FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
Michael Tumposky, with whom Jessica Hedges, James Haynes,
Forest O'Neill-Greenberg, and Hedges & Tumposky, LLP
were on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, and Pamela Gaulin,
Harvard Law School, were on brief, for appellee.
Howard, Chief Judge, Kayatta and Barron, Circuit Judges.
BARRON, Circuit Judge.
sometime in 2014, David Wright, Nicholas Rovinski, and
Usaamah Rahim -- Wright's uncle -- engaged in discussions
about the Islamic State of Iraq and Syria ("ISIS"),
which the United States has designated as a Foreign Terrorist
Organization under § 219 of the Immigration and
Nationality Act. See 8 U.S.C. § 1189; 80 Fed.
Reg. 58, 804, 58, 804 (Sept. 30, 2015). The discussions
allegedly involved a "high-profile" ISIS
spokesperson and concerned a plot to fulfill a fatwa (ISIS
decree) issued by "ISIS leaders" to behead Pamela
Geller -- an American citizen living in this country -- for
insulting the Prophet Mohammed. The discussions also
concerned plans to kill police officers in the United States
and to establish a "martyrdom" cell in this
Bureau of Investigation ("FBI") agents
electronically monitored the three men's communications,
including through surveillance conducted pursuant to the
Foreign Intelligence Surveillance Act ("FISA").
See 50 U.S.C. § 1801. On June 2, 2015, after
FBI agents intercepted a call between Rahim and Wright, they
confronted Rahim at a bus stop. Rahim then drew a
thirteen-inch knife, which led the agents to shoot him when
he refused to drop it. He died from his injuries.
than a month later, Wright was indicted for conspiracy to
provide material support to ISIS, in violation of 18 U.S.C.
§§ 2339B(a)(1)-(2) ("Count One");
conspiracy to obstruct justice, in violation of 18 U.S.C.
§ 371 ("Count Two"); and obstruction of
justice, in violation of 18 U.S.C. §§ 1519 and 2
("Count Three"). An April 2016 superseding
indictment added a count for conspiracy to commit acts of
terrorism transcending national boundaries, in violation of
18 U.S.C. §§ 2332b(a)(2) and (c) ("Count
Four"); and another February 2017 superseding indictment
added a count of obstruction of justice, in violation of 18
U.S.C. § 1519 ("Count Five").
a fourteen-day trial, the jury convicted Wright on all
counts. The District Court sentenced Wright in December 2017
to twenty-eight years' imprisonment and lifetime
supervised release. The District Court sentenced Wright to a
total of twenty years' imprisonment on Counts One, Three,
and Five, to be served concurrently with a sentence of five
years' imprisonment on Count Two. The District Court
sentenced Wright to eight years' imprisonment on Count
Four to be served consecutively with the twenty-year prison
sentence for Counts One, Two, Three, and Five.
now appeals his convictions. We affirm Wright's
convictions on Counts Two through Five. We vacate his
conviction on Count One.
begin by considering Wright's challenges to the District
Court's order that denied various pretrial motions to
suppress evidence. Wright does not make a clear argument as
to how his challenge to the District Court's denial of
each of these motions to suppress relates to each of his
convictions. Nevertheless, we proceed on the understanding
that the evidence implicated in each motion would, if
suppressed, affect his convictions on all counts.
reviewing a challenge to the district court's denial of a
motion to suppress, we view the facts in the light most
favorable to the district court's ruling, and review the
district court's findings of fact and credibility
determinations for clear error." United States v.
Peake, 804 F.3d 81, 86 (1st Cir. 2015) (internal
quotation marks omitted). We review legal issues, including
preserved constitutional claims and a district court's
determination of whether the government exceeded the scope of
a warrant, de novo. See id.; United States
v. Brown, 669 F.3d 10, 19 (1st Cir. 2012);
United States v. Volungus, 595 F.3d 1, 4 (1st Cir.
first address Wright's challenge to the District
Court's denial of his motion to suppress the fruits or
derivatives of any electronic surveillance that the FBI
conducted pursuant to FISA. On appeal, Wright argues only
that the District Court "should have suppressed the
evidence obtained under FISA's emergency provision"
(the "Emergency Provision") -- insofar as any
evidence was so obtained -- "because that portion of the
statute is unconstitutional or, in the alternative, must be
a federal statute. It establishes, as relevant here, a
mechanism by which federal law enforcement officers may
obtain a judicial order that authorizes the use of electronic
surveillance within the United States when a
"significant purpose" of the surveillance is the
collection of "foreign intelligence information."
