Petition for Writ of Certiorari — Gregg v. United States

87-1156

No.

In the Supreme Court of the Unite States. -*

OCTOBER TERM, 1987

UNITED STATES OF AMERICA,

Respondent,

VS.

WERNER ERNST GREGG and

ROSWITHA L. GREGG,

Petitioners.

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

DarRwWIN E. JOHNSON

Counsel of Record

JAMES R. HOBBS

THOMAS V. BENDER

LINDE, THOMSON, LANGWORTHY, KOHN

& Van Dyke, P.C.

2700 City Center Square

12th & Baltimore

P. O. Box 26010

Kansas City, Missouri 64196-6010

(816) 474-6420

Attorneys for Petitioner

Werner E. Gregg

JAMES R. WyYRSCH

Counsel of Record

CHARLES E. ATWELL

KoOENIGSDORF, WyrscH & RAMSEY

1050 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri 64106

(816) 221-0080

Attorneys for Petitioner

Roswitha L. Gregg

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTIONS PRESENTED

WHAT ARE THE PARTICULARITY REQUIRE-

MENTS OF THE FOURTH AMENDMENT IN THE CON-

TEXT OF A COURT ORDER AUTHORIZING INTER-

CEPTION OF TELEX COMMUNICATIONS AND

WHETHER THE CONSTITUTIONAL PROPRIETY OF

SUCH INTERCEPTIONS SHOULD BE ASSESSED WITH

REFERENCE TO CERTAIN PROVISIONS OF TITLE

III OF THE OMNIBUS CRIME CONTROL AND SAFE

STREETS ACT OF 1968, 18 U.S.C. §2501 ET SEQ.

WHAT ARE THE PARTICULARITY REQUIRE-

MENTS OF THE FOURTH AMENDMENT WITH RE-

SPECT TO THE ITEMS TO BE SEIZED IN THE CON-

TEXT OF A BUSINESS DOCUMENT SEARCH AND

ARE THOSE REQUIREMENTS MET BY A LISTING

OF GENERICALLY DESCRIBED DOCUMENTS WHICH

IS LIMITED ONLY BY CITATIONS TO STATUTES

AND REGULATIONS WHICH ENCOMPASS A BROAD

RANGE OF CRIMINAL ACTIVITY IN A COMPLEX

REGULATORY SCHEME.

WHETHER PROBABLE CAUSE TO BELIEVE A

BUSINESS IS PERMEATED WITH ILLEGAL ACTIVITY

JUSTIFIES “OVERSEIZURE” OR SEIZURE OF ITEMS

BEYOND THE SCCPE OF THE WARRANT AND NOT

RELEVANT TO THE CRIMINAL ACTIVITIES FOR

WHICH THERE EXISTS PROBABLE CAUSE AND

UNDER WHAT CIRCUMSTANCES IS EXTENDED

SEIZURE OF ITEMS, RETAINED FOR THE PURPOSES

OF PROTRACTED SEARCH, PERMISSIBLE.

WHAT IS THE EXTENT OF THE RELIEF THAT

SHOULD BE ORDERED WHEN THERE EXISTS A

sat

SUBSTANTIAL “OVERSEIZURE” WHICH RESULTS

FROM AN OVERLY BROAD SEARCH WARRANT OR

FROM IMPROPER EXECUTION OF AN OTHERWISE

VALID WARRANT.

WHETHER EXTENSIVE AND WARRANTLESS

SEARCHES OF A DEFENDANT’S TRASH MEET THE

CONSTITUTIONAL REQUIREMENTS EMBODIED IN

THE FOURTH AMENDMENT OF THE UNITED STATES

CONSTITUTION.

WHETHER A TRIAL COURT’S REFUSAL TO AD-

MIT INTO EVIDENCE REGULATIONS WHICH THE

CRIME CHARGED REQUIRES THE DEFENDANT TO

HAVE SPECIFICALLY INTENDED TO VIOLATE CON-

TRAVENES SIXTH AMENDMENT RIGHTS TO COM-

PULSORY PROCESS AND WHETHER EXCLUSION

OF SAID EVIDENCE VIOLATES THE DEFENDANT’S

FIFTH AMENDMENT RIGHTS OF DUE PROCESS OF

LAW.

III

TABLE OF CONTENTS

OEE eg 8 gt oo, 0 a ae I

SE MID esc ecrassnnecnsnennernsendencescnnncncnaasanencs III

pe Sy: Gy |». ae Vv

Cette BEATA nnaen----....-.-........ PR SR SOAR LO 1

STATEMENT OF JURISDICTION ............0..000000.... 2

CONSTITUTIONAL PROVISIONS INVOLVED ........ 2

pe ce 0 8 6 8 5) a ee 3

eA Ne WED 9 0 A'S» 0 3

UII A as csccceonccanacansenenenntncesonee 3

REASONS FOR GRANTING THE WRIT ...................... 10

The Eighth Circuit’s Failure to Recognize the Ap-

plicability of the Fourth Amendment Particu-

larity Requirement to Court Ordered Intercep-

tion of Telex Communications and Its Refusal

to Use Title III Warrant Requirements As a

Guide to Assessing Whether Constitutional Par-

ticularity Exists Conflicts With the Decisions

a ns vsmnenbasnovencnesweanasineinwetes 10

The Eighth Circuit’s Failure to Utilize the Par-

ticularity Requirements of Title III As a Guide

to Determining the Constitutionality of Court

Ordered Interceptions of Telex Communications

Conflicts With the Decisions of Other Federal

I ase eae ppd ncinenipecsancnusenaee 12

The Eighth Circuit’s Opinion Regarding the Par-

ticularization Issue Is in Conflict With the De-

cisions of This Court ........ 03 a rh OR ee Oe 14

IV

Whether Probable Cause to Believe a Business Is

Permeated With Illegal Activity Justifies Over-

seizure Beyond the Scope of the Warrant Is an

Issue on Which the Circuit Courts of Appeal

Fe ee Ee eee Se

The Extent to Which Relief Should Be Granted

From an Overseizure Is an Important Question

of Law Which Should Be Addressed by This

NS sethantes bnlacdnmncivice aR saeteecoatare cannes codec aioe

Whether Extensive and Warrantless Searches of

Defendants’ Trash Meet the Requirements of

the Fourth Amendment Is an Important Issue

This Court Should Address .........0...0000000.000.2200.0.....

The Exclusion of Certain Evidence Regarding Ex-

port Regulations and the Interpretation Thereof

Has Significant Constitutional Impact and Is

Contrary to Supreme Court Precedent .............

UII | acs stecrsias cass ance aicasasicterto ad denen eae

Fg | en ahem ae Rance nigh Ce ATE Le NOR 0s Mer.

18

21

TABLE OF AUTHORITIES

Cases:

Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49

Bade Te CTIED: - cincessccessassecrerchentsntsccidcstindvammapaadiaial 15,17

Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18

Ree DN CIIIEED wisideakecesenccistncshercenaeeriaionaael 10, 11, 12

California v. Greenwood, No. 86-684, 107 S.Ct. 3260

CRIED saninchinccsccoeduinetcimnmunioncnianmnaumanaliemimasaametone 22

Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.

, «te 2 Ee, | peevemernemmmninremmmnmnrtn connie 15

Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90

Fe Be _, Fee ne ere eR 24

Go-Bart Importing Co. v. United States, 282 U.S. 344,

$1 SL. 163, 7 Eee TPO CIEE) neers 18

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14

L.Ed.2d 106, rehrg. denied, 381 U.S. 957, 85 S.Ct.

£797, 26 Le OE THe CR heen 24

In re Lafayette In re Application of Lafayette Acad-

emy, Ine., 610 F.2d 1 (ist Cir. 1979) ........................ 17, 18

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19

TARDE OIG COO eccetctctitaenancnicecaee 10, 11, 12

Liporata v. United States, 471 U.S. 419, 105 S.Ct.

DUO4, GE TT GRE CIID ancestries 24

Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72

Le SE Ce iii 15, 17, 18, 21

National City Trading Corp. v. United States, 635 F.2d

BOBS C6 CUR. FID . cite iccienecniianatinteanen 19

Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429,

BF Te Be CO sicker ince 16, 21, 12

Rickert v. Sweeney, 813 F.2d 907 (8th Cir. 1987) ........ 19, 21

VI

Rock v. Arkansas, ........ US. ......:.., 107 Bt. S708, ....2..

L.Ed.2d ........ (BR stan a etiginelaiagene 24

Scott v. United States, 436 U.S. 134, 98 S.Ct. 1717, 56

L.Ed.2d 168, rehrg. denied, 438 U.S. 908, 98 S.Ct.

ke TAY De BAOE CROUED scciccecccceaniecsaeniess 21

Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d

TE: AP UEIEIED csusisnscsnuscnavecccscnssenssstievmnpdvedersuchahapameaiacqunaveaneiiies 15

United States v. Abrams, 615 F.2d 541 (1st Cir. 1980) 20

United States v. Biasucci, 786 F.2d 504 (2d Cir.), cert.

denied, ........ RES sissecns , 107 S.Ct. 104, 93 L.Ed.2d 54

UIT scvsissiscbiupssncsqeracenssaséuscensndapsibavuaeiegiieacesteniianaeeeaaieaeem 13, 14

United States v. Brien, 617 F.2d 299 (1st Cir.), cert.

denied sub nom., 446 U.S. 919, 100 S.Ct. 1854, 64

EES AEE CRIED Gcnssssincicncccmmsarsopsamanrsonieoanaaane 19

United States v. Cuevas-Sanchez, 821 F.2d 248 (5th

I | SUED scciinnsutinndncninssssincebincaivaasebesissksedannetunpeuaneceecenanmuei® _.13, 14

United States v. Fuentes-Coba, 738 F.2d 1191 (11th Cir.

1984), cert. denied, 469 U.S. 1213, 105 S.Ct. 1186, 84

PRE MD CRED wicenrssrceicrsnkicicepneatnamanuapndnagionan 24

United States v. Leon 468 U.S. 897, 104 S.Ct. 3405, 82

L.Ed.2d 677, rehrg. denied, 468 U.S. 1250, 105 S.Ct.

te NR ES CRON einevcnnsreccchonneescomnnnenn 22

United States v. Lizarraga-Lizarraga, 541 F.2d 826

(9th Cir. 1976) .................. ennensisitaasistcapaeniabasamnadimaiees 23

United States v. Offices Known as 50 State Distrib-

uting Co., 708 F.2d 1371 (9th Cir. 1983), cert. denied,

465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 677 (1984) 19

United States v. Roche, 614 F.2d 6 (1st Cir. 1980) ....17

19-20

United States v. Santarelli, 778 F.2d 609 (11th Cir.

TIED sncwvniscricrvinnesssmensibsennminiesiechnsiceaniaelabeefiisanaiiaaiaeemaes aia tae 20

VII

United States v. Sawyer, 799 F.2d 1494 (11th Cir. 1986),

cert. denied sub nom.., ........ it peas , 107 S.Ct. 961,

FD Rae BRIE CRIED cectesctecosntssitentcennsciticensincpeiiniieiascots 19

United States v. Spilotro, 800 F.2d 959 (9th Cir. 1986)

oxiibhatieie eaneneseieanaeliellsasiaiapnilesciadiseahapalicaeaaaatalianadpeibiaapaaaagiianiaaaiid 17, 21

United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) 20

United States v. Timpani, 665 F.2d 1 (1st Cir. 1981) 17

United States v. Torres, 751 F.2d 875 (7th Cir. 1984),

cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d

150 (1985). --...--------nnn-nsenenrconsensensesssenensenceneencosensnnnes 13, 14

United States v. Turner, 528 F.2d 143 (9th Cir.), cert.

denied, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371

[RGD <:ninnmreninnntaciadiiiaamttiimeammaaas 21

Voss v. Bergsgaard, 774 F.2d 402 (10th Cir. 1985)

sanneeedasicdicsaahaeaagidsianiatenenieaicnnaiaaphenaaaaiasnepannain 17, 19, 20, 21

Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18

8 Be NS ___g Se Or ee Corer oe oe 24

Williams v. Kunze, 806 F.2d 594 (5th Cir. 1986) ........ 19

Constitutional Provisions:

U.S. Constitution, Amendment IV ............ passim, App. A44

U.S. Constitution, Amendment V ................ 2, 24, App. A44

U.S. Constitution, Amendment VI ........ 2, 24, 25, App. A44

Statutes:

OO Ma IE | piileciceecpics cecsicoceientacetancinseteedinntaemiictacisedcecenicaiel 5, 16, 17

Tre MII sat neath cakiichiciedtihmeneciiticiensitseel 2, 3, 17

18 U.S.C. §2501 et seq. (Title III; Omnibus Crime Con-

oe eg © | rere en ET passim

Oe re TI chiacracehcnaisatacaccetscenslackecvesinliiedngonctvanauaptaia 7,14

Ee I oicesisec onteeesie ccna ace 13

a acscnanmaal 3, 13, App. A45

RIC OEM ny Dred n Laa tbe nae S 2

a a I ica aie caste icseeinawnnnanisalintl passim, App. A50

RS I ee Ne Meine MEGANE) Ae A 2

a a a a a a 2

IO nica enicenscaddacto iaapebipebaesiaemaaaasatelleboiine 6

I ia seaaeidinlidnloiapaamnlaia 6

AN, Its MUI PD IID, atcncincccncnsencessstideebiddeidehiceisisdelanauh 5, 16

Bis | oat» | FRnmnneeenenee 2, 3, 8, 22, 23, App. A353

Rules:

I ST cae easidelgatensenieeemnienaleniieg 2

IIIT TI iin sesecntias tensa dutiepienaienpebanonesassuniniaimabdaentensisiontl 6, 15

Regulations:

I ISD IIIT dacasticcassanticeessjetptiaingsbcislnshdelalaaicubedaisastiadalcseie 6, 16

RP MR, EE ccicciteiiccenecnsiciennnsions silsnehasavaibaetetbsdipiebes cidade 6, 16

SEES sacerncnd du lenbeiga conasemdenisatcigendinasemadeedaumeemenaaniane 6, 16

INT IIT cictbcsccdecensscbindtie'ctvasshinphionasccansandinadeammesdappuonnpabiadion 6, 16

i RINT SEIN. tanita siti Katonah dahdatihlenapcneliaigadaasaiacauain 6, 16

MRM TEENIE ~sicuisaicndisnceuiindtanesanstandgscnemadcesosnipbeisoasenaiicdsial 3, 8, 23

I leeches sadcansgeatinalas onda onamnaial 3, 8, 23

Miscellaneous:

ALI Model Code of Pre-Arraignment Procedure (1975) 20

Presidential Executive Order 12470 of March 30,

IIE cra iccebttectecensnictaninientbinsesbletivteienspubiniceeeesa Sajuli gndeineastisaddadsieaccadaieal 6, 16

Senate Report No. 1097, 90th Cong. 2d Sess. 66 (1968) 12

aan

No.

In the Supreme Court of the United States

OCTOBER TERM, 1987

UNITED STATES OF AMERICA,

Respondent,

VS.

WERNER ERNST GREGG and

ROSWITHA L. GREGG,

Petitioners.

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

OPINIONS BELOW

The Opinion of the United States District Court for

the Western District of Missouri addressing suppression

issues was decided and filed on February 15, 1986. This

opinion is reported at 620 F.Supp. 958 (W.D.Mo. 1986),

and is set forth in the Appendix at A22 through A42. The

Opinion of the United States Court of Appeals for the

Eighth Circuit, whose judgment is herein sought to be

reviewed, was decided and filed on September 22, 1987.

That opinion is reported at 829 F.2d 1430 (8th Cir. 1987),

and is set forth in the Appendix at Al through A211.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered

on September 22, 1987, affirming Petitioners’ convictions.*

Petitioners timely filed a Motion for Rehearing by Panel,

which was denied by the Court of Appeals on October 30,

1987.

On December 17, 1987, Petitioners filed a timely re-

quest for extension of time in which to file their Petition

for Writ of Certiorari. On December 21, 1987, Honorable

Justice Blackmun granted said request and authorized the

filing of said Petition up to and including January 8, 1988.

