Case 15-2684, Document 41, 02/21/2016, 1709150, Page1 of 8
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Thurgood Marshall U.S. Courthouse at Foley Square

40 Centre Street, New York, NY 10007

Telephone: 212-857-8500

MOTION INFORMATION STATEMENT

Caption [use short title]
Docket Number(s):

U.S. v. HASBAJRAMI

15-2684

Motion to: Hold Appeal in Abeyance Pending Disclosure of Related District Court Order
Set forth below precise, complete statement of relief sought:

Appellant’s counsel requests that the instant appeal be held in abeyance pending the disclosure to counsel of
a Classified Opinion that has been issued by the District Court this past week that directly relates and impacts
the issues to be raised on appeal. Said opinion is currently undergoing the security classification review
process required by the Classified Information Procedures Act, 18 U.S.C. Art. 3, and it is our understanding
from conversations with the Government and the Classified Information Security Officer that Appellant’s
counsel will receive this opinion as soon as the security classification review process is complete (we already
possess the level of security clearance required to review the opinion once disclosed to counsel).
MOVING PARTY:

OPPOSING PARTY: UNITED STATES

Agron Hasbajrami

□ Plaintiff
■ Appellant/Petitioner

■ Defendant
□ Appellee/Respondent

OPPOSING ATTORNEY:

MOVING ATTORNEY:

[name of attorney, with firm, address, phone number, and email]

[name of attorney, with firm, address, phone number, and email]

AUSA SETH D. DUCHARME
U.S. Attorney’s Office
Southern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
(718) 254-6021

MICHAEL K. BACHRACH, Esq.
276 Fifth Avenue, Suite 501
New York, NY 10001
(212) 929-0592 / michael@mbachlaw.com

Court-Judge/Agency appealed from: Hon. John Gleeson (U.S.D.J.) (Eastern District of New York)
Please check appropriate boxes:
FOR EMERGENCY MOTIONS, MOTIONS FOR
STAYS AND INJUNCTIONS PENDING APPEAL:
Has movant notified opposing counsel:
Has request for relief been made below?
□ Yes □ No
■ Yes □ No (explain):
Has this relief been previously sought in
Opposing counsel’s position on motion:
in this Court?
□ Yes □ No
■ Unopposed □ Opposed □ Don’t Know
Requested return date and explanation of emergency:
Does opposed counsel intend to file a response:
□ Yes ■ No □ Don’t Know
Is oral argument requested?
Has argument date of appeal been set:

□ Yes ■ No (requests for oral argument will not necessarily be granted)
□ Yes ■ No If yes, enter date

Signature of Moving Attorney:

/S/ Michael K. Bachrach

Date:

February 21, 2016

Service by: ■ CM/ECF □ Other [Attach proof of service]

ORDER
IT IS HEREBY ORDERED that the motion is GRANTED DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
Date:

By:

 Case 15-2684, Document 41, 02/21/2016, 1709150, Page2 of 8

MOTION INFORMATION FORM
United States Court of Appeals

FOR THE SECOND CIRCUIT
UNITED STATES OF AMERICA,
Appellee,
-againstAGRON HASBAJRAMI,
Defendant-Appellant.

LAW OFFICE OF
MICHAEL K. BACHRACH
Attorneys for Petitioner
Office & Post Office Address & Telephone Number

276 Fifth Avenue, Suite 501
New York, New York 10001
(212) 929-0592
Attorney for Agron Hasbajrami

15-2684

 Case 15-2684, Document 41, 02/21/2016, 1709150, Page3 of 8

UNITED STATES CIRCUIT COURT
FOR THE SECOND CIRCUIT
-----------------------------------------------------X
UNITED STATES OF AMERICA,
15-2684
Appellee,
-againstAGRON HASBAJRAMI,

AFFIRMATION IN
SUPPORT OF MOTION TO
HOLD APPEAL IN ABEYANCE

Defendant-Appellant.
-----------------------------------------------------X
MICHAEL K. BACHRACH, ESQ., affirms the following under penalty of perjury:
1.

