*1
BROWN,
Before JOHN R.
Chief
Judge,
WISDOM, GEWIN, BELL,
THORNBERRY, COLEMAN, GOLD-
BERG, AINSWORTH, GODBOLD,
DYER, SIMPSON, MORGAN, CLARK,
RONEY,
INGRAHAM and
Circuit
Judges.
PER CURIAM:
Judge
writing
Clark,
for a
succinctly
Court,
posture
stated the
appeal
of the case on
as follows:
This
was intended to raise
constitutionality
of Title III of
the Omnibus Crime
Control
Safe
permits
Streets Act
wiretaps and other
surveil-
electronic
lance
aids.
methods as crime detection
But,
development
with the
un-
of facts
known until the case was before this
Court,
only
present
it turns out to
question
may
appli-
of who
initiate an
engage
cation to
elec-
such secret
tronic surveillance under the authori-
legislation,
proviso
zation
(footnote omitted)
etc.,
Robinson,
United States v. J. W.
Cir.
F.2d
*2
petition
rehearing
On
the constitutional
en bane
bifurcation
by
supplement
questions
Government moved to
from the
raised
issues
statutory
by
exegetical
record
further
apparent
affidavits
deviations from
Peterson,
by
appel-
from Lindenbaum
or to
requirements
came about
discovery
remand
case to the district court
that Sol
adventitious
lants’
evidentiary hearing
an
Lindenbaum,
to obtain a com-
the Executive
plete
signed
Attorney General,
record.
the Attor-
the
ney
to the authoriza-
initials
General’s
opposed
Because the Government
a re-
designating
question,
Will Wil-
tion
son,
questions
mand of the
raised for the
Attorney General,
an Assistant
appellants
appeal,
first
time
on
applications to a district
authorize the
judge.
panel concluded,
justifiably so,
The Assistant
rely,
that the Government was content to
personally,
but instead Hen-
did
ry
act
the affidavits
on
without more.
Peterson, Deputy
At-
E.
Ordinarily
unpersuaded
we would bе
torney General, signed
At-
the Assistant
deeper
questions
to delve
into the
raised
torney General’s name.
appellants
than that which was
Appellants
for remand
moved
presented
panel
parties.
district
for an eviden-
case
court
validity
But the
vel non
authori-
replied
tiary hearing. The Government
procedure employed
zation
in this case is
opposition support-
in a memorandum in
importance,1
of such
that we disfavor its
Lindenbaum and Pe-
ed
affidavits of
simply
resolution
on the
basis
two af-
was de-
terson. The motion to remand
issue,
respect
filed
fidavits
nied.
particularly since the issue had not been
Premising
opinion and
its
decision
raised, litigated, or decided in the Court
that,
held
the two affidavits
below.
entirety of
used
ince the
the evidence
“[s]
conceded
convict these defendants is
We therefore
this case to the
remand
improperly
have
these
eventuated
expedited
district court for an
eviden-
wiretaps, it
authorized
follows
hearing
tiary
to determine whether the
ought
suppressed.”
evidence
to have been
applications
wiretap
in this
were
case
light
holding, the
Id. at
of its
properly authorized under 18 U.S.C.A. §
constitutional
raised
issues
2516(1).
judgments
not reached. The
were
appeals
findings
conviction
reversed and
were
The district court will make
which,
were
remanded
district court with
of fact and conclusions of law
record,
complete
directions
dismiss the
indictments. with the
will be forth-
importance
F.Supp.
163;
1. The unusual
341
of the issue is
v.
United States
1033;
Focarile, D.Md.1972,
F.Supp.
underscored
the number of courts that
340
E.D.Mich.1972,
publiсation
Aquino,
have dealt with it since
v.
United States
F.Supp. 1080;
decision.
v.
338
Baldassari, M.D.Pa.1972,
v.
See United States
United States
Giordano,
F.Supp.
