th Cir. 1992), and Congress’s determination that disclosure under FISA is the exception, not the rule, see 50 U.S.C. § 1806(f); Abu-Jihaad, 630 F.3d at 129, outweigh any general interest that Mr. Muhtorov might have in the materials to prepare his suppression motions.

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b. Due Process and § 1806(f) – Mathews

Mr. Muhtorov argues that § 1806(f) does not comport with procedural due process

guarantees, citing Mathews, an argument that applies to both the traditional FISA and

Section 702 application materials.

Courts have not been consistent as to whether a Mathews claim is available in the

§ 1806(f) context. The Fifth Circuit “[a]ssum[ed] without deciding that the Mathews

balancing test is applicable.” El-Mezain, 664 F.3d at 567. The Sixth Circuit found

“reliance on Mathews is misplaced,” and said that “FISA’s requirement that the district

court conduct an ex parte, in camera review of FISA materials does not deprive a

defendant of due process.” Damrah, 412 F.3d at 624. Like the Fifth Circuit, we will

assume that Mathews applies here.

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.

Id. at 335.

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Mr. Muhtorov argues that due process required an adversarial proceeding rather

than the in camera and ex parte proceeding provided for in § 1806(f), because

(1) he has a substantial interest in accurately determining whether the government’s surveillance violated his rights;

(2) in camera and ex parte proceedings have an unacceptably high risk of error when factual and legal issues are complex; and

(3) 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 § 1806(f) inapplicable to this case.

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);

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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

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.

Mr. Muhtorov does not contest that he has not made a Franks showing for either

the traditional FISA or Section 702 application materials.45 Rather, he contends that

44 Franks was a Fourth Amendment case, not a due process case. We assume without deciding that Franks may provide a basis for a defendant to obtain “discovery or disclosure” under 50 U.S.C. § 1806(g). 45 A Franks challenge would not succeed here. In response to such a challenge in the FISA context, “the judge makes the additional determination, based on full access to all classified materials and the defense’s proffer of its version of events, of whether it’s possible to determine the validity of the Franks challenge without disclosure of any of the classified materials to the defense.” United States v. Daoud, 755 F.3d 479, 484 (7th Cir. 2014). Here, the district court found there was “no need to order a Franks hearing” with respect to the traditional FISA surveillance. ROA, Vol. I at 482. We agree. And nothing in the record provides any basis to suspect that the Section 702 application materials 90 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 98

defendants like him cannot make the “substantial preliminary showing” needed for a

Franks hearing because “they cannot identify falsehoods or omissions in FISA affidavits

they have not seen.” Aplt. Br. at 66.

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.

contained any false statement, let alone one made “knowingly and intentionally, or with reckless disregard for the truth.” Franks, 438 U.S. at 155.

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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 states that “some of the tools the government likely

used here,” Aplt. Br. at 72 (emphasis added), were Executive Order 12333 surveillance

techniques; location tracking, potentially through real-time GPS, cell-site location

information, or “stingray” surveillance devices that mimic cell phone towers; and bulk

collection of Americans’ call records under Section 215 of the PATRIOT Act (codified at

50 U.S.C. § 1861, a part of FISA), id. at 72-75.48

46 To the extent Mr. Muhtorov suggests that the district court could have disclosed the classified FISA materials only to Mr. Muhtorov’s counsel, he points to no supporting authority. As the Seventh Circuit noted, though unlikely that lawyers would brazenly publicize classified information in violation of federal law, “they might in their zeal to defend their client, to whom they owe a duty of candid communication, or misremembering what is classified and what not, inadvertently say things that would provide clues to classified material.” Daoud, 755 F.3d at 484. It was not error for the district court to decline to disclose information to Mr. Muhtorov’s counsel. 47 Though Mr. Muhtorov describes the surveillance techniques as “novel,” he does not explain what he means by “novel.” It is thus unclear on appeal what Mr. Muhtorov sought with this request in the district court, which borders on inadequate appellate briefing. Out of an abundance of caution, we construe his request as covering all surveillance techniques the government may have used during its investigation. 48 Mr. Muhtorov notes that courts have held aspects of these last two techniques to be illegal. See Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018) (warrantless 92 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 100

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, 18 U.S.C. § 3504, Rule 16 of the Federal

Rules of Criminal Procedure, and CIPA. But these authorities do not support disclosing

surveillance methods. The law governing discovery in criminal cases applies to material

that was collected, and the government has complied with those obligations.

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.” 18 U.S.C. § 3504(a)(1). “[U]nlawful act” means “the use of any

electronic, mechanical, or other device (as defined in [Title III]) in violation of the

collection of cell-site location information violates the Fourth Amendment); ACLU v. Clapper, 785 F.3d 787, 810-21 (2d Cir. 2015) (PATRIOT Act § 215 does not authorize the government’s bulk call data collection program). 49 This challenge differs from his FISA disclosure challenge in that he does not seek the applications that justified the government’s surveillance but instead the nature of the specific surveillance techniques used as well as evidence derived therefrom.

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Constitution or laws of the United States or any regulation or standard promulgated

pursuant thereto.” Id. § 3504(b).50 When such a claim is made, “the opponent of the

claim [usually the government] shall affirm or deny the occurrence of the alleged

unlawful act.” Id. § 3504(a)(1).

In evaluating a defendant’s § 3504 claim, a court “must consider the specificity of

the defendant’s allegations of unlawful electronic surveillance and the evidence

introduced in support of the allegations.” United States v. Alvillar, 575 F.2d 1316, 1321

(10th Cir. 1978). The court then “measure[s] the need for specificity in the government’s

denial and for comprehensiveness in the search of government records on which the

denial is predicated.” Id. Any “quest for certainty in this kind of inquiry [is] futile.”

Matter of Grand Jury (Vigil), 524 F.2d 209, 216 (10th Cir. 1975) (per curiam). This

exercise is a “balancing or weighing evaluation” based on the “individual demands” of

the case. Id.

The statute thus contemplates a multi-step process. The defendant must allege

unlawful use. If the allegations are sufficient to require a response, the government

issues a confirmation or denial. The court must then weigh whether disclosure is

warranted based on the sufficiency of the government’s explanation.

50 “[E]lectronic, mechanical, or other device” means “any device or apparatus which can be used to intercept a wire, oral, or electronic communication.” 18 U.S.C. § 2510(5).

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Federal Rule of Criminal Procedure 16

Federal Rule of Criminal Procedure 16(a)(1)(B)(i) requires the government, upon

the defendant’s request, to produce, among other things, “any relevant written or

recorded statement by the defendant” within the government’s possession, custody, or

control. Rule 16(a)(1)(E)(i) requires the government, upon the defendant’s request, to

make available for inspection and copying or photographing “books, papers, documents,

data, photographs, tangible objects, buildings or places, or copies or portions of any of

these items, if the item is within the government’s possession, custody, or control” and

“the item is material to preparing the defense.” Rule 16(d)(1) states that “[a]t any time

the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant

other appropriate relief.”

CIPA

CIPA, 18 U.S.C. app. 3, governs the use or potential use of classified information

in federal criminal proceedings. See id. § 2. It “establish[es] procedures to harmonize a

defendant’s right to obtain and present exculpatory material upon his trial and the

government’s right to protect classified material in the national interest.” Abu-Jihaad,

630 F.3d at 140 (quotations omitted). CIPA “does not give rise to an independent right to

discovery.” United States v. Lustyik, 833 F.3d 1263, 1271 (10th Cir. 2016). It simply

“provides guidance to trial judges applying [Rule 16(d)] where confidential information

is involved.” Id. “CIPA ‘clarifies district courts’ power under [Rule 16(d)] to issue

protective orders denying or restricting discovery for good cause.” Id. (quotations

omitted).

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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 18 U.S.C. app. 3 § 3 (“Upon

motion of the United States, the court shall issue an order to protect against the disclosure

of any classified information disclosed by the United States to any defendant in any

criminal case in a district court of the United States.”).

In lieu of full disclosure to the defendant, CIPA § 4 permits the government to ask

the district court for permission “to delete specified items of classified information from

documents to be made available to the defendant through discovery under the Federal

Rules of Criminal Procedure, to substitute a summary of the information for such

classified documents, or to substitute a statement admitting relevant facts that the

classified information would tend to prove.” Id. § 4. The court “may permit the United

States to make a request for such authorization in the form of a written statement to be

inspected by the court alone.” Id.

Courts frequently cite the D.C. Circuit’s decision in Yunis for the standard

governing a district court’s evaluation of a CIPA § 4 motion. See United States v.

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Amawi, 695 F.3d 457, 470 (6th Cir. 2012) (Second, Fourth, Fifth, Sixth, and Ninth

Circuits follow Yunis). The district court first must ensure that the information the

government seeks to protect “crosse[s] the low hurdle of relevance.” Yunis, 867 F.2d at

623. Second, the court “should determine if the assertion of privilege by the government

is at least a colorable one,” thus preventing the government from “convert[ing] any run-

of-the-mine criminal case into a CIPA action merely by frivolous claims of privilege.”

Id. Third, the district court must determine if the evidence is “material[],” meaning

“helpful to the defense of an accused.” Id. at 622 (quoting Roviaro, 353 U.S. at 60-61).

Various circuits agree that “helpful” is a lower standard than “exculpatory,” so the district

court cannot simply look for Brady evidence. See Amawi, 695 F.3d at 471; Aref, 533

F.3d at 80; United States v. Mejia, 448 F.3d 436, 456-57 (D.C. Cir. 2006).

B. Additional Procedural History

In response to Mr. Muhtorov’s motion containing § 3504 allegations, the

government denied that any evidence was derived from surveillance under Executive

Order 12333. It gave that denial “voluntarily,” without conceding that “§ 3504 applies or

[that] either defendant has presented a colorable basis for a claim that such surveillance

occurred.” Aplee. Redacted Classified Ex Parte Br. at A44-45. It promised to provide

any additional information on this issue to the district court ex parte. The district court

denied the motion without prejudice to renew it after the conclusion of CIPA § 4

proceedings.

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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 § 3504 whether it used allegedly unlawful surveillance techniques. He also

filed an objection to the use of ex parte CIPA § 4 proceedings to determine contested

Fourth Amendment suppression issues. He alleged, based on governmental conduct in

other cases, that the government “improperly relied on the CIPA process to conceal

surveillance.” ROA, Vol. III at 482.

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.

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 Rule 16 discovery motion); Apperson, 441 F.3d at 1193 (abuse of discretion

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standard applies to rulings “applying the CIPA to discovery and trial” and denying access

to classified information to defense counsel unless the issues “involve interpretation of

the CIPA”). We review de novo constitutional issues and questions of statutory

interpretation. See Lustyik, 833 F.3d at 1267, 1271.

Mr. Muhtorov argues that due process, 18 U.S.C. § 3504, and Rule 16 required

notice of the government’s surveillance techniques and discovery of evidence collected.

He also argues the government and the district court misused CIPA to withhold necessary

information from him. We reject his arguments.

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

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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 litigate the scope of the exclusionary rule.

Here, the district court carefully inspected the classified record and concluded that no

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unlawful surveillance occurred. In addition, Mr. Muhtorov seeks notice of any

government surveillance techniques possibly used for national security purposes, not

simply the records of his statements. He cannot show disclosure of those materials would

“involve a minimum hazard to others.” Id. at 185.

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.

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.

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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 § 3504. See id.; Vigil, 524 F.2d at 214-16. “Bearing

in mind the extreme difficulty of proving a negative such as that before us,” that no

evidence was derived from surveillance under Executive Order 12333, we credit the

detailed and credible assurances here made by “a knowledgeable United States Attorney

in charge of the investigation.” Vigil, 524 F.2d at 215-16. As for other possible

surveillance methods, we agree with the district court that the government’s foreign

intelligence surveillance methodology is classified, so affirming or denying the use of

various surveillance techniques would necessarily divulge classified information.51

Mr. Muhtorov argues that (1) he is entitled to discovery of his relevant recorded

statements under Rule 16(a)(1)(B), and (2) notice of the government’s surveillance

techniques is “essential to [his] ability to seek suppression,” so this information is

“plainly ‘material’ under Rule 16(a)(1)(E)(i).” Aplt. Br. at 80.

51 Courts have applied this principle in Freedom of Information Act (“FOIA”) cases. See Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 68 (2d Cir. 2009) (discussing the permissibility of a Glomar response in FOIA cases, in which the agency may refuse to confirm or deny the existence of records because answering the FOIA inquiry would cause harm); see Phillippi v. CIA, 546 F.2d 1009, 1012 (D.C. Cir. 1976) (allowing the CIA to claim that the “existence or nonexistence of the requested records [pertaining to an oceanic research vessel called the Hughes Glomar Explorer] was itself a classified fact exempt from disclosure under . . . FOIA”).

