U.S. v. Brown, 908 F.2d 968 (Table), 1990 WL 101946 (4th Cir.(Va.) 1990)

Unpublished Disposition

NOTICE: THIS IS AN UNPUBLISHED OPINION.

(The Court's decision is referenced in a "Table of Decisions Without

Reported Opinions" appearing in the Federal Reporter. Use FI CTA4 Rule 36

for rules regarding the citation of unpublished opinions.)

United States Court of Appeals, Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Alphonso BROWN, Defendant-Appellant,

All African Peoples' Revolutionary Party; American Indian

Movement/International Indian Treaty Council; El Portido La Raza Unida; New

Afrikan Peoples' Organization; National Black United Front; Republic of New

Afrika; Piscataway Indian Nation; Center for Constitutional Rights;

Commission for Racial Justice of the United Church of Christ; National

Rainbow Coalition, Amici Curiae.

UNITED STATES of America, Plaintiff-Appellee,

v.

Maisoun Ben MOHAMAD, a/k/a Maisun Hawamda, Defendant-Appellant,

All African Peoples' Revolutionary Party; American Indian

Movement/International Indian Treaty Council; El Portido La Raza Unida; New

Afrikan Peoples' Organization; National Black United Front; Republic of New

Afrika; Piscataway Indian Nation; Center for Constitutional Rights;

Commission for Racial Justice of the United Church of Christ; National

Rainbow Coalition, Amici Curiae.

UNITED STATES of America, Plaintiff-Appellee,

v.

Jafar JAFARI, Defendant-Appellant,

All African Peoples' Revolutionary Party; American Indian

Movement/International Indian Treaty Council; El Portido La Raza Unida; New

Afrikan Peoples' Organization; National Black United Front; Republic of New

Afrika; Piscataway Indian Nation; Center for Constitutional Rights;

Commission for Racial Justice of the United Church of Christ; National

Rainbow Coalition, Amici Curiae.

UNITED STATES of America, Plaintiff-Appellee,

v.

Omar AL-MADANI, Defendant-Appellant,

All African Peoples' Revolutionary Party; American Indian

Movement/International Indian Treaty Council; El Portido La Raza Unida; New

Afrikan Peoples' Organization; National Black United Front; Republic of New

Afrika; Piscataway Indian Nation; Center for Constitutional Rights;

Commission for Racial Justice of the United Church of Christ; National

Rainbow Coalition, Amici Curiae.

Nos. 89-5404 to 89-5407.

Argued: Feb. 6, 1990.

Decided: June 21, 1990.

As Amended July 2, 1990.

Appeals from the United States District Court for the Eastern District of

Virginia, at Alexandria. Albert V. Bryan Jr., Chief District Judge.

(CR-89-56-03-A, CR-89-56-02A, CR-89-56-07-A, CR-89-56-08-A).

Jonathan Mark Smith, Washington, D.C.; argued, William Benjamin Moffitt,

William B. Moffitt & Associates, argued, Alexandria, Va.; Richard Charley

Shadyac, Jr., Shadyac & Shadyac, Arlington, Virginia, moved, for

appellants; Lisa B. Kemler, William B. Moffitt & Associates, Alexandria,

Va.; Richard C. Shadyac, Sr., Shadyac & Shadyac, Arlington, Va.; Richard

Joseph Brownell, John A. Keats, Fairfax, Virginia, on brief. Henry E.

Hudson, United States Attorney, Patricia S. Cassell, Third-year Law

Student, Alexandria, Va.; Mary C. Lawton, Lubomyre M. Jacknycky, Special

Attorneys, United States Department of Justice, Washington, D.C., on

brief.

Lawrence Joseph Leiser, Assistant United States Attorney, Alexandria,

Virginia, argued, for appellee;

Frank E. Deale, Margaret Bellamy, Stephanie Y. Moore, Center for

Constitutional Rights, New York City, for amici curiae.

E.D.Va.

AFFIRMED.

Before ERVIN, Chief Judge, and DONALD RUSSELL and CHAPMAN, Circuit Judges.

