Petition for Writ of Certiorari — Johnson v. United States

FILED

No. 92- APR 28 1992 |

| @FFICE OF THE Chest

In the

Supreme Court of the United States

OCTOBER TERM, 1991

RICHARD CLARK JOHNSON,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ALAN M. DERSHOWITZ

Counsel of Record

ROSANNA CAVALLARO

1525 Massachusetts Avenue

Cambridge, Massachusetts 02138

(617) 495-4617

KEVIN J. O’DEA

One Center Plaza

Boston, Massachusetts 02108

(617) 720-1707

BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

1. Whether the Foreign Intelligence

Surveillance Act, 50 U.S. C. § 1801 et

seq., which permits a court to conduct

an in camera and ex parte review of the

government's application for

authorization to conduct electronic

surveillance, is inconsistent with the

due process clause of the Fifth

Amendment.

2. Whether the Foreign Intelligence

Surveillance Act, 50 U.S.C. § 1801 et

seq., which permits the government to

perform electronic surveillance without

a prior showing of probable cause, is

inconsistent with the Fourth Amendment's

prohibition against unreasonable

searches and seizures.

3. Whether 18 U.S.C. § 957, which

prohibits the possession, in aid of any

foreign government, of papers or

property designed or intended for use in

violating any penal statute, is

unconstitutionally vague and overbroad.

TABLE OF CONTENTS

QUESTIONS PRESENTED. ........ i

TABLE OF AUTHORITIES ........ iii

OPINIONS BELOW. .......... vi

eee ee a ee, |

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED 7. = a e * o o ~ . . e . o vi

S TATEMENT = * & e 7 e e = oe e e sd . 7 1

REASONS FOR GRANTING THE PETITION .. 5

I. THE ELECTRONIC SURVEILLANCE

OF PETITIONER VIOLATED THE

FOREIGN INTELLIGENCE

SURVEILLANCE ACT AS WELL

AS THE FOURTH AND FIFTH

AMENDMENTS. . . - © © «© © «© « 7

II. JOHSON'S CONVICTION UNDER

18 U.S.C. § 957 FOR

POSSESSION OF PROPERTY

WAS UNCONSTITUTIONAL. ... 20

CONCLUSION . . . «© © «© «© © © © «© © « 028

ii j

TABLE OF AUTHORITIES

Cases: Page

Abel v. United States, 362 U.S.

217 (1960) .ccccccccee eoceevecseces 13

Arnett v. Kennedy, 416 U.S. 134

(1974) wcccccccccccccece *eee#*eee#eee#s#8e?#8e?#e 27

Broadrick v. Oklahoma, 413 U.S.

i PEE toes dpb adeusécas est, 22,26

Communist Party of the United

States v. Subversive

Activities Control Board,

Oe ee OPED cca cee cedeesecces 22

Epperson v. Arkansas, 393 U.S.

EE rey

Katz v. United States, 389 U.S.

347 (1967) wcccccccceces e*eeeeee#eee#ee#ees#€e?s*s 12

Lamont v. Postmaster General,

381 U.8. 301 (1965) .cccccccccccces 22

Magill v. Lynch, 560 F.2d 22

gy TT ee Eee eee |

Michigan v. Clifford, 464 U.S.

287 (1984) eeeeoeeesee*e#ss#ss#sts##seenenee#e#ee#e#e#e#e#e# 14

New York v. Ferber, 458 U.S.

747 (1982) eeeeesesesss#e#eeee#seese3#ee#ee#ee#ee?#e#e#e 21

New York State Club Association

v. City of New York, 487

U.S. 1 (1988) .crccvcceccs e*eee#ee#e#es 21,23

United States v. Duggan, 743

P.aa SS (2G CaF. 1984). wv ccccee 12,20

United States v. Johnson,

952 F.2d 565 (lst Cir.

Cc sce te eich en ooh, 20,212,285, 26

United States v. Johnson, 738

F. Supp. 594 (D.Mass 1991)........23

United States v. Ron Pair

Enterprises, 489 U.S. 235

NEE rr |

United States v. Truong, 629

F.g@ 908 (4th Cir. 1988)... ccccoes 14

United States v. United States

District Court, 407 U.S.

297 (1972) wccccccccccccccececce e11,12

441

ee

TABLE OF AUTHORITIES - continued

Constitutional and Statutory

Provisions:

U.S. COonst., GMOnd TV. .ccccccccccccveeed

18 U.S.C. 8STLecccccccccccvcccsceccsecsedsa&

18 U.S.C. $956. cccccccccccccccsccsececceed

18 U.S.C. $957. ccc cvececeee4,20,25,26,28

22 U.S.C. $277Buwccccccccccccccccccscsccecd

50 U.S.C. $1BOL. cc ccccccccccccccccccedaysS

50 U.S.C. §1804.......2.-2,9,12,16,17,19

50 U.S.C. $1805. cc cccccccccccccceesyI,l2

50 U.S.C. $1806... ccccccccececee,9,10,15

1917 Espionage Act, Title xI

§22,40 Stat. 230 (1917)...........24

Other Authorities:

Select Committee on Intelligence,

S. Rep. No. 95-701, U.S.

Code Cong. & Admin. News

eR eet

A. Bickel, The Least Dangerous

FAR. PP Pern pe es | |

A. Hoffman, Steal This Book,

gg) PROP Pe he errr rrr

L. Rogers, W. Rogers, Desuetude

as_a Defense, 52 Iowa L. Rev.

1 CEPOO) Ch 6 ee esebD He ee Eee eeeeeeeed?

iv j

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

RICHARD CLARK JOHNSON,

Petitioner,

Ve

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

Richard Clark Johnson petitions for

a writ of certiorari to review the

judgment of the United States Court of

Appeals for the First Circuit affirming

his criminal convictions in the United

States District Court for the District

of Massachusetts.

OPINIONS BELOW

The opinion of the Court of Appeals

(Pet. App. la-45a) is reported at 952

F.2d 565 (lst Cir. 1991).

JURISDICTION

The judgment of the court of appeals

was entered on December 19, 1991. A

timely petition for rehearing was denied

on January 29, 1992. The jurisdiction

of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fourth Amendment to the United

States Constitution provides in relevant

part: "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, supported by

Oath or affirmation, and particularly

describing the place to be searched, and

vi j

nn, nent tanner

the persons or things to be seized."

U.S. Const. amend. IV.

The Fifth Amendment to the United

States Constitution provides in relevant

part: "No person shall. . . be deprived

of life, liberty, or property, without

due process of law... ." U.S. Const.

amend V.

The Foreign Intelligence

Surveillance Act, 50 U.S.C. §§ 1801 et

seq., is attached hereto as an appendix.

Section 957 of Title 18 of the

United States Code provides in relevant

part: "Whoever, in aid of any foreign

government, knowingly and willfully

possesses or controls any property or

papers used or designed or intended for

use in violating any penal statute,

shall be fined not more than $1,000 or

imprisoned not more than ten years, or

both."

— 7 ee es ee

’

STAT N

The Court of Appeals in this case

affirmed petitioner's convictions,

despite the fact that most of the

evidence against him was obtained

through electronic surveillances

performed pursuant to a statute which

permits the government to obtain |

authorizations through ex parte

submissions to which a defendant -- an

American citizen --never has access.

Further, the statute permits such

surveillance without a showing of

probable cause and without regard to the

subject's expectations of privacy. The

Court of Appeals also found no flaw ina

1917 statute, never before used until

petitioner was prosecuted under it, that

criminalizes the possession of papers in

aid of a foreign government. Petitioner

seeks review of those holdings.

Richard C. Johnson was trained and

educated as an electrical engineer, and

was employed in that capacity since

1972. He worked for numerous government

contractor aerospace companies in

California, including Hughes Aircraft,

the Jet Propulsion Laboratory, and

Northrop. In 1986, Johnson moved to

Nashua, New Hampshire and began work

with the Mitre Corporation, where his

performance was outstanding and his

record unblemished.

On July 26, 1988, the government

received an authorization pursuant to

the Foreign Intelligence Surveillance

Act ["FISA"], 50 U.S.C. §§ 1801-1811, to

conduct electronic surveillance of

Richard Johnson's home in Nashua, New

Hampshire and his parent's home in

Harwich, Massachusetts during the period

from August, 1988 through October, 1988.

This surveillance produced no evidence

of either criminal or foreign

intelligence activity on Johnson's part.

The government sought and received a

second authorization for telephone

surveillance of Johnson's apartment and

his parents' home on November 15, 1988.

Because the government has refused to

reveal the basis for these

authorizations, Johnson has no idea on

what grounds either of the FISA orders

were issued.

On August 10, 1989, in a four count

indictment, the government charged

Johnson, together with four others, with

conspiracy to violate the Arms Export

Control Act in violation of 18 U.S.C. §

371; the substantive offense of

violating the Arms Export Control Act,

22 U.S.C. §§ 2778¢b) (1) and (c);

conspiracy to injure and destroy British

military helicopters in violation of 18

U.S.C. § 956; and possession and control

of a workshop in Johnson's parents'

basement, in aid of a body of

arr

insurgents, in violation of 18 U.S.C. §

957. The government sought to prove at

trial that for a period of almost ten

years, Johnson had been assisting in the

design and export to the Provisional

Irish Republican Army of information and

components related to bomb detonation

devices.

Almost all of the government's

evidence against Johnson consisted of

the fruits of the second FISA

surveillance. Prior to trial, Johnson

moved to suppress the FISA evidence on

the grounds that it was obtained in

violation of both FISA and the

Constitution. After a magistrate judge

conducted an ex parte in camera review

of the government's applications for

FISA authorization and recommended that

the motion be denied, the court denied

Johnson's motion. Johnson was never

permitted to review the government's

submissions, despite filing motions to

compel their production both before

trial and after the Court of Appeals had

affirmed his conviction.

Johnson was convicted and sentenced

on all counts.

REASONS FOR G TING WRIT

The Court has never reviewed a case

arising under the Foreign Intelligence

Surveillance Act in the thirteen years

_since its enactment, despite the fact

that FISA has frequently, as here, been

used not to gather foreign intelligence,

but to obtain evidence for use in a

criminal prosecution against a United

States citizen. As is set forth below,

FISA's criteria for authorizing

surveillance ignore the mandates of the

Fourth Amendment, and the procedures

established by FISA for obtaining review

of FISA-authorized surveillance are also

inconsistent with the due process

clause. For these reasons, the petition

should be granted.

FISA does not require the government

to comply with the warrant requirement

even after its purpose has shifted away

from foreign intelligence gathering and

toward criminal prosecution of a

particular individual. Nor does FISA

permit an authorizing court to weigh the

varying expectations of privacy of

surveillance subjects against the

government's interest in national

security, but instead creates broad

categories of authorization that are

incongruent with the Court's Fourth

Amendment precedents.

The statute underlying Count Four of

the indictment against petitioner, never

before used as the basis for a

prosecution, broadly bans the possession

of papers in aid of a foreign

government. The statute's sweep extends

to a substantial number of instances of

lawful conduct that are at the core of

the First Amendment's protection. Its

potential for future misuse poses the

risk of an enormous impact on free

expression. For this additional reason,

the petition should be granted.

I. THE ELECTRONIC SURVEILLANCE OF

PETITIONER VIOLATED THE FOREIGN

INTELLIGENCE SURVEILLANCE ACT AS

WELL AS THE FOURTH AND FIFTH

AMENDMENTS.

Johnson, a United States citizen,

was the target of extensive government

surveillance for months, in both his own

and his parents' homes, yet to this day

he has no information about the bases --~-

if any -- upoh ‘which this surveillance

was conducted. He has therefore had no

realistic opportunity to attack the

validity of the surveillance, or the

evidence it produced, either at trial or

on appeal to the Court of Appeals. That

this criminal prosecution of an American

citizen began as an unsuccessful fishing

expedition for foreign intelligence

should not relieve the government of its

burden to demonstrate that its intrusive

conduct was based upon probable cause.

FISA permits the government to

obtain a court's authorization to

conduct surveillance upon an ex parte

finding that there is probable cause to

believe that the target of the

electronic surveillance is a foreign

power or agent of a foreign power!, and

that the application filed by the

government contains the statements and

certifications required by FISA,

including certifications that the

1. _The term "foreign power is defined

by statute to include, inter alia, "a

group engaged in international terrorism

or activities in preparation therefor"

or "a foreign-based political

organization, not substantially composed

of United States persons." 50 U.S.C. §

1801(a) (4)-(5).

2

"purpose of the surveillance is to

obtain foreign intelligence

information," and that the information

sought "cannot reasonably be obtained by

normal investigative techniques" 50

U.S.C. §§ 1804 (a) (7) (B),(C)? 1805(a) (3).

A target of the resulting surveillance

can never challenge these many necessary

predicate findings, however, since he

never learns the contents of the

government's application. Instead, FISA

provides that “if the Attorney General

files an affidavit under oath that

disclosure or an adversary hearing would

harm the national security of the United

States," review of any motion to

suppress the fruits of the FISA

surveillance "shall" take place in

camera and ex parte. 50 U.S.C. §

1806(e).

These procedures are wholly

inconsistent with fundamental notions of

due process. Petitioner is presented

with a sealed black box into which he is

not permitted to look, so that FISA's

provisions for motions to suppress on

the grounds that "the information was

unlawfully acquired" or was not obtained

"in conformity with an order of

authorization or approval" are of no

use. 50 U.S.C. § 1806(e). Moreover,

the reviewing court is hamstrung in its

efforts to determine the lawfulness of

any particular FISA surveillance by the

absence of one side of the adversarial

process which ordinarily accompanies a

motion to suppress. FISA's requirement

that the review be ex parte and in

camera upon the filing of a boilerplate

affidavit by the government makes the

process of challenging the fruits of any

surveillance virtually meaningless.

In addition to these grave due

process flaws in FISA, it is also

inconsistent with the requirements of

the Fourth Amendment. This is so

notwithstanding the fact that FISA

touches on national security issues. In

the only instance in which this Court

has addressed the issue of foreign

intelligence surveillance, it noted that

"the warrant application may vary

according to the governmental interest

to be enforced and the nature of citizen

rights deserving of protection." United

States v. United States District Court,

407 U.S. 297, 323 (1972) (requiring

prior judicial approval of domestic

security surveillance) (emphasis added).

This language is a very slim reed upon

which to place the authority to conduct

foreign intelligence wiretaps -- with

only an ex parte in camera review of

executive applications. Moreover, the

quoted passage makes plain that, rather

than the categorical authorizations that

FISA allows, there must be a weighing of

"the governmental interests to be

enforced and the nature of citizen

rights deserving protection." Id.?

2. FISA creates two different

categories into which all foreign

intelligence surveillance requests are

divided: the determining factor is the

citizenship of the target. See, e.g.,

50 U.S.C. § 1804(b) (relieving

government of certain certification

requirements where the target of

surveillance is a "foreign power" and

the places to which surveillance is

directed are owned or leased exclusively

by that "foreign power"); 50 U.S.C. §

1805(a) (5) (if the target of

surveillance is a "United States

person," the court must determine that

the certifications made by the

government in its application are "not

clearly erroneous"). See also United

States v. Duggan, 743 F.2d 59, 75 (2d

Cir. 1984) (rejecting equal protection

challenge based upon FISA's different

treatment of citizens and non-citizens).

