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United States v. Kokayi

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

March 13, 2019




         Defendant Seitu Sulayman Kokayi ("Kokayi") was charged with two counts of coercion and enticement of a juvenile to engage in unlawful sexual activity in violation of 18 U.S.C. § 2422(b) and one count of transfer of obscene materials to a minor in violation of 18 U.S.C. § 1470 [Dkt. No. 29] after the Federal Bureau of Investigation ("FBI") became aware that he was having sexual conversations with a female minor via text messaging and FaceTime.

         On November 9, 2018, pursuant to 50 U.S.C. §§ 1806(c) and 1825(d), the government provided notice to Kokayi and the Court that it "intends to offer into evidence, or otherwise use or disclose in any proceedings in [this case], information obtained or derived from electronic surveillance and physical searches conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 CFISA'), as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829." Dkt. No. 33. The underlying FISA applications and orders are classified. On December 17, 2018, without having been able to see the relevant FISA applications, defendant filed a Motion to Suppress Electronic Surveillance Obtained Without a Warrant and Without a Finding of Probable Cause of Criminal Conduct, and for Disclosure of the FISA Applications to Defense [Dkt. No. 43] ("Def. Mem."). Defendant argues that the underlying FISA applications and other materials should be disclosed to defense counsel so that counsel can provide effective assistance, emphasizing that the relevant statutory provisions permit such disclosure under certain circumstances. In addition, defendant claims that the government's FISA evidence should be suppressed because the defendant was not an "agent of a foreign power," the FISA applications were likely predicated on protected First Amendment activities, normal investigative techniques could have been employed, and the required minimization procedures may not have been followed.

         The government has filed a classified opposition brief and the relevant FISA materials have been submitted under seal for in camera, exparte review [Dkt. No. 66] ("Gov. Opp'n"). The government concurrently filed an affidavit signed by the Attorney General claiming that disclosure of the FISA materials or an adversary hearing concerning them would harm the national security of the United States. Dkt. No. 66-1. The affidavit also explains that pursuant to 50 U.S.C. §§ 1806(f) and 1825(g) the Court must conduct an in camera, exparte review of the documents relevant to defendant's motion. Substantively, the government argues that "the electronic surveillance and physical search at issue in this case were both lawfully authorized and lawfully conducted in compliance with FISA" and that disclosure to the defendant is not authorized "because the Court can make an accurate determination regarding legality without disclosing the FISA materials or portions thereof." Gov. Opp'n 3.


         FISA was enacted in 1978 to establish a framework under which the executive branch "could conduct electronic surveillance for foreign intelligence purposes without violating the rights of citizens." United States v. Hammoud, 381 F.3d 316, 332 (4th Cir. 2004) (en banc), vacated on other grounds. 543 U.S. 1097 (2005).[1] Under FISA, the Chief Justice of the United States designates eleven federal district court judges to sit as members of the Foreign Intelligence Surveillance Court ("FISC"). See 50 U.S.C. § 1803(a)(1). Subject to certain exceptions, [2] the executive branch must receive advance approval from a FISC judge for all electronic surveillance of a foreign power or its agents. Hammoud, 381 F.3d at 332. To secure such approval, the government must file an ex parte, under seal application with the FISC. 50 U.S.C. § 1804. For electronic surveillance, [3] this application must be approved by the Attorney General and include, among other things, the identity or a description of the target of the surveillance and a statement of the facts and circumstances supporting probable cause to believe that "(A) the target of the electronic surveillance is a foreign power[4] or an agent of a foreign power;[5] and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power," as well as a detailed description of the information sought and the types of communication or activities subject to surveillance. See id. § 1804(a)(2)-(3), (5). In addition, the application must contain a certification from a high-ranking executive branch official stating that "the certifying official deems the information sought to be foreign intelligence information," "that a significant purpose of the surveillance is to obtain foreign intelligence information," and "that such information cannot reasonably be obtained by normal investigative techniques." Id. §§ 1804(a)(6), 1823(a)(6).[6]

         A FISC judge may issue an order authorizing FISA surveillance only upon concluding "that there is probable cause to believe that the target of the surveillance is a foreign power or agent of a foreign power, that proposed minimization procedures are sufficient under the terms of the statute, that the certifications required by § 1804 have been made, and that the certifications are not clearly erroneous." United States v. Squillacote, 221 F.3d 542, 553 (4th Cir. 2000). The order authorizing FISA surveillance must "describe the target, the information sought, and the means of acquiring such information" and also "set forth the period of time during which the electronic surveillance or physical searches are approved, which is generally ninety days or until the objective of the electronic surveillance or physical search has been achieved." United States v. Rosen, 447 F.Supp.2d 538, 544 (E.D. Va. 2006).

