U.S. v. Duggan, s. 922

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation743 F.2d 59
Docket NumberNos. 922,s. 922
PartiesUNITED STATES of America, Appellee, v. Andrew DUGGAN, Eamon Meehan, Gabriel Megahey, and Colm Meehan, Defendants- Appellants. to 925, Dockets 83-1313, 83-1315, 83-1317 and 83-1318.
Decision Date08 August 1984

Carol B. Amon, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty. for the Eastern District of New York, Allyne R. Ross, Mary McGowan Davis, Jane Simkin Smith, David V. Kirby, Michael H.

Gold, Asst. U.S. Attys., Brooklyn, N.Y., on the brief), for appellee

Barry C. Scheck, New York City (Lawrence A. Vogelman, Cardozo Criminal Law Clinic, New York City, Michael G. Dowd, Manton, Pennisi & Dowd, Kew Gardens, N.Y., and Ellen C. Mishkin, Law Student, on the brief), for defendant-appellant Eamon Meehan.

Bruce Goldstone, New York City (Lipsig, Sullivan & Liapakis, P.C., New York City, on the brief), for defendant-appellant Gabriel Megahey.

Peter Lushing, New York City (David L. Lewis, Lewis & Fiore, New York City, on the brief), for defendant-appellant Colm Meehan.

Before FEINBERG, Chief Judge, and MANSFIELD and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

The principal issues raised in this appeal by alleged agents of the Provisional Irish Republican Army ("PIRA") concern the constitutionality and proper application of the Foreign Intelligence Surveillance Act ("FISA" or the "Act"), 50 U.S.C. Secs. 1801-1811 (Supp. V 1981). Defendants Andrew Duggan, Eamon Meehan, Gabriel Megahey, and Colm Meehan appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, after a jury trial before Charles P. Sifton, Judge. Duggan, Megahey, and Eamon Meehan were convicted of (a) unlicensed exportation of items on the United States Munitions List, in violation of 22 U.S.C. Sec. 2778(b)(2) (1982) 1 (count 2); (b) transportation of explosives in interstate commerce without a license, in violation of 18 U.S.C. Sec. 842(a)(3)(A) (1982) (count 3); (c) transportation of explosives in interstate commerce knowing that the explosives would be used to kill, injure, or intimidate individuals, in violation of 18 U.S.C. Sec. 844(d) (1982) (count 4); (d) transportation in interstate commerce of firearms with their serial numbers removed, in violation of 18 U.S.C. Sec. 922(k) (1982) (count 5); (e) delivery to a common carrier of a shipment containing firearms without giving notice to the carrier of the contents of the shipment, in violation of 18 U.S.C. Sec. 922(e) (1982) (count 6); (f) conspiracy to violate both 26 U.S.C. Sec. 5861(d) (1982), which proscribes possession of unregistered destructive devices, and the statutes listed in counts 3 through 6, in violation of 18 U.S.C. Sec. 371 (1982) (count 1). Colm Meehan was acquitted on the two counts involving interstate transportation of explosives (counts 3 and 4) and was convicted on all other counts. The Meehans were also convicted of possessing guns while illegal aliens, in violation of 18 U.S.C. app. Sec. 1202(a)(5) (1982) (count 7). 2

On appeal, all of the defendants contend principally (1) that the district court erred in refusing to suppress evidence obtained through a wiretap pursuant to FISA on the grounds that (a) FISA is unconstitutionally

broad and violates the probable cause requirement of the Fourth Amendment, and (b) the government failed to comply with FISA's prerequisites for wire surveillance; (2) that the district court erred in excluding their defense that their actions were taken in reasonable good faith reliance on the apparent authority of one Michael Hanratty, a government informant, to act as an agent of the Central Intelligence Agency ("CIA"); and (3) that the conduct of government agents was so outrageous as to deprive them of due process of law. In addition, Eamon and Colm Meehan contend that the district court erred in rejecting their proffered defense of insanity. We reject the defendants' contentions and affirm the convictions

Although none of the defendants challenges the sufficiency of the proof to convict him, we summarize here so much of the trial evidence, taken in the light most favorable to the government, as is necessary to place defendants' major contentions in context. In general the evidence, presented largely through the testimony of Hanratty, videotapes of meetings between PIRA members and undercover law enforcement agents, and tape recordings of telephone conversations involving Megahey, showed defendants as part of a network of men working clandestinely on behalf of PIRA to acquire explosives, weapons, ammunition, and remote-controlled detonation devices in the United States to be exported to Northern Ireland for use in terrorist activities. Megahey, an Irish national who sought political asylum in the United States, was the leader and financier of PIRA operations in the United States. Duggan, an American citizen, was Megahey's assistant in contacting sellers of electronic equipment to be used in remote-controlled bombs and other sophisticated weaponry. Eamon Meehan, under the direction of Megahey, gathered and stored firearms and explosives; Eamon and his brother Colm--both aliens living illegally in the United States--secreted these materials in a shipment of goods bound for Northern Ireland.

