*4 of confiscation unlawful 2513 authorizes Before DUNIWAY and HUFSTED devices. Judges, JAMESON,** LER, Circuit pertinent provides, Section 2515 Judge District part: Judge: DUNIWAY, “Prohibition use evidence in- Circuit of of tercepted wire or oral communica- King appeal their ten from others tions. 176a, under convictions U.S.C. §§ conspiring 846, 952, ille- of any or communi- Whenever wire oral marijuana gally import and to distribute intercepted, part no of cation has been de- Various of the in the United States. of communication the contents such were convicted under fendants also therefrom derived evidence using 1403(a) communica- U.S.C. § any may be received' evidence con- tions facilities in furtherance hearing, proceeding in trial, or other government's spiracy. case any or court . before King’s largely tap tele- derived from a pursuant phone, purportedly conducted of that in- the disclosure . if to Title III of Crime Con- the Omnibus (the be in violation formation would Act trol Act), Safe Streets chapter.” 18 U.S.C. 2510-20. §§ sitting ** J, Judge, Jameson, Montana, District of District William Honorable by designation. 2518(10) (a) implements proving interception And Section of wire or oral Section 2515: communications.”1 any aggrieved person trial, 2518(1) “Any provides: hearing, proceeding in or or before “(1) application Each for an order any court ... authorizing approving intercep- or sup- . move to . . tion of or a wire oral communication press intercepted the contents writing upon shall be made oath or communication, or evi- or wire oral judge competent affirmation therefrom, on the dence derived jurisdiction appli- and shall state the grounds that— authority applica- cant’s to make such
(i) was unlaw- tion. the communication Each include shall following fully intercepted; information: (a) ap- investigative (ii) identity or of authorization order proval making in- or law under which was enforcement officer application, tercepted is insufficient the officer authoriz- ing face; application ; (iii) (b) made complete a full and statement conformity the order of the facts and relied circumstances approval.” authorization or applicant, justify issued, belief order should be 2516-18 contain elaborate Sections including (i) particu- details as to the provisions the authorization been, being, *5 lar offense that is or investigations. wire-taps in criminal committed, (ii) par- about to be is a They expan- than restrictive rather description ticular the nature and of their 2516 limits sive in terms. Section location of the facilities from which investigations wire-taps of the use to place or the where the communication only. pro- certain crimes Section (iii) intercepted, to particular is be intercepted vides limited use com- description type of communica- by law munications enforcement offi- sought intercepted, (iv) tion to be the prescribes, cers. Section 2518 elabo- identity person, known, if com- generally detail, rate the and restrictive mitting the offense and whose commu- for orders au- findings contents intercepted; to nications are be thorizing wire-taps, the be to (c) judge application complete made the to whom a full and statement made, order, investiga- the to contents of as whether or and not other upon intercept- procedures may tive restrictions what be have been tried and may why they ed reasonably appear and how order be carried failed or the quote provisions unlikely out. We of these to succeed if or tried directly pertinent dangerous; be too sections this case. provides: (d) 2516(1) period Section a statement of the time for which the is re- “(1) Attorney General, any or quired to be maintained. . . .” specially Assistant designated by Attorney General, (3) pre- Subsection of Section 2518 findings application judge authorize the scribes the to a that the must judge jurisdic- essence, competent they Federal quoted make. provisions track the for, judge may grant (1). tion and such subsection Subsec- conformity (4) prescribes, tion with section 2518 of this in considerable de- chapter authorizing tail, ap- judge’s order contents of or order Attorneys provides: General, 1. 28 U.S.C. shall who per- appoint, “The President shall assist and with Senate, the advice and consent of formance nine of his duties.” tap. as approving track the eral is attached to this These also (1), provisions Exhibit A.” and include of subsection following: letter to Fan- The attached addressed agency ning, identity “(d) au- reads: intercept communica- thorized to regard your re- “This is with authorizing person tions, and of the quest appli- for authorization make application; . . .” . pursuant provisions of cation (5) 2518 of Title provisions limit- contains Subsection Code, ing any tap, an order of the court authorized duration Agency authorizing following: including the U.S. Customs intercept communica- Service to wire “Every extension