UNITED STATES v. MUHTOROV

No. 18-1366.

20 F.4th 558 (2021)

UNITED STATES of America, Plaintiff-Appellee, v. Jamshid MUHTOROV, Defendant-Appellant. Peter Fenn; Loch Johnson; David Medine; Sharon Bradford Franklin; Brennan Center for Justice at NYU School of Law; National Association of Criminal Defense Lawyers, Amici Curiae.

United States Court of Appeals, Tenth Circuit.

FILED December 8, 2021.


Attorney(s) appearing for the Case

Patrick Toomey , American Civil Liberties Union Foundation, New York, New York ( Ashley Gorski , American Civil Liberties Union Foundation, New York, New York, Virginia L. Grady , Federal Public Defender, Denver, Colorado, John C. Arceci , Assistant Federal Public Defender, Denver, Colorado, with him on the briefs), for Defendant-Appellant.

Joseph Palmer , National Security Division, U.S. Department of Justice, Washington, D.C. ( Steven L. Lane , National Security Division, U.S. Department of Justice, Washington, D.C., Jason R. Dunn , former United States Attorney, Denver, Colorado, Matthew R. Kirsch , United States Attorney, Denver, Colorado, James C. Murphy , Assistant United States Attorney, District of Colorado, Denver, Colorado, John C. Demers , Assistant Attorney General, Denver, Colorado, with him on the briefs), for Plaintiff-Appellee.

Andrew Crocker and Aaron Mackey , Electronic Frontier Foundation, San Francisco, California, filed an amicus brief on behalf of Church Committee Staff in support of Defendant-Appellant.

Andrew C. Lillie , Jessica Black Livingston , Nathaniel H. Nesbitt , and Mark D. Gibson of Hogan Lovells US LLP, Denver, Colorado filed an amicus brief on behalf of David Medine and Sharon Bradford Franklin in support of Defendant-Appellant.

Elizabeth Goitein , of The Brennan Center for Justice at NYU School of Law, Washington, D.C., filed amicus brief in support of Defendant-Appellant.

Norman R. Mueller of Haddon, Morgan and Foreman, P.C., Denver, Colorado, and John D. Cline , Law Office of John D. Cline, San Francisco, California, filed an amicus brief on behalf of National Association of Criminal Defense Lawyers in support of Defendant-Appellant.

Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and EID, Circuit Judge.


TABLE OF CONTENTS

BACKGROUND ... 580

A. Factual and Investigative Background... 581

B. Procedural History ... 581

C. Issues on Appeal ... 582

I. Fourth Amendment Challenge to Section 702-Derived Evidence ... 583

A. Historical and Legal Background... 583

1. Pre-FISA...

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