Of course, the Court does not use

these categories to distinguish between

lawful and unlawful warrantless

searches, but instead considers the

search in light of the target's

reasonable expectation of privacy. See

Katz v. United States, 389 U.S. 347

(1967);

, 407 U.S. at 313

(decision in Katz “implicitly recognized

that the broad and unsuspected

governmental incursions into

conversational privacy which electronic

surveillance entails necessitate the

application of Fourth Amendment

12

eee

ainsi amcaaaal

Accordingly, where, as here, the

surveillance is of an American citizen

in his home, and where the primary

purpose of the surveillance is not

foreign intelligence but the prosecution

of that individual, then the government

cannot hide behind FISA, but must

instead conform its conduct to the

requirements of the Fourth Amendment.

The Fourth Amendment and its case

law progeny mandates that once a United

States citizen becomes the target of a

criminal investigation, all subsequent

searches of that person must be

conducted pursuant to a warrant based on

probable cause that the target committed .-

(footnote cont'd)

safeguards"). Citizenship is an

unsatisfactory and indeed

unconstitutional surrogate for these

carefully reasoned criteria. See Abel

v. United States, 362 U.S. 217 (1960)

(extending Fourth Amendment protections

to aliens).

a crime. See generally Michigan v.

Clifford, 464 U.S. 287 (1984). This is

true even if the investigation at its

outset was conducted for intelligence-

gathering purposes. As the Fourth

Circuit has recognized: "The [foreign

intelligence] exception applies only to

foreign powers, their agents, and their

collaborators. Moreover, even these

actors receive the protection of the

warrant requirement if the government is

primarily trying to put together a

criminal prosecution." United States v.

Truong, 629 F.2d 908, 916 (4th Cir.

1988).

Even assuming arguendo that the

purpose of the government's surveillance

of Johnson from November 15, 1988 to

April 10, 1989, was primarily to acquire

foreign intelligence -- a point which

petitioner by no means concedes, because

he lacks the information necessary for

an intelligent assessment -- that

purpose clearly changed after April 10,

1989. On that date, the government made

plain its purpose -- the criminal

investigation of Johnson -- by obtaining

a search warrant to open a letter

addressed to him. Yet even at this

stage, the government was not required

to demonstrate probable cause for the

continued surveillance of Johnson's home

and his parents' home.

Had the government wished to pursue

its asserted national security

interests, then it should have foregone

prosecution of Johnson based upon the

fruits of its surveillance. Even if

evidence obtained pursuant to FISA can

sometimes be used in criminal

prosecutions, see 50 U.S.C. § 1806(c),

such use can never be the "primary

purpose" of the surveillance.? See

Select Committee on Intelligence, S.

Rep. No. 95-701 at 61, reprinted in U.S.

Code Cong. & Admin. News 4030 (1978)

("(t)he Department of Justice always has

the option of deciding whether to

proceed with a criminal prosecution or

forego it in the interests of national

security"). What the government may not

do is compromise a criminal defendant's

Fourth Amendment and due process rights

by shrouding a criminal investigation in

the cloak of "national security." The

3. FISA itself does not indicate the

degree of primacy of the purpose,

stating only that the government must

show "that the purpose of the

surveillance is to obtain foreign

intelligence information." 50 U.S.C. §

1804(7)(B). Indeed, requiring the

government to show only that foreign

intelligence is its primary rather than

its exclusive purpose is already a

significant curtailment of individual

rights. Where the government's motives

are mixed to any degree, it should be

required to comply with the warrant

requirements of the Fourth Amendment.

Court should grant this petition to

review FISA in light of these

significant challenges.

In addition to these flaws, the

government failed to comply even with

the minimal requirements of FISA itself.

Section 1804(a)(9) of 50 U.S.C. requires

that any application for authorization

of surveillance include a "statement of

the facts concerning all previous

applications that have been made to any

judge under this chapter involving any

of the persons, facilities, or places

specified in the application and the

action taken on each previous

application." There were at least two

surveillances of Johnson, the first of

which yielded no evidence related to

foreign intelligence. The Court of

Appeals recites in its opinion that the

government "set forth the facts

supporting prior applications," United

States v. Johnson, 952 F.2d at 573, but

notably fails to recite that the second

application informed the reviewing court

that the first application was

fruitless.

This is no mere nuance, but goes to

the very heart of the constitutionally

inadequate ex parte process authorized

by FISA. Where a citizen is stripped of

the protections of the Fourth Amendment,

he should at the very least be permitted

to demonstrate that the government has

not met the far less stringent

requirements of FISA. It is only

through the adversary process that

FISA's many open-ended terms can be

given meaning and content. So, for

example, petitioner might well have been

able to show that "facts concerning all

previous applications" should have

included the "fact" that the previous

application produced no information. 50

I12 |

U.S.C. § 1804(a)(9). Without being

permitted access to the government's

submissions in support of its FISA

applications, however, petitioner's

hands were tied.

Despite these significant problems,

the Court of Appeals rejected

petitioner's FISA arguments. It held

that the government's primary purpose

was to obtain foreign intelligence

information, notwithstanding that the

application for a search warrant plainly

indicated a change in purpose. It found

no flaw in the government's first or

second FISA application, although it did

not permit petitioner to see those

applications, even long after the

purported national security information

had become stale. The court also

rejected petitioner's Fourth Amendment

Claims “for the reasons set forth by the

Second Circuit in [United States v.]

Duggan, 743 F.2d at 72-74." United

States v. Johnson, 952 F.2d at 573. The

Duggan court, however, did not address

or resolve the issues presented herein.

Accordingly, the petition should be

granted, so that this Court can consider

the adequacy of FISA under both the due

process clause and the Fourth Amendment.

II. JOHNSON'S CONVICTION UNDER

18 U.S.C. § 957 FOR POSSESSION OF

PROPERTY WAS UNCONSTITUTIONAL.

Section 957 of Title 18, U.S.C., the

statute underlying Count Four of

Johnson's conviction, punishes, inter

alia, the possession of papers in aid of

a foreign government. 4 This language,

4. The statute provides as follows:

"Whoever, in aid of any foreign

government, knowingly and willfully

possesses or controls any property or

papers used or designed or intended for

use in violating any penal statute, or

any of the rights or obligations of the

United States under any treaty or the

law of nations, shall be fined not more

than $1,000 or imprisoned not more than

ten years, or both.” 18 U.S.C. § 957.

4

Te

enacted in 1917 and never before

challenged or ‘nterpreted by the Court,

is both substantially overbroad in its

formulation and impermissibly vague in

its application. Its potential future

use poses a grave risk to the

fundamental right of free expression.

As the Court of Appeals recognized,

Johnson is entitled to raise an

overbreadth challenge to this provision,

since "a statute whose terms are so

broad as to chill a 'substantial' amount

of protected speech of parties not

before the court, New York State Club

Association v. City of New York, 487

U.S. 1, 14 (1988), may not be enforced

against anyone, even one whose activity

the statute legitimately governs."

United States v. Johnson, 952 F.2d at

577, citing New York v. Ferber, 458 U.S.

747, 770 (1982) (quoting Broadrick v.

Oklahoma, 413 U.S. 601, 615 (1973));

Magill v. Lynch, 560 F.2d 22, 29 (lst

Cir. 1977).

The criminalization of the "willful"

possession of papers "in aid of a

foreign government" poses a serious

threat to American citizens' basic right

to speak out and participate in matters

of international concern, a threat which

dwarfs the statute's murky "legitimate

sweep." Broaderick v. Oklahoma, 413

U.S. at 615.> The promise that such

possession will be punishable only when

it is "used or designed or intended for

use" in violation of the United States'

treaty obligations, international law,

5. Compare Lamont v. Postmaster

General, 381 U.S. 301 (1965)

(invalidating regulation limiting access

to printed matter "issued by or on

behalf of any country" determined to be

communist) with Communist Party of the

United States v. Subversive Activities

, 367 U.S. 1 (1961)

(upholding registration requirement for

organizations "directed, dominated, or

controlled by foreign governments or

organizations").

22

or “any penal statute" provides

inadequate protection against

impermissible overbreadth.

As Johnson demonstrated below, "a

substantial number of instances exist in

which the [statute] cannot be applied

constitutionally." New York State Club

Association v. City of New York, 487

U.S. at 14. First, the statute

predicates criminal liability on

knowledge of the United States' treaty

obligations and international law. The

sweeping phrase “any penal statute" as

easily comprehends Irish laws against

contraception, South African racial

codes, or even the criminal laws of the

fifty states. To limit, as the district

court apparently did, see United States

v. Johnson, 738 F.Supp. 594, 597

(D.Mass. 1991), the interpretation of

“any penal statute" to include only

"federal offenses" makes little sense

23

when considered in light of the

7 or purpose® of the

language, ® syntax,

statute.

Second, there is no indication in

the statute's language that the phrase

"used or intended for use" is, as the

Court of Appeals held, to "limit

punishment under the statute to cases

where the papers or property at issue

6. Compare 18 U.S.C. § 371 (punishing

conspiracy to commit a federal offense)

(emphasis added).

7. %It would be clear grammatical error

to relate "of the United States" to

"penal statute." See generally United

States v. Ron Pair Enterprises, 489 U.S.

235, 241 (1989) (concluding that

contested statute's interpretation is

"mandated" by its "grammatical

structure"). Moreover, the references

to treaty obligations and the law of

nations imply more than they exclude the

possibility that "any penal statute"

includes penal codes of other nations.

8. Although the legislative history of

§ 957 is shrouded in obscurity, it was

originally considered as part of the

"Search Warrant" section of the 1917

Espionage Act, Title XI § 22, 40 Stat.

230 (1917).

24

Oe

fall within an exceedingly narrow

category of material, what might be

called instrumentalities of crime."

United States v. Johnson, 952 F.2d at

578. Nor is it "clear" that "liability

turns upon the possessor's intent to

violate either a penal statute or an

international obligation of the United

States." Id. at 578 n.12 (emphasis in

original). Instead, there is no

indication in § 957 of whose "design" or

"intent" may form the basis of a

defendant's punishment.

The examples offered to the Court of

Appeals continue to demonstrate the

substantiality of the overbreadth

problem in light of the ambiguities

noted above. An individual could be

charged under § 957 with possession of

Abbie Hoffman's Steal This Book, a

collection of suggestions on how to

obtain restaurant meals, long distance

576

telephone service, and other goods and

services without paying for them. The

reader/possessor might not share the

intent of the author, but might

nonetheless be deemed in violation of §

957's broad ban. Similarly, a

university professor who possesses a

manifesto advocating revolution may also

be within the scope of the statute.

Nothing in § 957's language or in the

opinion of the Court of Appeals

diminishes the likelihood of such

unconstitutional prosecutions. ?

9. The Court has never required a

defendant raising an overbreadth

challenge to offer evidence of

particular individuals whose conduct is

chilled by the offending statute. All

thatis required is the demonstration of

a number of "real" and "substantial"

instances of constitutionally protected

conduct that are within the ambit of the

statute. Broaderick v. Oklahoma, 413

U.S. at 615. Accordingly, the

observation of the Court of Appeals that

"Abbie Hoffman's work remains popular"

is not responsive to petitioner's

overbreadth argument. United States v.

Johnson, 952 F.2d at 577.

26

The argument that these threats to

fundamental rights are hypothetical or

unrealistic because of a history of

desuetude cannot turn the vice of

capricious governmental inaction into a

virtue, 2° The very premise of the

overbreadth doctrine is that society can

ill-afford to stifle speech until a

constitutionally acceptable statute is

finally arrived at; "the value of the

sword of Damocles is that it hangs --

not that it drops." Arnett v. Kennedy,

416 U.S. 134, 231 (1974) (Marshall, J.,

dissenting) .11

10. Certainly, the long period of

nonuse of § 957 did not impair this

prosecution.

ll. It is not to the government's

credit that the statute has never before

been enforced in its 74-year history.

See Epperson v. Arkansas, 393 U.S. 97

(1968) (statute unenforced for more than

forty years held to violate rights under

the Equal Protection Clause). See also

L. Rogers and W. Rogers, Desuetude as a

Defense, 52 Iowa L. Rev. 1, 12 (1966)

(noting that Martin Luther King, Jr. was

the only person to be prosecuted for the

crime of tax perjury in the state of

Georgia). Professor Bickel also

questioned whether due process would

27

The Court should grant the within

petition to address the constitutional

flaws in 18 U.S.C. § 957.

CONCLUSION

The petition for a writ of

certiorari should be granted.

Respectfully submitted,

Alan M. Dershowitz

(Counsel of Record)

Rosanna Cavallaro

1525 Massachusetts Avenue

Cambridge, Massachusetts 02138

(617) 495-4617

Kevin J. O'Dea

One Center Plaza

Boston, Massachusetts 02108

(617) 720-1707

Dated: April 28, 1992

(footnote cont'd)

countenance "a statute which has never

been enforced .. . for three quarters

of a century [to] be suddenly

resurrected and applied.” A. Bickel,

The Least Dangerous Branch at 151

(1962).

28

APPENDICES

UNITED STATES COURT OF APPEALS

For the First Circuit

No. 90-2010

United States,

Appellee,

V.

RICHARD CLARK JOHNSON,

Defendant, Appellant.

No. 90-2011

UNITED STATES,

Appellee

Vv.

MARTIN QUIGLEY,

Defendant, Appellant.

No. 90-2012

UNITED STATES,

Appellee,

Vv.

CHRISTINA LEIGH REID,

Defendant, Appellant.

la

Eee

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

(Hon. A. David Mazzone, U.S. District Judge}

Before

Torruella, Circuit Judge,

Coffin and Timbers,* Senior Circuit Judges.

* Of the Second Circuit, sitting by designation.

2a

Richard E. Bachman, by appointment of

the court, with whom Peter D. King and Hale,

Sanderson, Byrnes & Morton were on brief for

appellant Martin Quigley.

Alan M. Dershowitz with whom Jack

Zaremski, Kevin J. O’Dea, and Rosanna

Cavallaro were on brief for appellant Richard

Clark Johnson.

William P. Homans, Jr. with whom Homans,

Hamilton & Dahmen was on brief for appellant

Christina Leigh Reid.

Alexandra Leake, Assistant United States

Attorney, with whom Wayne A. Budd, United

States Attorney, Ronald R. Roos, Trial

Attorney, and Christine M. Thren, Attorney

Advisor, were on brief for appellee.

December 19, 1991

3a

COFFIN, Senior Circuit Judge.

Appellants were convicted of conspiracy and

substantive offenses for their roles in

terrorist activities directed against the

British presence in Northern Ireland. They

seek to overturn their convictions and vacate

their sentences on various grounds. After

careful review of the record in this case, we

affirm the judgments of the district court

and uphold the convictions and sentences of

all three appellants.?+

1. Arrest warrants for two others, Peter

Eamon Maguire and Gerald Vincent Hoy, were

issued along with those for appellants.

Maguire is an Irish national who is not

present in the United States, has not been

arrested, and was not present at trial. Hoy

pled guilty to the charges against him on May

29, 1990. Neither is a party to this appeal.

4a

I. Background

The facts as the jury could have found

them are as follows. From 1978 until his

arrest in July 1989, appellant Richard Clark

Johnson, an American citizen, was engaged in

the research and development of explosives

for export to the Republic of Ireland and use

by the Provisional Irish Republican Army (the

PIRA) in its attacks against British civilian

and military targets there and elsewhere.

Johnson is a highly educated and trained

electrical engineer. Since receiving his

Master’s Degree in the early 1970’s he has

worked for a number of prominent firms in the

aerospace industry, including Hughes Aircraft

and the Northrop Corporation in California.

