15-1175 | Omnilex

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# In the United States Court of Appeals For the Seventh Circuit

Filed with Classified
Information Security Officer
ISO Let
CISO

Date
09/09/2016

No. 15-1175
UNITED STATES OF AMERICA,

REDACTED / CLEARED FOR PUBLIC RELEASE

Plaintiff-Appelice,

t.
C. GREGORY TURNER

Defendant-Appellant

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 572-Elaine E. Bucklo, Judge

ARGUED OCTOBER 26, 2015 - DECIDED SEPTEMBER 9, 2016

SUPPLEMENTAL CLASSIFIED OPINION - DECIDED SEPTEMBER 9, 2016
\-

Before KANNE, ROVNER, and SYKES, Circuit Judges.

KANNE, Circuit Judge. As noted in the general unclassified
opinion in this case, Defendant Gregory Tumer was con-
victed af willfully conspiring, with Prince Asiel Ben Israel to
provide services for Zimbabwean Specially Designated Na-
tionals ("SDN's"), a group of government officials and re-

lated individuals deemed to be blocking the democratic pro-
cesses or institutions of Zimbabwe. Both Turner and Ben
Israel are U.S. persons.

This is the supplemental classified opinion addressing
Turner's claims, on appeal, that the government's investiga-
tion violated the Foreign Intelligence Surveillance Act
("FISA") and that the obtained or derived evidence should
have been suppressed. Having reviewed the unclassified
and classified record, we find that the order of the district
court denying suppression of the FISA evidence and its evi-
dentiary fruits was proper.

## I. Background

Using the same approach as with the unclassified opin-
ion, we begin with a brief synopsis of the relevant legal
framework for Turner's claims under FISA. Then, we sum-
marize the FISA collections against Turner and the pertinent
procedural history.

### A. FISA Legal Framework

In 1978, Congress enacted FISA, Pub. L. 95-511, to estab-
lish procedures for electronic surveillance, physical searches,
and other methods of information collection for foreign in-
telligence purposes. 50 U.S.C. § 1801 et seq. The statute has
been amended several times, most recently in 2008, Pub. L.
110-261.

FISA authorizes electronic surveillance and physical
searches either with or without a court order. Turner's case

only concerns FISA authorization with a court order, also
known as a FISA warrant. §§ 1805, 1824.1

FISA established the Foreign Intelligence Surveillance
Court ("FISC") to grant or deny government applications for
a FISA warrant. § 1803, 1822. The statute also established the
Foreign Intelligence Surveillance Court of Review ("FISCR")
to review FISC denials of government applications for a
FISA warrant. Id.

In order for the FISC to issue an order, it must find that
the government met certain requirements, including estab-
lishing probable cause, certification, and proposed
minimization procedures. §§ 1804(a), 1805(a), 1823(a),
1824(a). The FISC must find that the government demon-
strated "probable cause" that the target "is a foreign power
or an agent of a foreign power" and that each of the targeted
facilities or properties is being used by a foreign power or an
agent of a foreign power. §§ 1804(a)(3), 1805(a)(2), 1823(a)(3),
1824(a)(2). The FISC also must find that the government pro-
vided "written certification" from a high-level executive
branch official that a "significant purpose" of the proposed
surveillance or search "is to obtain foreign intelligence infor-
mation." §§ 1804(a)(6), 1805(a)(4), 1823(a)(6), 1824(a)(4). Fi-
nally, the FISC must find that the government's proposed
"minimization procedures" are reasonably designed "to
minimize the acquisition and retention, and prohibit the dis-

FISA contains separate, but largely parallel, provisions
governing electronic surveillance, 50 U.S.C. §§ 1801-1812, and physical
searches, §§ 1821-1829.

semination of nonpublicly available information concerning
unconsenting United States persons," as well as provide ad-
ditional protections relating to information and communica-
tions involving U.S. persons. §§ 1801(h), 1804(a)(4),
1805(a)(3), 1821(4), 1823(a)(4), 1824(a)(3). If the FISC ap-
proves the application, the government must adhere to these
proposed "minimization procedures."

