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United States v. Young

United States District Court, E.D. Virginia, Alexandria Division

May 9, 2017

UNITED STATES,
v.
NICHOLAS YOUNG, Defendant.

          MEMORANDUM OPINION

          Leonie M. Brinkema, United States District Judge

         Before the Court is defendant's Motion to Suppress Items Unconstitutionally Seized from his Residence, Backpack, Pickup Truck, and Worplace [sic] Locker ("Motion to Suppress") [Dkt. No. 69] and Motion for Reconsideration of March 10, 2017 Order ("Motion for Reconsideration") [Dkt. No. 84]. The Motion to Suppress has been fully briefed, oral argument has been held, and for the reasons stated in open court and more fully developed in this Memorandum Opinion, the motion has been denied. Mar. 10, 2017 Order [Dkt. No. 78]. Defendant's Motion for Reconsideration has also been fully briefed and, because oral argument will not assist the decisional process, the motion has been resolved on the papers. For the reasons stated in this Memorandum Opinion, the Motion for Reconsideration will be denied.

         I. BACKGROUND

         The Criminal Complaint Affidavit

         On August 2, 2016, a magistrate judge issued an arrest warrant for the defendant based on a criminal complaint alleging that, from October 2014 through July 28, 2016, Nicholas Young ("Young" or "the defendant") attempted to provide material support to a designated foreign terrorist organization ("FTO"), specifically the Islamic State of Iraq and the Levant ("ISIL"), in violation of 18 U.S.C. § 2339B ("Criminal Complaint"). [Dkt. No. 1]. The complaint was supported by an affidavit signed by FBI Special Agent David Martinez ("Criminal Complaint Affidavit"), who stated that al-Qa'ida in Iraq ("AQI"), also known as ISIL and the Islamic State of Iraq and al-Sham ("ISIS"), has been a designated FTO since October 15, 2004 and that Sunni extremists as well as foreign fighters from Western countries have been traveling to Syria, usually through Turkey, to join ISIL. [Dkt. No. 2] ¶¶ 5, 7.

         The affidavit described how Young, a police officer with the Washington Metropolitan Area Transit Authority ("WMATA") since 2003, had been interviewed in September 2010 by Federal Bureau of Investigation ("FBI") agents regarding his connection to Zachary Chesser, who had been arrested in 2010 for attempting to provide material support to al-Shabaab, another designated FTO. Id. ¶¶ 8, 9. A few months later, in January 2011, Young told an undercover law enforcement officer ("UCO") that he was wary of surveillance, frequently took the battery out of his cell phone when he wanted to go somewhere to talk, and had several "burner phones." Id. ¶ 10, 16. Young also told the UCO that he once aimed an AK-47 style rifle out of his window while scanning for law enforcement, that he was angry with the FBI for contacting his family and co-workers before interviewing him about Chesser, and that he was stockpiling weapons to use against law enforcement if they ever attempted to search his home. Id. ¶ 10, 15, 19. According to the UCO, Young said if someone ever betrayed him, their head would be in a cinder block at the bottom of Lake Braddock. Id. ¶ 11. In addition, Young spoke of kidnapping and torturing the FBI Special Agent who questioned him. Id. ¶ 15. On March 21, 2011, Young and the UCO met with Amine El Khalifi, who was later charged with attempting to use a weapon of mass destruction (an improvised explosive device or "IED") to detonate himself in the U.S. Capitol Building. Id. ¶ 13, 22. Over a meal, they discussed the fundamentals of marksmanship and Young and the UCO cautioned Khalifi to be careful about his online posts, as Chesser had recently been arrested for online activity. Id. ¶ 14. The three met again on April 1, 2011, during which Khalifi spoke of how shaheeds (which the affidavit translates as "martyrs; in this context, those who die while conducting violent jihad") are sent to the highest levels of heaven and Young said that one of the greatest shaheeds is a convert who fights the kaffirs [infidels or unbelievers] for the Muslims." Id. ¶ 17. At another meal with the UCO and Khalifi on April 4, 2011, Young said that he would never talk about the things he was going to do; instead people would find out after it happened. Id. ¶ 19.

         In an interview with the FBI in September 2011, Young admitted that he had traveled to Libya twice in 2011 and had been with rebels attempting to overthrow the Qaddafl regime. Id. ¶ 20. Baggage searches by Customs and Border Protection on Young's outbound flights revealed that he carried body armor, a Kevlar helmet, and several other military style items. Id.