From 1986 on Johnson carried out his weapons

research and development in a workshop built

by him in the basement of his parents’ home

in Harwich, Massachusetts.

Between 1981 and 1986, Johnson wrote and

sent a series of letters regarding the

procurement and development of remote-control

bombs to Peter Eamon Maguire, an electronic

systems expert in the Republic of Ireland who

is named a defendant in this case, see supra

note 1. The letters ("the Clondalkin

letters") describe Johnson’s efforts to

perfect the technology of the remote-control

bombs that have been used by the PIRA in its

attacks upon persons and property in Northern

2

Ireland and elsewhere since 1972. In 1987

2. Johnson refers to the acquisition of 27

and 72 megahertz radio transmitters, the type

6a

the Irish national police seized these

letters from a hiding place in Maguire’s home

in Clondalkin, Dublin.

Appellant Martin Peter Quigley is a

citizen of the Republic of Ireland and a

of transmitter typically used by the PIRA in

its remote-control bombs. The letters also

chronicle Johnson’s efforts to improve the

detonation mechanism of the bombs through the

use of laser technology, which would shield

the system from jamming attempts. The FBI

seized most of the components of this

laser-based system from Johnson’s workshop in

Harwich.

The “tters describe Johnson’s attempts

to enhance “he detonator system by using the

Weather Alert radio frequency. From August

1983 on, Northern Irish authorities began to

recover the remains of Weather-Alert bombs in

the wake of PIRA-sponsored bombings. The

letters also describe Johnson’s procurement

of model FX-401 frequency selector switches,

used by the PIRA as decoders in its

remote-control bombs, and his efforts to

develop a time-delayed fuse controlled by a

digital wrist watch.

7a

United States resident. Like Johnson, he has

been involved in ongoing efforts to improve

the technology of PIRA weaponry. In December

1988, in a conversation over a pay telephone,

Quigley solicited Johnson’s advice regarding

the development of a surface-to-air missile

system to "counteract" British military

helicopters in Northern Ireland. Between

1988 and 1989, Quigley regularly encouraged

appellant Christina Leigh Reid to join an

amateur rocketry society and familiarize

herself with the construction and operation

of rocket motors for use in the

anti-helicopter missile system. In the

summer of 1989, Quigley participated in the

acquisition of a .50 caliber rifle for export

to the Republic of Ireland.

8a

Appellant Christina Leigh Reid, an

American citizen, is a college-educated

electrical engineer and was employed by a

defense-related firm in California until her

arrest. From 1983 on, she served as a

courier of electronic components for the

remote-control bombs and of information,

including a request for handguns, between

Johnson in the United States and "Sean," an

associate of Maguire, in the Republic of

Ireland. In the summer of 1983, as national

security efforts increased in preparation for

the Los Angeles Olympic games, Reid provided

a false social security number and address to

obtain a post office box, in her name, to

insure the safety and security of the

Johnson-Maguire correspondence.

9a

In later 1988, Reid introduced Johnson

to Quigley, over the telephone, for the

purpose of advancing the development of PIRA

weaponry. It was during that telephone call

that Quigley requested Johnson’s assistance

in developing the anti-helicopter missile

system. Thereafter, Reid, with Quigley’s

encouragement, sought to join an amateur

rocketry society with a view to learning

about rocket motors and assisting in the

deployment of the anti-helicopter missile

systen.

A federal grand jury returned a four

count superseding indictment (the indictment)

against appellants on March 22, 1990. Count

One charged all three appellants with

conspiracy to violate the Arms Export Contro)

10a

Act, 22 U.S.C. § 2778(b) (2), (c) in violation

of 18 U.S.C. § 371, by conspiring to export

devices and materials for the discharge of

bombs from the United States, without first

obtaining an export license. Count Two

charged Johnson with the actual manufacture

and export of these materials, in violation

of 22 U.S.C. §§ 2778(b) (1), (C)- Count Three

charged all three appellants with conspiracy

to injure and destroy British military

helicopters based at the Royal Air Force

Station in Aldergrove, Northern Ireland in

violation of 18 U.S.C. § 956. Count Four

charged appellants Johnson and Quigley with

the possession and control of property,

namely Johnson’s Harwich, Massachusetts

laboratory, used and intended for use in the

destruction of British military helicopters

in aid of the PIRA, in violation of 18 U.S.C.

§§ 957 and 2.

Appellants filed various motions before

and during trial. We discuss those relevant

to this appeal briefly. All three appellants

moved for the suppression of evidence

acquired through the government’s electronic

surveillance of Johnson and Quigley. In

addition. all three moved to dismiss Count

Three of the indictment for failure to

describe with adequate specificity the

helicopters that appellants conspired to

destroy. Johnson and Quigley moved to

dismiss Count Four of the indictment on the

ground that the underlying statute, 18 U.S.C.

§ 957, violates the First and Fourteenth

12a

Amendments of the United States

Constitution. Quigley moved for severance of

his trial from that of the co-defendants.

The district court denied appellants’

motions. Following a twenty-eight day trial,

the jury found all three appellants guilty of

the charges against them, and the district

court sentenced appellants accordingly. On

appeal, Johnson, Quigley and Reid assert

numerous grounds for reversing their

convictions and, in the case of Quigley and

Johnson, vacating their sentences. We now

turn to our discussion of these claims.

II. The FISA Surveillance Evidence

Between August 1988 and July 1989, the

time of appellant’s arrests, the government

conducted electronic surveillance of Johnson

and Quigley pursuant to the Foreign

Intelligence Surveillance Act, 50 U.S.C. §§

1801-11 (FISA).* Enacted in 1978, FISA

establishes a statutory procedure whereby a

federal officer, acting through the Attorney

General, may obtain a judicial warrant

authorizing the use of electronic

surveillance in the United States for foreign

intelligence purposes. See S. Rep. No. 604,

95th Cong., 2d Sess. (1978), reprinted in

1978 U.S.C.C.A.N. 3904, 3906; United States

v. Duggan, 743, F.2d 59, 77 (3d Cir. 1984).

3. The government did not seek to subject

Reid to electronic surveillance. Her

conversations were recorded only to the

extent that they were with Johnson or

Quigley.

14a

The results of the surveillance

undertaken in this case include audio tapes

of incriminating conversations among

appellants and constitute a substantial

portion of the government’s evidence. The

government identified for appellants the

tapes that it intended to use at trial and

made available to them all of the tapes in

advance of trail.

Prior to trial all three appellants

moved for suppression of the FISA evidence,

arguing that it had been obtained in

violation of FISA and the United States

Constitution. The Attorney General having

filed an affidavit that disclosure of the

FISA applications and orders would jeopardize

national security interests, the magistrate

15a

judge conducted an ex parte in camera review

of the materials.* The magistrate judge

concluded that the surveillance was legal in

all respects and, in a lengthy and careful

opinion, recommended that appellants’

suppression motions be denied. The district

court adopted this recommendation.

Appellants renew their suppression

arguments on appeal. At the request of all

parties, this court has conducted its own ex

4. FISA § 1806(f) provides that where the

Attorney General files an affidavit that

disclosure of an adversary hearing on FISA

related material would harm the national

security of the United States, the district

court if prohibited from disclosing the

contested material. Under such

circumstances, the district court is to

review the material in camera and ex parte to

determine whether the surveillance was

lawfully authorized and conducted.

16a

parte, in camera review of the surveillance

applications and orders. Having done so, we

agree with the magistrate judge and the

district court that the FISA surveillance of

appellants was lawfully authorized and

conducted.

A. Threshold Challenge

# Purpose of the FISA Surveillance

Appellants attack the government’s

surveillance on the ground that it was

undertaken not for foreign intelligence

purposes, but to gather evidence for a

criminal prosecution. FISA applications must

contain, among other things, a certification

that the purpose of the requested

surveillance is the gathering of foreign

17a

intelligence information and a detailed

description of the nature of the information

sought. See §§ 1802(a)(1) (A), 1804(a) (6),

(7). Although evidence obtained under FISA

subsequently may be used in criminal

prosecutions, see S. Rep. No. 701, 95th

Cong., 2d Sess. (1978), reprinted in 1978

U.S.C.C.A.N. 3973, 3979-86 [hereinafter S.

Rep. No. 95-701]; Duggan, 743 F.2d at 78, the

investigation of criminal activity cannot be

the primary purpose of the surveillance. See

Duggan, 743 F.2d at 77; United States v.

Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir.

1980). The act is not to be used as an

end-run around the Fourth Amendment’s

prohibition of warrantless searches.

We find no evidence of an end-run in

18a

this case. From our review of the

government’s FISA applications, it is clear

that their primary purpose, from the first

authorization in July 1988, to July 1989,

when appellants were arrested, was to obtain

foreign intelligence information, not to

collect evidence for any criminal prosecution

of appellants. The government’s inquiries

were all directed to activities relating to

the support of PIRA operations in Northern

Ireland. At no point was there reference to

any criminal liability or prosecution.

2. Showing of Necessity

In a variation on the "impermissible

purpose" argument, Johnson and Reid argue

that their United States citizenship and

residence render the FISA surveillance of

them illegal under both the FISA and the

Fourth Amendment. We consider the statutory

challenge first.

Where the government seeks FISA

authorization for the surveillance of a

"United States person," as opposed to a

foreign national or a foreign power, FISA

requires that it make a specialized showing

that the information sought is "necessary to

sl ability of the United States to

protect against," inter alia, "sabotage or

international terrorism by a foreign power or

an agent of a foreign power; or clandestine

intelligence activities by ...a foreign

power or by an agent of a foreign power," §§

1801(e)(1)(B), (C), or that the information

is "necessary to ... the conduct of the

20a

foreign affairs of the United States," §

1801(e) (2) (B).

Johnson, joined by Reid, contends that

because his work for the PIRA was not

directed against the United States and

because the government could not have shown

that information regarding his PIRA

activities was "necessary" to the conduct of

foreign affairs or to the prevention of |

international terrorism, the FISA

surveillance violated the statute.

The fact that appellant’s terrorist

activity was directed at Northern Ireland,

rather than the United States, is of no

consequence to the legality of the FISA

surveillance, as the legislative history and

plain language of FISA make clear. FISA

permits surveillance of an American person

where the information sought is necessary to

the ability of the United States "to protect

against . . . international terrorism." §

1801(e)(1)(B). This class of information is

manifestly broader than that comprising

information necessary for the United States

to protect itself against such dangers. As

the drafters of FISA stated:

The committee intends that

terrorists . .. acting for foreign

powers should be subject to

surveillance under this bill when

they are in the United States, even

if the target of their violent acts

is within a foreign country and

therefore outside actual Federal .

- « jurisdiction. This departure

from a strict criminal standard is

justified by the international

responsibility of government to

prevent its territory from being

used as a base for launching

terrorist attacks against other

countries.

22a

S. Rep. No. 95-701 at 3999, quoted in Duggan,

743 F.2d at 74.

Having reviewed the FISA applications in

this case, we find that they conform to the

standards governing the surveillance of

American persons set forth in §1801(e). The

applications reveal that Johnson had engaged

in terrorist acts in support of PIRA efforts

directed against British interests in

Northern Ireland. They thus demonstrate that

Johnson was a member of "a ground engaged in

international terrorism or activities in

preparation therefore," and, as such, an

"agent of a foreign power." §§ 1801(a) (4),

(b) (1) (A). In addition, the information

sought by the government in its surveillance

of Johnson was, in our estimate, necessary to

the ability of the United State to protect

against international terrorism and to manage

its foreign affairs. See Duggan, 743 F.2d at

74 ("{Ijnternational terrorism conducted from

the United States, no matter where it is

directed, may well have a substantial effect

on United States national security and

foreign policy."); S. Rep. No. 95-701 at

3999.

Johnson and Reid also maintain that the

FISA provisions governing the surveillance of

United States citizens contravene the Fourth

Amendment’s prohibition of warrantless

searches. This argument was apparently not

raised before the magistrate judge. Before

us, it achieves its fullest expression in a

footnote to Johnson’s Reply Brief. We

24a

suspect, therefore, that appellants have

waived this claim for purposes of their

appeal. We have reviewed it, nonetheless,

and find it to be without merit for the

reasons set forth by the Second Circuit in

Duggan, 743 F.2d at 72-74 (requirements of

Fourth Amendment vary with governmental

interest at stake; "’procedures established

in [{FISA] are reasonable in relation to

legitimate foreign counterintelligence

requirements and the protected rights of

individuals.’" Id at 73 (quoting S. Rep. No.

95-701 at 3983)).>

5. While it is true that the FISA target in

Duggan was not a United States citizen, the

court’s reasoning applies with equal force to

the surveillance of resident United States

citizens.

25a

B. The Legality of the Subsequent FISA

Applications

Appellants challenge the legality of the

government’s applications to renew the

initial surveillance order of July 1988. They

argue that the government’s failure to

include the results of the first

surveillance, conducted between July and

October 1988, in its applications to extend

the surveillance, filed subsequently,

contravened the pertinent provisions of

FISA.

We disagree with appellants’

construction of the relevant FISA provisions

for the reasons recommended by the magistrate

judge and adopted by the district court. See

Report and Recommendation of Magistrate Judge

at 8-10 (Appellants’ argument precluded by

26a

FISA § 1805(d) (2), which permits FISA judge

to extend surveillance authorization "on the

same basis as [the] original order.").

Moreover, we have reviewed the government’s

reauthorization applications in this case and

find that each presented the court with facts

establishing that appellants Johnson and

Quigley were acting as agents of a foreign

power, pursuant to §§ 1805(a) (2) (A),

1981(b)(2)(C), (D). Each application not

only set for the the facts supporting prior

applications, as required by § 1804(a) (9),

but also meticulously supplied the FISA judge

with new details of appellants’ terrorist

activity.

III. The Opening Statements and the Challenged

PIRA Evidence

27a

Appellants argue that the government’s

opening statement and the district court’s

admission of certain evidence over

appellant’s objections denied them the right

to a fair trial guaranteed by the Sixth

Amendment of the Constitution.

A. The Government’s Opening Statement

Certain of the prosecution’s opening

remarks were, according to appellants, so

improperly inflammatory as to prejudice

irreparably their right to a fair trial.

Appellants object to the government’s

characterization of the case as "’an echo of

“adness from the graves of dead generations’"

and its references to, among other things,

the "bloody but abortive" Irish Republican

uprisings against British rule, the PIRA’s

28a

bombing campaign of British civilian and

military targets, and the acts of "ambush"

and "sabotage" perpetrated by the PIRA

"amongst the hedgerows, stone walls and

narrow lanes of the Irish countryside."

Appellants assert that the government’s

prejudicial comments mandate the reversal of

their convictions.

This circuit recognizes the impropriety

of prosecutorial commentary serving "no

purpose other than ‘to inflame the passions

and prejudices of the jury, and to interject

issues broader than the guilt or innocence of

the accused,’" United States v. Machor, 879

F.2d 945, 956 (lst Cir. 1989) (quoting United

States v. Doe, 860 F.2d 488, 494 (1st Cir.

1988)). We are, likewise, mindful of the

29a

threat to a defendant’s right to a fair trial

posed by remarks foisting a theory of "guilt

by association" upon the jury. United States

v. St. Michael’s Credit Union, 880 F.2d 579,

602 (lst Cir. 1989).

The remarks of the prosecutor are to be

judged in Tight of the circumstances of the

trial. United States v. Socony-Vacuum Oil

Co., 310 U.S. 150, 238-42 (1940); United

States v. Boldt, 929 F.2d 35, 40 (1st Cir.

