United States v. Cihal

• Decision Date: 13 January 1972
• Docket Number: Crim. A. No. 71-61.
• Citation: 336 F. Supp. 261
• Parties: UNITED STATES of America v. William CIHAL et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

336 F. Supp. 261

UNITED STATES of America v. William CIHAL et al.

Crim. A. No. 71-61.

United States District Court, W. D. Pennsylvania.

January 13, 1972.

Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., John M. Elias and Thomas A. Bergstrom, Sp. Atty., U. S. Department of Justice, Pittsburgh, Pa., for plaintiff.

James K. O'Malley, Pittsburgh, Pa., for William Cihal, John La Gorga, Michael J. Martorella, Anthony J. Martorella, Gilbert Martin and Ned T. Lehr. R. J. Rotatori, Cleveland, Ohio, for Joseph J. La Nese.

Alan Frank, Pittsburgh, Pa., for Salvatore Williams.

Martin M. Sheinman, Pittsburgh, Pa., for Salvatore Williams, Adoph Williams, and William Regan.

Richard A. Ferris, Pittsburgh, Pa., for Theodore Michenzi.

Harold Gondelman, Pittsburgh, Pa., for Harold Lee Margolis.

OPINION

WEBER, District Judge.

In this prosecution involving twelve co-defendants, the defendants have raised a number of objections relative to the obtaining of evidence under the wiretap provisions of Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 United States Code § 2510 et seq.

An evidentiary hearing on the motion to suppress has been held and the United States has filed documentary material in the form of affidavits in response to the particular motion addressed to the problem herein considered, Defendants' Motion to Compel Government's Admissions to Certain Unlawful Acts. While various other motions to suppress the evidence secured by wiretap are based on other grounds not herein considered, the specific motion to compel Government's admissions to certain unlawful acts forms the basis of a specific motion to suppress on the grounds herein stated and has been so treated by the parties.

The statute provides specific requirements applying to a motion to suppress this type of evidence:

"Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval." 18 U.S.C. § 2518(10) (a).

The defendants' motion to suppress considered herein is made on the basis that the conditions imposed by 18 U.S.C. § 2516(1) were not followed:

"(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications. . .".

The defendants contend that neither the Attorney General, nor any Assistant Attorney General specially designated by the Attorney General, authorized the application to a Federal judge for the order authorizing or approving the interception of the communications involved herein.

The application made to the Federal judge in the instant case contained a letter dated August 25, 1970, on the letterhead of the Department of Justice, Assistant Attorney General, Criminal Division, bearing the written signature "Will Wilson" above the typewritten designation "Will Wilson, Assistant Attorney General." The letter recites:

"Accordingly, you are hereby authorized, under the power specially delegated to me in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, to make application to a judge of competent jurisdiction for an order pursuant to Section 2518 of Title 18, United States Code, authorizing the Federal Bureau of Investigation to intercept wire communications from the above-described two telephones for a period of fifteen (15) days."

In response to the defendants' request to compel admissions of fact the Government has produced the affidavit of Henry G. Petersen, who at the time involved was a Deputy Assistant Attorney General in the Criminal Division of the Department of Justice which affidavit states that he signed the name of Will Wilson to the letter dated August 25, 1970 authorizing the application to the court, and that in so signing he acted in accordance with the authorization of Will Wilson and the standard procedures of the Criminal Division. The Petersen affidavit of December 9, further recites that "the signing of Will Wilson's name was in conformity with the standard procedure of dispatching such a letter in every case in which Will Wilson had been specially designated on an ad hoc basis to authorize the applicant to make the application."

In further response to defendants' motion to compel admissions of facts the United States has supplied an affidavit of Sol Lindenbaum, Executive Assistant to the Attorney General of the United States,¹ which states that on August 25, 1970 he approved a request for authority to apply for the original interception order in this case, and later for the subsequent extension of the order. He further avows that in both instances he specially designated Will Wilson, Assistant Attorney General, Criminal Division, to authorize the application. He states that in doing so he acted pursuant to authorization by the Attorney General under 28 United States Code, Section 510,

28 United States Code, Section 510, reads as follows:

"The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General."

A further affidavit of Henry E. Petersen makes further explanation of what was done in this case by stating that after the request for authorization to make application for wire interception orders had been reviewed by a special unit within the Criminal Division and processed through intermediate levels to him with a recommendation for approval, he examined them and forwarded them to the Office of the Attorney General with recommendations that the authorizations be granted. He states that "Will Wilson did not examine the files or expressly authorize an application as to either request." He further states that following the approval of the request in the Office of the Attorney General the letters of notification to the applicant that he was authorized to present the applications was sent by the Criminal Division bearing the signature of Will Wilson made by him. He further states that he signed Will Wilson's name because Will Wilson had authorized him to sign his name and dispatch such letters of authorization in every instance in which the request had been favorably acted upon in the Office of the Attorney General, and he had been specially designated on an ad hoc basis to authorize an applicant to make application for an interception order.

The Government's response admits that this case presents a situation where Sol Lindenbaum, the Executive Assistant to the Attorney General, approved the original request and Henry Petersen acting upon the approval of the Office of the Attorney General signed Will Wilson's name to the letters of authorization. The Government contends that, while conceding the procedures employed in this case did not conform to the technical language of the statute, nevertheless the applications were approved by the Office of the Attorney General and that this procedure complied with the legislative intent of Section 2516(1).

In determining the intent of Congress with respect to the provisions of Section 2516 we may compare it with the similar authority granted under 18 United States Code 2514, also a part of Title III of the 1968 Act, which provides for the approval of the Attorney General for the grant of immunity for a witness who is compelled to testify. We note that the authority given the Attorney General under Section 2514 does not contain the additional qualifying statement of Section 2516, "or any Assistant Attorney General specially designated by the Attorney General." In In re: December 1968 Grand Jury, John DiDomenico v. United States, 420 F.2d 1201 7th Cir., 1970, it was held that the letter of authorization signed by Will Wilson, Assistant Attorney General, Criminal Division, was a sufficient authorization because of the provisions of 28 United States Code 510 authorizing the Attorney General to delegate to any employee any function of the Attorney General and further because on November 4, 1968 the then Attorney General had delegated to the Assistant Attorney General in charge of the Criminal Division the authority to exercise the power vested in the Attorney General by Section 2514 of Title 18 of the United States Code to approve the application by a United States Attorney to a Federal court for an Order compelling testimony, said regulation being published in the Federal Register, Vol. 33, No. 222, Thursday, November 14, 1968, page 16564.

This case further differs from those cases pending in the various district courts of this country in which the same objection has been raised, of which this court has knowledge. In United States v. Sklaraff, Crim. No. 26355, Northern Dist. of Ga.,² there appeared a memorandum from John N. Mitchell, the Attorney General, to Will Wilson, Assistant Attorney General, reciting Wilson's recommendation that authorization be given for application to the court and specially designating Wilson to authorize the specific application. This memorandum bore the written initials of Attorney General Mitchell. In that case I see no question of the special designation because the Attorney General himself reviewed and approved the application. The...