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Case 0:12-cr-60298-RNS Document 83 Entered on FLSD Docket 05/14/2013 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 12-60298-CR-SCOLA




UNITED STATES OF AMERICA,


Plaintiff,





v.

SHEHERYAR ALAM QAZI,







Defendant.

_____________________________/


DEFENDANT’S REPLY TO THE GOVERNMENT’S MOTION FOR

RECONSIDERATION OF THE COURT’S ORDER GRANTING DEFENDANT’S

AMENDED MOTION TO COMPEL NOTICE OF ITS INTENT TO USE
INFORMATION DERIVED PURSUANT TO THE FISA AMENDMENTS

ACT (FAA) (DE 80)





Mr. Qazi, through undersigned counsel, files this reply to the government’s DE 80 in

which the government asks the Court to reverse its Order (DE 77) that granted defendant’s

amended motion to compel notice of intent to use information obtained or derived pursuant to

the FISA Amendments Act (“FAA”), 50 U.S.C. § 1881a.

The government has no basis for seeking reconsideration of the Court’s order. Mr. Qazi’s

motion and the Court’s Order are consistent with the FAA’s requirement that the government

provide notice of its intent to use evidence obtained or derived from FAA surveillance, as

recently affirmed by the Supreme Court in Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1154

(2013). See 50 U.S.C. §§ 1881e(a), 1806(c). Mr. Qazi has sought this notice from the outset. See

DE 67 at 1, 2, 4, 5 (seeking notice of the government’s “intent to use or disclose information

obtained or derived from any § 1881a acquisition”). The government concedes its duty to give

Mr. Qazi notice, see DE 80 at 3, yet it continues to resist giving notice of FAA-derived



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information—in particular, whether FAA surveillance provided support for a traditional FISA

application. But that refusal runs contrary to the plain language of the Amnesty decision and the

FAA’s notice provision, which require notice in precisely these circumstances.



The government’s motion for reconsideration confuses the issue; Mr. Qazi’s motion for

notice does not ask the government to turn over any classified material, nor does it trigger the

procedures set forth in 50 U.S.C. § 1806(f). The motion simply seeks a “yes” or “no” answer as

to whether the government intends to rely on evidence obtained—or derived—from surveillance

conducted pursuant to the FAA. That is a question that concerns only the government’s legal

authority for its surveillance and interception of electronic communications, and it is precisely

the type of limited disclosure contemplated by 50 U.S.C. § 1806(c) and required by the Fourth

and Fifth Amendments. If the government relied on FAA surveillance in obtaining a traditional

FISA order, and thereby gathered evidence it intends to use in this case, then that evidence is

“derived” from the FAA. In those circumstances, Mr. Qazi is entitled to notice because the

government’s evidence is the fruit of FAA surveillance. That is all the Court’s Order requires

when it directs the government to state “whether the affidavit and other evidence offered in

support of any FISA order relied on information obtained under or derived from an FAA

surveillance order.” DE 77 at 1. The government can answer the question in one word, and that

is the bare minimum required by both 50 U.S.C. § 1806(c) and the Supreme Court’s Amnesty

decision.











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ARGUMENT

I.

Mr. Qazi Is Entitled To Notice Of The Government’s Intent To Rely On FAA-
Derived Evidence, Including FAA Material Offered In Support Of Any FISA
Application.

The government, after dismissing Mr. Qazi’s motion for notice as moot in a two-page

filing, DE 75, now asks this Court to reconsider its order granting that motion. But the

government has no basis to do so. A motion for reconsideration “should not be used as a vehicle

to present authorities available at the time of the first decision.” Burger King Corp. v. Ashland

Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002). Moreover, reconsideration of an

order is “an extraordinary remedy to be employed sparingly.” Telamy v. Edwards, No. 11-62066-

CIV, 2013 WL 1624291 (S.D. Fla. Apr. 15, 2013) (quoting Gathagan v. Rag Shop / Hollywood,

Inc., No. 04–805200–CIV, 2005 WL 6504749, at *1 (S.D. Fla. May 9, 2005)).

