1n the Unfried Emu Court of Appeals For the Seventh Circuit 510151175 REDACTEDICLEAREDFOR PUBLIC RELEASE UNn'eu STA res or New: A, Plainuf-Appe?ee, ti. C. GREGORY TURNER Defendant-Appe?am an?n. Appeal {mm 1h! Unit-d Sum Dim-let Cburt In: the Northern. Disuid of Illinois. Eastern Division. No 13 CR SH-Elalnl E. Buckin, judge ARGUED OCTOBER 26. 2015 - DECIDED SEPTEMBER 9, ?2016 SUPPLEMENTAL CIAESIFIED OPINION - Decman SEPTEMBER 9, 2016 Before KAN NE. Rowan. and SYKES, Circuit Judges. 1(5in. ircuil fudge. As. noted in the seminal unclassi?ed opinion in this use, Defendant Gregory Turner was con- vleted of willfuliy emspking, with Prince Asiel Ben Israel. to provide services for Zimbabwean Spedaliy Designated Na- tionals a group of government officials and re? 2 No. 15-1175 lated individuals deemed to be blocking the democrat: pro? masses or institutions of Zimbabwe. Both Turner and Ben Israel are US. persons. This is. the supplemental classified Opinion addressing Turner?s claims, on appeal. that the government?s inves?ga~ ?rm violated the Foreign Intelligence Suweillme Act and that the obtained or derived evidence should have been Having reviewed the unclassified am} ciassi?ed zemrd, we find that the order of the district court denying suppression of the FISA evidmce and its eviv den?ary fruits was proper. I. Backgmund Using the same approach as with the unclassi?ed epin- ion, we begin with a brief synopsis of ?re relevant legal framework for mrner?s claims under FISA. Then, we sum- marize the PISA collections against Tamer and the pertinent- procedural history. A. FISA Ltga? Prev-newer): In 1973, Congress enacted PISA, Pub. L. 95-511, to estab? ?sh precedurm for ?latox?c survellianae. physical scaxc?rws, and ether methods cf informatim collec?cn fer ioreign in- temgence purposes, 50 15.5.12. 1801 e: see. The statute has been amended. swam! most rm?y in 2008. Pub. L. 110-262. PISA authorizes aimm surwillance and physical searches either With or without a court artist. Turner?s case No. 15-11% 3 uni}; concerns PISA authorization with a couri- order, also known as a PISA warrant. 1805. 1824.? PISA. established the Foreign Intelligence Surveillance Court to grant or deny governmeni applications for a PISA warrant. 1803, 2822: The statute also established the Foreign Surveiilance Court 9f Review to review denials of gnvemment applications for a PISA warrant. id. In order for tile FESC to issue an mtier. it must' ?nd that the government met certain requirements, estab- lishing probable cause. certification. and proposed minimizaticn pmoedures. 55 1804611); 180503), 1823(3), 18mm. The FISC must find that the gavcmmem demon- strated ?probable cause? that the target "is a foreign power UT an agent of a {ensign power" and that each of the targeted facilities or properties is being used by a fareign power or an agent of a foreign pcwer. 1804(aK3), 2805mm). 1323(an3), 1824(a)(2). The FISC also must find that the gavemment pro? vided ?mitten certi?cation? from a highdevei executive branch official that a ?significant purpose? of the proposed surveiilance or search ?is to obtain foreign inteiligeme infor~ mation." 1804(a)(6), 1805(a)(4). many, the FISC must find that the proposed "minimization procedures" are reasonably designed "in maxim the acquisition and retention. and prohibit the dis? 1 FISA contains septum. but largely parallel, pwvisiom summing demonic surveiilance, 50 U.S.C. 1801?4312. and physical watches. 1321-4329. 4 No. 1541' 75 seminaticn of nonpublicly availabie information concerning unconsm?ng United States persons,? as men as provide ad~ di-tional protections misting to information and tions involving U5. pawns. 180101), 1305(a)(3), 1821(4), 1823(a)(4). 1324(a)(3), If Eh: FISC apt proves the appiicaticm, the government must adhere to these pzoposed ?mi-nin?zation procedures.? If the FISA judgt makes the necessary ?ndings. he er she than issues an order authorizing the Blames-dc surveillance or physical search. 