PER CURIAM:

**1

Robert Alphonso Brown, Maisoun Ben Mohamad, a/k/a Maisun Hawamda, and Omar

Al-Madani were found guilty by a jury of committing wire fraud in

violation of 18 U.S.C. §§ 1343 & 2, of credit card fraud in violation of

18 U.S.C. §§ 1029(a)(1) & (b)(1) & 2, of credit card conspiracy in

violation of 18 U.S.C. § 1029(b)(2), and of conspiracy to commit an

offense against the United States in violation of 18 U.S.C. § 371. Jafar

Jafari was convicted of conspiracy to commit an offense against the United

States in violation of 18 U.S.C. § 371 and credit card conspiracy in

violation of 18 U.S.C. § 1029(b)(2). On appeal the appellants argue that

their convictions should be overturned because (1) the Federal Bureau of

Investigation ("FBI") failed to comply with minimization procedures as

required by the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801

et seq., (2) the district court refused to disclose FISA documents, and

(3) the telephone access numbers used by appellants were not counterfeit.

Ben Mohamad also argues that her conviction should be overturned because

the government violated the rule on witnesses and because the motive

instruction given to the jury was erroneous. Jafari argues that there was

insufficient evidence to support a guilty verdict in his case. And

finally, Amici Curiae argue that the government violated Brown's first,

fourth and fourteenth amendment rights by retaining telephone

conversations. After reviewing the record and listening to oral argument,

we affirm the convictions for the reasons provided below.

I.

The facts leading up to the convictions are as follows. On or before May

1986, the government placed wiretaps on the phones of several Arab and

African nationals, including the home phones of Mousa Hawamda and Saleh

Al-Rajhi, and the telephone at Manara Travel Agency which is the business

of Hawamda. Mousa Hawamda and Saleh Al-Rajhi are Libyan agents. The

wiretaps were authorized by the Foreign Intelligence Surveillance Act, 50

U.S.C. §§ 1801 et seq. ("FISA" or "Act"), to monitor foreign intelligence

information.

Because many of the conversations were in Arabic, the FBI recorded all

conversations with an automatic recording device. An FBI agent listened to

the recordings, then translated, summarized and indexed all calls which

had foreign intelligence value or which contained evidence of other

illegal activities.

The appellants in this case, Robert Alphonso Brown, Maisoun Ben Mohamad,

a/k/a Maisun Hawamda (wife of Mousa Hawamda), Jafar Jafari and Omar

Al-Madani, are not known Libyan agents nor are they involved in foreign

intelligence. However, they routinely used the wiretapped phones and, as a

result of information provided by the wiretaps, were charged with wire

fraud, credit card fraud, and conspiracy to commit the substantive

offenses.

II.

Appellants argue that evidence collected as a result of the wiretaps

should have been suppressed because the FBI failed to follow the

minimization procedures required by the Act.

**2

In 1978 Congress enacted the FISA "to establish procedures for the use of

electronic surveillance in gathering foreign intelligence information."

Matter of Kevork, 788 F.2d 566, 569 (9th Cir.1986); see also United States

v. Belfield, 692 F.2d 141, 145 (D.C.Cir.1982). FISA provides that federal

officers may, with the approval of the Attorney General, apply to a

special FISA court for an order approving electronic surveillance of a

foreign power or an agent of a foreign power for the purpose of obtaining

foreign intelligence information. 50 U.S.C. §§ 1802(b), 1803, 1804(a). The

application must contain a statement of proposed minimization procedures.

Before the judge approves the surveillance, he must find that "the

proposed minimization procedures meet the definition of minimization

procedures under section 1801(h)" of the FISA. 50 U.S.C. § 1805(a)(4).

Section 1801(h) states in pertinent part:

"Minimization procedures", with respect to electronic surveillance, means--

(1) Specific 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;

(2) procedures that require that nonpublicly available information, which

is not foreign intelligence information, ... shall not be disseminated in

a manner that identifies any United States person, without such person's

consent, unless such person's identity is necessary to understand foreign

intelligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the

retention and dissemination of information that is evidence of a crime

which has been, is being, or is about to be committed and that is to be

retained or disseminated for law enforcement purposes; ....

50 U.S.C. § 1801(h).

In this case the FBI automatically recorded all calls conducted on the

wiretapped phones. The government argues that it was reasonable and

necessary to use automatic tape recording equipment because many of the

calls were in Arabic and could only be understood fully if they were

recorded.

We find that the minimization procedures used in this case were not

unreasonable. The legislative history of the FISA indicates that in some

cases it may not be possible to avoid acquiring all information. See

S.Rep.No. 95-604 Pt. 1, 95th Cong. 2nd Sess. 37-39, reprinted in 1978 U.S.

Code Cong & Admin. News, 3904, 3938-3940. In such cases, "minimizing

retention and dissemination becomes important." Id. at 3939.

The problem in this case is that many of the conversations were in Arabic.