Mr. Qazi’s reply did not seek any “additional relief,” as the government contends. DE 80

at 2. Rather, it simply specified one kind of notice required by the statute—i.e., notice that

includes any intent to use evidence obtained or derived from FAA surveillance. Mr. Qazi sought

notice of this information in his initial motion. See DE 67 at 1, 2, 4, 5 (seeking notice of the

government’s intent to use information “obtained or derived” from FAA surveillance). As Mr.

Qazi made clear in his reply, if the government relied on FAA-derived information in its

application for a traditional FISA order, he is entitled to notice of the underlying FAA

surveillance. This scenario is but one way in which the government may intend to rely on FAA-

derived evidence—but it is a very likely one.1 Thus, Mr. Qazi asked the government to provide


1 In particular, if the government captured communications made by Mr. Qazi in the course of
warrantless FAA surveillance, it is likely that it would have expanded its investigation into his
activities by, among other things, seeking a targeted FISA order authorizing the interception of



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notice of “[w]hether the affidavit and other evidence offered in support of any FISA order relied

on information obtained under or derived from an FAA surveillance order.” DE 76 at 2. This

request identified one specific type of FAA-derived evidence in light of the government’s

argument that Mr. Qazi’s request for notice was moot. But as the government’s motion for

reconsideration now makes apparent, that request was not moot at all. It raises a crucial question

about the government’s reliance on FAA surveillance in this case—a question made all the more

pressing by Senator Feinstein’s congressional testimony suggesting that Mr. Qazi and his brother

were in fact the subjects of FAA surveillance.2 Mr. Qazi is entitled to notice and an answer to

this question.

The second prong of the Court’s Order correctly requires the government to give such

notice, in the form of a simple “yes” or “no” answer, by stating whether any FISA order obtained

in this case was predicated upon FAA surveillance. DE 77 at 1. The government’s response is

perplexing: it acknowledges its statutory obligation to give specific notice of FAA surveillance,

see DE 80 at 3, but it then proceeds to entirely ignore the plain meaning of the word “derived.”

As the government concedes, “Section 1806 of FISA is procedural, and Section 1881e(a)

incorporates those procedural rules for application in the event that information obtained or

derived from FAA electronic surveillance were to be introduced into evidence or otherwise used

by the Government in a proceeding.” Id. (emphasis added). This position is consistent with both

the text of the statute and the Supreme Court’s decision in Amnesty, which stated: “[I]f the

Government intends to use or disclose information obtained or derived from a §1881a

acquisition in judicial or administrative proceedings, it must provide advance notice of its intent,


an even wider swathe of Mr. Qazi’s communications. In this way, initial FAA surveillance by the
government may have prompted more targeted surveillance of Mr. Qazi using traditional FISA.
2 See Testimony of Senator Diane Feinstein in support of the FISA Amendments Reauthorization
Act of 2012, 145 Cong. Rec. S8393 (daily ed. Dec. 27, 2012), reprinted in DE 67 at pages 3-4.



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and the affected person may challenge the lawfulness of the acquisition.” 133 S. Ct. at 1154.

That would seem to be the end of the matter, as this Court recognized in its Order (DE 77). But,

instead, the government asks the Court to reverse course, and to free it from providing notice of

one of the most obvious types of FAA-derived evidence.