I, along with Steve Zissou and Joshua L. Dratel, represent Defendant-Appellant

Agron Hasbajrami (hereinafter, “Appellant” or “Hasbajrami”) in the above-captioned matter. I
submit this Affirmation in support of our application to hold the instant appeal in abeyance
pending the disclosure to counsel of a Classified Opinion issued this week by the District Court,
which directly relates to and impacts the issues to be raised on appeal. Said Classified Opinion is
currently undergoing the security classification review process required by the Classified
Information Procedures Act (“CIPA”), 18 U.S.C. Art. 3, and it is our understanding from
conversations with the Government and the Classified Information Security Officer that
Appellant’s counsel will receive a copy of this Classified Opinion as soon as the security
classification review process is complete (we already possess the level of security clearance
required to review the opinion once disclosed to counsel).
2.

We respectfully submit that abeyance of the instant appeal is necessary because:

(1) it is counsel’s understanding from conversations with the Government that the Classified
Opinion will have a direct impact on Appellant’s pending appeal and will need to be addressed in
Appellant’s Opening Brief on Appeal; (2) it is unknown how long the classification review

 Case 15-2684, Document 41, 02/21/2016, 1709150, Page4 of 8

process will take; (3) notwithstanding this unknown, it is our understanding from conversations
with the Government and the Classified Information Security Officer that the undersigned will
receive a copy of the Classified Opinion as soon as the security classification process is
complete; (4) an abeyance of the instant appeal is warranted so that this appeal may be taken
upon a complete record of the underlying District Court proceedings; (5) an abeyance of the
instant appeal is in the interest of justice; and (6) an abeyance of the instant appeal will save
judicial resources.
3.

Pursuant to a conditional guilty plea, Defendant-Appellant Agron Hasbajrami was

convicted of one count of provision and attempted provision of material support to terrorists in
violation of 18 U.S.C. § 2339A, and one count of conspiracy to commit material support to
terrorists in violation of 18 U.S.C. § 371. Hasbajrami was thereafter sentenced to an aggregate
term of 16-years imprisonment by the Honorable John Gleeson, United States District Court
Judge for the Eastern District of New York.
4.

The specific condition of Hasbajrami’s conditional guilty plea was the agreement

between the parties, first suggested by Judge Gleeson, that Hasbajrami would be permitted to
appeal, inter alia, Judge Gleeson’s denial of Hasbajrami’s suppression motions. The primary
reason a conditional guilty plea was believed appropriate by all parties was because
Hasbajrami’s suppression motions raised two issues of first impression, both that possess broad
national and international implications: (1) whether Section 702 of the FISA Amendments Act
(the “FAA”), codified as 50 U.S.C. § 1881a, violates the Fourth Amendment to the United States
Constitution since Section 702 authorizes the Government to conduct surveillance and
interception of electronic communications without a warrant; and (2) whether, even if
Constitutional, the manner in which Section 702 was applied against Hasbajrami violated the

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statute itself since Hasbarjrami was a U.S. person residing in the United States at all times
relevant to the surveillance and interception of his electronic communications. (The conditional
plea also permits Hasbajrami to appeal the length of his sentence.)
5.

Judge Gleeson had initially denied Hasbarjami’s suppression motions with a short

electronic order simply stating, in relevant part, “The defendant’s motion to suppress the fruits of
the FAA surveillance, including defendant’s post-arrest statements (DE 92) is denied.

An

opinion will follow.” By the time of Hasbajrami’s sentencing and the issuance of his Judgment,
however, Judge Gleeson had not yet issued any further opinion. As such, the instant appeal
proceeded under the belief – by both Appellant and the Government – that Judge Gleeson’s
further opinion had been abandoned and was no longer forthcoming.
6.

On February 17, 2016, the undersigned learned for the first time that Judge

Gleeson had not abandoned the further explanatory order after all, and that a decision, filed
pursuant to the Classified Information Procedures Act, 18 U.S.C. Art. 3, had just been issued.
7.

On February 18, 2016, the Government confirmed to defense counsel that the

Classified Opinion had just been issued, that it relates directly to Hasbajrami’s suppression
motions, and as such that it relates directly to the present appeal.