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Rule 16(a)(1)(B) concerns a defendant’s “statement[s].” Mr. Muhtorov does not

specify which subsection of Rule 16(a)(1)(B) he alleges requires disclosure here. He

appears to rely on Rule 16(a)(1)(B)(i), which concerns statements “within the

government’s possession, custody, or control” that the “attorney for the government

knows—or through due diligence could know— . . . exist[].” The government provided

Mr. Muhtorov’s statements to him in voluminous disclosures, and the district court

generally found that the government complied with its Brady discovery obligations.

There is no indication the government withheld any statement by Mr. Muhtorov, no

matter how it was collected, that the government “knows—or through due diligence

could know— . . . exists.” Fed. R. Crim. P. 16(a)(1)(B)(i).

In addition to the statements he alleges the government has withheld, Mr.

Muhtorov argues that Rule 16 requires notice of the surveillance methods the government

used. But Mr. Muhtorov has failed to carry his “burden to make a prima facie showing of

materiality” under Rule 16(a)(1)(E)(i) as to this disclosure. See Simpson, 845 F.3d

at 1056. His speculation that if novel surveillance techniques were used they were

material to his suppression motions is mere assertion and is insufficient to show

materiality. See id.

The district court acted within its discretion under Rule 16 in denying disclosure

of the surveillance methods the government may have used. And there is no evidence the

government withheld any “statement” within the meaning of Rule 16.

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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

52 Stellar Wind was a surveillance program based on Congress’s 2001 Authorization for the Use of Military Force (“AUMF”). See ACLU v. Nat’l Sec. Agency, 925 F.3d 576, 586 (2d Cir. 2019).

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contends the district court and the government misused CIPA, that argument also is

without merit. The district court recognized that “ex parte proceedings are a difficult pill

to swallow in our adversarial system” but deemed them necessary in this case. ROA,

Vol. VII at 344. It assured the defendants that “[p]ermitting ex parte proceedings does

not . . . equate to accepting the government’s representations as uncontroverted,” that

“CIPA compels [the court] to take into account every conceivable argument [they] might

put forward,” and that it “donn[ed its] defense hat . . . [to] probe[] the government on its

grounds for continuing to withhold [a defendant’s] statements.” Id.

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

53 The Stellar Wind surveillance program is not relevant because the record lacks evidence to suggest that the surveillance of Mr. Muhtorov was part of that program.

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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 18 U.S.C. § 3504—balance the

government’s and the public’s interest in effective law enforcement against a defendant’s

discovery rights embodied in Rule 16 and the Due Process Clause. None of these

authorities supports disclosure of the government’s surveillance methods. And the

district court did not abuse its discretion in concluding the government complied with

requirements governing discovery in criminal cases, no matter how the evidence was

collected.54

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.

54 The dissent contends our Sixth Amendment and Fourth Amendment analyses fail to account for Mr. Muhtorov’s lack of access to the classified record. See Dissent at 14-18 & nn.12, 15 (Sixth Amendment); id. at 26-31 & nn.22, 25 (Fourth Amendment). We disagree. Although Mr. Muhtorov’s lack of access to the classified record makes this case different from an ordinary criminal case and understandably caused the defense frustration, the district court did not err in denying disclosure under prevailing law. And we have given Mr. Muhtorov’s constitutional challenges appropriate consideration in light of the circumstances. Moreover, we note that the dissent does not question the district court’s denial of his requests for the government’s application materials for traditional FISA and Section 702 surveillance or for disclosure of possible novel surveillance methods.

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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 was incarcerated the entire time. But we

agree with the district court that there was no violation of Mr. Muhtorov’s speedy trial

right. The length of the pretrial period was due to atypical aspects of the investigation

that prolonged the discovery process. The government worked diligently to bring the

case to trial, while endeavoring to comply with Mr. Muhtorov’s broad discovery requests.

A. Background

We provide background on (1) a defendant’s constitutional and statutory rights to

a speedy trial, and (2) the district court proceedings.

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.” U.S. Const. amend. VI. The right to a

speedy trial “attaches when the defendant is arrested or indicted, whichever comes first.”

United States v. Medina, 918 F.3d 774, 779 (10th Cir. 2019) (quotations omitted). “[T]he

right detaches upon conviction[.]” Betterman v. Montana, 136 S. Ct. 1609, 1613 (2016).

“[I]t is the prosecution’s burden (and ultimately the court’s) and not the defendant’s

responsibility to assure that cases are brought to trial in a timely manner.” United States

v. Seltzer, 595 F.3d 1170, 1175-76 (10th Cir. 2010).

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.

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“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”), 18 U.S.C. §§ 3161-3174. Although Mr. Muhtorov does not

challenge the district court’s STA rulings, we provide brief background on the 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

18 U.S.C. § 3161(c)(1)). “Several ‘enumerated events’ are excluded from the statute’s

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prescribed seventy-day period[.]” Id. The district court shall exclude “[a]ny period of

delay resulting from a continuance . . . if the judge granted such continuance on the basis

of his findings that the ends of justice served by taking such action outweigh the best

interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A).

Among the factors the district court “shall consider in determining whether to grant a

continuance” is “[w]hether the case is so unusual or so complex, due to the number of

defendants, the nature of the prosecution, or the existence of novel questions of fact or

law, that it is unreasonable to expect adequate preparation for pretrial proceedings or for

the trial itself within the time limits established” by the STA. Id. § 3161(h)(7)(B),

(h)(7)(B)(ii). The “delay resulting from any pretrial motion” is also excluded. Id.

§ 3161(h)(1)(D).

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 18 U.S.C.

§ 2339B. On February 15, the district court denied Mr. Muhtorov’s request for release

and ordered him detained without bond. On March 1, the district court set Mr.

Muhtorov’s case for a two-week jury trial to begin on April 9.

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

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STA and excluded 90 days from speedy trial calculations. See 18 U.S.C.

§ 3161(h)(7)(B)(ii). In later tolling motions, the government requested STA extensions

of 90 days (filed Sept. 27, 2012); 120 days (filed Feb. 22, 2013); 120 days (filed June 14,

2013); 120 days (filed Oct. 2, 2013); 180 days (filed May 4, 2016); 137 days (filed Oct.

26, 2016); and 152 days (filed Feb. 28, 2017). In support, the government cited the (1)

complexity of the case, (2) existence of novel questions of law and fact, (3) volume of

intercepted communications that would be disclosed in discovery, (4) scarcity of

translators, (5) need to comply with CIPA, and (6) national security implications of the

prosecution.

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.

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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 compliance with its discovery obligations.

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.

55 As explained above, the government had filed, in February 2012, notice that it “intend[ed] to offer into evidence . . . information obtained and derived from electronic surveillance and physical search conducted pursuant to [FISA], as amended, 50 U.S.C. §§ 1801-1811 [governing electronic surveillance], 1821-1829 [governing physical searches].” ROA, Vol. I at 220. Mr. Muhtorov’s motion to suppress traditional FISA evidence was denied in September 2012. The government did not indicate in the February 2012 notice that it would use evidence derived from Section 702 surveillance. The record does not explain why the government filed the Section 702 notice when it did. The dissent nonetheless attempts to speculate. See Dissent at 5 n.2.

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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.”

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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 judge was an option, the district court told

the parties that it would take at least six months for a new judge to become familiar with

the case. The government supported reassignment, but Mr. Muhtorov and Mr. Jumaev

asked for the case to remain with the original district judge, which it did. Mr.

Muhtorov’s trial was reset from March 12, 2018, to May 14, 2018, and began on that day,

nearly six-and-a-half years after his arrest.

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

56 Mr. Muhtorov did not end up calling Mr. Jumaev as a witness at trial.

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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.

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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.

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 incarceration,

deterioration of his mental health, and the death of an important witness. We consider

the four Barker factors and then balance them.

“We review a defendant’s claim under the Sixth Amendment’s Speedy Trial

Clause de novo, accepting the district court’s factual findings unless they are clearly

erroneous.” Medina, 918 F.3d at 788 (citation omitted).

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

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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.

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

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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 delay

weighed in the defendant’s favor).

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 FISA and Section 702 surveillance, which created

procedural complexities. The need for the parties and the court to comply with CIPA

made this case more complicated than an ordinary prosecution. On the other hand, the

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underlying charged conduct was straightforward, involving Mr. Muhtorov’s intention to

assist the IJU through a few discrete transactions and to devote himself to the jihad.57

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”).

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.

“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)).

57 The conduct underlying Mr. Jumaev’s conviction was even more straightforward, consisting of a single $300 payment to Mr. Muhtorov, to be forwarded to the IJU.

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“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.

Quantifying the delay

In the first part of the inquiry we attempt to “divide” the overall delay into discrete

“periods during which an indictment was pending against” the defendant to provide

manageable units of analysis. United States v. Black, 830 F.3d 1099, 1113 (10th Cir.

2016). We determine whether each period should weigh for or against a constitutional

violation. See United States v. Gould, 672 F.3d 930, 937 (10th Cir. 2012) (engaging in a

period-by-period analysis).

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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.

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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.

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

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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 Federal Rule of Criminal Procedure 16 in February 2012. At a status conference in

May 2012, the government represented it had already produced summary translations of

intercepted communications to the defendants.

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

58 Ignoring this passage from Barker, the dissent faults us for considering whether the length of discovery was due to a deliberate attempt to delay the trial, negligence, or a valid reason. Dissent at 9 n.7. Although good faith alone may not preclude a speedy trial violation, see Seltzer, 595 F.3d at 1179, bad faith government delay can weigh “heavily” in favor of a violation, as Barker instructs, 407 U.S. at 531. See also Doggett, 506 U.S. at 656 (“[O]fficial bad faith in causing delay will be weighed heavily against the government.”).

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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 FISA, the need to sort the production into classified and unclassified documents for

review at ex parte CIPA hearings, the volume of the material, and the lack of available

Uzbek and Tajik translators.59 Meanwhile, Mr. Muhtorov expressed his dissatisfaction

with the discovery production in a series of discovery motions and through counsel’s

statements at hearings.

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.

59 The government also gave these justifications for continuances under the STA, all but two of which Mr. Muhtorov did not oppose.

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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 CIPA. ROA, Vol. XI at 228. This deadline was

not met. The record shows that discovery productions were made consistently in the

following years except for two periods of time. No discovery was produced between

September 2014 and April 2015, and then again between October 2015 and March

2016.60 See ROA, Vol. II at 42; Dist. Ct. Doc. 972 at 2. During this second lull, Mr.

Muhtorov and Mr. Jumaev asked the district court to set a discovery deadline. Dist. Ct.

Doc. 972.

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 Federal Rule of Criminal Procedure 12,

including motions to suppress, motions for violation of the speedy trial right, and motions

to sever. See id. at 377. The district court stated, “I don’t want to say that these dates are

etched in granite, but I mean them.” Id. The government produced most of the discovery

60 Although document production may have ceased during these times, the record shows that work was ongoing behind the scenes, particularly with respect to translations. A gap in discovery production does not equate to a lack of government diligence.

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on September 1, 2016, with follow-up productions thereafter. By contrast, it produced

about 1,000 calls and 4,718 pages of discovery between April 2012 and March 2013.

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 CIPA

process. See ROA, Vol. I at 493 (October 2012 order of the district court noting it had

carefully considered the government’s obligations under Federal Rule of Criminal

Procedure 16, Brady, and Giglio).

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 due diligence, the extraordinary efforts of the [government] counsel in

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this case.” ROA, Vol. XII at 550-51.61 Overall, the court found that “[t]he necessities of

the case require intense discovery, and that is further complicated by the fact that there

are some language difficulties, and the translation of documents and a multitude of

electronically generated data.” Id. at 551.

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 CIPA. The

government also notes Mr. Muhtorov’s “aggressive” motions practice. Aplee. Br. at 14.

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

Section 702 surveillance. Further, Mr. Muhtorov cites the government’s filing and

dismissing a third superseding indictment, and the delay caused by the district judge’s

need for medical treatment.

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

61 In its oral ruling, the district court referred to “defense counsel” rather than government counsel. The context makes clear that the district court intended to refer to government counsel.

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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.

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 Rule 16 discussions about a month after Mr.

Muhtorov’s arrest and continued until January 2018. To determine whether this period

should weigh for or against a constitutional violation, we consider whether the

government has “provide[d] an acceptable rationale for the delay” of the trial. Seltzer,

595 F.3d at 1177. The government has justified the length of time for discovery. See id.;

see also Doggett, 505 U.S. at 656.

