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United States v. Hendricks

United States District Court, N.D. Ohio, Eastern Division

February 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ERICK JAMAL HENDRICKS, Defendant.

          MEMORANDUM OPINION

          JOHN R. ADAMES Judge

         The Court has before it Erick Jamal Hendricks' (the defendant's) Pretrial Motion for Disclosure of Foreign Intelligence Surveillance Act (FISA)-Related Material and to Suppress the Fruits or Derivatives of Electronic Surveillance (hereinafter Doc. 40 or defendant's motion). For the reasons set forth below, the defendant's motion is hereby DENIED, [1]

         On August 17, 2016, the defendant was charged by indictment in the Northern District of Ohio with one count of conspiracy to provide material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B (a)(1). (See Doc. 7). On December 13, 2016, a superseding indictment was returned, which charged Hendricks with one count of conspiracy to provide material support to a foreign terrorist organization and one count of attempting to provide material support to a foreign terrorist organization, both in violation of 18 U.S.C. § 2339B(a)(1). (See Doc. 25).

         On October 6, 2016, pursuant to 50 U.S.C. §§ 1806(c) and 1825(d), the United States provided notice to Hendricks and this Court that it "intends to offer into evidence, or otherwise use or disclose. . . information obtained or derived from electronic surveillance and physical searches conducted pursuant to [FISA]." (See Doc, 20). On July 28, 2017, Hendricks filed his motion. (See Doc. 40).

         On September 29, 2017, the Government filed an unclassified response in opposition to the defendant's motion, which included a Declaration and Claim of Privilege by the Attorney General asserting under oath that disclosure of the Government's FISA materials and an adversary hearing with regard to the defendant's motion, would harm the national security of the United States. (See Docs, 45 and 47). Additionally, on September 29, 2017, the Government filed a classified response and appendix with the Court in camera, ex parte, and under seal.

         I. Findings

         The Court has reviewed all submissions, including the relevant FISA materials contained in the Sealed Appendix submitted to the Court, in camera and ex parte, in conjunction with the Government's classified response, Based on its in camera and ex parte review of these materials, the Court finds as follows:

         FISA contains specific and detailed procedures required for obtaining orders to authorize electronic surveillance and physical search of a foreign power or an agent of a foreign power. The President has authorized the Attorney General to approve applications to the Foreign Intelligence Surveillance Court (FISC) for electronic surveillance and physical search for foreign intelligence information and purposes. Thus, to begin the FISA process, an application approved by the Attorney General that contains specific information is filed ex parte and under seal with the FISC. 50 U.S.C. §§ 1804(a) and 1823(a). The FISC must then make necessary, specific findings after reviewing an application before entering an ex parte order, 50 U.S.C. §§ 1805(a) and 1824(a), which specifically identifies the targeted facilities and directs how the electronic surveillance and physical search are to be conducted. 50 U.S.C. §§ 18O5(c)(1)-(2) and l824(c)(1)-(2). In this case, the relevant FISA materials provided to the Court in camera and ex parte establish that:

1. the application(s) was/were made by a federal officer and approved by the Attorney General (50 U.S.C. §§ 1805(a)(1) and 1824(a)(1));
2. the application(s) contained facts establishing probable cause to believe that the target of the electronic surveillance and physical search was an agent of a foreign power (50 U.S.C. §§ 1805(a)(2)(A) and 1824(a)(2)(A));
3. no United States person was determined to be an agent of a foreign power solely upon the basis of activities protected by the First Amendment to the United States Constitution (50 U.S.C. §§ 1805(a)(2)(A) and 1824(a)(2)(A)); ''"
4. the application(s) made pursuant to 50 U, S.C\ §§ 1804 and 1823 contained facts establishing probable cause to believe that each of the facilities or places at which the electronic surveillance and/or physical search was directed was being used, or was about to be used, by a foreign power or an agent of a foreign power (50 U.S, C. §§ 1805(a)(2)(B) and 1824(a)(2)(B));
5. the minimization procedures incorporated into the application(s) and order(s) met the requirements of 50 U.S.C. §§ 1801(h) (50 U.S.C; § 1805(a)(3)), 1821(4) (50 U.S.C.§ 1824(a)(3)), and the government implemented such minimization procedures in conformity with an order of authorization or approval;
6. the application(s) contained all of the statements and certifications required by 50 U.S, C. §§ 1804 (50 U.S.C. § 1805(a)(4)) and ...

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