The Government also

confirmed that the decision is presumptively classified due to the specific subject matter
discussed therein, and that the Classified Opinion is presently undergoing a security
classification review to determine whether it will be classified at the SECRET, TOP SECRET,
some higher level, or ultimately declassified. The Government agreed that the undersigned
possesses the level of security clearance required to review the Classified Opinion once its
classification level has been determined, and that the undersigned possesses a “need to know”
the contents of the Classified Opinion since it directly relates to the instant appeal.

 Case 15-2684, Document 41, 02/21/2016, 1709150, Page6 of 8

8.

The Government cannot estimate, however, how long the classification review

process will take. Attempts are being made to expedite the process, but past experience shows
that the review process, even when expedited, can take anywhere from days to weeks to longer;
there is simply no way for defense counsel or the Government to accurately estimate the length
of time that the security classification review process will take.
9.

At present, Hasbajrami’s Opening Brief on Appeal is due on March 23, 2016.

There is no question, however, that Hasbajrami’s Opening Brief will need to address the contents
of Judge Gleeson’s Classified Opinion – both in Appellant’s Opening Brief itself and also
possibly in a Classified Supplemental Brief (depending on the specific content of the Classified
Opinion).
10.

The classified nature of Judge Gleeson’s opinion also creates an additional,

practical, complication with respect to the completion of Hasbajrami’s Opening Brief on Appeal.
Classified information may only be reviewed, discussed, and written about, in a Secured
Classified Information Facility (“SCIF”), a room in which internet access is absolutely
prohibited. Except for any books that counsel can physically carry into the SCIF, there is no law
library of any kind in the SCIF to make up for the lack of internet access. As such, cases must be
printed out at counsel’s office, home, or a law library, and then brought to the SCIF before
counsel can draft any arguments evaluating the Classified Opinion in the context of such case
law. If a new argument is realized while in the SCIF that requires additional legal research, then
a return trip to the office, home, or law library to conduct additional legal research is required.
This time consuming back and forth repeats itself until the brief is complete.
11.

The undersigned has considerable experience drafting briefs in SCIFs, and based

upon counsel’s experience working in SCIF’s in this case and others, the practical limitations

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imposed by the Classified Information Procedures Act exponentially slows the brief-writing
process.
12.

Furthermore, since the undersigned will have no access to the Classified Opinion

until the security classification review process is complete, the undersigned has no way of
predicting how to modify the current working-draft of Hasbajrami’s Opening Brief on Appeal to
reflect the District Court’s Classified Opinion. Indeed, it is quite possible that the current draft
of Hasbajrami’s Opening Brief will need to be entirely scrapped and the brief completely rewritten.
13.

Stated simply, Appellant’s counsel cannot submit a complete or effective brief

until given access to the order under appeal. While the parties both thought the record had been
complete at the time the filing deadlines were set in this case, both parties were wrong.
14.

As such, in light of Judge Gleeson’s Classified Opinion, issued this past week, we

respectfully submit that the instant appeal should be held in abeyance until such time as the
undersigned has been provided with a copy of the Classified Opinion to review and incorporate
into the arguments raised on appeal. Once received counsel will propose a revised briefing
schedule pursuant to Rule 31.2(a)(1)(A) of the Local Rules of this Court.
15.

I have spoken to United States Attorney Seth D. DuCharme and he has informed

me that the Government has no objection to the instant application. Indeed, both parties agree
that an abeyance is warranted under these unique circumstances.
WHEREFORE, the undersigned respectfully requests that this Court hold the instant
appeal in abeyance pending disclosure to Appellant’s counsel of the District Court’s Classified
Opinion discussed herein.

 Case 15-2684, Document 41, 02/21/2016, 1709150, Page8 of 8

Dated: New York, New York
February 21, 2016
Respectfully submitted,

/S/ Michael K. Bachrach

_____________________________
MICHAEL K. BACHRACH, ESQ.
276 Fifth Ave., Suite 501
New York, New York 10001
(212) 929-0592
Attorney for Defendant-Appellant
Agron Hasbajrami