Petition — Ajlouny v. United States
Supreme Court brief1981
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———
a. Supreme Court, v. S
80-622 ‘we. FILED
CT 16 1980
io. MICHAEL RODAK, JR., CLER
pateeees
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
PAUL AJLOUNY,
Petitioner
-against-
UNITED STATES OF AMERICA,
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
ELISE S$. SOLOMON
767 Fifth Avenue
New York, New York
10153
(212) 310-8090
Attorney for Petitioner
OF COUNSEL:
SOHN R. WING, ESQ.
WEIL, GOTSHAL & MANGES
QUESTIONS PRESENTED FOR REVIEW
1. Does the exclusionary rule
apply to protect and enforce a United
States citizen's Constitutional rights
against unlawful electronic surveillance
conducted without a warrant in the name
of foreign intelligence, which surveil-
lance the Second Ciruit assumed arguendo—
without passing on the issue--to be
"unlawful"?
2. Is the purpose and scope of the
"border search" exception to the Fourth
Amendment limited to travelers and goods
entering the country as articulated in
this Court's decisions, or does it expand
to countenance searches without any
probable cause or warrant of United
States citizens and their property
leaving the country--where the people
and property were lawfully in the country
and had not crossed any border at the
time of the search?
3. Does Section 2314's prohibition
against transporting stolen property in
interstate or foreign commerce extend to
property transported intrastate from
Hempstead, New York, to Brooklyn, New
York, where the language, legislative
history and all prior judicial interpre-
tations of this statute and three
related federal criminal "transportation"
statutes require transportation across a
state or national boundary line?
PETITION:
TABLE OF CONTENTS
Opinions of the Courts Below...+es
TUCLSGICtiONn. . cece eeeresesssseees
Constitutional Provisions
and StatuteS.-ceccecveseevseseseseeees
Statement of the CaS€..-.seeeeeees
e Statement of Essential Facts....
Reasons for Granting the Writ.....
I
II
The Second Circuit's
Unprecedented Decision
That The Exclusionary
Rule Does Not Apply To
Protect Petitioner's
Fourth Amendment Rights
Against Unlawful
Electronic Surveillance
Is In Direct Conflict
With Prior Decisions Of
This Courtccccccccccccceaces
The Second Circuit's
Expansion Of The
"Border Search" Excep-
tion To "Export
Searches" Conflicts
With Decisions Of This
Court And Other Courts
Which Recognize The
Purpose And Scope Of The
Border Exception Is
Limited To Travelers And
Goods “Entering The
COUNEEY™ .cccvesccccccccsoess
Page
13
14
35
atte
III The Second Circuit's
Expansion Of Section
2314's Application To
Intrastate Shipments
Is Without Precedent
And Conflicts With Its
Own Prior Decisions,
Rulings Of Other
Federal Courts And
Congressional Intent
As Construed By This
COUEC. ccoccccccocnscccceses 48
ee ke a ee ee ee 59
APPENDIX A - Opinion of the United
States Court of Appeals for the
Second Circuit....cceeeceeecces la
APPENDIX B - Opinion of the United
States District Court for the
Eastern District of New York... 27a
APPENDIX C - Transcript of the
United States District Court
for the Eastern District of
Mieke DE 8 ks nbc oe ake bene e eebheee 76a
APPENDIX D - Judgment of Affirmance
by the United States Court of
AppealsS...eeceesreecereeecceses 78a
APPENDIX E - Constitutional
Provisions and Statutes.......-. 80a
-1ii-
AUTHORITIES CITED
Cases
Page
Alderman v. United States, 394
: Se 165 (LOGS) wcccscenedecceces 5, 16
Alexander v. United States, 362
F.2a 379 (9th Cir.), cert.
denied, 385 U.S. 977 See) <4% 02 38
Almeida-Sanchez v. United
States, SL GU. BOE CEE TO) cc cne 21
Beck v. Ohio, 379
B9 T1964) .ccccvcccccccccces 33
Berlin Democratic Club v.
Rumsfeld, 410 F. Supp. 114
(D.D.C. Todo athe a 23
Boyd v. United States, 116
7.5. CG16 (LOSS) ccccccccccccccecs 18
California Bankers Ass'n.
Vv. Shultz, 416 U.S. 2.1 (1974)...42, 43,
Carroll v. United States, 267
ee. San ARES) v6 oe ks ene Bewesere 5, 38, 43
Corngold v. United States, 367
F.2d 1 (9th Cir. DES icsaabnee’ 41
Gouled v. United States, 255
Wom SOO. CLOSED cb cc wdee ccecseses 18
Goldman v. United States, 316
U.Se 134 (2 5Gal < ose e eaeeeneeeeve# 20
-iv-
Henry v. United States, 361
a 98 PEO? vee hetcescegeeeses 33
Katz v. United States, 389
fe 347 PRREET cs as cen bawecess se eOeal 5 a0
Klein v. United States, 472
F.2d 847 TWth Cir. ya | SR a 39
Ma . Ohio, 367 U.S. 643
Tibs1)
eeeeeveeveeeeeeeeeeeaeneaeaeneaneneee @ 15
Nardone v. United States, 308
U.S. 338 PEP Ces ceecewdts covces 17
Olmstead v. United States, 277
U.S. 438 LTE bushi ssn se eb e 6 ee 20
People v. Esposito, 37 N.Y.2d
oh) Pr ererrrrrry: See ee 41
Samora v. United States, 406
F.2d 1095 (5th Cir. 1969)........ 46
Silverman v. United States, 365
Sie 505 RE CS pakke ane eben ee 62 16,17
Silverthorne Lumber Co.
v. United states, 251 U.S.
385 TEE E Can Coed eee eeeee ace eces 16
Stone v. Powell, 428 U.S.
465 4090) pe Pere ee ee 18,19
Terry v. Ohio, 392
U. * 1 Ce Obs oad bine Wee en ee 33
Torres v. The Commonwealth of
Puerto Rico, 442 U.s. 465
eceoeevoevevevaeeeeeeoaevoeeeeee eee © @ 36
-Ve-
United States v. Asbury, slip
Op., (2d Cir. Nov. » 2978) cee
United States v. Bailey and Gomez,
slip op. (6th Cir. July 31, 1980).
United States v. Bottone, 365
F.2q 3099 (2d Cir.), cert.
denied, 385 U.S. 974 ei eee
United States v. Caceras, 440
U.s. 741 LLB TD) cobcosvosveoceses
United States v. Cadena, 585
FP. od 1252 (oth Cir. 1978)...... :
United States v. Casey, 428
F.2dqd 229 (5th Cir.), cert.
denied, 400 U.S. 389 oi er
United States v. Chabot, 193
F.2q 267 (2a Cir. 5 aS
United States v. Eppesien 451
F.2d 178 (Sth Cie. e*ee#ee#e4#see#e#
United States v. Hil ox, 543
F.2d 41 (6th Cir. ISYET.. wc coce
United States v. Hines, 563
W 5a 737 (sth Cir. L977) ecccee 7?
United States v. Ingham, 502
F.2ag 120) (5th Cir. 1974),
cert. denied, 421 U.S. 911
(1975) ccccccccccccccccascececces
United States v. Levy, 579
F.2d L332 (5th Ci¥. 978),
cert. denied, 440 U.S. 920
(1979) .ccccccccccocs ceeawweesd ses
Page
45,46
32-33
50
33
47
56
45,46
56
49
57
47
49
-vi-
United States v. Marti, 321
F. “Supp. 59 (E.D.N.Y. EO PG) exudes 40
United States v. Martin, 375
F.2d 956 (6th Cie. pg A 56
United States v. Moore, 571
F.2d 76 (2d os Fe EE bik és 6 wee oe 57
United States v. Napier, 518
F.2d 316 (Oth Cir.), cert.
denied, 423 U.S. 895 (1975)....... 57
United States v. Owens, 460
ee GOT Coen Cit. BETA? 6 v ccic cee 49
United States v. Poole, 557
F.2d 531 (5th Cir. ED ieee Aye 49
United States v. Ramsey, 431
Ou 606 +) Dg} erg eeeeeveeveee 36-38
United States v. Scandifia, 390
F.20 244 (20 Cir. 1968),
remanded on other grounds sub
nom., Giordano v. United States,
3ST U.5. S10 (1969) ..ccccccccceees 49
United States v. Sheridan, 329
U.S. 379 (1946) cc cecceeveeceeeees 53
United States v. Squires, 581
F.2q 408 (4th Cir 1978)
United States v. steey 545
F.2d 601 (9th Cir. » cert.
denied, 436 U.S. 917 (1978) .ccccee 45-47
United States v. Swarovski, 592
ep ep are? eel) Me hy, ) epee 43-45
-vii-
United States v. Thirty-Seven
Photographs. 402 U.S.
eeceeoevoevoeaevoeeaeoeoevoeeeeeoeoe eee e ee © 38
United States v. United
States District Court, 407
U.s. 291 DEEN Gpbeccescccvcccesckeehl sad
United States v. Walker, 575
F.2a 209 (9th Cir. 1978),
cert. denied, 439 U.S. 931
T197B) cocccccccccccccccccccscces 48
United States v. Walker, 176
F.2d 504 (od Cir.), cert.
denied, 338 U.S. 891 ae 50
United States v. Williams, 622
F.2d 630 (5th Cir. cole n ws ee 22
Whitaker v. Hitt, 285 F. 797
Wel. CLS. WGSSZ) cccccccccccccecs 57
Weeks v. United States, 232
U.s. 383 C1914) eccccccce eoeeeeeee 15,18
Wong-Sun v. United States, 371
U.S. PPE ch abocecdsese e*ee#ee#ee¢ 21
Zweibon v. Mitchell, 516 F.2d
D.C. Cir. 1975) (en banc),
cert. denied, 425 U.S. 944
0 ) Se eeeeee#e#ee#*ee# .23,24,25
United States Constitution
Page
Amendment IV......+--. Orr et ee passim
-viii-
Statutes
Dyer Act, 18 U.S.C. §408(b)
PROGR) £6 sc ck aoe eae eecevewosndaes Fe
Foreign Intelligence
Surveillance Act of 1978,
50 U.S.C. §§1801-1811
(Supp. IT. 1978) .ccccccccccceses 46
National Cattle Theft Act,
18 U.S.C. §419a(b) (1941)........ 55
National Stolen Property Act
of May 22, 1934, §§2(a) and
Je 48 Stat. 794, i, oO Pr ee ~ }-
Section 10, Title 18, United
States Be ae ee 35
Section 414(a), Title 18,
Teaided Stated CORO. 6605p bacdcce 53, 54
Section 415, Titie 18, United
States Co on 6 RUM) 6 ae 00 60-06 oe @ 53
Section 659, Title 18, United
States Cee 6 eat ce e-o8 eeee#ee## eee 1l
Section 1201, Title 18, United
States Cee. no ke 6 hb 666 06.08 OSS OR 55
Section 2312, Title 18, United
States CE 6 nk 6 bb 6 O66 Ob 4 hee 56
Section 2314, Title 18, United
Saha COR. sc ckst cd ine tose ee aan os
48-58
Section 2316, Title 18, United
Stebam POE. ts ssc task aka ens ee
-ix-
Page
Section 40l(a), Title 22,
United States Code. eeeeeeeeeeese 42
Section 1254(1), Title 28,
United States COode....eeeeeeeees 2
Supreme Court Rules
Rule Swe ctbcoeebesseoetoeeouéeoces 2
Other References
Executive Order No. 12036,
"United States Intelligence
Activities," January 24, 1978,
Badbiee, PeAOLccicccucccccecsess 49
S. R. (Judiciary Committee)
No. 95-604 Nov. 15, 22, 1977,
cited in U.S. Cong. 6 Adm.
News at 3908-09 (1978).......... 26729
S. Rep. 1620, 80th Cong., 2d
Sees. 1, 194. ccccdseccecer cise ee
H. R. Rep. (Judiciary Committee)
304, 80th Cong., lst Sess.
(1947) . cece cere cree eeeesereseses 55
Oaks, Studying the Exclusionary
Rule in Search and Seizure,
37 U. Chi. L. Rev. 665 (1970)... 19
~
-xX- ‘
Recent Development: Criminal
Law -- Border Searches,
5 Geo. Le J. 164 oo)! ae
Note, "From Bags to Body
Cavities: The Law of Border
Search," 74 Colum. L. Rev.
53 (1974) ..cccccccevcccceveseces
47
40
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
NO.
cwtibiih cae ante amebtind wali Se ae x
PAUL AJLOUNY,
Petitioner,
-against-
UNITED STATES OF AMERICA,
Respondent.
cndcitirndubatibunhdtidninten apne x
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT
Paul Ajlouny, petitioner herein,
prays that a writ of certiorari issue to
review the judgment of the United States
Court of Appeals for the Second Circuit
entered in this criminal case on
August 29, 1980.
~,
Opinions of the Courts Below
The opinion of the United States
Court of Appeals for the Second Circuit
sought to be reviewed is reproduced in
Appendix A and is not yet officially
reported. The opinion of the United
States District Court for the Eastern
District of New York (Costantino, D.J.)
is reproduced in Appendix B and is
published at 476 F.Supp. 995.
Jurisdiction of the Supreme Court
The judgment of the United States
Court of Appeals for the Second Circuit
was entered on August 29, 1980. The jur-
isdiction of this Court is invoked under
Section 1254(1) of Title 28, United
States Code, and Rule 17 of the Rules of
this Court, to review by writ of certio-
rari the judgment of the United States
Court of Appeals for the Second Circuit.
ote
Constitutional Provisions and Statutes
e CONSTITUTION: Fourth Amendment
STATUTE: 18 United States Code
Section 2314
Each of the above is set forth in
t Appendix E.
Statement of the Case
The United States Court of Appeals
for the Second Circuit, in the context of
affirming petitioner's conviction,
announced new and drastically expansive
interpretations of constitutional and
statutory law. In a radical departure
from prior law, the Second Circuit held
that the exclusionary rule would not
apply to protect fundamental Fourth
Amendment rights of United ‘tates citi-
zens against unlawful electronic
surveillance--allegedly seeking foreign
intelligence. Without passing on the
issue, the Second Circuit assumed,
arguendo, that such warrantless
=
electronic surveillance would be illegal.
The exclusionary rule is the fundamental
remedy fashioned by this Court to protect
all citizens against invasion of Fourth
Amendment rights and its application is
essential in cases involving illegal
electronic surveillance, which is per-
haps the most invidious and inherently
intrusive of all Fourth Amendment vio-
lations.
The Second Circuit proclaimed an
additional encroachment upon Fourth Amend-
ment safeguards by expanding the so-
called "border search" exception to
include exit as well as entrance
searches. This Court has often ruled
that border searches without any warrant
or probable cause were a reasonable
exception to Fourth Amendment require-
ments "because of natioral self-protec~
tion reasonably requiring one entering
aSe
the country to identify himself as
entitled to come in, and his belong-
ings as effects which may be lawfully
brought in." Carroll v. United
States, 267 U.S. 132, 154 (1925)
(emphasis added). By expanding this
exception to persons and goods
("lawfully within the country") traveling
out of the country, the Second Circuit
substantially enlarges the government's
ability to ignore basic Fourth Amend-
ment standards which--at any other
time--guarantee an individual or his
property freedom from warrantless
searches without probable cause.
Petitioner was convicted for
violating Section 2314 of Title 18,
U.S.C., which prohibits the transporta-~
tion of stolen property in interstate
or foreign commerce--despite the fact
that the property in question was not
=6-
transported across a state or national
boundary line. In an unprecedented
ruling, the Second Circuit expanded the
statute to include what was an undisputed
intrastate transportation from Hempstead,
New York, to a Brooklyn pier, thereby
rejecting uniform authority in other
circuits holding that purely intrastate
transportation of stolen property will
not support a conviction under this
statute.
Statement of Essential Facts
Petitioner was charged with trans-~
porting stolen property in foreign
commerce in April 1978 when he was a
Vice-President of the Kinney Mechanical
Maintenance Division of the National
Kinney Corporation for whom he had worked
for approximately 10 years. The alleged
stolen property in question constituted
certain telephone and teletype equipment
»
that had been packed with numerous other
items in a cargo container that peti-
tioner intended to ship to the small
Persian Gulf country of Qatar where he
was about to start a new business pur-
suant to a joint venture agreement with
the National Kinney Corporation.
In March 1978, several United States
Customs Agents departed from their
traditional duties and became involved
in assisting the New York Telephone
Company investigate "blue box" use on
petitioner's home telephone. In the
course of this investigation, the agents
observed petitioner's cargo container
being loaded in a public shopping center
near petitioner's Hempstead residence.
On April 10, the Customs Agent in charge
decided to search the container. On
April 14, the container was moved by
truck from the Hempstead shopping center
ofa
to a Brooklyn pier.
On April 17, 1978, Customs Agents
broke into the container, cutting the
metal seal with which it was locked, and
proceeded during the next few hours to
search and remove the entire contents of -
the container. Although only the
telephone and teletype equipment was
alleged to be stolen, the agents also
seized and held for three months the
great bulk of the container's contents
including books, tools, golf clubs, suit-
cases, clothing, industrial cleaning
equipment, and numerous other items.
The government conceded that the
search was conducted without a warrant
or any probable cause. The Customs
Agent in charge testified that the search
was based on "nothing concrete, but...a
suspicion we would find munitions in that
container," and, of course, the search
revealed no munitions.
