United States v. Thomas

201 F.Supp.3d 643

UNITED STATES of America

v.Keonna THOMAS a/k/a "Fatayat Al Khilafah" a/k/a "YoungLioness".

CRIMINAL NO. 15-171

United States District Court, E.D. Pennsylvania.

Signed August 18, 2016

Jennifer A. Williams, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Kathleen M. Gaughan, Federal Defenders Office, James J. McHugh, Jr., Defender Association of Phila., Philadelphia, PA, for Keonna Thomas.

MEMORANDUM RE DEFENDANT'S MOTION FOR NOTICE AND DISCOVERY OF SURVEILLANCE

Baylson, District Judge

I. Introduction

In this case involving allegations of attempted support for a foreign terrorist organization, Keonna Thomas ("Defendant") has moved the Court for an order compelling the Government to disclose to her all methods of surveillance that the Government used to monitor her communications and activities throughout its investigation. For the reasons that follow, Defendant's motion shall be denied without prejudice to filing a motion to suppress.

II. Facts and Procedural History

On April 23, 2015, a grand jury indicted Defendant for behavior allegedly occurring in this District from August 2013 to March 2015. The indictment charged that Defendant "knowingly and intentionally attempted to provide material support and resources, as defined in [18 U.S.C. § 2339A(b) (2015) ], including THOMAS herself as personnel, to a foreign terrorist organization, to wit: the Islamic State of Iraq and the Levant [i]n violation of [18 U.S.C. § 2339(B) (2015) ]." ECF 12. On August 18, 2015, the Court approved a stipulated Protective Order pursuant to Rule 16(d) of the Federal Rules of Criminal Procedure governing the dissemination of any materials produced in discovery. ECF 25. On August 20, 2015, the Court entered a scheduling order that, among other things, set the deadline for all defense motions regarding discovery as April 1, 2016. ECF 27.¹

On November 13, 2015, the Government filed an ex parte motion for a protective order sealing certain information pursuant to Section 4 of the Classified Information Procedures Act, 18 U.S.C.A. App. 3 § 4 (West 2016) ("CIPA") and Rule 16(d)(1) of the Federal Rules of Criminal Procedure. ECF 31 (under seal).² CIPA allows the Court, upon sufficient showing, to authorize the Government to "delete specified items of classified information from documents to be made available to the defendant through discovery..., to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove." 18 U.S.C.A. App. 3 § 4 (West 2016). The Court granted the Government's Motion on December 1, 2015 after an in camera review. Defendant did not seek to participate in the CIPA process and has not yet brought a direct motion challenge to the Government's withholding of any materials under CIPA.

On November 16, 2015, Defendant moved to dismiss the indictment on assorted constitutional grounds, including that the statute under which she was charged is impermissibly vague and overbroad in violation of the First Amendment. ECF 32. The Court denied Defendant's Motion on December 23. ECF 37; United States v. Thomas , CRIMINAL NO. 15–171, 2015 WL 9450870, at *2 (E.D.Pa. Dec. 23, 2015).

On April 1, 2016, Defendant moved for an order compelling the Government to provide her with a Bill of Particulars. ECF 40. The Court denied Defendant's motion on June 2, 2016 following oral argument. ECF 56; United States v. Thomas , CRIMINAL NO. 15–171, 2016 WL 3148204, at *1 (E.D.Pa. June 2, 2016).

On July 20, 2016, Defendant moved to compel notice and discovery of the Government's experts. ECF 67. The Court denied Defendant's motion as moot following a July 22 hearing, at which the parties agreed to a timeline for resolving pretrial motions involving expert witnesses. ECF 69.

Defendant filed the present Motion for notice of surveillance on June 30, 2016, and the Court held oral argument on it at the July 22, 2016 hearing. Defendant originally filed her Motion under seal, see ECF 61, but then filed a redacted copy on the public docket per agreement of the parties at the hearing. ECF 72. The Government, too, originally filed a sealed response (ECF 66) which has now been publicly docketed in full (ECF 74). Both sides submitted supplemental briefing following the July 22 hearing. ECF 71 (Defendant); ECF 77 (Government).

In her supplement, Defendant requested an opportunity to make an ex parte presentation to the Court concerning how the information the Court previously sealed pursuant to the Government's November 2015 motion for a protective order under CIPA might be relevant to her defense. The Court granted Defendant's request over the Government's objection, and Defendant made her presentation on August 12, 2016. The presentation lasted approximately 20 minutes, and the record has been sealed.