50 U.S.C. § 1804(a)(6)(B).
the process is initiated by the submission of an application,
which must be approved by the Attorney General of the United
States (the "Attorney General"), to the Foreign
Intelligence Surveillance Court ("FISC") for review
by one of its judges. Id. § 1804(a). In
response to such an application, FISC judges may issue an
ex parte order that authorizes electronic
surveillance after making, among other things, a finding of
probable cause that the target of the surveillance is a
foreign power or agent of a foreign power. Id.
may approve surveillance that targets United States persons
for up to ninety days. Id. § 1805(d)(1). Orders
that approve surveillance that targets non-United States
persons may do so for up to 120 days. Id.
statute also includes an emergency authorization provision.
See id. § 1805(e). The Emergency Provision
permits the Attorney General to authorize electronic
surveillance without prior judicial approval if the Attorney
General "reasonably determines that an emergency
situation exists with respect to the employment of
surveillance to obtain foreign intelligence information
before an order authorizing such surveillance can with due
diligence be obtained" and there is a factual basis
supporting issuance of an order. Id. §
1805(e)(1)(A)-(B). The Emergency Provision requires that the
Attorney General inform the FISC of its decision to employ
emergency surveillance and submit an application for a
judicially approved order, from the FISC, pursuant to the
regular procedure "as soon as practicable," but no
later than seven days after the Attorney General grants the
emergency authorization. Id. § 1805(e)(1)(D).
collected through surveillance that has been authorized by
the Attorney General pursuant to the Emergency Provision can
be used in certain "proceeding[s]." Id.
§ 1805(e)(5). However, such information can be so used
only "with the approval of the Attorney General if the
information indicates a threat of death or serious bodily
harm to any person." Id.
12, 2015, the government filed a notice of intent "to
offer into evidence, or otherwise use or disclose," as
relevant here, "information obtained or derived from
electronic surveillance . . . conducted pursuant to
[FISA]." The notice of intent made no reference to the
thereafter filed a motion to compel discovery of evidence
obtained pursuant to FISA. The District Court denied the
motion. The District Court did so after concluding that FISA
"seems to contemplate the filing of . . . an
'ill-informed motion to suppress.'"
then filed a motion to disclose or suppress such evidence, in
which he "renew[ed] and incorporate[d] by reference his
motion to compel discovery." In that motion, Wright
identified a number of independent and alternative bases for
support of his motion, Wright argued that FISA's general
requirement that the acquisition of foreign intelligence
information need only be a "significant purpose" of
the search or surveillance -- and thus need not be the
"primary purpose" -- renders searches and
surveillance under that statute violative of the First,
Fourth, Fifth, and Sixth Amendments to the United States
Constitution. See 50 U.S.C. §
government filed a memorandum in opposition to Wright's
motion to suppress. The memorandum provided an overview of
the FISA surveillance process, which included a reference to
the Emergency Provision. The memorandum did not, however,
indicate that the government had relied on the Emergency
Provision. Rather, the memorandum argued, in response to
Wright's suppression motion, simply that the government
had complied with FISA's requirements throughout its
surveillance. The memorandum also responded to Wright's
federal constitutional argument concerning FISA's general
"significant purpose" requirement, along with the
other arguments for suppression that he had advanced, none of
which, as we have noted, concerned the Emergency Provision.
District Court held a status conference shortly after these
filings were made, at which it asked the parties a series of
general questions about FISA. One of those questions was
whether the Emergency Provision, as described in the
government's memorandum, raised any federal
constitutional issues. The District Court specifically
stated, "I'm not talking about this case, I'm
talking about generally."
then filed a memorandum of law, in which he addressed the
Emergency Provision. Wright first contended that the
Emergency Provision violated the Fourth Amendment. He relied
on United States v. U.S. Dist. Court for E. Dist. of
Mich., S. Div., 407 U.S. 297 (1972) [hereinafter
"Keith"], to contend that the Emergency
Provision is constitutionally deficient because it does not
require judicial approval of surveillance before it begins.