thereof order and telephone number tions 714-233-8650, and from provision shall that the au- contain by Ri- subscribed to intercept shall be exe- thorization King under name of chard Michael practicable, shall be cuted as soon as in the Richard Hansen and located way to mini- conducted such a as King, of Richard Michael residence interception of communica- mize Avenue, Apart- address 2002 First subject to inter- not otherwise tions Diego, California, No. San ment ception chapter, must under this investigation into connection of the au- terminate attainment possible violations of 176a U.S.C. objective, event in thorized thirty days.” King Michael and others Richard yet unknown. (8) (9) prescribe meth- Subsections request your “I reviewed have assuring accuracy of tran- ods scriptions the facts circumstances detailed preservation heard, of what is therein and have determined that records, preconditions to their probable cause believe exists use in evidence. King and others as Richard Michael happened in this case. B. What yet unknown have and are committed Fanning, committing On March 1971 Charles enumerated offenses *6 attorney Department of 18, an Jus 2516 of Title Section tice, applied Code, for District Court the to wit: violations of 21 for the Southern District of California I have further deter- 176a. U.S.C. authorizing King’s tap probable an order a mined that there cause exists telephone.2 application person recites: will that the above believe tele- make use of the above-described powers to the con- “3. Pursuant phone those offens- in connection with on him 2516 of Title ferred 18, Section es, that concern- wire communications Code, Attorney United States ing intercepted, will be the offenses States, the Hon- General the United investigative proce- and that normal Mitchell, specially N. orable John designated unlikely to succeed. dures are proceeding the As- this hereby you “Accordingly, autho- Attorney for the sistant Crim- power specially dele- Division, rized under the inal the Honorable Wil- Will gated proceeding me son, in this affiant to make authorize authorizing Attorney application General of the United for an order States, the Honorable John N. Mitch- of wire communica- power ell, pursuant conferred tions. The letter of authorization signed by on him Section 2516 the Assistant Gen- support ferial, case, In there were four the documentation substantially wire-tap identical. We and was orders four orders. The each tap; our statement first initiated the the other three therefore confine during tap and order. facts to the first extended time which it ma- could he maintained. So far as assuring Code, applica- sis on strict adherence to the to make United States jurisdic- required statutory, judicial judge competent and Con- tion to attorney pursuant to stitutional standards. The tion for order handling Code, requests, of that unit Philip White, of Title authorizing Agency- T. the files Customs reviewed U.S. intercept action on communica- recommended favorable wire Service request. turn, each In file tele- (20) each tions from the above-described its twenty phone period then submitted for to Ed- review days. Joyce, Deputy ward T. Chief of the Organized Racketeering Crime and Sincerely, Section, approval who recommended Wilson Will S/ request sent it I to me. exam- WILSON WILL ined each file and forwarded Attorney General” office of the General with a complies face, this letter On its detailed recommendation au- composed it had ob- Act. Whoever granted. Following ap- thorization be viously framed the studied the Act and proval in the Office accordingly. letter General, the Criminal Division dis- problem arises from the fact that patched the letters dated March everything practically in the let- stated April April April 29, 1971, sign it. ter is false. Wilson did not He Fanning advising to Charles J. him Fanning’s never saw He never saw it. present that he was authorized to request, any request, much less re- applications to the court. viewed it. He made none of the deter- signed “I Wilson’s name to the Will para- minations recited in the second graph. Attorney 19, April 8, April letters of March Mitchell did April in accordance with delegate specially any power to him the authorization of Will Wilson and short, to act in this case. the Dis- procedures the standard of the Crimi- Judge trict who issued order regarded signing nal Division. I “had”. of Will Wilson’s name as a ministerial light, When facts these came act, because Will Wilson had autho- government filed affidavits which state sign rized me to name to dis- actually happened. what isOne Har- patch such a letter of authorization in Shapiro, Deputy old P. Assistant Attor- request instance in which the ney the Criminal Division of favorably had been acted in the Department Shapiro of Justice. Office of General.” *7 states: A by Attorney second affidavit is request, “Prior action to on each says: General Mitchell. This he is what