         In 2014, Young met on 20 separate occasions with an FBI Confidential Human Source ("CHS"), who was posing as a U.S. military reservist of Middle Eastern descent who was eager to become more religious and leave the military as a result of having to fight against Muslims during his deployment to Iraq. Id. ¶ 24. In August 2014, the CHS told Young he wanted to join ISIS and Young advised him to watch out for informants and avoid discussing his plans with others. Id. ¶ 25. Young also gave him suggestions on how to travel to ISIS territory without being detained by law enforcement. Id. On September 11, 2014, Young showed the CHS a pro-ISIL video on YouTube, id ¶ 26, and throughout September and October gave him additional advice on how to evade authorities while joining ISIL, id ¶ 26-28. During an October 2, 2014 conversation, Young suggested that the CHS contact representatives of ISIL through social media using a burner phone and advised him on the types of gear to pack. Id. ¶ 28. As part of a conversation recorded by the CHS on October 24, 2014, Young and the CHS discussed the CHS's imminent departure from the United States and his cover story. Id. ¶ 33. Earlier, Young had offered to send a text a few weeks after the CHS left asking whether he was back from his vacation in the hope that the text would be found by law enforcement if they started investigating the CHS. Id. ¶ 32. On October 25, 2014, Young and the CHS went to a FedEx Office store and set up email accounts specifically for communicating with each other. Id. ¶ 34.

         The CHS led Young to believe that he left the United States and succeeded in joining ISIL. Id. ¶ 35. In reality, the CHS had no further contact with Young and all communications between Young and the CHS's email account were between Young and FBI personnel posing as the CHS, referred to as "UC02." Id. Young texted the CHS on November 20, 2014 saying, "Salam. Hope you had a good vacation." That same day, the UC02 (posing as the CHS) sent an email to Young confirming that he had "made it to dawlah, " another name for ISIL. Id. ¶¶ 2, 36. On December 17, 2014, Young emailed the CHS, congratulating him for making it to ISIL. Id. ¶ 37. Another email from Young on January 9, 2015 approvingly referenced the murders of the Charlie Hebdo magazine staff in Paris. Id. ¶ 38. Between February and July 2015, the two continued to email and Young told the CHS to let him know if he met any of the "Abo Salem Suhada Brig" mujahedeen with whom Young said he served when he was in Libya. Id. ¶ 39. The FBI understood "Abo Salem Suhada Brig" to refer to the Abu Salim Martyrs Brigade, a militia group in Libya with "possible links to al-Qaeda." Id.

         On March 21 and 22, 2015, while Young was in email communication with the CHS, he attended an off-duty weapons training hosted by another WMATA officer. Id. ¶ 41. The officer observed Young bring a large amount of ammunition to the training and operate four firearms ranging from an Egyptian AK-47 to a .45 caliber pistol. Id. Young stated that he owned at least three other guns, including a World War II-era Russian Negant rifle, and said he wanted to buy a crate of Negant rifles to hand out if things went bad. Id. On June 1, 2015, Young was interviewed at his residence by law enforcement regarding an allegation of domestic violence. Id. ¶ 42. During the interview, Young admitted that he had dressed up as "Jihadi Kohn" for Halloween in 2014, periodically dressed up as a Nazi, had a Nazi eagle tattooed on his neck, and collected Nazi memorabilia. Id.

         On June 15, 2015, Young emailed the CHS to ask him to get advice from his commanders on how Young could move his money out of the United States, noting that law enforcement officials were probably watching his bank account. Id. ¶ 40.

         Law enforcement interviewed Young again on December 3, 2015, ostensibly in connection with an investigation into the whereabouts of the CHS. Id. ¶ 43. Young stated that the CHS had left for a vacation in Turkey approximately one year before. Id. He also said he had not been in contact with the CHS since October 2014 and denied talking with the CHS about Syria. Id. Law enforcement asked if he had the CHS's email address and Young supplied one but it was not the email address through which Young had been in contact with the CHS. Id. Two days later, on December 5, 2015, Young was interviewed by law enforcement again and said essentially the same thing. Id. ¶ 44.

         On January 14, 2016, the UC02 (posing as the CHS) emailed Young and said, among other things, that the CHS's mother had been questioned about the CHS's whereabouts. Id. ¶ 45. Young replied on February 17, 2016, explaining that his response was delayed because he had to be careful about his communications, and sharing that he too had been questioned by law enforcement about the CHS. Id. That same day, Young replied to an earlier email from the CHS and commented on the Paris attacks where 130 people were killed and 400 injured, which had occurred just days earlier, saying the attackers were misunderstood and this gave the West a taste of what Muslims experience every day. Id. ¶ 46.

