JOSE RODRIGUEZ, PETITIONER V. UNITED STATES OF AMERICA No. 86-5987 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit Brief for the United States in Opposition OPINIONS BELOW The opinion of the court of appeals is reported at 803 F.2d 318. An earlier opinion of the court of appeals is reported at 751 F.2d 875. The opinion of the district court is reported at 583 F. Supp. 86. /1/ JURISDICTION The judgment of the court of appeals was entered on October 9, 1986. The petition for a writ of certiorari was filed on December 8, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a federal district court properly authorized the video surveillance of premises rented by members of a terrorist group as a location at which to construct bombs and to plan clandestine operations. 2. Whether the federal seditious conspiracy statute, 18 U.S.C. 2384, contravenes the Treason Clause of the Constitution, Art 1, Section 3 cl. 1, by establishing an offense amounting to treason but lacking the constitutional safeguards necessary to prove that offense. 3. Whether the trial judge properly took judicial notice of the fact that the Commonwealth of Puerto Rico is subject to the authority of the United States. 4. Whether the trial court's instructions concerning the elements of seditious conspiracy were adequate. STATEMENT Following a jury trial in the United States District Court for the Northern District of Illinois, petitioner and three co-defendants, Alejandrina Torres, Edwin Cortez, and Alberto Rodriguez, were convicted of seditious conspiracy, in violation of 18 U.S.C. 2384. /2/ Petitioner was sentenced to a five-year term of imprisonment, which the court suspended, and placed on five years' probation (slip op. 3). /3/ The court of appeals affirmed. 1. As set forth in the opinions of the court of appeals (slip op. 2; 751 F.2d at 876-877) and the district court (583 F. Supp. at 88-94), the pertinent facts are that, beginning in 1975, federal and state investigators conducted an investigation of the FALN (Fuerzas Armadas do Liberacion National Puertorriquena), an organization seeking independence for Puerto Rico by violent means, including the bombing of buildings, incendiary attacks, armed takeovers, and robberies. The bombs, which have killed several people, injured many others, and caused millions of dollars in property damages, are assembled and stored at "safe houses" rented by FALN members under false names. Investigators arrested several FALN members in a Chicago suburb in April 1980, one of whom agreed to assist in the investigation. The agents followed co-defendant Cortes, whom the informant identified as an FALN member, to a Chicago apartment at 736 West Buena Street which has been rented under a fictitious name and which the organization used as a safe house. Thereafter, investigators conducted visual surveillance of the apartment and observed Cortes and Torres enter it (583 F. Supp. at 92). In January 1983 the government sought, pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, an order authorizing the interception fo wire and oral communications within the apartment. It also requested authorization to install television cameras in every room the the apartment, explaining that it had reason to believe that FALN members using safe houses conducted the assembly of bombs in silence to avoid being overheard by monitoring devices (751 F.2d at 877). The Chief Judge for the Northern District of Illinois granted the requests, issuing a warrant authorizing both audio and video surveillance. His order directed that the surveillance was to "be conducted in such a way as to minimize the interception" and was to terminate upon attainment of the authorized objective. It also required that progress reports be made to the court every five days, placed a 30-day deadline on both audio and video surveillance, and specified the number of surreptitious entries the FBI was authorized to make to install, service, and remove the surveillance devices (751 F.2d at 884). Thereafter, four applications were made to renew the order authorizing surveillance at the Buena Street address. Attached affidavits detailed conversations of Torres and Cortes concerning efforts to force the release of a confederate from prison, described how they were actually engaged in the assembly of bombs, and stated that, during a surreptitious entry, explosives were observed in the apartment (id. at 877; 583 F. Supp. at 93). In April 1983 the investigators sought authorization to install audio and video surveillance devices in another apartment, located at 1135 Lunt Avenue in Chicago, which had been leased under a false name and which