«Qa
The key issues at trial were whether
the property was stolen and whether peti-
tioner knew it was stolen. The govern-
ment did not call any witness to claim
ownership of 75% of the allegedly stolen
property and there was no direct evidence
that any of the materials were in fact
stolen. On the issue of knowledge, the
petitioner proved that his container,
with all this property, was broken into
by an unknown individual the night before
it was scheduled to go to the pier. It
was undisputed that petitioner immediate-
ly reported that fact to the local police
and requested that they come to the scene
of the container to investigate--a re-
action highly inconsistent with any
knowledge or belief that the container
held stolen property.
~10-
The jury deliberated for approximately
20 hours before returning a guilty ver-
dict. Petitioner was subsequently
sentenced to a two-year term of imprison-
ment and a $10,000 fine.
Prior to trial, the government
acknowledged that the FBI had conducted
multiple warrantless electronic surveil-
lances of petitioner's conversations
before, during and after the criminal
activities charged in the indictment.
The government claimed that these
surveillances were foreign intelligence
national security surveillances and
submitted records of these surveillances
in camera to the District Court. Peti-
tioner's pre-trial motion to discover
and suppress evidence derived from these
warrantless electronic surveillances
was denied by Judge Costantino in a
written opinion (Appendix B). A pre-
ak De
trial motion to suppress the property at
jssue on the ground that the warrantless
search of petitioner's container--absent
probable cause--violated Fourth Amendment
@ guarantees, was also denied by Judge
Costantino in a written opinion
(Appendix B).
@ At the close of the government's
case (and again at the close of the
defense case and after the verdict),
®@ Petitioner moved for a judgment of
acquittal on the ground that the prose~
cution had failed to prove that the
® goods were transported in foreign
commerce as required by Section 2314, in
that it was undisputed that the goods
e had not crossed a state or national
boundary line. Judge Costantino denied
this motion relying on cases interpre-
® ting different language in a different
statute, Section 659 of Title 18, U.S.C.
oi%e
(Appendix C).
On appeal to the United States Court
of Appeals for the Second Circuit,
petitioner contended that the warrantless
electronic surveillances were uncon-
stitutional and that the failure to
disclose the fruits and other information
concerning such surveillances warranted
reversal. The Second Circuit avoided
deciding the legality of the warrantless
foreign intelligence electronic surveil-
lance by assuming, arguendo, that the
electronic surveillances of petitioner's
conversations were unlawful and ruling
that the exclusionary rule would not ap-
ply (Appendix A). Petitioner also argued
on appeal that the container search
violated fundamental Fourth Amendment
rights. The Second Circuit rejected
his contention by extending the "border
search" exception to sanction export
=i%<
searches--without any probable cause or
a warrant--of people and property leaving
the country (Appendix A). Petitioner
also renewed his claim on appeal that
the intrastate transportation of the
property in question from Hempstead, New
York, to a Brooklyn pier did not suffice
to violate the prohibition of Section
2314 against transportation of stolen
property in interstate or foreign
commerce. Here again, the Second Circuit,
in the face of uniform authority to the
contrary, expanded the law by ruling
that intrastate transportation to a
pier, of property designated for »ship-
ment abroad, constitutes transportation
in foreign commerce under Section 2314
(Appendix A).
Reasons For Granting The Writ
-14-
POINT I
The Second Circuit's Unprece-
dented Decision That The
Exclusionary Rule Does Not Apply
To Protect Petitioner's Fourth
Amendment Rights Against Unlawful
Electronic Surveillance Is In
Direct Conflict With Prior
Decisions Of This Court
The government acknowledged in the
District Court that petitioner's conver-
sations had been overheard by the FBI
during the course of so-called "foreign
intelligence national security" electro-
nic surveillances. Records submitted to
the District Court in January and May,
1979 indicated that petitioner was the
subject of multiple electronic surveil-
lances before, during and after the
activity in April 1978 for which he
stands convicted. The Second Circuit's
unique and unprecedented decision
assumed, arguendo, that the surveillances
were “unlawful and did lead to...trial
evidence" but held that it would not “be
-15-
appropriate to apply the exclusionary
rule" in those circumstances. (18a~-19a)
In so holding, the Second Circuit
avoided deciding the legality of
electronic surveillances conducted with-
out a judicial warrant in the name of
"foreign intelligence", an issue which
was left undecided by this Court in
United States v. United States District
Court ("Keith"), 407 U.S. 297 (1972).
The applicability of the exclusion-
ary rule to protect against unconstitu-
tional invasion of privacy through
illegal electronic surveillance was
clearly stated by this Court in Alderman
v. United States, 394 U.S. 165, 171
(1969):
"The exclusionary rule fashioned
in Weeks v. United States, 232
U.S. 3983 (1914), and Ma v. Ohio,
367 U.S. 643 (1961), excludes
from a criminal trial any evi-
dence seized from the defendant
in violation of his Fourth
Amendment rights. Fruits of
+6u
such evidence are excluded as
well. Silverthorne Lumber Co.
v. United States, 7Sl 0.5. 305,
391-392 (1920). Because the
Amendment now affords protection
against the uninvited ear, oral
statements, if illegally over~
heard, and their fruits are
also subject to suppression.
Silverman v. United States,
365 U.S. 505 (1961); Katz v.
United States, 389 U.S. 347
In Alderman this Court confirmed "the
existing rule that unlawful wiretapping
or eavesdropping whether deliberate or
negligent, can produce nothing usable
against the person aggrieved by the
invasion" (394 U.S. at 176), by holding,
inter alia, (1) that all illegally
obtained surveillance records as to
which a defendant has standing--including
national security information-~-must be
submitted to the defendant or his
counsel and (2) that the defendant is
entitled to suppression or exclusicn
from his trial of such illegally obtained
information and its fruits. The Court
ah
also noted:
e "Tt may be that the prospect
of disclosure will compel the
Government to dismiss some
prosecutions in deference to
national security or third
party interests. But this is
the a choice the Government con-
cededly faces with respect to
material it has obtained
illegally...." (394 U.S. at
184).
& The Second Circuit's rejection of the
exclusionary rule in an electronic
surveillance case involving inherently
* intrusive violations of Fourth Amendment
privacy rights runs directly contrary to
well established constitutional law
& articulated in this Court's decisions.
See United States v. United States
District Court ("Keith"), 407 U.S. 297
we (1972); Katz v. United States, 389 U.S.
347 (1967); United States v. Silverman,
365 U.S. 505 (1961); Nardone v. United
* States, 308 U.S. 338 (1939). All of
these decisions directly or indirectly
oite
implemented the exclusionary rule in
situations involving illegal electronic
surveillance. The reasoning is funda-
mental. The exclusionary rule was a
judicially created means of effectuating
constitutional rights. Stone v.- Powell,
428 U.S. 465, 482 (1976); Gouled v.
United States, 255 U.S. 298 (1921); Weeks
v. United States, 232 U.S. 333 (1914);
Boyd v. United States, 116 U.S. 616
(1886). In order to secure the funda-
mental guarantees of the sanctity of the
home and the inviolability of the person,
for over sixty years this Court has held
that evidence seized during an unlawful
search may not constitute proof against
the victim of the search.
"Tt is...imperative to have a
practical procedure by which
courts can review alleged
violations of constitutional
rights and articulate the
meaning of those rights. The
advantage of the exclusionary
rule--entirely apart from any
«16.
direct deterrent effect--is
that it provides an occasion
for judicial review, and it
gives credibility to consti-
tutional guarantees. By
demonstrating the society
will attach serious conse~
quences to the violation of
constitutional rights, the
exclusionary rule invokes
and magnifies the moral and
educative force of the law.
Over the long term:this may
integrate some fourth amend-
ment ideals into the value
system or norms of behavior
of law enforcement agencies."
Oaks, Studying the Exclusionary Rule in
Search and Seizure, 37 U. Chi. Le REV.
665, 756 (1970). In Stone v- Powell,
supra at 493, this Court "adhere[d] to
the view that these considerations
support the implementation of the
exclusionary rule at trial and on direct
appeal....".
The Second Circuit's unique ruling
is based on the assumption that tradi-
tional justifications for the exclusion-
ary rule--deterrence of conduct which
=20~
violates Fourth Amendment rights and the
imperative of judicial integrity--would
not be served in this am if one accepts
the further assumption that the govern-
ment agents involved in these electronic
surveillances were acting in the good
faith belief that their conduct was in
accordance with the law. These assump~
tions are factually and legally unsound.
Similar claims were specifically rejected
in Katz v. United States, Supra, where
the government urged this Court to retro-
actively validate the conduct of its
agents because they "relied upon the
[prior Supreme Court] decisions in
Olmstead and Goldman." This Court's
response there is equally applicable
here.
"Tt is apparent that the agents
in this case acted with restraint.
Yet the inescapable fact is
that this restraint was imposed
by the agents themselves, not
by a judicial officer....
ois
Searches conducted without
warrants have been held un-
lawful 'notwithstanding
facts unquestionably showing
probable cause," ...- for the
Constitution requires ‘that
the deliberate impartial
judgment of a judicial officer...
be interposed between the
citizen and the police....'
Wong Sun v. United States, 371
U.S. 471, 481-482. ‘Over
and again this Court has
emphasized that the mandate
of the [Fourth] Amendment
requires adherence to judicial
processes,'...and that searches
conducted outside the judicial
process without prior approval
by judge or magistrate, are
per se unreasonable under the
Fourth Amendment - subject only
to a few specifically esta-
blished and well-delineated
exceptions." Katz v. United
States, supra at 356-57.
See also Almeida@Sanchez v. United States,
413 U.S. 266 (1973), where the fact that
the government agents conduct was
expressly authorized by a federal
statute permitting warrantless automobile
searches within a reasonable distance
from a United States boundary did not
deter this Court from reversing a
a
conviction based on the fruits of that
warrantless search.
In contending that the exclusionary
rule's deterrent purpose would not be
served in the instant case, the Second
Circuit assumed that FBI electronic
surveillances of petitioner were made in
the good faith belief that this conduct
was lawful (20a-21la). This assumption is
erroneous and--unlike the "good faith"
ruling in United States v. Williams, 622
F.2d 830 (5th Cir. 1980) --unsupported by
any hard facts, inasmuch as petitioner
was denied a hearing and any discovery
of information relating to the initiation,
purpose, duration, necessity, legitimacy
and reasonableness of these multiple
electronic surveillances. |
The Second Circuit points to the
fact that at the time of these electronic
surveillances neither the federal
é2%~
statutes nor the case law in its Circuit*
supported petitioner's argument on appeal
that a warrant was required for foreign
intelligence electronic surveillances.
However, in the District of Columbia
Circuit where, according to government
submissions, the decisions were made to
institute these electronic surveillances,
two courts in dicta have concluded that
the Executive's powers in the field of
foreign affairs do not justify warrant-
less surveillance for foreign affairs
purposes. Zweibon v. Mitchell, 516 F.2d
594, 651 (D.C. Cir. 1975) (en banc),
cert. denied, 425 U.S. 944 (1976); Berlin
Democratic Club v. Rumsfeld, 410 F. Supp.
¥ Actually, as noted in its opinion,
neither the Second Circuit nor any
district courts in the circuit had
decided whether warrantless foreign
intelligence electronic surveillances
were legal or not.
~-24-
114 (D.D.C. 1976). In Zweibon, the
government sought to justify warrantless
surveillances in foreign affairs by
pointing to the Executive's recognized
responsibility for the administration of
this country's foreign affairs. However,
as the Zweibon court noted in a well
reasoned opinion,
"the precedents of Executive
practice and judicial decisions
merely substantiate the exis-
tence of those powers and
Teqitimate the authority of the
President to obtain information
necessary to protect the
national security from foreign
aggression; they do not preordain
the procedures with which the
President must comply in
exercising that authority."
Zweibon v. Mitchell, supra,
516 F.2d at 610 (emphasis added).
The Zweibon Court found that claims
of lack of judicial competence, danger of
security leaks, the fact that such
surveillance is for the purpose of
gathering intelligence rather than for
investigating criminal conduct, the delay
-25-
caused by the necessity of applying for
@ a warrant and the general administrative
burden (many of the justifications which
the Keith Court rejected as reasons for
e permitting warrantless national security
domestic surveillance, Keith, supra, 407
U.S. at 318-321) were insufficient to
@ "dictate abrogation of the warrant
requirement for that category of cases
in which surveillance is based upon the
@ President's constitutional powers with
respect to the conduct of foreign
affairs ...",
suggest that, absent exigent
circumstances, no wiretapping
7 in the area of foreign affairs,
should be exempt from prior
judicial scrutiny, irrespective
@ of the justification for the
surveillance or the importance
of the information sought." Id.
at 651.
© "Indeed, our analysis would
Following this Court's decision in
Keith in 1972, there was certainly no
imprimateur of legality surrounding
a26<
warrantless electronic surveillances in
the foreign intelligence area, despite
the fact that the Court did not specifi-
cally rule on that issue. In fact,
efforts began in Congress in 1972 to enact
legislation that would expressly curtail
warrantless electronic surveillance in
the name of national security. Those
efforts culminated in the Foreign
Intelligence Surveillance Act of 1978, 50
U.S.C. §§1801-1811 (Supp. II 1978), which,
according to the Second Circuit, would
have required a court order for the
surveillances of petitioner (22a-23a).
The concern that such foreign intelligence
electronic surveillances were definitely
illegal was announced in a Senate
Judiciary Committee Report in November,
1977, well before the FBI conducted
electronic surveillances of petitioner's
conversations during the period when the
27a
alleged criminal activity was in
" progress.
“The need for such statutory
safeguards has become apparent
in recent years. This legis-
lation 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 (hereafter referred to
as the Church Committee), has
concluded that every President
since Franklin D. Roosevelt
asserted the authority to
> authorize warrantless electronic
surveillance and exercise that
authority. While the number of
illegal or improper national
security taps and bugs conducted
during the Nixon administration
] may have exceeded those in
previous administrations, the
surveillances were regrettably
by no means atypical. In
summarizing its conclusion
that surveillance was ‘often
> conducted by illegal or
improper means,' the Church
committee wrote:
'Since the 1930's,
~-28-
intelligence agencies have
frequently wiretapped and
bugged American citizens
without the benefit of
judicial warrant,...[P]ast
subjects of these surveil-
lances have included a
United States Congressman,
Congressional staff member,
journalists and newsmen,
and numerous individuals
and groups who engaged in
no criminal activity and who
posed no genuine threat to
the national security, such
as two White House domestic
affairs advisers and an
anti-Vietnam War protest
group. (vol. 2, P- 12)
* * + .
The application of vague
and elastic standards for
wiretapping and bugging
has resulted in electronic
surveillances which, by
any objective measure, were
improper and seriously
infringed the Fourth Amend-
ment Rights of both the
targets and those with whom
the targets communicated.
The inherently intrusive
nature of electronic surveil-
lance, moreover, has enabled
the Government to generate
vast amounts of information--
unrelated to any legitimate
government interest--about
the personal and political
lives of American citizens.
«29a
The collection of this type
‘of information has, in turn,
raised the danger of its use
for partisan political and
other improper ends by senior
administration officials.
(yok. 3, ps 32)."
Senate Report (Judiciary Committee) No.
95-604, Nov. 15, 22 1977, P- 7¢ Bt
U.S. Cong. & Adm. News at 3908-09 (1978).
In considering the government's good
faith with respect to electronic surveil-
lances of petitioner, it also would be
relevant to note the government's apparent
violation of Section 2-201(b) of
Executive Order No. 12036, effective
January 24, 1978, which prohibited
warrantless electronic surveillance of
a United States citizen "unless the
President has authorized the type of
activity involved....". Government
submissions in this case are devoid of
any reference to Presidential authoriza-
tion of the electronic surveillance at
-30-
issue which extended well past January
1978.
In fact, the Second Circuit is
probably incorrect in concluding that the
surveillances of petitioner only occurred
prior to the October 1978 effective date
of the Foreign Intelligence Act and,
therefore, were not subject to this Act.
Immediately prior to the trial, which
took place during October and November
1979, petitioner's counsel--making
specific reference to the new Act-~re-
quested that the government file with
the District Court any information
relating to electronic surveillance of
petitioner from September 5, 1978 (the
date of indictment and the latest date
covered by prior submissions) up through
the trial which concluded on November 28,
1979. On that day, October cy ee heh
government counsel consented to that
«l<
request stating "we will make the request
for an all-agency check which will be
conducted during the trial" and the
District Court specifically ordered that
this be done. For almost one year the
government has avoided complying with
this Court order, despite specific
requests by petitioner's counsel prior to
the filing of the brief and record on
appeal and prior to the filing of this
petition. The assumption that the
electronic surveillances of petitioner--
admittedly conducted during a five year
period from 1972 to September 1978--con-
tinued up through the trial and even to
this date is clearly reasonable if not
inevitable. The reasons for the
government's deliberate disregard of a
Court order requiring disclosure of the
existence of such continuing surveillances
is eloquent testimony to the absence of
governmental "good faith" and to the
n§2e
essential need for deterrence of these
constitutional violations through appli-
cation of the exclusionary rule.
The Second Circuit's argument that
good faith eliminatesthe need for any
deterrence that might be achieved by
the exclusionary rule, conflicts sharply
with a recent decision by the Sixth
Circuit, United States v. Clark Bailey
and Gomez, slip op. (July 31, 1980):
"The Government argues further
that suppression is an inappro-
priate remedy because the Govern-
ment acted without deliberate
intention to violate the law.
