In addition to the litigation in the case over Sec. 702 surveillance, on October 20, 2014 in United States v. Jamshid Muhtorov, Criminal Case No. 1:12-cr-00033-JLK-01 (D.Colo. filed Jan. 19, 2012), co-defendants Muhtorov and Jumaev filed a new motion asking for discovery of each surveillance technique used against them, the timing or duration of its use, the legal authority on which the use of the technique was based, and the evidence obtained or derived therefrom. Stating that the increasing evidence that “the government is withholding notice of the use of controversial spying in criminal prosecutions” was exemplified by their case, the defendants claimed, in particular, that the Fourth and Fifth Amendments were contravened by the government’s insistence that “ ‘defendants have no right to know’ if investigators have derived evidence from any of the government’s sweeping surveillance activities under Executive Order 12,333.” At 6, 8. The defendants also contended that the government was failing to notify defendants of evidence derived or obtained from the NSA’s bulk telephony and email metadata programs.
In its response of February 26, 2015, the government refused to provide any notice in regard to additional surveillance techniques. In regard to telephony metadata collected under Section 215, the government relied on the absence of any notice provision in the statute, and argued, in addition, that neither the statute nor the Fourth Amendment provides any suppression remedy in regard to the third party records collected under the sectiom. The government claimed that it had not revealed any evidence obtained against the defendants under FISA’s pen/trap provision because 50 U.S.C. Sec. 1845 (c) only requires such disclosure where the government intends to use such evidence or evidence derived therefrom at trial. With regard to Executive Order 12,333, the government contended that unless the defendants first made a“colorable claim that evidence is inadmissible because it was ‘the primary product of’ or ‘obtained by the exploitation of’allegedly unlawful surveillance’ ….” it was not obligated to either affirm or deny that surveillance had been conducted against the defendants under that authority. At 7.