As explained above, if the government relied on FAA surveillance in support of any

FISA application in this case, then the resulting FISA evidence is “derived” from FAA

surveillance. Accordingly, such reliance would trigger the notice provisions of 50 U.S.C. §

1881e(a) and 50 U.S.C. § 1806(c). Yet the government seeks to avoid this obligation. Indeed, the

government seeks to avoid giving notice of one of the most important ways it may have relied on

FAA-derived information in its investigation of Mr. Qazi. Although the government disclaims

any effort to “rebrand” or “relabel” FAA-derived evidence as FISA evidence, see DE 80 at 3,

that would be precisely the result if the government prevailed in its motion. Without notice of the

kind ordered by the Court, the government could use FAA material to obtain a traditional FISA

order and then, at trial, rely solely on its FISA-obtained evidence while remaining silent about its

initial FAA surveillance. A defendant would never know, and would never have the opportunity

to challenge, the original search. The government would be able, in essence, to transform its

FAA surveillance into FISA evidence—reaping the fruit of that FAA surveillance while

sidestepping any challenge to the warrantless wiretapping program. The fact that the statutory

notice requirement encompasses FAA-derived evidence is thus essential. As set forth in the prior

briefing, the absence of notice in these circumstances would violate the Fourth and Fifth

Amendments, because it would deprive Mr. Qazi of an opportunity to effectively challenge the

government’s electronic interception of his communications. See DE 76 at 10-12.



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Whether the government relied on FAA surveillance when it obtained its FISA orders is

thus a key part of providing adequate notice. The Court’s Order requires nothing more of the

government than a “yes” or “no” answer to this question.



II. Mr. Qazi’s Request For Notice Does Not Implicate The Procedures Set Forth In 18

U.S.C. § 1806(f).

In its effort to avoid answering this question, the government mischaracterizes Mr. Qazi’s

motion as an attempt to obtain discovery and an “end run” around the procedures contained in 18

U.S.C. § 1806(f). DE 80 at 3-6. But Mr. Qazi’s motion for notice does not ask the government to

turn over any FISA application, affidavit, or other evidence that might trigger those procedures.

That is indeed the province of a separate motion for discovery currently before the Court. See DE

45. The motion for notice seeks something quite different, and far more limited: namely, the

legal basis for the government’s interception of Mr. Qazi’s electronic communications. The

answer to that question is not classified and is directly controlled by the statutory notice

provision. 50 U.S.C. § 1806(c). Requiring the government to state, in general, whether it relied

on the FAA to obtain its FISA orders is not the same as asking it to disclose the content of its

FISA applications. The first is part and parcel of providing adequate notice, as required by

subsection 1806(c). And it is precisely what the Supreme Court meant when it declared in

Amnesty, “[I]f the Government intends to use or disclose information obtained or derived from a

§1881a acquisition in judicial or administrative proceedings, it must provide advance notice of

its intent, and the affected person may challenge the lawfulness of the acquisition.” 133 S. Ct. at

1154 (citing 50 U.S.C. §§ 1806(c), 1806(e), 1881e(a)) (emphasis added). Nothing in this

decision or the statute allows the government to give secret, ex parte notice to the Court while



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withholding it from the defendant. Indeed, without proper notice, a defendant could not

effectively invoke the suppression rights set out in subsections 1806(e) and (g)—because he

would never know of the underlying FAA surveillance. In this way, Mr. Qazi’s motion for notice

simply asks the government for its legal authority: i.e., whether it relied on the FAA, at any

stage, in obtaining the evidence it intends to use against Mr. Qazi. The government’s answer to

this question can and should be little more than one word.

By contrast, the procedures in subsection 1806(f) are triggered after notice has been

given, when a defendant seeks to obtain FISC orders or applications themselves, or the evidence

obtained from such an order. See 50 U.S.C. 1806(f). These procedures regulate the way in which

a motion to suppress brought under subsection 1806(e) is litigated; they do not affect a

defendant’s initial right to notice under 50 U.S.C. § 1806(c). It is crucial to distinguish between

the notice and discovery provisions in this statutory scheme. Subsection 1806(c) provides:

Notification by United States

Whenever the Government intends to enter into evidence or otherwise use or
disclose in any trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other authority of the United
States, against an aggrieved person, any information obtained or derived from an
electronic surveillance of that aggrieved person pursuant to the authority of this
subchapter, the Government shall, prior to the trial, hearing, or other proceeding
or at a reasonable time prior to an effort to so disclose or so use that information
or submit it in evidence, notify the aggrieved person and the court or other
authority in which the information is to be disclosed or used that the Government
intends to so disclose or so use such information (emphasis added).




