United States v. Megahey, CR-82-00327.

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Citation: 553 F. Supp. 1180
• Docket Number: No. CR-82-00327.,CR-82-00327.
• Parties: UNITED STATES of America, v. Gabriel MEGAHEY et al., Defendants.
• Decision Date: 01 December 1982

553 F. Supp. 1180

UNITED STATES of America,
v.
Gabriel MEGAHEY et al., Defendants.

No. CR-82-00327.

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

December 1, 1982.

553 F. Supp. 1181

COPYRIGHT MATERIAL OMITTED

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Raymond J. Dearie, U.S. Atty., E.D.N.Y. by Carol B. Amon, Asst. U.S. Atty., Brooklyn, N.Y., for United States of America

Bernard Kenny, New York City, for defendant Gabriel Megahey.

Edward S. Panzer, New York City, and William A. Kelly, New City, N.Y., for defendant Andrew Duggan.

David L. Lewis, New York City, for defendant Colm Meehan.

Michael G. Dowd, Kew Gardens, N.Y., for defendant Eamon Meehan.

MEMORANDUM AND ORDER

SIFTON, District Judge.

By a superseding indictment filed on August 18, 1982, defendants Gabriel Megahey, Andrew Duggan, Colm Meehan, Eamon Meehan, and seven defendants who have not been apprehended are accused of conspiring to smuggle arms, explosives, and equipment to the Provisional Irish Republican Army; exporting firearms and ammunition without an export license; transporting and shipping blasting caps and other firearms in interstate and foreign commerce; and other related firearms offenses. Defendants Colm Meehan and Eamon Meehan are additionally accused of being illegal aliens and receiving, possessing, and transporting firearms in interstate commerce. Defendants Gabriel Megahey, Colm Meehan, and Eamon Meehan are all said to be aliens, whereas defendant Duggan is said to be a United States citizen. All defendants who have appeared have entered pleas of not guilty to all charges against them.

This matter is currently before the Court on (1) defendants' motions to suppress the fruits of electronic surveillance said to have been conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA" or the "Act"), 50 U.S.C. §§ 1801 et seq., which the Government intends to introduce at trial, and (2) on the Government's application to have this Court determine the legality of the electronic surveillance in an ex parte, in camera proceeding pursuant to 50 U.S.C. § 1806(f).

For the reasons set forth below, the defendants' motions are denied, and the surveillance is determined to be valid. What follows sets forth the essential findings on which these determinations are based, as required by Rule 12(e) of the Federal Rules of Criminal Procedure. The findings derive from the undisputed assertions of the papers filed as part of the public record in this matter as well as the ex parte, in camera submission made by the Government pursuant to 50 U.S.C. § 1806(f).

THE FISA SURVEILLANCE

On February 5, 1982, pursuant to a request made by the Government in the course of a foreign counter-terrorist investigation being conducted by the FBI, a judge of the United States Foreign Intelligence Surveillance Court ("FISC") issued an order authorizing electronic surveillance on the home telephone of defendant Megahey.

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Electronic surveillance pursuant to that order began on February 10, 1982. An order authorizing the continuation of the surveillance was entered by FISC on May 6, 1982. The surveillance continued thereafter until defendant Megahey was arrested on June 21, 1982

On July 27, 1982, pursuant to FISA, 50 U.S.C. § 1806(b), the Acting Attorney General authorized the use of all tape recordings obtained from the surveillance and any information derived therefrom relating to the criminal activity of the defendants at their trial on the superceding indictment described above. Pursuant to letters dated July 28 and August 2, 1982, defendants and this Court were notified, as required by 50 U.S.C. § 1806(c), that the Government intends to introduce information from the FISA surveillance in evidence at the trial.

Defendant Megahey is the only defendant at whom the electronic surveillance was directed. Other defendants, however, were overheard incidentally during the Megahey surveillance. In August and September 1982, counsel for all defendants were provided by the Government with copies of the tape recordings, transcripts, surveillance logs, and pen register tapes of all telephone conversations from calls intercepted during the surveillance that are deemed by the Government to be relevant to the prosecution. Thereafter, under a protective order signed by counsel for all four defendants and entered on October 6, 1982, the Government was ordered to turn over to counsel for the defendants the balance of the tape recordings made pursuant to the electronic surveillance and related documents requested by defendants, such as pen register tapes and surveillance logs, under restrictive conditions designed to protect the identities of and information concerning any United States person as defined in 50 U.S.C. § 1801(i).

