U.S. v. Johnson, s. 90-2010--90-2012

• Citation: 952 F.2d 565
• Decision Date: 12 September 1991
• Docket Number: Nos. 90-2010--90-2012,s. 90-2010--90-2012
• Parties: 34 Fed. R. Evid. Serv. 1117 UNITED STATES, Appellee, v. Richard Clark JOHNSON, Defendant, Appellant. UNITED STATES, Appellee, v. Martin QUIGLEY, Defendant, Appellant. UNITED STATES, Appellee, v. Christina Leigh REID, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 565

952 F.2d 565

34 Fed. R. Evid. Serv. 1117

UNITED STATES, Appellee, v. Richard Clark JOHNSON, Defendant, Appellant.

UNITED STATES, Appellee, v. Martin QUIGLEY, Defendant, Appellant.

UNITED STATES, Appellee, v. Christina Leigh REID, Defendant, Appellant.

Nos. 90-2010--90-2012.

United States Court of Appeals First Circuit.

Heard Sept. 12, 1991.

Decided Dec. 19, 1991.

Rehearing Denied Jan. 29, 1992.

Richard E. Bachman, by appointment of the court, with whom Peter D. King and Hale, Sanderson, Byrnes & Morton, Boston, Mass., were on brief, for defendant, appellant Martin Quigley.

Alan M. Dershowitz, Cambridge, Mass. with whom Jack Zaremski, Kevin J. O'Dea, and Rosanna Cavallaro, Boston, Mass., were on brief, for defendant, appellant Richard Clark Johnson.

William P. Homans, Jr. with whom Homans, Hamilton & Dahmen, Boston, Mass., was on brief, for defendant, appellant Christina Leigh Reid.

Alexandra Leake, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Ronald R. Roos, Trial Atty., and Christine M. Thren, Atty. Advisor, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN and TIMBERS, ^* Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Appellants were convicted of conspiracy and substantive offenses for their roles in terrorist activities directed against the British presence in Northern Ireland. They seek to overturn their convictions and vacate their sentences on various grounds. After careful review of the record in this case, we affirm the judgments of the district court and uphold the convictions and sentences of all three appellants. ¹

I. Background

The facts as the jury could have found them are as follows. From 1978 until his arrest in July 1989, appellant Richard Clark Johnson, an American citizen, was engaged in the research and development of explosives for export to the Republic of Ireland and use by the Provisional Irish Republican Army (the PIRA) in its attacks against British civilian and military targets there and elsewhere. Johnson is a highly educated and trained electrical engineer. Since receiving his Master's Degree in the early 1970's he has worked for a number of prominent firms in the aerospace industry, including Hughes Aircraft and the Northrop Corporation in California. From 1986 on Johnson carried out his weapons research and development in a workshop built by him in the basement of his parents' home in Harwich, Massachusetts.

Between 1981 and 1986, Johnson wrote and sent a series of letters regarding the procurement and development of remote-control bombs to Peter Eamon Maguire, an electronic systems expert in the Republic of Ireland who is named a defendant in this case, see supra note 1. The letters ("the Clondalkin letters") describe Johnson's efforts to perfect the technology of the remote-control bombs that have been used by the PIRA in its attacks upon persons and property in Northern Ireland and elsewhere since 1972. ² In 1987 the Irish national police seized these letters from a hiding place in Maguire's home in Clondalkin, Dublin.

Appellant Martin Peter Quigley is a citizen of the Republic of Ireland and a United States resident. Like Johnson, he has been involved in ongoing efforts to improve the technology of PIRA weaponry. In December 1988, in a conversation over a pay telephone, Quigley solicited Johnson's advice regarding the development of a surface-to-air missile system to "counteract" British military helicopters in Northern Ireland. Between 1988 and 1989, Quigley regularly encouraged appellant Christina Leigh Reid to join an amateur rocketry society and familiarize herself with the construction and operation of rocket motors for use in the anti-helicopter missile system. In the summer of 1989, Quigley participated in the acquisition of a .50 caliber rifle for export to the Republic of Ireland.

Appellant Christina Leigh Reid, an American citizen, is a college-educated electrical engineer and was employed by a defense-related firm in California until her arrest. From 1983 on, she served as a courier of electronic components for the remote-control bombs and of information, including a request for handguns, between Johnson in the United States and "Sean," an associate of Maguire, in the Republic of Ireland. In the summer of 1983, as national security efforts increased in preparation for the Los Angeles Olympic games, Reid provided a false social security number and address to obtain a post office box, in her name, to insure the safety and secrecy of the Johnson-Maguire correspondence.

