Filed Date: Jan. 19, 2012
Closed Date: Oct. 3, 2022
Clearinghouse coding complete
Introduction & Importance of this Case
In early 2012, the federal government initiated criminal prosecution of Jamshid Muhtorov (January 19) and Bakhityor Jumaev (March 14) in the U.S. District Court for the District of Colorado. Both defendants were charged with providing, conspiring to provide, and attempting to provide material support and resources to a foreign terrorist organization, in violation of Title 18, U.S.C. § 2339B. Defendants were represented by the Federal Public Defender (Muhtorov) and counsel appointed under the Criminal Justice Act (Jumaev), as well as the American Civil Liberties Union (ACLU) of Colorado. After close to six years of litigation, both men were convicted.
This case is in the Clearinghouse because the parties litigated the constitutionality of Section 702 of the FISA Amendments Act (FAA). While Section 702 is the focus of this summary, more details on the underlying criminal prosecution are provided at the end. This case is also the first time the government notified a defendant of the government's intent to use information gained from a FISA warrantless wiretap after a 2013 DOJ internal policy change. The question of whether or not the 2008 FISA Amendments Act is constitutional is expected to ultimately reach the Supreme Court. All the cases regarding criminal challenges to warrantless wiretapping are available in the Criminal cases challenging FISA surveillance special collection.
In addition to challenging the FAA, defendants also challenged evidence acquired through surveillance under other provisions of the Foreign Intelligence Surveillance Act (FISA); these issues are addressed briefly at the beginning.
Initiation of the Criminal Case
Muhtorov, who spent most of his life in Uzbekistan as a human rights activist but resettled in Colorado in 2007 as a political refugee, was accused of providing material support to the Islamic Jihad Union (IJU), an extremist organization. The FBI investigated Muhtorov's communications with an IJU-affiliated website, which allegedly include committing his allegiance to IJU and arranging to send funds to IJU.
On January 19, 2012, Muhtorov was charged by complaint and arrested at O'Hare Airport a few days later, while attempting to travel overseas. This case involves "numerous intrusive" searches of his computer, email accounts, personal residence, and personal effects, including interceptions of his communications.
On March 14, 2012, the government filed a complaint against Jumaev, a friend of Muhtorov who resided in Pennsylvania. He was arrested on March 15 on the same charges. In particular, the government alleged that he pledged support for the IJU and sent Muhtorov $300 intended for the IJU.
Shortly after Muhtorov's initial appearance in Colorado on February 2, 2012, the government notified defendants that it intended to use and offer into evidence information obtained through electronic surveillance and physical search conducted pursuant to FISA. Notice was made to Muhtorov on February 7, 2012 and later to Jumaev on April 4, 2012. Muhtorov moved to suppress the use of FISA-acquired evidence for purposes of his bail hearing on February 8, 2012 and for bail on February 13, 2012. The government responded on February 10, claiming that a detention hearing could be held using FISA-derived information while FISA suppression litigation was pending.
On February 15, 2012, Magistrate Judge Michael E. Hegarty order Muhtorov detained pending trial. In doing so, Magistrate Judge Hegarty found that when a defendant moves to suppress FISA-acquired information which the government intends to use in a hearing, the court must determine whether the surveillance was lawfully authorized and conducted under FISA § 1806(f). However, a contradictory provision, 18 U.S.C. § 3142(f), states that the rules of admissibility do not apply to evidence used for determining pretrial detention. Magistrate Judge Hegarty ultimately relied on § 3142(f), as applied in United States v. Hightower, 203 F.3d 836 (10th Cir. 2000), which permitted reliance during detention on FISA material even if it was ultimately determined to be inadmissible.
Muhtorov appealed the Magistrate Judge's detention order to the district court on March 1, 2012. District Judge John L. Kane denied that motion on April 11, 2012.
Meanwhile, Jumaev was arrested on March 15, 2012 and made his first appearance in the District of Colorado on April 2, 2012. The government gave Junaev notice that it intended to use FISA evidence against him at trial on April 4, 2012. On April 12, 2012, Magistrate Judge Boyd N. Boland ordered Jumaev detained pending trial.