1972,
4 Cir.
supra) ; v. Leavitt covered single instances of the three say, one does supplemented the balance now delegate power to oaths. The these sway is to of the case the law unless authority 2516(1) not mentioned is reweighted, the en banc delegation any of au- nor is the statute declines to do. court thority let- in the transmittal described say I do not This not at аll to is Attorney, which ter to (just remain convinced signature, only but did not bear Wilson’s originally) were the authorizations by the undisclosed his name written Department carefully made within deputy. his hand They be defi- continue Justice. fact which they central and essential only not initiat- were cient because supplemented legislative persists in the affidavits with the ed in accordance any ex- officials action 2516(1) is the lack judgment which congressional designated by edict pressly say mandates and the Fourth Circuit of federal the initiatоrs to be eventu- action that all such activity. ne- it is this lack And approval any number or ate in —not authenticity gates these electronic deputies, all combination of assistants or prem- long panel’s eavesdrops so as the or a des- but — Thus, is noth- there intact. ignated Attorney General, ise remains ing gained instant remand the fact. then before and not after delay delay neither which serves but — Attorney ap- When litigants nor the cause nor the court plied district court justice. *5 authorizing wiretaps of these de- рanel’s My position action the that swore, fin he inter alia: clhnts requires I brief affirmed should be powers on to the conferred ly raised one other contention discuss Unit- him Section major rehearing the not reached Attorney Code, the General ed States panel opinion— ity in or the discussed States, Honorable the of the United statutory assuming compliance, of lack desig- specially Mitchell, has John N. suppression. propriety Constitu of the proceeding the Assistant nated tionally, contends the Attornеy Di- the Criminal General for sup change policy2 of demonstrates its Justice, Department of vision of the pression a deterrent would not serve as Wilson, the to autho- Honorable Will further states that It to future conduct. application this rize affiant was not conduct involved the law officer intercep- the for an order good most, egregious, but, a faith tion of The let- wire communications. reject compels to us mistake. Precedent signed by of the As- ter or of either both If these contentions. Attorney is attаched sistant General parts premises of the wave of be these application A. this on Exhibit law, the this of future in this field the interpre- must leave Su Literally panel’s inferior tribunal and under the defining inaccurate, preme task al- Court tation of this was Statutorily, recording unwittingly Attorney reach. its General beit so. pro urges government absolute that the neither had Mitchell had acted and scriptions law are dem Attorney in a General Wilson officer, department, any court, Depart- Promptly challenge before aftеr this body, agency, regulatory or other compliance with ment commenced strict State, States, authority a 2516(1), interpreted as may- thereof, political procedure a subdivision opinion, or it it declares a which any suppress the contents move to in intends to follow the future. communication, intercepted oral wire or therefrom, pertinent provides derived or evidence in U.S.C.A. grounds part: that— unlawfully (i) person (10) (a) Any aggrieved the communication in intercepted; hearing, proceeding any triаl, in or or Attorney Report on this Executive Assistant onstrated Senate I assist ab of the United States. General to have been intended to bill Attorney is: General the review here all.4 The short answer solute at require per- his unambiguous, matters being various which resort the law opinions, legislative inter- history inappropriate. Fi sonal attention such as is (a) pretations, 2518(10) the Board of Im- decisions nally, it is contended that § migration Appeals, applications par- for support suppression a motion will not other Exеcutive clem- don and forms of improper authorization because case contracts, complaints, ency, antitrust intercep procedure could not render proposed agreements, offers agree. com- or An tion unlawful. I do not promise. of Federal improp See Title Code unknowingly upon der based an Regulations, Section 0.6. erly application least authorized is at certainly more harmful unlawful as and refrained has privacy rights than citizen designating any Attor- interception subsеquent encroach authorize, ney his General to without upon time, place es content limits or making proval, of an proper set Then an otherwise order. permitting an order urged too the construction here would under communications wire or oral precise render instructions 2516(1). meaning largely, wholly, 2516(1) if not Rather, has re- less. requests quired that all such autho- rization referred to him consider- Remaining remand is convinced unnecessary ation. normal course du- inappropriate both ties, requests I review and make present posture such fa- of the case and voring recommendations Gener- opin- an affirmance routinely ion, respectfully al thereon. have reviewed dissent. requests February and, since accordingly, have familiar with become APPENDIX applicable statutory requirements *6 AFFIDAVIT by and the actions taken District of Columbia: requests. General on such being duly de- Lindenbaum sworn Sol May On and June June says: poses and 1970, the Division of Criminal the De- partment related At the times the acts of Justice addressed the At- aрproval torney requests am this affidavit I was and I now for General (ii) the order of authorization or or evidence derived therefrom as the proval intercepted judge under which be in the interest of it was determines to justice. face; is insufficient on its or (iii) provides not made 18 U.S.C.A. : was conformity any authoriza- or oral order of Whenever wire com- intercepted, approval. tion or munication no has been part Such motion shall contents of such communica- be made before trial, hearing, prоceeding and therefrom or unless there tion no evidence derived any opportunity may trial, no was make such motion be received in evidence person hearing, proceeding in or or was or be- not aware of other department, grounds any jury, court, grand of the If motion is fore motion. body, officer, regulatory legis- granted, agency, inter- contents authority cepted