United States v. Aquino, Crim. No. 45878.

• Decision Date: 17 January 1972
• Docket Number: Crim. No. 45878.
• Citation: 338 F. Supp. 1080
• Parties: UNITED STATES of America, Plaintiff, v. Gino AQUINO et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

338 F. Supp. 1080

UNITED STATES of America, Plaintiff, v. Gino AQUINO et al., Defendants.

Crim. No. 45878.

United States District Court, E. D. Michigan, S. D.

January 17, 1972.

Arthur J. Koscinski, Detroit, Mich., for Gino Aquino and Arthur Benzi.

Robert W. Larin, Pontiac, Mich., for Anthony McCormick and James Campagna, Jr.

Ronald S. Weiner, S. Allen Early, Jr., Detroit, Mich., for Howard Dixon.

Neil H. Fink, Detroit, Mich., for Kenneth J. Green, Marie Greuling and Clifford W. Terry.

Watson A. Zdrodowski, Allen Park, Mich., for James Moyer.

James K. O'Malley, Pittsburgh, Pa., for John Nagel, Joseph Nagel and Orlando Vigi.

Harry R. Bockoff, Detroit, Mich., for Harold Nicholson.

Sanford Rosenthal, Detroit, Mich., for Peter Paganes.

Henry Paniccia, in pro. per.

Morris H. Shillman, Lawrence Schreidell, Detroit, Mich., for Edward Sarkisian.

Stephan M. Losh, Warren, Mich., for Augie Sermo.

James Stabile, in pro. per.

Richard E. Rosin, Mt. Clemens, Mich., for Arthur Soave.

Donald L. Hobson, Detroit, Mich., for Phillip Zegrofus.

Arnold Shulman, William Jones, Sp. U. S. Attys., for plaintiff.

OPINION AND ORDER RE WIRE TAP AUTHORIZATION

KENNEDY, District Judge.

Defendants are charged in a two-count indictment with violating Section 1955 of Title 18, United States Code (part of the statute more commonly known as the Omnibus Crime Control and Safe Streets Act of 1968), which prohibits large scale gambling operations where that activity is also a violation of state law. Certain defendants have moved to suppress the contents of judicially approved intercepted telephone conversations, as well as all evidence derived therefrom, on the grounds that the authorizations for the original and the extension orders approving those wire taps¹ failed to conform with the requirements set forth in Section 2516 of Title 18, United States Code. Subsection (1) of that statute provides, in part:

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 by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of certain enumerated offenses.

Defendants contend that neither the original nor the extension authorizations were made by the Attorney General or an Assistant Attorney General specially designated by the Attorney General and that the court orders issued pursuant to those authorizations were thus improperly granted.

At the hearing on the motions the Court denied the same insofar as they relate to the original authorization. The disclosures made by the Government in response to defendants' motions indicate that, while that formal authorization was not actually signed by either the Attorney General or an Assistant Attorney General, the Attorney General had personally approved the authorization in a memo, signed by him, addressed to Mr. Will Wilson, then an Assistant Attorney General. The statute was thus complied with in that the Attorney General himself had approved the authorization for the request for the original wire tap order.

With respect to the extension, however, the Government admits that the decision to initiate the authorization for the request for the extension was made by Mr. Sol Lindenbaum, Executive Assistant to the Attorney General not an Assistant Attorney General. In a sworn affidavit (see appendix) Mr. Lindenbaum stated:

The Attorney General authorized me, pursuant to 28 U.S.C. 510, to act on the extension of the interception of wire communications in this matter. Pursuant to the Attorney General's authorization, on April 2, 1971, I approved an action designating Will Wilson to authorize David J. Cook to make the application for extension. In accordance with the Attorney General's directions, I submitted information to him concerning my action as soon as practicable so that he could order the interception terminated if he did not approve of it. He did not direct termination of this interception.