We discuss (a) Mr. Muhtorov’s discovery requests, (b) the CIPA process,

(c) translation issues, and (d) the government’s discovery conduct.63

62 Discovery in Mr. Jumaev’s case continued until February 2018. 63 Contrary to the dissent’s suggestion, the government did not merely “incant[] . . . the phrase ‘national security’” to justify the time it took to bring Mr. Muhtorov to 127 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 135

a) Mr. Muhtorov’s discovery requests

Mr. Muhtorov exercised his right to make broad discovery requests under Brady,

Giglio, and Rule 16. In September 2012, he requested “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.” ROA, Vol. I at 463 (emphasis added).64 He requested that foreign language

materials be translated into English. Id.65 He also requested grand jury materials. Id. at

26.

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”

trial. See Dissent at 14. If it had, we would reject a bare invocation of national security to justify the length of the pretrial period. The Second Circuit has allowed for “national security . . . [to] justify pretrial delay.” United States v. Ghailani, 733 F.3d 29, 46 (2d Cir. 2013). But here, there is no indication that national security would have been compromised had Mr. Muhtorov been tried sooner—for example, by hindering the federal government’s efforts to prevent a terrorist attack. 64 In light of the volume of communications involved, these requests were hardly “garden variety,” as the dissent contends. Dissent at 3 n.1. 65 The dissent is thus incorrect that he requested translation only after September 2016. See Dissent at 3 n.1.

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(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) CIPA

The district court’s and the parties’ obligations to comply with CIPA significantly

complicated the discovery process.

As explained above, CIPA governs the use or potential use of classified

information in federal criminal proceedings. CIPA § 4 permits the district court to

“authorize the United States to delete specified items of classified information from

documents to be made available to the defendant through discovery . . . , to substitute a

summary of the information for such classified documents, or to substitute a statement

admitting relevant facts that the classified information would tend to prove.” 18 U.S.C.

app. 3 § 4. The court’s review allows for balancing the defendant’s interests in accessing

discoverable materials against the government’s and the public’s interest in protecting

classified information.

The national security investigation compelled the government and the district

court to conduct CIPA proceedings before certain materials could be produced to Mr.

Muhtorov. Eight government CIPA filings and eighteen CIPA or other ex parte hearings

implicating classification occurred throughout the pretrial period. See ROA, Vol. I at

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484, 533; ROA, Vol. III at 340; ROA, Vol. IV at 820, 833, 868, 874, 888 (filings); and

ROA, Vol. I at 426; ROA, Vol. III at 155, 343; Dist. Ct. Docs. 1223, 1244, 1269, 1276,

1304, 1369, 1466, 1540, 1552, 1564, 1620, 1621, 1657, 1691, 1854 (hearings). CIPA

compliance was a “valid reason” for the length of the discovery period. See Barker, 407

U.S. at 531; id. at 522 (Barker requires a “functional analysis of the [speedy trial] right in

the particular context of the case”).

The dissent contends the government did not diligently manage the CIPA process

because it failed to file § 4 motions until January 2016. Dissent at 22. We disagree. The

government submitted procedural CIPA filings in September 2012, see ROA, Vol. I at

484, and April 2013, see id. at 533. These procedural filings necessarily preceded

substantive CIPA motions. In addition, before prosecutors file CIPA motions, they work

with the intelligence community under Department of Justice procedures to identify

materials responsive to a discovery request and, if possible, declassify the materials. See

Kris & Wilson § 26:3. Only if declassification is not possible does CIPA review occur

before discovery. See id. That process take time. Overall, the classified record shows

the government was diligently working to use the CIPA process to comply with Mr.

Muhtorov’s broad discovery requests. The record does not support the dissent’s

contention that the government was “sit[ting] on its hands for 46 months” before

beginning the CIPA process. Dissent at 11.

c) Translation issues

The dearth of Uzbek and Tajik translators does not weigh in favor of a

constitutional violation.

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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

66 At one point, the district court stated that it could “only surmise . . . that the translations were not done as soon as they could have been.” ROA, Vol. XII at 552. The court added that it “d[idn’t] know that for a fact,” and “[w]hat I do know, for a fact, is that the reasons for the length of time this is taking are palpable and legitimate reasons.” Id. Thus, though the court observed translation needs slowed the pace of discovery, it did not find the government intentionally or negligently delayed the translation process.

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The dissent questions “the government’s decision to translate the defendants’

recorded statements prior to providing them to the defense in order to evaluate them

under CIPA,” contending “the defense did not request an order to compel the government

to translate the discovery.” Dissent at 3-4 n.1. The defendants do not raise this argument

in their appellate briefs. Nor should they. The defense’s joint discovery motion

“[sought] discovery of any transcriptions or summaries of any such statements and

translations into English thereof.” ROA, Vol. I at 463 (emphasis added). The defense

also recognized that “receiving the statements without the government’s translations

makes it impossible for counsel to make any sense of them. . . . No one on the jury will

be able to understand the calls unless they are translated. Nor will the Court or counsel.

Neither counsel nor the district court will be able to evaluate the calls for compliance

with FISA, or, if it applies, with Title III, the constitution, or to determine if they would

be admissible under the Rules of Evidence . . . .” Id. at 468; see also ROA, Vol. V at 440

(“[W]ithout translation, [the statements demanded] are unintelligible to both the

government’s attorney’s and the defense attorneys.”).67

67 The defense later argued: 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.” ROA, Vol. V at 526-27 (emphasis added).

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Whether under the Federal Rules of Criminal Procedure, the Brady obligation to

provide exculpatory material, CIPA compliance, or the government’s search for relevant

trial evidence, the case necessitated government translation of the communications as part

of the discovery process.68 In sum, the challenge of translation was a “valid reason” that

“serve[s] to justify appropriate delay.” See Barker, 407 U.S. at 531.

d) Government’s discovery conduct

The combination of Mr. Muhtorov’s broad discovery requests, the CIPA process,

and translation issues caused the discovery process to take many years. The record

shows that the government worked diligently and promptly to respond to Mr. Muhtorov’s

broad discovery requests and the district court actively oversaw the discovery process.

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 CIPA proceedings for several years. As a

CIPA gatekeeper, the court’s role was to “protect and restrict the discovery of classified

information in a way that does not impair the defendant’s right to a fair trial.” United

States v. Stewart, 590 F.3d 93, 130 (2d Cir. 2009) (quotations omitted). In that role, the

68 For example, as Mr. Jumaev pointed out in his opening brief, he “had found significant exculpatory evidence that could only have been discovered through a full translation of recorded conversations.” Jumaev Aplt. Br. at 18. He also recognized that the government “could not present classified materials to the court without also preparing translations of the classified materials, because neither the court nor the government lawyers could speak the relevant languages.” Id. at 48. There is no indication that the lawyers in this case were fluent in Russian, Uzbek, or Tajik, let alone all three.

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court was in the best position to determine whether the government was diligent in

managing sensitive and voluminous discovery while complying with its discovery

obligations, including under Brady. There is no basis in the public or classified record to

question the court’s finding that the government was diligent.69

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 Rule 16, Giglio, and Brady.

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

69 The dissent erroneously states that “the trial court sanctioned the government for discovery abuse which directly caused at least one year of delay.” Dissent at 1; see also id. at 8 (“The district court sanctioned the government for this belated discovery production [on the eve of Mr. Jumaev’s trial], which occurred well after the discovery deadline.”). As explained in our separate Jumaev opinion, the district court imposed only two sanctions on the government: (1) it precluded the admission of evidence collected for counts 5 and 6 of the third superseding indictment; and (2) it instructed the jury about “the information that was belatedly disclosed by the government and not elicited during [the] deposition of [Ilkohm Sobirov].” Jumaev, slip op. at 9-10 (quotations omitted). The court did not attribute a time of delay to the government’s conduct in either instance, and neither involved delay in production of the voluminous communications.

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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 CIPA. Despite making this observation, the district court denied

Mr. Muhtorov’s motion to dismiss the indictment on speedy trial grounds that same

month. It found the length of the discovery process was “not the fault of the prosecution

or the defense.” Id. at 370.70 The length of time was instead due to “[t]he necessities of

the case[, which] require intense discovery.” ROA, Vol. XII at 551. Similarly, the court

noted the length of the discovery period was due to “the essential nature of security

belonging to the Executive Branch and constitutional issues belonging to the Judicial

Branch.” ROA, Vol. XI at 370.71

In sum, the first period from the arrest through the date of the last discovery

production in January 2018 does not favor finding a constitutional violation. During this

time, discovery logistics—including CIPA and translation necessities—drove the pace of

70 The dissent’s reliance on the district court’s comments about the slow pace of discovery is therefore misplaced. No one disputes that discovery took a long time. But the question is whether the reason discovery took a long time was due to a “deliberate attempt to delay the trial” or “negligence” as opposed to a “valid reason” that justifies delay. See Barker, 407 U.S. at 531. 71 The dissent’s suggestion that the “admittedly difficult discovery tasks” could have been completed “in the first year following [Mr.] Muhtorov’s arrest,” Dissent at 10, strains credulity. No one—not Mr. Muhtorov, not the government, and not the district court—believed the case could go to trial that quickly when the prosecution began in 2012. Mr. Muhtorov did not object to most of the government’s requests for continuances, and he sought broad discovery early on.

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proceedings.72 The question is whether the government has carried its burden to explain

why discovery took as long as it did. It has, by pointing to Mr. Muhtorov’s broad

discovery requests, the CIPA requirements, and the need to translate voluminous

materials. In the face of those challenges, the government and the district court moved

diligently to bring the case to trial as quickly as possible. Under the unique

circumstances of the case, the reasons the trial occurred when it did were “valid” and

“justif[ied].” See Barker, 407 U.S. at 531.

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

72 Contrary to the dissent’s suggestion otherwise, we have “critically assess[ed]” the government’s account of discovery logistics and have found ample support for it in the record. See Dissent at 9.

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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.

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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.

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 CIPA, and the dearth of

translators. Also, the two-month delay due to the district judge’s medical treatment does

not tip this factor in favor of Mr. Muhtorov. Thus, the second factor weighs against

finding a constitutional violation.

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.

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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 multi-

faceted discovery process—fueled by Mr. Muhtorov’s exhaustive discovery demands that

enmeshed the parties and the court in CIPA and translation necessities—caused the trial

to begin after January 2018. As explained above, the time for the discovery process was

valid and justified. Given that the discovery process happened before, during, and after

those events, Mr. Muhtorov would not have “faced trial . . . earlier than he did but for”

the timing of the Section 702 notice and the filing and dismissing of the third superseding

indictment. See Doggett, 505 U.S. at 657.

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

73 The dissent seems to assume that anything that could have caused delay should count against the government in the second Barker factor analysis. See Dissent at 5 n.2, 12 n.10. But, as explained above, the Section 702 filing and the third superseding indictment did not delay the trial date. 74 Defense counsel moved for access to classified pleadings and security clearances. The district court denied the motion after full briefing. Whether or not defense counsel were “privy to the classified record” does not excuse Mr. Muhtorov’s 139 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 147

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 basis, what should be disclosed to Mr. Muhtorov’s counsel.

Any notion that having cleared defense counsel would have hastened the trial date is

wholly speculative.75

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.

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.”

waiver of the issue in his appellate briefing on speedy trial or “provide[] the basis for asserting this argument on appeal.” Dissent at 14 n.12. 75 Equally speculative is the dissent’s comment that “the delay in beginning the [CIPA] § 4 process was a strategic decision, either to compel a guilty plea or out of an expectation that [Mr.] Muhtorov would plead guilty.” Dissent at 11 n.9.

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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.

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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

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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 28 U.S.C.

§ 2241. Muhtorov v. Choate, No. 1:17-cv-01527-LTB (D. Colo. June 22, 2017), Dist. Ct.

Doc. 1. He asserted a violation of his constitutional right to a speedy trial, stating that he

had been in detention for five-and-a-half years and his trial was about to be reset again.

Id. at 2. He blamed the delay, in part, on ineffective assistance of trial counsel. See id. at

3-4. The district court dismissed the application.77

76 On appeal, Mr. Muhtorov does not present an ineffective-assistance-of-counsel claim. Nor would we address this argument or claim if he had. “[A] defendant must generally raise claims of ineffective assistance of counsel in a collateral proceeding, not on direct review.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005); see also United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc). 77 On appeal from the dismissal, this court called “the length of delay . . . troubling,” but affirmed the dismissal without prejudice for “substantially the same reasons” stated by the district court. Muhtorov v. Choate, 697 F. App’x 608, 609 (10th Cir. 2017) (unpublished).