         The UC02 (still posing as the CHS) sent Young an email on April 18, 2016, stating that in the future Young could communicate with him through a particular mobile messaging application and giving Young his account name (referenced herein as "CHS's MM Account"). Id. ¶ 47. On July 14, 2016, CHS's MM Account received a message from an account set up through the same messaging application. Id. ¶ 48. Young was the only person to whom the FBI had provided the address for the CHS's MM Account. Id. ¶ 49. The following day, on July 15, 2016, Young emailed the CHS notifying him that Young had messaged him "on the app." Id. For these reasons, the affidavit refers to the account used to send the July 14, 2016 message as "Young's First MM Account." Id.

         On July 18, 2016, the CHS messaged Young through Young's First MM Account and told Young that he could support ISIS by supplying gift cards, which ISIS could use to set up mobile messaging accounts to talk to individuals in the West seeking to join ISIS. The message also explained that ISIS was no longer receiving gift card codes from individuals in the United Kingdom who had previously supplied them and had only a few codes remaining. Id. ¶¶ 47-50. Young responded on July 21, 2016, asking why the cards were no longer being sent by the "brothers in UK" and saying "Inshallah more codes will come your way." Id. ¶ 51. On July 28, 2016, the CHS received a message from a mobile messaging account not previously used by Young. Id. ¶ 52. The message included twenty-two gift card codes. Id. ¶ 53. The CHS messaged Young's First MM Account saying "[m]ay Allah reward you for your efforts" and received a response from the account that sent the codes saying, "Glad it came through, " and explaining that the device used to send that message was going to be destroyed. Id. ¶¶ 54-55. The affidavit refers to the account used to send the codes as Young's Second MM Account. Id. ¶ 53.

         The affidavit represented, "Based on the foregoing, there is probable cause to believe that, between in or about October 2014, and on or about July 28, 2016, in Fairfax County in the Eastern District of Virginia, Nicholas Young knowingly attempted to provide material support and resources to a designated [FTO], namely [ISIL], in violation of 18 U.S.C. § 2339B." Id. ¶ 56.

         The Search Warrants

         Along with authorizing the arrest warrant based on that criminal complaint, the same magistrate judge authorized a search warrant, supported by a separate affidavit by Special Agent David Martinez ("Residence Affidavit"), Def. Ex. 1 [Dkt. No. 69-3] at 5-12, for the search of Young's residence ("Residence Warrant"). Id. at 1. According to the search warrant application, the purpose of the search was to find evidence of attempt to provide material support to a designated foreign terrorist organization, in violation of § 2339B. Id. at 4. Unlike other search warrants described below, the Residence Warrant also sought evidence related to two additional offenses: obstruction of justice, in violation of 18 U.S.C. § 1512, and false statements, in violation of 18 U.S.C. § 1001. Id. "Attachment A" to the warrant described the ten categories of items to be seized. Id. at 3. These categories included:

1. All records and documents, however maintained, that concern the international transfer of money or assets, or the procurement of any item that may have been involved in or in support of terrorist or violent acts, including photographs, correspondence, and safe deposit keys.
2. All records and documents, however maintained, referring or relating to identities or aliases of Nicholas Young.
3. All records and documents, however maintained, referring or relating to past travel or planned travel by Nicholas Young, including airline tickets, credit card bills, bank records, checks, itineraries, passports, and visas.
4. Any and all records, documents, invoices and materials that concern any accounts with any internet service provider; 5. All records, documents, and paraphernalia, however maintained, relating to ISIL/ISIS (or any of its aliases), other designated terrorist groups, or any individual or group engaged in terrorism or terrorist activity, or communications with or involving such groups and/or individuals.
6. All contact lists, however maintained (including but not limited to names, addresses, phone numbers, Internet accounts or usernames, photographs or other identifying information) of individuals associated with Nicholas Young and/or foreign terrorist groups.
7. All records and documents, however maintained, referring or relating to the purchase or use of gift cards, encryption programs, or applications that may be used for clandestine or covert communications.
8. All records and documents, however maintained, referring or relating to any storage facilities, safety deposit boxes, mailboxes, or other locations where any of the foregoing items may be located.
9. Any and all firearms, ammunition, body armor, military-style equipment, or explosive materials or their precursors.
10. Any communications or electronic device capable of storing any of the items to be seized, including but not limited to all cellular phones, smart phones, electronic data processing and storage devices, computers and computer systems, keyboards and other associated peripherals, Central Processing Units, external and/or internal drives, portable drives, external and internal storage devices such as magnetic tapes and/or disks or diskettes, together with system documentation, operating logs, software and manuals, passwords, test keys, encryption codes or similar codes that are necessary to access computer programs, and the stored contents of the items described in this paragraph, which may be searched for only the items listed above.