Torres and Cortes also used in connection with their FALN activities. The Chief Judge issued an order authorizing both audio and video surveillance subject to the same conditions as those which appeared in the order authorizing surveillance of the Buena Street apartment (583 F.2d at 93; at C.A. App. 276). /4/ The order was renewed twice thereafter. On April 17, 1983, petitioner visited the Lunt Avenue address and was observed wearing gloves and heard speaking with co-defendant Alberto Rodriguez. The conversation involved various FALN activities including breaking incarcerated FALN members out of jail, acquisition of false identification cards and code names, avoiding surveillance by law enforcement officers, and sharing funds with other FALN groups throughout the country. Slip op. 2. On July 29, 1983, government agents arrested petitioner and the co-defendants for conspiring to bomb armed forces training centers in the Chicago area. 2. Prior to trial, petitioner and the co-defendants moved to suppress the evidence derived from the surveillance of the two apartments. The district court granted the motion insofar as it concerned the video surveillance, holding that the judge who issued the order lacked authority under Title III or any other basis to authorize video surveillance (583 F. Supp. at 104-105). The court of appeals reversed (751 F. 2d at 875-886) and this Court denied a petition for a writ of certiorari (470 U.S. 1087 (1985)). The court below held that both Fed. R. Crim. P. 41 and the inherent power of a court of general jurisdiction accord federal district courts the authority to authorize video surveillance in appropriate circumstances (751 F.2d at 877-879). Addressing the defendants' claim that the warrants were not particularized enough as to the scope of the interceptions permitted, it held that, although Title III did not address video surveillance, a warrant for video surveillance that complies with Title III's requirements of particularity also satisfies the Fourth Amendment's requirement of particularity (id. at 884). It then noted, as the video surveillance authorizations were issued in response to a government request for Title III surveillance, they complied with all of the requirements of Title III enacted to implement the constitutional requirements of particularity (ibid.). /5/ During the ensuing trial of petitioner and his three co-defendants, the government's evidence showed that petitioner's intended role in the bombing conspiracy was to drive the co-conspirators to the locations that were to be bombed. At trial the government introduced the video tape which showed petitioner at the Lunt safe house wearing gloves and speaking with Alberto Rodriguez concerning FALN activities (slip op. 5). The district court also took judicial notice at trial of the fact that the United States exercises authority over Puerto Rico and refused to permit petitioner to introduce evidence to the effect that, under international law, such authority was unlawful. It also rejected the contention that, because the FALN was an organization engaged in political activity protected by the First Amendment, the defendants were entitled, in addition to standard conspiracy instructions, to an instruction to the effect that, in order to return convictions, the jury must find that each defendant specifically intended to accomplish the aims of the FALN by force. The court of appeals affirmed (slip op. 1-7). It rejected petitioner's claims that the seditious conspiracy statute was an unconstitutional truncation of the constitutional offense of treason, that the district court improperly took judicial notice of the status of Puerto Rico, and that the district court erred by failing to give the conspiracy instructions requested by the defense. /6/ ARGUMENT 1. a. Petitioner initially contends (Pet. 4-17) that neither inherent judicial authority nor any federal statute or rule of procedure authorized the district court to issue a warrant permitting law enforcement officers to conduct video surveillance of the Lunt Avenue apartment. As the decision of the court below is correct and does not conflict with that of any other court of appeals, further review is unwarranted. In the first place, although the jurisdiction of the federal courts is defined by statute, as the court below observed (751 F.2d at 878-879), this Court and the courts of appeals have long held that the authority to issue warrants is a procedural incident of that jurisdiction established by the common law. As the Court explained in Adams v. New York, 192 U.S. 585, 598 (1904), a case that predated any general statutory authorization to