As the district court in Matter of Kevork, 634 F.Supp. 1002, 1017

(C.D.Cal.1985), aff'd, 788 F.2d 566 (9th Cir.1986), recognized, **3

Congress intended that in counterintelligence and counter-terrorism cases

the government have the opportunity to analyze the information it is

acquiring, particularly where, as here, most of the critical conversations

occurred in the Armenian language. The monitoring of targets who speak a

foreign language raises additional concerns justifying the need for

automatic tape recording. Any requirement for the live monitoring of all

such conversations would place unrealistic constraints on the resources of

the government.

In this case, the FBI minimized information after it was recorded. An FBI

agent listened to the recorded calls, and summarized and indexed only

those calls which involved foreign intelligence or criminal activity.

III.

Appellants filed pre-trial motions for discovery relating to the

surveillance pursuant to section 1806(f) of the Act. Section 1806(f)

provides that when the Attorney General files an affidavit under oath

stating that disclosure of the documents would harm the national security,

the district court shall review the documents in camera and ex parte. The

judge has discretion to disclose portions of the applications and orders

only if he determines that disclosure is "necessary to make an accurate

determination of the legality of the surveillance." 50 U.S.C. § 1806(f).

The district court reviewed the applications for surveillance

authorization, affidavits in support of the applications, and orders

resulting from the applications. The court determined that the

surveillance was authorized and conducted in conformity with 50 U.S.C. §

1805. Judge Bryan also found that disclosure of the requested information

would harm the national security. He denied appellants' motion for

disclosure and refused to hold an adversary hearing on the legality of the

wiretaps. Appellants now argue that the court abused its discretion by

refusing to disclose the FISA applications.

We find that the lower court properly denied the motion for discovery. The

court ordinarily reviews FISA wiretap applications in camera and ex parte.

See, e.g., United States v. Pelton, 825 F.2d 1067 (4th Cir.1987), cert.

denied, 486 U.S. 1010 (1988); Belfield, 692 F.2d at 146-47; United States

v. Duggan, 743 F.2d 59 (2d Cir.1984). As we explained in In Re Grand Jury

Proceedings, Grand Jury No. 87-4, 856 F.2d 685, 687 n. 3 (4th Cir.1988),

when the Attorney General files an affidavit stating that disclosure would

compromise the national security, the only exception to in camera, ex

parte review "occurs when the documents submitted are not sufficient to

allow the court to make a facial determination of legality." The documents

in this case are sufficient to determine the legality of the surveillance.

IV.

The district court, pursuant to Fed.R.Evid. 615 and at the request of

appellants, excluded all witnesses from the courtroom until called to the

witness stand. This procedure is known as the "rule on witnesses." The

purpose of the rule is to "prevent the possibility of one witness shaping

his testimony to match that given by other witnesses at the trial." United

States v. Leggett, 326 F.2d 613 (4th Cir.), cert. denied, 377 U.S. 955

(1964). When the rule is violated, "[t]he question of exclusion of the

testimony of the offending witness ... depends upon the particular

circumstances and lies within the sound discretion of the trial court."

Id. at 614.

**4

Ben Mohamad argues that the prosecutor violated the rule twice during the

course of the trial. The first alleged violation occurred when the

prosecutor telephoned John Ostby, the attorney for witness Layla Juma,

wife of Saleh Al-Rajhi, and asked him to appear as a government witness.

The prosecutor called Ostby because Juma, an immunized prosecution

witness, testified falsely. The alleged violation occurred when the

prosecutor explained to Ostby why he was being asked to testify.

The second alleged violation occurred during the testimony of government

witness Agent Bartnik and involved a brief conversation during a break

after cross examination concerning the prosecutor's failure to ask Bartnik

a question about telephone toll records.

After reviewing the record, we do not find any reason to overturn Ben

Mohamad's convictions. There is no evidence in this case that the

prosecutor was intentionally trying to tell witness Ostby what to say on

the stand or that the alleged violation prejudiced Ben Mohamad. And, while

it was improper for the prosecutor to discuss testimony with Agent Bartnik

between cross examination and redirect, witness Bartnik was not subject to

the court's order because he was the case agent and thus permitted to sit

in the courtroom during all of the testimony. Thus the communication

between the prosecutor and Agent Bartnik did not violate the rule on

witnesses. The lower court refused to allow the prosecutor to ask any

question concerning the toll records on redirect. This seems an

appropriate response to this incident, and we find no reversible error

with respect to this issue.

V.