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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 speedy trial. When he raised the speedy trial

issue in February 2017, the trial date was set for July 2017. This assertion of his speedy

trial right weighs in favor of Mr. Muhtorov because it was made five months before the

then-trial date, and it thus shows that he did not intend on waiting until the eve of trial to

assert the right for the first time. See United States v. Banks, 761 F.3d 1163, 1183 (10th

Cir. 2014) (weighing this factor against the defendants where they “waited until trial to

assert their right to a speedy trial” after requesting continuances). He continued to assert

the right in May 2017 after the district court reset the trial date from July 2017 to March

2018. These assertions further demonstrate Mr. Muhtorov’s commitment to bringing the

speedy trial issue forcefully to the attention of the district court in advance of the trial

date.

78 Mr. Muhtorov offers no authority that his objections to the slow pace of discovery productions are akin to the assertion of a speedy trial right.

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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.

79 Although we are under no obligation to consider pro se motions by a represented defendant, see United States v. Dunbar, 718 F.3d 1268, 1278 (10th Cir. 2013), pro se filings in which a defendant asserts the speedy trial right are relevant to the third Barker factor, see United States v. Battis, 589 F.3d 673, 681 (3d Cir. 2009) (noting a counseled defendant’s pro se letter and motion “indicate[d] that [he] was concerned that his trial happen promptly”); Tigano, 880 F.3d at 618 (“[A] defendant’s assertion of his own right to a speedy trial—even though ignored or contravened by his counsel—is the relevant fact for purposes of Sixth Amendment analysis.”).

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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 FISA-acquired evidence (filed Feb. 8, 2012) and Section 702-derived evidence

(filed Jan. 29, 2014). The district court did not resolve the latter until November 2015.

Some of the government’s tolling motions were superfluous because the STA excludes

periods of delay resulting from a pretrial motion. See 18 U.S.C. § 3161(h)(1)(D).

Further, it may have been pointless for him to object to the STA continuances given the

pending suppression motions.80

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

80 This case highlights the “awkward position” defense counsel often find themselves in. See Barker, 407 U.S. at 527. Faced with voluminous discovery and the responsibility to a client to make non-frivolous motions under FISA and Section 702, defense counsel here was undoubtedly “willing to tolerate some delay because [they found] it reasonable and helpful in preparing [their] own case.” See id. In those circumstances, Barker does not require a “pro forma demand [for a speedy trial] made immediately after appointment of counsel.” See id. at 528.

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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.

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.

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.

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

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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

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.; see also United

States v. Nixon, 919 F.3d 1265, 1278 (10th Cir. 2019) (“No single factor is a necessary or

sufficient condition to the finding of the deprivation of the right of speedy trial. But the

lack of prejudice is nearly fatal to a claim.” (citation and quotations omitted)).

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.”

81 Both the first and fourth Barker factors involve “presumptive prejudice,” but the analysis differs between the two. See United States v. Jackson, 473 F.3d 660, 664 (6th Cir. 2007) (cautioning against conflating prejudice at the first and fourth factors).

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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.

82 As the Supreme Court has explained, the speedy trial right detaches upon conviction. See Betterman, 136 S. Ct. at 1613. Thus, the relevant period of incarceration is preconviction incarceration, not pretrial incarceration. But because most of the cases talk about “pretrial” incarceration, we do as well when discussing prejudice.

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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 . . .

unavailability.” Jackson, 390 F.3d at 1265. The defendant must show (1) “the

government’s delay caused evidence to be unavailable,” and (2) “the evidence was

actually irretrievable for trial.” Medina, 918 F.3d at 782.

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

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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.

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

83 Mr. Muhtorov never made such an offer.

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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.

Presumptive 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.

Specific prejudice

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 24-hour lockdown

with no access to a telephone or religious or other reading materials. He was moved to

numerous facilities and spent years with no physical contact with his family, including a

84 The government notes that Mr. Muhtorov’s presentence report shows that his religious preferences were respected, and he had no serious problems when detained. But Mr. Muhtorov does not argue that jail personnel discriminated against him. Rather, he alleges that his status as a non-English speaking Uzbek- and Russian-speaking Muslim made his stay in jail more difficult.

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daughter born after he was imprisoned. He was unable to hold his daughter for the first

six years of her life, seeing her only through the glass barrier in the jail’s visiting room.

Meanwhile, his wife worked two jobs to support herself and their three children.

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

85 Unpublished cases cited in this opinion are not binding precedent, but we may consider them for their persuasive value. See Fed. R. App. 32.1(a); 10th Cir. R. 32.1(A).

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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.

86 The government objects that details about his first two months are not part of the record, but we may take judicial notice of district court filings containing this information. See Dist. Ct. Doc. 56 at 10.

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Mr. Muhtorov’s anxiety-and-concern argument is not well supported. He argues

that his mental health suffered while he was deprived of family contact. He reports that

for the first time in his life, he was prescribed medication for depression and anxiety five

years into his pretrial detention. He further advises that a case worker remarked that he

did not look like he was coping well, as reflected in the presentence report.

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

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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

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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 prejudice, we do not weigh this prejudice heavily. The only source of

impairment he identifies is the loss of Ms. Inoyatova’s testimony, and this testimony

would not have been exculpatory or central to the defense.

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

87 The government also points out that the prosecutor acknowledged Mr. Muhtorov’s human rights work during closing argument, when he said that Mr. Muhtorov “rejected his prior human rights worker self, and he chose an entirely new path, radical Islamic jihadism.” Aplee. Br. at 80-81 (quoting ROA, Vol. XX at 1553). But evidence “has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.” Old Chief v. United States, 519 U.S. 172, 188 (1997). In other words, although the government’s closing statement may have weakened the prejudice, it did so only slightly, because Mr. Muhtorov had the right, not simply to put certain facts before the jury, but to paint a broad narrative picture about his own life.

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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.

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.

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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 the discovery process

untainted by government bad faith or negligence. Two relevant cases provide guidance

for our conclusion that the second factor tips the overall balance of the four factors

against finding a constitutional violation.

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

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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

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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 factor,” but instead was the result “of countless small choices” that built up

over years of a complicated discovery process. 880 F.3d at 606. Unlike in Tigano,

however, where the reason-for-delay factor tipped the balance in favor of a constitutional

violation given the “poor trial management and general indifference at every level toward

[a] low-priority defendant in a straightforward case,” id., this case was not

“straightforward,” not marked by “poor trial management,” and not beset by “general

indifference.” Although Mr. Muhtorov’s underlying criminal conduct was

straightforward, the quantity and nature of the discovery was significantly greater and

more complicated than a typical criminal case. And because the discovery delays were

attributable to general necessity rather than “poor trial management” or “general

indifference,” we find no violation of Mr. Muhtorov’s speedy trial right.

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 “unusual 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)

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(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

88 Though the six-and-a-half-year delay in this case was significant, courts have found that similar or longer delays do not warrant dismissal of the indictment. See, e.g., Hicks, 779 F.3d at 1169-70 (finding a delay of five-and-a-half years during which time the defendant was incarcerated did not violate the Sixth Amendment); Tillman v. Kansas, 274 F. App’x 706, 707-08 (10th Cir. 2008) (unpublished) (finding a state court’s determination that a nine-year delay did not violate the defendant’s speedy trial right was not an unreasonable application of Barker); United States v. Duran-Gomez, 984 F.3d 366, 380-81 (5th Cir. 2020) (reversing the district court’s dismissal of the indictment on speedy trial grounds when nine years elapsed between the indictment and the district court’s dismissal, during which time the defendant was incarcerated), cert. denied, 2021 WL 4507949 (U.S. Oct. 4, 2021); Boyer v. Vannoy, 863 F.3d 428, 445 (5th Cir. 2017) (finding a state court’s determination that a seven-year delay did not violate the defendant’s speedy trial right was not an unreasonable application of Barker); United States v. Young, 657 F.3d 408, 420 (6th Cir. 2011) (finding that an eleven-year delay, while “atypical,” was “not unconstitutional”); United States v. Zedner, 401 F.3d 36, 48-49 (2d Cir. 2005) (finding a seven-year delay between indictment and trial did not violate the Sixth Amendment), rev’d on other grounds by 547 U.S. 489 (2006); United States v. Gibson, 353 F.3d 21, 28 (D.C. Cir. 2003) (assuming that a speedy trial claim could be asserted for a delay between conviction and sentence, and finding that a seven- year delay was not a constitutional violation); United States v. Saglimbene, 471 F.2d 16, 18 (2d Cir. 1972) (finding a six-year delay did not violate the Sixth Amendment); Page v. Lockyer, 200 F. App’x 727, 728 (9th Cir. 2006) (unpublished) (finding a six-year delay did not warrant habeas relief on speedy-trial grounds).

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CONCLUSION

We affirm Mr. Muhtorov’s convictions and the district court’s judgment.89

The Barker analysis is fact-intensive, and each of these cases differs from this case. But they suggest that lengthy delays do not ineluctably compel dismissal of the indictment. 89 We grant Mr. Muhtorov’s motion to file a supplemental reply brief.

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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 Sixth Amendment (this, notwithstanding

that the trial court sanctioned the government for discovery abuse which directly caused

at least one year of delay); (2) Purports to rely on the classified record to avoid

recognition that the record below is insufficient to resolve the derivative evidence inquiry

required by the Fourth Amendment; and (3) Relies upon an impermissible advisory

opinion from the Foreign Intelligence Surveillance Court (“FISC”) to conclude that § 702

surveillance was reasonable.

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 Sixth Amendment and claims

violations of the Fourth Amendment and a violation of the Article III prohibition on

advisory opinions. Counter to those allegations is the assertion by the government that

national security interests outweigh any claims of the defendant. Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 172

I

The right to a speedy trial, embodied in the Sixth Amendment, is straightforward:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”

U.S. Const. amend. VI. This fundamental right “has its roots at the very foundation of

our English law heritage,” extending back to the Assize of Clarendon and the Magna

Carta, and is part of the common law heritage upon which our Constitution and Bill of

Rights were based. Klopfer v. North Carolina, 386 U.S. 213, 223-24 (1967). Although

this right has been described as “amorphous, slippery, and necessarily relative,” Vermont

v. Brillon, 556 U.S. 81, 89 (2009) (quotations omitted), its “core concern is impairment

of liberty.” United States v. Loud Hawk, 474 U.S. 302, 312 (1986). “[C]onsistent with

delays and depend[ent] upon circumstances,” Barker, 407 U.S. at 522 (quotation

omitted), its “essential ingredient is orderly expedition and not mere speed.” United

States v. Ewell, 383 U.S. 116, 120 (1966) (quotation omitted).

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 interest,

however, not even the most compelling interest of national security, permits the

government to disregard fundamental constitutional rights of individuals. The

Constitution places both the duty to promptly bring a defendant to trial and the duty to

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ensure that the trial is consistent with due process squarely upon the government. See

Barker, 407 U.S. at 527; see also United States v. Ingram, 446 F.3d 1332, 1337 (11th Cir.

2006) (“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.” (alteration adopted) (quotation omitted)).

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 delayed commencement of the

trial and caused the delay that is glaringly before us.

1 My colleagues excuse the trial delay by pointing to “the vast and multi-faceted discovery process—fueled by Mr. Muhtorov’s exhaustive discovery demands that enmeshed the parties and the court in CIPA and translation necessities” as the cause of the trial’s delay until after January 2018. (Op. at 139.) These “exhaustive discovery demands,” however, were garden variety requests under Federal Rule of Criminal

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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 § 702 evidence in the case against him. My colleagues contend that

this delay “did not extend the pretrial period,” because this almost two-year delay was

Procedure 16(b) for discovery of relevant statements of a defendant that were within the possession, custody, or control of the government. Their volume does not transform them into the exotic, or render unexpected the steps required of the government to proceed to trial, steps to be anticipated even before the indictment issued. Seeking to avoid waste “of government resources,” the defense did not request an order to compel the government to translate the discovery. Instead, the defense merely sought translations of statements which had already been accomplished by the government because “the time needed to have already translated statements re-translated by the defense causes delay for no good reason.” Only after the September 2016 “discovery dump” of tens of thousands of untranslated communications six months before the first scheduled trial did the defense request the government to translate the discovery material belatedly provided. See infra at 7-8. It is on this post-September 2016 request that the majority premises its determination that “the time taken to translate materials was needed for the benefit of Mr. Muhtorov and the preparation of his defense.” (Op. at 131, 132-33 n.67.) To the contrary, it was the government’s decision to translate the defendants’ recorded statements prior to providing them to the defense in order to evaluate them under CIPA that caused the translation delays. This decision significantly contributed to the trial delay. At the origin of the case in May 2012, the government represented that it could provide the court the “finite number” of items that would have to remain classified because of sources and methods, allowing the court to begin its CIPA evaluation at that time. Yet, despite these representations, the government did not begin that process until after the November 2015 denial of the defendants’ motion to suppress, and did not produce significant discovery until September 2016. The defense could not independently translate information that the government had not yet provided. As is clear from review of the record and the government’s assertions in May 2012, the vast majority of discovery information was classified because of the sources and methods by which communications were collected, not their content. And, as discussed infra at 22-23, it was the specific protective technique unilaterally chosen by the government that resulted in the lack of significant discovery production prior to September 2016. Such decisions are weighed against the government.

