United States v. Anthony Joseph Acon, 513 F.2d 513

United States v. Anthony Joseph Acon

513 F.2d 513

3rd Cir.

1975

Check Treatment

*1 America, UNITED STATES

Appellant, Joseph

Anthony ACON et

al., Appellees. Appeals,

United States Circuit. Third

Argued Dec. March

Decided Thornburgh, Atty., L. U.

Richard S. Pa., Pittsburgh, Elias, M. John Jerome Feit, Richman, Philip Marc Wash- M. C., appellant. D. ington, Morris, & O’Malley, K. James Safier Makoroff, Rothman, H. Herbert David Lebovitz, Livingston, Thomas A. John Pa., Doherty, Pittsburgh, John Hudac- Falls, Pa., sek, Jr., for appellees. Beaver ALDISERT, Before ADAMS HUNTER, Judges. Circuit THE OPINION OF COURT HUNTER, III, Judge: Circuit JAMES decide whether wire- This court must tap authorizations attorney general, specifical- assistant ly qualified surveil- approve electronic 2516(1), must be lance under U.S.C. § insufficient under suppressed 2518(10)(a)(ii). 18 U.S.C. § by the district appeals suppression we believe that Because court.1 insub- insufficiency in this case was an Act, we reverse violation stantial and remand court’s order grounds other for consideration case Acon, F.Supp. (W.D., Pa. *2 yet for by. reached conspiracy illegal gam- for to conduct court.2 1955, blings, 18 U.S.C. 371 and and §§ other Aeon and five were defendants in-

I. conspiracy dicted for to obstruct the en- Pennsylvania laws, forcement of criminal court for Western The district 18 U.S.C. Defendants moved to Pennsylvania approved wire of District suppress the evidence derived from the 9, on December and De tap applications grounds, various only-one on of 23, applications sub 1971. The cember by was addressed .which Organized Crime and by mitted narrowly drawn opinion. Racketeering Section Justice hearing, At accompanied by were autho government affidavits and in- orders for electronic surveillance rization ter-office memoranda from both Peter- Henry signed by Petersen. Petersen Attorney sen and former General John Acting Attorney Assistant was 4, Mitchell. A March 1973 affidavit A applications series of later General.3 although from Mitchell states 18, 9, January February dated and signed by authorization order was Peter- 1972 showed Petersen sen, had in fact given Mitchell subsequently who had been confirmed as A thorization. series of memoranda dat- Attorney General Assistant Sen prior wiretap application, ed to each ini- ate. Mitchell, giving approval tialed and As a result derived wiretap, was introduced at surveillance, Anthony Aeon from this suppression hearing support of Mitch- other were and three indicted Henry ell’s more recent affidavit.4 Pet- reach court did not 2. The district ly memoranda of those initialed dates re- alleging probable motions absence my flecting favorable actions the re- wiretap applica- approve the cause to initial quests. tion. My approval memoranda of in this case notification constituted to the Assistant At- authorization, Henry torney On December General the Criminal Division improperly given discretionary Petersen’s title was as As- action Attorney requests Acting application General rather than each of the to make to Attorney interception Assistant argues General. The the court for an order had that because he was called an Assist- been taken me. Attorney ant der, General in the December 9 or- There five identical inter- was not insufficient. office memoranda from Mitchell Petersen any appeared. We decline to make distinction on the on which Mitchell’s initials 8, basis of what Petersen was called. He December memorandum states: regard officer and your This is with recommenda- judged accordingly. order will given tion that authorization be to Thomas Bergstrom, Special Attorney, Pittsburgh A. Force, application Strike make 4, for an 4. The affidavit dated March 1973 and Order of the Court under Title and sworn Mitchell states: Code, 2518, permitting Section Mitchell, sworn, duly being M. John de- interception of wire communications for a says: poses and day (15) period fifteen to and from tele- phone Attorney numbers 412-774-8488 and 412- the office of I held 774-1821, Pennsylvania both located January at 390 States from the United Rochester, Avenue, Pennsylvania, and 412- through March 412-643-8168, and 23, 1971, 643-4396 both located 8 and December December On Avenue, Midland, Virginia Pennsyl- 18, January January and Febru- and on- ary vania, investigation with connection requests for author- I possible into violations of Title ity apply orders in this Code, 371, by Sections 1955 and An- personally memoranda initialed and matter Aeon, thony “Tony” “Rocky” Rockliffe my reflecting favorable ac- dates of those Fritz, Ciamacco, “Bobby” Robert Charles requests. examined the 1 have tion Belas, D’Angelo, Madeleine certify “Mad” also originals of these memoranda Dangelo Mrs. known as Louis they my per- and also which were bear initials D’Angelo Mrs. known as Lewis others sonally me on the above to them affixed yet known others as my personal- unknown. copies Attached dates. an affidavit ersen also Control and Safe Streets Act of 1968. that, although he reviewed stated had in papers, Mitchell supporting 2516(1)8 provides that the Attorney case. Peter- in each approval specially designated or a Genera! Assist fact only after affixed signature sen’s ant General must authorize ev application.5 approval of each ery wiretap application ap submitted for *3 proval to the district court. 18 U.S.C. the challenged Although turn, 2518, in sets out the information § character of institutional