respective Departmental working file, copies which proposed included “Shortly taking office, after I deter- affidavit, application, order, and was authority granted mined to utilize special reviewed in ganized by a unit of the Congress Or- in 18 U.S.C. 2510-2520 Racketeering and (Title Crime Sec- III of the Omnibus Crime Con- tion by of the Criminal Division an 1968) trol and Safe Streets Act of to attorney primary whose function was conduct electronic surveillance under to review the entire matter for form investiga- court authorization in the particular empha- and substance with tion of certain criminal activities. Shapiro 3. Attached to the affidavit application is an ters of authorization for to says: affidavit Will Wilson which District Courts for orders Deputy “I have authorized Code, Assistant under Title Sec- Attorney Henry General application B5. Petersen tion after such had Deputy Attorney approved by Assistant Attorney General been Gen- Shapiro sign my Harold to name to let- eral.” year whereby procedure more than a after “Somewhat all “I established Department pro- apply first utilized the for this to requests for authorization verbally III, subject I visions Title [sic— interception orders are wire orally] au- means Divi- assume this in criminal intensive review my Assistant Department thorized Executive of Justice and sion requests my on requests act on behalf in which of the each might the Criminal be transmitted concurs forward- Division is Criminal when I not Division a time recommenda- at to me with a written ed gave I him I on them. available to act Division that tion of Criminal light authority in of his fa- approve it. miliarity my policies with permit- “Although 2516(1) 18 U.S.C. my requests on had decision all desig- Attorney General, me, ted as My previously me. been submitted to Attorney General nate an assistant subsequent in which review cases inter- for wire authorize my approved requests he behalf my approval, ceptions I without chose poli- my confirmed that followed he designation, but to make such cies. requests require all rather to authority applications be to file such per- 20, 1971, November I have “Since me for consideration. forwarded sonally applications for authorized all procedure intended to cen- This interception orders which have been responsibility tralize me pursuant presented judges to Federal policies to be fol- control of the 2516(1).” to 18 U.S.C. Department of Justice lowed A Lindenbaum. third affidavit Sol is relation to Title III Omnibus Here his is statement: Control and Streets Act Crime Safe “At the times of the acts related I and am now the affidavit was my requests “All office received Attorney Executive Assistant by my Executive are reviewed Assist- General United States. I assist ant, Except oth- Lindenbaum. as Sol review of General herein, Mr. Linden- erwise indicated require per- various matters which his request baum transmits the and all ac- opinions, inter- sonal attention such pretations, along companying me, papers to of the Board of decisions If determine his recommendation. I Immigration Appeals, applications for my request, approve I indicate to approval by pardons other Executive forms of initialling a memorandum clemency, complaints, con- antitrust addressed to tracts, agreements, proposed of- charge Di- Criminal compromise. fers See memorandum recites This vision. Regulations, of Federal Code is that the Assistant 0.6. designated” “specially authorize receipt my application. Upon “The General has refrained of mem- designating authorization, orandum, from ney Assistant Attor- letter authorize, Attor- without over the of the Assistant name approval, making ney Ap- General, dispatched *8 permitting intercep- plicant. for an order The memorandum and the tion part of wire or oral communications letter of authorization are developed Code, procedure under Title for United States transmittal 2516(1). Rather, applicant. my approval the Attor- to the ney required re- that all constitutes a notifica- General memorandum quests Attorney for re- such authorization be tion to the General Assistant to ferred him for In of the Division that have consideration. Criminal I my duties, performed discretionary ap- I normal course of re- act requests request. proving view such and make recom- regard Attorney your to General This is with mendations recom- routinely given I have reviewed thereon. mendation that authorization be February Fanning requests to Charles such since J. of the Criminal accordingly, and, application become familiar have Division make for an applicable statutory require- Order under Title United States by Code, permitting ments and actions taken Section 2518 .inter- requests. Attorney ception on General such of wire communications^for a twenty (20) day period to and from 19, April April “On March telephone