1991). The challenged statements, in our

view, were not improperly inflammatory.

Though vivid and rhetorical, against a

background redolent of long continued

violence and carnage they did not exceed the

bounds of adversarial propriety. We are

confident that the prosecutor’s remarks had

30a

no effect on the outcome of the twenty-eight

day trial. See Boldt, id. (prosecutorial

impropriety subject to harmless error

review). The government marshalled a wealth

of evidence, most if it comprised of

appellants’ own admissions in telephone

conversations and correspondence, of

appellants’ participation in the offenses for

which they were charged and of their

connections to the PIRA and its longstanding,

ongoing terroristic campaign.

B. The Challenged Evidence

Appellants also maintain that the court

improperly admitted various pieces of

evidence: (1) an FBI video tape of an

explosion caused by a simulated PIRA

remote-control bomb; (2) a newspaper article

published by the PIRA’s political arm

recounting a failed PIRA bombing attempt; (3)

an article from the same publication, seized

from appellant Reid’s apartment, describing

the shooting down of a British military

helicopter by the Irish Republican Army in

Northern Ireland; (4) the testimony of a

British commander forced to land his

helicopter at the time of the PIRA attack

6

recounted in the article; and (5) testimony

regarding the history and methods of the

PIRA, including Maguire’s role as one of its

commanders and the development and deployment

6. Reid alone challenges the admission of the

newspaper Article describing the attack upon

British helicopters and the testimony of

Lieutenant Colonel Webb, the British

commander who witnessed the raid.

32a

of certain weapons by the PIRA.

To be admissible, evidence must be

relevant to a material fact in issue, and its

probative value must outweigh any prejudicial

effect upon the jury. The evidence to which

appellants object was relevant to their

objectives on all four counts of the

indictment, which charged appellants with

acting "to further the forcible reunification

of .. . Ireland. . . by means of an armed

insurrection waged by the Provisional Irish

Republican Army against British and Northern

Ireland authorities." The testimony

concerning the methods of the PIRA and the

history of the Irish conflict, in particular,

was relevant, given the characterization of

the PIRA as a "body of insurgents" in Count

33a

Four of the indictment.

Additionally, as the district court

noted at trial, the challenged evidence was

relevant to the determination of whether the

various electronic components and information

that appellants possessed and sought to

export were, as the government charged,

defense materials and services or were,

instead, as appellants argued, the odds and

ends of innocent hobbyists.

As for the evaluation of probative value

and prejudicial effect under Fed. R. Evid.

403, it is uncontroverted that the district

court’s "battlefield determination is to be

accorded great deference on appeal," United

States v. Hadfield, 918 F.2d 987, 995 (1st

Cir. 1990). "’Only rarely -- and in

34a

extraordinarily compelling circumstances -~-

will we, from the vista of a cold appellate

record, reverse a district court’s

on-the-spot judgment . . . .’" Pinkham v.

Burgess, 933 F.2d 1066, 1071 (ist Cir. 1991)

(quoting Freeman v. Package Machinery Co.,

865 F.2d 1331, 1340 (1st Cir. 1988)).

The nub of appellant’s unfair prejudice

complaint is their contention that the

challenged evidence caused the jury to

convict "’on a theory of guilt by

association,’" Johnson Opening Brief at 29

(quoting St. Michael’s Credit Union, 880 F.2d

at 602 (1st Cir. 1989)). As the district

court indicated, however, there was

considerable evidence, quite apart from that

challenged, of appellant’s involvement with

35a

the PIRA. Appellants’ own conversations and

correspondence, as well as the possessions

recovered from their homes -- the detonator

designs and components and PIRA news articles

-- demonstrate their approval of, and

contribution to, the methods and goals of the

PIRA. The risk of a "guilty by association"

verdict against the backdrop of direct

evidence of appellants’ involvement with the

PIRA, is remote, at best, and insufficient to

warrant a finding of unfair prejudice.

IV. Count Three: Specificity of Charge

and Proof

All three appellants seek to overturn

their convictions under Count Three of the

indictment on the ground that it failed to

charge an offense with adequate specificity

36a

and that the evidence at trial was

insufficient to sustain convictions against

| then.

| A. Specificity of the Charging Language

Count Three of the superseding

indictment charged appellants with knowingly

and willfully conspiring to injury and

destroy "specific property belonging to the

government of the United Kingdom . . . to

wit: One or more of a total of less than

seventy military helicopters of the Lynx,

Gazelle, Puma, Chinook and Wessex class,

based at the Royal Air Force Station at

Aldergrove, Northern Ireland" in violation of

37a

18 U.S.C. § 956.’ Appellants claim that this

language does not satisfy the specificity

7. 18 U.S.C. § 956, “Conspiracy to injure

property of a foreign government," provides:

(a) If two or more persons with in

the jurisdiction of the United

States conspire to injure or

destroy specific property situated

within a foreign country and

belonging to a foreign government

or to any political subdivision

thereof with which the United

States is at peace, or any

railroad, canal, bridge, or other

public utility so situated and if

one or more such persons commits an

act within the jurisdiction of the

United States to effect the object

of the conspiracy, each of the

parties to the conspiracy shall be

fined . .. or imprisoned ... or

both.

(b) Any indictment .. . under this

section shall describe the specific

property which it was the object of

the conspiracy to injury or

destroy.

38a

requirement of § 956(b), which states that an

indictment under the statute must describe

the "specific property" that the defendants

conspired to injury or destroy. Appellants

argue that the indictment is defective

because it identifies the targeted property

by class -- a quantity of military

helicopters stationed at a particular

location -- rather than more particularly.

We concur in the thoughtful analysis of

the magistrate judge adopted by the district

court on this issue. See United States v.

Johnson, 738 F. Supp. 591, 592-94 (D. Mass.

1990). From the legislative history of § 956

the magistrate judge concluded that the

particularity requirement of § 956(b) was

added to shield a discrete class of conduct

39a

from the reach of § 956(a), namely,

constitutionally protected activity, such as

a pro-PIRA speech or a PIRA fund-raising

event, that only indirectly implicates the

injury of foreign property. See id. at 593.

Viewed in this light, the magistrate

judge suggested, "the specificity requirement

in Section 956 does not mean that the

property which is the object of the

conspiracy to destroy needs to be described

in minute detail." Id. To require more

specificity than the number, class, and

location of the targeted property "would be

to subvert the purpose and intent of the

statute, in effect, to render it

meaningless." Id. Indeed, in the case

before us, the charging language describes

40a

the vulnerable property with as much

specificity as did the conspirators

themselves. At no time did appellants single

out a particular helicopter to be destroyed.

Rather, the record reflects their commitment

to the destruction of British military

helicopters in Northern Ireland, generally.

B. Sufficiency of the Evidence

Appellants also assert that the evidence

at trial was insufficient to warrant guilty

verdicts against them on Count Three.

Appellants’ sufficiency challenge on Count

Three tracks their specificity claim and,

accordingly, fails. Although the evidence at

trial established appellants’ interest in an

indeterminate number of helicopters comprised

of several classes, rather than in any

|

particular machine, this was all that was

required. And it is beyond question that,

taking the evidence and all reasonable

inferences therefrom in the light most

favorable to the government, the jury could

have found beyond a reasonable doubt that

appellants sought to destroy a class of

military helicopters stationed in a

particular location. See United States v.

Zannino, 895 F.2d 1, 9 (lst Cir. 1990)

(sufficiency standard of review).

The jury had before it the transcript of

the December 15, 1988 conversation in which

Reid introduced Johnson to Quigley, and

Quigley requested Johnson’s assistance in

devising an anti-helicopter missile system.

As well, it had a copy of a 1988 article

42a

published by the political arm of the PIRA

and seized from Reid’s apartment, recounting

the destruction of a British army helicopter

in Northern Ireland by the Irish Republic

Army and describing the helicopters as "a

priority target." From the apartment of

defendant Hoy, a coconspirator in this case,

see supra note 1, the FBI seized a

handwritten list of the five classes of

helicopters stationed at the Royal Air Force

Station in Aldergrove, Northern Ireland, and

a copy of British Military Helicopters, both

of which were presented to the jury. The

government also introduced a variety of

direct evidence, in the form of intercepted

conversations, of the efforts of Reid and

Quigley to obtain access to rocket motors

43a

thorough a rocketry society. Taking this and

the rest of the evidence in the light most

favorable to thé government, we must uphold

the jury’s guilty verdicts against appellants

on Count Three.

IV. Count Four: First Amendment

Challenge to 18 U.S.C. § 957

Johnson, on behalf of himself and

Quigley,® claims that 18 U.S.C. § 957, the

statute underlying Count Four of the

indictment, violates the First and Fourteenth

Amendments of the Constitution because it is

"substantially overbroad in its formulation

and impermissibly vague in its

8. In his brief, Quigley incorporates

Johnson’s argument on this issue in its

entirety. For ease of reference, however, we ’

discuss the claim as it made only by Johnson.

44a

’ The thrust of his argument is

application."

that § 957 threatens "the core constitutional

guarantees of unfettered political

association and expression . .. ." Johnson

Opening Brief at 33. Briefing neither the

overbreadth nor vagueness arguments in

accordance with the substantial law on point,

Johnson instead merges the two in a series of

sketchy complaints. ‘We consider the

overbreadth and vagueness arguments

separately.

9. 18 U.S.C. § 957 provides for the

punishment of one who “in aids of any foreign

government, knowingly and willfully possesses

or controls any property or papers used or

designed or intended for use in violating any

penal statute, or any of the rights or

obligations of the United states under any

treaty or the law of nation."

45a

A. Overbreadth

Johnson does not argue that his

possession and control of the Harwich

laboratory, in which he carried out research

and development of PIRA weaponry, is

protected expression of that § 957 was

invalidly applied to him. Rather, he appears

to concede that his conduct falls within the

statute’s "legitimate sweep." New York v.

Ferber, 458 U.S. 747, 770 (1982) (quoting

Broadrick v. Oklahoma, 423 U.S. 601, 615

(1973). Johnson is, nevertheless, entitled

to raise an overbreadth challenge, since a

statute whose. terms are so broad as to chill

a "substantial" amount of protected speech of

parties not before the court, New York State

Club Ass’n v. City of New York, 487 U.S. 1,

46a

14 (1988), may not be enforced against

anyone, even one whose activity the statute

legitimately governs. See id. at 11; Ferber,

458 U.S. at 770 (quoting Broadrick, 413 U.S.

at 615); Magill v. Lynch, 560 F.2d 22, 29

(lst Cir. i977).

Johnson’s First Amendment attack upon §

957 depends, therefore, upon the strength of

his showing that the statute chills a

substantial amount of protected expression.

Toward this end, he asserts that § 957

threatens the "basic right to speak out and

participate in matters of international

concern," and provides examples, relegated to

a footnote in his Reply Brief, of conduct

that he maintains is impermissibly

compromised by the statute’s broad language.

47a

His examples include the possession of

blueprints for a robbery planned by someone

else and the possession of a treatise on

violent revolution, where the possessor knows

but does not share the author’s intent.

Possession of Abby Hoffman’s Steal This Book,

is, according to Johnson, likewise chilled by

§ 957, presumably since the title of the work

suggests an intent to violate a penal

statute. At oral argument Johnson added two

examples of actual individuals whose

protected expression would fall within the

statute’s prohibitions: a university

profession possessing pro-PLO literature, and

a lawyer, Johnson’s counsel, holding

pro-Israeli materials.

Even under Johnson’s expansive reading

48a

of the reach of § 957, we are not persuaded

that the likely impact of possible

unconstitutional applications is sufficient

to invalidate the statute, broadly worded

though it may be. "It is clear. . . that

the mere fact that one can conceive of some

impermissible applications of a statute is

not sufficient to render it susceptible to

overbreadth challenge." City Council v.

Taxpayers For Vincent, 466 U.S. 789, 800

(1983). See also Ferber, 458 U.S. at 770, n.

25; Broadrick, 413 U.S. at 618. Rather, a

"substantial overbreadth" determination

requires that the party launching the facial

attack “demonstrate from the text of [the

statute] and from actual fact that a

substantial number of instances exist in

49a

which the [statute] cannot be applied

constitutionally." New York State Club

Ass’n, 487 U.S. at 14. See also Taxpayers for

Vincent, 466 U.S. at 802.

Johnson’s examples fall short of the

requisite substantiality showing. Abby

Hoffman’s work remains popular, and we have

been directed to no other books which, since

the enactment of § 957 in 1948, have been

chilled by the statute. Moreover, § 957

evidently has had no chilling effect upon the

political speech of either the university

professor or lawyer described by Johnson at

argument. Indeed, that § 957 apparently has

never been enforced until now, and that,

since 1948, Americans have regularly

expressed their support of subversive ideas

50a

of institutions, often "in aid of a[{]} foreign

government," § 957, counsels against a

finding of substantial overbreadth in this

case. See New York State Club Ass’, 487 U.S.

at 14, and Taxpayers for Vincent, 466 U.S. at

802 (refusing to find substantial overbreadth

where litigants failed to develop adequate

record of speech-deterrent impact on their

parties).

We are unpersuaded by Johnson’s First

Amendment claim, not only because he has

failed to demonstrate that § 957

substantially threatens the protected

activity of parties not before the court, but

also, and more importantly, because, as we

read it, the statute does not impermissibly

interfere with protected speech. Until now,

51a

there has been no challenge to, and no

occasion to interpret, § 957. The instant

case, however, presents us with both. We

therefore turn to our interpretation of the

statute.

We agree with the district court that

the objective of § 957 is "to prohibit

certain conduct, not to impinge on

constitutionally protected speech." United

States v. Johnson, 738 F. Supp. 594, 596 (D.

Mass. 1990). It is well settled that "the

state may .. . curtail speech when necessary

to advance a significant and legitimate state

interest," where it does so ina

viewpoint-neutral manner unrelated to the

suppression of ideas. Taxpayers for Vincent,

52a

466 U.S. at go4. 2° In the case before us, it

is undisputed that the federal government has

significant and legitimate interests in

curbing criminal activity undertaken in aid

of a foreign power and in ensuring the

observance of its treaty obligations.

We believe that § 957 furthers this

interest with only incidental impact upon

First Amendment liberties. Punishment for

10. See also United states v. O’Brien, 391

U.S. 367, 376 (1968) (where "’speech’ and

‘nonspeech’ elements are combined in the same

course of conduct, a sufficiently important

government interest in regulating the

nonspeech element can justify incidental

limitations on First Amendment freedoms") ;

Texas v. Johnson, 491 U.S. 397, 407 (1989)

(limiting application of lenient O’Brien rule

"to those cases in which ‘the governmental

interest is unrelated to the suppression of

free expression’" (quoting O’Brien, 391 U.S.

at 377)).

53a

the possession of papers or property is

predicated not upon the subversive message of

such materials, but upon their actual or

intended use in the commission of a crime or

the violation of an international obligation

of the United States in aid of a foreign

government.

In our view, the plain import of the

‘used or intended for use’ qualification in §

°57 is to limit punishment under the statute

to cases where the papers or property at

least fall within an exceedingly narrow

category of material, what might be called

11

instrumentalities of crime. This could

11. In so construing § 957, we are guided by

the principle that "application of the

overbreadth doctrine is ‘strong medicine’

that should e invoked only ‘as a last

54a

include items obviously used for criminal

purposes, such as counterfeit dollars and the

printing press on which they are produced.