However, the fourth amendment
requires more than good faith; it
requires observance of procedures
designed to ensure that the
search or seizure authorized by
the warrant is reasonable.
“we think electronic surveillance
has such a potential for abuse
that the Government must be held
accountable for its use. To
hold the exclusiona~y rule in-
applicable under the facts of
this case would place fourth
amendment protections solely
under the control of the Executive
Department of the Government and
o93~
would constitute judicial
abdication. Accordingly, we
hold that the application of
the exclusionary rule by the
district court in the present
case was correct."
Good faith on the part of law enforcement
agents should never be the test in
determining either the reasonableness of
a particular search and seizure or the
applicability of the exclusionary rule.
See, Beck v. Ohio, 379 U.S. 89, 98 (1964);
Terry v. Ohio, 392 U.S. l, 21-22 (1968) ;
Henry v. United States, 361 U.S. 98, 101
(1959). As this Court noted in Beck
"If subjective good faith alone
were the test, the protections
of the Fourth Amendment would
evaporate and people would be
‘secure in their persons, houses,
papers and effects' only in the
discretion of the police." 379
GU. 8. at. Fi
Mr. Justice Marshall's dissenting
opinion in United States v. Caceres, 440
U.S. 741, 766 (1979) illuminates the
problem in utilizing any good faith test;
a$he
"Restricting application of
the exclusionary rule to
instances of bad faith would
invite law enforcement officials
to gamble that courts would
grant absolution for all but the
most egregious conduct. Since
judges do not lightly cast
aspersions on the motives of
government officials, the
suppression doctrine would be
relegated to those instances
where a litigant could prove
insolent or calculated in-
difference to ... regulation."
Certiorari should be granted to
review the Second Circuit's refusal to
follow Supreme Court law on this
important constitutional issue.
oth.
POINT ITI
The Second Circuit's Extension
Of The “Border Search" Exception
To Export Searches, Conflicts
With Decisions Of This Court
And Other Courts Which Recognize
The Purpose And Scope Of The
Border Exception Is Limited To
Travelers And Goods “Entering
The Country"
In a new encroachment upon Fourth
Amendment rights the Second Circuit held
that “export searches" of persons and
property leaving the country may be con-
ducted without a warrant or any probable
cause pursuant to the so-called “border
search" exception to the Fourth Amend-
ment. This ruling ignores and con-
flicts with numerous decisions of this
Court which establish that the "border
search" exception was designed for, and
applies to, import searches only--that
is, searches of persons and property
entering the country--in order to
enforce customs, immigration and
=I%6u
narcotics laws. In Torres V.- The
Commonwealth of Puerto Rico, 442 U.S.
465, 472-473 (1979), this Court held
that a Puerto Rican statute authorizing
airport searches without probable cause
was unconstitutional and not within the
“border search" exception where the
traveler had flown from Miami to Puerto
Rico.
ms?
"Public Law 22 cannot be justi-
fied by any analogy to customs
searches and a functional equiv-
alent of the international
border of the United States.
The authority of the United
States to search the baggage
of arriving international
travelers is based on its in-
herent sovereign authority to
protect its territorial in-
tegrity. By reason of that
authority it is entitled to
require that whoever seeks entry
must establish the right to
enter and to bring into the
country whatever he may carry."
(emphasis added)
In United States v. Ramsey, 431
606 (1977), this Court traced the
history of the border search exception
a.
in some detail reaffirming the incontro-
vertible fact that the exception was
based on "the longstanding right of the
sovereign to protect itself by stopping
and examining persons and property
crossing into this country...." 431 U.S.
at 616 (emphasis added) The Court noted
that the “border search exception is
grounded in the recognized rights of the
sovereign to control, subject to sub-
stantive limitations imposed by the
Constitution, who and what may enter the
country." 431 U.S. 606, 620 (emphasis
added) After observing that the same
Congress which enacted the bill of rights
also passed the first statute giving
customs officers the. right to conduct
inspections "after entry" on the basis
of mere suspicion, the Court went on to
explain that:
"Border searches, then from
before the adoption of the
-38-
Fourth Amendment, have been
considered to be 'reasonable'
by the single fact that the
person or item in question had
entered into our country from
outside." id. at 619
Temphasis added)
In United States v. Thirty-Seven
Photographs, 402 U.S. 363, 376 (1971),
this Court observed: "Customs officials
characteristically inspect luggage and
their power to do so is not questioned in
this case; it is an old practice and is
intimately associated with excluding
illegal articles from the country."
(emphasis added). This Court's decision
in Carroll v. United States, 267 U.S.
132, 154 (1925) is equally definitive on
the purpose and limits of the "border
search" exception*:
"Travelers may be so stopped
¥ See also, Alexander v. United States,
362 F.2d 379, 382 (9th Cir.), cert.
denied, 385 U.S. 977 (1966) ("the pri-
mordial purpose of a [border] search
by Customs officers is not to apprehend
a.
in crossing an international
boundary because of national
self-protection reasonably
requiring one entering the
country to identify imself
as entitled to come in, and
his belongings as effects
which may be lawfully brought
in. But those lawfully
within the country...have a
right to free passage without
interruption or search unless
there is known to a competent
official authorized to search,
probable cause for believing
that their vehicles are
carrying contraband or illegal
merchandise." (emphasis added)
Thus, under the Second Circuit's ruling,
Fourth Amendment protections available to
a citizen whose goods are loaded on a
Brooklyn pier for shipment to Baltimore
will not safeguard that same citizen if
fn. cont'd.
persons, but to seize contraband property
unlawfully imported or brought into the
United States"); Klein v. United States,
472 F.2a 847, 849 (9th Cir. 1973) ("The
primary purpose [of a border search] is
to ascertain if merchandise brought into
this country is subject to duty or has
been unlawfully imported.")
| -40-
the same goods are loaded on the same
pier for shipment to France, despite the
fact that both citizen and goods are
"lawfully within the country". There is
no reasonable basis for such discrimina-
tion and it clearly is not warranted by
the reasons underlying the original
border search exception.
Other authorities make it equally
clear that the so-called "border search"
exception was defined for and applies to
import searches only. "(Blorder searches
for contraband are only searches for
illegal imports. Any search for
illicitly exported property can be
initiated only on probable cause." Note,
From Bags to Body Cavities: The Law of
Border Search, 74 Colum. L. Rev. S3 fa.2
(1974) (emphasis added). In United
States v. Marti, 321 F. Supp. 59, 63-64
(E.D.N.Y. 1970), Judge Weinstein
ahi
specifically held that "probable cause
for the exit search is required", noting
that "the relevant statutes authorize
such searches only where probable cause
is found to exist." In Corngold v.
United States, 367 F.2d 1, 3 (9th Cir.
1966), the Court invalidated a warrant-
less airport search of packages, ruling
that the "border search" exception was
not applicable because "there is nothing
in the record to suggest that the search
of appellant's packages occurred in the
course of entry into this country"
") (emphasis added). Similarly, the New
York Court of Appeals in People v.
Esposito, 37 N.Y¥.2d 156, 160 (1975), held
] that the border search exception was
inapplicable to a search of baggage
leaving the country.
] "(T]he border search exception
to the requirement of probable
cause ... is a limited power.
Its purpose is to permit such
~-42-
officials to search for contra~
band coming into the country
without payment of duty or in
contravention of statutory
prohibitions. It does not
extend to searches of baggage
going out 9f the country upon
which no duty is payable and
on which no prohibitions are
placed."
In fact, che statute authorizing
seizure of illegally exported munitions~~
the sole object of the customs search
here--specifically requires probable
cause. 22 U.S.C. §401(a).
The Second Circuit observed that
the applicability of the border search
exception to export searches was an
"open question" until recently when it
was purportedly resolved by California
Bankers Ass'n. V. Shultz, 416 U.S. 21,
63 (1974), where this Court in upholding
the reporting requirements of the Bank
Secrecy Act applicable to foreign
financial dealings, noted that:
"Tf reporting of income may
«a&3e
be required as an aid to
enforcement of the federal
revenue statutes, and if
those entering and leavin
the count May be examined
as to enaie Bata ings and
effects, all without violatin
the Fourth Amendment, we see
no reason to violate the
Secretary's regulations here."
(emphasis added)
The underscored comment is apparently
a carelessly phrased reference to a
quotation from Carroll v. United States
cited in the preceding paragraph of the
opinion. The particular quotation--
discussed supra at 38--limits the border
search exception to persons and goods
"entering the country." Although
conceding the California Bankers statement
"is dictum," the Second Circuit contends
that in an earlier decision, United States
vy. Swarovski, 592 F.2d 131, 133 (2d Cir.
1979), “this Circuit relied on the
Supreme Court's statement to hold
squarely that the border search exception
applies to items leaving as well as
Lhe
entering the country." (6a)
The underlying facts in Swarovski do
not comport with this description because
in that case the sufficiency of proba-
ble cause was conceded by all parties and
Swarovski's basic claim was that the
customs agents had probable cause
sufficiently in advance of the search to
necessitate obtaining a warrant.* The
government argued that probable cause did
*¥ See Appellant Swarovski's Brief, p. 18
("It is undisputed that the agents had
probable cause...as early as two weeks
before his arrest.") and Judge Pratt's
decision set forth in Appellant
Swarovski's Appendix, Pp. A35-A86: "In
short, although warrantless, Fish's sei-
zure and search of Swarovski's bags in
the baggage area of JFK Airport on April
2, 1976 was valid and reasonable search
and seizure under the authority granted
by 22 U.S.C. §401, based as it was on
probable cause to believe that the bags
contained a special purpose military
camera about to be exported in violation
of federal law." Id. at A61-62
(emphasis added).
-45-
not arise until just before the search
when there was no time to get a warrant
and, even if probable cause existed at an
earlier stage, "exigent circumstances
were ... present justifying the search
without a warrant." (Appellee's Brief,
p.31) The Second Circuit's brief dis-
cussion of this point is clearly limited
to the particular issue presented there,
i.e., the warrantless aspect of an other-
wise valid search. 592 F.2d at 133.
"The warrantless searches of
appellant's luggage as he was
about to depart the country did
not violate his Fourth Amendment
rights. See, United States v.
Asbury, Slip op. 5137, 5140 (2d
Cir. Nov. 30, 1978). Appellant's
contention that customs officials
can make such a search only when
the person whose effects are
being searched is entering the
United States is not the law.
See 22 U.S.C. §401(a);
California Bankers Ass'n. V.
Shultz, 416 U.S. 21, 63 (1974);
United States v. Chabot, 193
Fda 207, 290 (2d Cir. 1951);
United States v. Stanley, 545
F.2d 6601, 6067 (9th Cir. 1976),
~46-
cert. denied, 436 U.S. 917
(1978); Samora v. United
States, 406 F.2d 1095,
[098-99 (5th Cir. 1969)."
Asbury involved the warrantless
strip search of an individual entering
the country. The statute immediately
cited for the proposition that "custom
officials can make such a [warrantless]
search", §22 U.S.C. §401(a), expressly
requires probable cause. Chabot and
Samora were cases in which probable
cause was present and the absence of a
warrant was the issue. *
Stanley was and is the sole authority
supporting the Second Circuit's
ruling in the instant case, and
¥—In Chabot, this Court relied on the
same Section 401, which permits
warrantless searches where a probable
cause standard is met.
wl Fan
the erroneous reasoning of that
decision has been effectively detailed by
one critical commentator. Recent
Development: Criminal Law-Border
Searches, 65 Geo. L.J. 1641, 1649-50
(1977). In ‘Stanley, the Ninth Circuit
acknowledged that its application of the
border search exception to an outgoing
vessel was an unprecedented expansion of
existing law. However, Stanley
recognized that an actual border
crossing--totally lacking in the instant
case--was a prerequisite for any
application of the border search
exception. United States v. Stanley,
545 F.2d 661, 666 (9th Cir. 1976), cert.
denied, 436 U.S. 917 (1978); see United
States v. Cadena, 585 F.2d 1252, 1262,
fn. 21 (5th Cir. 1978); United States v.
Ingham, 502 F.2d 1287 (5th Cir. 1974),
cert. denied, 421 U.S. 911 (1975).
~-48-
POINT III
The Second Circuit's Expansion
Of Section 2314's Application
To Intrastate Shipments Is
Without Precedent And Conflicts
With Its Own Prior Decisions,
Rulings Of Other Federal Courts
And Congressional Intent As
Construed By This Court
Petitioner was convicted for viola-
ting Section 2314 which prohibits the
transportation of stolen property in
interstate or foreign commerce (Appendix
E). The undisputed evidence at trial
showed only intrastate transportation--
from Hempstead, New York, to a Brooklyn
pier--of the property in question. Prior
to the Second Circuit's opinion in this
case, it was settled law that purely
intrastate transportation of stolen
property would not support a conviction
under Section 2314. See United States v.
Walker, 575 F.2d 209, 214-15 (9th Cir.
1978), cert. denied, 439 U.S. 931 (1978)
("Transportation solely within the state
-49-
of Hawaii is not interstate or foreign
commerce under this definition."); United
States v. Poole, 557 F.2d 531, 534-536
(Sth Cir. 1977) (§2314 conviction for
interstate transportation of a fraudu-
lently obtained security overturned be-
cause no proof that security crossed state
line; United States v. Hilyar, 543 F.2d
41 (8th Cir. 1976) (guilty plea vacated
because insufficient showing that security
traveled interstate in forged condition) ;
United States v. Owens, 460 F.2d 467,
469-71 (5th Cir. 1972) (§2314 conviction
reversed where no proof that instrument
traveled across state line in forged con-
dition); United States v. Levy, 579 F.2d
1332, 1335-38 (5th Cir. 1978), cert. denied,
440 U.S. 920 (1979); United States v.
Scandifia, 390 F.2d 244, 250 (2d Cir.
1968), remanded on other grounds, sub
nom. Giordano v. United States, 394 U.S.
-50-
310 (1969); United States v. Walker, 176
F.2a 564, 566 (2d Cir.), cert. denied,
338 U.S. 891 (1949). See also United
States v. Bottone, 365 F.2d 389, 393 (2d
Cir.), cert. denied, 385 U.S. 974 (1966),
where in disposing of a claim that xerox
copies were not stolen property, Judge
Friendly made it clear that Section 2314
required the crossing of a state or
national boundary line. "The statute
would not extend to the case where a...
secret formula was memorized, carried
away in the recesses of a thievish mind
and placed in writing only after a
boundary had been crossed." (emphasis
added).
The language, legislative history
and judicial interpretation of Section
2314 uniformly restrict its application
to persons who transport stolen property
across a state or national boundary line.
mee
In United States v. Squires, 581 F.2d
408, 411 (4th Cir. 1978), the Fourth
Circuit was quite clear on this point.
"A person transforms a state
offense into a violation of
2314 by transporting counter
feit securities in interstate
or foreign commerce. Inter
state or foreign transporta-
tion within the meaning of 18
U.S.C.A. Section 2314 can be
proved by either of two means:
First, the government can prove
that a defendant actually
transported a counterfeit
security from one state or one
country to another state or
country. second, the govern~
ment can prove that a defendant
caused a counterfeit security
to be transported from one state
or country to another through
the negotiation process."
(emphasis added)
This comports precisely with the language
and legislative history of this statute.
Section 2314 provides, in pertinent part:
"Whoever transports in inter-
state or foreign commerce any
goods ... of the value of
$5,000 or more, knowing the
same to have been stolen...'
commits a federal offense. The defini-
tion of interstate and foreign commerce
=§2<
applicable to Section 2314 is set forth
in 18 U.S.C., Section 10.
"The term ‘interstate commerce '
as used in this Title, includes
commerce between one state,
territory, possession or the
District of Columbia and another
state, territory, possession or
the District of Columbia. The
term 'foreign commerce’, as
used in this Title, includes
commerce with a foreign country."
Without a single supporting prece-
dent and in the face of overwhelming
contrary authority, the Second Circuit
ruled that petitioner's intrastate
transportation of property was "suffi-
ciently in ‘foreign commerce’ for
purposes of §2314" because the property
was bound for a foreign destination and
had arrived at a pier which a customs
agent described as a "customs area".
The Second Circuit grounded its novel
ruling on the theory that "the Commerce
Clause permits Congress to reach stolen
goods at such a location, and we see no
reason to doubt that Congress intended to
-53-
do so." See Appendix A at 13a. Without
disputing the reach of the Commerce
Clause, it seems clear that the language
and legislative history of this statute
do not support the Second Circuit's bare
speculation about Congressional intent.
Sections 2314 and 10 are derived
from the National Stolen Property Act
("NSPA") of May 22, 1934, Sections 3 and
2(a), respectively, which sections were
subsequently codified as Sections 415
and 414(a) of Title 18, U.S.C. (1940 ed.).
The National Stolen Property Act was
enacted to deal with increasing inter-
state crime and the problem of criminals
who were able to evade prosecution by
moving across state lines beyond the
reach of prosecutors in the state where
the theft occurred. As this Court
recognized in United States v. Sheridan,
329 U.S. 379, 384 (1946), Congress
-54-
enacted this law to aid the states "in
detecting and punishing criminals whose
offenses are complete under state law,
but who utilize the channels of inter-
state commerce to make a successful get-
away and thus makes the state's detecting
and punitive processes impotent."
Section 2(a) of NSPA clearly manifested
Congressional intent to reach only those
criminal schemes where stolen goods were
transported across state or national
boundary lines-by its express terms.