See id. at 316-17 ("Fourth Amendment freedoms
cannot properly be guaranteed if domestic security
surveillances may be conducted solely within the discretion
of the Executive Branch. The Fourth Amendment does not
contemplate the executive officers of Government as neutral
and disinterested magistrates.").
argued in the alternative that, to avoid constitutional
problems, the Emergency Provision must be construed narrowly.
With respect to that latter contention, Wright pointed out
that, although Title III of the Omnibus Crime Control and
Safe Streets Act, which authorizes surveillance without prior
judicial approval in "emergency situation[s],"
enumerates the specific "danger[s]" and
"activities" that constitute an "emergency
situation," see 18 U.S.C. § 2518(7)(a),
FISA does not. Wright argued that the Emergency Provision
should be construed to permit the Attorney General to
authorize emergency surveillance without prior judicial
approval only "when he has evidence that there is an
imminent threat to life, where the surveillance would assist
in the protection of that life, and where a warrant cannot be
obtained in time to stop this imminent threat to life."
government filed a response to Wright's memorandum
concerning the Emergency Provision. The government argued
that the Emergency Provision was constitutional. The
government submitted, shortly after filing that response,
ex parte filings of classified materials to the
District Court denied Wright's motion. The District Court
explained that its "de novo review reveal[ed]
that the government attorneys here have throughout acted with
scrupulous regard for the rights of the defendant Wright and
have conducted themselves with utmost fidelity within the
limited powers accorded them under [FISA]." The District
Court stated that it did not "agree with each of the
government's characterizations, especially their
perception of the imminence of threat posed by the defendant
Wright and his co-conspirators." Nonetheless, the
District Court stated that it found that the "government
attorneys ha[d] followed the established procedures"
under FISA with "scrupulous care." The District
Court thus concluded that "[t]here [was] here no basis
to consider the suppression of evidence."
appeal, Wright abandons the argument that he made below that
concerned FISA's general "significant purpose"
requirement. We also agree with the government that Wright
has waived for lack of development any argument that FISA
surveillance in this case is unconstitutional because of the
ex parte nature of the surveillance authorization
decisions under FISA, and the resulting inability of Wright
to know which evidence, if any, was used to justify the
initiation of any surveillance, or which, if any, evidence
was obtained pursuant to any such surveillance. See
United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990). Wright does not, for example, challenge
the District Court's observation that the statute
contemplates the filing of "an ill-informed motion to
suppress." Rather, on appeal Wright raises only the two
arguments that he raised below, first challenging the facial
constitutionality of the Emergency Provision and, then,
second, arguing that the provision "need be narrowly
start with Wright's contention on appeal that the
Emergency Provision on its face violates the Fourth
Amendment, because it permits electronic surveillance without
prior judicial approval. In his brief to us on appeal, as in
his memorandum below, Wright relies on Keith to
advance that argument. In particular, Wright stresses that
Keith holds that electronic surveillance in domestic
security matters may require an appropriate ex ante
warrant procedure. See Keith, 407 U.S. at 316-17.
Wright does not acknowledge that Keith expressly
limits its holding to "only the domestic aspects of
national security" or that Keith
"express[es] no opinion as to  the issues which may be
involved with respect to activities of foreign powers or
their agents." Id. at 321-22, 324. Nor does
Wright confront the fact that the United States Supreme Court
has more recently characterized Keith as having
"implicitly suggested that a special framework for
foreign intelligence surveillance might be constitutionally
permissible." Clapper v. Amnesty Int'l
USA, 568 U.S. 398, 402 (2013) (citing Keith,
407 U.S. at 322-23).
addition, despite the facial nature of his challenge, Wright
does not develop any argument that surveillance conducted
pursuant to the Emergency Provision is unconstitutional no
matter the circumstances involved, notwithstanding that, in
ordinary law enforcement contexts, exigent circumstances may
sometimes justify a warrantless search. See Kentucky
v. King, 563 U.S. 452, 460 (2011) ("One
well-recognized exception [to the warrant requirement]
applies when the exigencies of the situation make the needs
of law enforcement so compelling that [a] warrantless search
is objectively reasonable under the Fourth Amendment."