To date, Defendant has not filed a motion to suppress any of the evidence the Government intends to use at trial against her. Defendant has taken the position that before she can file any such motion, she needs to know how the Government surveilled her.

III. Parties' Contentions

The Government does not deny that it surveilled Defendant in at least some capacity, though it of course has not been willing to publicly comment on what if any classified techniques were employed. ECF 75 (July 22, 2016 Hr'g Tr.) 27:4-11. The Government instead contends that, because it does not intend to use any evidence obtained or derived from classified surveillance techniques, it has no obligation to inform Defendant of which classified techniques, if any, were used. See ECF 77 at 2 (clarifying that no evidence to be introduced at trial was derived from classified techniques).³ The Government asserts that it has produced all exculpatory material to Defendant in discovery already.⁴ As to information withheld pursuant to CIPA, the Government also argues that the Court can review it to confirm that everything material to Defendant's defense has been produced.

Defendant's argument is, in essence, based on the concept of the fruit of the poisonous tree. She seeks discovery of all surveillance methods used against her to determine if the Government's surveillance violated her constitutional rights and lead to evidence which could be introduced at trial. Defendant argues that despite the Government's representations concerning the evidence it will use at trial and the discovery Defendant has received, she is entitled to know if the evidence the Government obtained against her through its lawfully-obtained search warrants was derivative of unlawful surveillance. In essence, Defendant contends that without knowing the "seeds" of surveillance that the Government used to identify her, it cannot determine if anything in the Government's case in chief is the "fruit" of a potentially poisonous tree. Defendant also devotes a substantial portion of her brief to (mostly hearsay) non-case newspaper and internet citations concerning the Government's alleged withholding of sources of surveillance in various contexts. ECF 72 at 8-25.

IV. Analysis of Defendant's Motion for Notice of Surveillance

A. The Court Will Consider Defendant's Motion Notwithstanding the Fact that It Is Untimely

The Court begins by observing that Defendant's Motion is untimely. Per the Court's August 20, 2015 scheduling order (ECF 27), all defense motions regarding discovery were to be filed and served on or before April 1, 2016. Defendant has not sought an extension of this deadline, though she asserts the Government's discovery was not completed until after April 1. Nevertheless, in the interests of justice and fairness the Court will consider Defendant's arguments.

B. The Relief Defendant Seeks is Unprecedented and Her Cases Are Distinguishable

Defendant has not cited, and this Court has not located, any judicial decision awarding a criminal defendant the relief Defendant seeks here. Those opinions the Court has uncovered have in fact rejected requests mirroring Defendant's. See United States v. Tsarnaev , Criminal Action No. 13–10200–GAO, Dkt. 270 (Apr. 16, 2014 Hr'g Tr.) 39:20-40:5 (D. Mass. Apr. 28, 2014) (saying that no action would be takenon the defendant's motion for notice of surveillance (Dkt. 232)); United States v. Yagman , No. CR 06–227(A) SVW, Dkt. 443 (C.D. Cal. July 17, 2007) (denying defendant's motion for search and disclosure of electronic surveillance). In several cases, the Government's representation that no evidence obtained or derived from classified surveillance would be used was sufficient to render disclosure of the surveillance unnecessary. See United States v. Bundy , No. 3:16–cr–00051–BR-3, Dkt. 770 (D.Or. June 24, 2016) (defense counsel withdrawing a motion to compel notice of surveillance based on government representations that no evidence in the case "derives, directly or indirectly, from any form of National Security monitoring"); United States v. Qazi , No. 12-cr-60298-BB, Dkt. 259, at *8 (S.D. Fla Oct. 29, 2014) ("The government has indicated that it will not use evidence obtained or derived from FAA-authorized surveillance as to which Defendants are aggrieved persons in the course of this prosecution. The Government shall be held to this assertion, and accordingly, notice is not merited.").

Defendant appears to have based substantial portions of her Motion from a "Joint Motion for Notice of the Surveillance Techniques Utilized by the Government," which is docket entry 653 in United States v. Muhtorov , Case 1:12-cr-00033-JLK, Dkt. 653 (D. Colo. Oct. 20, 2014). Compare id. at 2, 9 with ECF 72 at 3, 15. Even in that case, the court did not grant the relief sought. It instead denied defendants' motion without prejudice to renew after a CIPA Section 4 hearing, Muhtorov , Dkt. 771 (D. Colo. June 17, 2015), and the record of that case does not show whether that hearing has happened. As previously noted, Defendant has only recently taken an interest in the Government's...