allegedly applica which must be contained in the approval under 2518(1)(a) 2518(4)(d), tion. did not 2518(10)(a)(i), district court the § example, specifically require that the order this issue.6 The reach identity authorizing the o'f officer be solely grounds of facial on based was application. in Suppression the of stated 2518(10)(a)(ii).7 insufficiency under § evidence derived from electronic surveil when the lance allowed communication II. unlawfully intercepted, has 2518(10)(a)(i), or when order § of procedures set out detailed approval or insufficient obtaining ap electronic surveillance face, 2518(10)(a)(ii).9 on its § in III of Omnibus Crime proval Title powers on me conferred to the Ceraso, (3d Cir., Pursuant F.2d 18, United States Title by 2516 of Becker, Section United States v. 461 Cox, See designat- hereby specifically Code, you are powers for the those to exercise (8th ed Bergstrom to A. Thomas of ' wiretaps suppressed 7. Three later were al- application. above-described make though Attorney Petersen was Assistant affidavit, dated March sworn 5. Petersen’s signed General when he these authorizations. special whereby procedure describes sufficiency, Despite Organized Racketeer- Crime of the units predicated showing supporting on a affi- Department re- of the Justice ing Section davits information derived from the proc- requests wiretaps. were The quested wiretaps. earlier invalid through of the Criminal levels various essed Department. The affi- the Justice Division provides: 2516(1) § 8. 18 U.S.C. recommendations, states, on staff based davit Attorney General, any or Assistant wiretap. approved each Attorney General specially Attorney designated by to signed the order Petersen General, may ap- authorize Attorney General’s court at district the request. competent plication to a Federal for, jurisdiction ... an order autho- issue, reaching rizing Although not or wire question of these oral communications did or court authoriza- and affidavits to show memoranda of Title III expressed 9. Evidence obtained in violation about “the court doubts tion. according may to 18 relying be used U.S.C. not propriety [to these provides: 2515 which contra- which themselves authorization] show designation language the actual dict any oral communica- wire or Whenever F.Supp. at 652. ..” 377 memoranda intercepted, part no tion has been Depart- and no ev- of such communication Despite contents deviation the Justice may procedures be received con- derived therefrom idence the authorization from ment templated any statute, ... if the in trial in evidence cases have several would be in of that to disclosure papers, identical held chapter. violation of this The suffi- sufficient authorization. were improperly Suppression inter- questioned sanctions for papers ciency of identical included cepted are communications in United Court 2518(10)(a): Chavez, 569 n. any Any person repro- (10)(a) aggrieved tri- al, proceeding any hearing, or opinion pa- or before duced officer, agency, regula- department, reproduced in pers the Court relied body, authority tory or other States, State, political Cir., 1972). or a subdivision (9th thereof, may suppress Substantially procedures move contents were identical any intercepted wire oral communica- in United this Court sufficient deemed terception subject sup- unlawful and acting that an Defendants assert as- pression 2518(10)(a)(i). Accord- attorney general cannot be desig- Court, Congress sought to re- specially under autho- nated strict the use of electronic surveillance wiretaps. point, we agreé. With rize power by restricting argue any further Defendants group to a Jus- small of senior an improper tice officials. Violations and, insufficient person there- therefore, significant provision, fore, subject sufficient suppression. to warrant They 2518(10)(a)(ii). assert sup- pression for facial is re- case, present quired even if authorization was actually argues attorney that an assistant by person properly qualified un- general same is not the as the der general’s executive Al- assistant.10 though purposes *4 for other be light In of the technical nature of this true, agree we cannot this context. we insufficiency, cannot agree very has created a and required narrow that under these specific power. acting authorization An circumstances. attorney general