Litigation Over FISA
On May 25, 2012, Muhtorov filed a supplement to his initial motion to suppress FISA-acquired evidence during the trial. On July 30, 2012, Jumaev filed several FISA related motions, including a motion (1) to adopt Muhtorov's motion to suppress, (2) for disclosure of FISA materials, and (3) for leave to file a Franks motion after receipt of the government's discovery. Judge Kane denied Muhtorov's motion to suppress and Jumaev's FISA-related motions on September 24, 2012. After conducting an in camera review, Judge Kane found that the FISA motions failed because the facts supported a finding of probable cause to believe that defendants were agents of a foreign power under FISA.
Issues relating to Section 702 of the FAA arose on October 25, 2013 when the government filed a notice of intent to use information obtained under the FAA, § 1881(a), against Muhtorov. The government did not provide such notice to Jumaev.
Unlike traditional FISA, Section 702 of the FAA does not require the government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Further, it does not require the government to specify the nature of the surveillance or the particular location of where the electronic surveillance will occur. When the government makes an FAA application to the Foreign Intelligence Surveillance Court ("FISC"), it simply asks the court to approve the overall targeting and minimization procedures that will guide the government's surveillance. Until recently, the government had a policy of concealing from criminal defendants any connection between the FAA and their prosecutions. When the government's policy of withholding notice of FAA surveillance came to light after Clapper v. Amnesty International, 133 S. Ct. 1138 (2013), the DOJ changed its policy and affirmed its notice obligation. Muhtorov was the first person charged as a defendant in a criminal prosecution to receive notice of FAA surveillance.
After the initiation of the case, the parties engaged in discovery, and the court addressed a number of issues related to detention, a protective order, the Classified Information Procedure Act, and translation of documents. On October 25, 2013 the government filed a notice of intent to use FAA-obtained information as to Muhtorov, at which point the parties began litigating Section 702.
On January 29, 2014, Muhtorov filed a motion to suppress FAA-obtained evidence and a motion for discovery. He challenged the constitutionality of Section 702, claiming that such monitoring of his communications violated both the warrant and reasonableness requirements of the Fourth Amendment. He also claimed that Section 702 violated Article III, because it authorized the FISC to issue mass acquisition orders in the absence of any case or controversy and review the legality of government procedures in the abstract. Muhtorov also moved for discovery to permit him to understand the role that the FAA played in the government's investigation so he could challenge the specific manner the FAA was used in his case. Muhtorov claimed that he was entitled to such discovery under FISA and the Due Process clause of the U.S. Constitution.
As Jumaev had not been provided notice that the government intended to use FAA-obtained evidence against him, on October 28, 2013 he moved for notice of whether the government intended to use such evidence. The government responded on November 19 that it would have provided notice if it intended to use FAA-obtained information. Jumaev filed a reply on January 10, 2014, claiming that there were grounds to believe that FAA-derived evidence was used against him. On January 30, 2014, he moved to adopt Muhtorov's motion to suppress.
On May 9, 2014, the government filed a response to Muhtorov's motion to suppress. Defense counsel was provided with a redacted, unclassified version of the response. On May 22, 2014, the government filed its classified response in camera, ex parte, and under seal. In the unclassified response, the government claimed as follows: that Jumaev lacked standing to challenge the FAA; that court review should be limited to an as applied (rather than facial) challenge; that 702 was constitutional as applied; that government actions were lawfully authorized and conducted in accordance with the FAA; that defendants' discovery requests should be denied to the extent they seek disclosure of FAA related materials; and that the good faith exception to exclusionary rule applied.
On June 12, 2014, Muhtorov moved to require the government to disclose or provide defense counsel access to its classified pleading and objected to ex parte proceedings. On June 18, Jumaev filed a similar motion to disclose. On July 2, the government filed a combined response to the motions for disclosure, claiming that the FAA does not allow a defendant such relief unless the court finds, after conducting its own ex parte review of the FISA material, that disclosure of portions of that material is necessary to make an accurate determination of the legality of the surveillance.