Id.

         In establishing probable cause for the search, the Residence Affidavit incorporated all of the representations in the Criminal Complaint Affidavit, Residence Aff. ¶ 1, and supplied the following additional facts: An individual who was formerly a close friend of Young's, referred to as "CW, " consented to the search and copying of CW's electronic devices, which included numerous communications with Young as well as photographs. Id. ¶ 5. The CW had been at Young's residence on many occasions and reported that Young maintained several firearms in a gun safe in his residence. Id. According to the affidavit, "Young once asked CW about the chemical components of gun powder, but that CW refused to answer the question for fear that Young would attempt to make something in CW's residence." Id.

         The affiant represented that based on his training and experience he had reason to believe that "individuals generally keep important documents and financial records in their home or office" and because Young did not have a permanent office, "he likely kept his important records at this residence." Id. ¶ 9. The Residence Affidavit also explained that "records relating to income, assets, and expenditures, ... are likely to be relevant to his purchase of gift cards for transmission to CHS and ISIL in July 2016, as well as assets he sought to send overseas in 2015. Such records are also likely to be relevant to his contacts with terrorist groups in the past, and his past travel or attempts to travel overseas to fight on behalf of terrorist groups." Id. Because Young set up an email account for the CHS that would be difficult to trace, used a burner phone to transmit the gift card codes, and used two mobile messaging accounts to communicate with the CHS's MM Account, the affidavit represented that Young "uses electronic devices and is sophisticated about computer matters." Id. ¶ 11. The affidavit then listed the types of information that are usually stored on electronic devices, including data regarding deleted files, and requested authority to seize Young's electronic devices and conduct off-site searches of these devices. Id. ¶¶ 14-15.

         Young was arrested on August 3, 2016 for violation of 18 U.S.C. § 2339B, attempting to provide material support to a designated terrorist group. [Dkt. No. 8]. After Young's arrest, a K-9 officer and dog did a sweep of the exterior of his personal vehicle, a Dodge Dakota truck ("Dodge truck"), and the dog gave a positive alert for hazardous material. Gov. Ex. 3, [Dkt. No. 75-3] ¶ 12. The vehicle was then inventoried and transported to a secure location on a flatbed truck. Id. The inventory of the Dodge truck's contents included "one Kel-Tec .380 firearm, an empty magazine, six hollow point rounds, and $1, 065 in cash." Id. When the flatbed truck arrived at the secure location, the driver noticed a cell phone lying on the flatbed of the truck below and between the rear wheels of Young's Dodge truck. Id. ¶ 13. It was a black AT&T ZTE Go Phone matching the packaging found in Young's backpack. Id.

         On August 11, 2016, a different magistrate judge approved four search warrants for (1) the contents of Young's backpack, including a black Casio G'z One flip-phone, and a black Amazon tablet ("Backpack Warrant"), Gov. Ex. 3 [Dkt. No. 75-3]; (2) Young's Dodge truck ("Truck Warrant"), Gov. Ex. 4 pkt. No. 75-4]; (3) a black AT&T ZTE GoPhone found on the bed of the flatbed truck that had transported Young's Dodge truck on August 3, 2016 ("GoPhone Warrant"), Gov. Ex. 5 pkt. No. 75-5]; and (4) Young's workplace locker at the Franconia/Springfield Metropolitan Transit Police Department's District 2 substation ("Locker Warrant"), Gov. Ex. 6 [Dkt. No. 75-6]. Each warrant application represented that the search was related to a violation of 18 U.S.C. § 2339B, attempting to provide material support to a designated FTO, and described the items to be seized in "Attachment A, " which mirrored the Residence Warrant's ten categories of items to be seized. See Gov. Ex. 3 at 12; Gov. Ex. 4 at 12; Gov. Ex. 5 at 12; Gov. Ex. 6 at 12.

         The four search warrants were supported by a single combined affidavit by FBI Special Agent Nicholas Caslen ("Caslen Affidavit"), Gov. Ex. 3 at 2-11, which expressly incorporated the Criminal Complaint Affidavit, id ΒΆ 3. The Caslen Affidavit added that Young was arrested at WMATA Headquarters on August 3, 2016 and that during a search incident to arrest officers found a folded piece of paper bearing the name of the mobile messaging account provider and the ...


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