number 714-233-8650 locat- April 29, 1971, the Criminal Division Avenue, Apartment ed at 2002 First Department of the ad- Justice Diego, California, No. San in con- Attorney dressed to the re- General investigation nection with the into quests approval of for authorizations possible violations Title apply interception for wire orders Code, Section 176a Richard respect telephone to a certain King yet Michael and others as un- Diego, California, allegedly used San known. King Richard others. Michael powers Pursuant conferred instance, request In each was ac- on me Section 2516 companied by copies proposed Code, you hereby are affidavit, application, order, specially designated to exercise those approval well as a recommendation for powers authorizing purpose for the from the instance, Criminal each Division. Fanning Charles J. to make the I reviewed the submitted application.” above-described material, request concluded that There is about as much requirements truth satisfied the of the stat- ute, my memorandum as in the there is and also concluded Wilson from knowledge letter. General’s previous cases, actions on that he The contrast between the content requests approve would submit- if Shapiro, Wilson, Mitchell and Lin- ted to him. Because the denbaum affidavits and Wilson let- available on (really Lindenbaum) ter and Mitchell occasions, approved the four I each of say striking, memoranda is least. requests pursuant to the authori- The memoranda tell Wilson that he is given zation which he had me act designated specially under section 2516 in the circumstances and caused his powers exercise the conferred placed initials to be memoranda to section. The affidavits that no state ap- Will Wilson. The memoranda designation made, such and proved requests that authorization be powers himself, Mitchell retained the given Fanning to Charles J. to make “verbally” delegated but them Linden- or- baum. Yet the Wilson letter recites that ders. he had reviewed determinations, made certain and that Copies of these memoranda at- designated specially Mitchell had Wilson tached.” powers to exercise his under section virtually The four memoranda are iden- can We conceive of rational only quote tical. We the first: explanation paper elaborate cha- rade, “To: Will Wilson unless it deceive the Con- gress and the Courts. (Initialled) JNM Perhaps it come would as no shock to From: N. John Mitchell govern- most Americans to learn that operate ment bureaucracies in this man- *9 Subject: Interception handling day-to-day Order Authori- ner their zation However, ordinary affairs. this was no
503 applying policy in for wire- prohibits uniform all a taps. Act III of affair. interception policy; prescribes that Act The communica- or oral wire overused, are wire-taps but specifically- not be “[ejxcept otherwise tion of serious those cases chapter to be confined to . .” . . provided in this necessary use excep- it in which is crimes few There are 18 U.S.C. § Congress appli- wanted each is tions; case them. one relevant to this highest passed upon of the one quoted cation 2516(1), above. section govern- officials in law enforcement ment, history legislative The Act and Congress and it named them. purpose of the authoriza- clear the make per- judgment, expected them to exercise Congress requirement. was well tion any judgment, approving before sonal grave privacy to the threat aware processing application. sub- Routine posed is mod- American that approach. be the ordinates was techniques surveillance. of electronic ern de- responsibility that which than More quoted S.Rep.No.1097, in 1968 U.S. department upon any head volves bureaucracy, Cong. Admin.News, 2112, 2154. Code & responsi- is, ultimate recognizing importance of While do, bility was for what his subordinates combating organized tapping in wire Congres- required. It would subvert 2157-60, Congress crime, con- id. at to sanction scheme if were sional anything enforcement law cerned lest overzealous compliance strict less than excessively upon rely tech- such officers 2516(1), less section much investiga- niques in lieu of less intrusive place gross departure that has taken cir- procedures. to insure In order tive cumspection this case. Congress use, erect- in their requirements procedural ed the elaborate Nonetheless, attempt to save its in an taps described for the initiation wire argues prosecution, the Government It id. was seen above. See at 2185-96. letter, spirit, if stat- not the gener- significant safeguard for the First, aas ute has been satisfied here. public order for an al ignore the would have us Government intercept wire or oral communications ignorant of fact that Will Wilson they passed be arguing must before bearing name, his letter publicly presented re- to a court “a “minis- letter was Wilson subject political sponsible Fanning official informing Mr. terial act” process” General approved had been —either or an Next, level.4 at the -General States. Id. at 2185. United argued that At- irrelevant that it is torney not autho- Mitchell did opinion, purpose our merely wire-tap, provision that was done because was not assure rize the 358; F.Supp. majority Pa., 1972, 4. A 343 United courts has held that Consiglio, 1972, complies D.Conn., 342 v. the authorization with section States 556; Doolittle, 2516(1) actually F.Supp. v. if the States United approved F.Supp. 163; request, though M.D.Ga., even 341 United D’Amato, E.D.Pa., 340 Wilson letter was false. United v. States v. States Cantor, F.Supp. 1021; Cir., 1972, 890; v. 3 F.2d United States 470 Fiorella, W.D.Pa., 1972, F.Supp. 171, Cir., 1972, Iannelli, v. 2 339 United States ; Acquino, 688, 690-91; E.D. v. States 468 F.2d Ceraso, United States v. United 174 F.Supp. 647; Mich., 1972, 1080, 1081; Cir., 1972, 3 F.2d 338 467 Gerodemos, N.D.Ill., Cox, Cir., 1972, United States v. 8 v. 462 United States LaGorga, 1972; 1297-1300; v. v. W.D. United States States United 195. Contra: Becker, Cir., 1972, 230, 235; Pa., F.Supp. 190, 2 336 Focarile, D.Md., 1972, Pisacano, Cir., 1972, v. United States v. F.Supp. 1033, 1051-1060, 259, 263; aff’d sub. 459 F.2d Askins, States v. Cir., D.Md., 1972, Giordano, F.Supp. nom. United [Cr.L.Rep. ; Fox, F.2d 522. We need not take 2182] United States v. S.D.Ill., 1972, F.Supp. 1258, position ease, 1261- on this issue decide 1262; Whitaker, E.D. decline to so. United States v. do *10 many ego,” Lindenbaum, appoint by who to “alter his Sol policies egos, Depart- intimately alter within the Justice familiar with his ment or This would The Government without. emascu- such matters.5 good recognize procedure At- late the that this as Act. We characterizes always torney attempt requirements to exceed General cannot be availa- faith imposed upon perform ble to of the Act. the duties Congress by However, him an- statute. accept position would For us to this ticipated problem Act this here: The quicker be to concede that hand is permits designate specially him to an eye. asks us than the The Government to authorize away public to wave the fact that of- wire-taps; there are nine of them. by appointed ficial the President by argument subsidiary confirmed even saw— Senate A made approved vulnerability much less considered or Government illustrates —the wire-tap application. us It would have point. on this It contends that section procedures 2516(1) permits sanction which treat matters in fact affecting delegate citi- authority ap- the civil liberties to to ordinary country piece prove wire-taps anyone zen of this pleases, an to he agency business, despite express citing Rights an Civil Act Congressional contrary. to the 245(a)(1) proposition mandate for the U.S.C. § say, Congress Needless we do prohibit will not so. that “when wished to delegation any sort, it knew how Moreover, passing we note that argument do it.” While nec- is prepared whoever letter and Wilson essarily inconsistent with the Govern- (Lindenbaum) the Mitchell memoranda n vigorous delega- ment’s assertion that no drew them to The let- track the statute. authority place tion of took here —the represents judge ter that Mitchell ego theory certainly grates alter —it delegated performance Wilson Moreover, with it. the mere statement duty imposes, that Act that position of such a is its own refutation. performed it; Wilson has the memoran- Congress 2516(1), imposed purports delegation dum to make the personal duty, which is not dele- permits. the Act de- We cannot gated anyone other than an Assistant “good apparently scribe as faith” de- an Attorney General. The fact that it used attempt liberate court. mislead the language different to achieve the same Even if we were to with deal the Gov- totally result in a statute ir- unrelated argument ernment’s on its own terms it relevant. analysis. Assuming could not withstand argument arguments for the sake of the dis- Both of these de judge part trict would have issued the wire- rived in from United States v. Pis tap Cir., 1972, acano, (per order if he had known that the let- bearing J.), ter Friendly, Wilson’s name was a fabri- which the Govern cation, assumption heavily. respect an that we are not ment relies all With make, distinguished judge inclined to not follow that does who wrote judge accepted approval opinion, persuaded would have we are not Pisa indicated, Lindenbaum rather than cano. At- As we have do not torney agree requirements General himself. The Govern- of section ego theory proves much; ment’s 2516(1) merely alter too were intended to insure development policy it cannot be limited to the facts a uniform Rather, respect wire-taps case. its rationale would allow the At- provides: provision comparable 5. 28 U.S.C. There is no for the appoint, by appointment ego. “The President shall alter of an Senate, advice and consent General of the United States.
