U.S. v. Hamide

• Decision Date: 07 September 1990
• Docket Number: No. 89-55462,89-55462
• Parties: UNITED STATES of America, Petitioner-Appellee, v. Khader Musa HAMIDE, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1147

914 F.2d 1147

UNITED STATES of America, Petitioner-Appellee, v. Khader Musa HAMIDE, et al., Respondents-Appellants.

No. 89-55462.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 1990.

Decided Sept. 7, 1990.

William J. Genego, ACLU, Santa Monica, Cal., for respondents-appellants.

Jeffrey A. Clair, Dept. of Justice, Washington, D.C., for petitioner-appellee.

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

Before HUG, BOOCHEVER and BEEZER, Circuit Judges.

BOOCHEVER, Circuit Judge:

Khader Musa Hamide, Basher Amer, Michel Ibrahim Shehadeh, Julie Nuangugi Mungai, Amjad Mustafa Obeid, and Aymad Mustafa Obeid (collectively Hamide) appeal the district court's denial of their motion to vacate an order finding that the government's electronic surveillance of eight individuals, including the appellants, was lawful. We find that this court has no appellate jurisdiction because the order was not final, and we dismiss the appeal.

FACTS

In December of 1986, the Immigration and Naturalization Service (INS) began deportation proceedings against eight aliens, including the six appellants, all of whom were arrested in early 1987 and eventually released. The INS claimed that the eight individuals were members of the Popular Front for the Liberation of Palestine, and charged them with being deportable under 8 U.S.C. Sec. 1251(a)(6)(D), (G)(v), and (H) (1982), as aliens belonging to an organization that advocates the "doctrines of world communism" through written or printed publications. The eight, joined by others, filed a lawsuit in district court challenging the facial constitutionality of the "world communism" sections. The government subsequently withdrew the original charges against all eight on April 23, 1987, but reinstituted deportation proceedings under other provisions. The district court found the "world communism" and other provisions overbroad in violation of the first amendment. American-Arab Anti-Discrimination Comm. v. Meese, 714 F.Supp. 1060, 1083-84 (C.D.Cal.1989) appeal docketed, No. 89-55358 (9th Cir. August 10, 1990).

Of the six appellants in this case, four are nonimmigrant aliens charged by the government in the reinstituted proceedings with routine visa violations. Khader Musa Hamide and Shehadeh are permanent resident aliens charged with advocacy of or affiliation with organizations that advocate the unlawful destruction of property under 8 U.S.C. Sec. 1251(a)(6)(F)(iii). That section is among those found unconstitutional in the district court. American-Arab Anti-Discrimination Comm., 714 F.Supp. at 1083-84. At the time of this appeal, none of the appellants had received a final administrative order of deportation. An immigration judge had found Aymad Obeid and Amjad Obeid deportable, but both had pending applications for relief from deportation at the administrative level. Deportation proceedings against Mungai, Khader Musa Hamide, and Shehadeh had been stayed administratively awaiting the outcome of other judicial and administrative proceedings. Amer's deportation proceedings were pending before an immigration judge on post-trial briefing.

On March 10, 1987, in the course of the original deportation proceedings, the eight On April 15, 1987, the government responded that none of the evidence in the deportation proceedings had been gathered by electronic surveillance, without stating whether any such surveillance had occurred. The eight filed motions after deportation proceedings were reinstituted in June 1987 and again in December 1988 requesting affirmance or denial of the surveillance. The immigration court granted the last motion, and the government responded with a declaration by Michael P. Lindemann, the principal government attorney in the case.

aliens filed a motion before the immigration judge under 18 U.S.C. Sec. 3504 (1982), requesting that the government affirm or deny the existence of electronic surveillance of any of the eight or their attorneys. The motion also requested a hearing on the adequacy of any government denial, or, if the government acknowledged surveillance, "a hearing concerning the legality of that surveillance and the extent to which evidence in the current proceedings was obtained as a result of that surveillance."

