472 F.2d 973 (5th Cir. 1973), 71-1058, United States v. Robinson

Docket Nº:71-1058.
Citation:472 F.2d 973
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. J. W. ROBINSON et al., Defendants-Appellants.
Case Date:January 16, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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472 F.2d 973 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

J. W. ROBINSON et al., Defendants-Appellants.

No. 71-1058.

United States Court of Appeals, Fifth Circuit.

January 16, 1973

Henry Carr, Carr & Emory, Miami, Fla., for Robinson, Escandar and others.

Donald I. Bierman, Acosta & Duran, Miami, Fla., for Jiminez.

James J. Hogan, Court-appointed, and Alan E. Weinstein, Associate Counsel, Miami Beach, Fla., for De Armas.

Guillermo Sostchin, Miami, Fla., for Mario Escandar.

Jose E. Martinez, Jerome P. Ullman and George A. Kokus, Asst. U. S. Attys., Miami, Fla., and John J. Robinson, Atty., U. S. Dept. of Justice, Crim. Div., Washington, D. C., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

PER CURIAM:

Judge Clark, writing for a panel of this Court, succinctly stated the posture of the case on appeal as follows:

This appeal was intended to raise the constitutionality of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which permits wiretaps and other electronic surveillance methods as crime detection aids. But, with the development of facts unknown until the case was before this Court, it turns out to present only the question of who may initiate an application to engage in such secret electronic surveillance under the authorization proviso of that legislation. (footnote omitted)

United States v. J. W. Robinson, etc., 5 Cir. 1972, 468 F.2d 189.

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The bifurcation of the constitutional issues from the questions raised by the apparent deviations from the statutory requirements came about by the appellants' adventitious discovery that Sol Lindenbaum, the Executive Assistant to the Attorney General, signed the Attorney General's initials to the authorization in question, designating Will Wilson, an Assistant Attorney General, to authorize the applications to a district judge. The Assistant Attorney General did not act personally, but instead Henry E. Peterson, a Deputy Assistant Attorney General, signed the Assistant Attorney General's name.

Appellants moved for remand of the case to the district court for an evidentiary hearing. The Government replied in a memorandum in opposition supported by affidavits of Lindenbaum and Peterson. The motion to remand was denied.

Premising its opinion and decision on the two affidavits the panel held that, "[s]ince the entirety of the evidence used to convict these defendants is conceded to have eventuated from these improperly authorized wiretaps, it follows that such evidence ought to have been suppressed." Id. at 194. In light of its holding, the constitutional issues raised on appeal were not reached. The judgments of conviction were reversed and the appeals were remanded to the district court with directions to dismiss the indictments.

On petition for rehearing en banc the Government moved to supplement the record by further exegetical affidavits from Lindenbaum and Peterson, or to remand the case to the district court for an evidentiary hearing to obtain a complete record.

Because the Government opposed a remand of the questions raised for the first time by the appellants on appeal, the panel concluded, and justifiably so, that the Government was content to rely, on the affidavits without more.

Ordinarily we would be unpersuaded to delve deeper into the questions raised by the appellants than that which was presented to the panel by the parties. But the validity vel non of the authorization procedure employed in this case is of such importance, 1 that we disfavor its resolution simply on the basis of two affidavits filed with respect to the issue, particularly since the issue had not been raised, litigated, or decided in the Court below.

We therefore remand this case to the district court for an expedited evidentiary hearing to determine whether the wiretap applications in this case were properly authorized under 18 U.S.C.A. § 2516(1).

The district court will make findings of fact and conclusions of law which, with the complete record, will be forth-

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with transmitted to this Court. All other issues raised by either party are reserved.

Remanded with directions.

CLARK, Circuit Judge, with whom THORNBERRY, GOLDBERG, GODBOLD, SIMPSON and MORGAN, Circuit Judges, join, dissenting:

The integrity of the remand procedure required by the en banc majority would be impeccable if this were a typical, fact-based case. Because it is not and because of its unique precedential impact, I dissent.

The deviation from strict 18 U.S.C.A. § 2516(1) procedure which was followed in procuring the wiretap orders in this cause was not an aberration. The abnormal volume of cases reported and pending in other circuits and in district courts throughout the country indicates just how widespread the use of the expedience of proxy authorization to initiate wiretap applications had become before Robinson was decided. 1 As can be gathered

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from the footnote, the results have been legally as well as factually divergent at the circuit and district level, with the Fourth Circuit embracing and the Second Circuit abjuring our panel view. An additional cogent persuasion to promptly finalize this appeal can also be found in the circumstance that ever since this case was taken under consideration en banc the United States has strongly urged the court to decide the instant issue here and now.

Immediately following the panel opinion the United States petitioned the panel for rehearing and attached to its petition additional affidavits by the original affiants which more completely detailed the numerous steps taken by subordinate administrative personnel of the Department of Justice precedent to their surrogate approvals. Alternatively, this initial petition for rehearing urged that if the court did not consider the supplementing affidavits, the cause be remanded to allow a record to be made. A rehearing en banc was suggested.

After our order was entered directing rehearing before the entire court, the United States filed a supplemental appendix in this court which contained the additional affidavits and all exhibits to each. These documents are appended to this opinion. Since the record here was so supplemented the United States has consistently requested that we decide the issue of whether the actions of the Department of Justice comported with the statutory requirements of § 2516(1) on such affidavits rather than to remand to allow the development of proof that the affidavits are accurate. Both in its supplemental briefs and oral argument before the en banc court, it continues to urge only that the panel decision be vacated and the case be resubmitted to the panel for resolution of the constitutional and other questions raised. Remand is not mentioned. In fact, on oral argument counsel for the government asserts it does not favor remand because it is concerned that the cases may become untriable due to lapse of time if a speedy determination of all issues is not forthcoming. More importantly, it is urged that the original and supplemental affidavits present all of the evidence relevant to the proper interpretation of the Department's action vis-a-vis Congress' § 2516(1) intent as to how wiretap authorizations should be initiated. The problem for the United States is that conceding all that is sworn to, compliance with the statute is still wanting under the panel view.

In the present context of this case, which involves the resolution of one single issue-Was the statute met?-a remand would be an exercise in futility unless the panel decision be reversed on its basic reasoning. The point in question then simply is not factual. There is just no contest over the panel sine qua non-action by a statutorily designated officer. A difference in case outcome can only be produced by changing the delineation of the permissible statutory minimum for authorization approval. Conceding all that the affidavits as

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now supplemented say, the balance does not sway unless the law of the case is to be reweighted, and this the en banc court declines to do.

This is not at all to say that I do not remain convinced (just as the panel was originally) that the authorizations were carefully made within the Department of Justice. They continue to be deficient only because they were not initiated in accordance with the legislative judgment of § 2516(1) which the panel and the Fourth Circuit say mandates that all such Department action eventuate in approval-not by any number or combination of assistants or deputies, but-by the Attorney General or a designated Assistant Attorney General, and then before and not after the fact.

When the United States Attorney applied to the district court for each of the orders authorizing wiretaps of these defendants he swore, inter alia:

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 in this proceeding the Assistant Attorney General for the Criminal Division of the 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 on Exhibit A.

Literally and under the panel's interpretation of § 2516, this was inaccurate, albeit unwittingly so. Attorney General Mitchell had not acted and neither had Assistant Attorney General Wilson in a single one of the three...

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