This Petition is filed in timely compliance therewith.

This Court has jurisdiction pursuant to 28 U.S.C.

§$§1254(1) and 2101(c). The District Court had jurisdic-

tion over this cause pursuant to 18 U.S.C. §3231.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution Amend-

eS piccaceincineccneniasiesinoien one See Appendix, A44

United States Constitution Amend-

I FE tecitndesiniienntse daticobisictcnsovnnioipco aati See Appendix, A44

*Petitioner Werner Ernst Gregg was convicted upon trial by

jury of three counts of export violations (22 U.S.C. §2778), one

commerce violation (50 U.S.C. §2410) and two counts of false

statements (18 U.S.C. §1001). He was acquitted on one count

of export violations and one count of commerce violation and

four counts of income tax evasion.

Petitioner Roswitha L. Gregg entered a conditional plea to

two counts of income tax evasion pursuant to Rule 11(a) (2)

F.R.Cr.P. subject to resolution on appeal of the suppression issues.

The appellate court proceedings were consolidated.

United States Constitution Amendment

. —_enoes Nae ede. See Appendix, A44

STATUTES INVOLVED

Re Rl SIN siacocsensyessecsessnacsoaceancenianans See Appendix, A45

A eels ee ae pa See Appendix, A50

BP BR Riis GOOEG csviccssssesssicccicccncsens See Appendix, A53

REGULATIONS INVOLVED

22 C.F.R. §121.1**

15 C.F.R. §399.1**

STATEMENT OF CASE

The petition before the Court is a joint petition in-

volving Werner Ernst Gregg and Roswitha L. Gregg, hus-

band and wife. They were individually named in a thir-

teen count Indictment that was returned in the Western

District of Missouri in February of 1985. In February of

1986, the trial court ordered the two defendants severed

for separate trials. Werner Ernst Gregg was tried and

convicted of seven of the thirteen counts against him, which

included four counts of violating 22 U.S.C. §2778, one

count of violating 50 U.S.C. §2410, and two counts of vio-

lating 18 U.S.C. §1001. On April 10, 1986, Roswitha L.

Gregg entered nolo contendere pleas to two tax violation

counts and all other counts against her were dismissed.

Pursuant to these convictions, Werner Ernst Gregg was

sentenced to an aggregate of three years and a $200,000.00

**The texts of the regulations involved are of such magni-

tude, involving several hundred pages, that they have not been

included in the Appendix. Should this Court so request, however,

Petitioners wi!l promptly provide same.

4

fine. Roswitha L. Gregg was given an aggregate sentence

of six months, a consecutive probationary term and a

$4,000.00 fine. Both Petitioners sought appellate review

in the Eighth Circuit Court of Appeals,? which court af-

firmed the judgments of conviction.

In 1976, Petitioner Werner Ernst Gregg formed an

export brokering business known as Gregg International,

which specialized in the exportation of products related

to aviation electronics or “avionics”. In September of

1982, Werner Ernst Gregg and Gregg International be-

came the subject of a federal investigation when a for-

mer employee informed authorities that Petitioner Werner

Ernst Gregg, in 1980, had exported a T.O.W. missile

system without proper license. In February of 1984,

Customs Agents began paying local trash haulers to put

the trash from Petitioners’ home and business in special

bags and deliver it to the agents who would then sort

through the trash. These trash searches continued on a

regular basis until the end of July, 1984.

The government, on March 19, 1984, applied for an

order pursuant to Rule 41 of the Federal Rules of Crim-

inal Procedure authorizing them to conduct electronic

surveillance of a telex machine* operated at Gregg Inter-

1. Mr. Gregg is presently confined in the Federal Medical

Center for Prisoners at Springfield, Missouri.

2. Werner Ernst Gregg’s appeal involved the search and

seizure issues raised at the trial court below as well as trial

issues. Roswitha L. Gregg’s appeal was based solely upon the

search and seizure issues. Relative to the Fourth Amendment

issues, there has been no dispute in the lower courts as to the

standing of both parties.

3. <A telex is a communication system which uses teletype-

writers that, through a modem, are capable of sending and re-

ceiving written messages by electronic impulses that are trans-

mitted by telephone lines or microwave transmissions.

)

national. The order issued by the U.S. Magistrate read

as follows:

There is probable cause to believe that Werner Gregg

doing business as Gregg International, and others yet

unknown, have committed or are committing offenses

involving Title 50 U.S.C. Appendix Section 2401 et

seq; Title 22 U.S.C. Section 2778; Title 18 U.S.C. Sec-

tion 371 .... Wherefore, it is hereby ordered that

special agents of the United States Customs Service,

United States Department of Treasury are authorized

to intercept the telex communications of Werner

Gregg, doing business as Gregg International, and

others yet unknown, concerning the offenses specified

hereinabove in the premises located at 8647 Raytown

Road, Raytown, Missouri... .

The order was renewed on April 30, 1984, May 24, 1984,

and on June 28, 1984.4 Pursuant to these orders, three

thousand four hundred fifty-nine (3,459) telex commu-

nications were intercepted; one thousand two hundred

thirty-six (1,236) of which involved the companies or

products named in the affidavits. Testimony at the evi-

dentiary hearing on Petitioners’ motion to suppress indi-

cated the remaining telexes involved legitimate trans-

actions.

In September of 1984, search warrants were issued

for Petitioners’ residence and business. The description

in said warrants read as follows:

documents that consist of sales, invoices, shipping

papers, purchase orders, correspondence, payment rec-

4. The interceptions occurred continuously throughout this

four month period, except for brief occasions when the equip-

ment was malfunctioning or renewal orders were being sought.

6

ords, and telexes relating to the purchase, sale storage,

transportation and financing of merchandise exported

or to be exported from the United States in violation

of the United States Export Administration Regula-

tions, Parts 371, 372, 373, 386, 387 and Titles 22 U.S.C.

2778, 50 U.S.C. 1702, 50 U.S.C. 1705 and Presidential

Executive Order 12470 of March 30, 1984.

On September 13, 1984, these warrants were executed

by Customs Agents and local law enforcement personnel.

The officers seized virtually all business documents they

could locate and made no attempt to scrutinize them with

reference to the warrants. Thousands of documents filling

over one hundred boxes, many of which documents were

wholly irrelevant to the investigation were seized. The

case agent in charge of the searches characterized the

executing officers’ activities as “painting with a broad

brush.” Subsequent to the seizure, upon request of Peti-

tioners’ counsel, certain documents determined by the

government to be irrelevant were returned to the Peti-

tioners. The seizure of documents was so massive that,

at the time of the hearing on the motion to suppress,

over nine months later, Customs Agents were still ex-

amining. the seized documents to determine their rel-

evancy.

Subsequent to Indictment, the Petitioners filed a mo-

tion to suppress alleging, inter alia: (1) that the trash

searches that occurred violated the Fourth Amendment;

(2) that the telex intercept orders were invalid because

the provisions of Title III were not followed; (3) that

electronic surveillance pursuant to Rule 41 should at least

meet the particularity requirements of Title III and did

not; (4) that the orders and warrants themselves lacked

particularity sufficient for the Fourth Amendment; and

7

(5) that there were substantial overseizures of conver-

sations and documents due either to overly broad war-

rants and orders or improper execution.

The district court held a lengthy evidentiary hearing

after which the court issued an order stating its intent

to overrule the motion to suppress. In February of 1987,

the district court issued a formal opinion denying the

motion to suppress. See, United States v. Gregg, 629

F.Supp. 958 (W.D.Mo. 1986).

The district court found that the telex interceptions

did not involve the “aural” acquisition of Petitioner’s com-

munications as then required by 18 U.S.C. §2510(4), and

that Title III was therefore not applicable.’ The court’s

decision was premised upon strict statutory construction

and it noted that it was “anomalous to have detailed statu-

tory regulation of bugging and wiretapping but not of

other intrusive interceptions such as... the telex inter-

ceptions at issue.” In addressing Petitioners’ claims in

the context of the Fourth Amendment, the court found

that the “telex warrants were indiscriminate in the re-

spect that all communications were seized .. .”, but were

proper as probable cause existed to believe the Petitioners’

business was permeated with criminal activity. The court

noted, however, that Petitioners’ “most cogent” argument

regarding particularity was their assertion that the war-

rants’ authorization of interception of all business com-

munications was improper and that the intercepted com-

munications should have been minimized.

The district court also found the search warrants’ de-

scription to be sufficiently definite for the searching

5. As indicated at note 13, infra, 18 U.S.C. §2518(4) has

been amended to include telex interceptions.

8

agents to determine the items to be seized. The court

noted that the language of the warrants was not overbroad

and that the warrants were executed by, among others,

Customs Agents who had adequate training to enable them

to identify the described documents. The court also found

that the seizure was not overbroad given the large quantity

of documents generated by the business and the suspected

breadth of the business’s criminal activity.

In February of 1986, Petitioner Werner Ernst Gregg

was tried by a jury and convicted of alleged violations of

22 U.S.C. §2778 and 50 U.S.C. §2410, both of which require

that the government prove beyond a reasonable doubt

that the defendant had the specific intent not to follow

a set of complex regulations regarding exports. Title 22

U.S.C. §2778 makes it a crime for a defendant to willfully

and knowingly export or attempt to export any item on

the State Department’s Munitions List (22 C.F.R. §121),

without the proper export license. Similarly, 50 U.S.C.

$2410, makes it a crime for a defendant to willfully and

knowingly export or attempt to export any item contrary

to the licensing requirements dictated by the Commodity

Control list, 15 C.F.R. $399.1. To meet its burden of proof,

the government adduced evidence from government em-

ployees that the charged items were in fact contained

within the Munitions or Commodity Control list and there-

fore subject to certain licensing requirements. Petitioner

was not allowed to introduce expert testimony contrary

to the government’s evidence nor to introduce the reg-

ulations themselves into evidence.® The “elements instruc-

tions” given the jury required factual findings that coin-

6. Petitioner Werner Ernst Gregg chose not to testify at

trial.

9

cided with the government’s interpretation of the regula-

tions.

On appeal to the Eighth Circuit, both Petitioners ad-

dressed the search and seizure issues that were cited in

the motion to suppress and ruled upon by the district court.

The briefs of the parties as well as the oral argument that

occurred before the circuit court stressed issues of mini-

mization, particularity and overseizure. On the 22nd day

of September, 1987, the Eighth Circuit Court of Appeais

issued its opinion. See, United States v. Gregg, 829 F.2d

1430 (8th Cir. 1987). Relative to the search issue, the

Eighth Circuit basically made two holdings: that the

trash searches were valid and provided probable cause

for the other seizures and that the telex intercepts as a

matter of statutory construction were not subject to the

specific statutory protections of Title III.‘ The Eighth

Circuit in its opinion did not address the issues of mini-

mization, particularity, and overseizure.* Both Petitioners

in a timely fashion filed a joint motion for rehearing sug-

gesting that the court had not fully addressed what Peti-

tioners felt to be the key issues in the case. That motion

for rehearing was denied on October 30, 1987.

7. See notes 5, supra, and 13, infra.

8. The Eighth Circuit appeared to labor under the miscon-

ception that Petitioners’ constitutional claims with respect to

the telex interceptions and the search warrants were wholly

dependent upon the propriety of the trash searches and the ap-

plicability of Title III. The Eighth Circuit accordingly limited

its discussion to the propriety of the trash searches and the in-

applicability of Title III. This misconception was brought to the

appellate court’s attention in Petitioners’ motion for rehearing,

but the court did not seize upon the opportunity to correct the

situation.

10

REASONS FOR GRANTING THE WRIT

The Eighth Circuit’s Failure to Recognize the Ap-

plicability of the Fourth Amendment Particularity

Requirement to Court Ordered Interception of Telex

Communications and Its Refusal to Use Title III War-

rant Requirements As a Guide to Assessing Whether

Constitutional Particularity Exists Conflicts With the

Decisions of This Court.

It is incontrovertible that, in accordance with this

Court’s decisions in Osborn v. United States, 385 U.S. 323,

329-330, 87 S.Ct. 429, 488, 17 L.Ed.2d 394 (1966); Berger

v. New York, 388 U.S. 41, 58-59, 87 S.Ct. 1873, 1883-84, 18

L.Ed.2d 1040 (1967); and, Katz v. United States, 389 U.S.

347, 354-59, 88 S.Ct. 507, 512-16, 19 L.Ed.2d 576 (1967), the

interception and acquisition of telex communications is

a search and seizure within the meaning of the Fourth

Amendment.

In Osborn v. United States, supra, the Court sustained

the validity of court authorized use of concealed electronic

devices under “sufficiently precise and discriminate cir-

cumstances” for “narrow and particularized purposes. . .”.

388 U.S. at 57, 87 S.Ct. at 1882.”

9. The Osborn Court found the surveillance carried certain

safeguards which protected the Petitioner’s Fourth Amendment

concerns. Those safeguards included, inter alia, “the order de-

scribing the type of conversations sought with particularity,

thus indicating the specific objective of the government in enter-

ing the constitutionally protected area and the limitations placed

upon the officer executing the warrant.” As this Court noted in

Berger v. New York, the “through those protections (in Osborn),

‘no greater invasion of privacy was permitted than was neces-

sary under the circumstances.’”’ 388 U.S. at 57, 87 S.Ct. at 1882.

11

In Berger v. New York, this Court struck down a

New York wiretapping and eavesdropping statute which

permitted seizure of ‘‘the conversations of any and all

persons coming into the area covered by the device...

indiscriminately and without regard to their connection

to the crime under investigation.” This, the Court held,

was the electronic equivalent of a general search. 388

U.S. at 58, 87 S.Ct. at 1883. The statute’s failure to re-

quire the conversations sought be described with partic-

ularity gave officers “a roving commission to seize any

and ail conversations.” 388 U.S. at 59, 87 S.Ct. at 1883.'°

In Katz v. United States, supra, the Court found the

Fourth Amendment violated by the use of electronic sur-

veillance without prior judicial authorization. In so doing,

the Court noted that an important aspect of the warrant

requirement is it ensures that the officers executing the

warrant are “compelled during the conduct of the search

itself, to observe precise limits established in advance

by specific court order.” 389 U.S. at 356, 88 S.Ct. at 514.

Berger, Katz and Osborn embody the minimum con-

stitutional standards governing the use of electronic sur-

veillance. Petitioners contend that these prerequisites to

a constitutionally valid electronic search and seizure were

not met in the case at bar. To the extent the Eighth

Circuit’s decision sanctions the use of electronic surveil-

lance in the context of telex interceptions without re-

10. The Berger Court emphasized the constitutional prin-

ciple that all invasions of privacy must be limited in scope to

the minimal intrusion necessary to fulfill their purpose. 388

U.S. at 47, 87 S.Ct. at 1882-83. The Court stated “[t]hat the

need for particularity ... is especially great in the case of

eavesdropping. By its very nature eavesdropping involves an

intrusion on privacy that is broad in scope.’’ 388 U.S. at 56, 87

S.Ct. at 1882.

12

quiring these standards be met, it is clear it conflicts with

the decisions of this Court.”

Petitioners challenged not only the authorization for

the telex interceptions, but also the execution of the

orders for same on the grounds that there were no efforts

whatsoever taken toward minimization. The district court

found this to be Petitioners’ “most cogent argument.”

In the context of electronic surveillance falling within

the purview of Title III, minimization exists as a regula-

tory mechanism used to avoid indiscriminate, unlimited

and uncontrolled surveillance; or what should be con-

sidered to be an unconstitutional general search in the

context of electronic surveillance. The minimization re-

quirement and/or the particularity requirements of the

Fourth Amendment in the context of electronic surveil-

lance derives from the court’s holdings in Berger, Katz

and Osborn. The Eighth Circuit’s refusal to recognize

the arguments of Petitioners in that regard also brings

its decision in conflict with the decisions of this Court.

The Eighth Circuit’s Failure to Utilize the Particu-

larity Requirements of Title III As a Guide to De-

termining the Constitutionality of Court Ordered In-

terceptions of Telex Communications Conflicts With

the Decisions of Other Federal Courts of Appeal.

