The opinion of the court was delivered by: DUFFY
Defendant John Kearney is a former agent of the Federal Bureau of Investigation who is charged with obstruction of correspondence and interception of wire communications in violation of 18 U.S.C. §§ 1702 and 2511, and with conspiracy to commit those offenses. He has now moved for an order permitting the discovery and inspection of certain documents and materials purportedly in the hands of the government, and for a bill of particulars. At a pre-trial conference held before me on June 24, 1977 the parties indicated their desire to informally resolve the matter relating to the bill of particulars, so I will not now address that issue.
The discovery requests cover several categories of information: general requests, requests designed to support defenses based on "national security" and "mistake of law and fact," and requests in aid of a motion to dismiss the indictment on the grounds of pre-indictment delay, selective prosecution, grand jury disclosure, and the statute of limitations.
I have already ordered the government to turn over witness lists (Item 1) pursuant to the balancing test of United States v. Cannone, 528 F.2d 296 (2d Cir.1975). Additionally, the government has either consented to disclose or is apparently not in possession of Items 2, 5, 6, 7, 10, 11, 12, 13, 14, 16 and 18; and defendant has acknowledged receipt of his grand jury testimony (Item 4) as well as documents obtained from him which the government intends to introduce at trial (Item 9).
The government has objected to the production of grand jury testimony of co-conspirators (Item 4), statements of co-conspirators (Item 8), and documents obtained from co-conspirators (Item 9), as well as material seized from F.B.I. offices in Washington and New York on or about August 19, 1976 (Item 15). It does, however, acknowledge its responsibility to produce any material intended for use at trial, or any exculpatory documents under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). While the grand jury testimony of co-conspirators may subsequently be available to defendant pursuant to 18 U.S.C. § 3500, neither that testimony nor co-conspirators' statements will be ordered produced at this time. United States v. Percevault, 490 F.2d 126 (2d Cir. 1974). With regard to documents obtained from or belonging to co-conspirators and those seized on August 19, 1976, defendant argues that disclosure is necessary in order to determine if he was involved in the preparation of this material. If defendant had an interest in such documents, disclosure is proper. Consequently, as I indicated at the pre-trial conference on June 24, 1977, the government is directed to produce any documents or reports of other F.B.I. agents which defendant signed or approved, including those which facially indicate the approval of defendant's superiors.
Defendant also seeks the written and recorded statements of government witnesses (Item 1) and the names, addresses and statements of persons with knowledge of the case who are presently considered non-witnesses (Item 3). The witness statements fall within 18 U.S.C. § 3500, and will not be disclosed at this time. United States v. Percevault, supra ; Rule 16(a)(2), F.R.Crim.P. Disclosure of non-witnesses and their statements would appear discoverable as tangible property subject to a showing of materiality, Rule 16(a)(1)(C). See United States v. Marshak, 364 F. Supp. 1005, 1007-08 (S.D.N.Y. 1973). Defendant's blanket demand and general justification -- that this material may supply the defense with "background material on the issues of authorization, chain of command authority, traditional methods of investigation, and other important matters" -- fails to constitute a showing of the type required. However, to the extent that any such statements are contained in requests granted under the categories discussed infra, they must be produced.
Included in Item 17, seeking disclosure of all arguably favorable or exculpatory evidence, is "information which may be or become of benefit to defendant in preparing the merits of his defense at trial." The contours of Brady, however, do not extend this far, and to the extent such material is requested, the request is denied. See United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976); United States v. Ruggiero, 472 F.2d 599 (2d Cir.), cert. denied, 412 U.S. 939, 93 S. Ct. 2772, 37 L. Ed. 2d 398 (1973). The government has agreed that all exculpatory material and all material tending to impeach a government witness will be produced.
