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UNITED STATES v. VJEKOSLAV SPANJOL

August 22, 1989

UNITED STATES OF AMERICA
v.
VJEKOSLAV SPANJOL, a/k/a "V.J." a/k/a "Slavko;" BAHRUDIN BIJEDIC, a/k/a "Burri"; LBS BANK OF NEW YORK, INC.; VINKO MIR



The opinion of the court was delivered by: DUBOIS

 JAN E. DUBOIS, UNITED STATES DISTRICT JUDGE

 Defendant Bahrudin Bijedic filed a Motion for Pretrial Discovery on December 9, 1988. Defendants Vinko Mir and LBS Bank of New York, Inc. filed a Motion for Pretrial Discovery and Inspection on February 21, 1989. Defendant Vjekoslav Spanjol has joined in those Motions. The Motions, excepting only one category of discovery - discovery of electronic surveillance on which defendants were overheard - were decided pretrial. At the commencement of the trial on June 19, 1989, the only outstanding issue relating to said motions was the request by defendants for discovery of the electronic surveillance.

 In responding to the Motions, the Government advised that conversations of defendants Bijedic, Spanjol and Mir were intercepted by foreign intelligence electronic surveillances conducted pursuant to the Foreign Intelligence Surveillance Act ("FISA"). The Court received briefs from the parties on whether these electronic surveillance materials should be disclosed. In addition, the Court reviewed the sealed ex parte, In camera Exhibit submitted by the Attorney General, pursuant to Section 106(f) of FISA, 50 U.S.C. § 1806(f), and listened to tapes requested by the Court.

 (1) The Government complied in all respects with the provisions of FISA;

 (2) The Government obtained all necessary orders from the United States Foreign Intelligence Surveillance Court ("USFISC") and submitted all necessary affidavits to this Court, including an affidavit of Dick Thornburgh, Attorney General of the United States;

 (3) Under FISA, defendants are permitted discovery of materials only to the extent required by due process. That has been interpreted as requiring production of materials mandated by the case of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), essentially exculpatory materials.

 (4) The Court reviewed and examined all of the documents and other materials, ex parte, in camera, as provided by FISA. No exculpatory materials were found in that review ands examination.

 (5) Discovery of any such materials in this case would reveal the targets of electronic surveillance, thereby compromising intelligence sources and methods and causing harm to the national security of the United States;

 (6) The Government has made no direct, indirect or derivative use of any of the FISA materials.

 When making the foregoing findings, the Court stated they would be included in more detailed, written findings which would be issued in due course. Those findings, made pursuant to Fed. R. Crim. P. 12(e). are as follows:

 FINDINGS OF FACT

 1. FISA was enacted into law on October 25, 1978. Pub. L. 95-511, 92 Stat. 1783 (1978). It establishes a procedure under which the Government can obtain a judicial order authorizing it to conduct electronic surveillance to acquire foreign intelligence information, including information about the activities of foreign powers represented in the United States. Under FISA the Chief Justice of the United States is authorized to designate seven United States District Judges to be members of USFISC, which hears the Government's applications for electronic surveillance pursuant to the Act. ...


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