The Court of Appeals limited its inquiry to the appli-

cability per se of Title III to the telex interceptions and

11. In addition, because of the abundant evidence to sup-

port the conclusion that Congress specifically intended to adopt

the constitutional guidelines announced in Berger, Katz and Os-

born when it passed Title III, S.Rep. No. 1097, 90th Cong. 2d

Sess. 66 (1968), reprinted in 1968 U.S. Code Cong. & Ad. News

2112, 2153-63. Petitioners urge, as they did in the lower courts,

that the appellate and district courts’ failure to assess the situ-

ation using Title III as a guideline, further serves to bring the

Court’s decision in to conflict with the decisions of this Court.

13

disregarded Petitioners’ arguments that, irrespective of

whether the interceptions fell strictly within the purview

of Title III, certain portions of Title III should be con-

sidered in assessing the constitutionality of those inter-

ceptions.'* The Court of Appeals noted only that the

government failed to follow the procedures for obtaining

court approval for interception as provided in Title III

(18 U.S.C. §2516-19), but did not address the constitu-

tional ramifications of the government’s failure to do so.

Unlike the Eighth Circuit Court of Appeals, the Cir-

cuit Courts of Appeal for the Seventh, Fifth and Second

Circuits have seized upon the warrant procedures of Title

III (18 U.S.C. §2518), as guidelines by which to assess

the constitutional propriety of television surveillance.

United States v. Torres, 751 F.2d 875, 885 (7th Cir. 1984),

cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d 150

(1985); United States v. Biasucci, 786 F.2d 504, 510 (2d

Cir.), cert. denied, ........ US. ........, 107 S.Ct. 104, 93 L.Ed.2d

54 (1986); United States v. Cuevas-Sanchez, 821 F.2d

248, 252 (5th Cir. 1987).

In Torres, Judge Posner, writing for the Seventh Cir-

cuit, noted that Title III was Congress’s carefully thought

out and constitutionally valid effort to implement the

requirements of the Fourth Amendment with regard to

the necessarily unconventional type of warrant that is

12. Those provisions include, inter alia, that the warrant

contain a “particular description of the type of communication

sought to be intercepted, and a statement of the particular of-

fense to which it relates,” 18 U.S.C. §2518(4)(c); and that it

require the interception ‘be conducted in such a way as to min-

imize the interception of communications not otherwise subject

to interception under (Title III),” 18 U.S.C. §2518(5). Title III

also mandates that the judge issuing the warrant must find “that

normal investigative procedures have been tried and have failed

or reasonably appear to be unlikely to succeed if tried or to be

too dangerous.” 18 U.S.C. §2518(3)(c). No such finding was

made in the present case.

14

used to authorize electronic eavesdropping, noting that

this type of search was more indiscriminate than a con-

ventional physical search and, therefore, thought to pose

a greater potential threat to personal privacy. Finding

that television surveillance was identical in its indiscrim-

inate character to wiretapping and bugging, the court

borrowed the warrant procedure of Title III, “a careful

legislative attempt to solve a very similar problem” and

held that it “provides the measure of the government’s

constitutional obligation of particular description” in the

context of electronic surveillance, including television sur-

veillance.

Both the Second Circuit in Biasucci and the Fifth

Circuit in Cuevas-Sanchez adopted the rationale of Torres

in similar situations.

Petitioners urged both lower courts to similarly look

to Title III as a definable standard by which to assess their

Fourth Amendment claims of particularity in the context

of telex interceptions. The circuit court’s failure to rec-

ognize the viability of those particular standards in the

context of telex interceptions conflicts with the decisions

of the Second, Fifth and Seventh Circuit Courts of Appeal.”*

The Eighth Circuit’s Opinion Regarding the Partic-

ularization Issue Is in Conflict With the Decisions of

This Court. -

The decision of the Eighth Circuit Court of Appeals

condones and sanctions the use of search warrants and

13. It further serves to exacerbate the anomalous effect

created by the recent amendment of 18 U.S.C. Section 2510(4)

to read “aural or other” acquisition, Electronic Communications

Privacy Act of 1986, see Congressional Record, Vol. 123, No. 134—

Prt II, October 2, 1986, H8977. Said amendment indicates that

the statute’s failure to originally include telex interceptions was

more a matter of not foreseeing technological advances that in-

tentional design.

15

Rule 41 court orders where the only limitations of the

seizure depend upon the discretion of the executing of-

ficer and undermine the purposes of the particularity re-

quirement.

The problem [posed by the general warrant] is not

that of intrusion per se, but of a general, exploratory

rummaging in a person’s belongings . . . [the Fourth

Amendment addresses the problem] by requiring a

“particular description” of the things to be seized.

Coolidge v. New Hampshire, 403 U.S. 443, 467, 91

S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). This require-

ment “makes general searches . . . impossible and

prevents the seizure of one thing under a warrant

describing another. As to what is to be taken, noth-

ing is left to the discretion of the officer executing

the warrant.” Stanford v. Texas, 379 U.S. 476, 485,

85 S.Ct. 506, 512, 13 L.Ed.2d 431 (1965), quoting

Marron v. United States, 275 U.S. 192, 196, 48 S.Ct.

74, 76, 72 L.Ed. 231 (1927). Andresen v. Maryland,

427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627

(1976).

The holding in Marron v. United States, supra, often

quoted by its progeny, reflects two of the important pur-

poses underlying the particularity requirement of the

Fourth Amendment—preventing general searches and pre-

venting the seizure of objects upon the mistaken assump-

tion that they fall within the magistrate’s authorization.

In this case, the purposes were effectively undermined by

the lack of particularization of the intercept orders and

search warrants.

In the present cause, officers executing the intercept

orders seized all telex communications occurring at Peti-

16

tioners’ business for virtually the entire period of time

the court orders authorizing same were in force. With

respect to the execution of the search warrants, all busi-

ness documents of the Petitioners located at their home

and office were also seized. In neither instance did the

intercept orders or search warrants expressly authorize

the seizure of “all” telexes or “all” business documents

of Gregg International. The orders and warrants in ques-

tion did, however, effectively grant a carte blanche equiva-

lent to such a general authorization by failing to place

any meaningful limitation on the seizure of otherwise in-

nocuous items.

In this case, the only limitation the orders and war-

rants place on the seizures of telexes and business docu-

ments is that they relate to illegal activity which is de-

scribed in the intercept orders only by citations, and in

the search warrant only by citations and the phrase

“United States Export Regulations’. The statutes cited

in the intercept orders are 50 U.S.C. App. $2401 et seq.,

22 U.S.C. $2778 and 18 U.S.C. $371. In the search war-

rants there are similar citations to statutes of considerable

breadth which envision intentional violation of the tech-

nical provisions of numerous export regulations. Certain

of those regulations are cited, five in all, as is a presidential

executive order. Collectively, these citations encompass

an extremely broad range of regulations and laws, vio-

lations of which extend the entire gambit of potential

illegal export activity. Accordingly, the orders and war-

rants, on their face, call for executing officers to exercise

their discretion to determine the nature and extent of the

illegal activity under investigation and to determine

whether the general items described in those documents,

which are innocent on their face, are in fact evidence of

17

such illegal activity.‘ Because the warrants and orders

rely on the exercise of the executing officer’s discretion,™

they are in conflict with the precedents of this Court.

Petitioners have consistently maintained that the

search warrants and court orders in question were overly

broad on their face, or greater than the probable cause

14. A number of the circuit courts of appeal have recognized

that mere reference to the type of criminal activity under in-

vestigation or a citation will not suffice for a meaningful limi-

tation on the exercise of the officer’s discretion. See, e.g. Voss

v. Bergsgaard, 774 F.2d 402, 405 (10th Cir. 1985) (“Even if

reference to 18 U.S.C. Section 371 is construed as a limitation,

it does not constitute a constitutionally adequate particularization

of the items to be seized.”); United States ». Roche, 614 F.2d 6,

8 (lst Cir. 1980) (Limiting search to evidence regarding violation

of 18 U.S.C. Section 1341 provided “no limitation at all’ because

of the statute’s extremely broad scope); In re Lafayette Academy,

610 F.2d 1, 3 (1st Cir. 1979) (Search warrant limited to evidence

of violations of Title 18 U.S.C. Sections 286, 287, 371, 1001 and

1014 too broad); United States v. Spilotro, 800 F.2d 959, 964

(9th Cir. 1986) (reference to thirteen statutes, some of excep-

tional scope, encompasses a number of criminal acts but does

not describe a specific criminal transaction and is not a meaning-

ful limitation). But see, United States v. Timpani, 665 F.2d 1,

4-5 (1st Cir. 1981) (Search warrant that refers to loan sharking

and gambling in addition to listing four federal statutes suf-

ficiently particular).

15. Petitioners recognize that courts tend to accord a great

deal of latitude in the application of the Marron rule, but would

nonetheless assert that it remains violated in the present context.

In this case, the iterns in question were not contraband, but were

innocent on their face, and nowhere in the warrants does there

appear any guidelines or criteria by which to distinguish that

which is evidence of criminal activity. Moreover, the fact that

the warrants and orders could have been narrowed and refined

by virtue of the prior investigation to specific instances of crim-

ina! conduct involving identified parties and products, as well

as time frames, they were not so limited. Petitioners would

accordingly maintain, as they have, that not only are these

orders and warrants in conflict with Marron and progeny, but

also, specifically, with Andresen v. Maryland, supra, wherein this

Court indicated that consideration should be given to the fact

the warrant in that case was limited to a specific transaction and

the description contained therein was the best that could be

accomplished under the circumstances. 427 U.S. at 481 n.10,

482-3, 96 S.Ct. at 2748 n.10, 2749.

18

established by their affidavits, as well as being insuffi-

ciently particularized, and to that extent Petitioners assert

that the Eighth Circuit’s decision is inconsistent with this

Court’s decision in Go-Bart Importing Co. v. United States,

282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931), wherein

this Court indicates that the third purpose underlying the

particularity requirement, not mentioned in Marron, is to

prevent “‘the issuance of warrants on loose, vague or doubt-

ful basis of fact.”

In accordance with the foregoing, Petitioners respect-

fully assert that the decision of the Eighth Circuit Court

of Appeals'® to uphold the warrants and orders in ques-

tion conflicts with the precedents of this Court.

Whether Probable Cause to Believe a Business Is

Permeated With Illegal Activity Justifies Overseizure

Beyond the Scope of the Warrant Is an Issue on Which

the Circuit Courts of Appeal Are Not in Agreement.

In the present case, Petitioners challenged the seizure

of all telex communications for a four month period and

seizure of all Petitioners’ business documents as being

overseizures, seizures beyond the scope of the warrants

which themselves were overly broad. In response thereto,

16. The district court found that the search warrants in

question were sufficiently particular to enable the search agents

to determine the items to be seized. 629 F.Supp. at 966. In so

doing, the district court relied upon its finding that the primary

searcher was a customs agent who had adequate training to

enable them to identify the described documents. The court’s

decision to validate the breadth of the warrant by reference to

the manner in which execution took place ignores Petitioners’

allegations that the warrants were overly broad on their face.

The court’s use of events taking place subsequent to issuance is

also contrary to the position of the First Circuit Court of Appeals

in In re Application of Lafayette Academy, Inc., supra, which

held that limited execution of a search warrant which is facially

invalid will not serve to validate the warrant.

19

the district court found that such seizures were permissible

because virtually all items seized were of a business nature

and because there was probable cause to believe the Peti-

tioners’ business was permeated with illegal activity.’

A majority of the circuit courts of appeal have upheld

the large-scale seizure of business documents where a

warrant expressly, or in effect, authorizes seizure of all

the documents of a business entity upon probable cause

to believe the business is permeated with crime or in-

volved in a pervasive scheme to defraud. United States

v. Brien, 617 F.2d 299 (lst Cir.), cert. denied sub nom.,

446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980); United

States v. Offices Known as 50 State Distributing Co., 708

F.2d 1371 (9th Cir. 1983), cert. denied, 465 U.S. 102i, 104

S.Ct. 1272, 79 L.Ed.2d 677 (1984); United States v. Sawyer,

799 F.2d 1494 (11th Cir. 1986), cert. denied sub nom., ........

USS. ........, 107 S.Ct. 961, 93 L.Ed.2d 1009 (1987); National

City Trading Corp. v. United States, 635 F.2d 1020, 1026

(2d Cir. 1980); Williams v. Kunze, 806 F.2d 594 (5th Cir.

1986); Rickert v. Sweeney, 813 F.2d 907 (8th Cir. 1987).

To the extent that these cases can be read as allowing

seizure of all an organization’s records whether or not

those records are relevant to the alleged crimes, they are

in conflict with the holding of the Tenth Circuit Court

of Appeals in Voss v. Bergsgaard, supra.'* See too, United

17. Petitioners assert this finding to be clearly erroneous

and have vigorously opposed it throughout the course of this

litigation. Petitioners accordingly maintain the scope of the

telex and document seizures, in effect and as authorized, outran

the probable cause provided by the respective affidavits.

18. In Voss v. Bergsgaard, supra, the warrant authorized

seizure of a number of specifically listed generic documents

(Continued on following page)

20

States v. Roche, supra, wherein the First Circuit held that

wholesale seizure would not be condoned because the

fraudulent activity, though substantial could be segregated

from other legitimate activities of the organization.”

Footnote continued—

limited only by broad statutory reference, pursuant to which,

virtually ail documents of the business were seized. The court

found the warrant to be unduly broad and noted the district

court found probable cause for issuance of a properly restricted

warrant and did not find probable cause to believe that fraud

pervaded every aspect of the particular business. The court

went on to staie, however, that it declined to follow case law

which would authorize such a wholesale seizure even if there

was probable cause to believe the business was pervasively

criminal. The court noted that seizure of all a business’s records

might lawfully occur where they all fall with the particular

description of documents relevant to a specific crime, but that

a warrant which authorizes seizure of ali files, expressly or in

effect, whether or not relevant to a specific crime is insufficiently

particularized. 774 F.2d at 406.

19. The issue of overseizure implicates the related issue

of “extended seizure’? and the circumstances in which it is con-

stitutionally palatable. See, United States v. Tamura, 694 F.2d

591 (9th Cir. 1982), where agents seized all records of a business

as a matter of convenience and conducted the search of those

records for an extended period of time thereafter. The circuit

court held that such methodology in executing a search was the

“kind of investigatory dragnet the Fourth Amendment was de-

signed to prevent.” 694 F.2d at 595, quoting, United States v.

Abrams, 615 F.2d 541, 543 (1st Cir. 1980). Recognizing the con-

stitutional problems of extended seizure, even if necessary for

practical reasons, the American Law Institute’s Model Code of

Pre-Arraignment Procedure sets forth recommended procedures

which include, inter alia, prior judicial authorization for the

large scale removal of material. See, Article 220 of the 1975

ALI Model Code of Pre-Arraignment Procedure. In Tamura,

the court found that the lack of prior judicial authorization for

the manner in which that warrant was executed rendered it an

unreasonable seizure and violative of the Fourth Amendment.

But see, United States v. Santarelli, 778 F.2d 609 (11th Cir.

1985), where the court approved wholesale seizure for several

days needed to examine documents so long as any items found

not be relevant were promptly returned because said procedure

was reasonable under the circumstances. 778 F.2d at 615-16.

21

The Extent to Which Relief Should Be Granted From

an Overseizure Is an Important Question of Law Which

Should Be Addressed by This Court.

It is well established that the Fourth Amendment

prohibits a general search. Marron v. United States, supra.

The question which appears unanswered by existing Su-

preme Court precedent is whether total suppression is

appropriate if the search warrant is overly broad on its

face. The Eighth, Ninth and Tenth Circuit Courts of

Appeal have answered that question affirmatively and

recognized that search warrants overly broad on their

face may not be susceptible to severance and suppression

of all fruits of the search is therefore required. Rickert

v. Sweeney, supra, 813 F.2d at 909-910; United States v.