federal courts to issue search warrants, "(t)he right to issue search warrants to discover * * * the means of committing crimes, is too long established to require discussion." See Boyd v. United States, 116 U.S. 616, 623 (1886) (search and seizure of stolen goods authorized by the common law); United States v. Williams, 617 F.2d 1063, 1099 (5th Cir. 1980) (en banc (concurring opinion)) (Federal Rules of Criminal Procedure constitute no limitation on inherent power of federal courts to issue search warrants); Application of the United States in re Pen Register, 538 F.2d 956, 959 (2d Cir. 1976), rev'd on other grounds, 434 U.S. 159 (1977) (federal court possesses inherent authority to authorize search and seizure of non-tangibles); United States v. Yuck Kee, 281 F. 228, 231 (D. Minn. 1922) (search warrants authorized by common law); United States v. Maresca, 266 F. 713, 321 (S.D.N.Y. 1920) (same). /7/ And, on other occasions, this Court has assumed that the federal courts possess inherent power to issue search warrants, even absent any enabling legislation. See, e.g., Osborn v. United States, 385 U.S. 323, 329-331 (1966); Weeks v. United States, 232 U.S. 383, 393 (1914); Ex Parte Jackson, 96 U.S. (6 Otto) 727, 733 (1878). /8/ Even if it were assumed, however, that the federal courts lack the inherent power to issue search warrants, including those authorizing video surveillance, Congre-s has plainly granted them such authority by the adoption of Fed. R. Crim, P. 41 and 57. Rule 41(b)(1) provides that a federal judge or magistrate may issue a warrant to search for and seize "property that constitutes evidence of the commission of a criminal offense." Rule 57(b) provided at the time the warrant in this case was issued that "(i)f no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute." Fed. R. Crim. P. 57(b) (1968). /9/ In United States v. New York Telephone Co., 434 U.S. 159 (1977), this court held that these rules permitted a federal court to issue an order authorizing the installation of pen registers designed to ascertain the use being made of a telephone suspected by being employed in a criminal venture. It stated (id. at 169-170) (footnotes omitted): Although Rule 41(h) defines property "to include documents, books, papers and any other tangible objects," it does not restrict or purport to exhaustively enumerate all the items which may be seized pursuant to Rule 41. Indeed, we recognized in Katz v. United States, 389 U.S. 347 (1967), which held that telephone conversations were protected by the Fourth Amendment, that Rule 41 is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause. 389 U.S. at 354-356 and n.16. * * * * Our conclusion that Rule 41 authorizes the use of pen registers under appropriate circumstances is supported by Fed. R. Crim. P. 57(b) * * *. Although we need not and do not decide whether Rule 57(b) by itself would authorize the issuance of pen register orders, it reinforces our conclusion that Rule 41 is sufficiently broad to include seizures of intangible items. * * * As the Court below concluded (751 F.2d at 877-878), if, under the reasoning of New York Telephone Co., Rules 41(b) and 57 are broad enough to permit not only the issuance of warrants authorizing the installation of pen registers but electronic surveillance of conversations as well, there is no reason why they should not also be thought sufficiently flexible to authorize issuance of warrants for video surveillance under appropriate circumstances. /10/ Furthermore, the only other court of appeals to consider the issue, the Second Circuit in United States v. Biasucci, 786 F.2d 504, cert. denied, No. 85-2106 (Oct. 6, 1986), joined the court below in holding that Rule 41 permits district judges to authorize video surveillance of private premises in appropriate circumstances. Accordingly, review by this Court is not warranted. b. Nor is there any merit to petitioner's argument (Pet. 18-20) that Congress deprived the federal courts of any authority they may otherwise have possessed to authorize video surveillance in domestic cases by enacting the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. 1801-1811. The Second Circuit in Biasucci, like the court below, correctly rejected this argument. "'The Foreign Intelligence Surveillance Act of 1977' was * * * introduced to provide a statutory procedure for the authorization of applications for a court order approving the use of electronic surveillance to obtain foreign intelligence information." S. Rep. 95-604 Part I, 95th Cong. 1st Sess. 3 (1978). FISA defined "electronic surveillance" broadly enough to encompass video surveillance. /11/ Additionally, FISA amended Title III by providing that the 'procedures in (Title III) and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in (FISA), and the interceptions of domestic wire and oral communications may be conducted." 