This provision directs the government to “notify the aggrieved person and the court” of its intent

to use “any information obtained or derived from an electronic surveillance of that aggrieved

person.” Id. (emphasis added). The notice requirement does not admit any exceptions, nor does it



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make any reference to the ex parte and in camera procedures that control discovery of

surveillance materials under subsection 1806(f).

Nonetheless, the government’s interest in confusing these two issues is obvious. If it can

avoid giving proper notice to defendants, as it seeks to do here, the government can avoid a

challenge to the FAA altogether. In the nearly five years since the FAA was enacted, the

government has not once, to undersigned counsel’s knowledge, disclosed its reliance on material

obtained through FAA surveillance. It would undoubtedly prefer to maintain that record, which

has rendered the government’s warrantless wiretapping program all but unreviewable in the

interim.

But the Supreme Court’s recent decision in Amnesty made clear that criminal defendants

are entitled to effective notice of FAA-derived evidence in precisely these circumstances. 133 S.

Ct. at 1154. Indeed, the government itself told the Supreme Court that such notice was required

by statute—whether its evidence was obtained directly from FAA surveillance or simply

“derived” from that surveillance. Br. for Petitioner at 8, Clapper v. Amnesty Int’l USA, 133 S. Ct.

1138 (2013). Having prevailed before the Supreme Court, the government cannot now disavow

this position in Mr. Qazi’s case. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001)

(applying the doctrine of judicial estoppel to prevent a party from reversing its position before

successive courts).

Judge Scola’s one-page ruling in United States v. Khan, No. 11-20331-Cr-Scola (Mar.

14, 2012) (DE 285), does not preclude the type of notice ordered by this Court. The motion in

Khan was decided before the Supreme Court spoke directly on this issue and clarified the FAA’s

notice requirement in Amnesty. Moreover, as explained above, Mr. Qazi’s motion does not ask

the government to disclose classified information contained in materials on file with the FISC. It



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asks the government to state the legal basis for its electronic surveillance of Mr. Qazi, given

direct congressional testimony suggesting that this surveillance was conducted, at least in part,

pursuant to the FAA. 145 Cong. Rec. S8393 (daily ed. Dec. 27, 2012) (statement of Sen.

Feinstein, naming Mr. Qazi and his brother). This fact alone sets Mr. Qazi’s case apart from

Khan, and provides an additional reason for the Court to compel the government to provide a

straightforward response to Mr. Qazi’s motion. Put simply, Mr. Qazi is entitled to notice if the

government intends to rely on the fruit of FAA surveillance—even if it supplied the basis for a

subsequent FISA order. The government cannot avoid its notice obligation simply by obscuring

its FAA surveillance behind a successful FISA application.



CONCLUSION

For the foregoing reasons, as well as those contained in Mr. Qazi’s motion and reply

brief, DE 67 and 76, Mr. Qazi maintains that there is no basis to hold the Court’s Order (DE 77)

in abeyance, or to strike its directive requiring the government to provide notice of FAA

surveillance. Mr. Qazi therefore respectfully requests that this Court deny the government’s

motion for reconsideration of that order (DE 80).


















































Respectfully submitted,

/s Ronald S. Chapman
Ronald S. Chapman (Bar No. 898139)
[email protected]
400 Clematis Street, Suite 206
West Palm Beach, FL 33401
Tel (561) 832-4348
Fax (561) 832-4346
Attorney for Sheheryar Qazi



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Certificate of Service

Undersigned counsel certifies that on May 14, 2013 he electronically filed this motion

with the Clerk of Court using CM/ECF.


/s Ronald S. Chapman
Ronald S. Chapman



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