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encompassed within the six-and-one-half-year delay caused by discovery production.

(Op. at 139.) This approaches double-speak: what the majority is saying is that any and

all government delay is excusable because of its own delay in discovery production. As I

note below, the government’s delay in discovery production is swept aside by my

colleagues in conclusory terms to the end that nearly six-and-a-half years in bringing

these defendants to trial is excused, thereby setting a new Sixth Amendment “standard of

speed.” Given Barker’s instruction that we conduct an ad hoc balancing test in which we

assess “the conduct of both the prosecution and the defendant,” this is inexcusable.

Barker, 407 U.S. at 530. It is axiomatic that withholding the basis of the government’s

case against a defendant for two years has a downstream effect of delaying progress to

trial as the defense must start anew once the true basis for the government’s prosecution

is disclosed. The record confirms that is precisely what occurred. The government offers

no explanation for its belated initial § 702 disclosure.2 When the government elects to

2 The District Court pointed out, however, the confluence of the government’s belated § 702 notice on October 25, 2013 and the 2013 Snowden leaks, recognizing that:

[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.

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

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bring national security cases, surely it must know, or should know, whether it is going to

present § 702-derived evidence. The attendant delay in doing so cannot be attributed to

the defendant.

Swallowing this initial 21-month § 702-notice delay, the government also delayed

commencing its CIPA § 4 evaluation of the evidence for 46 months. Under CIPA § 4,

the government must evaluate all classified evidence to determine what will be disclosed

to the defense and whether it will be provided in its original form or through

substitutions, redactions, or summaries proposed by the government. In a bizarre

argument, the government justifies its original delay in providing § 702 notice by arguing

that “even after the district court’s denial of the defendant[’s suppression] motions in

November 2015, . . . the case still was not close to ready for trial, as discovery was

incomplete and the defendant[] had other pending motions.” Of course discovery was not

complete in November 2015—as I explain below, the government had not even begun the

substantive CIPA § 4 process until after the district court denied Muhtorov’s motion to

suppress on November 19, 2015.3

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. 3 Exacerbating this behavior, the government was aware of the district court’s intent to deny Muhtorov’s motion to suppress as early as June 17, 2015, when the district court gave an oral ruling from the bench detailing its proposed denial. Even if we were to accept, which I do not, that it was acceptable for the government to delay the CIPA § 4

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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. [Date TBD]) (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

process until after the motion to suppress was denied, there is no conceivable explanation for this extra five-month delay. 4 The majority agrees that the government provided no discovery for one year of this pretrial period from September 2014 to April 2015, and October 2015 to March 2016. (Op. at 124.) They excuse the resultant delay. 7 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 178

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 This delay remains

unexplained by the government in this appeal. It is fundamentally unfair and inconsistent

with Barker to suggest, as the majority does in rationalizing their affirmance in this case,

that delay in discovery production that led to sanctions on the government can be

attributed to the defendant.

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

5 My colleagues parse the district court’s response to this eve-of-trial discovery production. (Op. at 134 n.69.) Yet again they ignore the context. After the district court denied the defendants’ motion for dismissal for denial of a speedy trial, it informed the defense that although it would not dismiss the case, it would grant a continuance to remedy the due process violations arising from the late production of material evidence. As the majority acknowledges, the district court did sanction the government for this late production, precluding its use of the information in their case in chief, and while the government’s conduct did not “involve[] delay in production of the voluminous communications” (id.), that was because more than four-and-one-half years’ delay had already occurred. The government was sanctioned for its eve-of-trial production, and that conduct directly resulted in an additional one-year delay in trial, forcing the defendants to trade one constitutional right for another and further eroding their right to a speedy trial. See infra. at 18-19. 6 In analyzing the remaining Barker factors, the majority concludes that two factors—assertion-of-the-right and prejudice-to-the-defendant—weigh in Muhtorov’s favor and another—the length of the delay—strongly weighs in his favor. I agree, although I would weigh the prejudice factor more heavily in his favor because of the oppressive nature of his pretrial incarceration. Muhtorov was denied in-contact visits for six years. 8 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 179

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.

7 The majority seems to misunderstand this fundamental aspect of the speedy trial analysis. It repeatedly emphasizes the lack of bad faith or negligence on the part of the government in concluding that the second Barker factor favors the government. (See, e.g., Op. at 159-62.) My colleagues go so far as to claim that “the question is whether the reason discovery took a long time was due to a deliberate attempt to delay the trial or

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As I said above, I conclude that the government has failed to establish the

necessity of the discovery-related delays in Muhtorov’s trial. The government advances

no explanation for its tardiness in disclosing the wellspring of the evidence against

Muhtorov. Ignoring an almost-two-year delay cannot amount to establishing its

necessity. Nor can the factors relied upon by the majority explain the inexplicable: that

the government awaited the district court’s denial of Muhtorov’s second motion to

suppress on November 19, 2015 to commence its CIPA § 4 evaluation of the evidence.

The government began this necessary process only after Muhtorov had been deprived of

his liberty for nearly 46 months. Once it deigned to begin, the government managed to

complete the bulk of these evaluations within nine months. If the government could

complete all these admittedly difficult discovery tasks in nine months in 2016, why could

it not have completed them in the first year following Muhtorov’s arrest? Or the second?

negligence as opposed to a valid reason that justifies delay.” (Op. at 135 n.70 (quotations omitted).) But the absence of bad faith does not resolve the issue as the majority’s repeated emphasis implies. Although bad faith is weighed more heavily against the government, and is often dispositive of the issue, a speedy trial violation may exist “even when there is no evidence that the government intentionally delayed the case for the explicit purpose of gaining some advantage.” Seltzer, 595 F.3d at 1179. Neutral factors can weigh against the government. At no point do my colleagues engage with Seltzer’s holding that it is the government’s burden to show that pre-trial delays are necessary under the circumstances. See id. at 1178. They merely summarily conclude that CIPA compliance and the challenge of translation were “valid reason[s]” for the six-and-one- half-year discovery period (Op. at 130, 133, 136), without recognition that these processes were solely within the control of the government. In my estimation, the record amply demonstrates that the government was not diligent in either task. As the majority acknowledges, “factors within its control” are to be weighed against the government. (Op. at 120.)

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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 Sixth Amendment speedy trial guarantee.

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

8 Confusingly, the majority asserts that the government was diligent in conducting its CIPA evaluation. (Op. at 129-31.) I agree with the majority that this “process takes time.” (Op. at 130.) In this case it took approximately nine months. Although the majority attaches great weight to the filing of procedural § 4 motions in 2012 (id.), the classified record unambiguously demonstrates that the government did not begin its substantive CIPA evaluation until after the district court denied Muhtorov’s second motion to suppress. I cannot agree that this record shows governmental diligence. 9 The record suggests that the delay in beginning the § 4 process was a strategic decision, either to compel a guilty plea or out of an expectation that Muhtorov would plead guilty. The district court itself commented on the correlation between the failure of earlier plea negotiations and the resultant discovery disclosure. Although our system has become “for the most part a system of pleas, not a system of trials,” Missouri v. Frye, 566 U.S. 134, 143 (2012), the government is not entitled to a plea, nor is it entitled to avoid its fundamental discovery obligations in order to coerce a plea from a defendant incarcerated and awaiting trial. 11 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 182

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) failing to adequately resource translation services; (3) seeking a third superseding

indictment on May 18, 2016 that added charges subsequently dismissed by the

government; and (4) discretionary decisions within the CIPA process to restrict or deny

information to the defense, including the unilateral implementation of specific techniques

to protect a small portion of evidence.10 Although some period of time would be required

for the “orderly expedition” of this case to trial, Ewell, 383 U.S. at 120, the record shows

that much of the delay was both avoidable and directly attributable to these discretionary

decisions.

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

10 Waving away the delay caused by the government’s discretionary decisions, the majority boldly states that these choices “did not extend the pretrial period.” (Op. at 139.) Rather, they claim the date of the trial was due to “the vast and multi-faceted discovery process” which happened “before, during, and after those events.” (Id.) I am perplexed. It is simple arithmetic that choosing a course of action that lengthens and delays the discovery process causes the discovery process to take longer. An end to the discovery process is required in order to proceed to trial. Therefore, delays in required discovery production ipso facto delay the trial. 12 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 183

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

11 FISA and the FAA contain the same fundamental due process limitations on government protection of classified information when prosecuting criminal defendants. 50 U.S.C. §§ 1806(f), 1825(g).

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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, the record demonstrates that the government made several choices that led to

avoidable delays in bringing Muhtorov to trial without advancing persuasive justification

why these delays were necessary. I proceed to amplify the four points listed above.

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

12 The majority views this issue as waived (Op. at 139-40, 139 n.74), but the defense was not privy to the classified record which provides the basis for asserting this argument on appeal. Specifically, as to the prejudice and delay resulting from this decision, to hold an issue waived when defense counsel is denied access to the evidence necessary to advance an argument is both unfair and directly contrary to our duty to stand in the shoes of defense counsel in this case. See United States v. Amawi, 695 F.3d 457, 471 (6th Cir. 2012). The majority characterizes as speculative my evaluation that the governmental decisions to oppose cleared counsel and the reasons for its delay in commencing the CIPA § 4 process caused a delay of the trial. (Op. at 140 & n.75.) My inability to quote the classified record in support of this evaluation in this unclassified opinion, however, does not render it speculative. This is particularly so in light of the government’s failure to provide any explanation for the 46-month delay in beginning its CIPA § 4 process. These conclusions are fully supported in the classified record. As it grappled with the competing interests of justice and national security, the district court suggested that having a cadre of cleared defense counsel available who

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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

would have full access to classified information would make it easier for district courts to navigate these cases. I agree and would join in the district court’s suggestion that such a standby list of cleared counsel should be authorized. 13 See United States v. Cronic, 466 U.S. 648, 655 (1984) (“The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. It is that very premise that underlies and gives meaning to the Sixth Amendment. It is meant to assure fairness in the adversary criminal process.” (cleaned up)); see also Strickland v. Washington, 466 U.S. 668, 685 (1984) (“[A] fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.”); United States v. Nobles, 422 U.S. 225, 230-31 (1975) (“We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.” (quotation omitted)).

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prosecutors. In other serious terrorism prosecutions, the government has approved full

access to classified evidence for cleared defense counsel, with no apparent detriment to

national security. See, e.g., United States v. El-Mezain, 664 F.3d 467, 523 (5th Cir.

2011); In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 118 (2d Cir.

2008). Providing access to properly cleared counsel under appropriate protective orders

authorized by CIPA is one mechanism available for the government to balance its

responsibilities to protect classified information and provide a speedy trial that comports

with due process.14

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

14 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.

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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

Sixth Amendment duty to provide effective assistance of counsel. Normally we afford

great deference to defense counsel’s decisions on what issues to pursue at trial, Strickland

v. Washington, 466 U.S. 668, 688-89 (1984), but the defense cannot make informed

decisions on what issues to litigate if they are deprived of the evidence on which to base

those decisions. Just as we cannot ignore the legitimate interests of the government to

protect classified information in conducting the Barker balancing, we similarly cannot

ignore the concomitant responsibility of defense counsel to provide effective assistance

of counsel under the Sixth Amendment. To the extent that the defense was unable to

engage in the normal winnowing of issues because of the redacted or summarized nature

of the discovery (and as in this case, its late provision), any delay arising from good faith

motions should not be weighed against Muhtorov. Although a criminal defendant may be

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required to make hard strategic choices in the context of a criminal trial, the

government’s heads-I-win, tails-you-lose approach to this issue cannot comport with due

process.15 See United States v. Jackson, 390 U.S. 570, 582 (1968); Simmons v. United

States, 390 U.S. 377, 394 (1968); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir.

2004); Bertrand v. United States, 467 F.2d 901, 902 (5th Cir. 1972). “Although a

defendant may have a right, even of constitutional dimensions, to follow whichever

course he chooses, the Constitution does not by that token always forbid requiring him to

choose. The threshold question is whether compelling the election impairs to an

appreciable extent any of the policies behind the rights involved.” McGautha v.

