# Petition — Ajlouny v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0636%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 449 U.S. 1111 ## Text ——— 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 §275 2a 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. * 5276 3a 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 5277 4a Appendix A - Opinion of the United States Court of 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 e@ 3a : Appendix A - Opinion of the United States Court of Appeals for the Second Circuit @ 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. 5279 6a Appendix A - Opinion of the United States Court of Appeals for the Second Circuit 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. 5280 7a 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 » 8a Appendix A - Opinion of the United States Court of 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 9a 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”). 5283 10a Appendix A - Opinion of the United States Court of 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. 5284 lla 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, 5285 12a Appendix A - Opinion of the United States Court of 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) 5286 13a Appendix A - Opinion of the United States Court of Appeals for the Second Circuit 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 5287 l4a Appendix A - Opinion of the United States Court of 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 l6a 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 18a 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 2la 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0636%3A1. Public record. Not legal advice.