ROBERT ALPHONSO BROWN, PETITIONER V. UNITED STATES OF AMERICA No. 90-5748 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-18) is not reported. The memorandum opinion of the district court (Pet. App. 19-23) is not reported. JURISDICTION The judgment of the court of appeals was entered on June 21, 1990. The petition for a writ of certiorari was filed on September 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the government adequately minimized the Foreign Intelligence Surveillance Act (FISA) wiretaps in this case. 2. Whether the district court permissibly declined to grant petitioner discovery of materials that supported the FISA wiretap authorization. STATEMENT After a jury trial in the United States District Court for the Eastern District of Virginia, petitioner was convicted on two counts of wire fraud (18 U.S.C. 1343); one count of conspiring to commit wire fraud (18 U.S.C. 371); one count of credit card fraud (18 U.S.C. 1029(a)(1) and (b)(1); and one count of conspiring to commit that offense (18 U.S.C. 1029(b)(2)). /1/ He was sentenced to concurrent terms of imprisonment of seven years each for the credit card and credit card conspiracy counts and five years each for the other three counts, and was fined a total of $5000. The court of appeals affirmed. Pet. App. 1-18; Judgment and Commitment Order. 1. The evidence at trial, the sufficiency of which is not in dispute, showed that petitioner conspired with co-defendants Mousa Hawamda, Maisoun Ben Mohamad, Jafar Jafari, and Omar Al-Madani to acquire and use US Sprint, MCI, and AT&T long-distance access codes belonging to other persons to make a series of longdistance telephone calls. Gov't C.A. Br. 3. 2. The evidence of petitioner's and his cohorts' scheme was in part derived from foreign intelligence wiretaps that were placed on the telephones of co-conspirators Hawamda and Saleh Al-Rajhi, who were Libyan agents. The wiretaps were authorized under the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1801 et seq. Many of the conversations were in Arabic. As a result, the FBI recorded all conversations on the affected telephones with an automatic recording device. An FBI agent then listened to and translated the recordings, keeping track only of those conversations that bore on foreign intelligence matters or contained evidence of other crimes, such as the activities of petitioner here. Pet. App. 6, 9. 3. Petitioner and his co-defendants moved to suppress the recordings prior to trial on the ground that the government had failed to minimize the interceptions as required by FISA. See 50 U.S.C. 1801(h). /2/ The district court denied the motion, holding that "(t)he minimization procedures in each case met the requirements of Section 101(h) of FISA (50 U.S.C. 1801(h))." Pet. App. 21. Petitioner and his co-defendants also moved for discovery of the materials supporting the FISA wiretaps. In accordance with 50 U.S.C. 1806(f), the Attorney General filed an affidavit stating that disclosure of the FISA documents would harm national security. Pet. App. 20. Pursuant to 50 U.S.C. 1806(f), the district court reviewed in camera and ex parte the applications and supporting affidavits for the surveillance, as well as the orders permitting the wiretaps. Pet. App. 20-21. The court found that the applications furnished probable cause to believe that the targets of the intercepts fell within the statute, and that the surveillance otherwise had been authorized and conducted in conformity with the requirements of the statute. The court further found that disclosure of the information "would harm the national security because it would reveal the capabilities and techniques of surveillance, the sources and methods used to counter international terrorism," and other sensitive information. Id. at 21. Accordingly, the trial court denied the defendants' motion and declined to hold an adversary hearing on their disclosure request. Id. at 23. /3/ 4. On appeal, petitioner renewed his challenge to the minimization procedure and to the failure to provide discovery on the FISA materials. With regard to the minimization procedure, the court agreed with the government that it was reasonable to record all the calls because many calls were in Arabic and, therefore, could be understood only after being translated. Pet. App. 8-9. The court also found that "the FBI minimized information after it was recorded." Id. at 9. The court noted that the agent who listened to the recordings "summarized and indexed only those calls which involved foreign intelligence or criminal activity." Ibid. The court of appeals also rejected petitioner's claim that he was wrongly denied discovery of the materials supporting the FISA interceptions. The court found that the in camera materials reviewed by the district court provided a sufficient basis for the district court's rulings. The court thus concluded that the district court had properly refused to disclose the FISA applications and related materials. Pet. App. 9-10. /4/ ARGUMENT 1. Petitioner maintains (Pet. 4-18) that the government failed to comply with the minimization requirements of FISA. Contrary to petitioner's contention, the courts below correctly resolved this fact-based claim against him, and there is no reason for further review of it by this Court. Petitioner concedes (Pet. 10) that there are no reported cases construing the standards for minimization of FISA wiretaps. He relies instead on cases involving minimization of wiretaps under Title III of the Organized Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq. As an initial matter, cases construing the requirements of Title III do not control FISA surveillances. The legislative history of FISA confirms that Congress recognized that there were important differences between ordinary criminal investigations and foreign counterintelligence investigations. See S. Rep. No. 701, 95th Cong. 2d Sess. 14-15 (1978). Accordingly, Congress determined that in foreign intelligence cases it was more important to limit dissemination than to restrict acquisition or retention of information. See H. Conf. Rep. No. 1720, 95th Cong. 2d Sess. 23 (1978) ("The conferees agreed that the standard for dissemination should be higher than for acquisition and retention, but that the prohibition of dissemination should be reasonably designed to be consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information."); see also S. Rep. No. 604, 95th Cong., 1st Sess. 38 (1977) (In some cases, "it may not be possible to avoid acquiring all conversations. In these situations minimizing retention and dissemination becomes most important."). /5/ In any event, even with a Title III wiretap, the question of minimization must be assessed under a reasonableness standard, and the evaluation depends on the facts and circumstances of the particular case. See Scott v. United States, 436 U.S. 128, 135-143 (1978). Here, since many of the conversations were in Arabic, a language that is understood by very few FBI agents, it was impossible to minimize the acquisition of the conversations. Yet it is clear -- as the court of appeals found (Pet. App. 9; see also Pet. App. 21) -- that the agents complied with the statutory requirement to limit the dissemination of the conversations. Accordingly, there plainly is no need to review petitioner's claim. /6/ 2. Petitioner next argues (Pet. 19-21) that the courts below incorrectly denied him access to the information that formed the basis for authorization of the FISA wiretaps. It is clear, however, that the district court properly declined to grant petitioner discovery of those materials. The statute provides that once a defendant moves to suppress evidence derived from FISA electronic surveillance or moves for discovery of materials relating to the surveillance, the Attorney General may file an affidavit stating that disclosure of such materials would harm national security. 50 U.S.C. 1806(f). If such an affidavit is filed, the district court must review in camera and ex parte the FISA application and supporting materials to determine whether the surveillance was lawfully authorized and conducted. Ibid. In the course of making that determination, the district court has the discretion to disclose to a defendant the pertinent materials, but only if that disclosure is required in order for the court to determine the legality of the FISA surveillance. Ibid. /7/ To our knowledge no reviewing court has overturned a district court's determination not to grant discovery. Here the district court specifically found that disclosure of the materials was not necessary to a determination of the lawfulness of the wiretaps, and the court further found that revelation of the FISA authorization materials would jeopardize national security. Pet. App. 21-22. The court of appeals likewise found that the materials that the district court reviewed were sufficient to allow the court to make a determination of the legality of the surveillance, and that thus there was no reason to grant petitioner discovery of the materials. Pet. App. 9-10. That ruling is in accord with other decisions on this issue. See, e.g., In re Grand Jury Proceedings, Grand Jury No. 87-4, 856 F.2d 685, 687 n.3 (4th Cir. 1988); United States v. Duggan, 743 F.2d 59, 78 (2d Cir. 1984); United States v. Belfield, 692 F.2d 141, 146-149 (D.C. Cir. 1982). Hence, further review plainly is not warranted. /8/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General LOUIS M. FISCHER Attorney NOVEMBER 1990 /1/ Petitioner stood trial with co-defendants Maisoun Ben Mohamad, Jafar Jafari, and Omar Al-Madani, who were convicted on similar counts. Their convictions were affirmed by the court of appeals in the same opinion that disposed of petitioner's claims. Co-defendant Mousa Hawamda was and is a fugitive. Pet. App. 19 n.1; Gov't C.A. Br. 1-3. /2/ 50 U.S.C. 1801(h) provides in pertinent part: "Minimization procedures", with respect to electronic surveillance, means -- (1) 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 concerning 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, * * * shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information 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. /3/ The district court pointed out that the government had given defense counsel access to the FISA surveillance logs of the conversations that the government intended to introduce at trial. Pet. App. 19. /4/ The court of appeals also rejected petitioner's challenge to his credit card fraud conviction. Pet. App. 15-16. Petitioner does not renew that claim in this Court. /5/ In In Re Grand Jury Proceedings, Grand Jury No. 87-4, 856 F.2d 685, 687-689 (4th Cir. 1988), the court considered domestic wiretap cases by analogy on a particular FISA issue, but noted the particular requirements of FISA (id. at 687-688 & n.3) and emphasized that "the concerns weighing against disclosure (in a FISA case) are at least as important as in the domestic wiretap cases." Id. at 689 (emphasis added). /6/ Petitioner disputes (Pet. 8) the court of appeals' finding that only certain conversations were retained (Pet. App. 9). Petitioner's factual dispute with the court below, however, clearly does not warrant further review by this Court. In any event, petitioner's claim is not supported by the record. The FBI translator testified that he minimized the conversations by writing down only those conversations that were pertinent to the FBI's investigation. He explained, "I might have heard (co-defendant Ben Mohamad) hundreds and hundreds of times more than what you see here (in translation), but I would not sit and write it down. * * * And if I don't type (her conversation), it's gone. Nobody would know of this conversation. So it's as if I had never heard it." C.A. J.A. 621. /7/ 50 U.S.C. 1806(f) provides in pertinent part: (W)henever any motion or request is made by an aggrieved person * * * to discover or otain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this Act, the United States district court * * * shall, notwithstanding any other law, if the Attorney General files an affidavit under other that national security of the United States, review in camera and ex parte the application, 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 making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, 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. /8/ Petitioner's reliance (Pet. 19-20) on Alderman v. United States, 394 U.S. 165 (1969) is misplaced; the explicit provisions of FISA carefully and specifically delineate the conditions for discovery of FISA materials, including the district court's determination of the lawfulness of the surveillance. See United States v. Belfield, 692 F.2d at 146-147.