18 U.S.C. 2411(2)(f). Relying on Section 2511(2)(f), petitioner maintains (Pet. 18-19) that video surveillance may be used only in accordance with the provision of FISA, and that since FISA applies to the use of electronic surveillance to obtain information from suspected foreign agents and does not apply to electronic surveillance of domestic criminal suspects, Section 2511(2)(f) prohibits video surveillance in domestic criminal cases. However, as the court below explained (751 F.2d at 881), all Section 2511(2)(f) means "is that the Foreign Intelligence Surveillance Act is intended to be exclusive in its domain and Title III in its. The powers that (FISA) gives to the government to keep tabs on agents of foreign countries are not to be used for purely domestic investigations, and conversely the limitations that Title III places on wiretapping and bugging are not to be used to hobble the government's activities against foreign agents. To read (FISA) as (petitioner does) would give a statute designed to regularize the government's broad powers to deal with the special menace posed by agents of foreign powers the side effect of curtailing the government's powers in domestic law enforcement." Furthermore, the Senate Report described Section 2511(2)(f) as strictly a "technical and conforming" amendment (S. Rep. 604, 95th Cong., 2d Sess. 3, 63-64 (1978)). Like the court below, the Second Circuit concluded in Biasucci that "nothing in Title III or the FISA indicates that Congress intended to prohibit video surveillance in domestic criminal investigations. Thus, all that can be said is that Congress has not yet enacted any legislation explicitly authorizing domestic electronic video surveillance." 786 F.2d at 508-509 (footnote omitted). /12/ c. Petitioner also argues (Pet. 20-29) that, even if the district court possessed authority to issue warrants authorizing video surveillance, its order failed to fulfill the Fourth Amendment's requirement of particularity because it authorized the surveillance of every person entering the premises, and did not prohibit the use of video surveillance until after it had been established that audio surveillance would be insufficient to reveal that illegal activity was occurring. The particularity requirement of the Fourth Amendment serves to insure that the executing officer's discretion is sufficiently circumscribed that it does not extend beyond the scope of the issuing magistrate's probable cause determination. See, e.g., Marron v. United States, 275 U.S. 192, 196 (1927); United States v. Gomez-Soto, 723 F.2d 649, 952-653 (9th Cir.), cert. denied, 466 U.S. 977 (1984). A warrant that permits the search of unnamed persons at a particular location does not violate the requirement of particularity in this respect as long as the information supplied the magistrate supports the conclusion that it is probable that anyone in the described place when the warrant is executed is involved in criminal activity. See e.g., Ybarra v. Illinois, 444 U.S. 85, 92 n.4 (1979) (distinguishing situation where warrant gave officers no authority to search a tavern customer from a warrant authorizing search of unnamed persons that is supported by probable cause to believe that persons in the place at the time of the search will be committing unlawful acts); 2 W. La Fave, Search and Seizure, Section 4.5 at 972 (1978) (collecting cases). In this case, averments contained in the affidavits supporting the Lunt Street surveillance warrant application explained in detail that FALN safe houses are used exclusively for unlawful purposes including the manufacture of bombs and incendiary devices, the planning of terrorist activities, and the storage of equipment relating to them (C.A. App. 128). They also established reason to believe that the address had been rented by the co-defendants for such purposes (id. at 245, 252-254). The judge who subsequently issued the warrant authorizing video surveillance of the Lunt Street apartment could, therefore, reasonably conclude that anyone entering the premises would be engaged in clandestine terrorist activities. Accordingly, under the circumstances, it was perfectly proper for him to authorize the video monitoring of the activities of unidentified persons found there (id. at 272-273). /13/ Nor is there any substance to petitioner's argument (Pet. 25, 28-29) that the Fourth Amendment permits no greater invasion of privacy