(internal quotation marks omitted)). Yet, insofar as Wright
means to bring a facial challenge to the Emergency Provision
based on the mere fact that it permits the authorization of
electronic surveillance without prior judicial approval, he
must, as the government points out, explain why -- even in
dire situations -- advance judicial approval is always
required. See City of Los Angeles v. Patel,
135 S.Ct. 2443, 2450-51 (2015) (noting that the "proper
inquiry" for "facial challenges to statutes
authorizing warrantless searches" is whether the
"searches that the law actually authorizes" are
"unconstitutional in all applications").
in this regard that Wright appears to acknowledge that there
are some exigent circumstances in which the
authorization of electronic surveillance without prior
judicial approval -- pursuant to the Emergency Provision or
otherwise -- is constitutionally permissible. Wright argues,
for example, that, to avoid constitutional problems, the
Emergency Provision should be construed in the same narrow
fashion that he contends that other emergency authorization
statutes have been construed, such as the emergency provision
in Title III, 18 U.S.C. § 2518(7)(a); see,
e.g., Nabozny v. Marshall, 781 F.2d 83, 85 (6th
Cir. 1986); United States v. Capra, 501
F.2d 267, 277 (2d Cir. 1974), and the emergency provision in
the Stored Communications Act, 18 U.S.C. § 2702(b)(8);
see, e.g., In re Application of United States
for a Nunc Pro Tunc Order for Disclosure of Telecomm.
Records, 352 F.Supp.2d 45, 47 (D. Mass. 2005). Given
these concessions that the Emergency Provision can be
constitutionally applied in some circumstances, we reject
Wright's Fourth Amendment-based facial challenge. See
Patel, 135 S.Ct. at 2450-51.
does appear to press an alternative argument. He contends
that the Fourth Amendment requires that the Emergency
Provision be construed to permit the Attorney General's
emergency authorization "power [to] be employed [only]
in narrow circumstances." Specifically, he contends, as
he did below, that the Emergency Provision would be
constitutional only if the statutory phrase, "emergency
situation," 50 U.S.C. § 1805(e)(1)(A), were
construed to require "evidence that there is an imminent
threat to life, where the surveillance would assist in the
protection of that life, and where a warrant cannot be
obtained in time to stop this imminent threat to life."
even assuming that the Emergency Provision must be so
narrowly construed, notwithstanding that it authorizes the
collection of foreign intelligence information, Wright makes
no argument that the government could not have met this
standard for an "emergency situation." He also
makes no argument that any evidence traceable to the use of
the emergency procedure in particular would have been
prejudicial to him if not suppressed. Nor does he develop any
argument as to why he should be excused from having to make
such arguments. Indeed, as we have noted, Wright does not
adequately develop a challenge to the District Court's
conclusion that the statute encompasses the filing of
"an ill-informed motion to suppress." Accordingly,
we reject Wright's narrow-construction challenge, too.
Zannino, 895 F.2d at 17; see also United States
v. Mohamud, 843 F.3d 420, 438 n.21 (9th Cir.
2016) (declining to reach defendant's facial challenge to
FISA for lack of explanation as to why suppression should be
required in his case); United States v. Posey, 864
F.2d 1487, 1491 (9th Cir. 1989) ("[W]e think it clear
that appellant may not make a facial challenge to the FISA
without arguing that the particular surveillance against
him violated the Fourth Amendment . . . Even if he is
correct that the FISA's language might be applied in ways
that violate the Fourth Amendment, he must show that the
particular search in his case violated the Fourth Amendment.
Appellant cannot invalidate his own conviction on the
argument that others' rights are threatened by
FISA." (emphasis in original)).
turn to Wright's challenge to the portion of the District
Court's order that denied his motion to suppress evidence
obtained from the search of his electronic devices. The
relevant facts, to which the parties agree, are as follows.
the early morning of June 3, 2015, an FBI agent filed an
application for a search warrant for Wright's apartment.
