In re Flanagan

• Citation: 533 F. Supp. 957
• Decision Date: 10 February 1982
• Docket Number: No. CV-81-3978.,CV-81-3978.
• Parties: In re Grand Jury Subpoena of Martin FLANAGAN.
• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

533 F. Supp. 957

In re Grand Jury Subpoena of Martin FLANAGAN.

No. CV-81-3978.

United States District Court, E. D. New York.

February 10, 1982.

Edward R. Korman, U. S. Atty., Brooklyn, N. Y., David V. Kirby, Asst. U. S. Atty., Brooklyn, N. Y., of counsel, for plaintiff.

Richard W. Levitt, New York City, for defendant.

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This is a contempt proceeding brought on by the Government to compel a grand jury witness to answer questions relating to an alleged conspiracy to possess, transport, and smuggle firearms and ammunition from the United States to Great Britain and Ireland in violation of several federal firearm statutes. See, e.g., 26 U.S.C. § 5861, 22 U.S.C. §§ 2778(b)(2) and (c).

Background.

On July 20, 1981, a subpoena was issued requiring Martin Flanagan, a dual citizen¹ of the United States and the Republic of Ireland, to provide information to a federal grand jury concerning an alleged gun-running scheme. Mr. Flanagan is said to be an unindicted co-conspirator in this gun-running scheme. He stated to the Court that he has lived in the United States for approximately twenty-one years and is currently employed by Western Union as a technician. During the past twenty-one years, Mr. Flanagan has travelled back and forth to Ireland, generally taking such trips once a year for vacation purposes.

On December 4, 1981, an immunity order was signed by this Court.² This order required Mr. Flanagan to testify before the grand jury, but granted him the customary immunity from the use of his testimony in the state and federal courts of the United States. Flanagan, however, moved on December 9, 1981, to quash the subpoena on two separate grounds: (1) that the grand jury questions were based on evidence derived from illegal electronic surveillance and (2) that, although the order of immunity clothes him with "use and derivative use immunity" in the United States, he would still be subject to prosecution in Northern Ireland, the Republic of Ireland or Great Britain.

On December 18, 1981, Mr. Flanagan appeared before the grand jury and was asked the following question: "Calling your attention to the month of April of this year, were you assigned any particular vehicle to drive during that month, sir?" (Transcript, U.S. Grand Jury, E.D.N.Y., December 18, 1981, testimony of Martin Flanagan at 2 (hereinafter cited as "G.J.Tr.")) Upon his refusal to answer this question, Flanagan was informed that he was required to answer because he had been granted immunity pursuant to 18 U.S.C. §§ 6002, 6003. Nevertheless, Mr. Flanagan continued to refuse to answer this and other questions by the Government. These additional questions delved into whether Mr. Flanagan knew six particular men already indicted in the alleged gun-running scheme, and whether Flanagan had "ever engaged in any activities with any other of the aforementioned six men in transporting arms or ammunition in the Eastern District of New York which includes Brooklyn, Queens, Staten Island, Nassau and Suffolk Counties." G.J.Tr. at 5-6. In light of Mr. Flanagan's continued refusal to answer the questions, the Government moved under 28 U.S.C. § 1826(a) to compel him to testify.

I. Illegal Electronic Surveillance.

Mr. Flanagan first argues that he should not be compelled to answer the Government's questions because they were derived from illegal wiretaps. The Court rejects this argument.

Certain wiretaps utilized by the Government in the gun-running investigation were authorized by the Foreign Intelligence Surveillance Court pursuant to the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801, et seq. The Government has represented to this Court that these wiretaps were not directed at Mr. Flanagan nor did they intercept any communications to which Mr. Flanagan was a party. In the Court's view—although the Government has not raised the issue — this creates a serious threshold question as to whether Mr. Flanagan has standing to challenge the wiretaps.

Under FISA, only an "aggrieved person," defined as "a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance," may challenge the legality of a wiretap. 50 U.S.C. § 1801(k).

This may be contrasted with the general wiretap statute which defines an aggrieved person as "a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11).

Although the FISA definition of "aggrieved person" appears broader than the general wiretap definition, the legislative history of FISA indicates that the FISA definition "is to coincide with the definition of `aggrieved person' in section 2510 of title III." See S.Rep.No.95-604, 95th Cong., 2d Sess. 56-58 (1978), reprinted in 1978 U.S. Code Cong. & Ad.News 3904, 3957-3959. Indeed, clarifying the FISA definition, the Senate Report states that the "subject" of electronic surveillance is "an individual who was a party to the intercepted communication or was a person against whom the interception was directed." Id.