than is necessary under the circumstances and that, therefore, the court should have authorized video surveillance only if audio surveillance proved fruitless. As the Court recently explained in Colorado v. Bertine, No. 85-889 (Jan. 14, 1987), where there is lawful authority to conduct a search and its purpose and limits have been precisely defined, it is unreasonable to require law enforcement officers to pursue less intrusive means at the risk of compromising efficient completion of the task at hand. Slip op. 7, quoting Illinois v. Lafayette, 462 U.S. 640, 648 (1983). /14/ In any event, however, the affidavits supporting the warrant applications made it plain that, due to measures taken by FALN members to frustrate interception of their conversations e.g., C.A. App. 139-140) and the nature of the unlawful activities conducted in safe houses, frequently by one person acting alone (id. at 136), audio surveillance was insufficient to obtain evidence concerning the terrorist activities being carried on at such locations. In view of the fact that the FALN safe houses were employed only for unlawful activities (id. at 136), it was perfectly reasonable for the issuing judge not to require investigators to attempt audio surveillance of the Lunt Street address before resorting to video surveillance. 2. Petitioner also claims (Pet. 30-41) that the seditious conspiracy statute under which he was convicted is unconstitutional. He maintains that it punishes the same misconduct as that prohibited by the Treason Clause of the Constitution but fails to afford the procedural safeguards contained in that clause, particularly the requirement that the offense be proven by the testimony of two witnesses to the same overt act. /15/ However, because seditious conspiracy and treason are separate crimes protecting separate governmental interests, this argument was properly rejected by the court below. It is "settled that an offense must incorporate all the elements of treason in order for the two witness rule to apply." United States v. Drummond, 354 F.2d 132, 152 (2d Cir. 1965); see Ex Parte Quirin, 317 U.S. 1, 38 (1942); United States v. Rosenberg, 195 F.2d 583, 610-611 (2d Cir.), cert. denied, 344 U.S. 838 (1952). As Chief Justice Marshall explained in Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 127 (1807), "(i)t is * * * consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition should receive such punishment as the legislature in its wisdom may provide." This Court and the courts of appeals have, therefore, repeatedly rejected claims that statutes relating to national security punish treasonable conduct without providing the accused the benefit of the two witness rule. Ex Parte Quirin, 317 U.S. at 38 (entry into American territory by belligerent wearing civilian clothing); Frohwerk v. United States, 249 U.S. 204, 210 (1919) (conspiracy to obstruct military recruiting); Drummond, 354 F.2d at 152 (conspiracy to deliver national defense documents); Rosenberg, 195 F.2d at 611 (same); Wimmer v. United States, 264 F. 11, 12-13 (6th Cir. 1920) (words and actions favoring a hostile power); Equi v. United States, 261 F. 53, 55 (9th Cir. 1919) (statements calculated to incite disloyalty and mutiny). As the court below observed, the offenses of treason and seditious conspiracy are, likewise, elementally distinct. Treason, which can only be committed by a person owing allegence to the United States, consists of "levying war against them or adher(ing) to their enemies, giving them aid and comfort * * *." 18 U.S.C. 2381; see U.S. Const. Art, III Section 3, cl. 1. The offense of seditious conspiracy, however, consists, inter alia, of "conspir(ing) to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder or delay the execution of any law of the United States." 18 U.S.C. 2384. /16/ Most significantly, in contrast with the offense of treason, Section 2384 makes punishable purely conspiratorial conduct. See Ex Parte Bollman, 8 U.S. at 126 (conspiring to subvert by force the government of our country is not treason; conspiring to levy war and actually to levy war are distinct offenses); see also United States v. Mitchell, 2 U.S. (2 Dall.) 348, 349 (C.C. Pa. 1795). Moreover, unlike treason, Section 2384 does not require that the defendant owe allegence to the United States nor does it contemplate the presence of an enemy or a state of war. Finally, unlike treason, the offense of seditious conspiracy does not extend beyond the United States' jurisdictional boundaries. Consequently, "(b)ecause Section 2384 proscribes a different crime and protects a different governmental interest, * * * (it) does not conflict