1605(3), 18244:). The FISC order must contain specific information an the target, .mlevant locatim type of information sought. means,- dumtion, coverage, and a-ppiicabIe minimization procedures 18240:)? The government may also use information (ab-tamed from or derived from a FISC onier for criminal proceedings if it obtains advance authorization from the Amway General and provides no?ce to the court and to each ?aggrieved per-- son" against the information is to be used. 1806m- in response. the aggrieved pemn may move to discover the materials zciating co the surveillance and search, "only where such disdasm is necessary to make an accurate de- termination of the iega?ty of? the surveillance or search. 55 1806?), 1825(g). The aggn?eved persun may also move to suppxess evidence obtained er derived from the surveillance or search if ?the was unlawfully acquimd? or if it ?was not made in conformity with an order of anatom- {ion or approval? 382565). If the aggrieved pawn No. 13.31% '5 files a maxim to discover a: .suppress, and if the Attemey General certi?es that ?disciosure of any adversary hearing would harm the national security of the United States," than the. district. court mast "review in camera and ex pane,? the FISA materials and mie on the motion. 13.. FISA Collections On the FISC fcund probable cause to believe mat .15. persens. weze agents of a forei war. The FISC authorized electronic surveillance The initial authon?zation was far a period of - ?After an additional appiication by the government the FISC mbsequentiy re~autho?zed the the same facili?- ties for an additional period cf approximatel- To- iezher, they: two orders (:0de that: time period from- Ar triai, the government introduced evidence obtained or ?e?ved from the 6 Na 15~1175 C. Premium! On August 20.. 2013, the government provided notice to Turner that it ?intends t0 offer into evidence, or otherwise use or disclose in any proceedings in this matter,? informa? rim obtained or derived from? ?conaum an er 4 puma 1825{d). A week iater, on August 2013, a grand jury returned an indictment against um, (Jurging the following; (13 Count One alleged conspiring to act in the United States as an agent of a foreign gavemment without prior notification to the Attumey Genera}, in viom?on of 18 USC. 373, 951(a}; Count Two alleged acting in the United States as an agent of a foreign govment withoui prior noti?cation to the Amway Genera}, in violation of 18 951(3); and (3) Count Three aileged willfuliy conspiring to pmvide services on behalf oi, or for the bene?t of, Zimbabwean SONS, in vioia?on of the IEEPA, 50 ?5 1705?), am! 31 GER, 541.201, 541.204. and 541.405. On February 27', 2014, Turner filed a motion for disclo- sure of PISA materials and a motion to suppress evidence obtained or derived from PISA. me respon?ed to these motions with a classi?ed brief and sealed appendix submitted ex part: the. district and a redacted, un? dnssi?ed version served it: Tamer. Additionally, the gov- ermnent filed a ?Declaration anti Claim of Privilege" by the Attorney Genarai that declared, ?it harm the national security of the UMted States to disclose or hold an ad- No. 13-31178 3? vermin}. hearing with regards to the FISA Materials,? pursuw amt to Imam 1525(3). On My 25, 2014;, the district court, in a thorough and wail?reasoned npinion, denied Tums-2?s motion for disclo? sure his motion t0 Suppress.? The district com began by concluding that the _weze "lawfully autho?zed, because the guwmv ment presented sufficient evidence to the FISC to support a finding of pmbabie cause that-was the ?agent of a foreigi power." The court then determined that the iawfu?y aumatized REA warrants targeting ?we'rz executed "in caniom?ty with an order or anthem "ion or approval" because the government had properly minimized its cones-- titans Turner?s trial began on September 29, 2914. Ultimately, the jury acquitted Tumar of Counts One and Two but com victed him mi Count Three. The dish-int court sentenced Turner to 1.5 months? impriscnment and one year of vised release. was tnbemd agaimt Turner on Ianw my 21,2015. Turner?s appeal followed. 1 0n appeai, Turner does not ?a?enge :he district man?s denial 9f his mo?on to dimes: the FISA materials. Therefore, this claim is waivei and we do no: address it. See United States a. Macy, 493 F.3d 460 (3th Cir. 2307) {?Bmuse the agumm! was no: raised at deveioped in me opening briaf, it is waived?). 