On July 2, the government also supplemented its response to defendants' motion to suppress with the opinion in United States v. Mohamud, 2014 WL 2866749 (D. Or. June 24, 2014), which upheld the constitutionality of Section 702. Muhtorov filed a reply to the government's response on July 3, 2014, and Jumaev filed a reply on July 11.
On October 20, 2014, Jumaev filed an attorney surveillance motion requiring the government to provide notice of interceptions of defense counsel communications. Muhrotov moved to adopt this motion on October 28.
On November 19, 2015, Judge Kane denied the defendants' motion to suppress. 187 F. Supp. 3d 1240. He held that, both on its face and as applied to the defendants, Section 702 did not violate the Fourth Amendment. Judge Kane also held that Section 702 did not violate Article III, but did not offer any analysis as to how he reached this judgment, leaving this issue "to a higher court."
After an interview was given by defense counsel to a local broadcast journalist on October 29, 2014, the government filed a motion to clarify the protective order. On December 3, 2014, Judge Kane granted the motion to clarify the protective order. He noted that, with the exception of disclosing sensitive discovery materials, counsel were free to make extrajudicial statements and that there was no basis for sanctions in this situation. Judge Kane advised that it would be prudent for counsel not to make extrajudicial comments, but that the freedom of expression permitted it.
In January of 2018, both the House and Senate passed amendments reauthorizing Section 702, and on January 19, 2018, the President's signature made the FISA Amendments Act of 2017 law. The reauthorization extended Section 702 for another six years, setting it to expire on December 31, 2023.
On June 23, 2017, the court granted Muhtorov's motion for bail, but abated the order for his release so that the specific combination of conditions that would be attached to his release could be determined with comment from all sides. After a hearing a few days later, the court approved a release on certain conditions and got a stay pending the Tenth Circuit's decision. On July 21, 2017, the Tenth Circuit Court of Appeals reversed the district court decision and ordered Muhtorov detained pending trial. 702 F. App'x 694. Muhtorov's petition for writ of certiorari was denied by the United States Supreme Court on November 6, 2017. 138 S. Ct. 430.
After years of litigating discovery and evidentiary issues related to FISA, Jumaev's case went to trial in March 2018. After a 25-day jury trial, Jumaev was convicted of all charges against him. However, on July 19, 2018, Judge Kane sentenced Jumaev to time served (approximately six years of pretrial detention) and 10 years of supervised release.
Muhtorov's jury trial began on May 24, 2018. On June 21, 2018, Muhtorov was found guilty on counts one, two, and three of the second superseding indictment. On August 30, 2018, Judge Kane sentenced Muhtorov to 96 months imprisonment on counts one and two, and 132 months on count three, all to run concurrently, for a total term of 132 months. Muhtorov was also placed on supervised release for 15 years as to counts one, two, and three.
Both defendants filed direct appeals of their convictions, and the Tenth Circuit consolidated the appeals.
Jumaev claimed on appeal that the six-year delay between his arrest and trial violated his Sixth Amendment right to speedy trial. He also argued that the district court should have sanctioned the government for its inability to comply with discovery and Brady obligations and argued that certain search warrants were illegally obtained.
Muhtorov joined Jumaev's speedy trial challenge, and made several other challenges to FISA. Muhtorov argued that the electronic surveillance conducted pursuant to Section 702 of FISA violated the Fourth Amendment and that the government's refusal to disclose underlying materials for the Section 702 surveillance and possible use of other warrantless surveillance to investigate Muhtorov were unconstitutional and contrary to statute.
On November 19, 2020, a panel of the U.S. Court of Appeals for the Tenth Circuit consisting of Circuit Judges Carlos F. Lucero, Scott Matheson Jr., and Allison H. Eid heard oral argument on the appeal.
The Tenth Circuit affirmed Muhtorov (20 F.4th 558) and Jumaev's (20 F.4th 518) convictions and sentences in separate opinions on December 8, 2021.