"The term ‘interstate or
foreign commerce' shall mean
transportation from one State,
Territory, or the District of
Columbia to another State,
Territory, or the District of
Columbia or to a foreign
country or from a foreign
country to any State, Terri-
tory, or the District of
Columbia." 18, U.S.C. §414(a)
(1940).
During a 1948 revision of the Code,
this provision, defining interstate and
foreign commerce, was separated from the
-55-
balance of the Act and recodified as
Section 10. The Report of the Senate
Committee on the Judiciary accompanying
the recodification bill specifically
stated that "the original intent of
Congress is preserved." (S. Rep. 1620,
80th Cong., 2d Sess. l, 1948) Section
10 consolidated four provisions contain-
ing identical definitions of inter~
state and foreign commerce applicable to
the four "transportation" offenses
proscribed by NSPA (Section 2314), the
Dyer Act, (Section 2312), the “Lindbergh
Kidnapping Law" (Section 1201) and the
National Cattle Theft Act (Section 2316).
See Reviser's Notes (Section 10) in
Appendix to House Judiciary Committee
Report, No. 304, 80th Cong., lst. Sess.
(1947).
A host of cases interpreting these
related "transportation" statutes firmly
ee ee
-56-
establish that crossing a state or
national boundary is required to
establish a federal crime. See United
States v. Epperson, 451 F.2d 178, 197
(9th Cir. 1971) ("The government need
only prove an intent to deprive the
owner of the rights and benefits of
7 ownership and to convert the vehicle to
the accused's own use and a subsequent
crossing of a state [California to
> Mexico] border." (emphasis added) ; United
States v. Casey, 428 F.2d 229, 231 (5th
Cir.), cert. denied, 400 U.S. 389 (1970)
1] (Section 2312 conviction reversed for
insufficient proof that appellant became
knowingly involved in transporting stolen
B car until "after the car crossed the
state line"); United States v. Martin,
375 F.2d 956 (6th Cir. 1967) (Section
D 2312 conviction overturned because
prosecution failed tc prove that stolen
oS Ve
vehicle had crossed a state border) ;
Whitaker v. Hitt, 285 F. 797, 799 (D.C.
Cir. 1922) ("moving as a stolen automo-
bile under its own power from one state
to another [is] transportation in inter-
state commerce"); see also United States
v. Hines, 563 F.2d 737, 739-40 (5th Cir.
1977) (Section 2316 conviction reversed
because of insufficient proof that
stolen cattle had been transported across
a state boundary line); United States Vv.
Moore, 571 F.2d 76, 81-82 (2d Cir. 1978)
(kidnapping conviction reversed where
insufficient evidence that victim was
"transported out of the state of New
York"); United States v. Napier, 518 F.2d
316, 318 (9th Cir.), cert. denied, 423
y.S. 895 (1975) ("it is sufficient if
the Government proves beyond a reasonable
doubt that the defendant willfully and
knowingly transported the [kidnap]
-58-
victim from one point to another, and
in so doing, he crossed a state line"
(emphasis added) ).
Thus, it is clear that the Second
Circuit's expansive and erroneous
interpretation of Section 2314 may well
expand the jurisdiction of three similar
federal statutes, all of which proscribe
transportation in interstate or foreign.
commerce and all of which have required,
to date, the crossing of a state or
national border. Certiorari should be
granted to review the Second Circuit's
departure from prior law and its new and
expansive interpretation of these long-
standing federal criminal transportation
statutes.
-59-
CONCLUSION
For the reasons stated herein, this
petition for a writ of certiorari should
be granted.
Respectfully submitted,
ELISE S. SOLOMON
767 Fifth Avenue
New York, New York
10153
(212) 310-8000
Attorney for Petitioner
OF COUNSEL:
JOHN R. WING
WEIL, GOTSHAL & MANGES
APPENDIX A
Opinion of the United States Court of Appeals
for the Second Circuit
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
>
No. 1075—September Term, 1979
(Argued: April 21, 1980 Decided: August 29, 1980)
Docket No. 80-1047
——
UNITED STATES OF AMERICA,
Appellee,
Appellant.
Before:
WATERMAN, TIMBERS and NEWMAN,
Circuit Judges.
—»—
Appeal from a judgment of the District Court for the
Eastern District of New York (Mark A. Costantino,
Judge), after a jury trial, convicting appellant of
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Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
e transportation of stolen property in foreign commerce
in violation of 18 U.S.C. § 2314.
Affirmed.
.
@
JOHN R. WING, New York, N.Y. (Edward
Burke, Julia Tobey, and Weil, Gotshal
& Manges, New York, N.Y., on the
brief), for appellant.
d STEVEN G. NELSON, Asst. U.S. Atty.,
Brooklyn, N.Y. (Edward R. Korman,
U.S. Atty., Harvey M. Stone, Asst. U.S.
Atty., Brooklyn, N.Y., on the brief), for
appellee.
NEWMAN, Circuit Judge:
Paul Ajlouny appeals from a conviction after a 17-day
e trial in the United States District Court for the Eastern
District of New York (Mark A. Costantino, Judge) upon
a jury verdict finding him guilty of transportation of
stolen property in foreign commerce in violation of 18
e U.S.C. § 2314 (1976). The jury was unable to reach a
verdict and a mistrial was declared on the other 136
counts of the indictment, which charged Ajlouny with
having used a “blue box” to defraud the New York
Telephone Company in violation of 18 U.S.C. § 1343
(1976). We affirm the conviction on the § 2314 count.
1 According to trial testimony, a blue box is a device that simulates
tones used by the telephone company, thereby permitting long-
distance calls to be made without generating any records and hence *
=. without incurring charges.
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Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
In March, 1978, the telephone company investigator
in charge of the investigation of blue box use on
Ajlouny’s phone, advised customs agent Stephen Rogers
that Ajlouny had made blue box calls to various
locations in the Middie East. The telephone company
investigator also permitted Rogers to listen to a taped
conversation with the investigator in which Ajlouny
requested that the blue box investigation be halted and
warned that it was “stirring up a hornet’s nest,”
“blowing his cover,” and endangering the lives of
certain people in Israel and the United States. Through
their own investigation, customs officials determined
that some of the blue box calls placed from Ajlouny’s
residence had been made to PLO headquarters in
Beirut.
In early April, Rogers and other customs agents
began surveillance of Ajlouny to determine whether he
was the individual who had been placing blue box calls
from phone booths in the vicinity of his residence. One
morning, Rogers and another customs agent followed
Ajlouny to a small shopping center where, according to
Rogers, they observed him “apparently supervising the
loading” of a cargo container. Through independent
investigation, the customs agents learned that the
container was under lease to Ajlouny and was scheduled
to depart for Doha, Qatar, on April 17, 1978.
In mid-April when they discovered that the container
was no longer in the shopping center, Rogers and other
agents proceeded to a Brooklyn pier where they located
the container in a customs control area. On the day the
container was scheduled to be shipped, the customs
agents obtained the dock receipt, which described the
contents of the container as air conditioning equipment.
The agents then proceeded to unseal and search the
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Appeals for the Second Circuit
container, which had not yet been loaded on board
ship. Inside the container, the agents found considera-
ble quantities of teletype and telecommunications
equipment; no air conditioning equipment was found.
The same day, telephone company investigators identi-
fied some of the equipment found in the container as
stolen property.
Ajlouny was arrested the day after the search and
ultimately indicted for transporting stolen telecom-
munications equipment in foreign commerce in viola-
tion of 18 U.S.C. § 2314. After receiving his Miranda
warnings, he admitted that he had arranged for
shipment of the telecommunications equipment, but
denied that the property was stolen. Prior to trial, he
moved on Fourth Amendment grounds to suppress all
evidence resulting from the search of the cargo
container. Judge Costantino denied his suppression
motion, United States v. Ajlouny, 476 F. Supp. 995,
1001-04 (E.D.N.Y. 1979), and permitted the contents of
the container to be introduced into evidence at trial.
I,
On appeal, Ajlouny first contends that the search of
the container was conducted without a search warrant
and in the absence of “probable cause” or even
“reasonable suspicion.” On this basis, he urges that the
search was unlawful under both Fourth Amendment
and federal statutory standards, and that the admission
2 At the suppression hearing, Agent Rogers testified that he also
knew, prior to the search of the cargo container, that Ajlouny was
affiliated with the PLO and a pro-Palestinian newspaper, had a
license to carry a gun, and had previously attempted to import three
guns into the State of New York.
5278
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@
of evidence obtained from the search requires reversal
of his conviction.
The Government concedes that the search was
warrantless and does not dispute the defendant’s
e contention that it was not based on probable cause. But
the Government contends, and Judge Costantino ruled,
: 476 F. Supp. at 1002-03, that the search was
nevertheless lawful under the so-called “border search
exception.” We agree.
e The border search exception, at least as it applies to
searches of persons and property entering the country,
has enjoyed a long judicial history. As the Supreme
Court observed in United States v. Ramsey, 431 USS.
606, 619 (1977):
® Border searches . . . from before the adoption of
the Fourth Amendment, have been considered to
be “reasonable” by the single {act that the person
or item in question had entered into our country
from outside. There has never been any additional
requirement that the reasonableness of a border
search depended on the existence of probable
o cause. This longstanding recognition that searches
at our borders without probable cause and without
a warrant are nonetheless “reasonable” has a
history as old as the Fourth Amendment itself.
[Emphasis added].
See United States v. Thirty-seven Photographs, 402
U.S. 363, 376 (1971); Carroll v. United States, 267 US.
e 132, 154 (1925); United States v. Asbury, 586 F.2d
973, 975 (2d Cir. 1978).
Until recently, the applicability of the border search
exception to export searches, such as the one conducted
by customs officials in this case, was an open question.
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However, in California Bankers Ass'n v. Shultz, 416
U.S. 21, 63 (1974), the Supreme Court noted that
“those entering and leaving the country may be
examined as to their belongings and effects, all without
violating the Fourth Amendment... .” (Emphasis
added). Admittedly, this statement is dictum, since the
issue before the Court did not concern the lawfulness of
customs searches. Subsequently, this Circuit relied on
the Supreme Court’s statement to hold squarely that
the border search exception applies to items leaving as
well as entering the country. United States v.
Swarovski, 592 F.2d 131, 133 (2d Cir. 1979);° accord,
United States v. Stanley, 545 F.2d 661, 665-67 (9th
Cir. 1976), cert. denied, 436 U.S. 917 (1978); see,
United States v. Asbury, supra, 586 F.2d at 975.
Contra, People v. Esposito, 37 N.Y.2d 156, 160 (1975).
Though the item searched in Swarovski was the
luggage of a person about to leave the country, the
3 Appellant contends that Swarovski held only that departure
searches are constitutional despite lack of a warrant, but did not
resolve the question of whether such searches may be conducted in
the absence of probable cause. We do not agree that the holding was
as narrow as appellant urges. From a constitutional perspective, a
search warrant will generally be required whenever probable cause is
necessary for a search. The only exception is where exigent
circumstances excuse the obtaining of a search warrant. United
States v. United States District Court, 407 U.S. 297, 318 (1972).
Chambers v. Maroney, 399 U.S. 42, 51 (1970). Yet Swarovski upheld
a “warrantless” departure search without any mention of exigent
circumstances. This omission was not an oversight. What Swarovski
implicitly holds is that probable cause is no more required for a
departure search than is a warrant, because such a search is within
the ambit of the border search exception. See United States v.
Ramsey, supra, 431 U.S. at 621 (“‘border search’ exception is not
based on the doctrine of ‘exigent circumstances’ ”).
This view of Swarovski is confirmed by the opinion’s reliance on
United States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976), cert.
denied, 436 U.S. 917 (1978), which squarely holds that probable
cause is not constitutionally necessary for a departure search.
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Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
ruling applies to items imminently to be exported,
whether or not accompanying a traveler. Application of
the border search exception depends upon the nexus
between the goods and a border crossing, regardless of
the circumstances under which the property subjected
to search moved or will move across the border. See
United States v. Ramsey, supra, 431 U.S. at 620;
United States v. Doe, 472 F.2d 982, 984 (2d Cir.), cert.
denied, 411 U.S. 969 (1973).
The circumstances of this case establish that the
border search exception applies and permits a routine
search without probable cause or even reasonable
suspicion. We have observed that “the precise limits of |
the border area depend on the particular factual
situation presented by the case raising the issue.”
United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968),
cert. denied, 393 U.S. 1121 (1969). The container
searched in this case was located on a pier, within a
customs area, and marked for shipment abroad. It was
therefore amenable to a rovtine border search. And the
imminent crossing of the border alone makes the search
of the container reasonable, see United States uv.
Ramsey, supra, 431 U.S. at 619; United States v.
Nieves, 609 F.2d 642, 645 (2d Cir. 1979), cert. denied,
100 S. Ct. 1044 (1980), though reasonable suspicion
would be required for more intrusive invasions of
personal privacy. United States v. Asbury, supra, 586
F.2d at 975; see United States v. Klein, 592 F.2d 909,
911 (5th Cir. 1979). Though the facts known to the
agents may well have established reasonable suspicion,
as found by the District Judge, 476 F. Supp. at 1003,
we hold that even if such reasonable suspicion was
lacking, the search did not violate the Fourth
Amendment.
5281
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Appeals for the Second Circuit
Appellant further contends that even if constitutional
standards were not exceeded, the search of the
container and the subsequent seizure of its contents
violated the statutory limitations of 22 U.S.C. § 401(a)
) (1976).* This statute authorizes seizure of articles
exported in violation of law. It conditions this seizure
authority on the existence of probable cause to believe
that the articles “are intended to be or are being or
have been exported ... in violation of law.”* The
) statute applies in terms to arms and munitions, but
includes “other articles” and has been consistently
applied to any items destined for unlawful export.*
4 Subsection 401(a) provides, in relevant part:
) Whenever an attempt is made to export or ship from or take out
of the United States any arms or munitions of war or other
articles in violation of law, or whenever it is known or there shall
be probable cause to believe that any arms or munitions of war or
other articles are intended to be or are being or have been
exported or removed from the United States in violation of law,
the Secretary of the Treasury, or any person duly authorized for
the purpowe by the President, may seize and detain such arms or
munitions of war or other articles. . . . All arms or munitions of
war and other articles . . . seized pursuant to this subsection
shall be forfeited. [emphasis added]
5 The structure of the statute permits a reading that renders the
probable cause limitation inapplicable to some seizures. The first
clause of the statute appears to permit seizure, without probable
) cause, “Whenever an attempt is made to export .. . articles in
violation of law.” The probable cause limitation applies, in terms,
when the articles are “intended to be or are being or have been
exported . . . in violation of law.” It may be that Congress intended
to distinguish between border areas and other locations, limiting the
seizure power when the articles are away from a border area, as
where they are destined for export, in transit, or have arrived at
) their foreign destination, but placing no statutory limitation (beyond |
whatever the Constitution imposes) on seizure at a border area where
“an attempt” to export would be expected to occur. In view of our
resolution of appellant’s statutory argument, we need not rely on this
possible interpretation.
6 Though “primarily directed to limiting the export of war materials
) in protection of American neutrality and foreign policy,” § 401 has
5282
EES TE LLIN TRE TREE TT OTT
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Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
Though § 401(a) has been held implicitly to authorize
searches as well as seizures of goods for export, Samora
v. United States, 406 F.2d 1095, 1098 (5th Cir. 1969),
United States v. Marti, 321 F. Supp. 59, 63-64
(E.D.N.Y. 1970),’ we find no basis for reading its
probable cause requirement as a limitation on searches.
The provision itself mentions seizures and forfeitures,
not searches. And the legislative history gives no
indication that authority to search was being limited.
The predecessor of § 401, Espionage Act of 1917, ch.
30, tit. VI, 40 Stat. 223 (1917), provided an elaborate
also “been consistently applied to other classes of goods.” United
States v. Marti, 321 F. Supp. 59, 63 (E.D.N.Y. 1970); see, e.g.,
United States v. Chabot, 193 F.2d 287 (2d Cir. 1951Xgold); Zarranz
v. United States, 182 F.2d 650 (5th Cir. 1950Xauto), Joseph B.
Cooper & Son, Inc. v. United States, 174 F.2d 619 (5th Cir.), ceri.
denied, 338 U.S. 824 (1949Xplatinum); United States v. Marti, supra
(jewelry); United States v. 200 Watches, 66 F. Supp. 228 (S.D. N.Y.
1946 watches).
7 We have previously held that customs officials have statutory
authority to conduct inspections at a point of embarkation of cargo
being shipped abroad. United States v. Chabot, supra, 193 F.2d at
290. In addition to § 401, see 50 U.S.C. App. § 2403(bX1) (Supp. I
1978) (President may “prohibit or curtail the exportation, except
under such rules and regulations as he shall prescribe, of any
articles”); 15 C.F.R. § 386.8(bX1) (1979) (commodities declared for
export “are subject to examination by customs officials for the
purpose of verifying the commodity” and assuring compliance with
the Export Administration Regulations); 15 C.F.R. § 386.8(bX5)
(1979) (customs office is “authorized to inspect and search any
exporting carrier at any time to determine whether commodities
-.. are intended to be, or are being, exported or removed from the
United States contrary to the Export Administration Regulations”);
22 C.F.R. § 127.05(a) (1979) (district directors of customs “autho-
rized to take appropriate action to insure observance” of restrictions
on export of arms and implements of war, “including but not limited
to inspection of loading or unloading of carriers”). See also 19 U.S.C.