The statute also would cover the possession

of less telling materials, such as papers

relating to the design of a bomb and property

comprising the components with which it is to

be built, where the possessor intends to use

these items in violating a penal statute or

an international obligation of the United

resort,’" Secretary of State of Maryland v.

J. H. Munson Co., 467 U.S. 947, 958 (1984)

(quoting Broadrick, 413 U.S. at 613), as well

as our duty to construe a federal statute to

avoid constitutional problems where such a

construction is reasonable and not contrary

to congressional intent. See DeBartolo

Corp. v. Florida Gulf Coast Building &

Constr. Trades Council, 485 U.S. 568, 575

(1988); Arnett v. Kennedy, 416 U.S. 134, 162

(1974).

55a

states in aid of a foreign government .

One may not, on the other hand, be

prosecuted under § 957 for exercising the

"right to speak out and participate in

matters of international concern," for

possessing a manifesto urging "violent

revolution," or for owning pro-Israeli or

pro-PLO literature, as Johnson suggests.

Nor, indeed, may one be subject to liability

for the possession of any paper or property

12. We reject Johnson’s argument that the

statute fails to specify whose "design" or

“intent” controls the § 957 liability

determination. A fair reading of the statute

makes clear that liability turns upon the

possessor’s intent to violate either a penal

statute or an international obligation of the

United States.

56a

merely advocating lawless activity.}? We,

therefore, are satisfied that to the extent

that § 957 encroaches upon the exercise of

free speech, it does so in furtherance of

substantial government interests and in a

manner unrelated to the suppression of

13. Johnson’s objection to the absence of an

"“imminence" requirement from § 957 is,

therefore, inapposite. See Johnson Reply

Brief at 20, relying on Brandenberg v. Ohio,

395 U.S. 444 (1969) (state may not punish

advocacy of illegal or violent action unless

"such advocacy is directed to inciting or

producing imminent lawless action and is

likely to incite or produce such action."

Id. at 447).

14. Consider, by way of contrast, the ban on

"all First Amendment activities" from the

terminal area of Los Angels International

Airport, invalidated on overbreadth grounds

in Board of Airport Commissioners of the City

of Los Angeles v. Jews for Jesus, 482 U.S.

569 (1987). In that case, thee Supreme Court

57a

We cannot say that there will never be a

case in which § 957, even as construed by us,

might be applied impermissibly. To warrant

facial invalidation, though, "the overbreadth

of a statute must not only be real, but

substantial as well... .™" Ferber, 458 U.S.

at 770 (quoting Broadrick 413 U.S. at 615).

Having already addressed the inadequacy of

Johnson’s substantiality showing, we "must

assume that ‘whatever overbreadth may exist

invalidated the resolution because it was an

"absolute prohibition of speech" justified by

"no conceivable governmental interest

-" Jews For Jesus, 483 U.S. at 575.

Similarly, the Broadrick Court rejected

petitioner’s facial overbreadth challenge to

a statute forbidding state employees from

engaging in certain partisan political

activity on grounds that the statute was "not

- - . Girected at particular groups or

viewpoints," and that it sought "to regulate

political activity in an even-)anded and

neutral manner." 413 U.S. at 616.

58a

should be cured through case-by-case analysis

of the fact situations to which [the

statute’s] sanctions . . . may not be

applied.’" New York State Club Ass’n, 487

U.S. at 14 (quoting Broadrick, 413 U.S. at

615-16). More drastic measures than this, we

are obliged to leave to Congress.

B. Vagueness

Johnson argues that § 957 is

impermissibly vague in its application in

violation of the Due Process Clause of the

Fourteenth Amendment. We find that Johnson

lacks standing to raise this claim.

It is settled beyond controversy that

one whose conduct is clearly governed by a

statute may not successfully challenge it for

vagueness. See Parker v. Levy, 417 U.S. 733,

59a

756 (1974); United States v. Morison), 844

F.2d 1057, 1071 (4th Cir. 1988) (citing Levy,

id.). Johnson does not argue that § 957 was

15 He maintains,

unfairly applied to hin.

instead, "that a defendant may .. . raise a

facial challenge to § 957 on vagueness

grounds," where First Amendment freedoms are

involved. In Levy, a case which did

implicate First Amendment liberties, the

Supreme Court rejected precisely this

argument, characterizing it as "a blending of

the doctrine of vagueness with the doctrine

of overbreadth . .. not .. . supported by

15. The district court, adopting the report

and recommendation of the magistrate judge,

concluded, and we agree, that the statute was

validly applied to Johnson and Quigley for

their possession of the Harwich laboratory.

See Johnson, 738 F. Supp. 597-98.

60a

prior decisions of this Court." 417 U.S. at

756. We therefore do not reach the merits of

Johnson’s due process clain.

Vv. Quigley’s Claims: Variance,

Sufficiency, Severance

Appellant Quigley seeks reversal of the

verdicts returned against him on a variety of

grounds independent of those asserted by

appellants as a group. He maintains that a

prejudicial variance between the conduct

charged in Count One and the evidence adcuced

at trial denied him a fair trial, that the

evidence was insufficient to support his

convictions on Counts one and Four, and that

the district court’s denial of his motion for

severance deprived him a fair trial.

61a

A. The Variance and Sufficiency Claims

Quigley argue that a prejudicial

variance between the conspiracy charged in

Count one?® and the evidence adduced at

trial produced reversible error. Count One

describes a single conspiracy, spanning the

years between 1981 and 1989, “to further the

forcible reunification of Northern Ireland

the and Republic of Ireland by means of an

armed insurrection waged by the Provisional

Irish Republican Army against British and

Northern Ireland authorities." According to

Quigley, however, the evidence at trial

16. Count One charges all three appellants

with conspiracy of export defense materials

and services illegally in violation of 18

U.S.C. § 371 ("Conspiracy to commit offense

or to defraud United States") and 22 U.S.C. §

2778.

62a

proved the existence of two conspiracies, one

directed at the export of defense articles

and services for the perfection of

remote-control bombs, and another aimed at

the export of a missile system conceived

specifically of the purpose of destroying

British military helicopters.

Quigley insists that there was

insufficient evidence of his involvement in

any pre-1988 arms export activity to support

his conviction for the broad conspiracy he

finds charged in Count One. In United States

v. Glenn), 828 F.2d 855 (lst Cir. 1987), we

adopted a three part test for determining

whether a prejudicial variance exists as to

any defendant. We determine first whether

there is “evidence sufficient to permit a

63a

jury to find the... agreement that the

indictment charges," Id. at 858. Where no

such evidence exists, we consider whether the

evidence is "sufficient to permit a jury,

under a proper set of instructions, to

convict the defendant of a related, similar

conspiracy." Id. Where such evidence

exists, we ask whether the variance amounts

to “harmless error." Id.

Because we answer the first of the Glenn

inquiries in the affirmative, we need not

address the other two. On December 15, 1988,

Quigley asked Johnson, over a pay telephone,

to assist him in the production of a missile

system "to counteract .. . low flying

helicopters." Quigley adverted to his

awareness of Johnson’s pre-1988 work

64a

perfecting PIRA weaponry, including a

laser-detonation mechanism for the remote

control bombs, and to his own past and

ongoing efforts on this score.?/

This conversation permits an inference

that Quigley not only knew about, but also

participated in, the pre-1988 operations. At

the least, it shows that Quigley recognized

17. For example, Quigley told Johnson, "As

you probably guessed by now, I kind of, we’re

experiencing a slight technical problem;"

"and you kids helped us out of these

situations before and ah, we’re looking to

you once again"; "[ajs I was saying ‘

we’re developing a new system... ."; "it’s

a much different system... . But it’s

what’s available to use as you well knew so

some of these .. . use radar, infra-red,

acoustic . .. magnetic, etcetera"; "[s]jo

we’re kinda looking to you if, if possible,

could you look into that field for us?" "As

[Maguire] said to me . .. yourself and him

we’re always about ten years ahead of

everybody else."

65a

that the post-1988 missile system on which he

worked was simply the most recent in a series

of projects undertaken by the conspirators to

assist the PIRA in its attacks against

British interests in Northern Ireland. Thus,

whatever his particular involvement in the

pre-1988 work, we think the record at a

minimum shows a "tacit understanding," Glenn

828 F.2d at 858, on Quigley’s part, that he

was joining an extant scheme to bring about

the forcible reunification of Ireland.

Quigley was properly charged, and found

culpable for, his mémbership in the broad

conspiracy described in Count One.

We find no merit to Quigley’s argument

that insufficient evidence existed to find

that he committed overt acts in furtherance

66a

of this conspiracy. Quigley’s concession

that "the exhibits seized from Quigley and

Hoy showed that they had done the preliminary

design of a rocket system to a point where

construction could begin," is, by itself,

enough to prove his involvement. Quigley has

failed to demonstrate that a reasonable jury,

taking all of the evidence, and reasonable

inferences therefrom, in the light most

favorable to the government, could not have

returned a guilty verdict against him for the

offense charged. Zannino, 895 F.2d at "ied

18. We also reject Quigley’s sufficiency

argument with respect to Count Four, which

charged him with aiding and abetting Johnson

in the possession and control of the Harwich

laboratory. Quigley concedes that the

evidence against him "consisted ... of the

facts that [he] and Johnson had discuss([ed]

with each other various electronic projects

67a

B. The Motion for Severance

Quigley argues that the district court’s

denial of his motion for severance under Fed.

R. Crim. P. 14 violated his Sixth Amendment

9

right to a fair trial.? His claim is hewn

in the development of a rocket system; [that]

their correspondence covered some details of

technical work Johnson had done [,] and that

Quigley visited the Johnson home .. . and

viewed . . . Johnson’s .. . ‘laboratory

workshop,’" where his fingerprints were

found. Quigley Brief at 31. This evidence is

sufficient to permit a reasonable jury to

find that Quigley affirmatively participated

in the Harwich "venture," and so aided and

abetted in the offense charged. See Nye &

Nissen v. United States 336 U.S. 613, 619

(1949); United States v. Lema, 909 F.2d 561,

569 (lst Cir. 1990).

19. Rule 14 provides, in relevant part:

If it appears that a defendant or

the government is prejudiced by a

joinder of offenses or of

defendants .. . for trail

together, the court may .. . grant

68a

from the same wood as his prejudicial

variance claim: because he was not involved

in the pre-1988 exportation of remote-control

bomb components, he was substantially

prejudiced by the joint trial of all three

appellants in this case. 7°

Our conclusion that Quigley was properly

charged and convicted for the overall scheme

alleged in Count One effectively resolves the

severance claim as well. Because Quigley’s

a severance of defendants or

provide whatever other relief

justice requires.

20. Quigley objects to the introduction

against him of the Johnson-Maguire

"Clondalkin letter," "the Armagh device," (a

remote-control bomb recovered from a

PIRA-sponsored explosion), the FBI videotape

of an explosion caused by a simulated PIRA

bomb, a 1965 newspaper article published by

the PIRA, and evidence of appellant Johnson’s

acquisition of bomb components.

69a

involvement as a conspirator could be found

to encompass both the pre-and the post-1988

exportation, there was no need to exclude

evidence relevant to the pre-1988 activity

from the jury’s determination of his guilt.

The trial court’s refusal to grant Quigley

his own trial, or to compartmentalize the

evidence at the joint trial as Quigley would

have preferred, therefore, cannot be deemed

an abuse of discretion. See United States v.

Natanel, 938 F.2d 302, 308 (1st Cir. 1991)

(review of denial of severance motion is for

abuse of discretion).

=

VI. Reid’s Claims: Sufficiency of the Evidence”

21. We have considered Reid’s claim that the

district court committed reversible error in

70a

Reid argues that the verdicts returned

against her on Counts One and Three were not

supported by adequate evidence of her

knowledge of the objective underlying the

conspiracies charged. The indictment

identifies the objective underlying the arms

exportation conspiracy charged in Count One

as the furtherance of "the forcible

reunification of Northern Ireland and the

Republic of Ireland by means of an armed

insurrection waged by the [PIRA)." It

describes the purpose of the anti-helicopter

agreement charged in Count Three as the

refusing to charge the jury precisely as she

requested, and find it to be without merit.

See United states v. Passos Paternina, 918

F.2d 979, 984 (1st Cir. 1990) (citing United

States v. Gibson, 726 F.2d 869, 874 (1st Cir.

1984)).

71a

injury and destruction of British military

helicopters stationed at the Royal Air Force

Station in Aldergrove, Northern Ireland.

It is axiomatic that to be found guilty

of conspiracy, a defendant must be found to

have had knowledge of, and an intent to

further, the objectives of the conspiracy.

See United states v. Rengifo, 858 F.2d 800,

808 (lst Cir. 1988); United States v. Marsh,

747 F.2d 7, 12 (1st Cir. 1984). To obtain a

guilty verdict against a defendant charged

with conspiracy, however, the government need

not show that the defendant concurred in

every detail of the underlying objective of

the conspiracy; nor need it prove that she

appreciated the full extent of the illegal

enterprise. See United States v.

72a

Rivera-Santiago, 872 F.2d 1073, 1079 (1st

Gir. 1989). All that is required is a showing

"that [the defendant] appreciated ‘the

essential nature of the plan,’ and freely

determined to associate [{her]self with it."

United States v. Ruiz, 905 F.2d 499, 506 (1st

Cir. 1990) (citation omitted) (quoting

Rivera-Santiago, 872 F.1d at 1079 (quoting

Blumenthal v. United States, 332 U.S. 539,

557 (1947))).

On Count One, there was more than

adequate evidence upon which a reasonable

jury might have found Reid not only to be

"connected" with the charged exportation

plan, but to have understood fully and joined

wholeheartedly in it. The Johnson-Maguire

"Clondalkin letters," which address the

73a

design, construction, and export of

remote-control bombs, contain numerous

references to Reid’s direct participation in

the exportation scheme.

The letters describe Reid carrying a

component for a bomb in June, 1983, to

"Sean," an associate of Maguire in Northern

Ireland, and to her delivering a message from

"Sean" to Johnson that "Sean" was in need of

handguns. The letters also state that Reid

was, in the words of Johnson and Maguire,

"doing a fine job," "really taking to

electronics," "know[ing] her way around

pretty well," becoming "a real asset," being

"dazzled" by "Sean," and "doing the necessary

gopher work." And, though, in their letters,

Johnson and Maguire more often refer to Reid

74a

as "the bird," "the girl," or “our young

friend," rather than by name, a reasonable

jury certainly could have found that this

person, and "the young lady . . . named

Chris" and "C. Reid," were one and the same.

The evidence also established that in

1983 Reid gave a false address and social

security number in order to secure a post

office box in her name for use by Johnson and

Quigley to insure the continued security of

their correspondence. Seized from Reid’s

apartment was a note requesting her to ship

"as soon as possible" a PRO 30 scanner, a

variant of which was recovered from a PIRA

car bomb detonated in Northern Ireland in

1985. The note stated that "the rest of the

gifts can follow at intervals as usual." In

75a

addition, seized from Reid’s apartment was a

letter from one "Liam," asking Reid to warn

Johnson that the Irish authorities had seized

his letters to Maguire and to urge him not to

respond to any letter without being certain

of its authenticity.

As for Reid’s knowledge of the objective

of the anti-helicopter conspiracy, we need

only point to her arrangement of and

participation in the telephone conversation

of December 15, 1988, in which Quigley

requested Johnson’s help in developing a

missile system to destroy British

helicopters. That Reid introduced Johnson to

Quigley on the occasion of this exchange and,

thereafter, corresponded with Quigley

regularly on the subject of her joining a

76a

rocketry society so that she might learn to

operate rocket motors, would permit a

reasonable jury to infer her knowledge and

approval of the proposed bombing of the

helicopters at Aldergrove.