communication, committee, or oral or lative or other wire political State, therefrom, States, or evidence derived shall be the United having disclosure of if the treated as been in viola- subdivision thereof obtained chapter. upon judge, in violation would be tion of this information chapter. filing ag- such motion grieved person, may in his discretion Admin.News, p. Cong. person aggrieved & make available to 1968 U.S.Code Cong., (S.Rept. por- inspection 2nd 90th or his counsel intercepted Sess.). tions of the communication for an apply of Title wire inter- authorizations authorizing the Fed- respect the court ception order of certain Dangerous allegedly Florida, telephones Miami, eral Bureau Narcotics and Drugs intercept communications wire In Mario Escandar and others. used telephone accompa- instance, request from the subscribed to and each copies affidavit, and located at 3301 proposed Mario Escandar nied Avenue, Apartment order, N.E. 5th application, as a rec- as well # Miami, Florida, carrying approval the tele- from ommendation phone instance, connection number 379-2042 in Division. each Criminal investigation probable material, into vio- con- with reviewed the submitted request of 21 the re- lations U.S.C. cluded that the satisfied U.S.C. 4704(a) statute, 4705(a) quirements con- of the and also U.S.C. § Restoy Escandar, knowledge Mario Juan cluded, the Attor- yet cases, ney previous and others as unknown. actions on General’s approve requests if that he would powers conferred Because the submitted him. me any was not available General you hereby specially occasions, approved three designated to authorize Rust Robert W. requests to the authorization application. above-described given act in the to me to he had his initials to circumstances and caused placed on memoranda Will Wilson. approved requests memoranda United States Government given W. to Robert
authorization be Department of Justice applications for inter- make the Rust to MEMORANDUM ception Copies of these memo- orders. 10, 1970 DATE: attached. randa are :lhb JNM: AWW Sol Lindenbaum /s/ LINDENBAUM SOL TO: Will Wilson Executive Assistant Attorney Division Criminal N. Mitchell FROM: John Attorney General J.N.M. /s/ Interception Extension Or- SUBJECT: United States Government der Authorization *7 Department of Justice regard your recom- to' This is with MEMORANDUM given to authorization mendation that May 1970 DATE: application Rust, make to W. Robert :skh AWW JNM: provisions of pursuant Section the Code, for Title of 2518 TO: Will Wilson of the Court of the Order an extension Attorney General May 21, the Federal of Criminal Division Dangerous and of Narcotics Bureau Drugs Mitchell FROM: John N. intercept communications wire Attorney General telephone subscribed to and J.N.M. /s/ 3301 and located at Escandar Mario Interception Authori- Order SUBJECT: Apartment Avenue, Fifth Northeast zation carrying Florida, tele- Miami, and in connection phone 379-2042 regard your number recom- This is with possible investigation vio- into given to with authorization be mendation that 174, 26 U.S.C. pur- § application of 21 U.S.C. § lations to make W. Rust Robert 4705(a) 18 4704(a) and U.S.C. § provisions of Section suant to Restoy of events in Mario Escandar and Juan times davit, related affi- yet Deputy unknown. Assistant Attor- and others Division, ney in the Criminal powers conferred Pursuant of Justice. of byme Section hereby specially Code, you process- are This affidavit describes ing designated to W. Rust within the authorize Robert Criminal Division application. Department request Justice above-described application
authorization to make interception or- Federal Court for wire pertaining ders in to cer- three instances United States Government alleg- telephones Miami, Florida, tain in Department of Justice edly Mario others. used Escandar and MEMORANDUM requests for authorization to 12, 1970 Date: ply for wirе :skh AWW JNM: representatives case came from Dangerous Bureau Drugs. Narcotics and Wilson TO: Will requests, Prior to action on the Attorney General Departmental working files, Division Criminal copies proposed included affida- N. Mitchell FROM: John vit, order, application, and in- each Attorney General special stance were unit of reviewed in a J.N.M. /a/ Organized Racketeering Crime and Interception Authori- Order SUBJECT: Criminal Division at- zation torneys primary whose function towas regard your recom- This is with review entire matter fоrm given to mendation emphasis particular substance with Rust, Robert W. make assuring required strict adherence to the provisions Section statutory, judicial, and Constitutional 2518 of Title handling attorneys standards. authorizing the an order the court Wampler, III, and his matters Atiee W. and Dan- Bureau of Narcotics Federal gerous Philip White, supervisor, T. Unit Drugs intercept commu- wire reviewed the files each the three and from Escandar to nications Mario instances and recommended favorable telephone public facilities located request. action on The files were Avenue, lobby of Mi- 3301 N.E. 5th Joyce and submitted to Edward T. then Florida, bearing telephone ami, num- Deputy Kennelly, Thomas A. Chiefs the in- in connection with ber Racketeering Organized Crime vestigation possible into of 21 violations Section, respectively reviewed who 4704(a) U.S.C. and § U.S.C. Lynch, S. two files and William first 4705(a) Mario U.S.C. Organized and Rack- Crime Chief yet unknown. and others as Escandar eteering file Section, reviewed third approval re- powers of its conferred on and recommendеd sent to me. quest. were then The files me Section 2516 specially you hereby files and forwarded them examined *8 Attorney designated General W. Rust of to authorize Robert to Office application. in recommendation the above-described a detailed grant- be authorization instance that of Following approval in the Office ed. Divi- Attorney General, the Criminal AFFIDAVIT 19, May dispatched letters dated sion sworn, Petersen, being duly Henry 1970, E. 12, 10, to Robert and June June says: deposes and advising au- he was him that RustW. application present the Attorney thorized General I am Assistant court. charge At the the Criminal Division. of copy the carbon A the let- authorization. signed name to Wilson’s I Will presently 12, copy in the files of this letter 10, May 19, June
ters Department is attached of Justice of the the authoriza- in accordance as Exhibit standard and the tion Will Wilson Division.
procedures the Criminal signing Wilson Will /s/ regarded Will Wilson’s WILSON WILL act, because Will ministerial as a name Attorney Assistant General sign his tome had authorized Wilson Division Criminal dispatch letter of such a name to and every in which instance favorably acted request had been Typed:June 9, 1969 Attorney Gen- upon in the Office WW :lrt :PTW ei- examine did not eral. Wilson Will 16, JUNE expressly either authorize ther file or Mr. WILLIAM EARLE G. copy of application. Attached is a Will Post Office Box September affidavit Wilson’s Street, Fourth Northeast 1971, respecting letter an authorization Miami, Fla. 16, 1969, he stated in which dated June sign me to letters DEAR MR. EARLE: This is with re- that he had authorized gard your request for authorization of this nature. application pro- make Henry E. Petersen /s/ visions of Unit- Section 2518 HENRY E. PETERSEN Cоde, for ed authorizing an order court Attorney General Assistant Federal Bureau of In- Division Criminal vestigation intercept wire communica- pay telephones tions to and from four Airport the Miami International near the entrance to 2 between Concourse AFFIDAVIT counters, United and Northwest Airlines of Columbia: District phone carrying 691- numbers Wilson, Attorney Assistant Gen- Will 9566, 691-9797, and 691-9528. duly States, being eral of your request have reviewed sworn, states: in the facts and circumstances detailed Attorney I am Assistant Agent Special affidavit of Edwin J. charge of the Criminal Division Sharp proba- and have determined that Justice ble cause exists to believe that Martin January have been since Sklaroff, Sklaroff, Jess and others are Deputy engaged I have authorized in the commission of offense an Henry Petersen and E. enumerated in Section 2516 Title Deputy Code, General Har- wit: violations sign Shapiro old name to letters Section 1084 application of authorization for to Unit- conspiracy and a violate ed District Courts for orders un- I have further determined statutе. der Title probable Section that cause there exists to be- application after such persons had been lieve the above will make proved by General. use of the described facilities connec- offense, tion with that that wire commu- The letter William G. concerning the nications offenses will Earle to make an investiga- intercepted, that normal court for an order with re- unlikely procedures tive to succeed are spect telephones commonly to certain dangerous or are too used. used Martin and Jesse Sklaroff at Airport signed Miami Accordingly, you hereby International autho- *9 pursuant for me delegat- Mr. power specially Petersen rized under the above de- ed to me in relation Gener- offenses
scribed power pursuant conferred on al competent ju- judge for an order Sec- risdiction 18, United tion 2518 of Title the Federal Bureau
Investigation intercept wire communi-
cations from the facilities described
above.
Sincerely, Will Wilson
/a/ WILL WILSON America,
UNITED STATES Plaintiff-Appellee, Rodriquez, DOE, Francisco
John a/k/a S., Velez Defendant- Juan a/k/a Appellant. 516, 517,
Nos. 72-2172. Docket Appeals, Court Circuit. Second
Argued 1973. Jan. Jan.
Decided May 7, 1973. Denied
Certiorari S.Ct. See 93 Clifford, Conn., Hartford,
Thomas D. for defendant-appellant. Bowman, Atty. B. Andrew Asst. U. S. (Stewart Jones, Atty., H. U. S. District Connecticut, Bridgeport, Conn., of
counsel), plaintiff-appellee. LUMBARD, Before KAUFMAN MANSFIELD, Judges. Circuit