Given this history, the Court is reluctant to conclude that the term "aggrieved person" has a different meaning in the two wiretap statutes. Accordingly, I hold that the term should be interpreted identically under both statutes and that, if Mr. Flanagan lacks standing under 18 U.S.C. § 2510 (general wiretap statute), he also lacks standing under 50 U.S.C. § 1801(k) (FISA).

It is beyond argument that Flanagan lacks standing under the general wiretap statute. Under the customary constitutional rules, a party lacks the standing to assert the constitutional rights of another person. In the context of wiretapping, the rule has crystallized that the only persons with standing to suppress the fruits of an illegal wiretap are parties at whom the wiretaps were directed, parties to the call that was intercepted, or parties owning the premises where the conversations were intercepted. Alderman v. United States, 394 U.S. 165, 174-76, 89 S.Ct. 961, 966-68, 22 L.Ed.2d 176 (1969); United States v. Civella, 648 F.2d 1167, 1172 (8th Cir. 1981); United States v. Fury, 554 F.2d 522, 525-26 (2d Cir. 1977), cert. denied, 436 U.S. 931, 98 S.Ct. 2831, 56 L.Ed.2d 776 (1978). By attempting to suppress evidence obtained by a wiretap that was not directed at him and which did not pick up any of his conversations, Flanagan seeks to vicariously assert the rights of others. This he may not do. See Alderman v. United States, 394 U.S. at 174-75, 89 S.Ct. at 966-67; United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Even if we assume that the standing rules of FISA are broader than the ordinary standing rules, and that Flanagan has standing, his refusal to testify before the grand jury on grounds of illegal electronic surveillance is without merit. Section 106(e) of FISA provides for the suppression of evidence derived from electronic surveillance only when (1) the information was unlawfully acquired; or (2) the surveillance was not made in conformity with an order of authorization or approval. Section 1806(f) then prescribes the exclusive procedures to be followed when an aggrieved person moves to suppress what he claims are the fruits of an illegal wiretap.³ S.Rep. No.95-604, supra at 57. Under subdivision (f), neither a defendant nor a grand jury witness has the right to an adversarial suppression hearing once the Attorney General files an affidavit asserting that such a hearing would harm the national security of the United States. Such an affidavit was filed in connection with the FISA wiretaps in this case. Hence, section 1806(f) mandates that the determination of whether the electronic surveillance was lawfully authorized be made by having the District Court review, ex parte and in camera, the surveillance order and accompanying application.⁴

Accordingly, I have reviewed the Government's application for the FISA wiretap. It contains a court order authorizing the electronic surveillance, and, on its face, follows the procedures mandated in 50 U.S.C. § 1804.⁵ Consequently, I find that the application fully satisfies the FISA procedures.⁶

This, however, does not end the inquiry as to whether there was illegal surveillance. Flanagan argues further that there may have been other illegal wiretaps installed without the blessing of a court order by other federal law enforcement agencies operating lawlessly, unknown to the United States Attorney. He maintains that in the absence of sworn, written representations by the prosecutor stating which Federal agencies had been consulted about illegal electronic surveillance, the Government has failed to satisfy its burden under 18 U.S.C. § 3504. United States v. Toscanino, 500 F.2d 267, 281 (2d Cir. 1974).

On December 9, 1981, at a hearing before me, the FBI agent in charge of the electronic surveillance in question testified under oath that, as far as he was aware, only the FBI and the United States Customs Service had participated in the investigation. He knew only of the electronic surveillance currently objected to by Mr. Flanagan, and stated that he was unaware of any unlawful electronic surveillance used in this case. Although the prosecutor's own oral statements might be insufficient under Toscanino, any such insufficiency was cured by the sworn testimony of the FBI agent in charge of the investigation. See In re Millow, 529 F.2d 770, 774 (2d Cir. 1976); United States v. Grusse, 515 F.2d 157, 159 (2d Cir. 1975) (Lumbard concurring).

As Judge Lumbard cogently argued in his concurring opinion in United States v. Grusse, 515 F.2d at 159 (2d Cir. 1976):

It must be remembered that any electronic surveillance by the government is relevant only if it is somehow used in formulating questions that the grand jury intends to ask.

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