Although FISA and Title III by their terms cover many of the same wire and radio communications, the criminal penalties applicable to each may differ. Compare 50 U.S.C. § 1809(c) (5 years imprisonment and $10,000 fine) with 18 U.S.C. § 2511(4) (providing a sliding scale of imprisonment depending on the nature of the communication and other circumstances, and fines under Title 18). Moreover, one court has held that "the FISA applies only to surveillance designed to gather information relevant to foreign intelligence." United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir. 1992) (en banc), cert. denied, 506 U.S. 1005 (1992).
Because the 1986 Act is the most recent enactment of criminal penalties for unlawful interceptions, it is recommended that United States Attorneys' Offices (USAOs) prosecute electronic eavesdropping violations under Title III rather than under FISA unless the purpose of the eavesdropping was gathering foreign intelligence information. The legislative history of FISA makes clear that a single unlawful interception should not be punished under both statutes. See H.R. No. 1283, 95th Cong., 2d Sess. 97 (1978).
It is not necessary that the eavesdropping be exclusively related to gathering foreign intelligence to implicate FISA. See, e.g., United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991) ("Although evidence obtained under FISA subsequently may be used in criminal prosecutions, investigation of criminal activity cannot be the primary purpose of the surveillance." (citing United States v. Duggan, 743 F.2d 59, 78 (2d Cir. 1984)), cert. denied, 506 U.S. 816 (1992); United States v. Rahman, 861 F. Supp. 247, 251 (S.D.N.Y. 1994) (rejecting argument that because the government believe that these defendants had violated or would violate a criminal statute, the primary purpose of the surveillance cannot have been the gathering of foreign surveillance information). In fact, FISA specifically provides that information obtained pursuant to its procedures may later be used for law enforcement purposes with the approval of the Attorney General. 50 U.S.C. § 1806(b). It is the Criminal Division's position that USAOs should prosecute electronic eavesdropping violations under FISA only if the purpose of the eavesdropping is related to gathering foreign intelligence.
[cited in JM 9-60.400]