United States v. Wright

          APPEAL 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.

          Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         Beginning 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).^[1] 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 country.

         Federal 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.

         Less 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").

         Following 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.

         Wright now appeals his convictions. We affirm Wright's convictions on Counts Two through Five. We vacate his conviction on Count One.

         I.

         We 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.

         "In 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. 2010).

         A.

         We 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 construed narrowly."

         1.

         FISA is 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).

         Typically, 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. § 1805(a)(2).

         Orders 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.

         The 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).

         Information 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.

         2.

         On June 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 Emergency Provision.

         Wright 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.'"

         Wright 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 suppression.

         In 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. § 1804(a)(6)(B).

         The 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.

         The 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."

         Wright 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.").

         Wright 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."

         The 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.

         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."

         3.

         On 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 construed."

         We thus 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.

         But, 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).

         In 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").

         We note 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.

         Wright 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."

         But, 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)).^[2]

         B.

         We now 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.

         During 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).

         A 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 Attachment A.

         FBI agents seized Wright's electronic media devices pursuant to the warrant. The agents also later searched those media devices for evidence.

         Wright 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.

         We 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.

         C.

         Wright 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.

         Wright 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 interrogation recorded.").

         Wright 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 enforcement.

         II.

         We turn 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.

         While a 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 ...