3 Na 154175 IL ANALYSIS On appeal, Tamer ciaims that the gamma investi~ gadon violated PISA and that the obtained or derived evi- dence should have been suppressed, First, Tamer argues that the FISC erred in ?nding that the met its probable cause and certi?ca?cm requiremwts. Smd, mm: contends that after 13:2ng the iawfu} FISC order. the govermnent did not propel-1y mimmize its sensations wade: FISA. Third. Turner contends that the FISA immtigaw Eon vioiated his protected rights We: the First Amm- ment. A. FISC Order This court re?m de ma the district ?and: riding an the propriety of the order? United v. Dumz?si. 424 P.3d 566, 5'78 (7th Cir. 2005). In other words, in review- ing the adequacy of a PISA applicatitm, this court conducts the 5m review as the. FISC. In rt Grand Jury Proc. of Special Apr. 2002 Grand Jury, 347 F.3d 2040111 Cir. 2(103). After reviewing the classi?ed record. we hold that the FISC properly fame! that the application met the requirements 9f probable cause and w??catim under EISA. No. 15?13?5 9 I. Probable Cause We; court reviews the probable cause detem?mu?m of the FISC de novo, Dumeisz?, 424 RM at 578-339, although we note that some of our sister courts have applied a more deb erential standard of review, 2.3., United States a, 630 F.3d 102, 130 (2d Cir. .2010) ("the established standard of iudiciai review applicable :0 PISA warrants is deferential?). According to PISA. 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 pawer? and that each (3f :he targeted faa?itiea or properties is being used by a famign power an agent of a foreign pawen 1804mm), 1805(a)(2). 1323(a)(3), 1824mm. We apply this gammy standard but acknowledge that some of our sister mum have sought to distinguish between probable cause under PISA and pmbable cause under a "typical criminnl case.? United States ts, ELMeaain, 664 P.3d 45?, 564 (5th Cir. 2011} probable cause standard is different from the standard in the typical ma: case because, rather than {musing on probable cause to believe that a person has com~ mitted a crime, the FISA standard focuses on the status of the target 35 a foreign power or an agent af 3 foreign power"). Even if there is a distinc?on between the two stanv duds, it does not affect our anaiys?s. In the present case, the 9m applications by the guverm men? 311 . mad the FISC's rcbable cause ?ndin that 4-, Ne. 15-1175 No. 15-1173 11 Additiomlly, the FISA applications supported the FISC findings of probable cause for the pmposed ?m FISA applications inducted evidence showmg that Accordingiy, the NSC properly found that the govew? mam "prob-able came? that? ?agent of a fmeign power? and that the ?were "baring used at about to use Tamer centends that appears to require 111% can? mt'micatians subj-ecf to sumi?am 0f a United States person must refute direcriy activities mv-oiving international tan rorism as de?md in {Appe?anz Br. 38?) Turner mis- states the "law. MESA is not limited to activities involving in- tematicnai terrorism. PISA autharizes surveiliance and. searches based on probable cause that the target. is an ?agent of a fareign power,? which 2933295 to ?any person" engage-d in certain activities (or knowingly aids and aha-ts a so engaged) an behaif of a mzeign power, including "chndew tine intelligence gathering activities? anti "ences?ngl the United States under a false or fraudulent identity or, 12 No, 15-11% whiie in the United States assumiing] a false 02' fraudu? tent identity." 1801mm, 1821(1). These activities are listed in addition to: "international terrorism." Id. Turner aim argues that if the sole purpase of the FLSA warrant was to gathm evideme for a criminal pmsem?m ?the intercept was impmpezf (Appeilant Br. 38?) Turner's argument is meritless. PISA, as amended in 2008.- ?eliminated my justi?cation for the FISA court to hair the reEative weight the gomnment pines on criminal prosecuticn as ccmparad to Omar comm?mt?wgence rem sponses.? In re Seeded (3425:, 310 ?1.36 717, 735 (PISA Ch Rev, 2002). In other words. while the govmunmt must "have a measurable foreign yurpase. other than just criminal prosecutitm." the amended PISA statute "dues not oblige the government to demonstrate to the FISA mutt that its primary purpose in conducting electronic: surveillance is no! criminal prosemtian.." 