Jafari was convicted of credit card conspiracy. He argues that the

evidence is insufficient to sustain his conviction because there was no

evidence of an agreement between Jafari and any of the other defendants.

Under our standard of review, we must sustain the jury verdict if there is

substantial evidence, taking the view most favorable to the government, to

support the verdict. United States v. Steed, 674 F.2d 284, 286 (4th Cir.)

(en banc), cert. denied, 459 U.S. 829 (1982).

The evidence against Jafari at trial included two taped telephone

conversations. The first taped conversation occurred on October 8, 1986.

Mousa Hawamda asked to speak to Jafari saying, "I want to get from him a

number." The relevant portions of the conversation are as follows:

Hawamda: I give you a call when I want a number.

Jafari: That's for sure, the one I had has expired today.

Hawamda: Ha .. ha. Oh really.

Jafari: Yeh.

Hawamda: This is something.

Jafari: A number will be available to you when you attend to the two

pending matters.

Hawamda: It is not problem, when I spend two minutes dialing few digits, I

will come up with a number.

Jafari: Yeh

* * *

Hawamda: Give me whatever number you have.

Jafari: Believe me, I do not have.

Hawamda: You do not have.

Jafari: I am expecting to get one from the guys this afternoon.

**5

Hawamda: Then I will give you a call this afternoon.

Hawamda and Jafari spoke again on November 4, 1986. In this second

conversation they exchanged access numbers:

Hawamda: Yes, I will see ... is the other guy there ... is Abdul-five

there? What?

Jafari: Would you like five?

Hawamda: Yes, ... and I will give you fourteen ...

Jafari: Um. Good deal ... Just a moment ... 429

Hawamda: Um ...

Jafari: 2200

Hawamda: Then what?

Jafari: 700

Hawamda: Six seven ...

Jafari: eight seven.

Hawamda: Eight seven?

Jafari: Yes ...

Hawamda: And six ...

Jafari: That is to say, seventy-eight ... Seven hundred seventy-eight.

Hawamda: Seventy-eight, or eight seven.

Jafari: Seven-two zeros-seven-eight

Hawamda: Seven eight?

Jafari: Yes.

Hawamda: And, seven-two zeros-six-seven ... And, in addition, six-five ...

too.

Hawamda: Ha ...Ha ...Are you trying to give me extra?

Jafari: Yes ... Ha.

Hawamda: Okay sir ...

Jafari: Yes ... Were you able to get something out of it?

Hawamda: There is

Jafari: Um.

Hawamda: You too can try it?

Jafari: Yes.

Hawamda: After which 484 ...

Jafari: Aha.

Hawamda: 901.

Jafari: Aha.

Hawamda: 27233.

Jafari: 313?

Hawamda: Oh man? No ... Where is there conference? It is in Boston.

Jafari: I see ... Okay.

Hawamda: Look up the area code of Boston, and that is it ...

Jafari: Okay.

Hawamda: Okay?

Other evidence showed that 'five' stood for an MCI number and 'fourteen'

stood for an AT & T number. Jafari gave Hawamda an MCI access code and

three five-digit MCI access authorization numbers. Hawamda gave Jafari the

AT & T credit number belonging to Stella Bekarian.

Stella Bekarian, a resident of Boston, Massachusetts, testified that in

October or November of 1986, AT & T called her to ask about the use of her

credit card number. Bekarian determined that her number was being used

without authorization and asked AT & T to change the number.

Pittman Coleman Rock, Jr., a corporate security investigator for AT & T,

also testified. A part of Rock's job involves investigating toll fraud.

Rock explained that AT & T has "a system that keeps a record of the

attempted use of the credit card ..." Rock testified that,

... based upon experience that the fraud activity increases the usage of

the card, we have the ability to detect that increase or excessive usage.

Once that occurs, we have representatives who will try to contact the

subscriber to determine if there is a valid reason for the increased usage

and if there isn't, then that number is then taken out of service.

According to Rock, Hagop Bekarian, the husband of Stella Bekarian, was the

subscriber with the number 617-484-9012-7233.

Considering this and other evidence in the record in the light most

favorable to the government, we find that the conversations and other

evidence clearly provide substantial evidence of an agreement to engage in

illegal activity. The evidence thus supports the jury's verdict finding

Jafari guilty of credit card conspiracy.

VI.

**6

The jury found appellants Ben Mohamad, Brown and Al-Madani guilty of

violating 18 U.S.C. §§ 1029(a)(1) and (b)(1). Section 1029 proscribes

fraud and related activity in connection with access devices. Section

1029(a)(1) makes it illegal to "knowingly and with intent to defraud"

produce, use or traffic in "one or more counterfeit access devices."