If the FISA judge makes the necessary findings, he or she
then issues an order authorizing the electronic surveillance
or physical search. §§ 1805(a), 1824(a). The FISC order must
contain specific information on the target, relevant location,
type of information sought, means, duration, coverage, and
applicable minimization procedures. §§ 1805(c)-(d), 1824(c)-
(d).

The government may also use information obtained from
or derived from a FISC order for criminal proceedings if it
obtains advance authorization from the Attorney General
and provides notice to the court and to each "aggrieved per-
son" against whom the information is to be used. §§ 1806(b)-
(d), 1825(c)-(e).

In response, the aggrieved person may move to discover
the materials relating to the surveillance and search, "only
where such disclosure is necessary to make an accurate de-
termination of the legality of" the surveillance or search.
§§ 1806(f), 1825(g). The aggrieved person may also move to
suppress evidence obtained or derived from the surveillance
or search if "the information was unlawfully acquired" or if
it "was not made in conformity with an order of authoriza-
tion or approval." §§ 1806(e), 1825(f). If the aggrieved person

files a motion to discover or suppress, and if the Attorney
General certifies that "disclosure of any adversary hearing
would harm the national security of the United States," then
the district court must "review in camera and ex parte," the
FISA materials and rule on the motion. §§ 1806(f)-(g),
1825(g)-(h).

### B. FISA Collections

On
the FISC found probable cause to
believe that
J.S. persons, were
a foreign power. The FISC authorized

agents of

electronic surveillance of

The FISC's initial authorization was for a period of
After an additional application by the
government, the FISC subsequently re-authorized the

of the same facili-

ties for an additional period of approximately
To-
gether, these two orders covered the time period from

At trial, the government introduced evidence obtained or
derived from the

### C. Procedural History

On August 20, 2013, the government provided notice to
Turner that it "intends to offer into evidence, or otherwise
use or disclose in any proceedings in this matter," informa-
tion obtained or derived from

conducted under FISA, pursuant to
§§ 1806(c), 1825(d).

A week later, on August 27, 2013, a grand jury returned
an indictment against Turner, charging the following: (1)
Count One alleged conspiring to act in the United States as
an agent of a foreign government without prior notification
to the Attorney General, in violation of 18 U.S.C. §§ 371,
951(a); (2) Count Two alleged acting in the United States as
an agent of a foreign government without prior notification
to the Attorney General, in violation of 18 U.S.C. § 951(a);
and (3) Count Three alleged willfully conspiring to provide
services on behalf of, or for the benefit of, Zimbabwean
SDNs, in violation of the IEEPA, 50 U.S.C. § 1705(c), and 31
C.F.R. §§ 541.201, 541.204, and 541.405.

On February 27, 2014, Turner filed a motion for disclo-
sure of FISA materials and a motion to suppress evidence
obtained or derived from FISA. The government responded
to these motions with a classified brief and sealed appendix
submitted ex parte to the district court and a redacted, un-
classified version served to Turner. Additionally, the gov-
ernment filed a "Declaration and Claim of Privilege" by the
Attorney General that declared, "it would harm the national
security of the United States to disclose or hold an ad-

versarial hearing with regards to the FISA Materials," pursu-
ant to §§ 1806(f), 1825(g).

On July 25, 2014, the district court, in a thorough and
well-reasoned opinion, denied Turner's motion for disclo-
sure and his motion to suppress.2 The district court began by
concluding that the

were "lawfully authorized," because the govern-
ment presented sufficient evidence to the FISC to support a
finding of probable cause that
was the "agent of a
foreign power." The court then determined that the lawfully
authorized FISA warrants targeting
were executed
"in conformity with an order or authorization or approval"
because the government had properly minimized its collec-
tions.

Turner's trial began on September 29, 2014. Ultimately,
the jury acquitted Turner of Counts One and Two but con-
victed him of Count Three. The district court sentenced
Turner to 15 months' imprisonment and one year of super-
vised release. Judgment was entered against Turner on Janu-
ary 21, 2015. Turner's appeal followed.

2
On appeal, Turner does not challenge the district court's denial of his
motion to disclose the FISA materials. Therefore, this claim is waived, and
we do not address it. See United States D. Dabney, 498 F.3d 455, 460 (7th Cir.
2007) ("Because the argument was not raised or developed in the opening
brief, it is waived.").