Spilotro, supra, 800 F.2d at 964; Voss v. Bergsgaard, supra,

774 F.2d at 406.°° Similerly, is substantial overseizure

pursuant to a warrant nci overly broad on its face equiv-

alent to a general search thus requiring total suppression?

Because the deterrent purpose of the exclusionary rule

would be effectively emasculated if these queries were

to be answered in the negative and wholesale rummaging

would be encouraged, Petitioners urge this Court to ad-

20. The scope of the suppression remedy in the event of a

violation of the minimization requirement for electronic sur-

veillance, on both constitutional and statutory grounds, is open

to this Court. See, Scott v. United States, 436 U.S. 134, 136

n.10, 98 S.Ct. 1717, 1722 n.10, 56 L.Ed.2d 168, rehrg. denied, 438

U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978). See too, United

States v. Turner, 528 F.2d 143, 156 (9th Cir.), cert. denied, 423

U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371 (1975), where in the con-

text of electronic surveillance, the court indicated that disregard

of the minimization requirement, which is overseizure, might

appropriately result in total suppression.

22

dress the issues of suppression attendant on Petitioners’

Fourth Amendment claims.**

Whether Extensive and Warrantless Searches of De-

fendants’ Trash Meet the Requirements of the Fourth

Amendment !s an Important Issue This Court Should

Address.

In both the district court and in the Eighth Circuit

Court of Appeals, Petitioners urged that_the indiscrim-

inate trash searches which occurred in this cause violated

their Fourth Amendment rights. Petitioners wre aware

of the fact that this Honorable Court has granted cer-

tiorari in the case of California v. Greenwood, No. 86-684,

107 S.Ct. 3260 (1987). The pending Greenwood case

addresses issues similar to those raised by Petitioners in

the court below and therefore is an important question

of law that should be addressed by this Honorable Court.

The Exclusion of Certain Evidence Regarding Export

Regulations and the Interpretation Thereof Has Sig-

nificant Constitutional Impact and Is Contrary to Su-

preme Court Precedent.

Werner Ernst Gregg was convicted of seven counts

in a thirteen count Indictment. Five of those seven counts

were violations of either 22 U.S.C. $2778 or 50 App. U.S.C.

§2410. Both such statutes make it a crime to willfully

21. Petitioners recognize that the applicability of the good

faith exception to the exclusionary rule as enunciated in United

States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677,

rehrg. denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984),

is a matter which is necessarily implicated by the scope of sup-

pression issue. Petitioners have maintained throughout the

course of these proceedings that the good faith exception is not

applicable to the circumstances of this case and would respect-

fully reserve the right to brief that issue should certiorari be

granted.

Bee mee

23

and knowingly violate export licensing regulations, which

regulations are complex and subject to varying inter-

pretation. The issues subject to interpretation is whether

a particular product was on either the Commodity Con-

trol List, 15 C.F.R. $399.1 or on the State Department’s

Munitions List, 22 C.F.R. $121.1. The elements instruc-

tions given at the end of the case required the jury to

make factual findings that various items fell within the

purview of either the Munitions List or the Commodity

Control List.”

At trial, the government presented expert testimony

to support the interpretations necessary to its allegations.

Petitioner introduced documentary evidence which indi-

cated that his interpretations of the regulations were

contrary to the governments. Petitioner also offered the

testimony of three experts to support Petitioner’s inter-

pretations. Petitioner further offered into evidence the

various regulations that apply to offenses under 22 U.S.C.

§2778 and 50 App. U.S.C. §2410, including those regula-

tions specific to the charges. The trial court refused to

admit into evidence said testimony and regulations.

Existing case law indicates that export violations such

as those of which Petitioner was convicted are specific

intent crimes. See, United States v. Lizarraga-Lizarraga,

541 F.2d 826 (9th Cir. 1976). The government must

prove, therefore, that the regulatory provisions were both

“actually known” and “deliberately violated” by the de-

22. Defendant was convicted of Counts I, II, III and IV

relating to what are called “Munitions List offenses”, 22 U.S.C.

§2778. The defendant was also convicted of Count VII relating

to a Commodity Control List offense, 50 App. U.S.C. §2410. With

respect to each count, the issue arises as to whether the par-

ticular product named in that count is contained in the items

described by the particular list and is therefore subject to certain

licensing requirements.

24

fendant. United States v. Fuentes-Coba, 738 F.2d 1191

(11th Cir. 1984), cert. denied, 469 U.S. 1213, 105 S.Ct.

1186, 84 L.Ed.2d 333 (1985). Accord Liporata v. United

States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985).

Petitioner respectfully asserts that notions of fundamental

fairness, as well as his constitutional right to compulsory

process in presenting a defense are violated when the

defendant is not allowed to offer evidence in rebuttal

of proposition the government must directly prove.

Exclusion of this evidence cannot be justified by the

circuit court’s suggestion that it was an attempt to con-

fuse the issues. To the extent that such a holding is

allowed it remains in conflict with this Court’s recent

decision in Crane v. Kentucky, 476 U.S. 683, 106 S.Ct.

2142, 90 L.Ed.2d 630 (1986), which reaffirmed the prop-

osition that exclusion of potentially exculpatory evidence

without sufficient justification violates a defendant’s Sixth

Amendment rights, which includes the defendant’s right

to compulsory process. Washington v. Texas, 388 US.

14, 19-23, 87 S.Ct. 1920, 1923-28, 18 L.Ed.2d 1019 (1967);

Rock v. Arkansas, ........ BE secs , 107 S.Ct. 2704,

eb eee (1987).

Further, it is Petitioner’s contention that the exclu-

sion of this evidence denied him a fair trial. Therefore,

his Fifth Amendment rights to due process of law were

also violated.**

23. Implicitly the Eighth Circuit’s opinion seems to uphold

the exclusion of this evidence because the Petitioner did not

testify. The exclusion of this evidence upon the defendant’s

failure to testify runs afoul of his right to remain silent as

guaranteed to him under the Fifth Amendment of the United

States Constitution, see generally, Griffin v. California, 380 U.S.

609, 85 S.Ct. 1229, 14 L.Ed.2d 106, rehrg. denied, 381 U.S. 957,

85 S.Ct. 1797, 14 L.Ed.2d 730 (1965).

25

CONCLUSION

The issues presented in this cause are of significant

constitutional magnitude addressing the application of the

Fourth and Sixth Amendments. Specifically, these issues

include: (1) the particularity requirements for electronic

interception of telex communications; (2) the particular-

ity requirements of search warrants in the context of a

complex case regarding allegations of business related

crimes; (3) what remedies are available to a criminal

defendant in the context of substantial overseizure of

documents during the execution of a search warrant; (4)

the constitutional propriety of warrantless trash searches;

(5) the Sixth Amendment rights regarding compulsory

process in a prosecution involving complex export statutes

and regulations. Clearly these are issues of significant

concern to the administration of criminal justice.

The use of search warrants in the substantial seizure

of business documents have become commonplace. With

advancing technology the government will also have in-

creased opportunity to use novel methods of electronic

surveillance. The issues regarding these types of intru-

sions should be addressed by this Court.

26

Therefore for the reasons stated this petition should

be granted.

Respectfully submitted,

DARWIN E. JOHNSON

Counsel of Record

JAMES R. HoBBs

THOMAS V. BENDER

LINDE, THOMSON, LANGWORTHY, KOHN

& Van Dyke, P.C.

2700 City Center Square

12th & Baltimore

P. O. Box 26010

Kansas City, Missouri 64196-6010

(816) 474-6420

Attorneys for Petitioner

Werner E. Gregg

JAMES R. WYRSCH

Counsel of Record

CHARLES E, ATWELL

KoeEeNIGSDORF, WyrscH & RAMSEY

1050 Home Savings Building

1006 Grand Avenue

Kansas City, Missouri 64106

(816) 221-0080

Attorneys for Petitioner

Roswitha L. Gregg

Al

APPENDIX

(Filed September 22, 1987)

IN THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 86-1572/1787WM and 87-1622WM

UNITED STATES OF AMERICA,

Appellee,

Vv.

WERNER ERNST GREGG and ROSWITHA GREGG,

Appellants.

Appeal from the United States District Court

for the Western District of Missouri,

Western Division

Submitted: June 8, 1987

Filed: September 22, 1987

Before WOLLMAN and MAGILL, Circuit Judges, and

DUMBAULD,* Senior District-Judge.

DUMBAULD, Senior District Judge.

Appellants, Werner Ernst Gregg and his wife Roswitha

Gregg, operated an export business known as Gregg Inter-

national, handling avionics devices. Both defendants ap-

*The Honorable Edward Dumbauld, U.S. Senior District

Judge of the Western District of Pennsylvania, sitting by desig-

nation.

A2

peal from denial of their motion to suppress evidence.’

Werner Gregg also alleges various trial errors. We affirm

the judgments of conviction.

The curious feature of this case is that the customs

agents investigating defendants possible violation of ex-

port prohibitions first scrutinized trash collected from de-

fendants’ residence and place of business, and “found

gold” in the form of discarded telex comimunications be-

tween defendants and customers. On the basis of these

telexes the agents prepared affidavits which convinced

Magistrate Calvin Hamilton that a search warrant should

issue authorizing interception of current telex communi-

cations of Gregg International.* Details of the investiga-

tion are described in the opinion of the District Court’

denying the motion to suppress. U.S. v. Gregg, 629 F.

Supp. 958 (W.D.Mo. W.D. 1986) at 959-61. As a result

of the telex materials, together with subsequent searches

of the Greggs’ residence and business, customs searches

when Werner Gregg was personally attempting to carry

merchandise out of the country, and statements taken

from the defendants, an indictment containing thirteen

counts‘ was returned against both defendants. Werner

1. Roswitha Gregg entered a conditional plea pursuant to

Rule 11(a)(2) F.R.Cr.P. subject to resolution on appeal of the

suppression issue. Roswitha Gregg’s plea related to tax issues

involved in Counts X and XI of the Indictment. Werner Gregg

was acquitted on the tax counts (X through XIII). On motion

of the United States Counts I through IX and XII and XIII

were dismissed as to Roswitha Gregg.

2. Violations disclosed by the trash were too stale for pros-

ecution. Testimony of the case agent Ronald M. Garrison, Tr.

I, 133.

3. The Honorable Joseph E. Stevens, Jr., District Judge

for the Western District of Missouri.

4. Count I charged unlawful export of night vision goggles

usable for military purposes, without a required license from

(Continued on following page)

A3

Gregg was convicted on Counts I-IV, and VII-IX, both

inclusive and was sentenced, in the aggregate to three

years custody, followed by five years’ probation, and a

$200,000 fine. Roswitha Gregg was fined $4000 and three

years confinement, suspended except for six months. A

proviso ordered that husband and wife not be incarcerated

simultaneously.

Defendants contend that all evidence seized from them

should be suppressed, arguing that each subsequent seizure

resulted as the poisonous fruit of prior illegal seizures, and

hence that everything must be excluded.

However, as the District Court properly found, this

“house that Jack built” argument collapses because the

initial trash search was not illegal (629 F. Supp. at 960),

citing U.S. v. Michaels, 726 F.2d 1307, 1312-13 (8th Cir.

1984); and U.S. v. Biondich, 652 F.2d 743, 744-45 (8th Cir.

1981). And in the case at bar as in Biondich, “Since we

have concluded that the inspection of his garbage was

lawful, the magistrate properly considered the items found

Footnote continued—-

the State Department: Count II, of sixteen military aircraft

communication radios without State Department license; Count

III, of component parts of a T.O.W. missile system without

State Department license; Count IV, of a tactical air navigational

radio system (often referred to during the case as a TACAN)

without State Department license; Count V, of which Werner

Gregg was acquitted, charged an attempt to export three radios

without State Department license; Count VI, of whicn defendant

Werner Gregg was acquitted, charged export of 31 millimeter

wave guide components without validated Commerce Depart-

ment license; Count VII charged attempt to export a Laser

Inertial Navigation System for aircraft (often referred to during

the case as a “Laser Nav’’) without a validated Commerce

Department license [this unit was discovered in Werner Gregg’s

hand-carried luggage at the Los Angeles airport]; Count VIII

charged false statement (gross undervaluation) of 25 trans-

ceivers; Count IX charged such undervaluation of 43 transceivers;

Counts X-XIII were tax counts (understatement of income), as

to which Werner Gregg was acquitted.

A4

in the trash when he made his determination that probable

cause existed to justify the warrant’, (652 F.2d at 745).

Once the propriety of taking the result of the trash search

into account is established, there is obviously substantial

evidence justifying issuance of the warrant. We note

aiso, as recognized in Michaels (726 F.2d at 1313-14), that

under Illinois v. Gates, 462 U.S. 213, 236 (1983), our

scrutiny “of the sufficiency of an affidavit should not take

the form of de novo review”. A “substantial basis” for

concluding that evidence of wrongdoing will be found is

all that is required. As stated in Massachusetts v. Upton,

466 U.S. 727, 728 (1984): “[T|he task of a reviewing court

is not to conduct a de novo determination of probable

cause, but only to determine whether there is substantial

evidence in the record supporting the Magistrate’s decision

to issue the warrant”.

More interesting, and novel, is the Greggs’ conten-

tion that interception of telex communication is subject

to the requirements of Title III of the Omnibus Crime Con-

trol and Safe Streets Act of June 18, 1968, 82 Stat. 112, 18

USC 2510 et seg. It is there enacted that

“intercept” means the aural acquisition of the contents

of any wire or oral communication through the use

of any electronic, mechanical, or other device. [18 USC

2510 (4) J.

Evidence obtained by interception is to be excluded if dis-

closure of the information would be in violation of Title

III. 18 USC 2515. Procedure for obtaining court ap-

proval for interception is provided in 18 USC 2516-19.

Those procedures were not followed in the case at bar.®

5. Although the Government claims that a substantial equiv-

alent of those procedures was observed in its practices.

A5

We agree with the District Court’s conclusion (629

F. Supp. at 962) that the printouts of telex communica-

tions do not constitute “aural” acquisition of the contents

of the communications. Telex communication, unlike tele-

phonic communication, does not involve hearing sounds

of the voice. It is more like a pen register or television

monitoring. Sight rather than hearing is the means of

apprehending the contents.® Title III did not apply.? There

is no merit in any of appellants’ arguments in favor of

suppressing the evidence.

Turning to the trial errors challenged by appellant

Werner Gregg, we find no error in the District Court’s

rulings. It will be helpful first to set forth the unlawful

acts involved in the counts of which defendant Werner

Gregg was convicted by the jury.

Counts I-IV charged violations of section 38 of the

Foreign Military Sales Act of October 22, 1968, 82 Stat.

1320, as added by Section 212 (a) (1) of the International

Security Assistance and Arms Export Control Act of 1976,

90 Stat. 729, 744-45, section 201 (a) of which changed the

name of the Foreign Military Sales Act to the Arms Export

Control Act [90 Stat. 734], 22 U.S.C. 2778, which provides

in pertinent part:

(a)(1) In furtherance of world peace and the se-

curity and foreign policy of the United States, the

President is authorized to control the import and the

export of defense articles and defense services and to

6. Tom Hilleary, an electrical engineer, defendant’s expert,

testified that what is heard when a telex is in operation is obvi-

ously not speech, but a modulated audio signal. Tr. III, 464, 483.

The witness knew of no commercially available equipment that

would intercept only particular messages. Tr. III, 499.

7. In 1986 the definition was amended to read “aural or

other acquisition.” Appellee’s brief, p. 15.

A6

provide foreign policy guidance to persons of the

United States involved in the export and import of

such articles and services. The President is authorized

to designate those items which shall be considered as

defense articles and defense services for the purposes

of this section and to promulgate regulations for the

import and export of such articles and services. The

items so designated shall constitute the United States

Munitions List."

(b)(2) Except as otherwise specifically provided in

regulations issued under subsection (a)(1) of this

section, no defense articles or defense services desig-

nated by the President under subsection (a)(1) of

this section may be exported or imported without a

license for such export or import, issued in accordance

with this chapter and regulations issued under this

chapter.