In late 1988, Reid introduced Johnson to Quigley, over the telephone, for the purpose of advancing the development of PIRA weaponry. It was during that telephone call that Quigley requested Johnson's assistance in developing the anti-helicopter missile system. Thereafter, Reid, with Quigley's encouragement, sought to join an amateur rocketry society with a view to learning about rocket motors and assisting in the deployment of the anti-helicopter missile system.

A federal grand jury returned a four count superseding indictment (the indictment) against appellants on March 22, 1990. Count One charged all three appellants with conspiracy to violate the Arms Export Control Act, 22 U.S.C. §§ 2778(b)(2), (c), in violation of 18 U.S.C. § 371, by conspiring to export devices and materials for the discharge of bombs from the United States, without first obtaining an export license. Count Two charged Johnson with the actual manufacture and export of these materials, in violation of 22 U.S.C. §§ 2778(b)(2), (c). Count Three charged all three appellants with conspiracy to injure and destroy British military helicopters based at the Royal Air Force Station in Aldergrove, Northern Ireland in violation of 18 U.S.C. § 956. Count Four charged appellants Johnson and Quigley with the possession and control of property, namely Johnson's Harwich, Massachusetts laboratory, used and intended for use in the destruction of British military helicopters in aid of the PIRA, in violation of 18 U.S.C. §§ 957 and 2.

Appellants filed various motions before and during trial. We discuss those relevant to this appeal briefly. All three appellants moved for the suppression of evidence acquired through the government's electronic surveillance of Johnson and Quigley. In addition, all three moved to dismiss Count Three of the indictment for failure to describe with adequate specificity the helicopters that appellants conspired to destroy. Johnson and Quigley moved to dismiss Count Four of the indictment on the ground that the underlying statute, 18 U.S.C. § 957, violates the First and Fourteenth Amendments of the United States Constitution. Quigley moved for severance of his trial from that of the co-defendants.

The district court denied appellants' motions. Following a twenty-eight day trial, the jury found all three appellants guilty of the charges against them, and the district court sentenced appellants accordingly. On appeal, Johnson, Quigley and Reid assert numerous grounds for reversing their convictions and, in the case of Quigley and Johnson, vacating their sentences. We now turn to our discussion of these claims.

II. The FISA Surveillance Evidence

Between August 1988 and July 1989, the time of appellants' arrests, the government conducted electronic surveillance of Johnson and Quigley pursuant to the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-11 (FISA). ³ Enacted in 1978, FISA establishes a statutory procedure whereby a federal officer, acting through the Attorney General, may obtain a judicial warrant authorizing the use of electronic surveillance in the United States for foreign intelligence purposes. See S.Rep. No. 604, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 3904, 3906; United States v. Duggan, 743 F.2d 59, 77 (2d Cir.1984).

The results of the surveillance undertaken in this case include audio tapes of incriminating conversations among appellants and constitute a substantial portion of the government's evidence. The government identified for appellants the tapes that it intended to use at trial and made available to them all of the tapes in advance of trial.

Prior to trial all three appellants moved for suppression of the FISA evidence, arguing that it had been obtained in violation of FISA and the United States Constitution. The Attorney General having filed an affidavit that disclosure of the FISA applications and orders would jeopardize national security interests, the magistrate judge conducted an ex parte in camera review of the materials. ⁴ The magistrate judge concluded that the surveillance was legal in all respects and, in a lengthy and careful opinion, recommended that appellants' suppression motions be denied. The district court adopted this recommendation.

Appellants renew their suppression arguments on appeal. At the request of all parties, this court has conducted its own ex parte, in camera review of the surveillance applications and orders. Having done so, we agree with the magistrate judge and the district court that the FISA surveillance of appellants was lawfully authorized and conducted.

A. Threshold Challenge

1. Purpose of the FISA Surveillance

Appellants attack the government's surveillance on the ground that it was undertaken not for foreign intelligence purposes, but to gather evidence for a criminal prosecution. FISA applications must contain, among other things, a certification that the purpose of the requested surveillance is the gathering of foreign intelligence information and a detailed description of the nature of the information sought. See §§ 1802(a)(1)(A), 1804(a)(6), (7). Although evidence obtained under FISA subsequently may be used in criminal prosecutions, see S.Rep. No. 701, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 3973, 3979-85 [hereinafter S.Rep. No. 95-701]; Duggan, 743 F.2d at 78, the investigation of criminal activity cannot be...