§ 1581(a) (1976) (customs officer may “at any time go on board of
any vessel or vehicle at any place in the United States or within the
customs waters... or at any other authorized place... , and
search . . any person, trunk, package, or cargo on board”).
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Appeals for the Second Circuit
procedure for seizures and forfeitures of property
sought to be exported in violation of law. Seizures were
governed by the same probable cause standard, and
almost the identical language, now found in § 401. In
addition, § 2 of the statute required the obtaining of a
warrant “to justify the further detention of the
property” and § 3 permitted the owner or claimant to
petition in the district court for return of the property.
These provisions were primarily designed to protect
innocent owners and claimants from the inconvenience
and expense associated with unwarranted seizure and
detention of their property. United States v. 21
Pounds, 8 Ounces, of Platinum, 147 F.2d 78, 81 (4th
Cir. 1945); see Rimmer v. United States, 172 F.2d 954,
959 (5th Cir. 1949); United States v. 267 Twenty-Dollar
Gold Pieces, 255 F. 217, 221 (W.D. Wash. 1919). There
is no indication, however, that the law was also
intended to protect persons against the less serious
interference with property rights associated with a
customs search.®
Once the search had discovered the telecommunica-
tions equipment in a container marked for shipment
abroad with papers indicating that the contents was air
conditioning equipment, the agents clearly had the
probable cause § 401 requires to seize and detain the
items. Since the search and subsequent seizure did not
8 In 1953, the Act was amended to its present form. Among the
most significant of the changes was the streamlining of the
procedures “for effecting forfeiture and disposition of property being
or intended to be exported in violation of law,” including the
elimination of the warrant of detention requirement. H.R. Rep. No.
1073, 83rd Cong., 1st Sess. 1-2 (1953), reprinted in [1953] U.S. Code
Cong. & Ad. News 2386, 2386-7. Though these and the other
changes accomplished by the 1953 amendment were substantial,
they in no way affected the original scope of the limitations of the
Espionage Act, which continue to be applicable only to seizures and
forfeitures.
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Appendix - Opinion of the United States Court of
Appeals for the Second Circuit
violate either § 401 or the Fourth Amendment, we
affirm Judge Costantino’s denial of the motion to
suppress.
Il.
Appellant next contends that the Government failed
to prove the occurrence of a border-crossing, an event
he asserts is an essential element of an offense under
18 U.S.C. § 2314. The Government concedes that the
cargo container was intercepted by customs officials
before it had moved beyond the borders of the United
States, but argues that its burden was nevertheless met
by proof that the container had been transported to a
restricted customs area and placed in the possession of
a shipping company with instructions that it be shipped
to a foreign destination. We find the Government's
position persuasive.
The express terms of § 2314 do not indicate whether
a border-crossing is a required element of the offense.
The section provides, in pertinent part, that:
Whoever transports in interstate or foreign com-
merce any goods, wares, merchandise, securities or
money, of the value of $5,000 or more, knowing
the same to have been stolen, converted or taken
by fraud ... [sJhall be fined not more than
$10,000 or imprisoned not more than ten years, or
both. . . . [emphasis added].
The definitions of “interstate commerce” and “foreign
commerce” are set out in 18 U.S.C. § 10 (1976):
The term “interstate commerce” ... includes |
commerce between one State, Territory, Posses-
sion, or the District of Columbia and another State,
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Appeals for the Second Circuit
Territory, Possession, or the District of Columbia.
The term “foreign commerce” ... includes
commerce with a foreign country.
The case law is similarly ambiguous on the need for
an actual crossing of the border. Courts have frequently
had occasion to observe that purely intrastate transpor-
tation of stolen property will not support a conviction
under § 2314, United States v. Walker, 575 F.2d 209,
214-15 (9th Cir.), cert. denied, 439 U.S. 931 (1978);
United States v. Poole, 557 F.2d 531, 535-36 (5th Cir.
1977), but they have apparently not been called upon to
decide whether the transportation element of the
offense always requires an actual border crossing.’
Unable to locate any direct case authority to support its
position, the Government relies on the many cases in
which convictions under 18 U.S.C. § 659'° were upheld,
9 Some of the cases cited by the appellant contain language that
supports his view concerning the necessity of a border-crosring.
United States v. Squires, 581 F.2d 408, 411 (4th Cir. 1978); United
States v. Scandifia, 390 F.2d 244, 249-50 (2d Cir. 1968), remanded
on other grounds, 394 U.S. 310 (1969); United States v. Walker, 176
F.2d 564, 566 (2d Cir.), cert. denied, 338 U.S. 891 (1949). In each of
these cases, however, a crossing of the border was determined to
have occurred. The question whether the statute reaches items at a
border imminently to be transported across it was not presented.
10 Section 659 provides, in pertinent part, as follows:
Whoever embezzles, steals, or unlawfully takes . . . any goods or
chattels moving as or which are a part of or which constitute an
interstate or foreign shipment of freight, express, or other
property; or
. . . Whoever embezzles, steals, or unlawfully takes .. . from
any railroad car, bus, vehicle, steamboat, vessel, or aircraft
operated by any common carrier moving in interstate or foreign
commerce or from any passenger thereon any money, baggage,
goods, or chattels... :
Shall in each case be fined not more than $5,000 or imprisoned
not more than ten years, or both. . . . [Einphasis added].
(footnote continued on next page)
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Appendix A - Opinion of the United States Court of
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even though no state or national border had been
crossed. See, e.g., United States v. Astolas, 487 F.2d
275, 280-82 (2d Cir. 1973), cert. denied, 416 U.S. 955
(1974); United States v. Vilhotti, 452 F.2d 1186, 1187
n.1 (2d Cir. 1971), cert. denied, 406 U.S. 947 (1972);
United States v. Berger, 338 F.2d 485, 488 (2d Cir.
1964), cert. denied, 380 U.S. 923 (1965); United States
v. Sherman, 171 F.2d 619, 622-23 (2d Cir. 1948), cert.
denied, 337 U.S. 931 (1949). Appellant contends,
however, that differences in the wording and legislative
histories of § 659 and § 2314 render inapplicable cases
decided under § 659.
We need not decide whether the transportation
element of § 2314 is satisfied by facts sufficient under
§ 659, since even under a more rigorous standard, the
element of transportation “in foreign commerce” was
established in the circumstances of this case. A
shipment is sufficiently “in foreign commerce” for
purposes of § 2314 once property bound for a foreign
destination arrives in a customs area. There is no
question that the Commerce Clause permits Congress to
reach stolen goods at such a location, and we see no
reason to doubt that Congress intended to do so. Even
if § 2314 is concerned with the crossing of a national
boundary, we believe Congress was not aiming only at
stolen goods moving across a technical boundary line,
but also wanted to reach shipments in the course of
such a crossing, including at least goods at a dockside
customs area.
The terms “interstate commerce” and “foreign commerce” are defined
ee ee 18
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Appeals for the Second Circuit
Mil.
Ajlouny next contends that his Fourth Amendment
rights were violated because of wiretapping. The
Government acknowledged in the District Court that
the defendant’s voice was overheard during warrantless
electronic surveillance coinciding closely in time with
the commission of the offense for which he was
convicted. In January, 1979, in response to the
defendant’s request to check agency records to deter-
mine if he had been a target of electronic surveillance,
the Government notified the defendant that his
conversations had been overheard by the FBI “during
the course of foreign intelligence national security
electronic surveillances.” Records of these conversations
and descriptions of the premises which were the subject
of the surveillances were submitted to the District
Court ex parte for in camera inspection, with a request
not to disclose them to the defendant. These submis-
sions were accompanied by an affidavit of then
Attorney General Griffin Bell, certifying that disclo-
sure of the sealed materials “would prejudice the
national interest” and representing that the surveil-
lances had been:
. . . authorized by the Attorney General pursuant
to the power delegated to him by the President of
the United States in the exercise of his authority
relating to the Nation’s foreign affairs as described
in 18 U.S.C. § 2511(3), to protect the Nation
against actual or potential attack or other hostile
acts of a foreign power, to obtain counter-
intelligence (including foreign) information deemed
essential to the security of the United States, and
to protect national security information against
foreign intelligence activities.
15a
Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
Additional records of FBI surveillance were submitted
to the District Court in May, 1979.
After reviewing the records in camera, Judge
Costantino denied Ajlouny’s discovery and suppression
motions, finding that the statements, though obtained
without a warrant, were lawfully recorded during the
course of foreign intelligence surveillance “of legitimate
concern to the national security.” United States v.
Ajlouny, supra, 476 F. Supp. at 999 n.2. The District
Court also found that the statements did “not concern
the subject matter of the indictment, and were not used
to initiate the investigation concerning the crimes
charged.” Jd. Finally, the Court ruled that the in
camera procedure employed in making these determina-
tions was proper under the circumstances. Jd. We agree
that the defendant’s discovery and suppression motions
were properly denied.
In Alderman v. United States, 394 U.S. 165 (1969),
the Supreme Court held that a defendant is entitled to
disclosure, without prior in camera review, of all
records of illegal surveillance, for the purpose of
determining whether the Government’s evidence at
trial is tainted by the illegality. In so holding, the Court
emphasized that the task of identifying “those records
which might have contributed to the Government’s
case” is “too complex, and the margin for error too
great, to rely wholly on the in camera judgment of the
trial court.”"' Jd. at 182. Two weeks later, the Court
that the requirement was nevertheless necessary to guard “against
the possibility that the trial judge, through lack of time or
unfamiliarity with the information contained in and suggested by
the materials, will be unable to provide the scrutiny which the
5289
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Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
observed in a brief per curiam opinion that the
Alderman disclosure requirement is limited to illegal
surveillance and therefore does not apply where the
district court has made a finding that the surveillance
was lawful. Giordano v. United States, 394 U.S. 310,
313 (1969). As noted, Judge Costantino made just such
a finding in this case.
The defendant challenges the District Court’s finding
on two grounds. He first contends that the Court erred
as a matter of law in concluding that foreign
intelligence electronic surveillance does not require a
warrant. The defendant also raises the procedural
objection that the subsidiary matters decided by Judge
Costantino in upholding the legality of the surveil-
lances, such as whether in fact they were conducted for
national security and foreign intelligence purposes and
whether they were reasonable in nature and scope,
could not properly have been resolved without an
adversary hearing and disclosure of relevant informa-
tion. We first consider this procedural objection.
The Supreme Court has not yet decided what
procedure the district courts are to follow in making
threshold determinations concerning the lawfulness of
electronic surveillance. Giordano v. United States,
supra, 394 U.S. at 314 (Stewart, J., concurring). The
Court has suggested, however, that adversary proceed-
ings and full disclosure are not necessarily required “for
resolution of every issue raised by an electronic
surveillance.” Taglianetti v. United States, 394 US.
Fourth Amendment exclusionary rule demands.” Alderman v. United
States, supra, 394 U.S. at 184. :
Justices Harlan and Fortas dissented, in separate opinions, from
the majority's holding that the same disclosure rule applies
irrespective of whether disclosure implicates national security
interests. Jd. at 197-200, 209-11.
5290
% 17a
Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
o
316, 317 (1969) (per curiam). To the contrary, such
protections will not be required when the task is such
that in camera procedures will adequately safeguard
fi: the defendant’s Fourth Amendment rights, id. at 317-
18.
We conclude that the in camera procedures employed
by Judge Costantino in this case were adequate for
purposes of determining the lawfulness of the FBI's
* surveillance of the defendant.’* The issues of whether
the surveillance was conducted for national security
and foreign intelligence purposes and whether it was
reasonable in scope, were limited in nature and were
not dependent on a painstaking search through “a large
. volume of factual materials.” Alderman v. United
States, supra, 394 U.S. at 183-84. Thus, the factors
that impelled the Supreme Court to require disclosure
12 We need not decide whether ex parte, in camera proceedings are
* adequate for the determination of all questions bearing upon the
legality of electronic surveillance. Other courts have expressed
differing views on the subject. See, e.g., United States v. Butenko,
494 F.2d 593, 598, 607 (3d Cir.) (en banc), cert. denied, 419 U.S. 881
(1974) (where the question concerns the legality of the taps, the
district court has “discretion to grant or deny” requests for
disclosure); United States v. Hoffman, 334 F. Supp. 504, 506 (D.D.C.
e 1971) (preliminary determination of whether defendant's conversa-
tions were overheard in violation of Fourth Amendment can be made
without an evidentiary hearing); United States v. Brown, 317 F.
Supp. 531, 535 (E.D. La. 1970), aff'd, 484 F.2d 418 (5th Cir. 1973),
cert. denied, 415 U.S. 960 (1974) (“the determination of the legality
of the ae pau can appropriately be made in ex parte, in camera
proceedings”).
e The Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-
511, which did not become effective until after completion of the
surveillances in question here, provides for ex parte, in camera
determination of the lawfulness of electronic surveillance, upon the
filing by the Attorney General of a sworn affidavit that “disclosure
or an adversary hearing would harm the national security of the
United States.” Disclosure of materials to the defendant is permitted
» “only where. . . necessary to make an accurate determination of the
legality of the surveillance.” 50 U.S.C. § 1806(f) (Supp. II 1978).
5291
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Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
in Alderman to assess whether evidence may be tainted
are not present here. Having reviewed the in camera
records, we agree with the District Court that this was
a foreign intelligence surveillance, justifiably and
reasonably conducted. We are also convinced that
accurate resolution of the factual issues would not have
been materially advanced by either disclosure of
information to the defendant or an adversary hearing.
The substantive issue of whether foreign intelligence
surveillance can be conducted lawfully without a
judicial warrant was specifically left undecided by the
Supreme—Court—in—United States v. United States
District Court, 407 U.S. 297, 308, 321-22 (1972); see
Giordano v. United States, supra, 394 U.S. at 314-15
(Stewart, J., concurring). The Third, Fifth, and Ninth
Circuits subsequently determined that warrantless
foreign intelligence gathering surveillance does not
contravene the Fourth Amendment, United States v.
Buck, 548 F.2d 871, 875 (9th Cir.), cert. denied, 434
U.S. 890 (1977); United States v. Butenko, 494 F.2d
593, 605 (3d Cir.) (en banc), cert. denied, 419 U.S. 881
(1974); United States v. Brown, 484 F.2d 418, 426 (5th
Cir. 1973), cert. denied, 415 U.S. 960 (1974), while the
D.C. Circuit has expressed the view, in dicta, that such
warrantless surveillance is unlawful. Zweibon v. Mitch-
ell, 516 F.2d 594, 651 (D.C. Cir. 1975) (en banc), cert.
denied, 425 U.S. 944 (1976). Our Circuit has not yet
decided this important issue, and we find it unneces-
sary to do so in this case If the surveillance were
unlawful, the defendant would be entitled to disclosure
of its results, pursuant to Alderman, and would then
argue that the exclusionary rule requires suppression of
any evidence obtained as a result of the surveillance.
Since, for reasons to be discussed, we do not believe it
19a
Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
would be appropriate to apply the exclusionary rule in
this case, even if the surveillance were unlawful and did
lead to any trial evidence, we need not adjudicate the
lawfulness of the surveillance.
The Supreme Court has determined that the primary,
if not the sole, justification for the exclusionary rule is
the deterrence of police conduct that violates Fourth
Amendment rights. Stone v. Powell, 428 U.S. 465, 486
(1976); United States v. Janis, 428 U.S. 433, 446
(1976); United States v. Calandra, 414 U.S. 338, 347-48
(1974). A second justification, the “imperative of
judicial integrity,” is also mentioned in some cases, see,
e.g., United States v. Peltier, 422 U.S. 531, 536-38
(1975); Elkins v. United States, 364 U.S. 206, 222
(1960), but its importance as a basis for suppressing
probative evidence has now been discounted substan-
tially, if not completely, see Stone v. Powell, supra, 428
U.S. at 485. Consistent with its views concerning the
primarv purpose of the exclusionary rule, the Court, in
recent years, has refused to apply the rule to situations
where it would achieve little or no deterrence. For
example, in United States v. Peltier, supra, 422 U.S. at
541-42, the Court declined to give retroactive effect to
an earlier search and seizure ruling on the ground that
suppression would serve no deterrent purpose. See
Desist v. United States, 394 U.S. 244, 254 n.24 (1969)
(“we simply decline to extend the court-made exclu-
sionary rule to cases in which its deterrent purpose
would not be served”). And, in United States uv.
Calandra, the Court refused to apply the exclusionary
rule to grand jury proceedings because, in its view, the
result would be “a speculative and undoubtedly minimal
advance in the deterrence of police misconduct at the
expense of substantially impeding the role of the grand
5293
_ 20a
Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
jury.” United States v. Calandra, supra, 414 US. at
351-52. A process of balancing similar to that employed
in Calandra appears in other exclusionary rule cases as
well. Stone v. Powell, supra, 428 U.S. at 493-94
* (“additional incremental deterrent effect” of permitting
search and seizure claims to be raised on federal
collateral review of state convictions is “outweighed by
the acknowledged costs to other values vital to a
rational system of crimiaal justice”); United States v.
* Janis, supra, 428 U.S. at 453-54 (additional marginal
deterrence provided by forbidding use in federal civil
proceeding of evidence illegally seized by state officials
does not outweigh the cost to society of applying the
rule in that situation); Alderman v. United States,
bd supra, 394 U.S. at 174-75 (additional benefits of
extending exclusionary rule to persons aggrieved by
introductions of evidence unlawfully obtained in
violation of another person’s privacy rights does not
justify “further encroachment upon the public in-
e terest”).