California, 402 U.S. 183, 213 (1971). As explained above, Muhtorov’s right to a speedy

trial is specifically affirmed in the Constitution to ensure that “a presumptively innocent

person should not languish [in prison] under an unresolved charge.” Betterman, 136 S.

Ct. at 1614. Muhtorov cannot be compelled to forfeit that right in order to gain access to

discovery to which he is constitutionally entitled in order to present a defense. As the

Supreme Court has forcefully explained, it is “intolerable that one constitutional right

should have to be surrendered in order to assert another.” Simmons, 390 U.S. at 394.

15 In a January 2016 CIPA ex parte hearing, at which point the defendants had been incarcerated for four years, the district court excoriated the government for the lack of discovery provided to the defendants, and declared that it would not conduct a “Kafkaesque” trial, in which the defendants were unaware of the charges they faced or the evidence against them. I agree that the government must sometimes make a choice between the utmost protection of classified information and the prosecution of a defendant in a case that implicates national security. If the underlying evidence for a charge is so sensitive that the government cannot abide by the Speedy Trial Clause, it is free to forego that particular prosecution. 18 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 189

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 to

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summaries to fulsome translations of defendants’ statements.”16 It is apparent that it was

not only the government’s prioritization and allocation of translator assets that affected

the orderly expedition of this case, but that additional delays occurred when a key

government translator was determined to have editorialized the translations and been less

than forthcoming in the subsequent government investigation. The government had

complete control over the translation process and any delay arising from the

government’s prioritization of translation tasks and its allocation of resources with which

to accomplish its constitutionally required discovery should be weighed against the

government. Instead my colleagues use this very excuse to rule against the defendant.17

16 The government’s production was limited. As the majority notes, it produced only 1000 calls and 4718 pages of discovery between April 2012 and March 2013, and in the entire four years between filing the case and the end of August 2016, the government had produced only 6270 pages of written discovery, including the 1000 recorded phone conversations, and copies of the computers and phones seized from the defendants at their arrests. Thus, in the second through fourth year of Muhtorov’s incarceration, the government produced only an additional 1552 pages of discovery, and produced no discovery at all for one year of this period. I cannot agree that this record demonstrates diligence in discovery production. 17 I do not fault the trial court for this embarrassing delay. In March 2017, the district court stated that much of this delay was “attributable to an overlapping muddle of translation issues, tactical decisionmaking, and classified information, . . . which resulted in an opaque and painstakingly slow discovery process, one which has surely inured to Defendants’ detriment.” Despite what the court described as the “herculean” task of reviewing thousands of communications and other information generated in the investigation and prosecution of Muhtorov, the court noted that there “have been delays and obfuscation in the disclosure of the materials, not all of which have been beyond the control of the government,” and “translation and evaluation for Brady material has often taken a back seat to the search for inculpatory material and that the government’s standard for what constitutes Brady material has not always aligned with mine.” As described above, on March 13, 2017, immediately prior to denying the defendants’ speedy trial motion, the district court stated it was “gravely concerned about the delays

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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.”

and the slow—and maybe even deliberately slow—pace” of the government’s translation effort. 18 These charges added claims related to Jumaev’s son and an alleged conspiracy with Muhtorov and others to provide his services as “material support for a terrorist conspiracy to kill persons abroad” via Sheikh Buhoriy’s madrassa in Istanbul, Turkey. 19 This nine-month delay was followed immediately by the one-year delay caused by the government’s eve-of-trial disclosures to Jumaev. Because Muhtorov was required to be tried after Jumaev, Muhtorov’s trial was delayed until May 2018 (an additional two months) as a direct result of the government’s belated discovery, raising the total months of government-caused delay from these two decisions to 23 months for Muhtorov. 21 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 192

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

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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 belated commencement of its CIPA § 4 evaluation, its third

superseding indictment, its eve-of-trial disclosure that delayed the trials of both Jumaev

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and Muhtorov, and its slow provision of constitutionally required discovery, I must

attribute the delay under the second Barker factor heavily against the government.

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 Fourth Amendment and Article III

analyses. My respected colleagues avoid difficult constitutional questions by accepting

as true unsupported factual assertions that the government makes in its brief on appeal.

In my view, our due process obligations receive the majority’s boot. My colleagues

conclude that advance approval of § 702 procedures by the FISC satisfies the Article III

requirement of a comprehensive presentation of adverse legal interests in a concrete case

or controversy. In other circumstances, I would remand to allow the district court to

further develop the record to allow us to properly decide these issues. However, given

my conclusion that Muhtorov’s conviction should be vacated on speedy trial grounds,

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such action would be unnecessary.20 I further discuss these two issues in Parts A and B

below.

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 Fourth Amendment by querying § 702 data prior to the traditional FISA

warrant application. (Op. at 24.) In normal circumstances, appellate courts do not and

should not rely on unsupported party assertions in their briefs to resolve disputes of fact.

Given our affirmative duty to “place ourselves in the shoes of defense counsel, the very

ones that cannot see the classified record, and act with a view to their interests,” United

States v. Amawi, 695 F.3d 457, 471 (6th Cir. 2012), it is particularly extraordinary that

my colleagues should blindly accept and rely on such an assertion. Although they assert

that they have confirmed this representation through a “careful and independent view of

the classified record,” (Op. at 24 & n.13), that they feel able to do so is surprising. The

classified record is bereft of supporting evidence and the affirmative representation which

the majority claims to have confirmed is directly contradicted by other government

representations in its classified brief.

20 The majority comments that I do not “question the district court’s denial of [Muhtorov’s] requests for the government’s application materials for traditional FISA and Section 702 surveillance or for disclosure of possible novel surveillance methods.” (Op. at 106 n.54.) Such a lack of questioning does not arise from agreement. Rather, it proceeds from my conclusion that the government’s denial of a speedy trial controls this case. Moreover, as I am in dissent, silence does not constitute agreement. I choose not to engage in a tit for tat with the majority as to the remainder of their analysis. 25 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 196

I agree with the majority’s conclusion that the incidental collection of Muhtorov’s

communications with a target of § 702 surveillance is likely reasonable under the Fourth

Amendment, but I find unacceptable the majority’s decision to accept the government’s

assertion that no pre-warrant querying took place in light of the complete dearth of

supporting evidence in the record. Querying stored § 702 data has “important Fourth

Amendment implications, and those implications counsel in favor of considering

querying a separate Fourth Amendment event that, in itself, must be reasonable.” United

States v. Hasbajrami, 945 F.3d 641, 670 (2d Cir. 2019). By accepting the government’s

bare assertion to resolve this dispute of fact, the majority avoids the thorny constitutional

issues that querying presents. I would not blind myself to the constitutional implications

raised by a “vast body of information” that may be “simply stored in a database, available

for review by request from domestic law enforcement agencies solely on the speculative

possibility that evidence of interest to agents investigating a particular individual might

be found there.” Id. Unfortunately, the current record does not permit us to engage this

question in a meaningful way. Under my resolution of the speedy trial issue, it would be

unnecessary to remand for the district court to further develop the record to ascertain

whether the government relied in part on evidence derived from querying of raw § 702

data in deciding to pursue a FISA warrant against Muhtorov. The majority declines to

remand and proceeds on an inadequate record.

Our Fourth Amendment analysis must begin with an acknowledgement that CIPA

procedures fundamentally alter the structures of our adversarial process and place courts

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in a position as uncomfortable as it is unique. Through passage of CIPA, Congress has

mandated that we step out of our traditional role as neutral arbiters overseeing adversarial

presentation of issues and step into a role much closer to that of an inquisitor. As

explicitly acknowledged by the government, a district court’s role in cases involving

CIPA is to act as “standby counsel for the defendants.” Similarly, on appeal “we must

place ourselves in the shoes of defense counsel, the very ones that cannot see the

classified record, and act with a view to their interests.” Amawi, 695 F.3d at 471. The

judiciary is neither institutionally suited nor resourced to fulfill this role.21 Yet this is the

role that Congress has assigned us. Our colleague on the trial bench said it well when he

described acting in this role as feeling like “an illegitimate child at a family reunion.”

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 passes to

21 This comment is not to disparage the district court’s valiant attempt to perform this function, only to highlight that shoehorning responsibilities that are at odds with our traditional mode of doing justice into the trial of a criminal case creates significant difficulties, not the least of which is the inadequacy of the record on appeal. 22 Any other approach would make a mockery of our criminal justice system. We cannot require a defendant to specifically challenge the use of certain evidence when he

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us to conduct a thorough review of the record defense counsel cannot see. And if the

record, unilaterally created by the government, does not contain sufficient evidence to

resolve the issues, then the conviction cannot be sustained, as the inadequacies of the

record are the direct result of the absence of adversarial testing of the evidence created by

the CIPA procedures chosen by the government. Our decision must, as always, be based

on the information available in the record, and we cannot rely on post hoc assertions in

appellate briefing to establish key facts that are otherwise unsupported.

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

does not have access to that very evidence to investigate its origins fully or to test its admissibility. To conclude that a defendant may mount a derivative evidence challenge to the use of § 702-derived evidence only if he has access to the evidence—which he does not—would transform the Fourth Amendment inquiry into a dark comedy. 23 As we recently explained, “[t]he exclusionary rule generally applied in Fourth Amendment cases requires courts to suppress not only evidence obtained as a direct result of an illegal search or seizure but also evidence later discovered and found to be derivative of an illegality.” United States v. Suggs, 998 F.3d 1125, 1141 (10th Cir. 2021) (cleaned up). As is particularly relevant in this case, “this so-called ‘fruit of the poisonous tree’ doctrine does not demand a particularly tight causal chain between the illegal search and the discovery of the evidence sought to be suppressed.” Id. at 1142.

28 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 199

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.25

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,”

24 The majority accepts the government’s unsupported assertion that no upstream collection occurred in this case. The record evidence does not disclose whether “upstream” collection was involved in Muhtorov’s investigation, although the prosecution at least purported to provide a response denying its involvement before the district court. This assertion does not amount to evidence. However, because the FBI does not receive unminimized upstream collection or have access to databases containing this information, its involvement is less likely. Access to minimized and subsequently unmasked upstream information, however, remains unresolved in this case, as no evidence in the record excludes it. See 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 Report). 25 My colleagues accuse me of “join[ing] Mr. Muhtorov in speculat[ion]” and engaging in “conjecture about extra-record occurrences.” (Op. at 23 n.12, 29 n.14.) These comments demonstrate that the majority pays mere lip service to the requirement that we “place ourselves in the shoes of defense counsel . . . and act with a view to their interests.” Amawi, 695 F.3d at 471. They cite to non-national security cases to limit their role in this appeal. The majority fails to recognize that Muhtorov has been unable to fully challenge government assertions that he has never seen. In these circumstances, the burden is on the government to demonstrate the constitutionality of its actions, and the burden passes to us to hold the government to account when it fails to do so.

29 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 200

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

26 The majority chides me for “speculating” that information obtained by the querying mandated by FBI procedures contributed to the decision to seek the traditional FISA application. (Op. at 23 n.12.) Rather than misapprehending whether the traditional FISA evidence was derived from querying (Op. at 23 n.12), my reading of the classified record underscores that is the exact issue that cannot be resolved. We know that after receiving only a small number of interceptions that led the FBI to open a new national security investigation, the FBI “would have” queried its databases using identifiers associated with Muhtorov and would have had unfettered access to any responsive information, including raw § 702 data. More intelligence reports periodically followed. Following these reports, the FBI submitted “some” of the universe of intercepted communications to support the traditional FISA application. (Op. at 20 (citing Aplee. Br. at 11).) Yet, the FBI officials preparing the traditional FISA application would have been aware of all, not “some” of the intercepted communications, and the record is silent on whether this universe arose from the querying mandated by the FBI procedures. Similarly, although the statute did not mandate record-keeping requirements concerning queries of U.S. persons as a distinct category until 2018, the minimization procedures applicable at the time of the investigation into Muhtorov required the maintenance of records of all search terms used to query § 702 databases, which would have included searches using identifiers associated with Muhtorov. See PCLOB Report, at 58-59 (“FBI minimization procedures also permit the FBI to query unminimized Section 702–acquired data[,] . . . [and requires the FBI] to maintain records of all terms used to query content.”). The classified record is in accord with the requirements that are described in the PCLOB Report. Far from requiring the government to prove a negative (Op. at 23 n.12), given this record-keeping requirement, the government’s failure to provide evidence to disprove that such querying occurred mandates the conclusion that we cannot resolve the derivative evidence question on appeal. Although we normally require some showing from the defense to place the origin of the government’s evidence at issue, Muhtorov was deprived of information necessary to make that showing. Requiring the government to establish in the trial record that its evidence did not derive

30 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 201

instance, the FBI did not follow its standard operating procedure of querying § 702 data

when opening a national security investigation. The majority does not engage with this

contradiction, and there is no explanation in the record. Relying on an unsupported

assertion in an appellate brief to resolve a disputed issue of fact is inappropriate in any

circumstance, but to credit a factual assertion that is squarely rebutted by an official

government report is unacceptable.

