United States District Court, Western District of New York
October 24, 1990
UNITED STATES OF AMERICA, PLAINTIFF,
ALAN THOMSON, DEFENDANT.
The opinion of the court was delivered by: Arcara, District Judge.
DECISION AND ORDER
Defendant, Alan Thomson, is charged by indictment with
directing a structured banking transaction in violation of
31 U.S.C. § 5322(a), 5324(3), and 18 U.S.C. § 2. During pretrial
discovery, the defendant and the Court were notified by the
government that it had in its possession certain records and
summaries of conversations involving the defendant that were
obtained through electronic surveillance conducted pursuant to
the Foreign Intelligence Surveillance Act of 1978 ("FISA"). The
defendant has moved for disclosure of the FISA material under
sections 106(f) and 106(g) of the FISA, 50 U.S.C. § 1806(f)-(g),
and Fed.R.Crim.P. 16.
The government has asserted, by affidavit, that none of the
FISA material at issue contains either relevant or exculpatory
information or material regarding the offense charged by the
indictment. Further, the government asserts that it does not
intend to use, in this case, any information obtained or derived
from any electronic surveillance conducted pursuant to FISA.
Nevertheless, the defendant asserts that he is entitled to
disclosure of the FISA material. His argument is based on three
grounds. First, the defendant argues that disclosure of the FISA
material, or an adversary hearing, is necessary under section
106(f) of FISA, 50 U.S.C. § 1806(f), in order for the Court to
make an accurate determination of the legality of the electronic
surveillance at issue. Second, the defendant argues that because
the government failed to carry out the minimization procedures
required by FISA, the surveillance at issue was unlawful, thus
entitling him to disclosure of the FISA material under section
106(g) of FISA, 50 U.S.C. § 1806(g). Finally, the defendant
argues that he is entitled to disclosure of the FISA material
under section 106(g) of FISA, 50 U.S.C. § 1806(g), as a matter of
The Court has considered legal briefs submitted by the parties,
and has heard oral argument from the parties on whether the
electronic surveillance material at issue should be disclosed. In
addition, the Court reviewed ex parte, in camera, a sealed
Exhibit submitted by the Attorney General, pursuant to section
106(f) of the FISA, 50 U.S.C. § 1806(f), that included the
classified sealed affidavits of Russell P. Buscaglia, Assistant
United States Attorney, and W. Douglas Gow, Assistant Director of
Intelligence Division, Federal Bureau of Investigation. The Court
also received and considered an affidavit of the Honorable Dick
Thornburg, the Attorney General of the United States. After
reviewing all the information and material submitted by the
parties, the Court denies defendant's motion for disclosure of
the FISA surveillance material for the reasons stated herein.
The surveillance at issue was conducted pursuant to FISA, which
was enacted into law on October 25, 1978. Pub.L. 95-511, 92 Stat.
1783 (1978). FISA establishes procedures under which the Attorney
General can obtain a judicial order authorizing electronic
surveillance in the United States to acquire information for
foreign intelligence purposes. S.Rep. No. 95-604, 95th Cong., 2d
Sess., pt. 1 at 4-5, 1978 U.S.Code Cong. & Admin.News at 3904,
3906. It also created a United States Foreign Intelligence
Surveillance Court ("USFISC"), on which seven United States
District Court Judges, selected by the Chief Justice of the
United States, sit. 50 U.S.C. § 1803(a).
To obtain a surveillance order, a federal officer, having first
obtained approval from the Attorney General, must submit an
application to one of the USFISC Judges. 50 U.S.C. § 1804(a). The
application must detail the identity of the target; the
information relied on by the government to demonstrate that the
target is a "foreign power" or an "agent of a foreign power";
evidence that the place where the surveillance will occur is
being used, or is about to be used by the foreign power or its
agent; the type of surveillance to be used; the minimization
procedures to be employed; and certification that the information
sought is "foreign intelligence information". See
50 U.S.C. § 1804(a)(1)-(11).
Before issuing the order, the USFISC Judge must make specific
findings, including that:
there is probable cause to believe that (A) the
target of the electronic surveillance is a foreign
power or an agent of a foreign power: Provided,
that no United States person may be considered a
foreign power or an agent of a foreign power solely
upon the basis of activities protected by the first
amendment to the Constitution of the United States. .