## II. ANALYSIS

On appeal, Turner claims that the government's investi-
gation violated FISA and that the obtained or derived evi-
dence should have been suppressed. First, Turner argues
that the FISC erred in finding that the government met its
probable cause and certification requirements. Second,
Turner contends that after receiving the lawful FISC order.
the government did not properly minimize its collections
under FISA. Third, Turner contends that the FISA investiga-
tion violated his protected rights under the First Amend-
ment.

### A. FISC Order

This court reviews de novo the district court's ruling on
the propriety of the FISC's order. United States v. Dumeisi,
424 F.3d 566, 578 (7th Cir, 2005). In other words, in review-
ing the adequacy of a FISA application, this court conducts
the same review as the FISC. In re Grand Jury Proc. of Special
Apr. 2002 Grand Jury, 347 F.3d 197, 204 (7th Cir. 2003).

After reviewing the classified record, we hold that the
FISC properly found that the government's application met
the requirements of probable cause and certification under
FISA.

## 1. Probable Cause

This court reviews the probable cause determination of
the FISC de novo, Dumeisi, 424 F.3d at 578-79, although we
note that some of our sister courts have applied a more def-
erential standard of review, e.g., United States o. Abu-Jihand,
630 F.3d 102, 130 (2d Cir. 2010) ("the established standard of
judicial review applicable to FISA warrants is deferential").

According to FISA, the FISC must find that the govern-
ment demonstrated probable cause that the target "is a for-
eign power or an agent of a foreign power" and that each of
the targeted facilities or properties is being used by a foreign
power or an agent of a foreign power. §§ 1804(a)(3),
1805(a)(2), 1823(a)(3), 1824(a)(2). We apply this statutory
standard but acknowledge that some of our sister courts
have sought to distinguish between probable cause under
FISA and probable cause under a "typical criminal case."
E.g., United States u. El-Mezain, 664 F.3d 467, 564 (5th Cir.
2011) ("[FISA's] probable cause standard is different from
the standard in the typical criminal case because, rather than
focusing on probable cause to believe that a person has com-
mitted a crime, the FISA standard focuses on the 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.

In the present case, the FISA applications by the govern-
ment supported the FISC's probable cause finding that

Additionally, the FISA applications supported the FISC
findings of probable cause for the proposed

The
FISA applications included evidence showing that

Accordingly, the FISC properly found that the govern-
ment demonstrated "probable cause" that
was the
"agent of a foreign power" and that the

were "being used or about
to be used" by

Turner contends that "FISA appears to require the com-
munications subject to surveillance of a United States person
must relate directly to activities involving international ter-
rorism as defined in FISA." (Appellant Br. 38.) Turner mis-
states the law. FISA is not limited to activities involving in-
ternational terrorism. FISA authorizes surveillance and
searches based on probable cause that the target is an "agent
of a foreign power," which relates to "any person" engaged
in certain activities (or knowingly aids and abets a person so
engaged) on behalf of a foreign power, including "clandes-
tine intelligence gathering activities" and "enter[ing] the
United States under a false or fraudulent identity ... or,

while in the United States ... assum[ing] a false or fraudu-
lent identity.“ §§ 1801(b)(2), 1821(1). These activities are
listed in addition to "international terrorism." Id.

Turner also argues that if the sole purpose of the FISA
warrant was to gather evidence for a criminal prosecution,
"the intercept was improper." (Appellant Br. 38.)

Turner's argument is meritless. FISA, as amended in
2008, "eliminated any justification for the FISA court to bal-
ance the relative weight the government places on criminal
prosecution as compared to other counterintelligence re-
sponses." In re Sealed Case, 310 F.3d 717, 735 (FISA Ct. Rev.
2002). In other words, while the government must "have a
measurable foreign intelligence purpose, other than just
criminal prosecution," the amended FISA statute "does not
oblige the government to demonstrate to the FISA court that
its primary purpose in conducting electronde surveillance is
not criminal prosecution." Id. at 735-36 (alteration in origi-
nal).

Here, as discussed, the FISA applications by the govern-
ment supported the FISC's probable cause finding that
was an "agent of a foreign power" because

This clearly dem-
onstrated "a measurable foreign intelligence purpose" and
thus, Turner's argument fails.