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 FISA application—from which it appears the bulk of

the evidence at trial derived. Because those communications were incidentally collected

during the government’s surveillance of the foreign target of the § 702 surveillance, the

government argues, they were unaffected by any querying that may have occurred. But

this argument subsumes the question we must resolve—was the decision to seek

traditional FISA authority influenced by any querying of § 702 databases by the FBI

using identifiers associated with Muhtorov? Or by information collected in other

intelligence surveillance programs? And if it was the result of querying of § 702

databases, was the specific querying conducted reasonable under the Fourth Amendment

from querying, particularly in light of its own “FISC-approved” minimization procedures which required record-keeping of any such queries, is far from speculative; instead it is merely “plac[ing] ourselves 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. 31 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 202

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

27 See Gov’t Br. at 11 (“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.”) (citations omitted) (emphasis added). 28 Even on painstaking review of the classified record, the sequence of collection of communications and resulting intelligence reporting is hopelessly muddled. The district court shared this view and ordered the government to produce a classified chronology to resolve these issues. It was filed on November 10, 2015. Unfortunately, this chronology fails to provide clarity, and we are left to guess at the answers to critically important questions in the derivative evidence inquiry, e.g., which communications the government received at which times, whether and when querying occurred, and what information motivated the government to seek traditional FISA authorization.

32 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 203

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 PCLOB Report at 59. Perhaps as a result, 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 or results. Without

that information, it is impossible for us, acting as standby defense counsel, to resolve the

derivative evidence question. See Wong Sun v. United States, 371 U.S. 471, 487-88

(1963). The government’s reframing of the issue—as requiring only our evaluation of

the limited basket of intercepted communications it chose to submit to the FISC—borders

on disingenuous, given the breadth of the derivative evidence inquiry. Deprivation of

liberty based on the government’s mere say-so is antithetical to established constitutional

order.

29 FISC, Section 702 2018 Certification, 18 Oct. 2018, at 62, 66 (“In 2017, NCTC, the CIA, and NSA collectively used approximately 7500 terms associated with U.S. persons to query content information acquired under Section 702 . . . while during the same year FBI personnel on a single system ran approximately 3.1 million queries against raw FISA-acquired information, including section 702-acquired information.” (citations omitted)). The classified record discloses the failure of the government to introduce any evidence that it complied with the record-keeping responsibilities imposed by the minimization procedures applicable at the time of the investigation into Muhtorov, procedures upon which the majority premises its Fourth Amendment reasonableness determination. As the government acknowledges, the classified record in this case does not specifically indicate whether the FBI conducted querying after it learned from reporting that Muhtorov was helping the IJU. See United States Classified Brief at 11. 33 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 204

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 § 702 information, and

that the record is devoid of any information from which we can determine that evidence

introduced at trial was not derived from querying or other § 702 collection involving

Muhtorov. The government may have been able to present evidence that none of these

aspects of the investigation affected the decision to seek traditional FISA authorization,

but it did not do so. Although I conclude that the record as it exists would not allow a

thorough judicial inquiry as to these problematic features, the solution is not to agree with

the government’s artificially narrow framing of the relevant issues. Under CIPA, the

government may choose to limit the evidence before the court at trial or on appeal, but, if

it does so, it bears the potential consequences of its choice, including failing to sustain a

conviction it has achieved. We should not relieve the government of the consequences of

its choice by accepting as true its unsupported factual assertions on appeal.

I briefly address one final Fourth Amendment concern: the troubling implications

of failure to conduct separate constitutional analyses of the collection and subsequent

querying or use of stored § 702 data.

My colleagues rely on the plain view and incidental overhear doctrines to

countenance the use of millions of § 702-acquired communications that are stored in vast

databases. This reliance risks fundamentally undermining heretofore reasonable

expectations of privacy of U.S. persons whenever they communicate with another person

located abroad. Although the majority avoids discussion of the probable querying that

34 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 205

occurred in this case, nothing in the majority opinion prevents its application of the plain

view and incidental overhear doctrines from being extended to post-collection querying

and use of stored § 702 data. According to the majority’s analysis, once a

communication is collected “lawfully” (because the “target” of the § 702 collection is a

person without constitutional protections), subsequent “view” of that communication has

no Fourth Amendment implications for the U.S. person who is one of the communicants.

But U.S. persons do not lose their protected privacy interests when they communicate

with foreigners abroad. See United States v. Ramsey, 431 U.S. 606, 623-24 (1977); Ex

parte Jackson, 96 U.S. 727, 733 (1877). The vast scope of this incidental collection and

the minimally fettered government access to databases where these communications are

stored for years or decades creates the potential for the evisceration of Fourth

Amendment protections for U.S. persons who communicate with persons abroad. See

Hasbajrami, 945 F.3d at 670 (“[T]he storage and querying of [Section 702-acquired]

information raises challenging constitutional questions . . . .”).

In 2011, “the government was annually acquiring over 250 million Internet

communications, in addition to telephone conversations” under § 702, and the “current

number is significantly higher.” PCLOB Report at 116. The sheer amount of

communications collected by the government overwhelms the majority’s analogy of the

subsequent use of these communications to “use of seized evidence to prepare affidavits

35 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 206

for warrants to obtain additional evidence for trial.” (Op. at 50-51.)30 “Seizure” of § 702

evidence is far different from evidence seized as a result of normal criminal processes.

Section 702 surveillance requires no crime scene from which to collect evidence.

Instead, it authorizes broad collection for foreign intelligence purposes that often involve

no crime at all. In refusing to treat subsequent use of § 702 communications as a separate

Fourth Amendment event, the majority’s approach does not distinguish between the

separate Fourth Amendment events of seizure (§ 702 collection) and search (querying).31

30 The majority quotes an excerpt of Hasbajrami to support the proposition that subsequent use of § 702-collected information “is not a separate Fourth Amendment event.” (Op. at 50, 51 n.21 (“[B]oth the collection of such communications and the dissemination of information from such collection about potential criminal actions within the country to domestic law enforcement are reasonable under the Fourth Amendment.” 945 F.3d at 667-68.”).) Utilization of this excerpt is misleading. Despite the majority’s implication that its analysis accords with that of the Second Circuit, the analysis of Hasbajrami stands in stark contrast with that of the majority: “[L]awful collection alone is not always enough to justify a future search.” Hasbajrami, 945 F.3d at 670. Hasbajrami proceeds to explain, over several pages, why § 702 data exemplifies “the need for additional probable cause or reasonableness assessments to support a search of information or objects that the government has lawfully collected.” Id.; see also id. at 670-73. In this analysis, the Second Circuit relied in part on Riley v. California, 573 U.S. 373 (2014), discussed below. 31 My colleagues attempt to create a distinction between the “querying” of § 702 data and its “use.” (Op. at 50, 51 n.21.) In doing so, the majority asserts that the “mere ‘use’ of already collected Section 702 communications without reliance on querying does not trigger the Fourth Amendment.” (Id. at 50.) That may be so, and it is what the majority assumes occurred in this investigation. But the record fails to establish that the § 702 information, which was available a legally significant period of time after the initiation of the investigation to the officials seeking the traditional FISA authorization, did not arise, at a minimum in part, from queries of § 702 information. And as discussed above, given the applicable minimization procedures, it should. Critically, the majority ignores that “use” of a communication first requires law enforcement to know of its existence. For § 702 evidence, this knowledge of existence is obtained either through unmasked intelligence reporting or through querying. As

36 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 207

This approach was rejected by the Supreme Court in Riley v. California, 573 U.S. 373

(2014). In Riley, the government analogized a lawfully seized cell phone to a container

that could be searched at will. Recognizing a privacy interest in the vast amount of

information stored in a cell phone, the Court rejected this analogy, distinguishing

between the seizure of a cell phone incident to the arrest of its owner and a subsequent

search of its contents, and required the government to obtain a warrant prior to that

explained above, the record in this case does not establish that the information leading the FBI to seek a traditional FISA application, the relevant inquiry on appeal, was not obtained through querying. Using the majority’s analogy, law enforcement can only “use” a piece of seized evidence to prepare affidavits for warrants to obtain additional evidence for trial, because it has already documented the limited number of items of seized evidence to reference in their warrant application. The 250,000,000+ communications that are collected annually under § 702, however, are not documented in real time. Instead, they are stored, often without processing, in vast lakes of data, and their contents are most often obtained through querying. See PCLOB Report at 59, 116. In effect, rather than citing a known piece of evidence in a subsequent warrant application, querying is akin to fishing in enormous lakes of data to see what information one can catch using various search terms as “bait.” The subsequent use of the results of these searches to seek traditional FISA authorization “raises challenging constitutional questions.” Hasbajrami, 945 F.3d at 670. Under the majority’s approach, law enforcement may routinely fish for Americans’ data without first bothering to obtain a license. Although the majority accepts the governmental assertion that the § 702 communications were not derived through queries (evidence of which is lacking in the record), nothing prevents its use of the plain view and incidental overhear doctrines from being extended to cases in which querying did occur. After all, communications obtained through querying have been “collected” under § 702, just the same as those at issue in this case. What protects these “lawfully collected communications,” (Op. at 50), from subsequent querying and use? The majority does not explain. The better course in this case is to follow the lead of the Second Circuit and to remand for a determination of whether querying occurred. That evidence is absent from this record, just as it was in Hasbajrami. See Hasbajrami, 945 F.3d at 673.

37 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 208

search.32 Id. at 393-403. Section 702 surveillance raises analogous privacy implications.

If anything, the Fourth Amendment questions posed by § 702 are even greater than those

addressed in Riley because § 702 communications may legally be seized without any

showing of probable cause, reasonable suspicion, or even any suspicion of criminal

activity.

Treating querying as a separate search under the Fourth Amendment akin to

targeted searches of seized computers or cellular telephones, as recognized by the Second

Circuit, may be the only constitutional salvation available. See, e.g., Hasbajrami, 945

F.3d at 672-73; see also Riley, 573 U.S. at 386; United States v. Sedaghaty, 728 F.3d

885, 912 (9th Cir. 2013). Although this analysis is not possible on the current record, we

must take care to avoid unintentionally eliminating U.S. persons’ Fourth Amendment

protections any time they communicate with a person outside of the country. See United

States v. Tinnie, 629 F.3d 749, 754 (7th Cir. 2011) (Hamilton, J., dissenting) (“The

erosion of Fourth Amendment liberties comes not in dramatic leaps but in small

steps . . . .”).

32 I am confused by the majority’s assertion that my analysis misapplies Riley. (Op. at 42, n.18, 51 n.21.) Under Riley, a subsequent search of the contents of seized evidence, in that case communications and data contained within a cell phone, required a warrant. As the court held in Riley, mere seizure does not authorize search of contents. Moreover, to the extent that the majority contends that no search occurred prior to the FISA authorization, their argument once again relies on the government’s unsupported assertion that § 702 communications were not derived through queries. In my review of the classified and unclassified record, I find no evidence either testimonial or otherwise that supports either the government’s assertion in its brief, or the majority’s reliance on the governmental assertion in its brief, that no querying took place. 38 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 209

The majority concludes that, in annually approving the § 702 program

certifications, targeting, and minimization procedures, the FISC does not issue an

advisory opinion impermissible under Article III. Because I understand the case or

controversy requirement of Article III to require adverseness, I cannot agree.

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 Article III, to review the § 702 program de novo in the context

of the actual collection and use of the communications in that case.

The Constitution explicitly limits the judicial power exercised by federal courts to

deciding “cases” or “controversies.” See U.S. Const. art. III, § 2. “No principle is more

fundamental to the judiciary’s proper role in our system of government than the

constitutional limitation of federal-court jurisdiction to actual cases or controversies.”

Raines v. Byrd, 521 U. S. 811, 818 (1997). As the Supreme Court has repeatedly

explained, the case or controversy requirement “limit[s] the business of federal courts to

questions presented in an adversary context and in a form historically viewed as capable

of resolution through the judicial process.” Flast v. Cohen, 392 U.S. 83, 95 (1968). An

Article III court may not pass judgment on “a difference or dispute of a hypothetical or

abstract character,” for its constitutional power only extends to disputes that are “definite

and concrete, touching the legal relations of parties having adverse legal interests.”