         "[O]nce the electronic surveillance or the physical search has been approved, the government must apply the specific minimization procedures contained in the application to the FISC." Id. at 550. Although the specific minimization procedures contained in each application are classified, the statute requires that such minimization procedures be "reasonably designed in light of the purpose and technique of the particular surveillance, 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." 50 U.S.C. §§ 1801(h), 1821(4)(A).

         As explained by the Foreign Intelligence Surveillance Court of Review:

By minimizing acquisition. Congress envisioned that, for example, where a switchboard line is tapped but only one person in the organization is the target, the interception should probably be discontinued where the target is not a party to the communication. By minimizing retention. Congress intended that information acquired, which is not necessary for obtaining, producing, or disseminating foreign intelligence information, be destroyed where feasible. Furthermore, even with respect to information needed for an approved purpose, dissemination should be restricted to those officials with a need for such information.

In re Sealed Case. 310 F.3d 717, 731 (Foreign Int. Surv. Ct Rev. 2002) (emphasis in original) (internal quotation marks omitted). But 50 U.S.C. § 1801(h)(3) expressly states that the government is not required to minimize information that is "evidence of a crime." "Although FISA is chiefly directed to obtaining 'foreign intelligence information,' the Act specifically contemplates cooperation between federal authorities collecting [FISA material] and federal law enforcement officers" and "explicitly allows the use of evidence derived from FISA surveillance and searches in criminal prosecutions." Rosen. 447 F.Supp.2d at 544. If the government intends to use FISA evidence in the criminal trial of an "aggrieved person," it must notify the aggrieved person and the court of this intent. 50 U.S.C. §§ 1806(c), 1825(d). An aggrieved person "may move to suppress the evidence obtained or derived from such electronic surveillance on the grounds that the information was unlawfully acquired; or the surveillance was not made in conformity with an order of authorization or approval." Id. §§ 1806(e), 1825(f). Upon such a motion, "if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States," the district court "shall" review the relevant FISA materials in camera and ex parte "to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." Id. §§ 1806(f), 1825(g). The court may disclose the FISA materials or portions thereof to the aggrieved person "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance." Id. § 1806(f): see also Id. § 1825(g).

         In the Fourth Circuit, the district court's review of FISA materials is de novo. Squillacote. 221 F.3d at 554, and, given that "review is exparte and thus unaided by the adversarial process," the review should be both "searching and conducted with special care," Rosen, 447 F.Supp.2d at 545. But, just as the FISC applies a "clearly erroneous" standard to the specification, 50 U.S.C. §§ 1805(a)(4), 1824(a)(4), the district court applies a "strong presumption of veracity and regularity" to the FISA application, United States v. Hassan, 742 F.3d 104, 139 (4th Cir. 2014). As with probable cause to believe that criminal activity is occurring, probable cause to believe that the target of FISA surveillance is an agent of a foreign power "is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules." Hammoud, 381 F.3d at 332 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). In evaluating probable cause, a judge must "'make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit..., there is a fair probability' that the search will be fruitful." Id. (alteration in original) (quoting Gates. 462 U.S. at 238). Stated differently, "[p]robable cause means more than bare suspicion but less than absolute certainty that a search will be fruitful." Id. (quoting Mason v. Godinez, 47 F.3d 852, 855 (7th Cir. 1995)).


         As a threshold procedural matter, defense counsel contends that he needs access to the FISA material to develop suppression arguments. Def. Mem. 1. This argument is unpersuasive. FISA expressly states that a court "shall" review FISA materials exparte and in camera "if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States." 50 U.S.C. §§ 1806(f), 1825(g). The Attorney General has submitted such an affidavit [Dkt. No. 66-1], and it is not for the Court to second-guess the determination of a top executive branch official with access to a broad range of intelligence that disclosure of the FISA materials would be harmful to national security. Cf. C.I.A. v. Sims,471 U.S. 159, 180 (1985) ("[I]t is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence-gathering process."). FISA's exparte and in camera review procedures are not, as defendant claims, "antithetical to the adversary system that is the hallmark of American criminal justice." Def. Mem. 17. To the contrary, they are congressionally authorized, and their constitutionality has been affirmed by the Fourth Circuit, United States v. Pelton,835 F.2d 1067, 1075-76 (4th Cir. 1987) ("We find the provisions of FISA to be 'reasonable both in relation to the ...

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