with the treason clause" (slip op. 4). /17/ 3. Petitioner also claims (Pet. 42-55) that the trial court improperly took judicial notice of the fact that Puerto Rico is subject to the authority of the United States, an element of the offense of seditious conspiracy, and that it improperly prevented him from presenting evidence that the assertion of such authority violates principles of international law. These arguments were also properly rejected by the court below. As that court reasoned, it is well-established that a trial judge can take judicial notice of federal law. See e.g., United States v. Schmitt, 748 F.2d 249, 255 (5th Cir. 1984), cert. denied, 471 U.S. 1104 (1985), quoting Lamar v. Micou, 114 U.S. 218, 223 (1885); Oneida Indian Nation v. State of New York, 691 F.2d 1070, 1086 (2d Cir. 1982). As the result of the Treaty of Paris, 31 Stat. 1754 (1899), sovereignty over Puerto Rico was ceded by Spain to the United States, and, as the result of subsequent legislation enacted by Congress, "(t)he statutory laws of the United States not locally inapplicable, * * * shall have the same force and effect in Puerto Rico as in the United States." 48 U.S.C. 734; see e.g., Downes v. Bidwell, 182 U.S. 244, 287 (1901) ("the Island of Puerto Rico is a territory appurtenant and belinging to the United States"); United States v. Quinones, 758 F.2d 40, 43 (1st Cir. 1985). /18/ The trial judge was, therefore, correct in instructing the jury that the United States' authority over Puerto Rico was derived from statutes enacted by Congress and the Constitution (Tr. 2069, 2466). It is, moreover, inconsequential whether, in the opinion of some commentators, such authority over Puerto Rico is exercised in violation of principles of international law. As explained in The Over The Top, 5 F.2d 838, 842 (D. Conn. 1925), "(i)nternational practice is law only in so far as (the courts) adopt it, and like all common or statute law it bends to the will of the Congress. * * * There is one ground only upon which a federal court may refuse to enforce an act of Congress and that is when the act is held to be unconstitutional." See also United States v. Allen, 760 F.2d 447, 454, (2d Cir. 1985) ("'in enactihg statutes, Congress is not bound by international law. * * * If it chooses to do so, it may legislate (in a manner contrary to the limits posed by internation law.)'"); United States v. Howard-Arias, 679 F.2d 363, 371 (4th Cir.), cert. denied, 459 U.S. 874 (1982) ("'international law must give way when it conflicts with or is superseded by a federal statute'"). The trial judge, therefore, properly excluded such evidence as irrelevant. 4. Finally, petitioner claims (Pet. 56-61) that he was, in substance, charged with participation in a conspiracy to obtain independence for Puerto Rico through membership in the FALN and that, because the charge implicated associational freedoms, he was entitled to an instruction that, in order to return a conviction, the jury must specifically find that he intended to accomplish the aims of the organization by force. This claim was also properly rejected by the court below. The authorities upon which petitioner principally relies to support the claim that he was entitled to such an instruction involved prosecutions under the Smith Act, 18 U.S.C. 2385, which prohibits, inter alia, membership in an organization advocating the overthrow of the government by force or violence. Addressing the scope of the membership clause of the Act, this Court has held that the government must present "clear proff that a defendant 'specifically intend(s) to accomplish (the aims of the organization) by resort to violence.'" Scales v. United States, 367 U.S. 203, 229 (1961), quoting Noto v. United States, 367 U.S. 290, 299 (1961). Petitioner, however, was not charged merely with membership in an organization advocating unlawful activity as one of its objectives. Instead, he was charged with conspiring "to oppose by force the authority of the government of the United States * * * by means of force, terror and violence, including the construction and planting of explosive and incendiary devices at banks, stores, office buildings and government buildings" (C.A. App. 278). And the evidence established that he knowingly and intentionally became a member of the conspiracy (slip op. 7). Consequently, there was no basis for giving the special instruction required in Smith Act prosecutions based upon mere associational conduct. CONCLUSION The petition for a writ of certiorari should be denied. CHARLES FRIED Solicitor General WILLIAM F. WELD. Assistant Attorney General JOHN F. DE PUE Attorney FEBRUARY 1987 /1/ Petitioner has attached the slip opinion of the court of appeals' more recent opinion, its earlier published opinion, and the district court's published opinion in his appendix, without renumbering the pages. We cite to the pages of the opinions as reproduced in the appendix. /2/ The district court dismissed a count charging petitioner with conspiracy to interfere with interstate commerce, in violation of 18 U.S.C. 1951, at the conclusion of the government's case. /3/ Torres, Cortez, and Alberto Rodriguez were also convicted of other offenses, including unlawful possession of destructive devices and a silencer, in violation of 26 U.S.C. 5861(d) and (i); conspiracy to make destructive devices, in violation of 26 U.S.C. 5861(f) and 18 U.S.C. 371; and interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. 2312. Cortes and Alberto Rodriguez were convicted also of conspiracy to rob an instrumentality in interstate commerce, in violation of 18 U.S.C. 1951. Petitioner's three co-defendants each were sentenced to 35 years' imprisonment and did not appeal their convictions. /4/ "C.A. App." refers to the appendix to the government's brief in the court of appeals in No. 84-1077. /5/ Judge Cudahy issued a concurring opinion (751 F.2d at 886-895). In his view, Title III and the Foreign Intelligence Surveillance Act of 1978, Pub. L. 95-511, 92 Stat. 1783, when construed in tandem, reflect the intent of Congress that video surveillance should be subject to the requirements of Title III. He also noted that, by including the request for video surveillance in its request for audio surveillance under Title III, the government essentially complied with those requirements (751 F.2d at 894-895). /6/ The court of appeals refused to reopen the issue it had previously resolved concerning the video surveillance, and also rejected the claim that petitioner was improperly targeted for prosecution. /7/ Petitioner is incorrect in his claim (Pet. 12) that in United States v. New York Telephone Co., 434 U.S. 159 (1977), this Court rejected the holding of the court of appeals that federal courts possess inherent authority to issue search warrants. To the contrary, after expressing agreement with the court of appeals that the district court had the power to authorize the installation of a pen register, it observed that "(t)he Courts of Appeals that have considered the question have agreed that pen register orders are authorized by Fed. Rule Crim. P. 41 or by an inherent power closely akin to it to issue search warrants under circumstances conforming to the Fourth Amendment." 434 U.S. at 168 n.14 (emphasis added). It was unnecessary for it to further address the scope of the federal courts' inherent authority because it concluded that Fed. R. Crim. P. 41 was a sufficient basis to permit them to issue pen register warrants. Nor is petitioner correct in his argument (Pet. 13) that the New York Telephone Co. Court's citation to the All Writs Act, 28 U.S.C. 1651(a), "contradicts the notion" that district courts have inherent authority to issue search warrants. The Courts in that case invoked the All Writs Act as authority to compel the telephone company to provide technical assistance in the installation of the pen registers, not as authority for issuance of the warrant authorizing their use. 434 U.S. at 171-172. /8/ Petitioner's reliance (Pet. 7) upon the opinion of Lord Camden in Entick v. Carrington, 19 Howell's State Trials 1029 (C.P. 1765), quoted in Boyd v. United States, 116 U.S. at 627-629, for the proposition that, shortly before the adoption of the Fourth Amendment, statutory authority was required in England to issue search warrants, is unfounded. That case involved the question whether the Secretary of State, a non-judicial officer, possessed the authority to issue a general warrant to investigate seditious libel. The decision expressly distinguished between the authority to issue such warrants and the authority to issue warrants to search for stolen goods. Lord Camden noted that the latter "crept into the law by imperceptible practice" and was surrounded by procedural safeguards which did not attend the issuance of general warrants, such as averments under oath that a theft had occurred and that the goods were to be found at the place to be searched. See Boyd v. United States, 116 U.S. at 628. /9/ Fed. R. Crim. P. 57 was revised in 1985 to read in pertinent part: "In all cases not provided for by rule, the district judges and magistrates may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act." /10/ Petitioner maintains (Pet. 12, 15-16) that New York Telephone Co. provides no support for the