Seventh Circuit holds that Foreign Intelligence Surveillance Act permits use of wiretap evidence obtained in international investigation for domestic criminal prosecution
Ning Wen, a naturalized U.S. citizen born in China, his wife and other associates allegedly operated a profitable business selling computer chips and circuit boards to China. The sale of such products is legal in the U.S., but export to China would require a license. Wen and his associates allegedly falsified shipping documents to circumvent the licensing requirements. The technology at issue purportedly served the Chinese military to develop weapons and missiles, as well as radar and communication devices. Interestingly, Wen also seems to have been an FBI informant since 1989 when he worked at the Chinese Consulate in Los Angeles.
Wen was charged with violating export control laws by allegedly providing militarily useful technology to the People's Republic of China without the necessary licenses. See 50 U.S.C. Section 1705(b).
Wen was found guilty and he appealed, claiming that the district court should have suppressed wiretap evidence. The wiretap at issue had been installed pursuant to the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. Section 1801. The district court reviewed the wiretap evidence in camera, considered it justified, and denied Wen's motion to suppress.
The U.S. Court of Appeals for the Seventh Circuit affirms.
FISA applies to interceptions for the purpose of foreign intelligence. It was amended in 2001 by the USA PATRIOT Act, making it applicable to interceptions that have international intelligence as a "significant purpose." 50 U.S.C. Section 1804(a)(7)(B). The Foreign Intelligence Surveillance Court of Review has interpreted the statute to permit domestic use of intercepted evidence as long as there is a "significant" international objective. See Sealed Case, 310 F.3d 717 (F.I.S.Ct. Rev. 2002).
Wen argues that evidence gathered pursuant to FISA cannot be used for domestic criminal investigations or prosecutions once the international investigation has "fizzled out."
"The principal problem with Wen's argument is that the exclusionary rule is used to enforce the Constitution, not statutes or regulations. ... So unless there is a constitutional problem in domestic use of evidence seized as part of an international investigation, there is no basis for suppression." [...]
"Probable cause to believe that a foreign agent is communicating with his controllers outside our borders makes an interception reasonable. If, while conducting this surveillance, agents discover evidence of a domestic crime, they may use it to prosecute for that offense. That the agents may have known that they were likely to hear evidence of domestic crime does not make the interception less reasonable than if there were ignorant of this possibility. ... In Horton v. California, 496 U.S. 128 (1990), the Court held that evidence in plain view may be seized without a warrant even though the police expected to find it. Likewise evidence of a domestic crime, acquired during an intercept that is reasonable because it concerns traffic between a foreign state and one of its agents in the United States, may be used in a domestic prosecution whether or not the agents expected to learn about the domestic offense. It is enough that the intercept be adequately justified without regard to the possibility that evidence of domestic offenses will turn up. Interception of Wen's conversations was adequately justified under FISA's terms, so there is no constitutional obstacle to using evidence of any domestic crimes he committed." [Slip op. 2-4]
Citation: United States v. Wen, No. 06-1385 (7th Cir. December 14, 2006); U.S. Department of Commerce, Bureau of Industry and Security, In the Matter of: WEN ENTERPRISES, Order Temporarily Denying Export Privileges (January 21, 2005).
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