(c) Any person who willfully violates any provision

of this section or section 2779 of this title, or any rule

or regulation issued under either section, or who will-

fully, in a registration or license application or re-

quired report, makes any untrue statement of a ma-

terial fact or omits to state a material fact required

to be stated therein or necessary to make the state-

ments therein not misleading, shall upon conviction

be fined not more than $100,000 or imprisoned not

more than two years, or both.

It will be noted that allegations of willfulness are

contained in every count under which Werner Gregg was

8. The actual list constitutes part 121 of Title 22, CFR.

For items on the Munitions List the Department of State is the

licensing authority. See 22 CFR subchapter M, part 120, 120.1,

ai. to Executive Order 11958, as amended (42 Fed. Register

311).

A7

convicted. It is also noteworthy that the prosecutors did

not utilize the false representation provisions of 22 U.S.C.

2778 (c), but relied on 18 U.S.C. 1001 and 1002.°

Count VII involved items for which a license from the

Commerce Department was required, and alleged violation

of section 11(b) of the Export Administration Act of 1979,

93 Stat. 503, 529, 50 U.S.C. App. 2410, which provides:

(a) Except as provided in subsection (b) of this

section, whoever knowingly violates or conspires to or

attempts to violate any provision of this Act [sections

2401 to 2420 of this Appendix} or any regulation,

order, or license issued thereunder shall be fined not

more than five times the value of the exports involved

or $50,000, whichever is greater, or imprisoned not

more than 5 years, or both.

(b) (1) Whoever willfully violates or conspires to

or attempts to violate any provision of this Act [sec-

tions 2401 and 2420 of this Appendix] or any regula-

tion, order, or license issued thereunder, with knowl-

edge that the exports involved will be used for the

benefit of, or that the destination or intended desti-

nation of the goods or technology involved is, any

controlled country or any country to which exports

are controlled for foreign policy purposes—

- * 7

(B) in the case of an individual, shall be

fined not more than $250,000, or imprisoned not

more than 10 years, or both.

It will be noted that conviction under this statute

requires proof of (1) willfulness; (2) violation of the Act

9. Perhaps none of the documents Gregg was charged with

falsifying in connection with the paperwork involved in the

exportation process constituted a “required report.”

A8

or a regulation issued thereunder; (3) knowledge that

the exports involved will be used for the benefit of, or

that the destination or intended destination of the goods

or technology involved is, any controlled country or any

country to which exports are controlled for foreign policy

purposes.

The Court’s charge clearly covered these requisites:

The crime of attempted unlawful export of an

item on the Commodity Control List as charged in

Count VII of the indictment has two essential ele-

ments which are:

One: That the defendant intended to commit the

crime of unlawful export of an item on the Commodity

Control List; and

Two: That on or about June 25, 1984, the defen-

dant intentionally carried out some act which was a

substantial step towards the commission of the un-

lawful export of an item on the Commodity Control

List.

To convict the defendant of an attempted unlaw-

ful export of an item on the Commodity Control List,

the government must prove each of these essential

elements beyond a reasonable doubt. .

To assist you in determining whether the defen-

dant intended to commit the crime of unlawful export

of an item on the Commodity Control List, as required

by element one above, you are advised that the ele-

ments of the offense alleged in Count VII are as fol-

lows:

First, that the defendant attempted to export the

item alleged in the indictment;

Ag

Second, that the item was listed on the Depart-

ment of Commerce Commodity Control List;

Third, that the defendant did so with knowledge

that such item would be used for the benefit of a

country to which exports are restricted for foreign

policy purposes;

Fourth, that in so doing the defendant did not

possess or have issued to him a validated license or

other authorization for such export as required by law;

and

Fifth, the defendant did such acts knowingly and

willfully. [Instruction #39, Tr. (vol. X) 183-84]

Counts VIII and IX charged violations of 18 U.S.C.

1001 and 1002."° Section 1001 of the Act of June 25, 1948,

62 Stat. 683, 749 provides:

Whoever, in any matter within the jurisdiction of

any department or agency of the United States know-

ingly and willfully falsifies, conceals or covers up by

any trick, scheme, or device a material fact, or makes

any false, fictitious or fraudulent statements or rep-

resentations, or makes or uses any false writing or

document knowing the same to contain any false,

fictitious or fraudulent statement or entry, shall be

10. Section 1002, which obviously relates to falsified doc-

uments for the purpose of obtaining money from the government

on false pretenses and has no applicability to circumstances such

as those in the case at bar, reads:

Whoever, knowingly and with intent to defraud the

United States, or.any agency thereof, possesses any false,

altered, forged, or counterfeited writing or document for

the purpose of enabling another to obtain from the United

States, or from any agency, officer or agent thereof, any

sum of money, shall be fined not more than $10,000 or

imprisoned not more than five years, or both.

Al0

fined not more than $10,000 or imprisoned not more

than five years, or both.

Appellant Werner Gregg sirenuously contends that it

was error not to admit as exhibits for consideration by

the jury the Arms Export Control Act, the Export Ad-

ministration Act, and the voluminous regulations there-

under. The argument is that they are relevant to the

question whether specific intent was proved. Like ques-

tions of evidence generally, this was a matter for the trial

court’s discretion.

Strictly speaking, this material would be irrelevant

since the crucial issue is not whether the jury would be

confused by these massive legislative and bureaucratic

artifacts (or even whether the courts would be confused

thereby) but whether Werner Gregg was confused by

them. There was evidence that Gregg possessed con-

siderable expertise on the subject. Indeed he gave lec-

tures and published newsletters on the subject.’ The

trial court’s charge admirably sifted out the portions of

the statutes and regulations applicable to each count, and

the pertinent references to the Munitions List and ue Com-

modity Control List. The court’s instructions likewise

made it perfectly clear that the Government must prove

beyond a reasonable doubt that the defendant acted know-

ingly and willfully, and with specific intent, and particular

knowledge, as required by the respective counts involved.”

11. Tr., VIII, 128, 140-41. a

12. The charge is found in Tr. (vol. X) 158-207. After

each numbered instruction, the page reference is given in paren-

theses. #5 (161) [must acquit unless Government proves beyond

reasonable doubt that “the defendant has committed every ele-

ment of an offense’”]; #15 (166) [proof of specific intent re-

quired]; #16 (167) [intent may be proved from circumstances];

(Continued on following page)

All

Construction of the statutes and regulations so as to de-

termine with precision what was required for conviction

on a particular count was a matter of law for the court

to decide. There was no harmful error in not cluttering

the record unnecessarily with additional voluminous and

complex exhibits, which might indeed have distracted

and unduly burdened or confused the jury.

Appellant also argues that the statutes and regula-

tions are unconstitutionally vague. It is true that Con-

gress enumerated various policies requiring conflicting

factors to be weighed. Twenty points’® are specified in

sections 2 and 3 of the Export Administration Act of 1979.

Thus Congress declares that exports contribute to na-

tional well-being, but some exports might be detrimental

to national security by contributing to the military poten-

tial of unfriendly countries. Hence export controls should

be imposed to restrict such exports, but only to the ex-

tent necessary, or to prevent drain of scarce materials,

or to discourage restrictions imposed by foreign countries,

or to encourage other countries to act against terrorism.

There may be ambiguities and vagueness in these policy

objectives, but the task of weighing and balancing the

conflicting factors is committed by Congress to Executive

discretion. As explained clearly by Judge Zobel in U.S.

v. Moller-Butcher, 560 F. Supp. 550, 552-553 (D. Mass.

Footnote continued—

#18 (167) [defines “unlawfully”]; #19 (168) [defines “know-

ingly”]; #39 (183-84) [element of offense charged in Count

VII is knowledge that such item would be used for the benefit

of a country “to which exports are controlled for foreign policy

purposes”]; #41 (186) [section 1485 A of Commodity Control

List includes “inertial equipment’, 15 CFR p. 511].

13. 93 Stat. 503-505. Codified with amendments in 50

U.S.C. app. 2401-2402, twenty-four points are listed.

Al2

1983), Congress enumerated the factors which are to guide

the discretion of the executive department, but ‘also clearly

expressed its desire that the executive branch, not the

courts, have the final word on which items should be re-

stricted.”

The policy factors specified by Congress are not ele-

ments of the criminal offense of unlawful export. When

the case gets to court, all that the Government needs to

prove is that the item exported appears on the Munitions

List or the Commodity Control List, as the case may be

(and, of course, that the defendant knowingly and will-

fully exported it, with the necessary intent and knowledge,

and without an appropriate license).’* There is no un-

constitutional vagueness. It is as simple a matter as for-

bidding a passenger to ride on a train without a valid

ticket.

As to Counts I, II, IV, appellant argues that export

of the items covered by those counts was lawful under the

“normal commercial use” exception in Category XII (c)

of the Munitions List (22 CFR part 121). The asterisk

indicates that the article is deemed to be “significant mili-

tary equipment” for which “special export controls are

warranted because of their capacity for substantial military

utility or capability.” 22 CFR 120.19(a) and 121.1(b).

That category covers the following:

14. The trial court’s charge #30 (176) plainly directed

acquittal if the jury was not satisfied beyond a reasonable doubt

that the defendant knew that the items exported were on the

Munitions List and required license. See #42 (187-88) for

Count VII [Commodity Control List, 15 CFR part 399, and 370.3

(a) and 387.3(a)].

Al3

CATEGORY XII-FIRE CONTROL, RANGE FINDER,

OPTICAL AND GUIDANCE AND CONTROL EQUIP-

MENT

*(a) Fire control systems; gun and missile track-

ing and guidance systems:[sic}] military infrared,

image intensifier and other night sighting and night

viewing equipment; military masers and military

lasers; gun laying equipment; range, position and

height finders and spotting instruments; aiming de-

vices (electronic, gyroscopic, optic, and acoustic);

bomb sights, bombing computers, military television

sighting and viewing units, inertial platforms, and

periscopes for the articles of this section.

*(b) Inertial and other weapons or space vehicle

guidance and control systems; spacecraft guidance,

control and stabilization systems; astro compasses; and

star trackers.

(c) Components, parts, accessories, attachments,

and associated equipment specifically designed or mod-

ified for the articles in paragraphs (a) and (b) of

this category, except for such items as are in normal

commercial use. [Italics supplied }"

Appellant contends that the items covered by Counts

I, II, and IV were legitimated as items “in normal com-

mercial use” or at least he could reasonably have thought

so at the time of exportation.

This argument is unpersuasive. It will be noted that

subparagraphs (a) and (b) carry the asterisk, meaning

15. It will be noted that 22 CFR 121.1, Category XII(a)

includes “night viewing equipment” covered in Count I of the

Indictment. Counts II and IV cover “electronic equipment...

for military application” listed in Category XI of the Munitions

List. Count III (TOW missile) is a Category IV item.

Al4

that the items listed therein are deemed to be “significant

military equipment.”

Subsection (c) clearly refers only to components,

parts, accessories, attachments, and associated equipment

designed or modified for use incidental to items in (a) or

(b). Even though not deemed sufficiently significant to

call for an asterisk, they are nonetheless considered as

military items and subject to the export license require-

ment, unless they “are in normal commercial use.” The

exemption from a State Department license is limited,

therfore, to components (not the principal device of which

they form a part), and to components which are in normal

commercial use. The “plain language” of the exception

is so clear that any exporter claiming that the exception

is applicable to the principal items covered by (a) or (b)

does so at his peril.

Appellant likewise argues that it was error to exclude

the opinion of a defense witness, James Rosenlieb, that the

TACAN (tactical air navigation system) included in Count

IV was not listed on the Munitions List (Tr., VIII, 192).

In explaining the reason for his opinion, the witness

stated that if the equipment is used for its original pur-

pose (air-to-air refueling) “there would probably be little

doubt that it would be a... State Department controlled

item” (Tr., VIII, 195).*° He went on to say that to the

extent that the system is used “for ground application of

16. Rebecca Shoemaker, of Rockwell International, the

manufacturer of the equipment, describes its function, and knew

of no non-military use for it. The device gives bearing and

distance by means of air-to-air transmission without need for

a ground station. Tr. IV, 57-58. Bert I. Smith testified sim-

ilarly that the use of the device is for refueling [Tr., IV, 159-60]

and that Gregg asked him to alter documents by eliminating

reference to air-to-air use [Tr., IV, 164].

Al5

non-tactical, non-military nature” it would fall within the

province of the Commerce Department. Inter-agency re-

view would lead to allocation “depending on the end use”

(Tr., VIII, 196).*

It seems clear that exclusion of this testimony was

not harmful error. As set forth previously with regard

to the policy issues referred to in Moller-Butcher, it is a

matter of executive discretion to allow certain reliable

consignees under Commerce Department authority to

handle devices for non-military end-use. The testimony

excluded would not have established any legitimate de-

fense under the circumstances of the case at bar.

Appellant also contends that it was error to permit

a demonstration to the jury of the manner in which a

Tube Launched, Optically Tracked, Wire Command Mis-

sile System (T.O.W.) could be assembled from the com-

ponents charged in Count III to have been exported by

appellant, by combining with those components a launch

tube and simulated warhead which appellant did not sell

or export.

The thrust of this argument is similar to the objection

often made in criminal cases that bullet holes in bloody

clothing, or firearms and the like, are “inflammatory” and

inadmissible. However, the contention is unconvincing

where, as here, the demonstration amd physical evidence

are not pure “grandstanding” or dramatic sideshows, but

logical explanations elucidating the nature and importance

of the components which Gregg did export, and demon-

strating their capability as part of what might be called

17. See also Tr., I, 68 (ordinarily Commerce would yield

to State).

Al6

a “going concern.” One might quip that this is “syner-

gistic” if not “syllogistic” proof.**

With respect to Count VII regarding attempted ex-

portation of a “Laser Nav”, appellant argues that there

was not sufficient evidence to prove every element of the

offense. As discussed previously, the statute requires, and

the trial court’s charge explicitly stated, that to convict

under Count VII the jury must be satisfied beyond a rea-

sonable doubt that, inter alia, appellant acted “with knowl-

edge that the exports [would] be used for the benefit of,

or that the destination or intended destination of the goods

or technology involved [was] ... any country to which

exports are controlled for foreign policy purposes.”

What evidence does the record contain that appellant

Gregg had such knowledge? The Government's brief

(pp. 35-36) is not helpful in pointing to any.”

It would not be necessary to scrutinize the entire

record (although we have done so) in order to conclude

that there is plainly sufficient circumstantial evidence

18. The demonstration at least convincingly negated the

“normal commercial use” argument. Appellant’s brief (p. 30)

does not press that argument in connection with Count III

(citing Tr. VII, 14, which does not appear relevant to that

point).

19. The Government apparently regarded this issue as iden-

tical with that regarding vagueness, and as having been decided

by Moller-Butcher. The Government seems to believe that the

trial court should not have included knowledge of destination

subject to export control as an element of the offense, and argues

that since the instruction was in fact given there was no harm

to appellant. The Government’s position is unsound. The stat-

utory language is specific in requiring such knowledge as an

element of the offense. A verdict of guilty under a proper in-

struction requiring proof of a certain element of the offense

does not supply or create, as if by automatic parthenogenesis,

the necessary evidence to prove that element of the offense.

Such evidence must be contained in the record.

Al7

from which the jury might infer that Gregg knew that

the destination of the Laser Nav was Japan, a country

exports to which required a license.*°

It will be remembered that the Laser Nav was the

item part of which was found in Gregg’s hand-carried

luggage at the Los Angeles airport when he was about

to board Singapore Airlines flight 11 for the Tokyo in-

ternational airport. Tr., V, 76.7* The other portion of

the Laser Nav had been checked through to Tokyo, Tr.

