United States District Court, S.D. California
UNCLASSIFIED ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OBTAINED PURSUANT TO THE FISA WIRETAP
JEFFREY T. MILLER, District Judge.
THIS MATTER is before the Court on Defendant's Motion to Suppress Evidence Obtained Pursuant to the FISA Wiretap. For the reasons set forth below, it is ORDERED that the Defendant's motion is DENIED.
On April 23, 2013, a federal grand jury sitting in this district returned a four count indictment charging Abdiaziz Hussein with one count of conspiracy to structure financial transactions, in violation of 18 U.S.C. § 371, and three counts of structuring financial transactions for the purpose of evading recordkeeping requirements, in violation of 31 U.S.C. § 5324(a)(3) (Docket No. 1).
On June 10, 2013, the Government provided Defendant with notice pursuant to 50 U.S.C. § 1806(c) and 1825(d) that the United States "intend[ed] to offer into evidence, or otherwise use or disclose in any proceedings in this case information obtained or derived from electronic surveillance or physical searches conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended, 50 U.S.C. § 18011811 and 1821-1829." (Docket No. 9). On September 19, 2013, Defendant moved to compel the Government to disclose, inter alia, whether any of the electronic surveillance it intended to use at trial was obtained or derived from surveillance authorized pursuant to Title VII of FISA ("the FISA Amendments Act" or "FAA"), 50 U.S.C. §1881a et seq. (Docket No. 26)("Motion for Notice Pursuant to 50 U.S.C. §1881e(a)"). On October 11, 2013, Defendant was informed that the Government intends to offer into evidence or otherwise use or disclose information obtained or derived only from electronic surveillance pursuant to FISA. (Docket No. 30). On November 23, 2013, the Court denied Defendant's Motion for Notice Pursuant to 50 U.S.C. §1881e(a).
Thereafter, on December 5, 2013, this matter came before the Court on Defendant's Motion to Suppress Evidence Obtained Pursuant to the FISA Wiretap. Defendant's motion seeks: (1) the "disclosure of the underlying applications for FISA warrants;" (2) the suppression of "all interceptions made and electronic surveillance conducted pursuant to [FISA];" and (3) "an evidentiary hearing on the issues because the FISA surveillance was obtained and conducted in violation of FISA and the First and Fourth Amendments to the U.S. Constitution." (Docket No. 37). Although Defendant's motion presents several arguments to support his contention that FISA-acquired evidence in this case be suppressed, he presents two primary arguments: (1) that access to FISA-related materials is necessary to litigate suppression issues and is required in order to conform with due process of law; and (2) that FISA-derived evidence should be suppressed.
In response to Defendant's motion, on February 7, 2014, the Government filed: its Classified Memorandum in Opposition to Defendant's Motion to Suppress Evidence Obtained Pursuant to the FISA Wiretap; and a classified appendix, which includes the applications, orders, and other materials relating to the electronic surveillance (hereinafter, "FISA materials"), and other classified submissions. (Docket No. 42). The Government also filed an Unclassified version of its Memorandum in Opposition to Defendant's Motion to Suppress Evidence Obtained Pursuant to the FISA Wiretap. (Docket No. 45).
To begin the FISA process, an application approved by the Attorney General containing information that FISA requires is filed ex parte and under seal with the Foreign Intelligence Surveillance Court ("FISC") (50 U.S.C. § 1804(a)). FISA requires that the FISC make specific findings before entering an ex parte order, (50 U.S.C. § 1805(a)), which specifically identifies the targeted facilities and directs how the surveillance is to be conducted. (50 U.S.C. § 1805(c)(1)-(2)). The Court has reviewed the Defendant's motion and the Government's response and the classified appendix, including the FISA materials. After a thorough in camera, ex parte review and based on its analysis of all the materials submitted to the Court, the Court finds that:
(1) Defendant Hussein has standing to bring this Motion to Suppress as an aggrieved person, (50 U.S.C. § 1801(k));
(2) The President has authorized the United States Attorney General to approve applications for electronic surveillance for foreign intelligence information and purposes;
(3) Each application was made by a federal officer and approved by the Attorney General, (50 U.S.C. § 1805(a)(1));
(4) Each application contained facts establishing probable cause to believe that the target of the electronic surveillance was at the time an agent of a foreign ...