50 U.S.C. § 1805(a)(3)(A). An order is usually valid for 90 days
with certain limited exceptions. See, e.g., 50 U.S.C. § 1802
Under FISA, information acquired from a FISA surveillance
concerning any "United States person" may be used and disclosed
without the consent of the "United States person" only in
accordance with the minimization procedures noted above. No
information acquired from a FISA electronic surveillance may be
disclosed or used except for lawful purposes.
50 U.S.C. § 1806(a).
Should FISA surveillance produce any information that would be
relevant in a criminal proceeding, section 106 of FISA,
50 U.S.C. § 1806, establishes procedures for the use or disclosure of that
information. More specifically, when a criminal defendant moves
for disclosure of FISA surveillance material, sections 106(f) and
106(g) of FISA, 50 U.S.C. § 1806(f)-(g), prescribe the
procedures to be followed by the Court in determining whether or
not to order disclosure.
Under FISA, when a criminal defendant who is the target of an
electronic surveillance, or whose communications or activities
were subject to electronic surveillance, moves for disclosure of
the FISA material, and the Attorney General opposes the motion by
filing an affidavit indicating that disclosure or an adversary
hearing would harm the national security, the Court must conduct
an ex parte, in camera review of the application, order, and
such other material relating to the surveillance as may be
necessary to determine whether the surveillance was lawfully
authorized and conducted. 50 U.S.C. § 1806(f). The Court may
order disclosure of the material if such disclosure is necessary
to make an accurate determination of the legality of the
surveillance. 50 U.S.C. § 1806(f) (emphasis added).
If the Court determines that the surveillance was unlawfully
authorized or conducted, it must order disclosure of the FISA
material. 50 U.S.C. § 1806(g) (emphasis added). In United States
v. Belfield, 692 F.2d 141 (D.C.Cir. 1982), the court stated
that: "[e]ven when the government has purported not to be
offering any evidence obtained or derived from the electronic
surveillance, a criminal defendant may claim that he has been the
victim of an illegal surveillance and seek discovery of the [FISA
surveillance material] to ensure that no fruits thereof are being
used against him." Id. at 146. If, on the other hand, the Court
determines that the surveillance was lawfully authorized and
conducted, it must deny the defendant's motion for disclosure
"except to the extent that due process requires discovery or
disclosure." 50 U.S.C. § 1806(g); see United States v. Spanjol,
720 F. Supp. 55 (E.D.Pa. 1989).
Thus, the Court can grant a motion for disclosure of FISA
surveillance material in only three instances: (1) if disclosure
is necessary for the Court to make an accurate determination of
the legality of the surveillance; (2) if the surveillance was
authorized or conducted; or (3) if due process requires
disclosure. 50 U.S.C. § 1806(f)-(g).
FINDINGS OF FACT
Having read and analyzed the parties' briefs, heard oral
argument, and reviewed ex parte, in camera certain relevant
material, the Court hereby makes the following findings of fact:
1. As part of the government's response to defendant's motion
for disclosure of the FISA electronic surveillance material, the
Attorney General of the United States filed an Affidavit and
Claim of Privilege pursuant to 50 U.S.C. § 1806(f). In this
affidavit, the Attorney General asserts that it would harm the
national security of the United States to disclose or have an
adversary hearing with respect to the documents of the USFISC
that are contained in the sealed Exhibit submitted to the Court,
and to disclose any additional information relating to the
electronic surveillance at issue.
2. The sealed Exhibit submitted by the Attorney General and
other material before the Court demonstrate that the government,
in conducting the electronic surveillance, was engaged in
collection of foreign intelligence. Complete copies of the
government's applications for all such surveillance and the
USFISC orders were included in the Attorney General's sealed
3. The government attorney has stated in an affidavit that he
has not made, nor will he make, any direct, indirect or
derivative use of the surveillance material at issue in this
4. The government has conducted a review of the logs and
reports of the electronic surveillance at issue in this case. The
sealed Exhibit contained an affidavit of the Assistant Director,
Intelligence Division of the FBI, and an affidavit of an
Assistant United States Attorney who conducted the review. In
these affidavits, the affiants described the documents examined
and the Assistant United States Attorney stated that the reviewed
material did not contain any exculpatory or relevant information.