505
infringes
purpose
“responsi-
torney
the
statute
would remain
rights
the individuals in
having
on the
of
name affixed
ble”
his
Congress
volved.” This has'been described as
at-
could have
authorization.
example
bootstrap
of
the
objectives
“beautiful
manner that
these
in a
tained
placed
Giordano,
technique.”
responsibility
United
in our
States v.
far
less
agree.
argu
supra,
officials;
highest
note 4. We
its
law enforcement
rejected
confining
ment fails because we have
the use
elec-
concern with
of
underlying premise. The
only
authorization
surveillance
to those situa-
tronic
provided
necessary requirements
in
absolutely
section
it
tions in which
is
technicalities;
2516(1) are not mere
re-
convinces us that
the authorization
Congression
they
loosely
quirements
are at
heart
are not to be
inter-
Moreover,
al scheme.
as we have em
preted.
supported in this con-
We are
phasized above,
we are not concerned
by the fact
that almost
clusion
just
rights
defendants.
pre-
with the
of these
court which has decided the
other
designed
procedures
present- The Act’s
question
were
we
cise
with which
general
protect
public
from
procedures
abuse
ed here has held that
these
power
Judge
the awesome
of electronic surveil
ex-
violate
Act.6
Sobeloff
lance. The
in
case
“responsibil-
communications
this
Congress
posed the weakness of the
unlawfully intercepted;
argument
ity”
were
Gior-
United States v.
provided
dano, supra,
stating:
that the evidence
derived
note
suppressed.
therefrom must be
18 U.S.
accept
“If
should
Govern-
C. 2515.
§
reasoning,
no as-
ment’s
there can be
great
case,
It is with
re-
reluctance that we
if
surance that in some future
verse the convictions
this case. The
particular wiretap
authorization
guilt
embarrassing,
evidence of
derived from the wire-
proved politically
tap
overwhelming.
thorough
A
not then re-
General would
investigation extending
expensive
over a
pudiate his “Lindenbaum.” The At-
period of
always
some months is in effect
torney
would
be able
(except
hindsight
say
washed down the drain
for the
with the
benefit
seized),
betrayed
contraband that was
quite
and it is
that the subordinate had
confidence,
his
Fanning
clear that neither
nor
beyond
scope
Mr.
acted
officers
the field had
means
responsibility,
actions tak-
knowing
agent.
were
en
were not those of an
improperly
They, too,
ego
were
destroys
concept
theory
authorized.
alter
“had.”
establishing
of
responsibility
identifiable individual
gov-
at a certain level
However, blame
this waste
ernment.”
legality Light Virginia wire-tap. Pope convictions
507 ing Brennan, J.); opinion of be reversed because should nonetheless Dinsio, Cir., 1972, they their motions for sever- States v. abandoned 1394; States, Bursey v. United in reliance the district court’s ance Cir., participate permitting in the F.2d 1091- them argument 1092; States, Cir., suppression is Loux v. United motions. This wire-tap was in- 916 n. 2. As No evidence frivolous. out, against joint correctly points trial troduced them at Government recording introduced at could not have been rule this Circuit is that which grand testimony Thus, they jury permissive separate trial. suffered however, mandatory; prejudice.7 rather than permission have observed that such also Having concluded defendants arbitrarily denied. United standing Light Virginia Pope lack Thoresen, Cir., 1970, 428 F. States v. King’s object telephone, tap *13 increasingly 654, ap 2d 666. It becomes we consider their other contentions warnings parent not be that these will appeal. this actually taken to heart until we dismiss Light Virginia III. Convictions and indictment. Pope. remedy only complete for Transcription Jury A. Grand would be to dis- Government’s behavior Minutes. require miss the indictment and over, to start before a new Government argued First, it is that the in grand jury, reporter present with a to against Light Virginia dictments testimony record the of the witnesses. Pope should be dismissed for Gov That, however, remedy, and, is a drastic proceed ernment’s refusal to transcribe willing Thoresen, supra, as in not are ings grand Following jury. before the to use it here. That is not because we original return of the indictments action; approve of the Government’s far case, timely this the defendants made a from it. Magis motion before a United States transcription trate for and disclo steps There are two that must grand testimony. jury sure of future be taken if defendants are to have the denied, Magis motion but right grand inspect benefit of their to trate warned the United States jury testimony under Dennis v. United so, failure to do if shown to be States, supra. step The first is the prejudicial, could result in dismissal. recording testimony. That, how days Nonetheless, two later the Govern give ever, more, without does not de superseding ment obtained a indictment right inspect fendants to record. reporter present.
