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IN RE FLANAGAN

February 10, 1982

In re Grand Jury Subpoena of Martin FLANAGAN


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

This is a contempt proceeding brought on by the Government to compel a grand jury witness to answer questions relating to an alleged conspiracy to possess, transport, and smuggle firearms and ammunition from the United States to Great Britain and Ireland in violation of several federal firearm statutes. See, e.g., 26 U.S.C. § 5861, 22 U.S.C. §§ 2778(b)(2) and (c).

 Background.

 On July 20, 1981, a subpoena was issued requiring Martin Flanagan, a dual citizen *fn1" of the United States and the Republic of Ireland, to provide information to a federal grand jury concerning an alleged gun-running scheme. Mr. Flanagan is said to be an unindicted co-conspirator in this gun-running scheme. He stated to the Court that he has lived in the United States for approximately twenty-one years and is currently employed by Western Union as a technician. During the past twenty-one years, Mr. Flanagan has travelled back and forth to Ireland, generally taking such trips once a year for vacation purposes.

 On December 4, 1981, an immunity order was signed by this Court. *fn2" This order required Mr. Flanagan to testify before the grand jury, but granted him the customary immunity from the use of his testimony in the state and federal courts of the United States. Flanagan, however, moved on December 9, 1981, to quash the subpoena on two separate grounds: (1) that the grand jury questions were based on evidence derived from illegal electronic surveillance and (2) that, although the order of immunity clothes him with "use and derivative use immunity" in the United States, he would still be subject to prosecution in Northern Ireland, the Republic of Ireland or Great Britain.

 On December 18, 1981, Mr. Flanagan appeared before the grand jury and was asked the following question: "Calling your attention to the month of April of this year, were you assigned any particular vehicle to drive during that month, sir?" (Transcript, U.S. Grand Jury, E.D.N.Y., December 18, 1981, testimony of Martin Flanagan at 2 (hereinafter cited as "G.J.Tr.")) Upon his refusal to answer this question, Flanagan was informed that he was required to answer because he had been granted immunity pursuant to 18 U.S.C. §§ 6002, 6003. Nevertheless, Mr. Flanagan continued to refuse to answer this and other questions by the Government. These additional questions delved into whether Mr. Flanagan knew six particular men already indicted in the alleged gun-running scheme, and whether Flanagan had "ever engaged in any activities with any other of the aforementioned six men in transporting arms or ammunition in the Eastern District of New York which includes Brooklyn, Queens, Staten Island, Nassau and Suffolk Counties." G.J.Tr. at 5-6. In light of Mr. Flanagan's continued refusal to answer the questions, the Government moved under 28 U.S.C. § 1826(a) to compel him to testify.

 I. Illegal Electronic Surveillance.

 Mr. Flanagan first argues that he should not be compelled to answer the Government's questions because they were derived from illegal wiretaps. The Court rejects this argument.

 Certain wiretaps utilized by the Government in the gun-running investigation were authorized by the Foreign Intelligence Surveillance Court pursuant to the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801, et seq. The Government has represented to this Court that these wiretaps were not directed at Mr. Flanagan nor did they intercept any communications to which Mr. Flanagan was a party. In the Court's view-although the Government has not raised the issue-this creates a serious threshold question as to whether Mr. Flanagan has standing to challenge the wiretaps.

 Under FISA, only an "aggrieved person," defined as "a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance," may challenge the legality of a wiretap. 50 U.S.C. § 1801(k).

 This may be contrasted with the general wiretap statute which defines an aggrieved person as "a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11).

 Although the FISA definition of "aggrieved person" appears broader than the general wiretap definition, the legislative history of FISA indicates that the FISA definition "is to coincide with the definition of "aggrieved person' in section 2510 of title III." See S.Rep.No.95-604, 95th Cong., 2d Sess. 56-58 (1978), reprinted in (1978) U.S.Code Cong. & Ad.News 3904, 3957-3959. Indeed, clarifying the FISA definition, the Senate Report states that the "subject" of electronic surveillance is "an individual who was a party to the intercepted communication or was a person against whom the interception was directed." Id.

 Given this history, the Court is reluctant to conclude that the term "aggrieved person" has a different meaning in the two wiretap statutes. Accordingly, I hold that the term should be interpreted identically under both statutes and that, if Mr. Flanagan lacks standing under 18 U.S.C. § 2510 (general wiretap statute), he also lacks standing under 50 U.S.C. § 1801(k) (FISA).

 It is beyond argument that Flanagan lacks standing under the general wiretap statute. Under the customary constitutional rules, a party lacks the standing to assert the constitutional rights of another person. In the context of wiretapping, the rule has crystallized that the only persons with standing to suppress the fruits of an illegal wiretap are parties at whom the wiretaps were directed, parties to the call that was intercepted, or parties owning the premises where the conversations were intercepted. Alderman v. United States, 394 U.S. 165, 174-76, 89 S. Ct. 961, 966-68, 22 L. Ed. 2d 176 (1969); United States v. Civella, 648 F.2d 1167, 1172 (8th Cir. 1981); United States v. Fury, 554 F.2d 522, 525-26 (2d Cir. 1977), cert. denied, 436 U.S. 931, 98 S. Ct. 2831, 56 L. Ed. 2d 776 (1978). By attempting to suppress evidence obtained by a wiretap that was not directed at him and which did not pick up any of his conversations, Flanagan seeks to vicariously assert the rights of ...


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