assistant is not men- DESIGNATION AUTHORIZE TO UN- tioned in the statute. Neither does an

DER acting attorney general assistant meet test political Court’s re- Giordano, In United States 416 such, sponsiveness. an acting As assist- 505, 1820, 94 U.S. S.Ct. 40 L.Ed.2d 341 attorney general ant who has not (1974), Court held that only appointed by the President con- and and the nine as Senate, firmed not desig- be attorneys general who were “re specially nated un- wiretaps ” sponsive political process . 2516(1). der § could authorize 2516(1). under § 416 at U.S. 94 S.Ct. 1820 citing SUFFICIENCY FACIAL S.Rep. Cong., 90th 2nd Sess. (1968), Cong, 96-97 2 case, however, U.S.Code and Ad- we are instant min.News, p. “Political re- an an dealing with authorization sponsiveness” view, in the Court’s We general. was acting assistant by presidential achieved appointment signature a the au- dealing with confirmation, Senate and 416 U.S. at 520 placed there an un- order n. S.Ct. 1820. In improp- qualified person. attorney gener- er authorization 416 U.S. In United States al’s executive assistant rendered the in- (1974), 40 L.Ed.2d 380 94 S.Ct. tion, therefrom, or evidence derived on the grind approv- ment will ato halt while Senate grounds that— pending. argument ignores al is This the fact (i) unlawfully the communication was attorneys there are nine general assistant intercepted; and very specific the fact statute is (ii) approv- the order of authorization or logic in its limitations. The of Title III need intercepted al under which it was necessarily apply insuffi- not acting to all activities an face; cient on its or attorney general. assistant Several (iii) was not made in opinions district court have held that an act- conformity with the scope officer is outside of § approval, (not here). relevant Narducci, United States F.Supp. (E.D.Pa., 1972), Boone, United 0.132(d) 28 C.F.R. cites F.Supp. (E.D.Va., 1972). (1974) provides the event of a We contrary note but decline to follow a vacancy, ranking head, department such as holding Pellicci, in United States v. attorney general assistant “shall (1st Cir., 1974) 1106 1122, cert. denied 419 U.S. perform the functions' duties and and act as” (1974) L.Ed.2d 821 and attorney general. govern- assistant Vigi, F.Supp. (E.D. argues that unless vacancies can be Mich. by fully qualified persons, filled spective held that where of whether substantial Supreme Court limita- wire- the Act tions of are violated. attorney general had authorized merely required was not tap, suppression In support point, they of this cite lan- signed by authorization was because guage (ii) from Giordano: “Paragraphs in Chavez else. The Court someone (iii) 2518(10)(a)] and must be [of suppres- clearly distinguished between provide deemed for fail- 2518(10)(a)(i) (10)(a)(ii). and sion ure to observe some statutory require- (i) (ii) supplied grounds for nor Neither ments that would not intercep- render The Court held Chavez. paragraph (i).” tions unlawful under that misidentification at 416 U.S. S.Ct. at 1832. This the identification re- violated officer language imply (ii) does paragraphs 2518(l)(a) quirements (iii) must reach violations of some 2518(4)(d). Because provisions of Title III which do di- merely respon- to fix sections rectly and substantially implement the a sub- they did “not establish sibility, congressional intent to limit use of wire- played regula- role stantive taps. Despite this intention to extend Chavez, 416 tory system.” (10)(a)(ii) (10)(a)(i), further than we do As such the violation at 1857. that suppression not conclude technical; interception was not every minor facial insufficiency. suppressable unlawful There is distinction in the kinds of the authorization had (10)(a)(i) since information which supplied must be *5 person qualified a under given been approving the judge. Clearly, the name 2516(1). authorizing impor- officer is less tant than statements of fact which must the au- specified that also The Court 2518(l)(b). be submitted under Unless on its order was