807 F.2d 787 (9th Cir. 1987), 85-5133, United States v. Cavanagh

Docket Nº:85-5133.
Citation:807 F.2d 787
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas Patrick CAVANAGH, Defendant-Appellant.
Case Date:January 05, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 787

807 F.2d 787 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas Patrick CAVANAGH, Defendant-Appellant.

No. 85-5133.

United States Court of Appeals, Ninth Circuit

January 5, 1987

Argued and Submitted Jan. 9, 1986.

Page 788

Mary C. Lawton, Los Angeles, Cal., for plaintiff-appellee.

Manuel U. Araujo, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before KENNEDY, SCHROEDER, and FERGUSON, Circuit Judges.

KENNEDY, Circuit Judge:

This case requires us to determine whether government surveillance complied with the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. Secs. 1801-1811 (1982), and whether the procedures established by the Act are consistent with the United States Constitution.

Pursuant to a wiretap authorized under FISA, government officers intercepted a telephone conversation in which appellant Thomas Patrick Cavanagh offered to sell defense secrets to representatives of the Soviet Union. FBI agents posing as Soviet agents arranged to meet with Cavanagh, and he delivered certain classified documents to them. Cavanagh was indicted for attempting to deliver defense information to a foreign government in violation of 18 U.S.C. Sec. 794(a) (1982). He moved to suppress the fruits of the electronic surveillance; the district court denied the motion; and appellant entered a conditional guilty plea under Rule 11(a)(2) of the Federal Rules of Criminal Procedure. On appeal the question is whether the district court erred in denying the suppression motion. We affirm.

FISA provides statutory authorization for electronic surveillance of foreign powers and their agents in certain circumstances. With important exceptions not pertinent here, FISA requires judicial approval before the government engages in an electronic surveillance for foreign intelligence purposes. Under the statute, a federal officer with the approval of the Attorney

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General may apply to a special FISA court for an order authorizing surveillance. 50 U.S.C. Sec. 1804. The application must state facts justifying the applicant's belief that "the target of the electronic surveillance is a foreign power or an agent of a foreign power," id. Sec. 1804(a)(4)(A), and must certify "that the purpose of the surveillance is to obtain foreign intelligence information," id. Sec. 1804(a)(7)(B). A court may approve the proposed surveillance only if it finds probable cause to believe that "the target of the electronic surveillance is a foreign power or an agent of a foreign power." Id. Sec. 1805(a)(3)(A). Where, as in the case before us, the surveillance is directed at a facility "owned, leased, or exclusively used by [a] foreign power," the court may comply with the statute by giving a general description of the "information sought [and] the communications or activities to be subjected to the surveillance...." Id. Sec. 1805(c); see also id. Sec. 1804(b).

As a threshold matter, there is no dispute over appellant's standing to challenge the lawfulness of the surveillance. FISA permits aggrieved persons to seek suppression of evidence on the ground that it was unlawfully acquired or that the surveillance was not conducted in conformity with the order of authorization. Id. Sec. 1806(e). Appellant was a party to an intercepted communication, and the government concedes he is an "aggrieved person" within the meaning of the statute. See United States v. Belfield, 692 F.2d 141, 143, 146 n. 21 (D.C.Cir.1982) (party "incidentally overheard during the course of surveillance of another target" is an aggrieved party). The appellant has standing to challenge the government's compliance with the statute.

We conclude also that the surveillance satisfied the statutory requirements for issuance of a warrant by the district court. The Attorney General submitted to the district court an affidavit under 50 U.S.C. Sec. 1806(f) asserting that disclosure of the materials relating to the surveillance would harm the national security of the United States. We have reviewed the sealed materials, which include...

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