We believe this is a case in which neither deterrence
nor the so-called “imperative of judicial integrity”
would be served by application of the exclusionary rule.
The Supreme Court has determined that where “law
ng enforcement officials reasonably believed in good faith
that their conduct was in accordance with the law,” the
imperative of judicial integrity is not offended by
permitting unlawfully obtained evidence to be intro-
PS duced at trial. Stone v. Powell, supra, 428 U.S. at 485
n.23; United States v. Peltier, supra, 422 U.S. at 537-
38; see United States v. Reda, 563 F.2d 510, 511-12 (2d
Cir. 1977) (per curiam), cert. denied, 435 U.S. 973
(1978). By all indications, the FBI’s surveillances of
Ajlouny met this test. At the time of the surveillances,
5294
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Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
neither the federal statutes nor the case law in this
Circuit supported the defendant’s contention that a
warrant was required for foreign intelligence surveil-
lance. Though Congress had established procedures
governing the use of electronic surveillance for the
investigation and the prevention of specified crimes, 18
U.S.C. §§ 2510-2520 (1976), it had specifically dis-
claimed any intention of legislating in the national
security area, 18 U.S.C. § 2511(8) (1976) (repealed
1978)."* Moreover, none of the district courts in this
Circuit had decided what requirements, if any, the
Fourth Amendment imposes upon foreign intelligence
surveillance. And, if guidance had been sought from the
decisions of other circuits, the preponderant view would
have been that such surveillance can be conducted
without a warrant. In short, this is not a case where the
government agents who initiated the surveillance of the
defendant could be charged with knowledge that their
conduct was improper. Cf. United States v. Dien, 609
F.2d 1038, 1046 (2d Cir. 1979).
The apparent good faith of those who authorized the
electronic surveillance of Ajlouny also tends to
13 Section 2511(3), which was repealed effective October 25, 1978 by
the Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-
511, Title I, § 201(c), 92 Stat. 1797 provided as follows:
Nothing contained in this chapter or in section 605 of the
Communications Act of 1934 . . . shall limit the constitutional
power of the President to take such measures as he deems
necessary to protect the Nation against actual or potential attack
or other hostile acts of a foreign power, to obtain foreign
intelligence information deemed essential to the security of the
United States, or to protect national security information against
foreign intelligence activities. Nor shall anything contained in this
chapter be deemed to limit the constitutional power of the
President to take such measures as he deems necessary to protect
the United States against the overthrow of the Government by
force or other unlawful means, or against any other clear and
present danger to the structure or existence of the Government.
5295
22a
Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
undercut any deterrence that might be achieved by
application of the exclusionary rule. As the Supreme
Court observed in Michigan v. Tucker, 417 U.S. 433,
447 (1974), and restated in United States v. Peltier,
supra, 422 U.S. at 539:
The deterrent purpose of the exclusionary rule
necessarily assumes that the police have engaged in
willful, or at the very least negligent, conduct
which has deprived the defendant of some right.
By refusing to admit evidence gained as a result of
such conduct, the courts hope to instill in those
particular investigating officers, or in their future
counterparts, a greater degree of care toward the
rights of an accused. Where the official action was
pursued in complete good faith, however, the
deterrence rationale loses much of its force.
See Scott v. United States, 436 U.S. 128, 135-36
(1978); United States v. Corcione, 592 F.2d 111, 118
(2d Cir.), cert. denied, 440 U.S. 975, 985 (1979).
More significantly, the need to apply the exclusionary
rule to achieve deterrence has been virtually eliminated
by the significant clarification of standards that
occurred with the enactment in October, 1978 of the
Foreign Intelligence Surveillance Act of 1978, Pub. L.
No. 95-511, 92 Stat. 1783 (codified at 50 U.S.C.
§§ 1801-1811 (Supp. II 1978)). The Act now requires,
with limited exceptions not relevant to this case,’ the
14 Subsections 1802(aX1XAXi) and (aX1XAXii) of Title 50 permit
foreign intelligence electronic surveillance without a court order only
where the surveillance is solely directed at either the “acquisition of
the contents of communications transmitted by means of communi-
cations used exclusively between or among foreign powers,” or the
“acquisition of technical intelligence, other than the spoken
communications of individuals, from property or premises under the
5296
23a
Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
obtaining of a court order before foreign intelligence
surveillance may be conducted. Though the surveillance
of Ajlouny, occurring prior to the Act's effective date,
was not subject to this or any other statutory warrant
requirement, passage of the Act substantially reduced
the importance of deciding in this case whether the
Constitution independently requires the obtaining of a
warrant for foreign intelligence electronic surveillance.
Though the exclusionary rule remains available in the
event the new statutory requirements are not observed,
there is little if any need to apply the rule to a possible
Fourth Amendment violation now that agents’ conduct
in the future will normally be guided and measured by
statutory standards. Application of the exclusionary
rule in this case is therefore inappropriate. Conse-
quently, we decline to adjudicate the constitutionality
of warrantless foreign intelligence surveillance.
IV.
Finally, appellant contends that Judge Costantino
improperly denied his motions pursuant to Fed. R.
Crim. P. &(a) and 14 for severance of the § 2314 charge
from the 136 blue box counts. He urges that the two
sets of counts were “unrelated” to one another, and that
joinder was both improper as a matter of law and
.prejudicial to his right to a fair trial.
The propriety of joinder under Rule &a)* is a
question of law. Improper joinder requires reversal
open and exclusive control of a foreign power.” The FBI's
surveillance of Ajlouny fell within neither of these categories. ~
15 Rule Sa) provides:
Two or more offenses may be charged in the same indictment or
information in a separate count for each offense if the offenses
5297
24a
Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
unless the Rule 8 error was harmless. United States v.
Werner, 620 F.2d 922, 926 (2d Cir. 1980). In this case,
the Government contends, and the District Court, in
effect, found, that the stolen property count and the
blue box counts represented “two or more acts or
transactions connected together or constituting parts of
a common scheme or plan.” In its opinion denying
defendant’s pretrial severance motion, the District
Court concluded that it was “not speculative” for the
Government to attempt to show that the purpose of
“the blue box calls was to facilitate the theft and
shipments of the communications equipment.” 476
F. Supp. at 1000. This conclusion was principally
grounded on the Government’s representation that the
theft was part of a scheme to aid the PLO in
establishing an independent telecommunications system
and the Court’s finding that the clandestine calls, some
of which were alleged to have been placed to locations
in the Middle East having a connection to the stolen
property count, were an “appropriate vehicle for
facilitating the plan.” Ibid.
Having examined the Government’s pretrial represen-
tations and proof at trial, we find substantial
justification for the joinder of the stolen property count
with at least one of the blue box counts. Evidence was
introduced at trial that the blue box call charged in
count 118 of the indictment was placed to the
telephone number of the company in Qatar to which the
cargo container was addressed. An available inference,
sufficient to justify joinder on a theory of “common
charged, whether felonies or misdemeanors or both, are of the
same or similar character or are based on the same act or
transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan.
5298
25a
Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
scheme or plan,” is that the purpose of this call was to
discuss arrangements for the shipment of the stolen
communications equipment.
By contrast, the relationship of most of the other
blue box calls to the common scheme or plan,
particularly those placed to locations within the United
States, is unclear.’* With respect to the vast majority of
the 136 calls, the Government made no effort to
establish any connection to either the stolen property
count or the alleged plan to set up an independent PLO
telecommunications network. We nevertheless conclude
that even if the joinder of the stolen property count
with the apparently unrelated blue box counts was
improper under Rule 8(a),’” the error was harmless.
Our previous decisions have established that an
improper joinder under Rule 8 will generally constitute
harmless error if “all or substantially all the evidence
admitted at the joint trial would have been admissible
in separate trials.” United States v. Werner, supra, 620
F.2d at 926 n.5; United States v. Turbide, 558 F.2d
1053, 1061 (2d Cir.), cert. denied, 434 U.S. 934 (1977);
United States v. Granello, 365 F.2d 990, 995 (2d Cir.
one of the numbers called with a blue box from the Ajlouny
17 The 136 blue box counts represent offenses of a “similar character”
2 26a
Appendix A - Opinion of the United States Court of
Appeals for the Second Circuit
ad 1966), cert. denied, 386 U.S. 1019 (1967). If Ajlouny
had been tried only on the stolen property count and
count 118, which were related, much of the evidence
concerning the other blue box counts would have been
admissible to show that the defendant had access to a
° blue box and that the device was functional when
attached to his home telephone. Perhaps the full extent
of defendant’s alleged use of the blue box would have
been cumulative at such a separate trial, but not
e prejudicial once the jury properly received evidence
that defendant had repeatedly defrauded the telephone
company. We conclude therefore that if misjoinder
occurred, it was harmless error. The same considera-
tions make clear that Judge Costantino did not abuse
Pa his discretion in denying severance under Rule 14.
We have considered appellant’s other claims of error
and find no basis to disturb the conviction.
Affirmed.
5300
27a
APPENDIX B
Opinion of the United States District Court
For the Eastern District of New York
United States of America
v.
Bulus Ajlouny, aka Paul
Ajlouny, Defendant
No. 78 CR 491
United States District Court
Eastern District of New York
September 24, 1979
Reported at 476 F.Supp. 995 (E.D.N.Y. 1979)
Edward R. Korman, U.S. Atty., by
Steven G. Nelson, Asst. U.S. Atty., East-
ern District of New York, Brooklyn, N.Y.,
for the Government.
Weil, Gotshal & Manges by John R.
Wing, New York City, for defendant.
MEMORANDUM OF DECISION
AND ORDER
28a
COSTANTINO, District Judge.
Defendant, Paul Ajlouny ("Ajlouny"),
is charged in a 137 count indictment.
Count One charges a violation of 18 U.S.C.
§ 2314. It alleges that Ajlouny trans-
portated stolen telecommunications equip-
ment in foreign commerce. Counts Two
through One Hundred Thirty-seven charge
violations of 18 U.S.C. §1343. They allege
that Ajlouny used a "blue box" to make
telephone calls in order to defraud the
New York Telephone Company for the use of
such services. He now makes the follow-
ing motions with respect to the indict-
ment :
(1) to dismiss the indictment for
a violation of the Speedy Trial Act, 18
U.S.C. § 3161 et seq.;
(2) to dismiss the indictment for
failing to present evidence in an unbaised
way to the grand jury;
29a
(3) to sever Count One from the re-
maining Counts in the indictment;
(4) to suppress the seizure of a
blue box;
(5) to suppress evidence derived
from illegal electronic surveillance;
(6) to suppress evidence seized
from a shipping container;
(7) to suppress statements made to
the Government ;
and
(8) for discovery.
The court held an extenstive hearing on
“he fourth, sixth and seventh points. The
court found that an evidentiary hearing
was unnecessary on the first, second,
third and fifth points, but heard oral
argument. The court also inspected in
camera the minutes of the grand jury with
regard to point 2, and considered addi-
tional documentation relative to point 5.
30a
The parties resolved point 8.
After considering the voluminous
record the court, the court finds that it
must deny defendant's motions to sever,
dismiss and suppress, on the basis of
fact and law relative to those contentions.
The court will now discuss the points
raised, and the facts relative to each,
seriatim.
I. THE SPEEDY TRIAL CONTENTION
Ajlouny was arrested on April 18, 1978
pursuant to a criminal complaint filed
against him. Under the then applicable
Speedy Trial Plan for the Eastern District
of New York ("Plan"), the Government was
required to indict Ajlouny within 45 days
from the date of his arrest. Plan Rule
3(a)(2). The time limit was extended for
25 days to June 27, 1978 because a defense
motion for a discontinuance. 18 U.S.C.
§3161 (h)(8)(A). On June 26, 1978, one
day prior to the expiration of the time
3la
limit, the Government voluntarily dismissed
the complaint. The Government wanted to
investigate Mr. Ajlouny's actions further in
order to present the evidence to a Grand
Jury for a possible indictment. (Govern-
ment Affidavit in Opposition). On Septem-
ber 5, 1978 Ajlouny was indicted.
Ajlouny contends that the delay between
June 26 and September 5 violated the Plan
and requires the dismissal of the indict-
ment as a result. In United States v.
Hillegas, 578 F.2d 453 (2d Cir. 1978), the
court was faced with a similar problem
and held that the time between the dis-
missal of the complaint and the subsequent
indictment was excludable time. The court
rejected the contention that the delay
required the dismissal of the indictment.
Since this court finds the decision in
Hillegas to be controlling, it rejects
Ajlouny's contentions. See also 18 U.S.C.
32a
§ 3161(h) (6); Plan § 5(d)(3); Plan 9(a) (6);
United States v. McClean, 528 F.2d 1250
(2d Cir. 1976) (5 1/2 month delay); United
States v. Flores, 501 F.2d 1356 (2d Cir.
1974); United States v. Sebastian, 428
F.Supp. 967 (W.D.N.Y. 1977), aff'd, 562
F.2d 211 (2d Cir. 1977). Moreover, even
a technical violation of the Plan would
not require a dismissal of the indictment.
See Plan § 10(e); United States v. Carini,
562 F.2d 144 (2d Cir. 1977).
Ajlouny also sought a hearing to deter-
mine the reason for the Government's dis-
missal of the complaint. The court denied
the request. Here, the Government stated
that it intended to present documentary
evidence to a grand jury. Based on the
Assistant United States Attorney's repre-
sentations, in his affidavit and in court,
the court is satisfied that the Government
had a good faith basis for the initial
dismissal of the complaint. Under these
33a
circumstances, and in light of the clear
legal rule of Hillegas, supra, the court
found no need for a hearing on this issue.
See United States v. Elsbery, 602 F.2d 1055
(2d Cir. 1979). Accordingly, Ajlouny's
motion to dismiss the indictment is denied.
II. THE GRAND JURY CONTENTIONS
Ajlouny contends that the Grand Jury
heard inflammatory and irrelevant refer-
ences concerning his relationship to the
Palestine Liberation Organization ("PLO"),
and that the prejudice which resulted re-
quires the dismissal of the indictment.
In response to this claim, the court held
an in camera inspection to determine the
nature and scope of any reference to the
PLO, during the presentation of evidence to
the Grand Jury. An examination of the
minutes revealed minimal references to the
PLO, which in the context of the proceedings
were not inflammatory, if not completely
innocuous. Moreover, according to the Gov-
34a
ernment's stated theory of its case,
Ajlouny's alleged connection to the PLO
appears to be relevant to the Government's
inquiry in any event. Since the indict-
ment appears valid on its face, and the
presentation to the grand jury was made
in a good faith effort to provide material
and relevant facts during the investiga-
tive stage of the proceedings, the court
finds no basis for dismissing the
indictment.! See United States v.
Calandra, 414 U.S. 338, 94 S.Ct. 613,
38 L.Ed.2d 561 (1974); Branzburg v. Hayes,
408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d
626 (1972).
Ajlouny also contends that the Govern-
ment's failure to record the prosecutor's
colloquies with the grand jury requires
the dismissal of the indictment. While
recording the prosecutor's remarks may be
the better practice, the failure to record
is not a basis for dismissing the indict-
35a
ment. While recording of the prosecutor's
remarks may be the better practice, the
failure to record is not a basis for dis-
missing the indictment. United States v.
Rubin, 599 F.2d 975 (5th Cir. 1977);
United States v. Penden, 472 F.2d
583 (2d Cir. 1973); United States v.
Greater Syracuse Bd. of Realtors, Inc.,
449 F.Supp. 887 (N.D.N.Y.1978); United
States v. Daneals, 370 F.Supp. 1289 (W.D.
N.Y.1974)
Accordingly, the motion to dismiss on
these grounds is denied.
36a
III. SUPPRESSION OF THE FRUITS OF
ELECTRONIC SURVEILLANCE
Ajlouny moves to suppress any evidence
derived from illegal electronic surveil-
lance. At the court's request, the Govern-
ment checked with all of its agencies to
determine the existence of any electronic
surveillance. The check produced negative
results. The court is satisfied with the
representations made in court by the Assis-
tant United States Attorney, and finds no
need for a further inquiry. See United
States v. Van Orsdell, 521 F.2d 1323 (2d
Cir. 1975). Accordingly, there is no
basis for defendant's motion and it must
be denied.3
37a
IV. SEVERANCE
Ajlouny moves, pursuant to Fed.R.Crim.
P. 8 and 14, to sever Count One from the
remaining counts of the indictment. He
contends that the stolen property count is
unrelated to the blue box counts, and that
the joint trial of those counts will
severely prejudice his right to a fair
trial.
The Government contends that these
allegations must fail in light of its
theory of the case. It claims that the
stolen property count and the blue box
counts were properly joined because they
represent transactions constituting a
common scheme or plan under Fed.R.Crim.P.
8. See United States v. Halper, 590 F.2d
422 (2d Cir. 1978). Specifically, the
Government contends that it will seek to
prove that the stolen communications equip-
ment was stolen as part of a scheme to aid
the PLO in establishing a telecommunica-
tions system. It further contends that the
38a
blue box counts relate to this scheme be-
cause some of the phone calls listed in
those counts were placed to locations in
the Middle East having a connection to the
stolen property count. The communications
equipment was being shipped to the Ocean
Trading Company in Qatar. It was listed
as being air conditioning equipment, and
not communications equipment. Ajlouny
allegedly called both the PLO headquarters
in the Middle East and the Ocean Trading
Company with the aid of the blue box.