Given the profusion of evidence of

Reid’s direct participation in the

conspiracies charged, we cannot say that the

jury unreasonably concluded that she

understood and assented to their underlying

purposes. 77 See Zannino, 895 F.2d at 9.

22. In response to Reid’s argument that the

out-of court statements of coconspirators

standing alone are insufficient to prove

knowing participation beyond a reasonable

doubt, we note, and Reid concedes, that

neither the Supreme Court nor this circuit

has ruled on this issue. We find, however,

that adequate evidence existed or which the

jury reasonably could have found

knowledgeable participation on Reid’s part,

77a

VII. The Johnson and Quigley Sentences

Johnson and Quigley attack the legality

of their sentences on several fronts. 7° We

consider each in turn.

A. Sophisticated Weaponry

The government and appellants agree that

U.S.S.G. § 2M5.2, "Exportation of Arms,

Munitions, or Military Equipment or Services

Without Required Validated Export

even ignoring the written and spoken

statements of Johnson and Quigley.

23. The district court sentenced Johnson to

60 months of incarceration on Count One, 120

months on Count Two, 36 months on Count

three, and 120 months on Count Four, all to

be served concurrently. -It sentenced Quigley

to a 60 month term of incarceration on Count

One, a 36 month term on Count Three, and a 96

month term on Count Four, all to be served

concurrently.

78a

License,"was the applicable guideline for

determining the sentences of Johnson and

Quigley on Counts One and Two.74 Johnson,

however, on behalf of himself and Quigley,

objects to the district court’s determination

that appellants’ conduct involved a

conspiracy to export "sophisticated weaponry"

such that a base offense level of 22, rather

than 14, was appropriate. The gist of

appellants’ argument is that the "defense

articles" forming the basis of the illegal

exportation offense charged in Count One may

not be classified as "sophisticated" or, for

24. Congress amended §2M5.2 in 1990. In its

prior form, and as applied to appellants, §

2M5.2 set the base offense level at the

greater of "(1) 22, if sophisticated weaponry

was involved; or (2) 14."

79a

that matter, as "weaponry," since "virtually

every item [appellants were] alleged to

export was readily available at hobby shops

and consumer-oriented electronics stores, and

- » « had common, nonmilitary applications."

Johnson Opening Brief at 38.

We are unpersuaded, to say the least, by

appellant’s cast of the facts. It is

precisely their skill in making extraordinary

the ordinary that warrants a finding of

"sophistication" under §2M5.2. As the

Probation Department suggested, in a report

adopted by the district court, "the ability

to take readily available items and...

using knowledge and skills gained through

extensive education and on the job training

- »« rework them so that they become a radio

80a

controlled detonating device," underscores

the sophistication of appellants’

handiwork. *> See also United States v.

Nissen, 928 F.2d 690, 694 (5th Cir. 1991)

(components "’involved’ in a tangible way

with ‘sophisticated weaponry,’" are

"sophisticated weaponry" within meaning of

§2M5.2).

When reviewing a sentence under the

guidelines, we accept the factual findings of

the district court unless they are clearly

erroneous. See 18 U.S.C. § 3742(e); United

States v. Pilgrim Market Corp., No. 91-1581,

25. Because we were not provided with the

Addendum to the Presentence Report for

appellant Johnson, in which this statement

appears, we have excerpted it from the

government’s consolidated Brief at 101-02,

n.75.

Slip op. at 4-5 (lst Cir. Sept. 5, 1991).

There was no error in the district courts’

finding that appellants dealt in

"sophisticated weaponry."

B. The Upward Departure

Appellants also argue that the district

court wrongly departed upward from the

guidelines sentencing range by considering

factors that are not, according to

appellants, “aggravating circumstances"

permitting such departures. See U.S.S.G.

§5K2.0.

At disposition, the district court

specified the reasons for its departure

decision. It referred to the "cool,

deliberative, calculated" quality of

appellants’ conversations regarding the

82a

development of weaponry in aid of the PIRA

and the utter lack of "any expression of

remorse or contrition” in these

conversations. The court noted that

appellants discussed the development of

weapons likely to result in injury and death

like "two trained individuals...

discussing a mechanical problem that they had

to solve." As well , the judge repeatedly

referred to "the potential for death to

innocent people" produced by appellants’

activities. The court also referred to the

"extreme" amount of "planning and

sophistication" in the arms export

conspiracy; the "multiple occurrences" of

illegal conduct; and the threat posed by

appellants’ arms export conspiracy to an

American security interest, namely, the

peaceful resolution of the conflict in

Northern Ireland. In addition, the court

characterized appellants’ conduct as

"terrorism, flat out," and reckoned this

factor in its departure calculation.

Our review of departure decisions

follows a three-step analysis. See United

States v. Aymelek, 926 F.2d 64, 69 (1st Cir.

1991); United States v. Diaz-Villafane, 874

F.2d 43, 49 (lst Cir. 1989). We first inquire

whether, as a matter of law, the

circumstances relied upon by the sentencing

court “are of a kind or degree that .. . may

appropriately be relied upon to justify

departure." Diaz-Villafane, id. Second, "we

determine whether the circumstances, if

84a

conceptually proper, actually exist in the

- - case." Id. Lastly, we measure the

reasonableness of the direction and degree of

the departure. See id. Regarding the third

step, “appellate review must occur with full

awareness of, and respect for, the trier’s

superior ‘feel’ for the case." Id. at 49-50;

"(wje will not lightly disturb decisions to

depart ... ." Id. at 50.

Under the first step of the

Diaz-Villafane analysis we find that, as a

matter of law, each of the circumstances

relied upon by the court was an appropriate

basis for the departure. Section 5K2.8 of

the guidelines specifically authorizes a

departure from the guidelines range for

"unusually .. . cruel" or otherwise "extreme

85a

conduct." More generally, §5K2.0 provides

that the sentencing court may impose a

sentence outside the range recommended by the

guidelines if it finds any aggravating or

mitigating circumstance "’of a kind or to a

degree not adequately taken into

consideration by the Sentencing Commission in

formulating the guidelines.’" §5K2.0

(quoting 18 U.S.C. § 3553(b)).

While the district court did not

specifically advert to §§ 5K2.8 or 5K2.0, we

are free to consider their applicability.

See Acha v. United states, 910 F.2d 28, 30

(lst Cir. 1990); Doe v. Anrig, 728 F.2d 30,

32 (lst Cir. 1984) (court of appeals free to

affirm based on any ground supported by the

record). The court did rely expressly upon

86a

§5K2.14, which authorizes departures fro the

endangering of the public welfare and

national security, and on § 2M5.2, which

permits departures where an extreme amount

"of planning or sophistication" or "multiple

occurrences," or a threat to national

security is found. §2M5.2, comment. (n.2).

Appellants argue that the district court

erred in deeming the threat to national

security and the potential for death and

destruction produced by appellants’ conduct

“aggravating circumstances," because,

according to appellants, these factors were

adequately taken in to account by the

Sentencing Commission in establishing the

guidelines. Appellants note that the Arms

Export Control Act underlying Counts One and

87a

Two of the indictment was enacted in

"furtherance of world peace and the security

and foreign policy of the United States," 22

U.S.C. § 2778(a) (1), and that § 2M5.2 of the

guidelines, prescribing the case offense

level for the arms export offenses, presumes

the existence of a threat to national

security and the potential for death and

destruction. They similarly attack the

court’s reliance upon appellants’ terroristic

purpose in the departure determination,

claiming that their convictions for the

offense charged in Count Four were predicted

upon terrorist activity, namely, their

"aiding a faction and body of insurgents."

We find no merit to these arguments.

Their logic would require that an

88a

international?» trained terrorist bent on

murdering scores of innocent civilians be

sentenced no more severely than an unlicensed

arms dealer; and that one who would provide

arms to a body of insurgents be sentenced no

more harshly than one who would supply them

with drug paraphernalia. The guidelines

plainly preclude such results. Section 5K2.0

permits an upward departure where factors --

a threat to national security or terroristic

purpose, for example -- are present "to a

degree substantially in excess of that which

ordinarily is involved in the offense of

conviction," or in any configuration "’not

adequately taken into consideration’" by the

Sentencing Commission, 9quoting 18 U.S.C. §

3553(b); emphasis added).

89a

Turning to the second and third of the

Diaz-Villafane steps, we are satisfied that

there was ample evidence, much of it set

forth in the foregoing portions of this

opinion, to support the district court’s

findings on the factors justifying upward

departure. In addition, we conclude that the

degree of the departure, which effectively

doubled Johnson’s sentence, was reasonable.

"Although ‘there appears to be some

inherent tension in the guidelines themselves

as to the extent to which departure is

permissible,’ we read the Guidelines as

envisioning considerable discretion in

departure decisions . .. ." Diaz-Villafane,

874 F.2d at 52 (citation omitted) (citing S.

Rep. No. 225, 98th Cong., 2d Sess. (1984),

90a

reprinted in 1984 U.S.C.C.A.N. 3182, 3235

(purpose of Guidelines "is to provide a

structure for evaluating the fairness and

eeebenriatebcas of the sentence for an

individual offender, not to eliminate the

thoughtful imposition of individualized

sentences")).

In Diaz-Villafane we upheld a departure

that more than tripled defendant’s maximum

term. As we stated in that case, while

"cognizant that departures should be the

exception rather than the rule, we must

nonetheless defer, within broad limits, to

the trial judge’s intimate familiarity with

the nuances of a given case." 874 F.2d at 52

(citation omitted). Because we do not find

the degree of departure in this case to be

9la

"outside the universe of acceptable

punishments," id., we defer to the district

court’s decision.

cS; The Ex Post Facto Claim

Appellants argue that the district

courts’ reliance on the guidelines policy

statement regarding terrorism, § 5M2.15,

violates the Ex Post Facto Clause of Article

I of the Constitution because the statement

was issued in November 1989, after the

criminal acts charged in the indictment were

complete. We agree that the court improperly

relied upon the statement, but we find this

error to be of no consequence.

The bare fact that the district court

applied § 5M2.15 to pre-November 1989 conduct

does not mean that an ex post facto

92a

punishment was visited upon appellants. In

the sentencing arena, an ex post facto law is

one that "’changes the punishment, and

inflicts a greater punishment, than the law

annexed to the crime, when committed.’"

Miller v. Florida, 482 U.S. 423, 429 (1987)

(quoting Calder v. Bull, 3 Dall. 386, 390

(1798)).

Appellants have made no showing that the

court’s reliance upon § 5M2.15 resulted in

the imposition of a more severe punishment

than would otherwise have been ordered. As

we have indicated, the trial court

articulated a number of legitimate bases,

while apart from the terrorism factor, for

its departure decision. And, to the extent

that the court sought to consider appellants’

terrorism an aggravating circumstance

warranting an increased sentence, it was free

to do so even before the publication of §

5M2.15. Upon issuing § 5M2.15, the Sentencing

Commission commented that "[(t]jhis amendment

does not make a substantive change. Such

conduct is .. . included in. . . other

policy statements." U.S.S.G. App. C, at

C.292 (Nov. 1991 ed.). See, e.g., § 5M2.0

("({c)ircumstances that may warrant departure

from the guidelines pursuant to this

provision cannot, by their very nature, be

comprehensively listed an analyzed in

advance").

We conclude that the trial court’s

references to § 5M2.15 at disposition did not

violate appellants’ constitutional right to

94a

be free of ex post facto punishment.

D. Other Sentencing Issues

Appellants argue that the district court

erred in using the arson guideline, § 2K1.4,

to determine their sentences on the Count

Four convictions. See 18 U.S.C. § 3553 (b)

("ijn the absence of an applicable

sentencing guideline . . . the court shall

. have due regard for the relationship of

the sentence imposed to sentences prescribed

by guidelines applicable to similar offenses

and offenders ... ."). This issue was not

preserved for appeal, Johnson apparently

having made no objection in the district

court, and Quigley having explicitly approved

the use of § 2K1.4 in his Sentencing

Memorandum.

He J

Appellants also contend the trial court

erred in refusing to depart downward under §

2X1.1(b) (2) for an incomplete conspiracy.

The record is ambiguous as to whether this

claim, too, was waived; because the issue

requires little discussion, however, we

nevertheless choose to address it.

A trial court’s discretionary refusal to

depart downward from the guidelines

sentencing range is not appealable. United

States v. Lauzon, No. 90-1661, slip op. at

8-9 (lst Cir. July 16, 1991); United States

v. Jiminez-Otero, 898 F.2d 813, 815 (lst Cir.

1990). We have appellate jurisdiction only

"where it is unclear whether a district

court’s refusal to depart was based on an

exercise of discretion or based upon the

96a

district court’s finding that it could not

depart as a matter of law." Lauzon, slip op.

at 8.

We conclude that review is impermissible

here. Appellants and the government each

argued the appropriateness of a § 2X1.1

departure based on the specific facts of this

case. The court declined to depart downward

on this ground in open court and on the

record. See Tr. Disposition at 14. We have

no reason to believe that its decision

resulted from anything other than a

discretionary determination that the

government had the better of the two

arguments. ae

The judgment of the district court is

affirmed.

UNITED STATES COURT OF APPEALS

For the First Circuit

No. 90-2010

UNITED STATES,

Appellee,

Vv.

RICHARD CLARK JOHNSON,

Defendant, Appellant.

98a

JUDGMENT

Entered December 19, 1991

This cause came on to be heard on appeal

from the United States Court for the District

of Massachusetts, and was argued by counsel.

Upon consideration whereof, It is now

here ordered, adjudged and decreed as

follows: The judgment of the district court

is affirmed.

By the Court:

Clerk

(cc: Ms. Leake, Messrs. Backman, Dershowitz,

Homans ITI)

99a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 90-2010

UNITED STATES,

Appellee,

Vv.

RICHARD CLARK JOHNSON,

Defendant, Appallant.

BEFORE

— fTorruella, Circuit Judge,

COFFIN and Timbers*, Senior Circuit Judges.

* Of the Second Circuit, sitting by designatio

100a

ORDER OF COURT

Entered January 29, 1992

Upon consideration of the motion for

order releasing government applications to

conduct electronic surveillance and extending

time to file petition for rehearing and

rehearing en banc,

It is ordered that the motion is

denied. The alternative request that the

Court deem the motion a petition for

rehearing and rehearing en banc is granted.

The panel of judges that rendered the

decision in this case having voted to deny

the petition for rehearing,

It is ordered that the petition for

rehearing be denied.

By the Court:

FRANCIS P. SCIGLIANO, Clerk.

By: s/s

Chief Deputy Clerk

(cc: Ms. Leake, Messers. O'Dea, Dershowitz,

Zaremski, Papalardo, Roos)

10la

§ 1801. Definitions

As used in this chapter:

(a) “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 substan-

tially composed of United States persons;

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

government or governments to be directed and controlled

by such foreign government or governments;

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

ties in preparation therefor;

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

ly composed of United States persons; or

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

government or governments.

102a

(b) “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 employ-

ee 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

engages in clandestine intelligence activities in the

United States contrary to the interests of the United

States, when the circumstances of such person’s pres-

ence 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

(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 ser-

vice 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 engages 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 con-

duct 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).

