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Federal prosecutors may use wiretap evidence obtained under the Foreign Intelligence Surveillance Act in spy cases for criminal prosecutions unrelated to the original espionage purpose of the wiretap, the 7th U.S. Circuit Court of Appeals has held. The ruling is the first outside the special FISA court itself to interpret the law as expanding the ability of prosecutors to use the act in a variety of criminal contexts, according to defense attorney James Geis, a Chicago solo practitioner representing Ning Wen, who was convicted of violating export-control laws. “Unless there is a constitutional problem in domestic use of evidence seized as part of an international investigation, there is no basis for suppression,” wrote Chief Judge Frank Easterbrook in U.S. v. Wen, No. 06-1385. “I think this holding makes it virtually impossible to challenge a FISA search,” said Geis. “This pretty much makes it bulletproof.” The ruling could be significant given the government’s increased focus on economic espionage and international theft of U.S. technology. Last week, two men, Fei Ye and Ming Zhong, pleaded guilty in San Francisco to stealing trade secrets from Sun Microsystems Inc. and Transmeta Corp., with the intent of benefiting the People’s Republic of China. Wen and his wife, both naturalized U.S. citizens, were arrested in 2005 in Manitowoc, Wis., for sending to China $500,000 worth of computer parts that could be used to improve missile systems. The government alleged that the computer chips sent out of the United States to China without permission could be used for military radar and missiles. The FISA court, created to oversee government requests for surveillance warrants against suspected foreign intelligence agents, has held that domestic use of intercepted evidence is permitted so long as it has a “significant” international objective. Sealed Case, 310 F.3d 717 (FIS Ct.). Geis argued that evidence of domestic criminal conduct gathered under FISA warrants cannot be used to prosecute domestic crime when the espionage investigation dies without charges. “Violation of export laws was very different than espionage,” he said. “We never got to see the [government] affidavit” that was the basis for the warrant, he said. In part, the export law violation claim against Wen may have been a matter of geography.”This was central Wisconsin. It would have been trivial in New York, Chicago, San Francisco or Los Angeles,” Geis said. Justice Department spokesman Dean Boyd said the department is pleased with the outcome, but he declined to elaborate on its broader potential application.

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