U.S. v. Koyomejian

• Citation: 946 F.2d 1450
• Decision Date: 16 January 1992
• Docket Number: No. 90-50218,90-50218
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Wanis KOYOMEJIAN, Raffi Kouyoumjian, Simon Kouyoumjian, Agop Kouyoumjian, Ohanes Khawaloujian, Salim Chalhoub, Rita Sorfazian, Dalida Avakian, Avedis Khawaloujian, Jimmy Contreras, Raul Vivas, Hamayak Atayan, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1450

946 F.2d 1450

60 USLW 2305

UNITED STATES of America, Plaintiff-Appellant, v. Wanis KOYOMEJIAN, Raffi Kouyoumjian, Simon Kouyoumjian, Agop Kouyoumjian, Ohanes Khawaloujian, Salim Chalhoub, Rita Sorfazian, Dalida Avakian, Avedis Khawaloujian, Jimmy Contreras, Raul Vivas, Hamayak Atayan, Defendants-Appellees.

No. 90-50218.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 13, 1990.

Decided Oct. 15, 1991.

Rehearing Granted and Opinion Amended Jan. 16, 1992.

Mark J. Werksman, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellant.

Howard L. Weitzman, Steve Cochran, David R. Fields, Katten Muchin Zavis & Weitzman, Los Angeles, Cal., for defendants-appellees Wanis Koyomejian and Simon Kouyoumjian.

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

Before NORRIS, REINHARDT and HALL, Circuit Judges. ^*

REINHARDT, Circuit Judge:

This case presents the question whether federal law enforcement officers may legally subject individuals to video surveillance as part of a domestic criminal investigation, and if so what standards govern such surveillance. We join the four other circuits that have faced this question and found that, properly conducted, video surveillance in domestic criminal investigations is lawful, although we base our conclusion on somewhat different grounds. ¹ We hold further that the procedural requirements of the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2520 (1988) ["Title I"], apply to such surveillance. ²

FACTS

In January, 1988, federal law enforcement agents began investigating Wanis Koyomejian and eleven other defendants in connection with their alleged participation in a drug-related money-laundering operation. On September 9, 1988, the government filed an application in the United States District Court for the Central District of California for an order authorizing the installation of hidden closed circuit television cameras in the defendants' Los Angeles business premises. ³ On the same day, the district court issued an order authorizing such surveillance for a period of up to 30 days to begin no later than ten days after the date of the order, September 19. ⁴ Thereafter, the government applied for and the district court issued four 30-day extensions of the authorization for the video surveillance. On February 22, 1989, the defendants were arrested and the surveillance ceased.

The defendants were subsequently charged in a 17-count indictment, filed March 7, 1989. On November 20, 1989, the defendants moved to suppress all evidence gathered through the video surveillance. The district court granted this motion on March 27, 1990. ⁵ The district judge held that, when read together, Title I and the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§ 1801-1811 (1978) ["FISA"], prohibit video surveillance in domestic law enforcement. ⁶ The government moved for reconsideration, and the district court denied the motion. The government then filed a timely notice of appeal, under 18 U.S.C. § 3731 and Fed.R.App.P. 4(b). The district court stayed the trial pending our resolution of this interlocutory appeal.

DISCUSSION

Title I sets forth procedures that federal agents must follow when using a variety of surveillance techniques in connection with domestic criminal investigations. The portion of Title I that is at issue here provides, in pertinent part, that the "procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire and oral communications may be conducted." 18 U.S.C. § 2511(2)(f) (1990). Although FISA expressly covers video surveillance, Title I contains no mention of that technique. The parties dispute the significance of this fact.

The defendants contend that section 2511(2)(f) means that electronic surveillance may only be conducted if expressly authorized by FISA or Title I. They then argue that FISA only authorizes video surveillance for foreign intelligence purposes, while Title I, which applies to domestic law enforcement, contains no similar authorization. They then conclude that video surveillance in domestic criminal investigations is prohibited. The district court adopted the defendants' view.

On the other hand, the government emphasizes the fact that FISA only applies to the foreign intelligence sphere. It argues that since electronic video surveillance is mentioned only in FISA, there are no statutory limits on its use for domestic law enforcement purposes. The government vigorously rejects the district court's conclusion that the omission of video surveillance from Title I's list of techniques means that video surveillance is barred by the provisions of that Title. ⁷ The government argues in the alternative that if the procedural requirements of Title I do apply, those requirements were met.