1d. at 735?436 (alteration in origiw ml). Here, as dismissed, the FISA apgiicatiom by govern? mam supported the pwbable cause finding mat wasted ?a mambie may: intenigm purpose? and thus. Turner?s argument faiis? ?nally, Turner claim; that the applicatiom may contain ?ttentionai or reckless material} falsehcods.? {Apprai- Ian: Br. 39.) In {Nearing- the unclassified and Wed re? No. 154175 13 card, we have me ?a mem'singful effort ta con?rm rim m- mracy of the application.? United States a. Dwarf, 755 F?3d 494?95 (7th Cir. 2014) (Roma, 1., concurring) (characterizing this review as serving ?the same harm-est that a Franks motion serves?). This review assures us that the H39. applicatiom did th contain intentional 0r reckless man W'falsehwds, Samaritan Turner also challenges the. ?nding that the govern? ment pmperly certi?ed that a ?significant purpose of? the proposed surveillance or search ?is to obtain foreign intelli- gence Warma?onf 1304mm, 1805(am), 3823(a)(6), FLSA expresaly pzovides that, for surveillance or searches targeting us. perm, the FISC must 2mm: only that the government?s certi?cations are ?an: cleariy mamas.? In revisming the adequacy of the application, this court conducts the same review as 312 FISC, and our role ?is mt no second~gu235 the executive branch of?cial?s certi?ca? titan.? Ir: r? fury Prat, Hid at 204. In this case, after retrieving the classi?e? word, we find that the govemmt?s requisite certifications were proper, The government premised the PISC with suf?dmt evidence certi?ca- ticms not erroneous." 14 NO. 15-1175 A. Minimization Under FISA, after receiving lawful FISC ciders, the gen:- 2mm: must employ "minimization procedures,? proposed in its application, that are reassembly designad ?to minimize the acquisition and retenticm, and prohibit the disseminaticn of nonpubiidy available concerning unconnenting United States pawns," as wen as provide ad- diticmal preheatinns relating to iniormation and. communica- tions mvoMng US. persons. ?180101), 1304mm), 1805(a)(3), The Aitcmey Camera! has adapted Standaxd Waximtion Procedures which are mama on file with the FESC and incoxpomted by referm into ew- PISA a_ Bastion and gran. These SNIPS permit? with re. . to take place aka: the initial acquisition cf the iniomationx in Tamar?s case, after receiving lawful FISC orders, the savanna-ant properiy minimized the FEA infomtian it coi- leded in accordance with the SMPs. The classified remrd ahows that, before examting the FISC order, the FBI ?erified the fadiities subject to the approved ?and ?int, subsequm .. so cm were conducted during the approved times using the least physical inn-um necessmy. The classi?ad record aim imii? rates that only authozized and imimd F81 personnel re- viewed, translated, analyzed, and used the collected Momma, and they did so with the purpese of detamiw ins whe?xer the Momtion remabiy appeared it: meet the retention stamina. Furthermore, it appears that any in- Na. 15-1175 15 fomation named to meet the Ma?a: standard was ?at- ?xer investigated, analyzed, and disseminated in accordazwe with the SW5. Finally, the dmi?ed record pmvides paw uh: and comnm evidence that only a percentage of the FISA coilec?an met the standard for remains and div semina?on. is suf?cient ho demonstrate that the govemment prapariy minimized the mformatiom meted pursuant to its FISC or?ar. B. Turner also claims that the FISA investigation viewed his ?pratected First Amendmem activity related to his belief in the Madam and humanity in lifting economic mamas against the Repub?c of Zimbabwe.? [Appellant Br. 38.) FIBA provides ?that Urdbed States person may be con:- solely upon the basis of activities protected by the ?xst amendment of the Cms?tuh?om oi the ?1de States.? 50 [5.5.6 1805(a)(2)(A), Tamar?s claim is magmas. In the present case, as div tamed, the classified recor?s Show that the 3mm: 25- tabliahed probable cause {ha-v33 an agent of a for cign mar, empietely indepmde?nt of any protected First Ammdment activity. See Dumeisi, 424 53d at $8439 (reject-o tag _a First Ammdment claim against PISA Widmce by a publisher of an Arabic i-anguage newspaper because "the provide-d probable cause that [the defendant] 16 No. 154125 was an agent of a foreign power entirely heck-532mm cf any of hlsjouma?atic activities?). HI. CONCLUSIQN Per the foregoing ream, the order of the district dour:- denying suppxession of the FISA evidence and its adden- iiary fruits was proper.