sufficient properly apprised is assistant attor- signatory, since face facts, he cannot appropriate make an Wilson, have could general, Will ney probable cause required determination as authorize designated specially to 2518(3). contrast, In the name of 2516(1). under § authorizing likely officer is not as distinguish- clearly instant case is The judge’s affect determination that a Chavez, Here the however. able from wiretap is or is not warranted. attack not misidentification In Chavez, facial Giordano (10)(a)(i)but the under signed by an examined (10)(a)(ii) an order Court which under varied the submitted identification improper person.11 information. Clearly, aggrieved party may impeach recognize the information Chavez Giordano government (10)(a)(i) is not to the approving under court. In suppression Giordano, violation. this every Chavez, technical occurred. In for required however, satisfy government failure to there is “where allowed to Only vary requirements identification statutory those after any of implement it had been shown by the party- attack- directly and ing wiretap the use to limit that the signatory intention congressional had 416 not in fact approval. procedures,” govern- intercept suppres ment is was then at allowed to show 94 S.Ct. that a 2518(10)(a)(i). proper De party, then Attorney required under General sion Mitchell, argue had the wiretap. fendant-appellees contrast, government irre- That applies was allowed 2518(10)(a)(ii), solely Chavez, Relying ground Fifth Circuit fication (10)(a)(i). Suppression insufficiency has held on identical facts that for facial Robertson, (10)(a)(ii) opin- required. United was not raised in that Cir., (5th F.2d The Court in Rob- ion. only ertson considered the issue of misidenti- vary the identification information During sub- Mitchell’s tenure as Attorney mitted to the supports person signing the autho- conclusion requirement our rization order rarely had authorized the important less than others. The wiretap; quite often per- even the certainly would not be allowed to appeared son whose name on the order amplify the facts on the face actually signed had not it. Instead of the affidavit to the district court anonymous assistants affixed name in improve order to the district court’s find- what had become a purely ministerial cause, probable States act.13 In Ceraso, Ceraso, (3d (3d 1972), example, for this court did disapprove an order to perceive We a distinction between which the assistant general’s information which the may name had been affixed an underling. vary by subsequent affidavit and infor Thus, if Petersen signed mation which must stand on the four name rather own, than his earlier cases corners of the affidavit. Based on this rejection would mandate (10)(a)(ii) difference, we conclude that suppression motion. We do not feel that required is not insufficiency a different result should obtain merely relating requirements less critical because Petersen his own name. subsequent varied affi davits. The identification directives (10)(a)(ii) view that Support for our opinion our fall within this category. every mi suppression is not require- identification is derived from a nor designed ments were to fix responsibility Circuit case. In United recent Second' person actually Cirillo, (2nd Cir., wiretap,12 Justice Department practice cert. denied 419 U.S. regrettably purpose. has (1974),14 frustrated York 42 L.Ed.2d 653 New year Office, explored the Administrative reports purposes require- of the identification *6 public “to form the basis for a Although evaluation” ments. made in the context of operation III (10)(a)(i), analysis Title and to “assure also relevant community system (10)(a)(ii). that the of court-or electronic surveillance der[ed] properly ... Requiring identification of the ” S.Rep. administered. . . . application facilitates official Sess., Cong., No. 90th 2d 107. While ability applica- to conclude that the reporting adherence to the identification quirements re properly approved tion has been 2518(1)(a) (4)(d) thus 