467 F.2d 647 (3rd Cir. 1972), 72-1355, United States v. Ceraso

Docket Nº:72-1355.
Citation:467 F.2d 647
Party Name:UNITED STATES of America, Appellant, v. Thomas Anthony CERASO et al.
Case Date:August 16, 1972
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 647

467 F.2d 647 (3rd Cir. 1972)

UNITED STATES of America, Appellant,

v.

Thomas Anthony CERASO et al.

No. 72-1355.

United States Court of Appeals, Third Circuit.

Aug. 16, 1972

Argued July 11, 1972.

As Amended Sept. 15, 1972.

Page 648

John J. Robinson, Appellate Section, Crim. Div., Dept. of Justice, Washington, D. C. (S. John Cottone, U. S. Atty., Scranton, Pa., Sidney M. Glazer, Atty., Raymond E. Makowski, Sp. Atty., Dept. of Justice, Washington, D. C., on the brief), for appellant.

Thomas J. Hanlon, Scranton, Pa. (Anthony D. Miele, Michael J. Casale, Williamsport, Pa., Arthur K. Dils, Harrisburg, Pa., on the brief), for appellee Frank Casale.

Before ALDISERT, MAX ROSENN and HUNTER, Circuit Judges.

OPINION

MAX ROSENN, Circuit Judge.

The United States appeals from a decision suppressing wire-taps authorized under the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (1970). 1

Appellees allegedly conducted a gambling operation in Williamsport, Pennsylvania. The Department of Justice's Organized Crime Strike Force obtained wire-taps for several telephones supposedly used by the appellees. The taps yielded recordings of telephone conversations which the Government intended to introduce at trial.

After a suppression hearing, the district court concluded that the tapes of the conversations could not be introduced because the Government had violated specific provisions of Title III when it made application to the courts for an appropriate order. None of the district court's objections involve appellees' fourth amendment rights. Both parties to the litigation concede that probable cause was shown and that the scope of the surveillance was properly delimited in conformance with all constitutional standards. 2 However, the wire-taps were held defective in the opinion of the district court because:

(1) Neither the Attorney General nor an Assistant Attorney General specially designated by him authorized the application to the court as required by 18 U.S.C. § 2516(1); 3

(2) The application did not identify correctly the officer authorizing the application

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to the court as required by 18 U.S.C. § 2518(1)(a); 4 and

(3) The court order did not identify correctly the officer authorizing the application to the court as required by 18 U.S.C. § 2518(4)(d). 5

We do not agree with the district court's conclusions and hold that the wire-taps should have been permitted into evidence.

In this case, the field attorney in charge of the investigation transmitted his request for a wire-tap to the Department of Justice in accordance with the provisions of the statute. The application then entered the channels used by the Department to process and analyze such requests. First, the request was reviewed by attorneys in a special unit of the Organized Crime and Racketeering Section of the Criminal Division whose primary function it was to review these matters. Then, the file was forwarded to the Deputy Chief or Chief of the Organized Crime and Racketeering Section who also approved the recommendation. At this point, the Deputy Assistant Attorney General of the Criminal Division reviewed the file and forwarded it to the office of the Attorney General. After a further review by the Executive Assistant to the Attorney General, Sol Lindenbaum, the Attorney General personally approved the application. 6

However, he did not immediately sign the letter authorizing the wire-tap application. Instead, he followed his established procedure of initialing a memorandum to Will Wilson, then Assistant Attorney General for the Criminal Division, specially designating him to authorize the request. His memorandum stated as follows:

This is with regard to your recommendation that authorization be given to Raymond E. Makowski of the Criminal Division to make application for an Order of the Court under Title 18, United States Code, Section 2518, permitting the interception of wire communications for a fifteen (15) day period to and from telephone numbers 717-322-0248, 717-322-0805, and 717-322-4443, located at 2315 W. Southern Avenue, South Williamsport, Pennsylvania and telephone number 717-322-9163, located at Frankie's Tavern, 243 Market Street, Williamsport, Pennsylvania, in connection with the investigation into possible violations of Title 18, United States Code, Section 1955, 2, and 371, by Thomas Anthony Ceraso, Frank Casale, James Hurley, Lloyd Bosch, John E. Troutman, and others as yet unknown.

Pursuant to the power conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to exercise that power for the purpose of authorizing Raymond E. Makowski to make the above-described application.

Because the Assistant Attorney General's office regarded this authorization as a ministerial act in light of the Attorney General's approval of the application, Wilson's Deputy, Harold Shapiro, signed Wilson's name to the letter subsequently transmitted to the district court. Although the letter bore the signature of the Assistant Attorney General, the

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affidavit of the attorney in charge of the investigation to the district court properly depicted the line of authority in this case. It stated in part that:

Pursuant to the powers conferred on him by Section 2516 of Title 18, United States Code, the Attorney General of the United States, the Honorable John N. Mitchell, has specially designated the Assistant Attorney General for the Criminal Division of the United States Department of Justice, the Honorable Will Wilson, to authorize affiant to make this application for an order authorizing the interception of wire communications. The letter of authorization signed...

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