In short, the defendants claim that because video surveillance is not mentioned in Title I it is unauthorized, while the government argues that because it is not mentioned it is unregulated. Our answer lies between the extreme positions asserted by the litigants. We conclude that video surveillance is not contrary to law but that it is regulated by statute.

We interpret a federal statute by ascertaining the intent of Congress and by giving effect to its legislative will. Arizona Appetito's Stores, Inc. v. Paradise Village Investment Co. (In re Arizona Appetito's Stores), 893 F.2d 216, 219 (9th Cir.1990). Where the intent of Congress is evidenced clearly in the language of the statute, our inquiry ends there. Haynes v. United States, 891 F.2d 235, 238 (9th Cir.1989). If, however, the statutory language gives rise to more than one reasonable interpretation, our duty is "to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested." Commissioner v. Engle, 464 U.S. 206, 217, 104 S.Ct. 597, 604, 78 L.Ed.2d 420 (1984) (quoting NLRB v. Lion Oil Co., 352 U.S. 282, 297, 77 S.Ct. 330, 338, 1 L.Ed.2d 331 (1957) (Frankfurter, J., concurring in part and dissenting in part)), quoted in United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 827 (9th Cir.1989). In particular, "[w]hen Congress has not directly addressed and answered a question, courts ... in answering, by necessity, should be guided by the aims, principles and policies that manifestly underlie enacted statutes." In re Order Authorizing Interception of Oral Communications and Videotape Surveillance, 513 F.Supp. 421, 423 (D.Mass.1980) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487, 71 S.Ct. 456, 463-64, 95 L.Ed. 456 (1951) (Frankfurter, J.)). While it is not the easiest of tasks to do so, we now apply these general principles.

I

Section 2511(2)(f) makes the procedures set forth in Title I and FISA "the exclusive means by which electronic surveillance, as defined in FISA, and the interception of domestic wire and oral communications may be conducted." 18 U.S.C. § 2511(2)(f). "[E]lectronic surveillance," as defined by FISA, includes:

the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

50 U.S.C. § 1801(f)(4). As both the government and the defendants agree, this broad language was intended by Congress to include video surveillance. See also S.Rep. No. 604, 95th Cong., 1st Sess. 35, reprinted in 1978 U.S.Code Cong. & Admin.News 3904, 3936 (observing that subparagraph 4 of subsection 1801(f) "could ... include miniaturized television cameras and other sophisticated devices not aimed merely at communications"); S.Rep. No. 701, 95th Cong., 2d Sess. 37, reprinted in 1978 U.S.Code Cong. & Admin.News 3973, 4006 (same). While FISA contains numerous provisions that expressly use the phrase "electronic surveillance," oddly, Title I does not mention electronic surveillance except in section 2511(2)(f) itself.

In our view, there are three possible interpretations of section 2511(2)(f): (1) as the government contends, it could mean that FISA sets forth all of the constraints applicable to the conduct of foreign intelligence surveillance, that Title I sets forth all of the constraints applicable to the conduct of domestic law enforcement surveillance, and never the twain shall meet. Under this interpretation, a form of surveillance not mentioned in Title I is not subject to regulation when used in connection with a domestic criminal investigation; (2) section 2511(2)(f) might also mean, as the defendants argue, that electronic surveillance may only be conducted as authorized by Title I or FISA, and since Title I does not mention domestic video surveillance while FISA expressly authorizes foreign intelligence video surveillance, domestic video surveillance is not permitted; or finally (3) section 2511(2)(f) could be interpreted as requiring that the procedures set forth in Title I and FISA must be followed for all forms of electronic surveillance mentioned in either statute, the only difference being that if the surveillance is for a domestic law enforcement purpose the procedures set forth in Title I are applicable whereas if the surveillance is for foreign intelligence purposes, FISA's procedures apply. None of the interpretations is entirely satisfactory. Nor is any compelled by the language of the statute, standing alone.

In order to arrive at the proper answer, we must consider the legislative history and underlying policies of the relevant statutes, as well as the statutory language. Based on our analysis of all of these sources, we conclude that the statute...