proposition that Rule 41 permits issuance of a warrant authorizing video surveillance because that case involved only the use of a pen register, which he characterizes as a de minimis intrusion. The Court, however, did not predicate its holding that Rule 41 permitted isssuance of pen register authorizations upon the limited nature of the intrusion involved but rather upon the proposition that the rule is "sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause," including electronic surveillance of telephone conversations. As the court below reasoned (751 F.2d at 882-883), the intrusiveness of the surveillance technique employed is relevant to the nature of the safeguards that a court must impose in striking the balance between public safety and personal privacy upon issuance of a warrant, not to its authority to issue the warrant in the first place. Nor is petitioner correct in his submission (Pet. 12, 14) that the decision in New York Telephone Co. was based on congressional observations that pen registers are a legitimate law enforcement tool and that, therefore, it has no bearing on this case. The New York Telephone Co. Court noted that the legislative history of Title III confirmed that there was no congressional intent to subject pen registers to its requirements. 434 U.S. at 167. However, that legislative history played no part in its holding that Fed. R. Crim. P. 41 authorizes federal courts to issue warrants permitting pen registers as well as more intrusive forms of electronic surveillance. /11/ FISA defines "electronic device" to include "an electronic, mechanical, or other surveillance device * * * for monitoring 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 warrant would be required for law enforcement purposes." 50 U.S.C. 1801(f)(4). /12/ In his concurring opinion, Judge Cudahy did not, as petitioner maintains (Pet. 17-18), conclude that video surveillance is prohibited by FISA and Title III. Expressly rejecting that argument (751 F.2d at 891-893) he reasoned that, by virtue of the enactment of FISA in 1978, the requirements of Title III were expanded to include video as well as audio surveillance (id. at 893-894). And, as he observed, by making its request for video surveillance part of its application for audio surveillance under Title III, the government essentially complied with those requirements (id. at 894-495). /13/ This case, therefore, beasrs no resemblance to Ybarra v. Illinois, upon which petitioner relies (Pet. 27). In that case, as the Court expressly observed (444 U.S. at 92 n.4), there was no reason to believe that persons entering the premises, a public tavern, were engaged in unlawful conduct. /14/ Berger v. United States, 388 U.S. 41 (1967), upon which petitioner relies (Pet. 25), is not to the contrary. That case, explaining the Court's earlier decision in Osborn v. United States, 385 U.S. 323, merely noted that in Osborn a warrant issued by two federal judges which authorized electronic surveillance permitted no greater invasion of privacy than was necessary under the circumstances as it particularized the type of conversation sought, prohibited the search of unauthorized areas, and required termination of the intrusion once its objective was obtained (388 U.S. at 56-57). It never suggested that, in addition, as a matter of Fourth Amendment, jurisprudence, such a warrant could only issue following a determination that other measures were fruitless. /15/ Article III, Section 3, Clause 1 of the Constitution provides: Treason against the United States shall consist only in levying war aginst them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. /16/ Petitioner was charged with conspiring to "oppose by force the authority of the government of the "United States." See C.A. App. 278. /17/ Petitioner also argues (Pet. 35, 38) that the seditious conspiracy statute is unconstitutional because it punishes words and thoughts. The seditious conspiracy statute, however, prohibits agreements to overthrow the government, levy war against it, or forceably oppose its authority; it does not prohibit mere political expression. See United States v. Lebron, 222 F.2d 531, 536 (2d Cir. 1955). Therefore, it does not implicate First Amendment values. See Dennis v. United States, 341 U.S. 494, 501-511 (1951). /18/ In 1952, as the result of the approval by Congress of the Puerto Rican constitution, Puerto Rico ceased being a territory of the United States and achieved the status of a Commonwealth. See 48 U.S.C. 731b-731e. The creation of Commonwealth status granted Puerto Rico authority over its own local affairs. See United States v. Quinones, 758 F.2d at 43.