I, 148-51. The fact that Gregg had two sets of paperwork

in his possession for the shipment, stating different values

is also indicative of devious guilty knowledge. Tr., I, 151;

V, 64-65; VII, 74-77. This inference is corroborated by

the fact that Gregg concocted a fictitious “lease” in an ef-

fort to get back the seized equipment.** Tr., V, 34-35, 42,

62-65, 77, 93, 107; VI, 200; VII, 89. It is likewise signifi-

cant that Honeywell jealously guards the Laser Nav against

20. Appellant's brief (pp. 40-41) acknowledges that exports

to Japan “are restricted for foreign policy purposes,” but goes

on to argue that the Japanese are the “good guys” and that the

articles involved would not jeopardize American national secu-

rity (and should be stricken from the list because available

from other sources). This contention (unlike the Government’s

argument as to the need for evidence of knowledge of destina-

tion) does run afoul of the Moller-Butcher principle.

21. A travel agent testified regarding booking Gregg’s itin-

erary from Los Angeles to Tokyo and beyond, and return. Tr.

IV, 153-54.

22. Gregg had a general GTE license (General Temporary

Export) which he contended would permit temporary export

of the Laser Nav for a one year period. Tr., I, 63; V, 83-85.

However, Gregg planned to leave for Japan on January 14, 1984.

According to Terence Haglund, export manager for Honeywell,

it was not until December 21, 1984, that a GTE license was first

allowed to be used for temporary export of an inertial naviga-

tion system. Tr., IV, 192-93. Robert F. Tine, of the Customs

Service, who stopped Gregg as he was getting on the airplane

for Tokyo, testified that neither of the two sets of paperwork

and licenses Gregg had in his possession would authorize export

of the Laser Nav. Tr., V, 65, 106-107.

Al18

the possibility of “reverse engineering” and that Gregg

resorted to subterfuge in procuring the device. Honey-

well’s sales agent was informed that it was to be used

in an airplane owned by Jetex. Tr., IV, 176-81, 183-86;

207.

The contention that there was insufficient evidence

to support a verdict of guilty cannot be accepted.

With respect to Counts VIII and IX, appellant urges

that materiality was not adequately established. Appel-

lant argues that undervaluation of the items being ex-

ported was a negligible or venial violation, since it was

not an element in computing a tax or charge, to the pe-

cuniary detriment of the Government.** However, the

existence vel non of such a pecuniary loss to the Govern-

ment is not the criterion for determining materiality. As

pointed out in U.S. v. Adler, 623 F. 2d 1287, 1291-92 (8th

Cir. 1980), a false document is material if it has a natural

tendency to influence, or is capable of influencing, the

official decision to evoke which defendant tenders it. That

case also makes plain that in this Circuit the question of

materiality is one of law. (623 F.2d at 1292).

Obviously the gross undervaluation in the case at

bar was a stratagem designed to facilitate appellant’s

scheme to get the items out of the country. The record

shows that the customs officials, in the press of business,

are often guided by the declared values as indicia of the

nature of the items being exported.** To use the quip

23. It is of course true, as appellant stresses, that the

valuation data form the basis of statistical compilations. Appel-

lant’s brief, p. 46; Tr., V, 150, 152.

24. See testimony of Daniel O. Hill, of the Commerce

Department, Tr. 1, 51-53, 58; of Paul Tundo, Customs Inspector,

Tr., V, 54-55; of Mark Eisenhauer, Customs Inspector, Tr. V,

a of Harold Blyweiss, of the Commerce Department, Tr.,

, 157.

Al19

of a recent ex-President, it is important whether they are

dealing with “a Ford, not a Lincoln.” The high value of

an item may well indicate that it is sophisticated equip-

ment, important for export control scrutiny by reason of

its capability for military utilization.

Appellant seeks solace in Judge McMillian’s footnote

8 (623 F.2d at 1292), in which Judges Bright and Ross did

not join, that in his view “the better practice is to submit

the materiality issue in this kind of fraud case to the Jury.”

The kind of fraud case involved in Adler was collecting

from Medicare for services not actually performed by a

physician. The issue was not so much the value of the

services, but whether they had ever been furnished by

the doctor. The circumstances relative to that type of

determination might often present some questions of fact

appropriate for resolution by a jury.

But the case at bar is not an example of “this kind

of fraud case”, for purposes of Judge McMillian’s note.

The quantum is the significant feature of the valuation

for export control purposes. It is the figure which “lets

the case out of the bag” and tips off the customs officials

to be alert in their scrutiny of the transaction.

Appellant’s fictitious valuation certainly constitutes

a “trick, scheme, or device” which “conceals or covers

up” a material fact with respect to the nature of the

articles being exported. In count VIII the discrepancy

was between a declared value of $70,739.00 and a true

value of $678,188.80; in Count IX the difference was be-

tween a declared value of $116,616.00 and a true value

of $1,226,160.00.

It would be extremely difficult to regard this falsi-

fication as de minimis.

A20

Finally, appellant contends that there was error in

receiving incoming telex communications without pro-

ducing the author thereof for confrontation and cross-

examination.

There are several grounds warranting the admission

of these documents. In the first place, to the extent

relevant, they are clearly admissible as business records

under Rule 803(b) of the Federal Rules of Evidence

(FRE).

The status of the telexes as records “kept in the

course of a regularly conducted business activity” is not

affected by the fact that particular telex printouts were

obtained by the prosecution by search of trash cans, or

by interception pursuant to court order, or by search

pursuant to a search warrant.

In the second place, insofar as the particular telexes

under attack may have been admitted provisionally, sub-

ject to later connection, as statements of a co-conspirator

during the existence of a conspiracy and in furtherance

thereof,*® under Eighth Circuit law such evidence requires

proof by independent evidence aliunde of the existence

of the conspiracy and of the connection of the defendant

and the declarant with it. U.S. v. Bell, 573 F.2d 1040,

1043-44 (8th Cir. 1978); U.S. v. Macklin, 573 F.2d 1046,

1048 (8th Cir. 1978); U.S. v. Massa, 740 F.2d 629, 637-38

(8th Cir. 1984). Bell sets forth (573 F. 2d at 1044) a

procedure outside the hearing of the jury for an “explicit

determination” regarding the admissibility of the state-

ment. In the case at bar the Bell procedure was duly

followed. Tr., IX, 175-76.

25. Rule 801(d)(2)(E) FRE.

A21

And finally, whether or not particular incoming tel-

exes are treated as statements by coconspirators, we are

satisfied that they are admissible as being merely integral

portions of a reciprocal communication process in order

to interpret and explain in a precise and intelligible fash-

ion the meaning and significance of appellant’s own state-

ments or actions,** which are clearly admissible against

him” as against his self-interest.

From the foregoing review of appellant Werner

Gregg’s assignments of error at trial, we are convinced

that none of them require reversal. Hence, with respect

to both appellants, the judgment of the District Court is

AFFIRMED.

A True Copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

26. For example, an incoming telex from a purchaser re-

questing hand-delivery of certain items might explain Gregg’s

actions at the airport if he were complying with such a request.

Thus, the telex of December 23, 1983, to Gregg from Mr. Harrah

of Kaigai-Bussan in Japan states: “Regarding Hughes products.

We request you to carry items which will be delivered to you

until the date you are leaving from Kansas [City] to Tokyo.”

Gregg replied the same day, “Please be advised that we re-

ceived payment today 12-23-83. Will hand carry items per

your request. Regards, Werner.” Tr., VI, 66-67, 71-72. The

incoming telex would serve to explain both Gregg’s answer and

his actions.

27. See Rule 801(d)(2)(A) FRE.

A22

(Filed February 15, 1986)

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT

OF MISSOURI

WESTERN DIVISION

No. 85-0039-01/02-CR-W-8

UNITED STATES OF AMERICA,

Plaintiff,

VS.

WERNER ERNST GREGG and ROSWITHA L. GREGG,

Defendants.

ORDER

Defendants are married and are the proprietors of

Gregg International, an export/import business in Ray-

town, Missouri. They are charged with violations of

various customs statutes and Internal Revenue Code pro-

visions. Defendants jointly seek to suppress evidence

obtained by: (1) “trash searches” of defendants’ busi-

ness and residence, (2) court-authorized interceptions of

telex communications, (3) checkpoint seizures by customs

agents, (4) statements of defendant Werner Gregg taken

pursuant to a customs search and detention, (5) searches

of defendants’ business and residence pursuant to search

warrants, and (6) statements of defendant Roswitha

Gregg. On June 3-6, 1985, the court held an evidentiary

hearing, and shortly after the hearing the court published

written notice of its intention to deny defendants’ joint

A23

suppression motion in all respects, with a written opinion

to follow. The following is a written memorandum of

the court’s decision.

Trash Searches

In February, 1984, United States Customs agents

reached an agreement with representatives of a trash

collection company for the company to give the agents any

trash collected from defendants’ residence and place of

business. Evidence seized from the trash was used in

support of the affidavits submitted for court-authorized

seizure of defendants’ telex communications. Subsequent

searches of the Greggs’ residence and business, customs

searches, and statements taken from the defendants all

resulted from the initial trash and telex searches. De-

fendants allege that beginning with the trash searches, all

evidence seized from defendants was seized illegally, and

each subsequent seizure resulted from precedent illegal

seizures. Therefore, defendants contend, all evidence

seized from defendants and any evidence derived there-

from must be suppressed.

The following facts regarding the trash searches were

revealed at the evidentiary hearing in this matter. De-

fendants made arrangements for a private trash hauling

company to pick up trash at defendants’ residence and

place of business' on a regular schedule. In February,

1984, Agent Ronald Garrison of the United States Customs

Service informally approached a truck driver for the

private company and reached an agreement whereby the

1. Defendants’ residence and business are both located in

Raytown, Missouri. Defendants used the services of two private

hauling companies during the relevant time period; customs

agents reached the same agreement with both companies to obtain

defendants’ trash.

A24

driver would turn defendants’ business and residence trash

over to customs agents for $20.00 each time the trash was

collected. The agents first would verify that defendants

had placed trash out for collection. A customs agent

would meet the trash hauler and give him bags for the

defendants’ residence or business trash, the trash hauler

would pick up defendants’ trash, place it in the agent’s

bags, and then turn the trash over to the agent at a point

near defendants’ business or residence.

The trash at defendants’ residence normally was left

for collection in a plastic bag within a plastic receptacle

left at the curbside of defendants’ residence. The trash

at defendants’ business normally was left for collection

in a plastic bag within a plastic receptacle located outside

and adjacent to the back door of the business, approxi-

mately twenty-five to thirty-five feet from the street.

The customs agents did not at any time contact the owners

of the private trash companies; they relied on an informal

agreement with the trash haulers. No search warrant

was ever obtained for a trash search. Agents seized and

searched defendants’ residence and business trash on a

regular basis from February 7, 1984 until September 11,

1984.

The court finds that defendants did not have a legiti-

mate expectation of privacy in the trash picked up from

their residence and business, and there was no fourth

amendment violation in the seizure and search of their

trash. In United States v. Michaels, 726 F.2d 1307 (8th

Cir.), cert. denied, 105 S. Ct. 92 (1984), the court of ap-

peals stated:

Those circuits that have considered the issue of

whether a person has a legitimate expectation of

privacy in trash placed for collection in a public area,

A25

in close proximity to a public way, or in an outdoors

communal trash container serving an apartment build-

ing, have consistently denied fourth amendment re-

lief.

Id. at 1312 (citations omitted).

Furthermore, in United States v. Biondich, 652 F.2d

743 (8th Cir.), cert. denied, 454 U.S. 975 (1984), the court

of appeals held:

A person ordinarily retains some expectation of pri-

vacy in items that remain on his or her property,

regardless of whether they are placed in an automo-

bile, a home, or a garbage can. When a person makes

arrangements with a sanitation service to have the

items picked up, however, and when the items are

placed in the designated place for collection and the

regular collector makes the pickup in the usual man-

ner on the scheduled collection day, the person loses

his or her legitimate expectation of privacy in the

items at the time they are taken off his or her prem-

ises.

Id. at 745.

The instant facts fall squarely within the Biondich

rationale. Defendants made arrangements for a private

company to pick up their business and residence trash in

a regularly designated place at a regularly scheduled time.

Evidence produced at the evidentiary hearing showed

that the trash haulers picked up defendants’ trash on a

regular schedule, transported it away from defendants’

business or residence, and the customs agents then re-

ceived the trash at a point removed from defendants’

property. Defendants lost any legitimate expectation of

privacy in the trash at the time it was removed from their

residence or business premises.

A26

Defendants also argue that their freedom of thought

and right of privacy was violated by the trash searches.

In brief, defendants argue that they have a right to have

their private, unexpressed written “thoughts” protected

from public observation. As stated previously, defen-

dants lost any constitutional expectation of privacy in

their seized trash items when the items were removed

from the business or residence premises. Defendants mo-

tion to suppress items seized in the trash searches of their

business and residence is denied.

Telex Searches

In the trash pickups, customs agents found telexes

transmitted between Gregg International and its cus-

tomers. Telex is defined as “a communication system

consisting of teletypewriters connected to a telephone net-

work to send and receive signals.” The American Her-

itage Dictionary of the English Language, 1324 (1981).

George Byram, a former employee of Gregg International,

told Customs Agent Garrison in an interview that the

business primarily communicated with its overseas busi-

ness customers by telex. Garrison stated at the eviden-

tiary hearing that a review of the telexes found in the

trash indicated that they related to business of Gregg

International and not personal matters of the Greggs.

On March 19, 1984, the government applied for au-

thorization to intercept the telex communications of Gregg

International. March 19, 1984, Magistrate Calvin Hamilton

authorized the telex interception for a thirty-day period,

and the authorization was extended for additional thirty-

day periods on April 30, 1984, May 24, 1984, and June 28,

1984. Customs agents obtained space in a building across

the street from Gregg International and installed a printer

A27

which would print out all telex communications of Gregg

International. The phone company installed an access

line from the Greggs’ communication line to the govern-

ment printer. The printer gave agents two copies of each

telex communication; Agent Garrison would seal one copy

and work with the other copy. On June 10, 1984, the

government moved their copier to the offices of RCA

Global Communications in Overland Park, Kansas. RCA

Global was the international communications link for the

Greggs’ telex messages. The printer remained at RCA

Global until the interceptions ceased on June 30, 1984.

The agents did not monitor the printer constantly, but

checked the printer on a regular basis for any trans-

missions.

Defendants challenge the legality of the telex inter-

ceptions on several bases. First, defendants argue that

the telex interceptions should have complied with the

requirements of Title III of the Omnibus Crime Control

and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq.

The government argues that Title III does not apply to

telex interceptions, and the government contends it prop-

erly sought authorization for the telex interceptions pur-

suant to Fed. R. Crim. P. 41(b).

The applicability of Title III to interception of telex

communications appears to be a question of first impres-

sion. Title III regulates the “interception of wire or oral

communications.” 18 U.S.C. §§ 2516(1), 2518(1). “Inter-

cept” is defined as the aural acquisition of the contents

of any wire or oral communication through the use of

any electronic, mechanical, or other device.” 18 U.S.C.

§ 2510(4) (emphasis added). Title III does not define

“aural acquisition,” but it has been stated that “an ‘aural

acquisition’ by definition engages the sense of hearing.”

A28

Application of the United States for an Order Authorizing

Installation & Use of a Pen Register, 546 F.2d 243, 245

(8th Cir. 1976), cert. denied, 434 U.S. 1008 (1978), citing

United States v. Falcone, 505 F.2d 478, 482 (3rd Cir.

1974), cert. denied, 420 U.S. 955 (1975). “Contents” are

defined to include “any information concerning the iden-

tity of the parties to such communication or the exis-

tence, substance, purport, or meaning of that communi-

cation.” 18 U.S.C. § 2510(8).

The applicability of Title III to the instant telex

interceptions hinges on whether the interceptions involved

the “aural acquisition” of the telex messages, since the

“contents” of these wire communications clearly were

obtained. “[T]he legislative history indicates neither

what Congress meant by ‘aural’ nor why the word was

written into the statute.” United States v. Seidlitz, 589

F.2d 152, 157-n.4 (4th Cir. 1978), cert. denied, 441 U.S.

922 (1979).? In the absence of specific legislative guid-

ance, the court must look to the most analogous commu-

nications interceptions and compare them with the method

of telex interception.