(c) “International terrorism” means activities that—

(1) involve violent acts or acts dangerous to human life

that are a violation of the criminal laws of the United

States or of any State, or that would be a criminal violation

if committed within the jurisdiction of the United States or

any State;

(2) appear to be intended—

(A) to intimidate or coerce a civilian population;

(B) to influence the policy of a government by intim-

idation or coercion; or

1N3a

(C) to affect the conduct of a government by assassi-

nation or kidnapping; and

(3) occur totally outside the United States, or transcend

national boundaries in terms of the means by which they

are accomplished, the persons they appear intended to

coerce or intimidate, or the locale in which their perpeira-

tors operate or seek asylum.

(d) “Sabotage” means activities that involve a violation of

chapter 105 of Title 18, or that would involve such a violation if

committed against the United States.

(e) “Foreign intelligence information” means—

(1) information that relates to, and if concerning a Unit-

ed States person is necessary to, the ability of the United

States to protect against—

(A) actual or potential attack or other grave hostile

acts of a foreign power or an agent of a foreign power;

(B) sabotage or international terrorism by a foreign

power or an agent of a foreign power; or

(C) clandestine intelligence activities by an intelli-

gence service or network of a foreign power or by an

agent of a foreign power; or

(2) information with respect to a foreign power or for-

eign territory that relates to, and if concerning a United

States person is necessary to—

(A) the national defense or the security of the United

States; or

(B) the conduct of the foreign affairs of the United

States.

(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other

surveillance device of the contents of any wire or radio

communication sent by or intended to be received by a

particular, known United States person who is in the Unit-

ed States, if the contents are acquired by intentionally

targeting that United States person, under circumstances in

which a person has a reasonable expectation of privacy and

a warrant would be required for law enforcement pur-

poses;

(2) the acquisition by an electronic, mechanical, or other

surveillance device of the contents of any wire communica-

tion to or from a person in the United States, without the

consent of any party thereto, if such acquisition occurs in

the United States;

104a

(3) the intentional acquisition by an electronic, mechani.

cal, or other surveillance device of the contents of any

radio communication, under circumstances in which a

person has a reasonable expectation of privacy and a war-

rant would be required for law enforcement purposes, and

if both the sender and all intended recipients are located

within the United States; or

(4) the installation or use of an electronic, mechanical,

or other surveillance device in the United States for moni-

toring to acquire information, other than from a wire or

radio communication, under circumstances in which a

person has a reasonable expectation of privacy and a war-

rant would be required for law enforcement purposes.

(g) “Attorney Genera!” means the Attorney General of the

United States (or Acting Attorney General) or the Deputy Attor-

ney General.

(h) “Minimization procedures”, with respect to electronic sur-

veillance, means—

(i) specific procedures, which shall be adopted by the

Attorney General, that are reasonably designed in light of

the purpose and technique of the particular surveillance, to

minimize the acquisition and retention, and prohibit the

dissemination, of nonpublicly available information con-

cerning unconsenting United States persons consistent with

the need of the United States to obtain, produce, and

disseminate foreign intelligence information;

(2) procedures that require that nonpublicly available

information, which is not foreign intelligence information,

as ¢ “med in subsection (e)(1) of this section, shall not be

disseir:. »ted in a manner that identifies any United States

person, without such person’s consent, unless such person's

identity is necessary to u ‘derstand foreign intelligence in-

formation or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures

that allow for the retention and dissemination of informa-

tion that is evidence of a crime which has been, is being, or

is about to be committed and that is to be retained or

disseminated for law enforcement purposes; and

(4) notwithstanding paragraphs (1), (2), and (3), with

respect to any electronic surveillance approved pursuant to

section 1802(a) of this title, procedures that require that no

contents of any communication to which a United States

person is a party shall be disclosed, disseminated, or used

for any purpose or retained for longer than twenty-four

<105a

hours unless a court order under section 1805 of this title is

obtained or unless the Attorney General determines that

the information indicates a threat of death or serious bodi-

ly harm to any person.

(i) “United States person” means a citizen of the United

States, an alien lawfully admitted for permanent residence (as

defined in section 1101(a)(20) of Title 8), an unincorporated

association a substantial number of members of which are

citizens of the United States or aliens lawfully admitted for

permanent residence, or a corporation which is incorporated in

the United States, but does not include a corporation or an

association which is a foreign power, as defined in subsection

(a)(1), (2), or (3) of this section.

(j) “United States”, when used in a geographic sense, means

all areas under the territorial sovereignty of the United States

and the Trust Territory of the Pacific Islands.

(k) “Aggrieved person” means a person who is the target of

an electronic surveillance or any other person whose communi-

cations or activities were subject to electronic surveillance.

() “Wire communication” means any communication while

it is being carried by a wire, cable, or other like connection

furnished or operated by any person engaged as a common

carrier in providing or operating such facilities for the trans-

mission of interstate or foreign communications.

(m) “Person” means any individual, including any officer or

employee of the Federal Government, or any group, entity,

association, corporation, or foreign power.

(n) “Contents”, when used with respect to a communication,

includes any information concerning the identity of the parties

to such communication or the existence, substance, purport, or

meaning of that communication.

(o) “State” means any State of the United States, the District

of Columbia, the Commonwealth of Puerto Rico, the Trust

Territory of the Pacific Islands, and any territory or possession

of the United States.

Yee

16a

§ 1802. Electronic surveillance authorization without court

order; certification by Attorney General; reports to

Congressional committees; transmittal under seal;

duties and compensation of communication common

carrier; applications; jurisdiction of court

(a)(1) Notwithstanding any other law, the President, through the

Attorney General, may authorize electronic surveillance without a

court order under this chapter to acquire foreign intelligence infor-

mation for periods of up to one year if the Attorney General

certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications

transmitted by means of communications used exclusively

between or among foreign powers, as defined in section

1801(a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than

the spoken communications of individuals, from property

or premises under the open and exclusive control of a

foreign power, as defined in section 1801(a)(1), (2), or (3)

of this title;

(B) there is no substantial likelihood that the surveillance

will acquire the contents of any communication to which a

United States person is a party; and

(C) the proposed minimization procedures with respect to

such surveillance meet the definition of minimization proce-

dures under section 1801(h) of this title; and

if the Attorney General reports such minimization proceduics ani

any changes thereto to the House F’ermanent Select Committec on

Intelligence and the Senate Select Committce on Intelligence at

least thirty days prior to their effective date, unless the Attorney

General determines immediate action is required and notifies the

committees immediately of such minimization procedures and the

reason for their becoming effective immediately.

(2) An electronic surveillance authorized by this subsection may

be conducted only in accordance with the Attorney General's certifi-

cation and the minimization procedures adopted by him. The

Attorney General shall assess compliance with such procedures and

shall report such assessments to the House Permanent Select Com-

mittee on Intelligence and the Senate Select Committee on Intelli-

gence under the provisions of section 1808(a) of this title.

(3) The Attorney General shall immediately transmit under seal

to the court established under section 1803(a) of this title a copy of

his certification. Such certification shall be maintained under

security measures established by the Chief Justice with the concur-

rence of the Attorney General, in consultation with the Director of

Central Intelligence, and shall remain sealed unless—

(A) an application for a court order with respect t2 the

surveillance is made under sections 1801(h)(4) and 1804 of this

title; or

(B) the certification is necessary to determine the legality of

the surveillance under section 1806(f) of this title.

(4) With respect to electronic surveillance authorized by this

subsection, the Attorney General may direct a specified communica-

tion common carrier to—

(A) furnish all information, facilities, or technical assistance

necessary to accomplish the electronic surveillance in such a

manner as will protect its secrecy and produce a minimum of

interference with the services that such carrier is providing its

customers; and

(B) maintain under security procedures approved by the At-

torney General and the Director of Central Intelligence any

records concerning the surveillance or the aid furnished which

such carrier wishes to retain.

The Government shall compensate, at the prevailing rate, such

carrier for furnishing such aid.

(b) Applications for a court order under this chapter are 2au.ho-

rized if the President has, by written authorization, empowered tlic

Attormy' General to approve applications to the court having jyris-

diction under section 1803 of this title, and a judge to whom an

198a

application is made may, notwithstanding any other law, grant an

order, in conformity with section 1805 of this title, approving

electronic surveillance of a foreign power or an agent of a foreign

power for the purpose of obtaining foreign intelligence informa-

tion, except that the court shall not have jurisdiction to grant any

order approving electronic surveillance directed solely as described

in paragraph (1)(A) of subsection (a) of this section unless such

surveillance may involve the acquisition of communications of any

United States person.

§ 1803. Designation of judges

(a) Court to hear applications and grant orders; record of denial; trans-

mittal to court of review

The Chief Justice of the United States shall publicly designate

seven district court judges from seven of the United States judicial

circuits who shall constitute a court which shall have jurisdiction to

hear applications for and grant orders approving electronic surveil-

lance anywhere within the United States under the procedures set

forth in this Act, except that no judge designated under this subsec-

tion shall hear the same application for electronic surveillance

under this Act which has been denied previously by another judge

designated under this subsection. If any judge so designated denies

an application for an order authorizing electronic surveillance

under this Act, such judge shall provide immediately for the record

a written statement of each reason for his decision and, on motion

of the United States, the record shall be transmitted, under seal, to

the court of review established in subsection (b) of this section.

(b) Court of review; record, transmittal to Supreme Court

The Chief Justice shall publicly designate three judges, one of

whom shall be publicly designated as the presiding judge, from the

United States district courts or courts of appeals who together shall

comprise a court of review which shall have jurisdiction to review

the denial of any application made under this Act. If such court

determines that the application was properly denied, the court shall

immediately provide for the record a written statement of each

reason for its decision and, on petition of the United States for a

writ of certiorari, the record shall be transmitted under seal to the

Supreme Court, which shall have jurisdiction to review such deci-

sion.

(c) Expeditious conduct of proceedings; security measures for mainte-

nance of records

Proceedings under this Act shall be conducted as expeditiously as

possible. The record of proceedings under this Act, including

applications made and orders granted, shall be maintained under

security measures established by the Chief Justice in consultation

with the Attorney General and the Director of Central Intelligence.

(d) Tenure

Each judge designated under this section shall so serve for a

maximum of seven years and shall not be eligible for redesignation,

except that the judges first designated under subsection (a) of this

section shall be designated for terms of from one to seven years so

that one term expires each year, and that judges first designated

under subsection (b) of this section shall be designated for terms of

three, five, and seven years.

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§ 1804. Applications for court orders

(a) — by Federal officer; approval of Attorney General; con-

ents

Each application for an order approving electronic surveillance

under this chapter shall be made by a Federal officer in writing

upon oath or affirmation to a judge having jurisdiction under

section 1803 of this title. Each application shall require the approv-

al of the Attorney General based upon his finding that it satisfies the

criteria and requirements of such application as set forth in this

chapter. It shall include—

(1) the identity of the Federal officer making the application;

(2) the authority conferred on the Attorney General by the

President of the United States and the approval of the Attorney

General to make the application;

(3) the identity, if known, or a description of the target of the

electronic surveillance;

(4) a statement of the facts and circumstances relied upon by

the applicant to justify his belicf that—

(A) the target of the electronic surveillance is a foreign

power or an agent of a foreign power; and

(B) each of the facilities or places at which the electronic

surveillance is directed is being used, or is about to be used,

by a foreign power or an agent of a foreign power;

(S) a statement of the proposed minimization procedures;

(6) a detailed description of the nature of the information

sought and the type of communications or activities to be

subjected to the surveillance;

(7) a certification or certifications by the Assistant to the

President for National Security Affairs or an executive branch

official or officials designated by the President from among

lila

those executive officers employed in the area of national securi-

ty or defense and appointed by the President with the advice

and consent.of the Senate—

(A) that the certifying official deems the information

sought to be foreign intelligence information;

(B) that the purpose of the surveillance is to obtain

foreign intelligence information;

(C) that such information cannot reasonably be obtained

by normal investigative techniques;

(D) that designates the type of foreign intelligence infor-

mation being sought according to the categories described

in section 1801(e) of this title; and

(E) including a statement of the basis for the certifica-

tion that—

(i) the information sought is the type of foreign

intelligence information designated; and

(ii) such information cannot reasonably be obtained

by normal investigative techniques;

(8) a statement of the means by which the surveillance will

be effected and a statement whether physical entry is required

to effect the surveillance;

(9) a statement of the facts concerning al! previous applica-

tions that have been made to any judge under this chapter

involving any of the persons, facilities, or places specified in the

application, and the action taken on each previous application;

(10) a statement of the period of time for which the electron-

ic surveillance is required to be maintained, and if the nature of

the intelligence gathering is such that the approval of the use of

electronic surveillance under this chapter should not automati-

cally terminate when the described type of information has first

been obtained, a description of facts supporting the belief that

additional information of the same type will be obtained there-

after; and

(1%) whenever more than one electronic, mechanical or other

surveillance device is to be used with respect to a particular

proposed electronic surveillance, the coverage of the devices

involved and what minimization procedures apply to informa-

t.on acquired by each device.

(b) Exclusion of certain information respecting foreign power targets

Whenever the target of the electronic surveillance is a foreign

power, as defined in section 1801(a)(1), (2), or (3) of this title, and

each of the facilities or places at which the surveillance is directed

is owned, leased, or exclusively used by that foreign power, the

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application need not contain the information required by para-

graphs (6), (7)(E), (8), and (11) of subsection (a) of this section, but

shall state whether physical entry is required to effect the surveil-

lance and shall contain such information about the surveillance

techniques and communications or other information concerning

United States persons likely to be obtained as may be necessary to

assess the proposed minimization procedures.

(c) Additional affidavits or certifications

The Attorney General may require any other affidavit or certifica-

tion from any other officer in connection with the application.

(d) Additional information

The judge may require the applicant to furnish such other infor-

mation as may be necessary to make the determinations required

by section 1805 of this title.

§ 1805. Issuance of order

(a) Necessary findings

Upon an application made pursuant to section 1804 of this title,

the judge shall enter an ex parte order as requested or as modified

approving the electronic surveillance if he finds that—

(1) the President has authorized the Attorney General to

approve applications for electronic surveillance for foreign

intelligence information;

(2) the application has been made by a Federal officer and

approved by the Attorney General;

(3) on the basis of the facts submitted by the applicant there

is probable cause to believe that—

(A) the target of the electronic surveillance is a foreign

power or an agent of a foreign power: Provided, That no

United States person may be considered a foreign power or

an agent of a foreign power solely upon the basis of

activities protected by the first amendment to the Constitu-

tion of the United States; and

(B) each of the facilities or places at which the electronic

surveillance is directed is being used, or is about to be used,

by a foreign power or an agent of a foreign power;

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(4) the proposed minimization procedures meet the defini-

tion of minimization procedures under section 1801(h) of this

title; and

(5) the application which has been filed contains all state-

ments and certifications required by section 1804 of this title

and, if the target is a United States person, the certification or

certifications are not clearly erroneous on the basis of the

Statement made under section 1804(a)(7)(E) of this title and

any other information furnished under section 1804(d) of this

title.

(b) Specifications and directions of orders

An order approving an electronic surveillance under this section

shall—

(1) specify—

(A) the identify, if known, or a description of the target

of the electronic surveillance;

(B) the nature and location of each of the facilities or

places at which the electronic surveillance will be directed;

(C) the type of information sought to be acquired and-the

type of communications or activities to be subjected to the

surveillance; .