5. The Court reviewed and examined ex parte, in camera all
material relating to the electronic surveillance at issue, and
finds that none of the material contains any exculpatory or
relevant information. In reviewing the contents of the material
the Court finds that the documents contain sufficient information
and detail to enable the Court to determine the subject matter of
those conversations involving the defendant. Since the material
identifies the targets of the electronic surveillance at issue,
the Court further finds that all such material is covered by the
Attorney General's assertion of privilege and need not be
disclosed to the defendant or his counsel.
6. FISA requires this Court to review the government's
applications and the USFISC orders authorizing the surveillance
to determine whether the surveillance was lawfully authorized and
conducted. 50 U.S.C. § 1806(f). Accordingly, the Court has
reviewed the relevant material in the sealed Exhibit and finds
that the applications for electronic surveillance set forth all
the information that the FISA requires. See 50 U.S.C. § 1804.
The Court also finds that the USFISC orders contained all the
findings required by FISA. See 50 U.S.C. § 1805. Specifically,
the Court finds that the President has authorized the Attorney
General to approve applications for electronic surveillance,
50 U.S.C. § 1805(a)(1); the instant applications were made by
federal officers and approved by the Attorney General,
50 U.S.C. § 1805(a)(2); there was probable cause to believe that the
targets of the surveillance fell within the definition of a
"foreign power" or "agent of a foreign power" as set forth in
50 U.S.C. § 1801(a) and (b); the facilities against which the
electronic surveillance was directed were being used by a foreign
power or agent of a foreign power, 50 U.S.C. § 1805(a)(3); the
minimization procedures included with the government's
application and ordered by the USFISC meet the requirements of
section 101(h) of FISA, 50 U.S.C. § 1805(a)(4); and the
application which has been filed contains all statements and
certifications required by section 104 of FISA, 50 U.S.C.
§ 1804. The Court also finds that the orders issued by the USFISC
fully satisfied the requirements of section 105(b) of FISA,
50 U.S.C. § 1805(b).
NECESSITY OF DISCLOSURE OR AN ADVERSARY HEARING TO DETERMINE THE
LEGALITY OF THE SURVEILLANCE
Defendant argues that disclosure of the material relating to
the surveillance or an adversary hearing may be necessary in
order for the Court to accurately determine the legality of the
electronic surveillance at issue. 50 U.S.C. § 1806(f). The
determination of the necessity of such a disclosure or adversary
hearing, however, is left to the discretion of the Court.
50 U.S.C. § 1806(f); see Belfield, 692 F.2d at 147.
No court that has been required to determine the legality of a
FISA surveillance has found disclosure or an adversary hearing
necessary. See, e.g., United States v. Sarkissian, 841 F.2d 959
(9th Cir. 1988); United States v. Ott, 827 F.2d 473 (9th Cir.
1987); United States v. Duggan, 743 F.2d 59 (2d Cir. 1984);
Belfield, 692 F.2d at 141; United States v. Falvey,
540 F. Supp. 1306 (E.D.N.Y. 1982). As the court in Belfield
Disclosure and an adversary hearing are the
exception, occurring only when necessary. [Emphasis
in original.] The legislative history explains that
such disclosure is "necessary" only where the court's
initial review of the application, order, and fruits
of the surveillance indicates that the question of
legality may be complicated by factors such as
"indications of possible misrepresentation of fact,
vague identifications of the persons to be
surveilled, or surveillance records which include a
significant amount of nonforeign intelligence
information, calling into question compliance with
the minimization standards contained in the order."
[Quoting S.Rep. No. 95-701, 95th Cong., 2d Sess. at
64 (1978), U.S. Code Cong. & Admin.News 1978, 3973,
An examination of the in camera Exhibit in this
case demonstrates that no such factors are present
here. The target of the surveillance is clearly
identified; the foreign policy purpose patently
evident; the facts justifying the surveillance are
well within the bounds set by the minimization
procedures. It is readily apparent that all the
statutory requirements have been met. Furthermore,
the harm to U.S. security interests which would stem
from disclosure of the Exhibit is equally evident.
The determination of legality in this case is not
complex . . . Indeed, the surveillance is so clearly
supported by the documents in the Exhibit that it
would have been an abuse of discretion for the
district court to order disclosure.
Belfield, 692 F.2d at 147.