From these and other factors more fully
presented in the record before the court,
the Government alleges that the connection
between the two sets of counts is clear.
The court finds that there is a logi-
cal connection between Count One and the
remaining counts. The Government's con-
tentions amply demonstrate the inferences
and evidence connecting the crimes. It is
not speculative to attempt to show that
39a
Ajlouny's purpose in making the blue box
calls was to facilitate the theft and
shipments of the communications equipment.
If the Government's theory is correct, and
supported by proof at trial, then it is
clear that the plan for theft and shipment
of stolen property would be accomplished
quietly. Thus, it would be logical to con-
clude that the clandestine blue box calls
were an appropriate vehicle for facilitat-
ing the plan. Significantly, the container
was destined for the Ocean Trading Company
in Qatar - an address which the Government
contends is traceable through one of the
phone calls placed by Ajlouny on the blue
box. Thus, the testimony relating to the
blue box calls will have a logical bearing
on the proof in the stolen property count.
The link between the phone call and the
destination of the hipment will most likely
have some bearing on Ajlouny's knowledge of
the transactions. While the court is not
40a
attempting to judge the strength of the
Government's case, for the purposes of this
motion it appears both efficient and eco-
nomic to try the counts together. Accord-
ingly, severance is unwarranted in light
of the facts presented to the court. 4
V. THE SEARCH OF THE CARGO CONTAINER
Ajlouny also contends that the search
of his cargo container on a pier was uncon-
stitutional. He moves to suppress the
fruits of the search during the subsequent
seizure. The court held a hearing to
clarify the surrounding circumstances of
that search, and finds that there was no
violation of the defendant's rights.
On April 17, 1978 agents of the United
States Customs Service, headed by Agent
Stephen Rogers, conducted a search of a
cargo container on Pier 9A in Brooklyn,
New York. The container was in the posse-
ssion of the shipping company and was
scheduled for loading that day on a ship
4la
destined for Doha, Qatar. The container's
location was considered to be a customs
control area. Once at the pier, the agents
acquired the dock receipt for the container,
and removed the container to the far end of
the pier. The dock receipt indicated that
the container was loaded with air condi-
tioning equipment. Upon breaking the seal
and opening the doors, the agents found
large cartons intermixed with other items.
Closer examination revealed that the cartons
contained telephone communications equip-
ment. The agents contacted representatives
of the Telephone Company who identified
the equipment as theirs. The equipment
was removed from the pier by the agents.
Prior to the April 17, 1978 search,
the agents had placed Ajlouny under surveil-
lance for possible violations of federal
munitions laws. During the course of that
surveillance, they observed Ajlouny appar-
ently supervising the loading of the con-
42a
tainer at a store located in a shopping
center near Ajlouny's home. The agents
testified that because the container was
flush with the wall and because of their
fear of being noticed, they were unable
to verify the contents of the container.
Agent Rogers, however, had information
prior to the April 17 search which he
believed in toto would establish that
Ajlouny was illegally shipping munitions
in the container. He based this ccnclu-
sion on information which he received
for a month prior to April 17. Rogers
knew that Ajlouny was affiliated with the
Palestine Liberation Organization, which he
classified as a terrorist organization.
He knew that Ajlouny war licensed to carry
a weapon and had information concerning
a weapons violation by Ajlouny. He was
told by Telephone Company representatives
that Ajlouny was making blue box calls to
Russia, the PLO and other Middle East loca-
43a
cations. He was also told that Ajlouny
was monitoring the fighting in the Middle
East. Moreover, when Ajlouny was confront-
ed with the blue box allegations by repre-
sentatives for the Telephone Company, he
indicated that if the Telephone Company's
investigation continued people in the
United States and Israel could be killed.
When Rogers further learned that the desti-
nation of the container was Qatar in the
Middle East he believed a search for muni-
tions was in order. The April 17 search
followed. °
Ajlouny contends that a warrantless
export search based on less than probable
cause is improper and requires the suppres-
sion of the seized equipment. The Govern-
ment concedes that the search was conducted
without a warrant and without probable
cause. However, it argues that an export
search in a customs area, like an import
search, is proper even in the absence of a
44a
warrant and probable cause.
It is well settled that warrantless
import searches based on less than pro-
bable cause are proper. United States v.
Ramsey, 431 U.S. 606, 97 S.Ct. 1972,
52 L.Ed.2d 617 (1977); United States v.
Glaziou, 402 F.2d 8 (2d Cir. 1968), cert.
denied, 393 U.S. 1121, 89 S.Ct. 999,
22 L.Ed.2d 126 (1969). Thus, a reasonable
suspicion by customs officials that ille-
gal activity is possible is a sufficient
basis to stop and search. United States
v. Asbury, 586 F.2d 973, 975-76 (2d Cir.
1978); United States v. Glaziou, supra at
12. Nonetheless, this relaxed standard
for stopping and searching is qualified
by the requirement of reasonableness.
United States v. Asbury, supra at 976.
The determination of reasonableness de-
pends upon the facts of each particular
case. United States v. Asbury, supra at
976; United States v. Glaziou, supra at 12.
45a
The issue posed by this case is
whether the import search standards
apply equally to an export search. An
affirmative response indicates that an
export search may be had without a
warrant and without probable cause.
The resolution of the question before
the court centers around United States
v. Swarovski, 592 F.2d 131 (2d Cir. 1979).
Swarovski followed United States v.
Asbury, 586 F.2d 973 (2d Cir. 1978). In
Asbury the court discussed the standards
applicable to border "strip" searches.
Asbury involved an import search. Yet,
the court noted that "anyone entering or
leaving the country may expect to have
his luggage and personal effects examined"
if the customs officers' decision to
search was based on reasonable suspicion.
Id. at 975 (emphasis added). Thus, the
court equated an import search with an
export search. Following that lead, the
46a
court in Swarovski held that the warrant-
less border search of luggage during
departure from the country was proper.
592 F.2d at 133. Thus, it is clear that
a warrantless export search is proper.
The next inquiry is whether the war-
rantless export search requires probable
cause. In Swarovski the court held:
Appellant's contention that customs
officials can make such a search
only when the person whose effects
are being searched is entering the
United States is not the law. See
22 U.S.C. § 401(a); California
Bankers Ass'n v. Shultz, 416 U.S.
21, 63, 94 S.Ct. 1494, 39 L.Ed.2d
812 (1974); United States v.
, ooo Foae ; (2d
Cir. 1951); “oited States v.
Stanley, 545 F.2d : 7 (9th
Cir. 1976), cert. denied, 436
U.S. 917, 98 S.Ct. 2261, 56 L.Ed.
2d 757 (1978); Samora v. United
States, 406 F.2d 1095, 1098-99
(5th Cir. 1969).
This terse statement of law leads this
court to conclude that the Court of Appeals
approved not only warrantless export
searches, but also export searches based
on less than probable cause. Two factors
p
47a
support that conclusion. First, the
Government's appellate brief in the Court
of Appeals raised the issue of probable
cause in the context of an export search.
The district court in Swarovski made a
finding of probable cause, and the Govern-
ment's brief appears to be in line with
that position. ® However, the Assistant
United States Attorney informed this
court that United States Attorney Korman
specifically argued in Swarovsl:i that
since import and export searches are
equivalent, neither requires probable
cause. Thus, while the decision in
Swarovski does not elaborate on this
issue, it is clear that the question of
probable cause was placed before the court.
The second, and more significant,
factor is the court's citation with appro-
val to two decisions, United States v.
Chabot, 193 F.2d 287 (2d Cir. 1951) and
United States v. Stanley, 545 F.2d 661 (9th
48a
Cir. 1976), cert. denied, 436 U.S. 917, 98
S.Ct. 2261, 56 L.Ed.2d 757 (1978).’ In
Chabot, the defendants challenged the
warrantless export search conducted by
customs officers at a pier. The court
sustained the warrantless search and sei-
zure and held:
The car had already been delivered,
along with the keys, to the freight
agent; it was parked alongside the
pier when the customs men began to
inspect it. The right of customs
officials to inspect cargo being
shipped abroad at a port of em-
barkation is apparent... (cita-
tions omitted). Here, the car
was heavily weighted down in the
rear without any apparent cause.
The fenders, upon tapping, sounded
peculiar. The car, in such ob-
viously bad condition, was being
shipped abroad. This seems to
us sufficient cause to authorize
a more thorough and even dis-
mantling search of the car, for
possible secret exports. See 22
U.S.C.A. § 401. Both 19 U.5.C.A.
§1581 and 22 U.S.C.A. § 401 seem
to dispense with the necessity
of a search warrant in such cir-
cumstances. Id. at 290-91 (em-
phasis added).
While this Court is reluctant to assume
that the court in Chabot intended to rely
49a
on a standard less than probable cause,
it appears from the facts of that case,
elicited above, that probable cause did
not exist to make a search for illegally
exported bullion. Moreover, the language
of the court in reaching that decision
seems to emphasize a standard more re-
laxed than that of probable cause. Indeed,
the court was apparently willing to uphold
a warrantless search for "possible" viola-
tions of law. Id.
Were Chabot the only peg upon which
to hang a rule of law, this court may have
appeared pressed to justify its conclusion.
Yet, Chabot's ramifications are bolstered
by the holding in United States v. Stanley,
supra. In Stanley, the court sustained a
lower court finding of no probable cause
for an export search. However, it reversed
the lower court's holding concerning a
border search. Aware of the novel situa-
tion posed the court noted:
50a
No case has been found where
the constitutionality of a
search was premised on the
border search exception in
the context of one being
stopped and searched while
leaving the United States.
That is the situation here.
Id. at 665-66.
The court discussed the law of import
searches and their constitutionality.
Seeing a clear and compelling analogy be-
tween import and export searches, it held
that the two are equal under the Fourth
Amendment. Accordingly, it sustained a
warrantless export search based on less
than probable cause.
Since the court in Swarovski cited
both Chabot and Stanley with approval,
this court must assume that the Court of
Appeals approved of the holdings in those
cases. Moreover, this court is satisfied
that an export search is equivalent to an
import search. It would be anomalous to
allow the sovereign to protect its borders
only against incoming dangers, while fore-
5la
closing the use of similar precautions
for sensitive and dangerous materials
being illegaliy exported. See, e.g.,
United States v. Swarovski, supra.
Accordingly, this court finds on the
basis of the discussion above that a war-
rantless export search without probable
cause in a customs area is proper.
Having found that an export search
and import search derive from the same
basis, the court must determine whether
there was a reasonable suspicion to conduct
the export search in this case. It is
apparent from the factors enumerated above
that Agent Rogers had a justifiable sus-
picion for ordering the search of the
container. From the information he had
received prior to ordering the search
Rogers could reasonably suspect that
Ajlouny may attempt to violate munitions
export laws. Moreover, once at the pier,
Rogers' suspicion may have been heightened
52a
by the dock receipt which listed air condi-
tioning equipment as cargo. Rogers knew
from his investigation that Ajlouny had
no apparent contact with air conditioning
equipment, and so could properly suspect
that a violation would occur. Finally,
once the container had been placed on the
pier for shipment overseas, Roger could
reasonably believe that Ajlouny intended
to export its contents. It is also signi-
ficant that the cargo destination was the
Middle East, "an area of the world in which
there is continuing armed conflict." |
United States v. Keuylian, 602 F.2d 1033
at 1043 (2d Cir. 1979).
Moreover, Roger satisfied his suspi-
cion in a reasonable manner. The container
was to be loaded on the ship that day. His
failure to act would have unduly complica-
ted matters. His decision to remove the
container and search it on the pier prior
to loading was a reasonable exercise of his
53a
customs duties. Accordingly, the warrant-
less export search of the container was
proper.
Ajlouny contends, however, that the
seized contents of the container must be
suppressed because the customs officers
failed to procure the Shipper's Export
Declaration prior to beginning their
search. Testimony at the hearing indicated
that the agents possessed only the dock
receipt when the search occurred. The
shipping packet which contained numerous
documents, including the export declara-
tion, was in the possession of the freight
forwarding agent located at the World Trade
Center in Manhattan. Rogers directed one
of the other officers to pick up the packet.
Thus, it was not retrived until after the
search commenced, and in fact was brought
to the pier later in the operation.
Ajlouny's contention needs only a
short discussion. The procedures used by
54a
the customs officers were conducted within
the general regulations for export clear-
ance. See 15 C.F.R. § 386 et seq. Even
if the agents violated the regulations,
it is clear that the violation was merely
technical. The agents had retrieved the
shipping packet later in the day. Thus,
the search would have merely been delayed
and not foreclosed. Moreover, the viola-
tion of agency regulations alone is not
a basis for suppression. United States
v. Caceres, 440 U.S. 741, 99 S.Ct. 1465,
59 L.Ed.2d 733 (1979).
Accordingly, for all these reasons,
the motion to suppress the contents of
the container is denied.
55a
VI. SUPPRESSION OF THE BLUE BOx®
Ajlouny further contends that seizure
of a blue box from a briefcase at the time
of his arrest was improper. The Govern-
ment argues that the blue box was seized
incident to a lawful arrest. Based on the
facts at the hearing, the court finds that
the blue box was seized contemporaneous
with an arrest based on probable cause.
After having searched the container
on Pier 9A, and having found stolen
telecommunication equipment, the customs
agents procured a warrant for Mr. Aljouny's
arrest.” On April 18, 1979 the agents
went to Ajlouny's residence in Hempstead,
New York to execute the warrant. Prior
to arriving at Ajlouny's home, Agent
Rogers briefed the other agents and state
police officers%n the procedure to
follow. Rogers informed the other agents
and officers that Ajlouny was licensed to
56a
carry a gun and that it was likely that
he would have a gun at the time of the
arrest. As a precautionary measure,
Rogers decided to make the arrest after
Ajlouny left his house. Agent Rogers
indicated that searching for a blue box
was not discussed. The officers and
agents thereupon stationed themselves
around the Ajlouny home at approximately
8:00 a.m.
At sometime between 8:05 a.m. and 8:15
a.m. Ajlouny was observed leaving the side
entrance of his home and entering his car
parked in the driveway. The agents and
officers converged upon the scene,and
blocked the driveway. Rogers approached
Ajlouny on the driver's side of the car
and informed Ajlouny that he was being
placed under arrest. The driver's door
was open. Upon approaching Ajlouny,
Rogers placed his left hand upon Ajlouny's
57a
left hand on the steering wheel. In
response to Rogers’ inquiry concerning
a weapon, Ajlouny indicated that he had
a gun on his left side. Rogers recovered
the gun and began to move Ajlouny out of
the car.
Simultaneously, the other officers and
agents moved around the car. Agent Mul-
cahy went along the passenger side toward
the front of the car. Agent Woodworth
moved toward the front door on the passen-
ger side. As the activity between Rogers
and Ajlouny continued, Woodworth, upon
his arrival, opened the passenger door,
leaned into the car and began to search in
and around the front seat for weapons. A
leather briefcase was in the middle of
the front seat. Woodworth lifted the
cover of the briefcase, and noticed wires,
"filament from a telephone" (Tr.172)and a
calculator-type object in a small leather
58a
case. He did not find a weapon. His act-
ions were contemporaneous with Ajlouny's
movement out of the cart}
Immediately after searching the front
Woodworth exited the car and asked one of
the agents if the gun was recovered. He
then conversed with a state police officer
at the scene who did not participate in
the arrest or weapons search!2 The officer
inquired as to the existence of a blue
box, and described it. Woodworth indica-
ted that based on his examination of the
calculator case“and wires he believed the
briefcase contained such a device. The
blue box was then seized by the state
officer.
Both Ajlouny and the Government concede
that the validity of the search and seiz-
ure must be judged according to the
standards enunciated in Chimel v. Califor-
nia, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.
59¥a
2d 685 (1969) for a search incident to the
@ arrest. Under Chimel, an officer is justi-
fied in making a contemporaneous search
for a weapon in order to protest his per-
e son. That search may encompass not only
the body of the arrested person but also
the grabbable area within the immediate
® control of the arrested person. Id. at
762-3,89 S.Ct. 2034. It is equally well
settled that a "search can be incident to
e an arrest only if it is substantially
contemporaneous with the arrest and is
confined to the immediate vicinity of the
od arrest."’ Stoner v. California, 376 U.S.
483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d
856 (1964). See also Shipley v. Califor-
e nia, 395 U.S. 818, 89 S.Ct. 2053, 23
L.Ed.2d 732(1969).
Given the facts established at the
hearing, it is clear that the search of
the briefcase was incident to the arrest.
60a
Woodworth's actions occurred at the same
time as Ajlouny's motion up from and out
of the car. Ajlouny was restrained by
Rogers' left hand only, leaving Ajlouny's
right hand free within a few feet of the
briefcase on the front seat. Thus, Ajlou-
ny, a man of physical characteristics
commensurate with those of Rogers, was not
so restrained that the area within the
front seat of the car was outside his
effective control.!4 See, e.g., United
States v. Regan, 525 F.2d 1151, 1155 n.3
(2d Cir. 1975) (heroin found in motorcycle
helmet on front seat of car). Moreover,
the court is satisfied that Ajlouny was
handcuffed only after he was removed from
the immediate area of the front seat, and
brought to the front of the car, and
therefore was capable of reaching into
the car while sitting in the seat and
standing with Rogers. See, e.g. United
6la
States v. Mason, 173 U.App.D.C. 173, 523
F.2d 1122 (D.C.Cir. 1975) (handcuffed man
capable of reaching weapon three to four
feet away in a closet). The court is also
satisfied that the briefcase was unlatched
at the time Woodworth conducted his
search, +5and was therefore a proper object
for a search. See also United States v.