(D) the means by which the electronic surveillance will

be effected and whether physical entry will be used to

effect the surveillance;

(E) the period of time during which the electronic sur-

veillance is approved; and

(F) whenever more than one electronic, mechanical, or

other surveillance device is to be used under the order, the

authorized coverage of the devices involved and what mini-

mization procedures shall apply to information subject to

acquisition by each device; and

(2) direct— hs

(A) that the minimization procedures be followed;

(B) that, upon the request of the applicant, a specified

communication or other common carrier, landlord, custo-

dian, or other specified person furnish the applicant forth-

with all information, facilities, or technical assistance nec-

essary to accomplish the electronic surveillance in such a

manner as will protect its secrecy and produce a minimuin

of-interference with the services that such carrier, landlord,

custodian, or other person is providing that target of elec-

tronic surveillance;

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(C) that such carrier, landlord, custodian, or other per-

son maintain under security procedures approved by the

Attorney General and the Director of Central Intelligence

any records concerning the surveillance or the aid fur-

nished that such person wishes to retain; and

(D) that the applicant compensate, at the prevailing rate,

such carrier, landlord, custodian, or other person for fur-

nishing such aid.

(c) Exclusion of certain information respecting foreign power targets

Whenever the target of the electronic surveillance is a foreign

power, as defined in section 1801(a)(1), (2), or (3) of this title, and

each of the facilities or places at which the surveillance is directed

is owned, leased, or exclusively used by that foreign power, the

order need not contain the information required by subparagraphs

(C), (D), and (F) of subsection (b)(1) of this section, but shall

generally describe the information sought, the communications or

activities to be subjected to the surveillance, and the type of elec-

tronic surveillance involved, including whether physical entry is

required.

(d) Duration of order; extensions; review of circumstances under which

information was acquired, retained or disseminated

(1) An order issued under this section may approve an electronic

surveillance for the period necessary to achieve its purpose, or for

ninety days, whichever is less, except that an order under this

section shall approve an clectronic surveillance targeted against a

foreign power, as defined in section 1801(a)(1), (2), or (3) of this

title, for the period specified in the application or for one year,

whichever is less.

(2) Extensions of an order issued under this chapter may be

granted on the same basis as an original order upon an application

for an extension and new findings made in the same manner as

required for an original order, except that an extension of an order

under this Act for a surveillance targeted against a foreign power,

as defined in section 1801(a)(5) or (6) of this title, or against a

foreign power as defined in section 1801(a)(4) of this title that is not

a United States person, may be for a period not to exceed one year

if the judge finds probable cause to believe that no communication

of any individual United States person will be acquired during the

period.

(3) At or before the end of the period of time for which electronic

surveillance is approved by an order or an extension, the judge may

assess compliance with the minimization procedures by reviewing

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the circumstances under which information concerning United

States persons was acquired, retained, or disseminated.

(e) Emergency orders

Notwithstanding any other provision of this chapter, when the

Attorney General reasonably determines that—

(1) an emergency situation exists with respect to the employ-

ment of electronic surveillance to obtain foreign intelligence

information before an order authorizing such surveillance can

with due diligence be obtained; and

(2) the factual basis for issuance of an order under this

chapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveil-

lance if a judge having jurisdiction under section 1803 of this title ‘+

informed by the Attorney General or his designee at the time of

such authorization that the decision has been made to employ

emergency electronic surveillance and if an application in accord-

ance with this chapter is made to that judge as soon as practicable,

but not more than twenty-four hours after the Attorney General

authorizes such surveillance. If the Attorney General authorizes

such emergency employment of electronic surveillance, he shall

require that the minimization procedures required by this chapter.

for the issuance of a judicial order be followed. In the absence of a

judicial order approving such electronic surveillance, the surveil:

lance shall terminate when the information sought is obtained,

when the application for the order is denied, or after the expiration

of twenty-four hours from the time of authorization by the Attorney

General, whichever is carliest. In the event that such application

for approval is denied, or in any other case where the electronic

surveillance is terminated and no order is issued approving the

surveillance, no information obtained or evidence derived from

such surveillance shall be received in evidence or otherwise dis-

closed in any trial, hearing, or other proceeding in or before any

court, grand jury, department, office, agency, regulatory body,

legislative committee, or other authority of the United States, a

State, or political subdivision thereof, and no information concern-

ing any United States person acquired from such surveillance shall

subsequently be used or disclosed in any other manner by Federal!

officers or employees without the consent of such person, except

with the approval of the Attorney General if the information indi-

cates a threat of death or serious bodily harm to any person. A

denial of the application made under this subsection may be re-

viewed as provided in section 1803 of this title.

lléa

(f) Testing of electronic equipment; discovering unauthorized electronic

surveillance; training of intelligence personne!

Notwithstanding any other provision of this chapter, officers,

employees, or agents of the United States are authorized in the

normal course of their official duties to conduct electronic surveil-

lance not targeted against the communications of any particular

person or persons, under procedures approved by the Attorney

General, solely to—

(1) test the capability of electronic equipment, if—

(A) it is not reasonable to obtain the consent of the

persons incidentally subjected to the surveillance;

(B) the test is limited in extent and duration to that

necessary to determine the capability of the equipment;

(C) the contents of any communication acquired are

retained and used only for the purpose of determining the

capability of the equipment, are disclosed only to test

personnel, and are destroyed before or immediately upon

completion of the test; and:

(D) Provided, That the test may exceed ninety days only

with the prior approval of the Attorney General;

(2) determine the existence and capability of electronic sur-

veillance equipment being used by persons not authorized to

conduct electronic surveillance, if—

(A) it is not reasonable to obtain the consent of persons

incidentally subjected to the surveillance;

(B) such electronic surveillance is limited in extent and

duration to that necessary to determine the existence and

capability of such equipment; and

(C) any information acquired by such surveillance is

used only to enforce chapter 119 of Title 18, or section 605

of Title 47, or to protect information from unauthorized

surveillance; or

(3) train intelligence personnel in the use of electronic sur-

veillance equipment, if—

(A) it is not reasonable to—

(i) obtain the consent of the persons incidentally

subjected to the surveillance;

(ii) train persons in the course of surveillances other-

wise authorized by this chapter; or

(iil) train persons in the use of such equipment with-

out engaging in electronic surveillance;

117a

(B) such electronic surveillance is limited in extent and

duration to that necessary to train the personnel in the use

of the equipment; and

(C) no contents of any communication acquired are re-

tained or disseminated for any purpose, but are destroyed

as soon as reasonably possible.

(g) Retention of certifications, applications and orders

Certifications made by the Attorney General pursuant to section

1802(a) of this title and applications made and orders granted

under this chapter shall be retained for a period of at least ten years

from the date of the certification or application.

§ 1806. Use of information

(a) Compliance with minimization procedures; privileged communications;

lawful purposes

Information acquired from an electronic surveillance conducted

pursuant to this chapter concerning any United States person may

be used and disclosed by Federal officers and employees without

the consent of the United States person only in accordance with the

minimization procedures required by this chapter. No otherwise

privileged communication obtained in accordance with, or in viola-

tion of, the provisions of this chapter shall lose its privileged

character. No information acquired from an electronic surveil

lance pursuant to this chapter may be used or disclosed by Federal

officers or employees except for lawful purposes.

(b) Statement for disclosure

No information acquired pursuant to this chapter shall be dis-

closed for law enforcement purposes unless such disclosure is

accompanied by a statement that such information, or any informa-

tion derived therefrom, may only be used in a criminal proceeding

with the advance authorization of the Attorney General.

(c) Notification by United States

Whenever the Government intends to enter into evidence or

otherwise use or disclose in any trial, hearing, or other proceeding

118a

in or before any court, department, officer, agency, regulatory

body, or other authority of the United States, against an aggrieved

person, any information obtained or derived from an electronic

surveillance of that aggrieved person pursuant to the authority of

this chapter, the Government shall, prior to the trial, hearing, or

other proceeding or at a reasonable time prior to an effort to so

disclose or so use that information or submit it in evidence, notify

the aggrieved person and the court or other authority in which the

information is to be disclosed or used that the Government intends

to so disclose or so use such information.

(d) Notification by States or political subdivisions

Whenever any State or political subdivision thereof intends to

enter into evidence or otherwise use or disclose in any trial, hear-

ing, or other proceeding in or before any court, department, officer,

agency, regulatory body, or other authority of a State or a political

subdivision thereof, against an aggrieved person any information

obtained or derived from an electronic surveillance of that aggriev-

ed person pursuant to the authority of this chapter, the State or

political subdivision thereof shall notify the aggrieved person, the

court or other authority in which the information is to be disclosed

or used, and the Attorney General that the State or political subdivi-

sion thereof intends to so disclose or so use such information.

(e) Motion to suppress

Any person against whom evidence obtained or derived from an

electronic surveillance to which he is an aggrieved person is to be,

or has been, introduced or otherwise used or disclosed in any trial,

hearing, or other proceeding in or before any court, department,

officer, agency, regulatory body, or other authority of the United

States, a State, or a political subdivision thereof, may move to

suppress the evidence obtained .or derived from such electronic

surveillance on the grounds that—

(1) the information was unlawfully acquired; or

(2) the surveillance was not made in conformity with an

order of authorization or approval.

Such a motion shall be made before the trial, hearing, or other

procecding unless there was no opportunity to make such a motion

or the person was not aware of the grounds of the motion.

(f) In camera and ex parte review by district court

Whenever a court or other authority is notified pursvant to

subsection (c) cr (d) of this section, or whenever a motion is made

pursuant to subsection (ce) of this section, or whenever any motion

or request is made by an aggricved person pursuant to any other

119a

statute or rule of the United States or any State before any court or

other authority of the United States or any State to discover o1

obtain applications or orders or other materials relating to electron-

ic surveillance or to discover, obtain, or suppress evidence or

information obtained or derived from electronic surveillance under

this Act, the United States district court or, where the motion is

made before another authority, the United States district court in

the same district as the authority, shall, notwithstanding any other

law, if the Attorney General files an affidavit under oath that

disclosure or an adversary hearing would harm the national securi-

ty of the United States, review in camera and ex parte the applica-

tion, order, and such other materials relating to the surveillance as

may be necessary to determine whether the surveillance of the

aggrieved person was lawfully authorized and conducted. In mak-

ing this determination, the court may disclose to the aggrieved

person, under appropriate security procedures and protective or-

ders, portions of the application, order, or other materials relating

to the surveillance only where such disclosure is necessary to make

an accurate determination of the legality of the surveillance.

(9) Suppression of evidence; denial of motion

If the United States district court pursuant to subsection (f) of this

section determines that the surveillance was not lawfully authorized

or conducted, it shall, in accordance with the requirements of law,

suppress the evidence which was unlawfully obtained or derived

from electronic surveillance of the aggrieved person or otherwise

grant the motion of the aggrieved person. If the court determines

that the surveillance was lawfully authorized and conducted, it sha!!

deny the motion of the aggrieved person except to the extent that

due process requires discovery or disclosure.

(h) Finality of orders

Orders granting motions or requests under subsection (g) of this

section, decisions under this section that electronic surveillance was

not lawfully authorized or conducted, and orders of the United

States district court requiring review or granting disclosure of

applications, orders, or other materials relating to a surveillance

shall be final orders and binding upon all courts of the United

States and the several States except a United States court of appeals

and the Supreme Court.

(i) Destruction of unintentionally acquired information

In circumstances involving the unintentional acquisition by an

electronic, mechanical, or other surveillance device of the contents

of any radio communication, under circumstances in which a

person has a reasonable expectation of privacy and a warrant

120a

Poe

would be required for law enforcement purposes, and if both the

sender and all intended recipients are located within the United

States, such contents shall be destroyed upon recognition, unless

the Attorney General determines that the contents indicate a threat

of death or serious bodily harm to any person.

()) Notification of emergency employment of electronic surveillance; con-

tents; postponement, suspension or elimination

If an emergency employment of electronic surveillance is autho-

rized under section 1805(e) of this title and a subsequent order

approving the surveillance is not obtained, the judge shall cause to

be served on any Unitec States person named in the application and

on such other United States persons subject to electronic surveil-

lance as the judge may determine in his discretion it is in the

interest of justice to serve, notice of —

(1) the fact of the application;

(2) the period of the surveillance; and

(3) the fact that during the period information was or was

not obtained.

On an ex parte showing of good cause to the judge the serving of the

notice required by this subsection may be postponed or suspended

for a period not to exceed ninety days. Thereafter, on a further ex

parte showing of good cause, the court shall forego ordering the

serving of the notice required under this subsection.

§ 1807. Report to Administrative Office of the United States

Court and to Congress

In April of each year, the Attorney General shall transmit to the

Administrative Office of the United States Court and to Congress a

report setting forth with respect to the preceding calendar year—

(a) the total number of applications made for orders and

extensions of. orders approving electronic surveillance under

this chapter; and

(b) the total number of such orders and extensions cither

granted, modified, or denied.

12la

§ 1808. Report of Attorney General to Congressional ¢oramit-

tees; limitation on authority or responsibility of in-

formation gathering activities of Congressional com-

mittees; report of Congressional committees to Con-

gress

(a) On a semiannual basis the Attorney General shall fully inform

the House Permanent Select Committee on Intelligence and the

Senate Select Committee on Intelligence concerning all electronic:

surveillance under this chapter. Nothing in this chapter shall be

deemed to limit the authority and responsibility of the appropriate

committees of each House of Congress to obtain such information

as they may need to carry out their respective functions and duties.

(b) On or before one year after October 25, 1978, and on the same

day each year for four years thereafter, the Permanent Select

Committee on Intelligence and the Senate Select Committee on

Intelligence shall report respectively to the House of Representa-

tives and the Senate, concerning the implementation of this Act.

Said reports shall include but not be limited to an analysis and

recommendations concerning whether this Act should be (1)

amended, (2) repealed, or (3) permitted to continue in effect with-

out amendment.

§ 1809. Criminal sanctions

(a) Prohibited activities

A person is guilty of an offense if he intentionally—

(1) engages in electronic surveillance under color of law

except as authorized by statute; or

(2) discloses or uses information obtained under color of law

by electronic surveillance, knowing or having reason to know

that the information was obtained through electronic surveil-

lance not authorized by statute.

(b) Defense

It is a defense to a prosecution under subsection (a) of this

section that the defendant was a law enforcement or investigative

officer engaged in the course of his official duties and the electronic

surveillance was authorized by and conducted pursuant to a search

warrant or court order of a court of competent jurisdiction.

122a

(c) Penalties

An offense described in this section is punishable by a fine of not

more than $10,000 or imprisonment for not more than five years,

or both.

(d) Federal jurisdiction

There is Federal jurisdiction over an offense under this section if

the person committing the offense was an officer or employee of

the United States at the time the offense was committed.

§ 1810. Civil liability

An aggrieved person, other than a foreign power or an agent of a

foreign power, as defined in section 1801(a) or (b)(1)(A) of this title,

respectively, who has been subjected to an electronic surveillance or

about whom information obtained by electronic surveillance of

such person has been disclosed or used in violation of section 1809

of this title shall have a cause of action against any person who

committed such violation and shall be entitled to recover—

(a) actual damages, but not less than liquidated damages of

$1,000 or $100 per day for each day of violation, whichever is

greater;

(b) punitive damages; and

(c) reasonable attorney's fees and other investigation and

litigation costs reasonably incurred.

§ 1811. Authorization during time of war

Notwithstanding any other law, the President, through the Attor-

ney General, may authorize electronic surveillance without a court

order under this chapter to acquire foreign intelligence information

for a period not to exceed fifteen calendar days following a declara-

tion of war by the Congress.

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