After reviewing both the sealed Exhibit ex parte, in camera
and the material provided by the parties, the Court finds that
the issues in this case are not so complex that the participation
of the defendant is required to accurately determine the legality
of the surveillance at issue. Thus, disclosure of the FISA
material at issue is not warranted under section 106(f) of FISA,
50 U.S.C. § 1806(f).
THE MINIMIZATION ISSUE
Defendant also argues that disclosure of the FISA material is
required under § 106(g) of FISA, 50 U.S.C. § 1806(g), because the
surveillance at issue was unlawfully authorized and conducted. He
asserts that the surveillance was unlawful because the government
failed to carry out the minimization procedures required by
FISA.*fn1 The defendant's basis for his minimization argument is
that, in sum, the government could not have obtained information
from such a surveillance which would have met the statutory
definition of foreign intelligence information, and thus
the acquisition and retention by the government of any
information concerning the defendant would not comply with FISA
minimization procedures. After review of all materials and
exhibits submitted by the parties, the Court finds that the
government fully complied with all FISA minimization
"Minimization procedures" with respect to a FISA electronic
surveillance are defined, in pertinent part, as:
[S]pecific 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.
50 U.S.C. § 1801(h). In every application for a USFISC order
authorizing electronic surveillance pursuant to FISA, the
government must propose such minimization procedures. The
proposed minimization procedures are adopted by the USFISC in its
order authorizing the electronic surveillance, provided that the
USFISC finds that they meet the definition of minimization
procedures set forth in section 101(h) of FISA,
50 U.S.C. § 1801(h). 50 U.S.C. § 1805.
The FISA minimization procedures were enacted "generally to
parallel the minimization provision in existing [electronic
surveillance] law." S.Rep. No. 95-701, 95th Cong.2d Sess. at 39,
1978 U.S.Code Cong. & Admin.News at 4008. In so doing, Congress
As the courts have noted in construing [existing
electronic surveillance law] "it is . . . obvious
that no electronic surveillance can be so conducted
that innocent conversations can be totally
eliminated." United States v. Bynum, 485 F.2d 490,
500 (2d Cir. 1973), cert. denied, 423 U.S. 1005
[952, 96 S.Ct. 357, 46 L.Ed.2d 277] (1975). In
assessing the minimization effort, the court's role
is to determine whether "on the whole, the agents
have shown a high regard for the right of privacy and
have done all they reasonably could to avoid
unnecessary intrusion." United States v.
Tortorello, 480 F.2d 764 (2d Cir.), cert. denied,
414 U.S. 886 [866, 94 S.Ct. 63, 38 L.Ed.2d 86]
(1973). Absent a charge that the minimization
procedures have been disregarded completely, the test
of compliance is "whether a good faith effort to
minimize was attempted." United States v. Armocida,
515 F.2d 29, 44 (3d Cir. 1975).
S.Rep. No. 95-701, 95th Cong.2d Sess. at 39-40, 1978 U.S.Code
Cong. & Admin.News at 4008-09.
In Scott v. United States, 436 U.S. 128, 135-39, 98 S.Ct.
1717, 1722-24, 56 L.Ed.2d 168 (1978), the Supreme Court held that
this "good faith" standard meets the reasonableness requirements
of the Fourth Amendment as applied to electronic surveillance
conducted pursuant to Title III, and that the proper approach for
evaluating compliance with the minimization requirements is to
objectively assess the monitoring agent's actions in light of the
circumstances at the time, without regard to their underlying
motive or intent. The legislative history makes it clear that
this standard of reasonableness should apply with equal force to
FISA electronic surveillance. Thus, the government must make a
good faith effort to minimize the acquisition, retention, and
dissemination of information concerning unconsenting United
States persons consistent with the need of the United States to
obtain, produce, and disseminate foreign intelligence.
50 U.S.C. § 1801(h)(1).
Every FISA electronic surveillance must have as its purpose the
obtaining of foreign intelligence information.
50 U.S.C. § 1802(b) et al. This purpose must be personally certified to by
one of certain specified high-level executive branch officials
cognizant of national security or defense matters who are
designated by the President, as set forth in Executive Order
12139, 3 C.F.R. § 397 (1980). 50 U.S.C. § 1804(a)(7), 1805(a).