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (1937) (quotations omitted)

39 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 210

(emphasis added); see also Valley Forge Christian College v. Americans United for

Separation of Church & State, 454 U.S. 464, 471 (1982) (“The constitutional power of

federal courts cannot be defined, and indeed has no substance, without reference to the

necessity to adjudge the legal rights of litigants in actual controversies.” (quotation

omitted)). As the Court recently explained, “[u]nder Article III, a federal court may

resolve only a real controversy with real impact on real persons.” TransUnion LLC v.

Ramirez, 141 S. Ct. 2190, 2203 (2021) (quotations omitted).

The second function of the case or controversy limitation on the constitutional

authority on Article III courts is “to assure that the federal courts will not intrude into

areas committed to the other branches of government.” Flast, 392 U.S. at 95. Article III

“ensur[es] that the Federal Judiciary respects the proper—and properly limited—role of

the courts in a democratic society” and “[i]f a dispute is not a proper case or controversy,

the courts have no business deciding it, or expounding the law in the course of doing so.”

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quotation omitted). In

addition to precluding judicial intrusion into areas constitutionally reposed in the

legislature or executive, the case or controversy requirement protects the judiciary from

being improperly coopted into roles not appropriately judicial. See Wellness Int’l

Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1955 (2015) (Roberts, C.J., dissenting)

(“Because the structural provisions of the Constitution protect liberty and not just

government entities, the separation of powers does not depend on whether the

encroached-upon branch approves the encroachment.” (quotations omitted)).

40 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 211

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 the

federal law of justiciability is that the federal courts will not give advisory opinions.”

Flast, 392 U.S. at 96. Advisory opinions, as “advance expressions of legal judgment,”

have long been viewed as outside the confines of Article III. United States v. Fruehauf,

365 U.S. 146, 157 (1961). The Supreme Court has “long understood” that the case or

controversy limitation in Article III, requiring a “live dispute between adverse parties, . . .

prevent[s] the federal courts from issuing advisory opinions.” Carney v. Adams, 141 S.

Ct. 493, 498 (2020). The prohibition against advisory opinions both ensures that courts

do not exceed their “properly limited” role in our tripartite system of government,

DaimlerChrysler Corp., 547 U.S. at 341 (quotation omitted), and that courts do not pass

upon “issues which remain unfocused” because they are presented without “that clear

concreteness provided when a question emerges precisely framed and necessary for

decision from a clash of adversary argument exploring every aspect of a multifaced

situation embracing conflicting and demanding interests.” Fruehauf, 365 U.S. at 554

(emphasis added).

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 Fourth Amendment.” Clapper v. Amnesty Int’l USA, 568 U.S. 398,

421 (2013) (citing 50 U.S.C. § 1881a(a), (c)(1), (i)(2), (i)(3)). The FISC’s constitutional

determinations, though, involve no adverse parties before the court and are thus

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unmoored from any case or controversy. Instead, Congress and the Executive rely on

§ 1881a to provide a judicial imprimatur for an on-going Executive national security-

foreign intelligence surveillance program. Absent adverse parties litigating adverse legal

interests, the FISC’s annual assessments are the epitome of an impermissible advisory

opinion. Under the current statutory scheme, no one is “call[ing] upon” the FISC “to

adjudge the legal rights of litigants in actual controversies.” Baker v. Carr, 369 U.S. 186,

204 (1962) (quotation omitted). Instead, the government submits certifications and

targeting and minimization procedures to the FISC, without identifying non-U.S. persons

who are to be targeted under § 702 or U.S. persons whose communications may be

incidentally collected, and the FISC reviews the government’s submission only as to

whether the proposed procedures are “reasonably designed” to meet the statutory

requirement. See PCLOB Report at 24-31. It is hard to see how this advance review of

the Fourth Amendment reasonableness of, among other things, the government’s

minimization procedures is anything other than a hornbook example of an impermissible

advisory opinion that falls outside of the Article III judicial power. The FISC is no more

empowered by the Constitution than any other Article III court “to decide . . . abstract

propositions, or to declare . . . principles or rules of law” outside of resolving a concrete

issue presented by parties with adverse legal interests. California v. San Pablo & T. R.

Co., 149 U.S. 308, 314 (1893). There is no adverse legal interest to the government’s

submission of proposed targeting and minimization procedures, and the FISC opinions

therefore amount “to no more than an expression of opinion upon the validity of the acts

in question.” Muskrat v. United States, 219 U.S. 346, 362 (1911).

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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 Fourth Amendment rights, or

however necessary this judicial oversight might be seen to restrain Executive action,

convenience and necessity33 cannot overcome Article III’s bedrock requirement that

federal judicial power be limited to resolving cases and controversies.

33 I am reminded of William Pitt’s speech in the House of Commons decrying the proposed consolidation of powers in the government of India:

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.

William Pitt, Speech, House of Commons, Nov. 1783.

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The majority concludes that the FISC’s § 702 determinations are not advisory

opinions because they “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.” (Op. at 63.) These factors do not create the required adverse legal interests that

are necessary for a case or controversy under Article III. Nor can the FISC’s § 702

determinations meet Article III’s requirement of a “live dispute between adverse parties”

because in those proceedings there is no party adverse to the government.34

34 In rejecting the Article III requirement of adverse legal interests, the majority relies upon a 2015 article by Professors James Pfander and Daniel Birk arguing that adverse parties are not required under Article III based on certain historical instances of what they term the “non-contentious” jurisdiction of federal courts. (Op. at 59 n.29.) I find much more persuasive Professor Anne Woolhandler’s analysis refuting Pfander and Birk’s examples, and concluding that they instead demonstrate the long-standing requirement of adverse legal interests for Article III jurisdiction. See Anne Woolhandler, Adverse Interests and Article III, 111 Nw. U.L. Rev. 1025 (2017). The majority relies on the existence of ex parte procedures to demonstrate that Article III jurisdiction does not require adverseness. (Op. at 59 n.29.) In doing so, the majority truncates the requirement of adverse legal interests to instances “when the court’s decision ‘will have real meaning.’” (Op. at 59 n.29 (citing INS v. Chadha, 462 U.S. 919, 939-40 (1983)). Misapprehending my concern, the majority distinguishes Article III’s core requirement from “the ‘prudential’ preference for the concrete adverseness, ‘which sharpens the presentation of issues.’” (Op. at 59 n.29 (quoting United States v. Windsor, 570 U.S. 744, 760 (2013)).) This prudential judicial preference, however, presupposes “adequate Art. III adverseness.” Windsor, 570 U.S. at 759 (quoting Chadha, 462 U.S. at 939 (1983)). It is the lack of the adverseness required under Article III that renders the FISC opinions advisory. The majority’s listing of the government, the ISP companies, and the individuals to be surveilled as parties for which § 702 proceedings will have “real meaning” ignores that at the time of the FISC approvals, no individuals to be surveilled are identified. Their interests are no more different or concrete than those of every other American whose communications might be collected. Thus, the § 702 proceedings

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In Secretary of State Thomas Jefferson’s 1793 letter to the Supreme Court,

Jefferson sought specific answers to legal questions on the meaning of United States

treaties and laws arising from the war between England and France. These questions too

required the application of legal criteria to concrete facts. In one question, Jefferson

asked, “May we, within our own ports, sell ships to both parties, prepared merely for

merchandise? May they be pierced for guns?” Erwin Chemerinsky, Federal Jurisdiction

48 (8th ed. 2021). Had the Court answered, its answers too would have had immediate

real-world consequences and binding legal force.35 But instead, in one of the first

conducted by the FISC are advance advisory approvals of the government’s proposed procedures. The constitutional flaw in the annual FISC § 702 approvals and certifications is that they are issued absent adverse legal interests, and therefore are advisory opinions which are outside the permissible jurisdictional reach of Article III. The majority mischaracterizes Muhtorov’s argument in his reply brief, as “not object[ing] to the non-adversarial nature of Section 702 proceedings.” (Op. at 58 n.29 (citing Aplt. Reply Br. at 24).) Its chosen sentence fragment, however, is taken out of context. In opposing the government’s attempt to analogize § 702 proceedings to “individualized review of warrant and wiretap applications,” Muhtorov states: “The problem is not that the FISC’s review is one-sided, but that it is a free-floating review of general procedures, divorced from any actual case.” Exactly. Far from a concession that adverse legal interests are not required by Article III, Muhtorov was rebutting the government’s analogy of § 702 surveillance approvals by the FISC to the far different ex parte procedures involved in warrant applications, applications which Muhtorov acknowledged did constitute a case or controversy. Muhtorov was making the argument in this section of his reply brief that adverse legal interests are required for an Article III case or controversy, and that absent those adverse legal interests, FISC opinions are impermissible advisory opinions. 35 My colleagues’ proposed distinction, that “President Washington would have been free to ignore the Supreme Court’s advice without immediate legal consequence,” (Op. at 63 n.31), rings hollow. So too the Executive here. There is ample evidence that the Executive routinely fails to comply with the FISC-approved procedures without facing any sanction. See, e.g., 2020 FISC Certification Opinion, 39-60 (Nov. 18, 2020), available at

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articulations of the prohibition against advisory opinions, the Supreme Court declined to

answer, because “[the] three departments of the government . . . being in certain respects

checks upon each other, and our being judges of a court in the last resort, are

consideration which afford strong arguments against the propriety of our extra-judicially

deciding the questions alluded to.” Id. (emphasis added).

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

https://www.intelligence.gov/assets/documents/702%20Documents/declassified/20/2020 _FISC%20Cert%20Opinion_10.19.2020.pdf; Redacted [Oct. 2018 FISC Opinion], 402 F. Supp. 3d 45, 76-82 (FISC 2018), aff’d in part sub nom. In re DNI/AG 702(h) Certifications 2018, 941 F.3d 547 (FISCR 2019). More concerning under Article III, if President Washington did not ignore the Supreme Court, he could have produced its “advice” as a definitive pronouncement on the legality of his actions in any subsequent legal challenge, just as the government does here. The government briefs are replete with assertions that the FISC approvals are a legal determination that § 702 surveillance is consistent with the Fourth Amendment. Just as Washington may have argued when challenged in a subsequent actual case or controversy, the Executive argues in this appeal that the FISC decisions establish the constitutional reasonableness of its § 702 activities. Just as with Jefferson’s letter, the Executive’s request for advance judicial blessing of its procedures under § 702 seeks an impermissible advisory opinion. 46 Appellate Case: 18-1366 Document: 010110616083 Date Filed: 12/08/2021 Page: 217

presence of drug dogs and sought an advance determination from an Article III court that

such use of a drug dog at a sobriety checkpoint would not violate the Fourth Amendment.

Were the court to bless in advance the proposed presence of the dog, this approval would

have the same real-world effects and binding legal force as the FISC authorizations, but

no one would seriously perceive this as anything other than an impermissible advisory

opinion.

The majority’s Article III analysis avoids perhaps the most fundamental limitation

of Article III: its grant of judicial power only extends to a case or controversy “involving

real and substantial rights, between the parties to the record.” Little v. Bowers, 134 U.S.

547, 557 (1890). Given the absence of adverse parties or adverse legal interests, I cannot

conclude the FISC’s programmatic oversight of the surveillance program involves

adverse parties or a case or controversy under Article III.

Although I conclude that the FISC’s annual reviews violate Article III, I do not

believe this necessarily invalidates the entire § 702 program. Instead, I would insist that

the Fourth Amendment reasonableness determination be accomplished de novo when an

actual case is presented to an Article III court. This determination must be a true de novo

evaluation, with no deference given to the FISC determinations of whether the § 702

program is “consistent with the statute and the Fourth Amendment” as required under

§ 1881a(j)(2)(C), (j)(3).36 Similar to my Fourth Amendment analysis above, it is

36 The majority’s assertion that this proposed remedy “is precisely what courts— including the district court and this court in the present case—already do when a criminal defendant seeks suppression of Section 702-derived evidence,” (Op. at 75-76 n.37), is

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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

vacated, I would remand for further development of the record.

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 Sixth Amendment.

Muhtorov retained his right to a speedy trial throughout, even though his case implicated

consequential issues of national security.

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.

disingenuous. The majority concludes it was reasonable to collect Muhtorov’s communications “during the course of otherwise lawful Section 702 surveillance.” (Op. at 37.) It later explains that this surveillance was lawful only if it was conducted under “pre-authorization or a relevant exception.” (Op. at 60.) Given this, any claim that the majority does not, like other courts, rely on and grant deference to FISC determinations is specious. The continued constitutional viability of the § 702 surveillance program absent the FISC’s advisory opinions, upon which much of the government’s assertions of Fourth Amendment reasonableness rest, is a significant constitutional question. However, faced as we are with a criminal prosecution resting upon § 702 evidence, we must evaluate the reasonableness of any searches de novo. Unfortunately, as I explain above, the record is inadequate to allow us to conduct this analysis. 48