with no court
They
particular
must also show a
need.
judge
recognize
The district
described
We
Government’s
“imprudent.”
grand jury proceedings
this action as
consid
We
refusal
to record
“arrogant”
er
There
as well.
is a
it difficult
make
for a defendant
growing
grand jury
showing
necessary
awareness
se make the
of need
itself,
crecy
Light
compel
is not an end in
rea
disclosure. But here
underlying
Virginia Pope
attempted
un
sons
tradition
have not even
scrutiny.
See,
g.,
showing.
dergoing judicial
Compare
e.
Dennis v.
such
States, 1965,
States, supra,
Dennis v. United
U.S.
384
United
at
384 U.S.
871-
855,
1840,
869-872,
1840;
L.Ed.2d
S.Ct.
16
86
86
Osborne
S.Ct.
v.
Pittsburgh
973;
States,
Cir., Plate Glass Co. v. Unit
9
371 F.2d
917-
States, 1959,
395, 401-410,
They
discovery
ed
360
919.
obtained
U.S.
(dissent
evidence,
tap
L.Ed.2d
79 S.Ct.
3
Government’s wire
which
Light
Virginia Pope
urge
standing
challenge
might
have
also
us to
wire-
adopt
position
Portas,
tap.
argument
This
is addressed to the
of Justice
who
they
Alderman,
wrong
dissented
under which
court.
against
helpful
them.
ever it
relevant or
the trial
its case
was the crux of
accused, applies
circumstances, they
proba
no defense of an
suffered
such
hearings,
prejudice
their
cause
it would not benefit
from denial of
ble
sufficient
argument
proceedings war-
them here. Their
is that the
motion to
record
gave
information,
not
case. United
informant
false
rant action
us
Cir., 1971,
the officer did not have
Fishbein, 9
reason
States v.
Thoresen,
1206;
v.
believe that what he was told was true.
supra.
permitted in
Such an attack is not
hearing
cause,
probable
to determine
repeat
previous
our
warn
We
identity
and the informant’s
would
ings, however: the
is court
Government
therefore
have been relevant. Unit
ing
when it
fails to record
disaster
Cir., 1967,
Perry,
ed States
grand jury proceedings,
judges
and the
356, 358, cert. denied
389 U.S.
should exercise their discretion to re
quire
Kip
also
S.Ct.
There are substantive Division of Justice” Attorney out and forwarded to the content of affidavits set General ap- majority opinion and those with written recommendation of the dissenting pended approval. opinion requests Rob- Division for All procedures Lindenbaum, inson. The were fol- were then reviewed same Sol Assistant, Here, however, the Executive lowed. affidavits and transmitted to Attorney procedures were considered General with his recom- ruling district court in on a motion to mendation. suppress ground newly on discov- year” “Somewhat more than a after subsequent ered evidence filed to the Department provi- first utilized the guilty prior imposition verdicts and III, Attorney sions General Following hearing the of sentence.4 (his) “authorized Executive Assistant to suppress wiretap motion to evidence (his) requests act on behalf on findings denied,
was opinion.5 without formal or might be transmitted at a time when
(he) available to act on them.” gave Robinson, continues: “I him The records in Pisacano affidavit authority light in the this arity of his famili- instant all contain cases affidavits my policies my Lindenbaum, and with deci- Sol Executive Assistant requests pre- Attorney sion on all viously had been General. In addition My submitted to me. subse- the record here contains an affidavit quent ap- Mitchell, Attorney General, review eases which he John N. proved requests my quoted confirmed opinion. behalf full in the court’s my policies.” he followed This affidavit confirms and clarifies the policy Attorney General set out As the court said in Pisacano: the other affidavits. Attorney “The General assumed full 2516(1) permitted While 18 U.S.C. § responsibility for what was done even specially desig- if he did not act himself in case. nate appears, From what now the ‘narrow intercep- authorize for wire by ‘top limitation’ on authorizations approval, tions without his department prescribed officials’ in § desig- General “chose not to make such 2516(1) did result in the establish- nation, require but rather to that all re- unitary policy ment of ‘a in the use of quests authority applica- to file such power the awesome conferred’ in Title (him) tions be forwarded to for consid- III—as the Robinson court concluded eration.” This was intended to central- Congress. Indeed, was the intent of ize in “responsibil- *16 that court remarked that a direct au- ity policies for and control of the to be by thorization the Executive Assistant