Defendant suggests that none of his communications could
possibly be related to foreign intelligence purposes, and thus
they should not have been retained by the government. He bases
his argument on his interpretation of the definition of foreign
intelligence information in FISA. Defendant appears to imply in
his memorandum that only information necessary for the United
States to defend against an imminent actual attack, terrorism,
sabotage, or other immediate threat can be retained. See
Defendant's Memorandum at 19. However, this narrow interpretation
of the definition of foreign intelligence information under FISA
FISA defines foreign intelligence information as:
(1) information that relates to, and if concerning a
United States person is necessary to, the ability of
the United States to protect against (A) actual or
potential attack or other grave hostile acts of a
foreign power or an agent of a foreign power; (B)
sabotage or international terrorism by a foreign
power or an agent of a foreign power; or (C)
clandestine intelligence activities by an
intelligence service or network or a foreign power or
by an agent of a foreign power; or
(2) information with respect to a foreign power or
foreign territory that relates to, and if concerning
a United States person is necessary to — (A) the
national defense or the security of the United
States; or (B) the conduct of the foreign affairs of
the United States.
50 U.S.C. § 1801(e).
Defendant narrowly focuses only on the types of information set
forth in § 1801(e)(1), and disregards the equally applicable
provisions of § 1801(e)(2). However, in cases where electronic
surveillance acquires information with respect to a foreign power
which concerns a United States person, that information may
satisfy the statutory requirement of foreign intelligence
information if it relates to actual attack or if it encompasses
information which "is necessary to (A) the national defense or
the security of the United States, or (B) the conduct of the
foreign affairs of the United States." 50 U.S.C. § 1801(e)(2).
For example, electronic surveillance of the communications of a
foreign power which acquired information about military,
political, diplomatic or intelligence matters would clearly be
necessary to the national defense, security, or foreign affairs
of the United States, even where such information also concerned
a United States person. Such information would thus fall within
the scope of § 1801(e)(2), and the government could lawfully
acquire and retain it.
Furthermore, the government is not required to make an
instantaneous identification of information acquired through a
FISA authorized surveillance as unequivocally being foreign
intelligence or else discarding it. The legislative history of
FISA is clear on this point.
[T]he definition of "minimization procedures" does
not state that only "foreign intelligence
information" can be acquired, retained, or
disseminated. The committee recognizes full well that
bits and pieces of information, which taken
separately could not possibly be considered
"necessary", may together or over time take on
significance and become "necessary." Nothing in this
definition is intended to forbid the retention or
even limited dissemination of such bits and pieces
before their full significance becomes apparent.
H.R.Rep. No. 95-1283, 95th Cong., 2d Sess., pt. I at 58 (1978).
[I]n intelligence as in law enforcement, leads must
be followed. Especially in counterintelligence cases
where often trained professional foreign intelligence
personnel are involved, a lead which initially ends
in a "dry hole" can hardly be considered a dead
issue, although it may be temporarily shelved to
divert limited resources to other leads. Therefore,
this committee intends that a significant degree of
latitude be given in counterintelligence and
counterterrorism cases with respect to the retention
of information and the dissemination of information
between and among counterintelligence components of
H.R.Rep. No. 95-1283, 95th Cong., 2d Sess., pt. I at 59 (1978).
When a United States person communicates with a foreign power
or agent of a foreign power, the government would be remiss in
meeting its foreign counterintelligence responsibilities if it
did not investigate such contacts and gather information to
determine the nature of those activities. To suggest otherwise
ignores the purpose of FISA which is to provide a procedure for
the government to obtain authorization to conduct electronic
surveillance in the United States for foreign intelligence
purposes. S.Rep. No. 95-604, 95th Cong.2d Sess., pt. I, at 4-5,
1978 U.S.Code Cong. & Admin. News at 3906.
Thus, the Court finds upon its review ex parte, in camera of
the sealed Exhibit that all of the FISA authorized electronic
surveillance on which the defendant was overheard meets the
standards of foreign intelligence set forth in the statute, and
that the government made a "good faith" effort in minimizing
information concerning United States persons which may have been
acquired through such electronic surveillance. Consequently, the
FISA electronic surveillance at issue was lawfully authorized and
DUE PROCESS ISSUES
The defendant further argues that, even if the FISA electronic
surveillance at issue was lawfully authorized and conducted, he
is entitled to disclosure as a matter of due process.
50 U.S.C. § 1806(g). This argument is two fold. First, defendant claims that
if any of the information contained in the FISA material is
relevant to this case, he is entitled to disclosure as a matter
of law. Second, the defendant claims that he is entitled to
disclosure because the government's conduct in this case was so
outrageous that it violated his right to due process.
The defendant argues that he is entitled, under Fed.R.Crim.P.
16, to any relevant information contained in the FISA material.