Section (b)(1) makes it a crime to attempt to commit an offense described

in section 1029(a). Appellants argue that the government failed to meet

its burden of proof because the access devices were not counterfeit but

were, instead, legitimate working numbers.

The statute defines "access device" as any card, plate, code, account number,

or other means of account access that can be used, alone or in conjunction

with another access device, to obtain money, goods, services, or any other

thing of value. 18 U.S.C. § 1029(e)(1). It defines counterfeit access device

as any access device that is counterfeit, fictitious, altered, or forged, or

an identifiable component of an access device or counterfeit access

device. 18 U.S.C. § 1029(e)(2).

We find that the access devices used by the appellants were counterfeit

within the meaning of the statute. In United States v. Brewer, 835 F.2d

550 (5th Cir.1987), the court discussed the meaning of counterfeit in

section 1029. Brewer argued that a legitimate access code cannot be

counterfeit. The court found, however, that "an equally plausible

interpretation is that [the defendant] did not 'obtain' the codes from the

computer but fabricated codes that just happened to be identical to the

[access] codes." Id. at 554. The court thus held, in effect, that

fabricated codes that are identical to the telephone access codes are

counterfeit. The court explained, by analogy, that "someone who

manufactures phony credit cards is no less a 'counterfeiter' because he

happens to give them numbers that match valid accounts." Id. We agree that

access codes which were created by the appellants to use in place of those

provided by the telephone companies are counterfeit as defined by the

statute.

VII.

Ben Mohamad's defense at trial was that she lacked specific intent because

Islamic law required her to be obedient to her husband and not question

his actions. She argues that her conviction should be overturned because

the court failed to instruct the jury as she requested by not including

the following sentence:

[T]he motive of the accused is immaterial except insofar as evidence of

motive may aid determination of state of mind or intent.

When reviewing jury instructions, the court looks to the trial court's

instructions as a whole. Murphy v. Holland, 776 F.2d 470, 476 (4th

Cir.1985), vacated on other grounds, 475 U.S. 1138 (1986). A party has no

right to dictate the exact wording of an instruction. It is sufficient if

the instructions taken as a whole "fairly and adequately" state the

applicable legal principles. Hogg's Oyster Co. v. United States, 676 F.2d

1015, 1019 (4th Cir.1982).

**7

The court gave the following jury instruction:

The defendant Maisoun Ben Mohamad, Mrs. Hawamda, has suggested that she

may have performed any acts chargeable to her because under the tenets of

the Islamic faith, she was compelled to obey the wishes of her husband.

This may have been her motive. However, intent and motive should never be

confused. Motive is what prompts a person to act. Intent refers only to

the state of mind with which the act is done. Good motive alone is never a

defense where the act done is a crime. One may not commit a crime and be

excused from criminal liability because she desired or expected that

ultimate good would result from her criminal act or was obeying the wishes

of her husband.

Moreover, if one commits a crime under the belief, however sincere, that

her conduct was religiously or morally required or required by her marital

obligations, that is no defense to the commission of a crime if the

elements of the crime have been proved, other elements of the crime have

been proved beyond a reasonable doubt.

We find that the jury instruction was not erroneous. The court instructed

the jury that the government was required to prove specific intent beyond

a reasonable doubt. The court did not state that Mohamad's motive was

completely irrelevant. Rather, the court properly explained that motive is

not an excuse for committing a crime where the government has provided

proof of all of the elements of the crime.

VIII.

Amici Curiae claim that the government violated the first amendment by

retaining conversations in which Brown discussed his political activities.

They argue that, as applied in this case, the FISA is an unconstitutional

content-based restriction on speech that is not narrowly tailored to serve

a compelling state interest.

It is, of course, true that the first amendment protects political speech.

However, Amici fail to show how the statute regulates or restricts speech.

"Nothing in the FISA permits the government to conduct electronic

surveillance of United States persons because of activities protected by

the first amendment." Kevork, 634 F.Supp. 1002, 1012; see 50 U.S.C. §§

1801(b)(2), 1804(a)(4)(A). While the government may retain conversations

which concern political activities, the government is neither restricting

those conversations nor is it penalizing Brown or others on account of

their speech. Rather, Brown has been punished for trading in and using

counterfeit telephone access numbers. This penalty in no way restricts

political speech.

IX.

Because appellants fail to identify any error in the proceedings below,

their convictions are

AFFIRMED.