United States v. C. Gregory Turner ( 2016 )

ln the
L)`n.'r\ed Srma Cou.n of Appenls
l-'o: the chcnth C`u'cui\
____
No. 15-1175 REDACTEB l CLEARED FOR PuBLlC RELEAsE
UNrm: STA'res oz A,~smca, '
P!ain!:f-App¢llee,
v.
C. GnEc;oRY Turms=_a.
D¢f¢ndnnr-App¢!lom
.-'\ppcll from lh¢ Ur'.ll¢d Sme\ Distr|c! Coux¢ for she
Notthem Dlslrid of lllinois. F.o.slum Div'ision.
No. 13 CR 572-fhlml E. Bu¢klo, judge
ARCL`|£D OCTOBF.R 25, 2015 - DECmED SEPTEMBER 9, 2016
SUPFLEMENTAL CLA=;§IF!ED Ol'l.\'lON -» DECmED SEPTEMBF.R 9, 2016
Before K.A.\' NF.. ROVNF.R. and SYKES. Circuit judg¢s.
KAN.\'E, Circuz`¢ ludge. A.q noted in the general unclassified
opinion in this cas¢, Defendan! Gregory Tumer was con-
victed of willfully conspl:ing, with Prince Asi.el Ben lscac-L to
provide services for Zi.mbabwean Specillly Deslgmved Na-
tionals ("SD!\'s”). a group d government officials and re-
2 No. 15~1175
-
lifted individuals deemed to be blocking the demonatic pm»
ceases or institutions of Zimbabwe. 30th Tumer and Ben
ls:ael are U.S. personal
'I‘nlx ix the supplemental classified opinion addressing
Tumer's claims. on appeal tim eha government’s lnvestiga~
tim violated the Foreign himiligence Suwelllam'e Ac't
{“FISA") and that the obtained or derived evidence should
have izeen suppressed Having reviewed the unclassified
and classified xecord, we find that the order of !he &isi~rict
court denying suppression of the PISA evidmce and its evi-
dentiary frui!s was proper.
I. Backgmund
living the sam approach as with the unclassified opin-
ion. we begin with a brief synopsis cf the relevant legal
framework for Tumer’a claims under FISA. ’l'hen, we mim-
marize the FESA collections against ‘l`umer and the pertinem
procedural history
A. FI$'A siegal Pr¢zmmrk
in 1978, C. 15~1`175
semina!icn of nonpublic!y avai!ab!e infommn’m concerning
unconsendng limited Smes pmcns,” as well as provide ad¢
diti18 U.S.C. §§ 3?},
951(3}; {2'} Ccrunt ‘I‘wo alleged acting 111 the United Staw.s as
an agent of a foreign government without pn`or nod£ica&on
fo the Atwmey Genera¥, in violation ¢f 13 U§.C. § 951{;};
and (3) Count 'f"n.ree alleged willfuliy conspiring to provide
services on behalf o£. or for the benefit of, Zimbabwean
SDN$, in violation of the IEEPA, 50 U.S.C. § 1?05(::), and 31
C§.R. §§ 5§1.2£5'1, 541.204, and 543A{)5.
On Febmary 27, 2014, Tizmer filed a motion for discio~
sure of FIBA materials and a motion to suppress evidence
obta’m;ed or derived from ¥lSA. The govenu~:\ent resp¢mded
to these motions with a chszified brief and sealed appendix
submitted ex parte m the district omni and a redac€ed, im»
dassiiied version served w Tumer. Additionaiiy. the gov'
erma-m fined a "Declarazion and Claim of Privi§ege” by the
Attorney C§enerai that declared "i: would ha:m the national
security of the Urdred Staees to disc!ose or hoid an ad~
No. 15-'1175 P'
versatial hearing wi&\ ¥eg_ards w the Fl,SA Materials," ;‘.1'\:1'5‘.1m
aunt to §§ 1806(¥), 1.825(§).
On IuIy 25, ZO’M=, the district south in a thorough and
well-reasoned oph\ion, denied Tumerr”s motion for disclo-
sure and his motion to suppress.’ ’H\e disde began by
comma w w F
_werc "§awfu¥iy au. orized, because the gwem~
want p:eseneed sufficémt evidence co the I~'ISC to support a
finding of probable cause that-was the ”agent of a
foreign powcr.” 'I`he court then determined that the lawfuliy
authorized FESA warrants targeting qua executed
"’in confoan with an order or aufhonza cm or approval"
because the government had properly mmimized its collec~
dons.