It should further be noted that, while Mr. Lindenbaum admits designating Will Wilson to authorize the extensions, and while Will Wilson's "signature" appears on that authorization, Mr. Henry E. Peterson, then a Deputy Attorney General, has admitted in a sworn affidavit (see appendix) that it was actually he, acting under the authorization of Will Wilson, who signed Mr. Wilson's name to the authorization. There is no indication of what communication, if any, transpired between Mr. Lindenbaum and Mr. Peterson; neither is there any showing that Will Wilson ever had any knowledge of this authorization even though Wilson's name is the only name appearing on the authorization.

The Government contends that, despite the language of Section 2516, Mr. Lindenbaum had the authority to issue the authorization for the request for the extension of the wire tap by virtue of Section 510 of Title 28, United States Code. That statute provides:

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.

The regulation promulgated under that statute, Section 0.6 of Title 28, Code of Federal Regulations, provides:

The Executive Assistant to the Attorney General established in the Office of the Attorney General shall:

(a) Assist the Attorney General in the review of opinions, interpretations, decisions of the Board of Immigration Appeals, applications for pardon and other forms of Executive clemency, antitrust complaints, contracts, agreements, and proposed offers in compromise and other matters submitted for the Attorney General's action.

(b) Perform such other duties and functions as may be specially assigned from time to time by the Attorney General.

If the language of Section 2516 does not preclude delegation to anyone other than an Assistant Attorney General specially designated by the Attorney General, Section 510 and the corresponding regulation (which has the force of law) would permit delegation to Mr. Lindenbaum and the authorization here for the request for the extension would be completely proper. In the Court's opinion, however, when Congress stated in Section 2516 that the power to authorize applications to a Federal judge was given to "the Attorney General, or any Assistant Attorney General specially designated by the Attorney General," it excluded designation of or delegation to all other persons. It is a long recognized rule of statutory construction that where one statute contains a specific provision or direction, as does Section 2516, and another statute dealing with the same or similar subject matter contains a more general provision or direction, as that contained in Section 510 and the regulation enacted thereunder, the particular or specific provisions must control. "Specific terms prevail over the general in the same or another statute which otherwise might be controlling." Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228-229, 77 S.Ct. 787, 791, 1 L.Ed.2d 786 (1957), quoting Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704 (1932). A related rule of construction holds that the enumeration of certain things in a statute implies the exclusion of all others. As was stated by the Supreme Court in Continental Casualty Co. v. United States, 314 U.S. 527, 533, 62 S.Ct. 393, 396, 86 L.Ed. 426 (1941): "A `legislative affirmative description' implies denial of the non-described powers." Applying these rules to the statutes here under consideration, it can only be concluded that the specific language of Section 2516 must take precedence over the general provisions of Section 510 and that the express limitations in Section 2516 preclude any inclusion of persons not specifically mentioned.²Only the Attorney General or an Assistant Attorney General specially designated by the Attorney General may authorize an application to a Federal judge for an order approving a wire interception.

The government has cited the case of In re December 1968 Grand Jury v. United States, 420 F.2d 1201 (7th Cir. 1970), in support of its contention that the general delegation statute, Section 510 of Title 18, United States Code, gave validity to Mr. Lindenbaum's actions in this matter. The court held in that decision that Section 510 could be used by the Attorney General to delegate the authority vested in him under Section 2514 of Title 18, United States Code, to grant immunity from prosecution to witnesses before a grand jury whose testimony is deemed necessary for the public interest. Section 2514 merely provides that any United States Attorney "upon the approval of the Attorney General" may apply to a court for an order requiring a witness to testify in exchange for a conferral of complete transactional immunity. It is thus readily apparent that Sections 2514 and 2516 are clearly distinguishable in terms of the language used in each. It should be further noted that Congress was dealing with two very different problems in these two statutes. As was stated most recently in United States v. Robinson, (5th Cir. Jan. 12, 1972):

The decision to ask a court to compel testimony with a consequent grant of immunity does not involve an action even approaching the gravity which attaches to the decision to apply for permission to engage in secret electronic surveillance. Congress could justifiably feel it important that the public know that only an identifiable person subject to the political process could trigger the unknown, unseen, unheard intrusion into private affairs that are constitutionally

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