Lindemann's declaration disclosed that five of the six appellants had been overheard on electronic surveillance. Lindemann also stated that there had been some video surveillance, and that the Federal Bureau of Investigation had placed a pen register on the telephone of one of the appellants. He asserted that the government would not use any of the surveillance in the immigration proceedings, and that "while attorneys of record in this case have been overheard, only a single conversation was in connection with this case, and that single conversation did not involve attorney-client communication and was not otherwise privileged." The declaration also stated that the government intended to seek a determination of the legality of the surveillance from the district court.

On February 15, 1989, the government filed in the district court a "Petition of the United States for Judicial Determination of Legality of Certain Electronic Surveillance" claiming authorization under Sec. 1806(f) of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. Secs. 1801-1811 (1982). ¹ The six appellants here were named as respondents. The petition stated that Hamide's counsel had "made a motion before the Immigration Judge to discover electronic surveillance and to suppress the use of that information on the ground that the electronic surveillances at issue were unlawful." This statement apparently refers to Hamide's motions requesting affirmance or denial of the surveillance, and a hearing on the legality of the surveillance if the existence of the surveillance was affirmed. The March 1987 motion also asserted "the right to object to and exclude from these proceedings any evidence or other information that was obtained as a result of unlawful electronic surveillance." Accompanying the petition was an in camera sealed exhibit of FISA materials relevant to the authorization of the surveillance, and an "Affidavit and Claim of Privilege of the Attorney General of the United States" asserting that "it would harm the national security of the United States to disclose or have an adversary hearing" with respect to the sealed FISA materials.

Hamide's attorneys attempted to file an unopposed application for an enlargement of time in which to respond to the government's petition on February 28, 1989. The clerk's office would not file the application, however, because the district court had issued a ruling on the government's petition that same day. The ruling held

The court has reviewed all of the submitted applications, orders and materials The court further determines that it is not necessary, to the determination of the legality of the electronic surveillances submitted to the court to disclose those applications, orders and materials or any portion thereof to respondents.

and determines that the electronic surveillance disclosed to this court in camera were legally obtained pursuant to prior order of a court of competent jurisdiction.

Hamide filed a motion for a new trial or for relief from judgment on March 3, 1989. The motion stated

Neither FISA nor the due process clause of the Fifth Amendment contemplate [sic] that petitions pursuant to 50 U.S.C. section 1806(f) will be disposed of without respondents having an opportunity for opposition and argument regarding the legality of the surveillance order, its implementation or the due process requirement for disclosure. 50 U.S.C. section 1806(g).

The government filed an opposition to the motion. Following argument by both sides at a hearing on April 17, 1989, the district court denied the motion for post-judgment relief. Hamide appeals from the district court order finding the surveillance legal and from the denial of the motion for a new trial or for relief from judgment.

DISCUSSION

APPELLATE JURISDICTION

28 U.S.C. Sec. 1291 confers jurisdiction on courts of appeals from final decisions of the district courts, and "embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals." United States v. Nixon, 418 U.S. 683, 690, 94 S.Ct. 3090, 3098, 41 L.Ed.2d 1039 (1974). The general rule is that discovery orders are reviewable only on appeal from a final judgment. Exceptions are limited to cases in which denial of immediate review would make any review impossible. In re Subpoena Served on Cal.Pub.Util.Comm., 813 F.2d 1473, 1476 (9th Cir.1987) (In re PUC ).

1. The district court's determination of legality was not a final order.

Whenever the federal government intends to enter information obtained from FISA surveillance into any agency proceeding, it must notify the object of the surveillance, or the "aggrieved person," and the authority to which the information will be disclosed. 50 U.S.C. Sec. 1806(c). After such notification, the district court is charged with determining the legality of the surveillance. Id. at Sec. 1806(f). The district court's ruling that the surveillance of Hamide was lawful was made pursuant to 50 U.S.C. Sec. 1806(g), which provides:

If the United States district court pursuant to subsection (f) of this section determines that the surveillance was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from electronic surveillance of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.

The statute...