2516; requiring identification in the § simplify can the assurance that those who responsibil- court’s order also serves to “fix ity” responsible determining Title III makes preliminary approval. for the source wiretapping when and how and electronic applica- This information contained in the surveillance should be conducted have ful judge tion and order further aids the in case, they filled their roles in each do not making reports required under 18 U.S.C. played establish a substantive role to be in requires 2519. That section regulatory system. (Footnotes deleted). who issues or denies an 575-8, 416 U.S. 94 S.Ct. at 1856. report his action and certain information application, including the “identi- about ty importance signa 13. On the diminished person authorizing . . see ture 416 U.S. at 525 n. 94 application,” days, within 30 to the Admin- 1820; Falcone, United States v. 505 F.2d Courts, of the United States istrative Office Cir., 1974); (3d Iannelli, United States v. 2519(l)(f). report An annual of the au- Cir., (3d 477 F.2d thorizing designated officials finding 14. For other cases technical violations body, must also be filed with that and is to Rizzo, wiretap statutes see United States respect with contain the same information (2nd application to each made as is Manfredi, (2nd 2519(2)(a). issuing denying judge, Poeta, Cir., 1973), summary Finally, a of the information filed judges acting applications prosecutors approving situation, Judge their submission analogous In a somewhat April Friendly is to be filed with of each found technical defects in a search state and federal law enforcement offi- Hunter, Judge Like I conclude that joined investigate organiza- cials derived from a court-approved evidence Wiretap ap- tion of narcotics dealers. wiretap may not be suppressed under 18 proval was secured from a New York 2518(10)(a)(ii) where, here, Despite state court. the fact that wiretap has in fact been authorized wiretap requires statute New York mini- by empow- a Justice official mization directive to be included in ev- 2516(1), ered to do so under 18 U.S.C. § order, ery wiretap the Second Circuit only defect in refused to overturn a federal conviction is in the procedure identification of the wiretap based on evidence derived from authorizing officer. failing an order to include such di- Since accepted rective. The court the challenged wiretaps, thorized I find from officers who executed the order unnecessary it legal decide the further stating that minimization had occurred question whether an Acting Assistant despite the absence of a minimization or- Attorney General “responsive wiretap der. order was political process”1 empowered and thus insufficient, suppression was not by wire- required. taps. opinion by Judge Mansfield, that the defect concluded had been substan- since there

technical with the statute.15 499 compliance

tial citing Smith v. United

F.2d at

States, 360 U.S. (1959) (deficiencies are rights are where no substantial

technical involved.)

In this case we believe the in- sufficiency was technical for two rea- America, UNITED STATES Mitchell actually sons. Appellee, wiretap so that there was substantial Only the compliance with the statute. requirements less crucial identification RIVERA, "Pequilino”, a/k/a Ismael actually breached. Appellant. III. Docket *7 foregoing For the reasons the district Appeals, United States Court order of will be re- Circuit. Second versed and case remanded for consid- Argued Jan. 1975. grounds suppres- eration of the other yet sion not reached Decided March court.

ADAMS, (concurring): Judge Circuit

I concur in the result reached

majority. insufficiency. mization order ais minor 52(a), applied Rule F.R. The court

warrant. proposition We cite the case warrant, holding in a the defective Cr.P. there technical, can be facial grounds which is denied and, therefore, Ravich, insufficient to re- error. harmless quire suppression. Cir., 1970). F.2d 1196 necessarily support the Second We do not include a mini- that failure to view Circuit’s