In re Kevork

788 F.2d 566
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 24, 1986
DocketNo. 85-6275
StatusPublished
Cited by7 cases

This text of 788 F.2d 566 (In re Kevork) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kevork, 788 F.2d 566 (9th Cir. 1986).

Opinion

SCHROEDER, Circuit Judge.

INTRODUCTION

Appellants Kevork, Balian, and Ghara-khanian are in Canadian custody pending trial in Canadian courts for conspiracy to commit murder and attempted murder in Canada. They appeal from an order of the District Court of the Central District of California denying their motions to quash subpoenas and to suppress evidence obtained under the Foreign Intelligence Sur[568]*568veillance Act (FISA), 50 U.S.C. §§ 1801-1811. They argue that FISA prohibits use or disclosure of evidence, obtained pursuant to its requirements, in a foreign criminal prosecution. They also argue that if such use is permitted, the Attorney General improperly delegated his duty to authorize use of FISA materials in this Canadian criminal proceeding.

We affirm. We conclude that there is no statutory bar to use of these materials in a foreign prosecution, and find that all safeguards contemplated by Congress have been provided in this case.

FACTS

The appellants were indicted on May 1, 1985, in Ontario, Canada, for conspiracy to commit murder and attempted murder in connection with the attempted assassination of a Turkish attache in Ottawa during April 1982. In the course of FBI investigations of terrorism in the Los Angeles area, the FBI had established FISA electronic surveillance which produced evidence supporting the criminal charges against the appellants.

On May 8, 1985, the Supreme Court of Ontario issued an order for a commission to take the testimony of eight witnesses, including three FBI agents, at Los Ange-les, California. The Ontario Supreme Court directed a letter of request in aid of the commission to the appropriate judicial authorities in Los Angeles. On June 12, 1985, the United States District Court for the Central District of California issued an order pursuant to 28 U.S.C. § 1782.1 It appointed District Judge Fred Lacey, District of New Jersey, and Ontario Supreme Court Justice Eugene Ewaschuk as commissioners to obtain the evidence requested for use in the Canadian prosecution. The district court issued subpoenas summoning the eight witnesses named in the letter of request.

The commission began taking evidence on June 13, 1985. Pursuant to 50 U.S.C. § 1806(c), the appellants were informed of the government’s intention to introduce evidence obtained through electronic surveillance under FISA. Appellants then moved to quash the subpoenas and to suppress all evidence obtained pursuant to FISA.

At the argument on those motions, the government introduced a document signed by Attorney General Meese authorizing the use of FISA information in the Canadian prosecution. FISA requires the Attorney General’s authorization for use of FISA information in a criminal proceeding. 50 U.S.C. § 1806(b). Appellants objected on the ground that the Meese authorization did not comply with the statute.

After an in camera review of the FISA materials pursuant to 50 U.S.C. § 1806(f), Judge Lacey denied all of appellants’ motions in a memorandum opinion and order dated August 5-6, 1985.2 Judge Lacey found, inter alia, that there was no statutory bar to the use of FISA information in a foreign criminal proceeding, and that the Meese authorization was valid.

The commission resumed taking evidence on August 7,1985. On the next day, Judge Lacey ordered that no portion of the commission’s record containing FISA information would be certified unless and until Judge Lacey’s rulings were affirmed on appeal. Appellants were ordered to join with the governments of Canada and the United States in seeking an expedited appeal.

[569]*569Accordingly, this is an appeal from the final decision of the district court in a proceeding pursuant to 28 U.S.C. § 1782. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

Appellants first argue that the subpoenas should have been quashed and the evidence suppressed because FISA prohibits the disclosure in a foreign criminal prosecution of surveillance information obtained pursuant to FISA.

FISA was enacted in 1978 to establish procedures for the use of electronic surveillance in gathering foreign intelligence information. See United States v. Belfield, 692 F.2d 141, 145 (D.C.Cir.1982). The Act was intended to strike “a sound balance between the need for such surveillance and the protection of civil liberties.” S.Rep. No. 604, 95th Cong., 2d Sess. 9, reprinted in 1978 U.S.Code Cong. & Ad. News 3904, 3910.

FISA allows a federal officer, with the approval of the Attorney General, to apply to a specially constituted FISA court for an order approving electronic surveillance of “a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information.” 50 U.S.C. §§ 1802(b), 1803, 1804(a). An “agent of a foreign power” is defined in part as “any person who ... engages in sabotage or international terrorism.” 50 U.S.C. §§ 1801(b)(2).

The Act contains strict requirements as to the conditions which must be satisfied before surveillance may be authorized. See, e.g., 50 U.S.C. §§ 1802, 1804, 1805, and 1811. Use and disclosure of FISA information, once it is gathered, is governed by 50 U.S.C. § 1806.

In arguing that the statute prohibits disclosure of FISA information for use in a foreign criminal prosecution, appellants rely on the provisions of section 1806, which establish conditions under which such information may be used for law enforcement purposes. The statute provides that information acquired pursuant to FISA may be used in a criminal proceeding only with the advance authorization of the Attorney General;3 that an “aggrieved person” shall be notified before FISA information is used against him in any federal, state, or local proceeding;4 and that such a person may move to suppress the evidence on the grounds that it was unlawfully acquired.5 These conditions were all complied with in this case.

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788 F.2d 566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kevork-ca9-1986.