United States v. Ceraso

• Decision Date: 16 August 1972
• Docket Number: No. 72-1355.,72-1355.
• Citation: 467 F.2d 647
• Parties: UNITED STATES of America, Appellant, v. Thomas Anthony CERASO et al.
• Court: U.S. Court of Appeals — Third Circuit

467 F.2d 647 (1972)

UNITED STATES of America, Appellant, v. Thomas Anthony CERASO et al.

No. 72-1355.

United States Court of Appeals, Third Circuit.

Argued July 11, 1972.

Decided August 16, 1972.

As Amended September 15, 1972.

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 OF THE COURT

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 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 XXX-XXX-XXXX, XXX-XXX-XXXX, and XXX-XXX-XXXX, located at 2315 W. Southern Avenue, South Williamsport, Pennsylvania and telephone number XXX-XXX-XXXX, 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 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 by the Assistant Attorney General is attached to this application as Exhibit A.

The subsequent order of the district court therefore recited that:

. . . pursuant to application authorized by the Assistant Attorney General for the Criminal Division of the United States Department of Justice, the Honorable Will Wilson, who has been specially designated in this proceeding by the Attorney General of the United States, the Honorable John N. Mitchell, to exercise the powers conferred on the Attorney General by Section 2516 of Title 18, United States Code, to . . . .

These various documents comply with the intent of Congress as expressed in Sections 2516(1), 2518(1)(a) and 2518(4)(d).

Section 2516(1) requires that the Attorney General, or a specifically designated Assistant Attorney General, authorize each application to the court for a wire-tap order. Senate Rep.No.1097, which accompanied the Omnibus Crime Control bill, argued for this provision because it would "centralize in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques." 1968 U.S.Code Cong. and Admin.News, pp. 2112, 2185. The centralization would curtail divergent practices and would provide a means to place blame should abuses occur.

If Attorney General Mitchell had signed a letter stating that he had authorized the application, there would be no question that there was full compliance with the law. However, the district court found that the memorandum the Attorney General sent to the Assistant Attorney General was merely a delegation of authority that would permit the Assistant Attorney General to decide if the application should be approved. We do not believe this view was a correct interpretation of the memorandum. When it is read in light of the affidavits of former Attorney General Mitchell,⁷ and Deputy Assistant Attorney General Harold Shapiro,⁸ it is evident that members of the Assistant Attorney General's office understood that the Attorney General had approved the application.

In addition, once the Attorney General personally approves a request, it is irrelevant for the purposes of Section 2516(1) that the Assistant Attorney General signs his name to the letter transmitted to the field. This procedure has been repeatedly approved by other courts. United States v. Becker, 461 F. 2d 230 (2d Cir.1972); United States v. Pisacano, 459 F.2d 259 (2d Cir.1972) (first extension application); United States v. Doolittle, 341 F.Supp. 163 (M. D.Ga.1972); United States v. D'Amato, 340 F.Supp. 1020 (E.D.Pa.1972); United States v. Iannelli, 339 F.Supp. 171 (W.D.Pa.1972); United States v. Aquino, 338 F.Supp. 1080, 1081 (E.D.Mich. 1972). We concur since once the Attorney General or his designated Assistant Attorney General approves, the purposes of centralization are achieved. The act of approval by the designated individual assures that there will be a uniform policy on electronic surveillance regardless of whether that individual's name is on the authorizing letter. Furthermore, because of the chain of investigation that was undertaken in this case, the decision-making process can be traced and, when necessary, responsibility placed where it belongs. Appellees have not submitted any evidence or argument that the purposes of the section were in any way frustrated by affixing the purported signature of the Assistant Attorney General on the letter.

Notwithstanding an appropriate authorization, the Government must still show that it has met the requirements of Section 2518. United States v. Focarile, 340 F.Supp. 1033, 1057 (D.Md. 1972), correctly characterizes the authorization and identification procedures as two distinct steps in the wire-tap application process.

However, in this case, the subsequent identification of the authorizing officer is satisfactory and meets the demands of the statute. Senate Report No. 1097 states that Sections 2518(1)(a) and (4)(d), which require identification of the authorizing officer in the Government's application and in the court's subsequent order, were inserted to assure that responsibility for the wire-taps could be fixed. 1968 U.S. Code Cong. and Admin.News at pp. 2189, 2192. The affidavit of the...