In United States v. New York Telephone Co., 434

U.S. 159 (1977), the Supreme Court held that Title III

does not apply to telephone pen registers because the

registers only decode electrical phone line impulses; the

registers “do not hear sound” and therefore “do not ac-

complish the ‘aural acquisition’ of anything.” Id. at 167.

More importantly, the court further stated that the pen

2. Contra Hoosier Home Theater, Inc. v. Adkins, 595 F.

‘Supp. 389, 395-96 (S.D. Ind. 1984) (The legislative history

establishes that the intent of Title III “was to proscribe eaves-

dropping on ‘oral conversations (otherwise) made in private,

without the consent of any of the parties to such communica-

tions.’””) (emphasis in original).

A29

registers “present the information in a form to be inter-

preted by sight rather than hearing.” Id.

In United States v. Seidlitz, supra, the United States

Court of Appeals for the Fourth Circuit considered the

applicability of Title III to interception of communication

between two computer systems via telephone lines. In

rejecting the applicability of Title III, the court stated:

We find no merit in the defendant’s suggestion that,

in the absence of either a statutory definition of the

word “aural” or of legislative history to indicate that

Congress even considered the relationship of Title

III to computer systems, we should ignore the plain

meaning of the term “aural” and should hold that,

regardless of whether a device detects sound, its abil-

ity to interpret the substance of a transmission brings

it within the restrictions of the statute. Canons of

statutory construction require that we attribute to

legislatively undefined words their commonly ac-

cepted meaning and that we give effect to what must

be presumed to have been the purposeful inclusion

in the legislation of a qualifying term such as “aural”

which restricts the statute’s scope.

589 F.2d at 157 (footnotes omitted).

In United States v. Torres, 751 F.2d 875 (7th Cir.

1984), cert denied, 105 S. Ct 1853 (1985), the court of

appeals considered the applicability of Title III to tele-

vision surveillance which involved visual transmissions

without any audio interception. The court observed that

“secretly televising people . . . while they are in what

they think is a private place is an even greater intrusion

on privacy than secretly recording their conversations.”

Id. at 878. Nevertheless, the court found Title III inap-

A30

plicable and stated that “a visual observation is in no pos-

sible sense an ‘aural acquisition.’” Id. at 880.

The court finds that the telex interceptions did not

involve the “aural acquisition” of defendants’ communi-

cations; therefore, Title III is inapplicable to the inter-

ceptions. The interceptions at issue did involve acquisi-

tion of the telex analog “sounds” that were transmitted

by wire; however, this interception simply is not the type

of “aural acquisition” within the purview of Title III.

If Congress had intended for Title III to encompass all

communications in which the contents of the communi-

cations were intercepted, it would have said so. How-

ever, the court believes the term “aural acquisition” was

added to limit Title III specifically to those interceptions

that were “overheard,” i.e., involve the sense of actually

hearing the conversation. If Congress views telex inter-

ceptions and other similar interceptions as posing the

same privacy invasions as wiretaps, it should expressly

bring them within the purview of Title III; the court will

not do so through unsupported statutory construction. The

printed telex messages intercepted by the government do

not fall within the purview of Title III.*

3. The court agrees with Judge Posner’s observation in

United States v. Torres that it is anomalous to have detailed

statutory regulation of bugging and wiretapping but not of other

intrusive interceptions such as video surveillance and the telex

interceptions at issue. See 751 F.2d at 885. Nevertheless, the

court concurs with Judge Posner’s conclusion that

[w]hen Congress has indicated the domain of a statute as

clearly as it did when it enacted Title III, we cannot apply

the statute outside its domain merely because we are con-

fident that if Congress had known then what we know now

it would have used more general language. Congress said

in language that could not be clearer that Title III is about

the interception of wire and oral communications and that

interception means aural acquisition.

Id. at 886 (emphasis in original).

A31

Defendants further argue that the telex interceptions

violated 47 U.S.C. § 605.4 The court finds, however, that

section 605 is inapplicable in the present case. The stat-

ute is expressly limited to radio communications. Though

some of defendants’ telex communications were trans-

mitted in part by satellite or microwave links, they are

4. Section 605 provides:

Except as authorized by chapter 119, Title 18, no person

receiving, assisting in receiving, transmitting, or assisting

in transmitting, any interstate or foreign communication by

wire or radio shall divulge or publish the existence, con-

tents, substance, purport, effect, or meaning thereof, except

through authorized channels of transmission or reception,

(1) to any person other than the addressee, his agent, or

attorney, (2) to a person employed or authorized to forward

such communication to its destination, (3) to proper ac-

counting or distribuiing officers of the various communi-

cating centers over which the communication may be passed,

(4) to the master of a ship under whom he is serving,

(5) in response to a subpoena issued by a court of com-

petent jurisdiction, or (6) on demand of other lawful au-

thority. No person not being authorized by the sender

shall intercept any radio communication and divulge or

publish the existence, contents, substance, purport, effect,

or m2aning of such intercepted communication to any per-

son. No person not being entitled thereto shall receive or

assist in receiving any interstate or foreign communication

by radio and use such communication (or any information

therein contained) for his own benefit or for the benefit

of another not entitled thereto. No person having received

an intercepted radio communication or having become ac-

quainted with the contents, substance, purport, effect, or

meaning of such communication (or any part thereof)

knowing that such communication was intercepted, shall

divulge or publish the existence, contents, substance, pur-

port, effect, or meaning of such communication (or any

part thereof) or use such communication (or any informa-

tion therein contained) for his own benefit or for the benefit

of another not entitled thereto. This section shall not apply

to the receiving, divulging, publishing, or utilizing the con-

tents of any radio communication which is transmitted by

any station for the use of the general public, which relates

to ships, aircraft, vehicles, or persons in distress, or which

is transmitted by an amateur radio station operator or by

a citizens band radio operator.

A32

still considered wire communications by statute’ and not

radio communications, thus section 605 is inapplicable.

See United States v. Clegg, 509 F.2d 605, 611-12 (5th Cir.

1975).

Defendants further argue that the telex interceptions

violated the Foreign Intelligence Surveillance Act of 1978,

50 U.S.C. § 1801 et seg. The government has not sug-

5.

18 U.S.C. § 2510(1).

6. Section 1801 provides the following definitions:

(a)

(b)

‘Foreign power’ means—

(1) a foreign government or any component thereof,

whether or not recognized by the United States;

(2) a faction of a foreign nation or nations, not sub-

stantially composed of United States persons;

(3) an entity that is openly acknowledged by a foreign

government or governments to be directed and con-

trolled by such foreign government or governments;

(4) a group engaged in international terrorism or activ-

ities in preparation therefor;

(5) a foreign-based political organization, not substan-

tially composed of United States persons; or

(6) an entity that is directed and controlled by a

foreign government or governments.

‘Agent of a foreign power’ means—

(1) any person other than a United States person,

who—

(A) acts in the United States as an officer or employee

of a foreign power, or as a member of a foreign power

as defined in subsection (a)(4) of this section;

(B) acts for or on behalf of a foreign power which

engaged in clandestine intelligence activities in the

United States contrary to the interests of the United

States, when the circumstances of such person’s presence

in the United States indicate that such person may

engage in such activities in the United States, or when

such person knowingly aids or abets any person in the

conduct of such activities or knowingly conspires with

any person to engage in such activities; or

(Continued on following page)

A33

gested at any time, however, that defendants have acted

as agents of a foreign power as defined in section 1801;

furthermore, defendants have not shown that they come

within the definition or that the government has attempted

to bring them within this act. Therefore, the Foreign In-

telligence Surveillance Act is inapplicable.

Finally, defendants argue that the telex interceptions

did not meet the requirements of the fourth amendment

or Fed. R. Crim. P. 41. In particular, defendants assert

that electronic surveillance may not be authorized pur-

suant to Rule 41, that “intangible” property such as telex

communications is not within the scope of Rule 41, that

the telex warrants did not comply with the provisions of

Rule 41(c), and that the warrants did not meet the prob-

able cause requirements of the fourth amendment.

The court finds that the Magistrate properly autho-

rized the telex interceptions pursuant to Rule 41(b). The

rule authorizes the issuance of a warrant to:

Footnote continued—

(2) any person who—

(A) knowingly engages in clandestine intelligence

gathering activities for or on behalf of a foreign power,

which activities involve or may involve a violation of

the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service

or network of a foreign power, knowingly engages in

any other clandestine intelligence activities for or on

behalf of such foreign power, which activities involve

or are about to involve a violation of the criminal

statutes of the United States;

(C) knowingly engaged in sabotage or international

terrorism, or activities that are in preparation therefor,

or on behalf of a foreign power; or

(D) knowingly aids or abets any person in the conduct

of activities described in subparagraph (A), (B), or

(C) or knowingly conspires with any person to engage

in activities described in subparagraph (A), (B), or

(C).

A34

search for and seize any (1) property that constitutes

evidence of the commission of a criminal offense; or

(2) contraband, the fruits of crime, or things other-

wise criminally possessed; or (3) property designed

or intended for use or which is or has been used as

the means of committing a criminal offense; or (4)

person for whose arrest there is probable cause, or who

is unlawfully restrained.

Rule 57(b), before its amendment in 1985, provided:

If no procedure is specifically prescribed by rule, the

court may proceed in any lawful manner not incon-

sistent with these rules or with any applicable statute.

The search authorization provided in these rules is

undoubtedly broad enough to encompass the telex inter-

ceptions at issue. Cf. United States v. New York Tele-

phone Co., 434 U.S. at 168-170 (Rule 41 is sufficiently

flexible to include electronic intrusions authorized upon a

finding of probable cause; citing Katz v. United States, 389

U.S. 347, 354-56 (1967)). The court finds that the war-

rants were properly issued pursuant to Rule 41(b) and

complied in all respects with the requirements of Rule

41(c).

The court further finds that probable cause existed

for the telex warrants to issue based on the supporting

affidavits, and that the warrants meet the particularity

requirements of the fourth amendment. Defendants failed

to show at the evidentiary hearing that the supporting

affidavits of Customs Agent Garrison contained deliberate

falsehoods or reckless misstatements; the affidavits clearly

provided probable cause for authorization of the telex

searches. Furthermore, the affidavits were sufficiently

particular to pass constitutioal scrutiny. Defendants’ most

A35

cogent argument regarding particularity is their assertion

that the warrants’ authorization of interception of all of

defendants’ business communications is improper, and that

the intercepted communications should have been mini-

mized as required for interceptions authorized under

Title III. Defendants attempted to show at the evidentiary

hearing that the telex machine could have been “pro-

grammed” to intercept only certain desired messages re-

garding designated business customers, thereby minimiz-

ing the required interceptions. The government argues

that Gregg International was a business “permeated”

with criminal activity, thus interception of all business-

related telexes was proper.

While the telex warrants were indiscriminate in the

respect that all communications were seized, the court

does not believe that such a comprehensive seizure con-

stitutes a per se fourth amendment violation. It can be

conceded that the telex search at issue was less discriminat-

ing than a standard physical search; however, the telex

search is more discriminating than bugs or wiretaps which

intercept all conversations, be they business or private.

Evidence produced at the evidentiary hearing showed that

the telex machine was used almost exclusively for busi-

ness purposes and that probable cause existed to believe

that the defendants’ business was permeated with criminal

activity. Given these circumstances, seizure of all telex

communications by Gregg International is not so random

or indiscriminate as to constitute a fourth amendment

violation. Defendants’ argument fails.

A36

Customs Searches

Defendants challenge three separate warrantless

seizures by customs agents of items belonging to defen-

dants.’ The searches plainly were border searches which

are not subject to the warrant provisions of the fourth

amendment and are reasonagle within the terms of the

amendment. See United States v. Ramsey, 431 U.S. 606,

616-18 (1977). Defendants’ cited authorities are disting-

uishable on the facts and law, and no further discussion

is required.

Statements of Werner Gregg

Defendants seek to suppress three statements taken

by customs agents from defendant Werner Gregg. The

first statement was taken by Special Agent Robert Tine

on June 25, 1984, at the Los Angeles, California, airport.

Evidence produced at the evidentiary hearing regarding

this statement established that Agent Garrison in Kansas

City contacted Agent Tine in Los Angeles and informed

Tine that Gregg would be leaving for Tokyo, Japan, on

a designated flight with unlicensed electronic equipment

in his carry-on luggage. Agent Tine and other agents

detained Gregg at the jetway entrance to the Tokyo flight.

Agent Tine identified himself, asked Mr. Gregg if he

would agree to make a statement, and Mr. Gregg agreed.

Gregg was taken to the customs office of the Los Angeles

airport, where he gave a forty-five-minute statement to

Agent Tine in the presence of other agents.

7. On June 25, 1984, items were seized from Werner Gregg’s

luggage at the Los Angeles, California airport; on April 29, 1984,

items were seized in packages at the Chicago, Illinois airport;

on August 24, 1984, an item was seized from a package at the

Los Angeles airport.

A37

The second statement occurred on August 21, 1984,

when Agents Garrison and Tine visited Werner Gregg

at his business in Raytown, Missouri. Agent Tine indi-

cated he wished to discuss the item seized at the Los

Angeles airport and Gregg’s petition to get the item back

from the customs service. Gregg agreed to make a tape

recorded statement in his office. The third statement

at issue is an August 3, 1984, statement by Werner Gregg

made in a phone conversation with an undercover cus-

toms agent in New York, New York. The focus of de-

fendants’ and the government’s briefing and evidence has

been on the first two statements.

Gregg was not placed under arrest at the time any

of the statements were taken, nor was he given Miranda

warnings at any time. Furthermore, Gregg was not in-

formed that he was the subject of a customs investigation.

Defendants allege that the statements at the Los Angeles

airport were taken in a custodial setting and Miranda

warnings should have been given. Defendants further

argue that Gregg’s statement at his Raytown business

should be suppressed as “fruit of the poisonous tree’:

i.e., a result of the Los Angeles statement.

In Rhode Island v. Innis, 446 U.S. 291 (1980), the

Supreme Court stated:

[T]he Miranda safeguards come into play whenever

a person in custody is subjected to either express

questioning or its functional equivalent. That is to

say, the term ‘interrogation’ under Miranda refers

not only to express questioning, but also to any words

or actions on the part of the police (other than those

normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an

A38

incriminating response from the suspect. The latter

portion of this definition focuses primarily upon the

perceptions of the suspect, rather than the intent of

the police. This focus reflects the fact that the

Miranda safeguards were designed to vest a suspect

in custody with an added measure of protection

against coercive police practices, without regard to

objective proof of the underlying intent of the police.

A practice that the police should know is reasonably

likely to evoke an incriminating response from a sus-

pect thus amounts to interrogation. But, since the

police surely cannot be held accountable for the un-

foreseeable results of their words or actions, the

definition of interrogation can extend only to words

or actions on the part of police officers that they

should have known were reasonably likely to elicit

an incriminating response.

Id. at 300-02 (footnotes omitted).

The statement taken from Werner Gregg at the Los

Angeles airport was given freely and openly, and from

the “totality of the circumstances” it is clear that Gregg

was free to leave at any time and was not subject to

coercive tactics which he could have perceived as custo-

dial interrogation. The statement given by Gregg at his

Raytown office also was given voluntarily and without

any circumstances which could be construed as custodial

interrogation. Regarding the third statement, defendants

have not made any showing that the statement made

to an undercover agent was made in a custodial setting.

The Miranda safeguards did not come into play in any

of the circumstances at issue, and suppression of the

statements is not required.

A39

Search of Defendants’ Business and Residence

On September 13, 1984, pursuant to search warrants,

customs agents and other law enforcement officials seized

business records, telexes, and other documents from de-

fendants’ business, and documents and an automobile frorn

defendants’ residence. Defendants argue that probable

cause did not exist for the issuance of the warrants, that

the warrants did not particularly describe the items to

be seized, that the language of the warrants was over-

broad, that unauthorized persons participated in the

searches, and that the searches were “general searches’’

not authorized by the warrants.