'l`umer’s trial began am Sepwmbez 29, 2914. Ultimahe£y,-
the jury acquitted Turner of Counts One and ’I`wo but con»
victed him of Ccvnt 'I'hree. 'fhe district court se:c\m‘\ced
Turner to 15 montI'Ls' imprisonment and one year of super~
vised zelease` Iudgmmr was entered against ‘I‘umer on Iamz-
a:y 21_, 2015. Turner's appeal £oilarwed.
..._..i.._...._.m__,..
Gn aypen¥, ‘f`ume: does mr chai§engi !he d\s!xicl cows denial of bid
marion to disdou the ?I`SA mlwillr» Thzrefoa'¢, this claim is weived, md
we do riot address it Se¢ Un|m! Stszes n. Dnbn¢y, 198 F.$cf €55, 460 {781 Ci.r.
2007} (”Bmum the mgmt was m wind or developed in we opening
brqu h is waxved.“$.
3 No¢ 15-1275
ll ANA].¥S]S
03 appeal, Tnmer claims that the govemmem's irwn€~
gadon violated FISA and that me obtained or dedved evi-
dence should have been suppressed Pirsi, ‘I`urner argues
that the FISC erred in finding that the govenunmt met its
probable cause md certification requirements $econd,
‘mmer contends that after receiving the hwfu! 'FISC order.
the government did not properiy minimize its mneciions
under FISA. Th§rd. Tume: oontenda that the PlSA investiga~
don violated his protected rights under the Pirst Amend-
warth
A. FISC Order
ms court reviews de nova the district courfs ruling on
the propriety of the FISC‘s order1 L£n£ted Stms v. Dnmz‘s£.
424 P.Sd 566, 578 (7£1'\ Cir. 2005}. fn other words, in review-
ing the adequacy of a FISA applicauem, this conn conducts
thesame zeviewastheFISC.£n re Gm¢d,lury Proc. qf$p¢ciai
Apr. 2002 Gmnd jury, 347 F.Sd 15-1?'l 204 {?th Cir. ZGDB}.
After reviewing the classified record, we ho!d that the
FISC proper¥y found than the govenment's application met
the requirements of probable cause and wiificadom under
F.ISA.
No. 35~11`?5 9
1. Pn'$b¢zblc szs¢
‘I'his court reviews we probable cause determination of
the FISC de nova Dumziax`, 424 F;Zd at 57'8~?‘9, nld'aough we
more that some of our sister courts have applied z more de!»
urentia£ standaré of review ¢,g., Urz:'ted Stat€s v. Abu~jfhnad,
630 F.Gd 1024 130 ich C.ir. Z€FJD} (“the established standard of
judicial review applicable m FISA warrsz is defermtia}”).
According to FISA. the FISC mus% find max the govem~
mem dmonstraned pz’obable cause that the target "ia a for*
eign power or an agent of a foreign power” and §l'lat each of
the targeted facilities or properties is being used by a foreign
power or an agent of a foreign pow¢.~’r. §§ 1804(¢1){3),
1805{1\){2), 1823(a){3), 1824(2\){2). We apply this statutory
standard but acknowledge that some of our sister courts
have sought to distinguish bemeers probable cause under
FISA and probable cause under a "typicai cri:n'\inal case."
E.g”, Um`ted Swtzs v, Ei»Mezsr‘n. 664 P.Sd 45‘7, 564 (5£}\ Ci.r.
2021) ("[FLSAԤ} probable cause standard is different from
the smude in the typical crimina¥ case lm:ucamsse.>r rather than
focusing on probable cause to believe that a person has com-
mitted a crime, the PISA standard focuses on fha status of
the target as a foreign power or an agent of a foreign
power."). Even if there is a distinction between the two stan-
dards, it does not affect our analysis.
la the present case, the PISA applicatiom by the govern-
ment su; owed the HSC’; robabie came findin that
No. 15-`1175
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NO. 15-1175 11
Additionalfy. the YISA appiicatim’rs supported the P`ISC
findings cf probable cause for the propelled
PISA applications included evidence showing that
Accord.ing%y, the FISC properly found that the govern-
ment demonstrated "p:ababie cause" haw
“agemt of a foreign power“ and that the
were “being used or about
Tux:mz' contends that "FLSA appears w require the com~
mmcations subject to surveillance of a Unined States person
must relate directly m activities involving international ter-
rorism as defined in FISA." (Appelfax:t Br. 38.) ?ume: mis-
states the law. FISA is not limited co activities involving ire-
tematianal terrorism FISA authorizes surveillance and
searches based on probable cause that the target is an *'age~nt
of a foreign power;' which seizures to "any persvex‘xmxent provided probable cause ’B\at fhwa defendmt}
16 No. 15¢1175
was an agent of a foreign power entirely mcadam of any
of his jountch Mdv£dea”).
III. CoNch!oN
F-o