As stated in the findings of fact, however, the Court has
reviewed the FISA electronic surveillance material at issue and
finds that none of the material contains any information that is
either relevant or exculpatory. Furthermore, the government has
stated by affidavit that it has not made, nor does it plan to
make, any use of the FISA material in the instant case.
Even assuming, however, that the FISA material at issue is in
some way relevant to this case, the defendant is still not
entitled to disclosure of the material under Fed.R.Crim.P. 16.
Spanjol, 720 F. Supp. at 59. The legislative history of the Act
states plainly that Congress intended to restrict discovery as
much as constitutionally possible in cases involving FISA. FISA
rendered Rule 16 and other existing laws inapplicable to
discovery of FISA surveillance information with respect to
Section 106(g) of FISA, 50 U.S.C. § 1806(g), which mandates
denial of discovery of material relating to lawfully authorized
foreign surveillance "except to the extent that due process
requires." The legislative history states:
The Committee recognizes that this provision alters
existing law and is a limitation on existing
discovery practice. It is felt that where the . . .
court has determined that the surveillance is lawful,
security considerations should preclude any
disclosure unless due process requires disclosure.
H.R.Rep. No. 95-1283, 95 Cong., 2d Sess., Pt. I at 94 n. 50
(1978). In United States v. Spanjol, 720 F. Supp. 55 (E.D.Pa.
1989), the court held that defendants were not entitled to
discovery of conversations intercepted on FISA surveillance, even
though some of the conversations were determined to be "minimally
relevant" to the case. In its decision, the court noted that:
In enacting FISA Congress intended to restrict, as
much as constitutionally possible, discovery of FISA
material. (citation omitted) To achieve this end,
Congress enacted Section 106(g) of FISA,
50 U.S.C. § 1806(g), which mandates denial of discovery of
material relating to lawfully authorized foreign
surveillance "except to the extent that due process
requires." Thus, to the extent that Fed.R. Crim.P. 16
allows discovery of the prior
relevant statements of the defendants beyond
exculpatory information constitutionally mandated by
Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10
L.Ed.2d 215] (1963), and its progeny, it is
inapplicable to discovery of intelligence information
collected under the Act.
Id. at 59. Thus, to the extent that Rule 16 allows discovery
beyond that constitutionally mandated by Brady, it is
inapplicable to discovery of intelligence information collected
Finally, defendant raises the potential defenses of entrapment
and government misconduct, and argues that his due process rights
were violated by outrageous government misconduct in that "the
FBI's intrusive surveillance of defendant over a period of many
years was totally without legal justification and violated his
constitutional rights." Defendant's Memorandum at 24.
In addressing a similar situation in United States v. Duggan,
743 F.2d 59, 84 (2d Cir. 1984), the Second Circuit stated that:
The Supreme Court has noted the possibility that a
due process violation grounded in outrageous
government conduct might be available even if the
defendant, because of his predisposition, could not
establish an entrapment defense. See, United States
v. Russell, 411 U.S. 423, 431-432 [93 S.Ct. 1637,
1642-1643, 36 L.Ed.2d 366] (1973). As Justice Powell
commented, however, "[p]olice overinvolvement in
crime would have to reach a demonstrable level of
outrageousness before it could bar conviction."
Hampton v. United States, 425 U.S. 484, 495 n. 7
[96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113] (1976).
We have rarely sustained due process claims
concerning government investigative conduct,
stressing that the conduct involved must be "most
egregious," United States v. Alexandro,
675 F.2d 34, 40 (2d Cir.), cert. denied, 459 U.S. 835 [103
S.Ct. 78, 74 L.Ed.2d 75] (1982) and "`so repugnant
and excessive' as to shock the conscience," United
States v. Romano, 706 F.2d 370, 382 (2d Cir. 1983)
(quoting United States v. Alexandro, supra, 675
F.2d at 39).
As stated earlier, after review of the FISA material contained
in the sealed Exhibit and the submissions of the parties, this
Court finds that the surveillance at issue was lawfully
authorized and conducted. There is no evidence of any government
misconduct with regard to any FISA authorized electronic
surveillance, much less conduct which would be "most egregious".
Thus, defendant's claims of "outrageous government conduct" are
For the reasons set forth above, the defendant's motion for
disclosure of the FISA material is denied. The parties are
directed to meet with the Court on October 31, 1990 at 2:00 p.m.
for a status conference.