THE FOREIGN INTELLIGENCE SURVEILLANCE ACT

The surveillance at issue was conducted pursuant to FISA, which was enacted into law on October 25, 1978. Pub.L. 95-511, 92 Stat. 1783 (1978).

The Act is designed to establish a procedure under which the Attorney General can obtain a judicial order authorizing electronic surveillance in the United States to acquire information for foreign intelligence purposes. S.Rep. No. 95-604, 95th Cong., 2d Sess., reprinted in 4 U.S.Code Cong. & Admin.News 3904, 3906 (1978) (hereinafter "Legislative History"). The Act authorizes the Chief Justice of the United States to designate seven district court judges, who, sitting as members of the Foreign Intelligence Surveillance Court of the United States, may hear applications for and grant orders approving electronic surveillance for foreign intelligence purposes. 50 U.S.C. § 1803(a). The Act makes provision for appellate review, by a specially created court of review and, ultimately, by the Supreme Court, of orders denying applications for surveillance. 50 U.S.C. § 1803(b).

Under the Act, a judge may issue an order authorizing electronic surveillance within the United States only if he finds that (1) the President has authorized the Attorney General to approve applications for electronic surveillance pursuant to FISA,¹ (2) the application has been made by a federal officer and approved by the Attorney General, (3) on the basis of the facts submitted by the applicant, there is probable cause to believe that (a) the target of the electronic surveillance is a "foreign power"² or an "agent of a foreign power,"³ provided that no "United States person"⁴ may be considered a "foreign power" solely on the basis of activities protected by the first amendment to the U.S. Constitution

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and (b) each of the facilities or places at which the electronic surveillance is directed is being used or is about to be used by a "foreign power" or an "agent of a foreign power," (4) the proposed minimization procedures meet the requirements of the Act,⁵ and (5) the filed application contains all statements and certifications required by the Act and that, if the target of the surveillance is a "United States person," the certification or certifications are not "clearly erroneous."⁶ The order may approve electronic surveillance for no longer than 90 days, but extensions of up to 90 days may be granted on application, provided the same findings are made as are required for the original order. In certain instances involving certain "foreign powers," electronic surveillance may be approved for up to one year. In the event an emergency arises and resort to a court is impossible, the Attorney General is authorized to approve brief electronic surveillance without a court order. 50 U.S.C. §§ 1802(a), 1805(e)

Under the Act, information acquired from a FISA surveillance concerning any "United States person" may be used and disclosed without the consent of the "United States person" only in accordance with the minimization procedures noted above. No information acquired from a FISA electronic surveillance may be used or disclosed except for lawful purposes. 50 U.S.C. § 1806(a). Furthermore, no information acquired pursuant to FISA may be disclosed for law enforcement purposes "unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General." 50 U.S.C. § 1806(b).

FISA is the first statute enacted to regulate the use of electronic surveillance within the United States for foreign intelligence purposes. Legislative History at 3908. As the Senate report on FISA states regarding the purpose of its enactment:

"The need for ... statutory safeguards has become apparent in recent years. The legislation is in large measure a response to the revelations that warrantless electronic surveillance in the name of national security has been seriously abused. These abuses were initially illuminated in 1973 during the investigation of the Watergate break-in. Since that time, however, the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities, chaired by Senator Church, ... has concluded that every President since Franklin D. Roosevelt asserted the authority to authorize warrantless electronic surveillance and exercised that authority."

Id. The Senate report notes the infringement of and chilling effect on the constitutional rights of surveillance targets and those with whom the targets communicated caused by the previously unregulated nature of national security surveillance. Thus, FISA was "designed ... to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it," while providing for the orderly continuation of "the legitimate use of electronic surveillance to obtain foreign intelligence information." Legislative History at 3910. As the Senate report notes:

"Striking a sound balance between the need for such surveillance and the protection of civil liberties lies at the heart of the Act .... It is

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