by Department followed the of in Justice applica- ‘would have assured that the ” relation to III. . . . tion was deemed warranted in this requests All particular apply for authorization to case and was not “routine- interception ly” wire by Attorney orders were “sub- made the Assistant ject to intensive deputy, conformity review in the Criminal “in General’s with unreported (following pleas guilty) decisions of district courts Pisacano of pending appeal circuits; King were (following jury in six et al. in verdicts Department jury findings that the guilt by of Justice had in- trials or the pend- court) procedures questioned formed the court that 92 cases were the in were ing in 29 different district in courts which the district court. In Robinson the issue wiretap appellate the issue of the authorization was first raised in the court. applications (472 had been raised. F.2d relating wiretap 5. Other motions to the sur- 975-976, 1) at note veillance had been considered the 4. opinion prior While the misstatements the authoriza- district court in a written applications light F.Supp. tion (S.D.Cal.1971) first came to after trial. 523 cases, convictions in all of these ’ Moreover, the warrant procedure.” ant were sufficient the standard application order.6 clearly for the procedures conformed used the 2516(1), particu- the letter of § problem is difficult A close and light of the larly is read in when this Certainly plausible presented. reasons 101(a) evidence, furnished § interpreta- for both have been advanced Rights 1968, 18 TJ.S.C. § Act of Civil 2516(1).7 provisions of tions Congress 245(a)(1), wished when that the cir- view of the clear conflict sort, any delegation prohibit cuits, it is that the issues will be obvious ultimately Supreme 263. at the how do it.” F.2d resolved knew petition A Court. certiorari opinion, “The in the court’s As stated on v. Pisacano was filed guilt the wire- derived from evidence petition April in the sub- overwhelming.” agree I that tap is sequent Second ease of United Circuit to sustain is not in itself sufficient Becker, filed v. States does, however, reenforce It conviction. July on There been has 1972. opinion, in my join in the reluctance to ruling petition. While I either would Attorney Gen- prefer the view the fact decision of the Su- await the preme pending petitions, responsibili- Court on the full personally assumed eral ruling absence adhere the of such I is no ty there done and for what was Pisacano for reasons therein.8 the stated accompany- suggestion papers the ing request Assist- the Executive I would affirm all of convictions. to the the happen.” though Even no abuses will 1968 U.S.Code 6. Cong. Admin.News, pp. 2112, judge the authorization & misstated district procedure, procedures adopted supra, dis- a second as noted being case, judge after did centralize who tried General Mitchell trict procedure actually apprised policy publicly fully “in a re- formulation of sponsible suppress followed, subject political the motion to official denied wiretap process”; that centralization did avoid evidence. development “divergent practices” ; Report No. referred to 7. Senate procedures have and the now discovered interpretations, opinions supporting both person.” “an led to identifiable paragraph: contains this Becker, (1) supra, “Paragraph [18 § 2516] In United U.S.C. General, provides at an ad the court stated that General of herence to law as set fortli in Pisacano specifically desig- approval Department “not as an by of Justice should be construed applica- procedure by him, nated authorize an followed * * authorizing inter- for an and his staff tion order though ception I oral communications. same is true here. Even find no wire or provision publicly in in a faith This centralizes evidence bad or reliance subject. responsible seeking inter evidence official sufficient ception orders, agree political process law I it is un the formulation of do Department policy on the use of fortunate that the of Justice enforcement strictly techniques. comply Cen- did not statutory more electronic surveillance provisions. possibility in Mr. avoid the As stated tralization will procedure develop. divergent practices might affidavit, Mitchell’s occur, re- and all lines of been discontinued Should abuses sponsibility ap since November proved 1971 have been lead to identifiable *17 personally person. provision in This should itself go long way guaranteeing toward General.