Fairfield, 526 F.2d 8 (8th Cir. 1975)
(search of car for weapons after defen-
dant's arrest outside of car). The brief-
case was not within the exclusive control
of the officers at the time of the search.
Compare United States v. Chadwick, 433
U.S. 1, 97 &.Ct. 2676, 53 L.Ed.2d $38
(1977). Finally, the fact that the
weapons search revealed a blue box that
gave rise to probable cause for its
seizure for another crime, is not a basis
for suppressing the seized item. United
States v. Robinson, 414 U.S. 218, 94 S.Ct.
62a
467, 38 L.Ed.2d 427 (1973). Accordingly,
the blue box was properly seized incident
to Ajlouny's arrest, and the motion to
suppress must be denied. +®
VII. SEARCH OF DEFENDANT'S HOME
Ajlouny summarily argues that the fruits
of the search of his home and business
must be suppressed because he did not
voluntarily consent to the search.!/ The
court finds that Ajlouny voluntarily and
knowingly consented to the searches subse-
quent to his arrest. The testimony at the
hearing satisfied the court that Aj louny
was properly informed of his constitutional
rights and volunteered information and co-
operated with the agents. Moreover, there
is no indication that the agents induced
that cooperation by threats or promises.
Accordingly, the contention is without
substance and the motion is denied.
63a
VIII. POST-ARREST STATEMENTS
Ajlouny's final contention concerns
statements made to an Assistant United
States Attorney (AUSA) after arrest but
before arraignment by a United States
Magistrate. Ajlouny contends that the
period of time between arrest and arraign-
ment constituted unnecessary delay under
18 U.S.C. § 3501 and Fed.R.Crim.P. 5(a)
requiring the suppression of any state-
ments made by him to the AUSA. The gov-
ernment rejects Ajlouny's rendition of
the facts and argues that the delay be-
tween arrest and arraignment was reasona-
ble and justified.
The question before the court is
whether the statements were made under
circumstances which would indicate that
Ajlouny's will to resist was broken by a
delay of approximately seven hours. See
United States v. Reed, 572 F.2d 412, 426
64a
(2d Cir. 1978). Under 18 U.S.C. § 3501(b)
several factors are listed to guide the
court in its determination of voluntari-
ness. These factors include the amount
of time which elapsed, the defendant's
knowledge of the charges, the defendant's
awareness of his right to remain silent
and of his right to counsel, and the
presence or absence of an attorney. 18
U.S.C. § 3501(b).
Here, the focus of the inquiry centers
around the amount of time which elapsed
between the arrest and arraignment, and
the manner in which that time elapsed.
Ajlouny was arrested at approximately
8:00 a.m.}8and arraigned at approximately
3:30 p.m. of that day, a maximum period
of seven and one-half hours. The arrest
period took approximately five to ten
minutes before the defendant was placed
in the car and driven from his home.
During that time the defendant was in-
65a
formed of his right to remain silent, of
his right to an attorney and of the right
of the Government to use any statements
made by him. Ajlouny was placed in the
government vehicle and brought to a
McDonald's restaurant, and offered coffee
and breakfast. During the time at
McDonald's, Ajlouny and the agents en-
gaged in a conversation and Ajlouny was
informed of the nature of the charges
against him. During that time, Ajlouny
consented to a search of his premises.
Ajlouny thereupon executed a written
consent to a search of his home and busi-
ness. The agents and Ajlouny returned to
Ajlouny's home. A search of the Ajlouny
home and business ensued. The elapsed
time between the arrest and the second
departure was approximately three hours.
One hour was spent at the McDonald's
restaurant.
66a
The party left the Ajlouny home for the
World Trade Center at approximately 11:30
a.m. The trip from Hempstead on Long
Island to the World Trade Center in lower
Manhattan took until approximately 12:30
p.m. At the World Trade Center offices of
the Customs agents, Ajlouny was processed
routinely and offered lunch. During this
period at the World Trade Center Ajlouny
discussed his PLO affiliation and relation-
ship to the Middle East.
After processing at the World Trade
Center Ajlouny was transported to the
federal courthouse in Brooklyn for arraign-
ment. He arrived with the agents at
approximately 1:40 p.m. Upon arrival, he
was first taken to AUSA Mansfield's office
and introduced to AUSA Mansfield. Shortly
thereafter, Mansfield informed Ajlouny of
his constitutional rights and conducted an
interview for approximately 20 minutes
67a
concerning the charges against Ajlouny.
Ajlouny was then brought to the United
States Marshal's office in the courthouse
building for further routine processing.
No further questioning of Ajlouny occurred
after that time concerning the charges.
Ajlouny was arraigned before a Magistrate
at 3:30 p.m., approximately one and one
half hours after the Manfield interview.
This additional time between the interview
and arraignment was largely a result of
the processing by the Marshal, and a
delay because of courtroom conditions
before the Magistrate.
Given these facts, the court finds
that Ajlouny voluntarily cooperated with
both the agents and AUSA Mansfield. It is
clear that he was sufficiently apprised of
his constitutional rights at crucial points
during this period and he indicated his
understanding of those rights. There is
68a
no indication that the agents subjected
him to coercive or dilatory tactics solely
to elicit incriminating statements.
Rather, the facts before the court indi-
cate that Ajlouny was treated in a courte-
Ous manner by the agents. The mere fact
that Ajlouny was willing to aid the offi-
cers in their investigation is not a basis
for finding unnecessary delay, especially
in light of Ajlouny's knowledgeable con-
sent. See e.g. United States v. Vita,
294 F.2d 524 (2d Cir. 1961), cert. denied,
369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d
788 (1962). Furthermore, the need for
transportation and processing was a
reasonable justification for the time
spent in those activities. Thus, given
the circumstances of the case, the court
is satisfied that the time between arrest
and arraignment was not a period of un-
reasonable delay which caused the defen-
69a
dant to make involuntary incriminating
Statements. See United States v. Shoe-
maker, 542 F.2d 561 (10th Cir. 1976) (13
hours delay not unreasonable under circum-
stances); United States v. Ortega, 471
F.2d 1350(2d Cir. 1972)(11 hour delay not
unreasonable); United States v. Collins,
462 F.2d 792(2d Cir. 1972)(26 hour delay
not unreasonable); United States v.
Marrero, 450 F.2d 373 (2d Cir. 1971)
(more than 6 hours not per se unreasona-
ble) .19 Accordingly, the motion to
suppress the statements made to AUSA
Mansfield is denied.
CONCLUSION
The court finds that the contentions
raised by the defendant are not supported
by the facts and law of this case. Accord-
ingly, the numerous motions raised by him
must be denied.
70a
FOOTNOTES
1. At a preliminary stage in the pro-
ceedings, Judge Platt also determined
that the PLO "connection" was relevant
to the Grand Jury's inquiry.
2. During the course of its inquiry
the Government advised the court that
statements attributed to Mr. Ajlouny
were recorded during the course of
national security electronic surveil-
lance. Ajlouny sought the disclosure
and suppression of the recorded state-
ments. The court reviewed the records
of the surveillances in camera, and
finds that the statements do not concern
the subject matter of the indictment,
and were not used to initiate the
investigation concerning the crimes
charged. Moreover, the court finds that
there was an independent basis for the
investigation of Ajlouny and the sub-
sequent arrest.
The court is also satisfied that the in
camera procedure used here was proper
under the circumstances. The surveil-
lance in this case was lawful, having
been ordered and approved by the Attorney
General to monitor what the court finds
were persons, agencies and matters in-
volving foreign intelligence of legiti-
mate concern to the national security.
See Alderman v. United States, 394 U.S.
165, 89 S.Ct. 961, 22 L.Ed. 2d 176 (1969)
(production required for illegal sur-
veillance); United States v. Bank 548
F.2d 871 (9th Cir. 1977); United States
v. Butenko, 494 F.2d 593 (3rd Cir. 1974),
cert. denied, 419 U.S. 881, 95 S.Ct. 147,
G2 L.kd. 2d 121 (1974); United States v.
Brown, 484 F.2d 418 (5th Cir. 1973),
7la
cert. denied, 415 U.S. 960, 94 S.Ct.
1490, 39 L.Ed. 2d 575 (1973).
Since the court finds that the state-
ments were Lawfully recorded during the
course of legitimate national security
electronic surveillance, there is no
basis for disclosing and suppressing
the statements. See 18 U.S.C. §2511(3).
3. Employees of the New York Telephone
Company installed a pen register device
to record the numbers of the calls made
by Ajlouny. Any challenge to the vali-
dity of the pen register is precluded by
Smith v. Maryland, -- U.S. --, 99 S.Ct.
2577, 61 LE 2d 220 (1979).
4. Ajlouny relies primarily on United
States v. Halper, 590 F.2d 422 (2d Cir.
to support his position. Although
Halper presents an excellent discourse
on the law of joinder, the facts in that
case distinguish it from the case
presented to the court.
5. On April 17, 1978 Agent Rogers’
suspicion was apparently further
aroused by the fact that the shipping
documents indicated that Ajlouny was
shipping air conditioning equipment.
Rogers knew that Ajlouny worked for a
professional cleaning corporation and
had no known relationship with air
conditioners.
6. The brief was submitted to this
court during oral argument.
7. The remaining citations must be
construed as standing for the proposition
72a
that Congress may specifically regulate
export searches and establish standards
for enforcement. ‘hus, in California
Bankers Ass'n v. Shultz, 416 U.S. 21, 94
S.Ct. 1494, 39 L.Ed. 2d 812 (1978), the
court approved regulations, concerning
foreign banking transactions. Moreover,
22 U.S.C. §401(a) authorizes the seizure
of munitions and war materials exported
without a license. There, Congress
required a showing of probably cause to
justify the search and seizure.
Similarly, Samora v. United States,
406 F.2d 1095 (5th Cir. 1969) involved a
seizure under 22 U.S.C. §401l(a) after
a finding of probable cause.
Ajlouny has stressed the significance of
this melange of cases cited by the court.
While there is some merit to his argu-
ment concerning those citations which
were based on probable cause, the dis-
cussion of Chabot and Stanley, supra
will indicate the impact of those cases
on the determination here.
8. Simply explained, a blue box is an
electronic device used to bypass
ordinary telephonic payment recording
procedures. It is clipped to a tele-
phone and enables the user to avoid
charges for the telephone calls made.
See 34 A.L.R. Fed. 278.
9. Ajlouny does not contend, for these
purposes, that the arrest was made with-
out probably cause, although such an
argument would flow from the suppression
of the contents of the container.
Having found that the items in the
container were lawfully seized, this
73a
court has a sufficient basis for a
finding of probable cause to make the
arrest. Here, once the agents were
informed that the communications equip-
ment found in the container was stolen,
they had probable cause to arrest
Aj louny.
10. The state police officers were
present as a result of their investiga-
tion into Ajlouny's use of a blue box.
11. Woodworth's actions consumed
approximately thirty seconds to one
minute. Roger's initial movement with
Ajlouny out of the car lasted slightly
less than one minute.
12. This conversation occurred less
than a minute after Woodworth's exit.
13. Woodworth picked up the case and
handled it for a few seconds, satisfied
that it did not contain a weapon, he
returned it to the position in the case.
14. It may be noted that the car, a
Cadillac, would most likely have allowed
relatively easy access to the front
seat.
15. Ajlouny testified that he left his
house with the briefcase latched, and
did not unlatch it after entering the
car. However, Woodworth indicated that
he did not unlatch the briefcase and
only lifted the top. He stated that
he handled the calculator case for a
few seconds. O'Donnell indicated that
the case was propped open by papers
jammed around the edges of the case.
74a
Given this discrepancy, the court is
faced with a clear issue of credibility,
and is satisfied that the case was un-
latched on the front seat of the car.
Similarly, the issue as to whether the
passenger door was unlocked is resolved
affirmatively.
16. Ajlouny also contended that the
customs officers had no authority to
make the arrest. The court finds that
the arrest was proper. See 26 U.S.C.
§7607(1); United States v. Swarovski,
557 F.2d 40 (2d Cir. 1977).
Ajlouny also questions the validity of
the arrest warrant. He claims that
Rogers' complaint was made in bad
faith and contained intentional mis-
representations of material facts.
The court finds that Rogers acted in
good faith in making the complaint.
When the telephone equipment was found
in the container, the Telephone Company
was contacted concerning the equipment.
The information received from the
representatives of the Telephone Company
was a sufficient, good faith basis for
Rogers' affidavit.
17. The Government concedes that
Ajlouny did not consent to a search of
his bedroom and will not offer any
evidence seized from the bedroom.
18. While the agents indicated that
the arrest took place between 8:00 a.m.
and 8:15 a.m., Mr. and Mrs. Ajlouny
stated that the arrest occurred between
8:30 a.m. and 8:45 a.m.
75a
19. The defendant based his argument
partially on the concurring opinion of
Judge Friendly in Marrero concerning
the interrogation by an AUSA. (Tr. 540,
Direct Examination of Mansfield). How-
ever, in United States v. Ortega, supra,
Judge Medina expressed his disagree-
ment with Judge Friendly's view of the
law. 471 F.2d at 162.
76a
APPENDIX C
Transcript of Lower Court Proceedings
THE COURT: I have come to a conclusion.
After reviewing it myself during the
lunch hour and reviewing both statutes,
the 659 and 2314 under which the
defendant was indicted, I find since
most of the law -- as a matter of fact,
all of the law with the exception of the
case that you recited to the Court in-
volves 659 but the provision of the
statutes are rather similar. Partic-
ularly involving interstate and foreign
commerce, and particularly since the
definitions would refer to foreign com-
merce as set forth in 2314, and also
being a jurisdictional question involved,
this Court finds it will accept the op-
inions that have been set forth in 659 as
to the same provisions in 2314 and,
therefore, denies the motion, that the
area of the customs area for all inten-
77a
tions and purposes can be deemed an
area where the goods were in foreign
commerce.
MR. NELSON: Thank you.
MR, WING: Respectfully except.
78a
APPENDIX D
Judgment of Affirmance by United States
Court of Appeals
For the Second Circuit
At a Stated Term of the United States
Court of Appeals for the Second Circuit,
held at the United States Courthouse in
the City of New York, on the twenty-
ninth day of August one thousand nine
hundred and eighty
Present:
Hon. Sterry R. Waterman
Hon. William H. Timbers
Hon. Jon 0. Newman
Circuit Judges,
UNITED STTAES OF AMERICA
Appellee,
PAUL AJLOUNY,
Appellant.
79a
Appeal from the United States
District Court for the Eastern
District of New York.
This cause came on to be heard on
the transcript of record from the United
States District Court for the Eastern
District of New York, and was
argued by counsel.
ON CONSIDERATION WHEREOF, is it now
hereby ordered, adjudged, and decreed
that the judgment of said District
Court be and it hereby is affirmed in
accordance with the opinion of this
court.
A. Daniel Fusaro
Clerk
By Arthur Heller
Deputy Clerk
80a
APPENDIX E
CONSTITUTIONAL PROVISIONS AND STATUTES
AMENDMENT IV, UNITED STATES CONSTITUTION
"The right of the people to be secure
in their persons, houses, papers, and
effects, against unreasonable searches
and seizures, shall not be violated; and
no Warrants shall issue, but upon prob-
able cause, supported by Oath or affirma-
tion, and particularly describing the
place to be searched, and the persons or
things to be seized."
Title 18, UNITED STATES CODE
"§ 2314. Transportation of stolen
goods, securities, moneys, fraudulent
State tax stamps, or articles used in
counterfeiting
Whoever transports in interstate or
foreign commerce any goods, wares, mer-
chandise, securities or money, of the
value of $5,000 or more, knowing the same
8la
APPENDIX E - CONSTITUTIONAL PROVISIONS
~ AND STATUTES
to have been stolen, converted or taken
by fraud; or
Whoever, having devised or intend-
ing to devise any scheme or artifice to
defraud, or for obtaining money or
property by means of false or fraudulent
pretenses, representations, or promises,
transports or causes to be transported,
or induces any person to travel in, or
to be transported in interstate commerce
in the execution or concealment of a
scheme or artifice to defraud that person
of money or property having a value of
$5,000 or more; or
Whoever, with unlawful or fraudulent
intent, transports in interstate or
foreign commerce any falsely made, forged,
altered, or counterfeited securities or
tax stamps, knowing the same to have been
falsely made, forged, altered, or counter-
feited; or
82a
APPENDIX E - CONSTITUTIONAL PROVISIONS
AND STATUTES
Whoever, with unlawful or fraudulent
intent, transports in interstate or
foreign commerce any traveler's check
bearing a forged countersignature; or
Whoever, with unlawful or fraudulent
intent, transports in interstate commerce
any tool, implement, or thing used or
fitted to be used in falsely making,
forging, altering, or counterfeiting any
security or tax stamps, or any part
thereof —
Shall be fined not more than $10,000
or imprisoned not more than ten years, or
both.
This section shall not apply to any
falsely made, forged, altered, counter-
feited or spurious representation of an
obligation or other security of the United
83a
APPENDIX E - CONSTITUTIONAL PROVISIONS
AND STATUTES
States, or of an obligation, bond certif-
icate, security, treasury not, bill,
promise to pay or bank note issued by
any foreign government or by a bank or
corporation of any foreign country.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.