The balance of Item 17 is concerned with the disclosure of material tending to support defendant's motion to dismiss the indictment and various defenses. Like Items 19, 20 and 21 which seek disclosure of membership lists of the Weathermen organization, the relationship of persons referred to in the indictment to the Weathermen, and a statement of criminal acts committed by the Weathermen so as to develop a national security defense, this portion of Item 17 is implicitly contained in the remaining requests which will be considered and ruled upon below.
Items 22 through 27 seek material in support of a defense based on "national security"; Items 28 through 35 request disclosure of information aimed at the establishment of a "mistake of law and fact" defense. Based on defendant's factual proffer outlining these defenses,
the government contends that they are unavailable to defendant as a matter of law, and that the requests, therefore, should be denied. Bearing in mind that the instant motion is one for discovery of materials purportedly relevant to the development of these defenses, and not one aimed at a determination of the merits of already established defenses, I turn to a consideration of the requests.
THE NATIONAL SECURITY DEFENSE
The acts charged on this indictment involve the use of warrantless wiretaps and unauthorized mail openings in connection with defendant's F.B.I. investigative responsibility for the location and apprehension of fugitives associated with the organization known as the Weathermen. The broad discovery into the national security aspects of this case, including the disclosure of information designed to establish a foreign influence on the Weathermen, is sought to support the view that this organization posed a national security threat constitutionally justifying the use of these warrantless intrusive techniques.
In United States v. Ehrlichman, 178 U.S. App. D.C. 144, 546 F.2d 910 (D.C.Cir.1976), cert. denied 429 U.S. 1120, 97 S. Ct. 1155, 51 L. Ed. 2d 570 (1977), the Court of Appeals for the District of Columbia Circuit explored and defined the contours of the so-called "national security" defense in cases purportedly involving foreign agents or collaboration with foreign powers. That issue had been specifically left open by the Supreme Court in United States v. United States District Court, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972) in requiring a warrant in domestic electronic surveillance cases. This defense is apparently rooted in the President's constitutional power over the exercise of foreign affairs, a power acknowledged, yet left undefined and undisturbed by Congress in enacting the Federal wiretapping statute. See Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2511(3) (Title III).
The Ehrlichman court, in affirming that the warrantless break-in of Dr. Lewis Fielding's office in search of records of his patient, Daniel Ellsberg, was violative of his Fourth Amendment rights, held that if there exists such a "national security" exemption to the Fourth Amendment's warrant requirement in cases involving foreign agents or collaborators, this exemption can only be invoked, and a warrantless search conducted, with the express authorization of the President or Attorney General.
Indeed, any less of a requirement would give any minor yet zealous official a free hand to disregard the vital privacy interests which lie at the core of Fourth Amendment protection simply by conjuring up the "national security" and "foreign influence" spectre. As the Ehrlichman court noted, "The danger of leaving delicate decisions of propriety and probable cause to those actually assigned to ferret out 'national security' information is patent . . ." 546 F.2d at 926.
That the instant case involves wiretapping rather than a physical trespassory intrusive technique should not change the result. See United States v. Barker, 178 U.S. App. D.C. 174, 546 F.2d 940, 953 n. 40 (D.C.Cir. 1976). Those cases which, in the wake of United States v. United States District Court, supra, have upheld warrantless wiretapping when dealing with foreign connections in the name of "national security" have involved wiretaps which were, in fact, authorized by the Attorney General pursuant to powers delegated to him by the President. United States v. Butenko, 494 F.2d 593 (3rd Cir.1974), cert. denied 419 U.S. 881, 95 S. Ct. 147, 42 L. Ed. 2d 121 (1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied 415 U.S. 960, 39 L. Ed. 2d 575, 94 S. Ct. 1490 (1974). I am aware of no case which has upheld a warrantless intrusion not so authorized. That the Supreme Court has demonstrated its concern for fixing responsibility for authorizing wiretaps in no lower ranked an official than the Attorney General is evidenced by United States v. Giordano, 416 U.S. 505, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974), in which a court-ordered wiretap was ruled invalid since the ...