In affirming Muhtorov’s conviction, the Tenth Circuit addressed several constitutional and statutory challenges. First, the court held that it was constitutional for the government to collect Muhtorov’s communications without a warrant. The government had initially collected Muhtorov’s communications incidentally while monitoring the communications of “a non-United States person living abroad,” which does not require a warrant. The court relied on two Fourth Amendment doctrines–the “incidental overhear” doctrine and the “plain view” doctrine–to conclude that this incidental collection did not require a warrant. The court further concluded that the incidental collection was reasonable, based on a balancing of Muhtorov’s privacy interests and the government’s national security interests. Second, the court held that the FISC’s rulings–which applied to the government’s surveillance procedures, rather than specific instances of surveillance–were constitutional under Article III because they involved actual cases or controversies, and were not merely advisory opinions. The court also held that the FISC’s rulings complied with the separation of powers.
Third, the Tenth Circuit held that neither the FISA statute nor due process required the district court to compel disclosure of classified materials related to the government’s application for authorization to conduct surveillance. The court further held that due process, evidentiary statutes, and the Federal Rules did not require the district court to compel disclosure of the particular surveillance methods the government used, or the evidence it gathered through surveillance. Finally, the court held that the six-and-a-half-year delay from arrest to conviction, though extraordinarily long, did not violate Muhtorov’s Sixth Amendment right to a speedy trial. The court found that the delay was not unconstitutional because it was caused by issues with discovery, such as Muhtorov’s broad requests and requirements surrounding classified information. Further, the court found that the government had acted in good faith during discovery.
In its opinion affirming Jumaev’s conviction, the Tenth Circuit rejected the speedy trial argument on similar grounds. The court found that the delay was largely caused by legitimate discovery issues, and additionally that Jumaev had not asserted his right to a speedy trial promptly enough. Next, the Tenth Circuit rejected Jumaev’s argument that the district court should have sanctioned the government more harshly for its discovery violations. The Tenth Circuit found that the government had acted with good faith, and that the district court’s response to the discovery violations had cured any prejudice from those violations. Finally, the Tenth Circuit rejected Jumaev’s argument that warrants to search his home, phone, and computer violated Rule 41 of the Federal Rules of Evidence. The court held that Rule 41(b)(3)–which allows magistrate judges to issue warrants reaching outside their own district when the warrant is related to a terrorism case with some connection to that district–does not require that the government specify the connection to that district in its warrant application.
Judge Lucero dissented from both rulings. The Tenth Circuit denied both defendants’ petitions to rehear the case en banc. Both defendants appealed the Tenth Circuit rulings to the Supreme Court, but the Supreme Court declined to hear the case on October 3, 2022. 143 S. Ct. 245; 143 S. Ct. 246.
Jessica Savoie (9/28/2014)
Samantha Kirby (12/5/2014)
John He (12/23/2015)
Chris Pollack (4/19/2019)
Jonah Hudson-Erdman (2/23/2021)
Micah Pollens-Dempsey (8/13/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/6152318/parties/united-states-v-muhtorov/
Boland, Boyd N. (Colorado)
Arceci, John C (Colorado)
Carlin, John P. (District of Columbia)
Baker, Mitchell (Colorado)
Cline, John D. (Colorado)
Boland, Boyd N. (Colorado)
Hegarty, Michael E. (Colorado)
Holmes, Jerome A. (Oklahoma)
Kane, John L. Jr. (Colorado)
Kelly, Paul Joseph Jr. (New Mexico)
Lucero, Carlos F. (Colorado)
Mix, Kristen L. (Colorado)
Shaffer, Craig B. (Colorado)
See docket on RECAP: https://www.courtlistener.com/docket/6152318/united-states-v-muhtorov/
Last updated Aug. 13, 2023, 8:12 p.m.
State / Territory: Colorado
Filing Date: Jan. 19, 2012
Closing Date: Oct. 3, 2022
Case Ongoing: No
This is a criminal case brought by the U.S. government against two defendants charged with providing and attempting to provide material support and resources to a foreign terrorist organization. The defendants were subject to surveillance under FISA and the FAA.
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Special Case Type(s):
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief: