It was not a constitutional violation for two men charged with terrorism-related offenses to wait six-and-a-half years before receiving a trial, the federal appeals court based in Denver ruled on Wednesday, while also upholding the government's surveillance framework for suspected national security threats.
In a pair of decisions spanning 280 pages, a panel of the U.S. Court of Appeals for the 10th Circuit split, 2-1, on the question of whether Jamshid Muhtorov and Bakhtiyor Jumaev should have their convictions overturned for a violation of the Sixth Amendment, which guarantees the right to a speedy trial.
Although all members of the panel agreed that the gap between the men's 2012 arrests and their 2018 trials was egregious — with the majority calling it "lengthy," "unusual" and "concerning" — the 10th Circuit ultimately believed the delay was warranted given the complexity of the cases.
"Six-and-a-half years in pretrial detention is unusually long. But very little about this prosecution was usual," wrote Judge Scott M. Matheson Jr., an Obama administration appointee, for himself and Judge Allison H. Eid, an appointee of the Trump administration.
While the majority attributed the six-and-a-half year delay to the production of copious evidence requested by the defendants, Senior Judge Carlos F. Lucero refused to believe the federal government moved as urgently as it could have in handing over materials that Muhtorov and Jumaev were entitled to.
"Surely the government, in bringing cases of this type, must be prepared to direct the resources necessary to comply with its constitutional obligations. Some delay is acceptable. Close to 55 months to provide constitutionally mandated discovery is not," wrote Lucero, a Clinton administration appointee.
Both Muslims, Muhtorov and Jumaev were Uzbekistani refugees who met in Philadelphia in 2009. They shared an interest in the Islamic Jihad Union, which the U.S. Department of State and the United Nations Security Council have designated as a terrorist group.
At the time, the federal government was intercepting their communications using Section 702 of the Foreign Intelligence Surveillance Act. Section 702 is a post-9/11 program to monitor non-American targets abroad, even though such surveillance may incidentally sweep up communications with residents of the United States. The government used Section 702 material to apply for specific surveillance of Muhtorov, who lived in Colorado and who was communicating with a foreign target.
Authorities learned that both men intended to provide money to the IJU in the form of a $300 check Jumaev would send to Muhtorov, who would then turn it over to the organization. Muhtorov also swore allegiance to the IJU and told a federal informant of his plans to travel to Turkey and join the group. Agents arrested Muhtorov in January 2012 at Chicago's O'Hare International Airport. Jumaev's arrest occurred shortly afterward.
The government charged both men with providing and attempting to provide material support to a foreign terrorist organization — namely through the $300 check.
Despite the straightforward nature of the alleged crime, Muhtorov and Jumaev remained incarcerated until mid-2018, when they were finally convicted. The three judges on the 10th Circuit panel acknowledged the delay was due to the 1,862 hours of audio communications, amounting to 39,000 files, that the government recorded and translated. The conversations were in Russian, Uzbek and Tajik, and the defendants requested all statements in the government's possession that were purportedly from them.
During oral arguments last year, the government called the translation issues "significant," and said that it was difficult to obtain security-cleared Uzbek and Tajik translators to fulfill the defendants' request for evidence.
"There are two roads in litigation. There’s the quick road where counsel says, 'Let’s dispense with motions for most of it. My client wants a trial and he wants it now. He doesn’t wanna be in jail'," said James C. Murphy of the U.S. Attorney's Office.
"I just think that is a naive argument," Lucero interrupted. "I mean, the government has the resources to conduct a case properly, to do certain aspects of the case at the same time that they’re doing others."
Lucero also asked whether the complexity of the case was reason enough to delay a trial for six years.
"When the case is based upon voluminous interceptions, many of which are classified information, yes, that’s a very good reason," Murphy responded.
In the intervening period, however, the government handled the case in ways that raised the eyebrows of even the panel's majority. The government took years to disclose that it had made use of Section 702 data. It added two charges to the indictments more than four years after the men's arrest, then dismissed those right before trial. It disclosed relevant information about a witness only at the last minute.
"Our analysis is not blind to the government’s conduct," Eid wrote for herself and Matheson in the Jumaev opinion.
Matheson and Eid ultimately concluded that the government acted in good faith in Muhtorov's case, and that Jumaev did not make a speedy trial objection until the eve of his original trial. They also declined to hold against the government another postponement owing to the medical treatment of U.S. District Court Senior Judge John L. Kane, who presided over the cases.
Lucero blasted the majority's conclusion as an "extreme departure," writing that the government must forgo prosecution if its need to protect classified information results in a violation of a defendant's constitutional rights. He also indicated the trial judge's illness would not have postponed the trial if not for the government's numerous other delays. He faulted the government for failing to engage with the classification process for more than three years.
Lucero would have reversed both men's convictions, and noted the extreme nature of the pretrial incarceration.
"For the first two months, [Muhtorov] was in 24-hour lockdown with no access to a telephone or religious or other reading materials. He was moved to numerous facilities and spent years with no physical contact with his family, including a daughter born after he was imprisoned. He was unable to hold his daughter for the first six years of her life, seeing her only through the glass barrier in the jail’s visiting room," he wrote. "Mr. Muhtorov has established that the oppressiveness of his pretrial incarceration weighs in his favor."
Jumaev's attorney, Caleb Kruckenberg, indicated he would seek further review of the decision by the U.S. Supreme Court or from a panel consisting of all of the 10th Circuit's judges.
"Mr. Jumaev, who was presumed innocent, was held in custody thousands of miles away from his family while he waited for his day in court," Kruckenberg said. "My client's conviction was unjust, and should concern anyone who cares about the presumption of innocence."
Foreign surveillance upheld
The panel in the Muhtorov decision also upheld as constitutional the warrantless collection of communications under Section 702. Several outside groups weighed in to the 10th Circuit, asking it to find the government's tactics violated the Fourth Amendment's prohibition on unreasonable searches and seizures.
"The government not only retains these communications for years; it searches — or 'queries' — them routinely. It does so both to investigate crime and to gather foreign intelligence. And it does so without a warrant or any other kind of prior individualized judicial approval," wrote David Medine and Sharon Bradford Franklin, who have expertise in civil liberties and surveillance, in a brief supportive of Muhtorov.
The warrantless surveillance of foreign targets who may be communicating with people in the United States came to light following a 2005 report in The New York Times. Now, thanks to Section 702, the Foreign Intelligence Surveillance Court approves the procedures for conducting surveillance abroad, with the government required to get further approval when it wants to monitor a specific target.
Muhtorov claimed that because the government used material it collected under Section 702 to pursue its more targeted surveillance of him, the evidence should have been suppressed at trial.
The 10th Circuit decided the foreign target of the government's surveillance was not protected under the Fourth Amendment. The court further concluded that the government's interest in monitoring people who are communicating inside the United States with groups it labels as terrorist organizations outweighed Muhtorov's right to privacy.
"The threat to the United States when foreign actors coordinate with and recruit United States persons bolsters the reasonableness of the incidental collection of United States persons’ communications during lawful foreign intelligence surveillance directed at foreign nationals abroad," Matheson wrote.
Lucero also believed the government's collection of Muhtorov's communications under Section 702 complied with the Fourth Amendment, but questioned why the majority chose to believe the government's assertion that it had not searched through mass-collected data for Muhtorov prior to obtaining a warrant to monitor him. He cited declassified statements about the Section 702 program that described how the Federal Bureau of Investigation will query Section 702 information when opening a new investigation.
"Under the majority’s approach, law enforcement may routinely fish for Americans’ data without first bothering to obtain a license," Lucero warned.
He also sympathized with Muhtorov's argument that Section 702 is unconstitutional because it required the Foreign Intelligence Surveillance Court to authorize mass surveillance without a specific case at hand.
Muhrotov had claimed the situation would be akin to the Denver Police Department asking a court in advance if its use of force policy is constitutional, or the Transportation Security Administration to have a judge determine whether a new airport screening procedure is reasonable. Lucero indicated he agreed but would solve the problem by requiring the Foreign Intelligence Surveillance Court to give no weight to the broad approval of data collection policies under Section 702 when it considers individual warrant requests.
Matheson and Eid took no issue with the current protocols.
The American Civil Liberties Union, which represented Muhtorov on appeal alongside the public defender's office, criticized the ruling as having serious implications for residents of the United States who communicate with friends or family abroad.
"Under Section 702, the government for years has amassed our online messages, chats, and emails without a warrant, violating the constitutional rights of countless Americans, including Mr. Muhtorov," said Patrick Toomey, senior staff attorney with the ACLU’s National Security Project. “Mass surveillance threatens all of us. The FBI and [National Security Administration] don’t have a free pass to seize and sift through our most sensitive communications, and we will keep fighting to ensure they can’t violate the Constitution.”
Muhtorov and Jumaev have since served the entirety of their sentences.
The cases are United States v. Muhtorov and United States v. Jumaev.