Extensive evidence was introduced at the evidentiary

hearing regarding the search warrants themselves, the

persons who conducted the searches, the manner in which

the searches were conducted, and the items that were

seized. A review of the affidavits submitted by Customs

Agent Garrison in support of the search warrant applica-

tions reveals no deliberately false statements or reckless

misstatements which would invalidate the warrants. The

affidavits and supporting materials provided probable

cause for the Magistrate to issue the search warrants.

The warrants described with sufficient particularity

the items to be seized. The language of a warrant must

be sufficiently definite to allow the searcher reasonably

to ascertain and identify the items to be seized. Stede

v. United States, 267 U.S. 498, 503-04 (1925). The war-

rant’s description of the documents to be seized from

defendants’ residence and business was sufficiently definite

for the searching agents to determine the items to be

A40

seized.2 Furthermore, the language was not overbroad.

The primary searchers were customs agents who were

informed regarding the documents to be seized and had

adequate training to enable them to identify the described

documents.

The search was not a general search. Thousands of

documents were seized, but the seizure was not overbroad

given the large quantity of documents generated by the

business and the suspected breadth of the business’s crim-

inal activity. The search was conducted in an orderly

manner with the intrusion minimized by the agents to

the greatest extent possible. In addition, there is no evi-

dence that unauthorized individuals or any individuals

who were not law enforcement officers participated in

the searches. The searches for and seizures of documents

were conducted by trained government agents who were

assisted by Raytown, Missouri police officers in maintain-

ing order and removing documents during the search. De-

fendants’ motion to suppress items seized from defendants’

residence and business is denied.

Statement of Roswitha Gregg

At the evidentiary hearing, defendants moved to sup-

press statements allegedly made by Roswitha Gregg dur-

ing the search of the Greggs’ business and residence. Cus-

8. The warrant provided that the following items could

be seized:

documents that consist of sales, invoices, shipping papers,

purchase orders, correspondence, payment records, and tel-

exes relating to the purchase, sale, storage, transportation

and financing of merchandise exported or to be exported

from the United States in violation of the United States

Export Administration Regulations, Parts 371, 372, 373, 386,

387 and Titles 22 USC 2778, 50 USC 1702, 50 USC 1705

and Presidential Executive Order 12470 of March 30, 1984.

A4l

toms Agent Thomas King testified that during the search

of the Greggs’ residence, and while inside the residence,

Mrs. Gregg stated, “Why are you doing this when he is

not here. Now they will think I made all the mistakes.”

King testified that Mrs. Gregg was not detained nor was

she being interrogated when the statement was made, and

he stated that Mrs. Gregg simply volunteered the state-

ment without any prompting or response by the searchers.

Customs Agent Curtis Fair testified that while Mrs. Gregg

was at Gregg International during the initial stages of the

business search, he overhead a statement made by Mrs.

Gregg during a telephone conversation. Fair testified

that Mrs. Gregg stated, “They are going to search the

house. If they do they will find the old records that will

hang him.” Fair testified that Mrs. Gregg was not under

interrogation when the statement was made, and no ques-

tions were asked of Mrs. Gregg by agents after the state-

ment.

As with the statements of Werner Gregg, the court

finds from the totality of the circumstances that the state-

ments of Roswitha Gregg were not made during custodial

interrogation. Miranda warnings were not given to Mrs.

Gregg, and she may have felt a personal compulsion to

remain at the business and residence during the searches;

however, it is clear that the statements were volunteered

by Mrs. Gregg when she was not under any compulsion

to remain in the search area. Most importantly, law en-

forcement officials in no way engaged in actions designed

to elicit statements from Mrs. Gregg; her statements did

not result from interrogation as defined in Rhode Island

v. Innis. Defendants’ motion to suppress these statements

is denied.

For the reasons stated, it is

A42

ORDERED that defendants’ joint motion to suppress

evidence is denied.

/s/ Joseph E. Stevens, Jr.

Joseph E. Stevens, Jr.

United States District Judge

February 15th, 1986

A43

(Dated October 30, 1987)

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 86-1572/1787/87-1622-WM

United States of America,

Appellee,

vs.

Werner Ernst Gregg, et al.,

Appellants.

Appeals from the United States District Court for the

Western District of Missouri

Appellants’ petition for rehearing has been considered

by the Court and is hereby denied.

October 30, 1987

Order Entered at the Direction of the

Court:

/s/ Robert D. St. Vrain

Clerk, United States Court of

Appeals, Eighth Circuit

A44

CONSTITUTIONAL PROVISIONS

United States Constitution Amendment IV:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

United States Constitution Amendment V:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to

be twice put in jeopardy of life or limb, nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property

without due process of law; nor shall private property

be taken for public use, without just compensation.

United States Constitution Amen#ment VI:

In ail criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted

with the witnessses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counse] for his defence.

A45

18 U.S.C. § 2518. Procedure for interception of wire,

oral, or electronic communications.

(1) Each application for an order authorizing or

approving the interception of a wire, oral, or electronic

communication under this chapter shall be made in writing

upon oath or affirmation to a judge of competent juris-

diction and shall state the applicant’s authority to make

such application. Each application shall include the fol-

lowing information:

(a) the identity of the investigative or law en-

forcement officer making the application, and the

officer authorizing the application;

(b) a full and complete statement of the facts

and circumstances relied upon by the applicant. ‘+o

justify his belief that an order should be issued, in-

cluding (i) details as to the particular offense that

has been, is being, or is about to be committed, (ii)

except as provided in subsection (11), a particular

description of the nature and location of the facilities

from which or the place where the communication

is to be intercepted, (iii) a particular description

of the type of communications sought to be inter-

cepted, (iv) the identity of the person, if known,

committing the offense and whose communications

are to be intercepted;

(c) a full and complete statement as to whether

or not other investigative procedures have been tried

and failed or why they reasonably appear to be un-

likely to succeed if tried or to be too dangerous;

(d) a statement of the period of time for which

the interception is required to be maintained. If the

A46

nature of the investigation is such that the authoriza-

tion for interception should not automatically ter-

minate when the described type of communication

has been first obtained, a particular description of

facts establishing probable cause to believe that addi-

tional communications of the same type will occur

thereafter;

(e) a full and complete statement of the facts

concerning all previous applications known to the

individual authorizing and making the application

made to any judge for authorization to intercept, or

for approval of interceptions of, wire, oral, or elec-

tronic communications involving any of the same per-

sons, facilities or places specified in the application,

and the action taken by the judge on each such

application; and

(f{) where the application is for the extension of

an order, a statement setting forth the results thus

far obtained from the interception, or a reasonable

explanation of the failure to obtain such results.

(2) The judge may require the applicant to furnish

additional testimony or documentary evidence in support

of the application.

(3) Upon such application the judge may enter an

ex parte order, as requested or as modified, authorizing

or approving interception of wire, oral, or electronic com-

munications within the territorial jurisdiction of the court

in which the judge is sitting (and outside that jurisdiction

but within the United States in the case of a mobile inter-

ception device authorized by a Federal court within such

jurisdiction), if the judge determines on the basis of the

facts submitted by the applicant that—

A47

(a) there is probable cause for belief that an

individual is committing, has committed, or is about

to commit a particular offense enumerated in section

2516 of this chapter;

(b) there is probable cause for belief that par-

ticular communications concerning that offense will

be obtained through such interception;

(c) normal investigative procedures have been

tried and have failed or reasonably appear to be un-

likely to succeed if tried or to be too dangerous;

(d) except as provided in subsection (11), there

is probable cause for belief that the facilities from

which, or the place where, the wire, oral, or electronic

communications are to be intercepted are being used,

or are about to be used, in connection with the com-

mission of such offense, or are leased to, listed in the

name of, or commonly used by such person.

(4) Each order authorizing or approving the inter-

ception of any wire, oral, or electronic communication

under this chapter shall specify—

(a) the identity of the person, if known, whose

communications are to be intercepted;

(b) the nature and location of the communica-

tions facilities as to which, or the place where, au-

thority to intercept is granted;

(c) a particular description of the type of com-

munication sought to be intercepted, and a statement

of the particular offense to which it relates;

(d) the identity of the agency authorized to in-

tercept the communications, and of the person autho-

rizing the application; and

A48

(e) the period of time during which such inter-

ception is authorized, including a statement as to

whether or not the interception shall automatically

terminate when the described communication has been

first obtained.

An order authorizing the interception of a wire, oral, or

electronic communication under this chapter shall, upon

request of the applicant, direct that a provider of wire

or electronic communication service, landlord, custodian

or other person shall furnish the applicant forthwith all

information, facilities, and technical assistance necessary

to accomplish the interception unobtrusively and with a

minimum of interference with the services that such ser-

vice provider, landlord, custodian, or person is according

the person whose communications are to be intercepted.

Any provider of wire or electronic communication ser-

vice, landlord, cutodian or other person furnishing such

facilities or technical assistance shall be compensated

therefor by the applicant for reasonable expenses incurred

in providing such facilities or assistance.

(5) No order entered under this section may au-

thorize or approve the interception of any wire, oral,

or electronic communication for any period longer than

is necessary to achieve the objective of the authorization,

nor in any event longer than thirty days. Such thirty-

day period begins on the earlier of the day on which the

investigative or law enforcement officer first begins to

conduct an interception under the order or ten days after

the order is entered. Extensions of an order may be

granted, but only upon application for an extension made

in accordance with subsection (1) of this section and the

court making the findings required by subsection (3) of

A49

this section. The period of extension shall be no longer

than the authorizing judge deems necessary to achieve

the purposes for which it was granted and in no event

for longer than thirty days. Every order and extension

thereof shall contain a provision that the authorization

to intercept shall be executed as soon as practicable, shall

be conducted in such a way as to minimize the intercep-

tion of communications not otherwise subject to inter-

ception under this chapter, and must terminate upon

attainment of the authorized objective, or in any event

in thirty days. In the event the intercepted communica-

tion is in a code or foreign language, and an expert in

that foreign language or code is not reasonably available

during the interception period, minimization may be ac-

complished as soon as practicable after suci interception.

An interception under this chapter may be conducted

in whole or in part by Government persornel, or by an

individual operating under a contract with the Govern-

ment, acting under the supervision of an investigative

or law enforcement officer authorized to conduct the

interception.

(6) Whenever an order authorizing interception is

entered pursuant to this chapter, the order may require

reports to be made to the judge who issted the order

showing what progress has been made toward achievement

of the authorized objective and the need for continued

interception. Such reports shall be made at such intervals

as the judge may require.

A50

22 U.S.C. § 2778. Control of arms exports and im-

ports

(a) (1) In furtherance of world peace and the security

and foreign policy of the United States, the President is

authorized to control the import and the export of defense

articles and defense services and to provide foreign policy

guidance to persons of the United States involved in the

export and import of such articles and services. The Pres-

ident is authorized to designate those items which shall

be considered as defense articles and defense services for

the purposes of this section and to promulgate regulations

for the import and export of such articles and services. The

items so designated shall constitute the United States Mu-

nitions List.

(2) Decisions on issuing export licenses under this

section shall be made in coordination with the Director of

the United States Arms Control and Disarmament Agency

and shall take into account the Director’s opinion as to

whether the export of an article will contribute to an arms

race, increase the possibility of outbreak or escalation of

conflict, or prejudice the development of bilateral or multi-

lateral arms control arrangements.

(b)(1) As prescribed in regulations issued under this

section, every person (other than an officer or employee

of the United States Government acting in an official ca-

pacity) who engages in the business of manufacturing,

exporting, or importing any defense articles or defense

services designated by the President under subsection (a)

(1) of this section shall register with the United States

Government agency charged with the administration of

this section, and shall pay a registration fee which shall

be prescribed by such regulations. Such regulations shall

prohibit the return to the United States for sale in the

A51

United States (other than for the Armed Forces of the

United States and its allies or for any State or local law

enforcement agency) of any military firearms or ammuni-

tion of United States manufacture furnished to foreign

governments by the United States under this chapter or

any other foreign assistance or sales program of the United

States, whether or not enhanced in value or improved in

condition of a foreign country. This prohibition shall not

extend to similar firearms that have been so substantially

transformed as to become, in effect, articles of foreign

manufacture.

(2) Except as otherwise specifically provided in reg-

ulations issued under subsection (a)(1) of this section,

no defense articles or defense services designated by the

President under subsection (a)(1) of this section may

be exported or imported without a license for such export

or import, issued in accordance with this chapter and reg-

ulations issued under this chapter, except that no license

shall be required for exports or imports made by or for

an agency of the United States Government (A) for of-

ficial use by a department or agency of the United States

Government, or (B) for carrying out any foreign assis-

tance or sales program authorized by law and subject to

the control of the President by other means.

(3) No license may be issued under this chapter for

the export of any major defense equipment sold under a

contract in the amount of $25,000,000 or more to any foreign

country which is not a member of the North Atlantic Treaty

Organization unless such major defense equipment was

sold under this chapter. The prohibition contained in the

first sentence of this paragraph shall not apply to the

issuance of licenses under this section for the export of

major defense equipment to Australia, Japan, or New Zea-

land, or major defense equipment sold commercially in

A52

implementation of an agreement between the United

States Government and the government of a foreign coun-

try for the production of the major defense equipment to

which such licenses relate if the President has submitted

a certificate with respect to such proposed agreement, prior

to its signature, to the Speaker of the House of Representa-

tives and to the chairman of the Committee on Foreign

Relations of the Senate in the same form as the certifica-

tion required under section 2776 (b) of this title and sub-

ject to the requirements of such section.

(c) Any person who willfully violates any provision

of this section or section 2779 of this title, or any rule or

regulation issued under either section, or who willfully,

in a registration or license application or required report,

makes any untrue statement of a material fact or omits

to state a material fact required to be stated therein or

necessary to make the statements therein not misleading,

shall upon conviction be fined not more than $100,000

or imprisoned not more than two years, or both.

(d) This section applies to and within the Canal Zone.

(e) In carrying out functions under this section with

respect to the export of defense articles and defense ser-

vices,-the President is authorized to exercise the same

powers concerning violations and enforcement which are

conferred upon departments, agencies and officials by

sections 6(c), (d), (e), and (f) and 7(a) and (c) of the

Export Administration Act of 1969, subject to the same

terms and conditions as are applicable to such powers

under such Act. Nothing in this subsection shall be con-

strued as authorizing the withholding of information from

the Congress.

Pub.L. 90-629, Ch. 3, § 38, as added Pub.L. 94-329, Title IT,

§ 212(a)(1), June 30, 1976, 90 Stat. 744, and amended

Pub.L. 95-92, § 20, Aug. 4, 1977, 91 Stat. 623.

A53

50 App. U.S.C. § 2410

VIOLATIONS

(a) In GENERAL.—Except as provided in subsection

(b) of this section, whoever knowingly violates any pro-

vision of this Act or any regulation, order, or license

issued thereunder shall be fined not more than five times

the value of the exports involved or $50,000, whichever

is greater, or imprisoned not more than 5 years, or both.

(b) WILLFUL VIoLATIONS.—(1) Whoever willfully

exports anything contrary to any provision of this Act

or any regulation, order, or license issued thereunder, with

knowledge that such exports will be used for the benefit

of any country to which exports are restricted for national

security or foreign policy purposes—(A) except in the

case of an individual, shall be fined not more than five

times the value of the exports involved or $1,000,000,

whichever is greater; and (B) in the case of an individual,

shall be fined not more than $250,000, or imprisoned not

more than 10 years, or both.

(2) Any person who is issued a validated license

under this Act for the export of any good or technology

to a controlled country and who, with knowledge that

such a good or technology is being used by such con-

trolled country for military or intelligence gathering pur-

poses contrary to the conditions under which the license

was issued, willfully fails to report such use to the Sec-

retary of Defense—(A) except in the case of an individ-

ual, shall be fined not more than five times the value

of the exports involved or $1,000,000, whichever is greater:

A54

and (B) in the case of an individual, shall be fined not

more than $250,000, or imprisoned not more than 5 years

or both. For purposes of this paragraph, “controlled

country” means any country described in section 620(f)

of the Foreign Assistance Act of 1961.

* * *