The affidavit that accompanied the application included two
attachments. One of the attachments described Wright's
apartment ("Attachment 2"). The other attachment
identified the property subject to seizure ("Attachment
A"). Attachment A included a list of specific
"items," including "[a]ll computer hardware,
computer software, gaming equipment, computer-related
documentation, and storage media" and noted that
"[o]ff-site searching of these items shall be limited to
searching for the items described
[previously]." (Emphasis added).
federal magistrate judge issued a warrant based on the
application. The Magistrate Judge identified the
"property to be searched" in that warrant as
Wright's apartment as described in Attachment 2 and the
"property to be seized" as the property listed in
agents seized Wright's electronic media devices pursuant
to the warrant. The agents also later searched those media
devices for evidence.
argues that the plain text of the warrant precluded the
search of the electronic media devices that were seized. This
contention turns on the proper construction of the warrant,
so our review is de novo. See Peake, 804 F.3d at 86.
conclude that the warrant is most naturally read to
contemplate the search of Wright's electronic devices
after their seizure. See id. at 87 (explaining that
"search warrants and affidavits should be considered in
a common sense manner, and hypertechnical readings should be
avoided" (internal quotation marks omitted)). The
warrant expressly cross-references Attachment A in describing
the property that may be seized. Attachment A, in turn,
expressly provides for the "[o]ff-site searching
of" electronic media devices. Thus, the warrant -- by
virtue of its cross reference to Attachment A -- is best read
to authorize not only the seizure, but also the search of the
devices at issue, as expressly contemplated by the text of
Attachment A. See United States v. Baldyga, 233 F.3d
674, 683 (1st Cir. 2000) As a result, Wright's contention
that, in light of Riley v.
California, 134 S.Ct. 2473 (2014), we may not infer
that an authorization to seize an electronic device
necessarily includes the authorization to search that device
is beside the point.
challenges one other portion of the District Court's
order that denied his various motions to suppress. That
portion of the order concerns Wright's motion to suppress
statements that he made to law enforcement agents at his home
on June 2, 2015.
contends that the District Court erred by denying this motion
to suppress, because the government violated his federal
constitutional due process rights by failing to record the
interview in which he made the statements. As the government
notes, however, Wright cites no authority to support his
alleged entitlement under the federal Constitution to a
recorded interview. In fact, we have previously held to the
contrary. See United States v. Meadows, 571
F.3d 131, 147 (1st Cir. 2009) ("[T]here is no federal
constitutional right to have one's custodial
does attempt to ground his claim in a United States
Department of Justice policy that requires the recording of
custodial interviews conducted in a place of detention with
suitable recording equipment. But, that policy does not
purport to create legal rights that may be enforced by
criminal defendants. See United States v. Craveiro,
907 F.2d 260, 264 (1st Cir. 1990) (holding that "the
internal guidelines of a federal agency, that are not
mandated by statute or the constitution, do not confer
substantive rights on any party"). Thus, that policy
supplies no basis for overturning the portion of the District
Court's order that denied Wright's suppression motion
with respect to the statements that he made to law
our attention now to Wright's challenge of the District
Court's handling of an unplanned interaction that
occurred between a juror and an FBI agent at a restaurant
while the trial was ongoing. Here, too, Wright is less than
clear in identifying the convictions to which this challenge
pertains. We nonetheless proceed on the understanding that,
like his challenges to the District Court's order denying
his suppression motions, he means for this challenge to
implicate each of his convictions.
district court must make an "adequate inquiry" into
non-frivolous claims of juror bias or misconduct, United
States v. Ortiz-Arrigoitia, 996 F.2d 436, 442 (1st Cir.
1993), the district court has "broad discretion to
determine the type of investigation [that] must be
mounted." United States v.Boylan, 898
F.3d 230, 258 (1st Cir. 1990). See also United
Statesv. Ramirez-Rivera, 800 F.3d 1, 41 (1st
Cir. 2015) ("[T]he trial judge is vested with the
discretion to fashion an ...