A. The Events
1. PIRA Meets Hanratty

The events that culminated in the June 1982 arrests of the defendants began a year earlier, when Duggan, on the recommendation of an acquaintance, sought out Michael Hanratty, a seller of surveillance and countersurveillance equipment and other electronic items. At this first meeting, Duggan and an associate, Brendon Docherty, a/k/a Brendon Sloan ("Sloan"), identified themselves to Hanratty as members of PIRA, and explained that they sought to purchase equipment for use against the British in Northern Ireland. At a meeting that evening, Duggan, Sloan, and a third companion explained to Hanratty their political views and PIRA's equipment needs. Although Duggan and his associates inquired about the availability of a variety of equipment--including bullet proof vests, electronic tracking systems, and devices to detect the presence of electronic surveillance--their principal interest was in acquiring sophisticated remote-controlled explosive detonators, items that Hanratty could not supply.

Hanratty promptly informed the Federal Bureau of Investigation ("FBI") of these conversations and agreed to provide FBI agents with information gained from any future meetings, in particular the types of electronic equipment Duggan and his associates desired to purchase. Although the agents did not instruct Hanratty to initiate any further contact with Duggan's group, they requested that he attempt to introduce an undercover FBI agent into future dealings if the opportunity arose.

Over the next six months, Hanratty was contacted by Duggan and Sloan several times for the purchase of a variety of equipment that could be used as fusing mechanisms for bombs. In addition, Sloan asked Hanratty if he could supply surface-to-air missiles ("SAMs"), with which PIRA could shoot down British helicopters.

During these meetings Duggan and his associates frequently spoke of consulting their "money man" for the PIRA purchases. In January 1982, Hanratty was summoned by Duggan for his first meeting with the "money man" and was presented to Megahey. Megahey introduced himself as the leader of PIRA operations in the United States, and stated that all PIRA activities in the United States were conducted with his knowledge. Megahey said he had chosen to reveal himself to Hanratty because Hanratty had become a valuable asset to their organization, and he, inter alia, reminded Hanratty of the importance of acquiring certain previously ordered devices that were needed as safety mechanisms in the construction of remote-controlled bombs.

2. PIRA Meets the FBI

After Hanratty was introduced to Megahey, the government obtained from a judge of the United States Foreign Intelligence Surveillance Court ("FISA Court" and, generally, "FISA Judge") an order authorizing the FBI to conduct electronic surveillance of Megahey's home telephone. The surveillance was initiated on February 10, 1982, continued pursuant to a renewal order obtained on May 6, 1982, and terminated on June 21, 1982, the date of Megahey's arrest by the FBI. The wiretap intercepted several conversations between Megahey and Duggan concerning PIRA activities, and information from the wiretap led the FBI to conduct surveillance of the home of Eamon Meehan.

In March 1982, Hanratty obtained the bomb safety devices requested by Megahey and his associates and delivered them to Duggan under surveillance by the FBI. The switches had been microscopically marked by FBI laboratory personnel for future identification. Two months later these switches, along with weapons and explosive devices, were found hidden in a shipment of goods loaded by Eamon and Colm Meehan into a shipping container bound for Northern Ireland. Agents who had observed the Meehans' activities secured the container, and caused it to be searched by United States Customs Service officials just before it was to be shipped to Northern Ireland.

In the meantime, two of Duggan's associates had reopened with Hanratty the question of obtaining SAMs. Hanratty told them he could not personally supply the missiles but said he knew of a possible source, a man he identified as "Luis." Hanratty described Luis as a Miami-based wheeler-dealer who supplied arms to Central American and other countries. Hanratty later gave the same story to Duggan in response to a question that Hanratty thought referred to Duggan's associates' inquiries about obtaining SAMs. Thereafter, Duggan and Megahey repeatedly asked Hanratty if he had been contacted by Luis.

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