Finally, Turner claims that the "FISA applications may
contain intentional or reckless material falsehoods." (Appel-
lant Br. 39.) In reviewing the unclassified and classified re-

cord, we have made "a meaningful effort to confirm the ac-
curacy of the [FISA] application." United States v. Daoud, 755
F.3d 479, 494-95 (7th Cir. 2014) (Rovner, J., concurring)
(characterizing this review as serving "the same interest ...
that a Franks motion serves"). This review assures us that the
FISA applications did not contain intentional or reckless ma-
terial falsehoods.

## 2. Certification

Turner also challenges the FISC's finding that the govern-
ment properly certified that a "significant purpose of" the
proposed surveillance or search "is to obtain foreign intelli-
gence information." §§ 1804(a)(6), 1805(a)(4), 1823(a)(6),
1824(a)(4).

FISA expressly provides that, for surveillance or searches
targeting U.S. persons, the FISC must ensure only that the
government's certifications are "not clearly erroneous."
§§ 1805(a)(4), 1824(a)(4).

In reviewing the adequacy of the FISA application, this
court conducts the same review as the FISC, and our role "is
not to second-guess the executive branch official's certifica-
tion." In re Grand Jury Proc., 347 F.3d at 204.

In this case, after reviewing the classified record, we find
that the government's requisite certifications were proper.
The government presented the FISC with sufficient evidence
that

the government's certifica-
tions were not "clearly erroneous."

### A. Minimization

Under FISA, after receiving lawful FISC orders, the gov-
ernment must employ "minimization procedures," proposed
in its application, that are reasonably designed "to minimize
the acquisition and retention, and prohibit the dissemination
of nonpublicly available information concerning
unconsenting United States persons," as well as provide ad-
ditional protections relating to information and communica-
tions involving U.S. persons. §§ 1801(h), 1804(a)(4),
1805(a)(3), 1821(4), 1823(a)(4), 1824(a)(3).

The Attorney General has adopted Standard
Minimization Procedures ("SMPs"), which are maintained
on file with the FISC and incorporated by reference into ev-
ery FISA application and order. These SMPs permit
with review
to take place after the initial acquisition of the information.

In Turner's case, after receiving lawful FISC orders, the
government properly minimized the FISA information it col-
lected in accordance with the SMPs. The classified record
shows that, before executing the FISC order, the FBI verified
the facilities subject to the approved

and that, subsequently, the collections
were conducted during the approved times using the least
physical intrusion necessary. The classified record also indi-
cates that only authorized and trained FBI personnel re-
viewed, translated, analyzed, and used the collected FISA
information, and they did so with the purpose of determin-
ing whether the information reasonably appeared to meet
the retention standard. Furthermore, it appears that any in-

formation assessed to meet the retention standard was fur-
ther investigated, analyzed, and disseminated in accordance
with the SMPs. Finally, the classified record provides partic-
ular and concrete evidence that only a percentage of the
FISA collection met the SMP standard for retention and dis-
semination.

This is sufficient to demonstrate that the government
properly minimized the information collected pursuant to its
FISC order.

## B. First Amendment

Turner also claims that the FISA investigation violated
his "protected First Amendment activity related to his belief
in the wisdom and humanity in lifting economic sanctions
against the Republic of Zimbabwe." (Appellant Br. 38.)

FISA provides "that no United States person may be con-
sidered a foreign power or an agent of a foreign power
solely upon the basis of activities protected by the first
amendment of the Constitution of the United States." 50
U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

Turner's claim is meritless. In the present case, as dis-
cussed, the classified records show that the government es-
tablished probable cause that
was an agent of a for-
eign power, completely independent of any protected First
Amendment activity. See Dumeisi, 424 F.3d at 578-79 (reject-
ing a First Amendment claim against FISA evidence by a
publisher of an Arabic language newspaper because "the
government provided probable cause that [the defendant]

was an agent of a foreign power entirely independent of any
of his journalistic activities.").

## III. CONCLUSION

For the foregoing reasons, the order of the district court
denying suppression of the FISA evidence and its eviden-
tiary fruits was proper.

Opinion

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